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August 03, 2015

The Flores Ruling and the Possible End to Family Detention

By Holly Fuhrman

Family detention might finally be coming to an end. A federal judge ruled that the government’s detention of children and their mothers seeking protection in the United States violates the Flores Settlement Agreement of 1997, which governs the standards for the detention, release, and treatment of minors. The court decision, issued by Judge Dolly Gee of the United States District Court for the Central District of California on July 24, 2015, is a major setback for the Obama administration’s attempts to expand family detention—a practice it had nearly abandoned until last year.  

In response to the increase in Central American children and families seeking protection at the southern United States border, Immigration and Customs Enforcement (ICE) adopted a policy in summer 2014 to detain mothers and their children. The government currently detains families—most of whom are seeking refugee protection—in facilities in Karnes City and Dilley, Texas, as well as Berks County, Pennsylvania.  

The Flores agreement set nationwide criteria for the detention, release, and treatment of immigrant children, prioritizing family unity. It requires government officials to release children from custody “without unnecessary delay” and to a parent or legal guardian, if possible.  If a minor cannot be released because of a significant public safety or flight risk concern, he or she must be held in the least restrictive setting, typically a non-secure facility licensed by a child welfare organization. Judge Gee found that today’s detention centers fail to meet such minimum standards.

In February 2015, Flores counsel filed a motion to enforce the original 1997 agreement. The plaintiffs argued that ICE detained families in secure and unlicensed facilities, which have not been certified to house and care for children by a child welfare agency. The plaintiffs also sought to enforce the minimum standards for short-term custody. Specifically, the plaintiffs offered evidence of extremely cold temperatures, overcrowding, and inadequate nutrition and hygiene at facilities operated by Customers and Border Protection (CBP)

In response, government lawyers argued that Flores did not apply to children accompanied by parents or legal guardians. It also sought to modify the Flores agreement to enable the Department of Homeland Security to detain families in unlicensed detention facilities. 

Judge Gee held that the Flores agreement applies to all children in immigration custody, including those accompanied by parents. She also found that, since Flores clearly prefers release to a parent over another relative or a community sponsor, parents and children should be released from custody together. In cases where the child cannot immediately be released, the government must use the least restrictive setting. Judge Gee also found that government authorities had “wholly failed” to meet the minimal standards of “safe and sanitary” conditions in temporary CBP facilities. 

Immigration attorneys and advocates, including Human Rights First, celebrated the ruling, and believe it should lead to the closure of the detention facilities in Karnes City, Dilley, and Berks. 

“We are disappointed with the court’s decision and are reviewing it in consultation with the Department of Justice,” said Marsha Catron, a spokeswoman for the Department of Homeland Security.

Judge Gee gave the administration until today, August 3, to file a response to her order. The government instead requested an extension, which the court granted until August 7.  

Regardless of the government’s response, Judge Gee’s decision is a step in the right direction toward  turning the tide for women and children who still face long waits and hefty bond payments as they await release from detention.