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February 19, 2016

The Flores Settlement: A Brief History and Next Steps

A Brief History and Next Steps

The Ninth Circuit is currently considering an appeal by the U.S. government of the 2015 ruling by the U.S. District Court for the Central District of California that the federal government violated a settlement agreement by detaining children in family immigration detention centers with their parents.

The Original Flores Settlement

In 1985, two organizations filed a class action lawsuit on behalf of immigrant children who had been detained by the former Immigration and Naturalization Service (INS) challenging procedures regarding the detention, treatment, and release of children. After many years of litigation, including an appeal to the United States Supreme Court, the parties reached a settlement in 1997.

The Flores Settlement Agreement (Flores) imposed several obligations on the immigration authorities, which fall into three broad categories:

  1. The government is required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
  2. If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs.
  3. The government must implement standards relating to the care and treatment of children in immigration detention.

According to advocates, as well as the Department of Justice Office of the Inspector General, the INS did not immediately comply with the terms of the Agreement. It was only after the Office of Refugee Resettlement (ORR) assumed responsibility for the care and custody of unaccompanied children in 2003—a product of years of advocacy on the part of human rights organizations, religious groups, and political leaders—that noticeable changes were implemented.

ORR, like the former INS and the Department of Homeland Security (DHS), has failed to issue regulations implementing the terms of the settlement, as required by the parties’ 2001 stipulation extending the agreement.

Accompanied Children

The situation of accompanied children, on the other hand, went largely under the radar (the legislation requiring the change in custody from INS to ORR only applied to unaccompanied children). One exception was a lawsuit challenging the deplorable conditions at the former T. Don Hutto facility in Texas, which detained accompanied children with their parents. The federal government agreed to close the controversial Hutto facility in 2009 and only one family detention center remained in the United States, in Berks County, Pennsylvania.

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