Backgrounder on the Flores Litigation and the July 24, 2015 Court Order Compelling the Government to Comply
As originally published by the Women's Refugee Commission and the Lutheran Immigration and Refugee Service
Backgrounder on the Flores Litigation and the July 24, 2015 Court Order Compelling the Government to Comply
On July 24, 2015, Judge Dolly Gee of the Central District of California ruled that current U.S. family detention policies violate the parameters set by a 1997 legal settlement known as the Flores Settlement. To comply with Judge Gee’s order, the government should immediately reverse the family detention policies and dismantle the facilities it instituted last year, and instead release accompanied children together with their parents.
What is the Flores Settlement?
The 1997 Flores Settlement Agreement (Flores) was the result of over a decade of litigation responding to the
- government’s detention policy towards an influx of unaccompanied migrant children in the 1980s from Central 2The agreement set national standards regarding the detention, release, and treatment of all children in immigration detention and underscores the principle of family unity. It requires that:
- Juveniles be released from custody without unnecessary delay, and in order of preference to the following: a parent, legal guardian, adult relative, individual specifically designated by the parent, a child welfare licensed program, or, alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government
- Where they cannot be released because of significant public safety or flight risk concerns, juveniles must be held in the least restrictive setting appropriate to age and special needs, generally, in a non- secure facility licensed by a child welfare entity and separated from unrelated adults and delinquent
Although reached when custody was still handled by Immigration and Naturalization Service (INS), the Flores settlement also binds “their agents, employees, contractors, and/or successors in office.”3 Therefore, it applies to all Department of Homeland Security (DHS) custody—including short-term Customs and Border Protection (CBP) custody and long-term Immigration and Customs Enforcement (ICE) family detention facilities—and those transferred to Office of Refugee Resettlement (ORR) custody.
Flores requires a preference for release except:
- Where the detention of a child is necessary to ensure his or her appearance in immigration court; or
- Where the continued detention of the child is required to ensure his or her safety or the safety of Children currently held in family detention centers have not been individually and meaningfully assessed to determine whether either of these exceptions apply to them, meaning their detention is out of compliance with
Flores requirements. In general, most children and their parents detained in family detention have existing community ties and nearly all have claims for protection, meaning they have strong incentives to appear in court.
Current Litigation in the Flores Agreement
In February 2015, Flores counsel filed a motion to enforce Flores stating that the government’s policies detaining accompanied children in family detention centers violate Flores because the Administration failed to release children to their parent, failed to pursue family reunification, and found that family detention violated the children’s rights to be placed in a non-secure, licensed facility while in custody. Additionally, Flores counsel sought to enforce the minimum standards for conditions and treatment for children in short-term custody with CBP. In response, government attorneys argued both that Flores did not apply to these children and sought to modify Flores to enable DHS to detain children together with families in family detention facilities, including unlicensed facilities.
For two months, the parties attempted to negotiate a settlement agreement relating to the release of children with their parents in accordance with Flores. Although the government has publicly said that family detention is a way to maintain family unity, and implied that compliance with Flores would result in family separation if the child were released while the parent is detained, this argument ignores that the government could release families together, on alternatives to detention (ATD) to mitigate significant risk factors, without resorting to detention.4
Recent Court Decision Regarding the Flores Settlement and its Impact on Family Detention
On July 24, 2015, Judge Dolly Gee of the Central District Court of California found that the Flores agreement clearly applies to all children in U.S. immigration custody, whether traveling alone or apprehended with their parents, and that current DHS family detention policies are in violation of the Settlement. The Judge found that the Flores Settlement sets clear requirements for the release of children in U.S. immigration custody. She also noted that Flores clearly articulates a preference for release to a parent over another relative or community sponsor, and that thus parents should be released together with their children whenever possible.
In addition, the Judge found that Flores also directs that in the rare case where a child must be detained because they pose a flight or security risk, children must be held in non-secure facilities licensed by child welfare agencies. The government had sought to modify the Flores Agreement because its new family detention facilities in Karnes County and Dilley, Texas, remain unlicensed by the state. In general, there is no licensing model for the detention of parents and children together. The judge denied the government’s request, and found the use of non-licensed and secure facilities a material breach of the Flores Agreement.
The judge also affirmed the plaintiffs’ contention that conditions and treatment in temporary custody violates the Flores Settlement. Women, children, and others apprehended at the border are routinely subjected to freezing conditions, little or no access to medical care or hygiene. The court found the government has failed to meet even the minimal standards of “safe and sanitary” conditions in these facilities.
What should be the impact of the Flores court decision?
- Children should not be detained, and should be released first to a parent or other legal The Flores agreement requires ICE to “release a minor from its custody without unnecessary delay” to a parent, a legal guardian, or other qualified adult custodian, except where the detention of the minor is required “either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others.”5 Judge Gee found that the government shall comply with…the agreement by releasing children without unnecessary delay in first order of preference to a parent, including a parent who either was apprehended with a child or presented himself or herself with a child. She found that agreement also requires that the government make and record prompt and continuous efforts on its part toward family reunification and the release of the minor . . . .”6 The children currently in family detention are all there with parents, and therefore should be released promptly with parents in order to comply with the Settlement.
- If they must be detained, children can be held only in licensed f The government’s facilities in Karnes and Dilley, Texas are unlicensed and therefore they should not hold children. The government currently has only one family detention facility that it considers non-secure and is licensed
– the Berks Family Residential Center in Pennsylvania. Advocates dispute the facility’s license and have reported repeatedly that the facility is secure. To be in compliance with Flores and the recent court decision, children may not be detained in secure and unlicensed facilities.
- Whether a child (and his or her accompanying parent) poses a flight or security risk requires an individualized determinatio Implementation of any Flores decision will require that DHS makes meaningful individualized assessments of risk. Detention should only be used as a last resort; if the government is concerned about risk, it should turn to proven alternatives to detention – that include case management and community support – to mitigate that risk.
- Where needed, the government should use the least restrictive alternatives to detention (ATD) Some alternatives to detention programs may also violate Flores if they impact the child’s freedom of movement in the community and are not the least restrictive setting. Therefore, DHS must consider how alternatives to detention, such as electronic monitoring devices, imposed on a parent may restrict the child’s liberty and whether lesser restrictions or other alternatives can be utilized. Release from detention, and where needed use of alternatives to detention, saves money.7 Family detention facilities cost roughly $343 per person per day, whereas alternatives cost on average $5 for an entire family if only applied to a head of household.
- DHS should implement short-term custody Judge Gee found serious violations of Flores at CBP short-term holding facilities which she found were neither safe nor sanitary, including inappropriate temperatures, inadequate nutrition, and a failure to meet basic safety and sanitation requirements. DHS must implement enforceable custody standards to ensure its short-term holding facilities meet basic humanitarian standards.
Judge Gee’s July 24, 2015 order found that the government’s current family detention policies are in serious violation of Flores. Releasing families together as they pursue their cases in immigration court not only saves U.S. taxpayer dollars, but is the only option that truly complies with the Flores mandate that children should be detained only as a last resort and should be released to a parent whenever possible. The government should comply with Judge Gee’s order immediately.
For more information on the Flores Settlement and DHS custody, you can contact:
Jessica Jones, Policy Counsel, Lutheran Immigration and Refugee Service, firstname.lastname@example.org or 202-626-3850.
Katharina Obser, Program Officer, Women’s Refugee Commission, email@example.com or 202- 750-8597.
1 For an extensive analysis of Flores and DHS custody, see LIRS, KIND, and WRC: “Flores Settlement Agreement & DHS Custody.” Available at: http://tinyurl.com/qxccfo8
2 The Flores Settlement Agreement, Case No. CV 85-4544-RJK(Px); Available at: http://tinyurl.com/qagjr8n. Some of the agreement’s terms have been codified at 8 CFR §§236.3, 1236.3.
3 Flores at paragraph 1.
4 American Immigration Council, “Court Reportedly Set to End Detention of Children in Unlicensed Family Facilities,” May 14, 2015, available at: http://tinyurl.com/pbw4dzq
5 Flores agreement paragraphs 14, 18.
7 Department of Homeland Security Budget-in-Brief Fiscal Year 2016 at pp. 54-55. http://www.dhs.gov/sites/default/files/publications/FY_2016_DHS_Budget_in_Brief.pdf