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1997 Settlement Could Free Immigrant Children From INS Custody

By Casey C. Sullivan, Esq. on July 11, 2016 | Last updated on March 21, 2019

Under the terms of a 1997 settlement, minors must be released from Immigration and Naturalization Service detention centers, the Ninth Circuit ruled last week. That settlement, known as the "Flores agreement," established a "nationwide policy for the detention, release, and treatment of minors" in INS custody, Judge Andrew D. Hurwitz wrote for the three-judge panel, regardless of whether those children are alone or accompanied by adults.

Currently, hundreds of immigrant parents and children, accused of entering the U.S. illegally, are kept in custody, often for extended periods, at detention centers in New Mexico and Texas. Those minors could face release or transfer to new facilities under the Ninth Circuit's ruling, though the fate of their adult family members remains up in the air.

The Flores Agreement

In 1997, the U.S. government entered into the Flores agreement, establishing the "detention, release, and treatment" policy for child immigrants who enter the country illegally. That settlement stems from a legal battle which began 12 years earlier, in 1985, when a class action lawsuit challenged an INS policy that prohibited the release of detained minors to anyone but their parent or legal guardian.

Eventually, the District Court for the Central District of California approved a settlement between the plaintiff classes and the government. Under the terms of that agreement, the government must house children in non-secure, licensed facilities within five days of their arrest and detention.

INS Family Detention Centers

But starting in 2014, the INS responded to an increase in undocumented Central American immigrants by creating family detention centers in Texas and New Mexico. Under INS policy, unaccompanied minors would be released, while minors with family would be kept in detention, despite the detention facilities not meeting the standards of the Flores agreement.

In 2015, Flores motioned to enforce the settlement, arguing that Immigration and Customs Enforcement had violated the agreement by adopting a "no-release policy" and confining children in secure, unlicensed facilities.

The government, however, argued that the settlement applied only to unaccompanied minors. In the views of the government, accompanied immigrant children are outside the scope of the Flores agreement.

Both the district court and the Ninth Circuit disagreed, however, noting that the "plain language of the agreement clearly encompasses accompanied minors." It defines minors as "any person under the age of 18 years," describes a nation-wide scope, and defines the relevant class as all "minors who are detained in the legal custody of the INS."

That clear language was more than enough to overcome the government's strained reading of the settlement. The federal government had argued that the definition of "licensed programs" mentioned "dependent children," which excluded accompanied minors, thus removing all accompanied children from coverage under the settlement.

However, the Ninth Circuit rejected Flores' contention that the settlement also required INS to release detained parents.

It is unclear whether the government will appeal the Ninth's ruling, either to an en banc circuit or the Supreme Court. In the meantime, the Flores lawyers are currently in settlement talks regarding children detained at border patrol stations, the Los Angeles Times reports.

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