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Trump today signed an E.O. that calls for incarcerating immigrant children with their parents. For any given child, particularly thousand-plus ones that were caged today or before, the Flores Agreement's terms will take effect and he'll be again separating kids from their families.
What is the Flores Agreement and what are the Flores Agreement's terms?
The 1997 Flores Settlement Agreement (Flores) was the result of over a decade of litigation responding to the U.S. government’s detention policy towards an influx of unaccompanied migrant children in the 1980s from Central America. The agreement sets national standards regarding the detention, release, and treatment of all children in immigration detention and underscores the principle of family unity. It requires that:
Flores resulted from the application of jurisprudence; thus it has been challenged in court. The most recent challenge resulted in the following findings:
What is the Flores Agreement and what are the Flores Agreement's terms?
The 1997 Flores Settlement Agreement (Flores) was the result of over a decade of litigation responding to the U.S. government’s detention policy towards an influx of unaccompanied migrant children in the 1980s from Central America. The agreement sets national standards regarding the detention, release, and treatment of all children in immigration detention and underscores the principle of family unity. It requires that:
[*=1]Juveniles be released from custody without delay, and in order of preference to the following:
[*=1]a parent,
[*=1]legal guardian,
[*=1]adult relative,
[*=1]individual specifically designated by the parent,
[*=1]a child welfare licensed program, or,
[*=1]alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government agency.
[*=1]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 offenders.
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.” 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:
Flores requires a preference for release except:
[*=1]Where the detention of a child is necessary to ensure his or her appearance in immigration court; or
[*=1]Where the continued detention of the child is required to ensure his or her safety or the safety of others.
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.
Flores resulted from the application of jurisprudence; thus it has been challenged in court. The most recent challenge resulted in the following findings:
- The Flores agreement 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 Flores Settlement sets clear requirements for the release of children in U.S. immigration custody and the release must comply with the above noted preferences.
- 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.
- As of July 2015, the government’s family detention policies were 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.
