On June 20, 2018, President Trump signed an Executive Order with the declared intent to end the administration’s practice of separating immigrant families at the U.S.-Mexico border, while maintaining his “zero tolerance” approach to irregular migration.(1) Consistent with the “zero tolerance” approach, the Executive Order states that it “is the policy of this administration to rigorously enforce our immigration laws,” by criminally prosecuting those who seek to enter the country unlawfully.(2) However, instead of separating children from their parents, the Executive Order signals an intention to “detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”(3)
There is considerable uncertainty about how the Executive Order will operate in practice. Most significantly, the Trump administration is not lawfully able to detain immigrant children indefinitely. Yet, by the terms of the Executive Order, President Trump seeks to do exactly that. The administration’s apparent goal is to detain children together with their parents while criminal or immigration proceedings are being resolved. This process can take months or even years.(4)
What is the Flores Settlement, and why does it matter?
At the heart of this issue is the Flores Settlement, which regulates the detention, release, and treatment of children in the custody of federal immigration authorities.(5) It is an agreement approved by the District Court for the Central District of California in 1997, in settlement of a class action lawsuit which was filed in 1985 against the federal government on behalf of unaccompanied minors being held in custody by the Immigration and Naturalization Service (INS). In resolution of that lawsuit, the federal government agreed to be bound by certain minimum standards designed to ensure that all children in the custody of federal immigration authorities would be treated “with dignity, respect and special concern for their particular vulnerability as minors."(6) Although the Flores Settlement arose in the context of a lawsuit which concerned only unaccompanied minors, the terms of the Flores Settlement apply to all children – whether accompanied or not – who are held in immigration detention.(7)
As the Court of Appeals for the Ninth Circuit has held, the Flores Settlement “creates a presumption in favor of releasing minors."(8) In particular, it provides:
Where the INS determines that the detention of the minor is not 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, the INS shall release a minor from its custody without unnecessary delay ...(9)
Obligations imposed on the INS under the Flores Settlement continue to bind its successor, the U.S. Department of Homeland Security.(10) The requirement for release “without unnecessary delay” has been interpreted by the District Court for the Central District of California to require the release of families “within an average of 20 days” from the day on which they arrive in the custody of immigration authorities.(11) Detaining children for longer than this 20 day period – in circumstances where a child does not pose a flight risk and where there are no considerations of safety that would require a child’s detention – would place the Trump administration in risk of breaching the Flores Settlement, and Trump administration lawyers have conceded as much.(12)
The Trump administration is bound by the Flores Settlement, unless and until it is modified by Congress or the courts.(13)
The prospects of congressional action are uncertain at best. Congressional Republicans have proposed a bill that would override the Flores Settlement and thereby permit the detention of immigrant families together during their criminal and immigration proceedings,(14) However, it remains to be seen whether this bill will overcome the longstanding stalemate in Congress on immigration reform. In any case, it might well be subjected to court challenge.
That leaves the courts, and President Trump’s Executive Order provides that Attorney-General Jeff Sessions “shall promptly file a request with the U.S. District Court for the Central District of California to modify the [Flores] Settlement Agreement.”(15) Such a request was filed on June 21, 2018, seeking that two requirements in the Flores Settlement be removed. First, the Trump administration is seeking removal of the requirement of release “without unnecessary delay” of children detained with their parents, so it can detain them together while criminal or immigration proceedings are taking place. Second, the administration is seeking removal of a Flores requirement that such children who cannot, for exigent reasons, be released from custody “without unnecessary delay,” be placed in state-licensed facilities.(16)
The government’s request will be decided by Judge Dolly Gee of the District Court. She has the power to modify the Flores Settlement if certain conditions are satisfied, including if it is “no longer equitable” to apply the agreement.(17) Meeting this threshold requires the government to establish, first, that there has been “a significant change in circumstances” which warrants modification of the Flores Settlement, and second, that the proposed modification is “suitably tailored to the changed circumstance."(18)
The Trump administration argues in its memorandum to the Court that its proposed modifications to the Flores Settlement are “justified by several material changes in circumstances – chief among them the ongoing and worsening influx of families unlawfully entering the United States at the southwest border."(19) It is not clear that the District Court will be amenable to this argument. Indeed, in 2015, the Obama administration sought to modify the Flores Settlement in much the same way as the Trump administration is now seeking to do,(20) and in reliance on similar arguments about an increase in the number of children and families crossing the border unlawfully.(21) However, the Obama administration’s request was denied by Judge Gee in July 2015.(22) That decision was upheld on appeal by the Ninth Circuit, which reasoned:
Ordinarily … modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree … The Settlement expressly anticipated an influx, and provided that, if one occurred, the government would be given more time to release minors or place them in licensed programs … And, even if the parties did not anticipate an influx of this size, we cannot fathom how a “suitably tailored” response to the change in circumstances would be to exempt an entire category of migrants [accompanied minors] from the Settlement, as opposed to, say, relaxing certain requirements applicable to all migrants.(23)
These objections could also be levelled at the Trump administration’s request – namely, that the Flores Settlement expressly contemplates and provides for situations of “influx,” and in any case, that the modifications sought by the Trump administration (to enable families to be detained indefinitely in non-licensed facilities) are not a “suitably tailored” response. The Trump administration in turn has argued that circumstances have changed dramatically since 2015 to justify a different outcome, arguing that there have been more substantial increases in border crossings and that the increases are essentially the result of Court action.(24)
It remains to be seen whether this will provide a sufficiently persuasive basis for the District Court to find that modification of the Flores Settlement is warranted. If the Flores Settlement remains in place, the Trump administration will be required to release detained children “without unnecessary delay” (within an average of 20 days). This means releasing their parents too, if the Trump administration intends to remain faithful to its announced policy of maintaining family unity.
Refugees International Concerns
RI is concerned that there appears to have been little consideration by the administration of alternatives to family detention that could prove more humane, consistent with U.S. international obligations, and workable in terms of the legitimate interests in border management. These could include, for example, recognizance, parole, bond, or orders of supervision, among others.(25) The absence of such consideration increases the likelihood that, with a potential Court decision that effectively prevents family detention, the Trump administration may falsely claim that the Court has deprived the administration of feasible policy options.
RI will explore the issue of alternatives to family detention in a future policy brief.
Fiona Chong of Refugees International contributed to this brief.
1. Executive Order 13841 of June 20, 2018, s. 1: “It is the policy of this Administration to rigorously enforce our immigration laws … It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.”
2. Executive Order 13841 of June 20, 2018, s. 1.
3. Executive Order 13841 of June 20, 2018, s. 3(e).
4. See, e.g., Sylvester Owino, “I Spent a Decade in Immigration Detention,” The Hill, March 7, 2018.
5. See Flores v. Reno, Case No. CV 85-4544-RJK (Px), Stipulated Settlement Agreement, January 17, 1997, and Flores v. Reno, Case No. CV 85-4544-RJK (Px), Stipulation Extending Settlement Agreement and for Other Purposes; and Order Thereon, December 7, 2001 (collectively, “Flores Settlement”). The Stipulated Settlement Agreement was originally set to expire five years after the date of court approval of the Agreement, but in 2001, the parties agreed to extend the operation of the Agreement: see Flores v. Reno, Case No. CV 85-4544-RJK (Px), Stipulation Extending Settlement Agreement and for Other Purposes; and Order Thereon, December 7, 2001.
6. Flores Settlement, para. 11.
7. Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
8. Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
9. Flores Settlement, para. 14.
10. Flores Settlement, para. 1; Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
11. Flores v. Lynch, Case No. CV 85-4544-DMG, Order Implementing Remedies Pursuant to the Court’s July 24, 2015 Order, August 6, 2015, para. 2(a).
12. According to the Trump administration’s lawyers, “[u]nder current law and legal rulings … it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings.” See Flores v. Sessions, Case No. CV 85-4544-DMG, Defendants’ Memorandum of Points and Authorities in Support of Ex Parte Application for Relief from the Flores Settlement Agreement, June 21, 2018.
13. The Flores Settlement can be superseded by regulations issued by the executive branch, but such regulations would need to be consistent with the Flores Settlement: see Flores v. Reno, Case No. CV 85-4544-RJK (Px), Stipulation Extending Settlement Agreement and for Other Purposes; and Order Thereon, December 7, 2001.
14. See, e.g., Dara Lind and Dylan Scott, “Flores Agreement: Trump’s Executive Order to End Family Separation Might Run Afoul of a 1997 Court Ruling,” Vox, June 20, 2018.
15. Executive Order 13841 of June 20, 2018, s. 3(e).
16. Flores v. Sessions, Case No. CV 85-4544-DMG, Defendants’ Memorandum of Points and Authorities in Support of Ex Parte Application for Relief from the Flores Settlement Agreement, June, 21 2018. State-licensed facilities are facilities “licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children”: Flores Settlement, para. 19.
17. Federal Rules of Civil Procedure, rule 60(b)(5). Relevantly, the District Court also has the power to modify the Flores Settlement “if there is “any other reason that justifies relief”: Federal Rules of Civil Procedure, rule 60(b)(5).
18. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).
19. Flores v. Sessions, Case No. CV 85-4544-DMG, Defendants’ Memorandum of Points and Authorities in Support of Ex Parte Application for Relief from the Flores Settlement Agreement, June, 21 2018.
20. The Obama administration sought to amend the Flores Settlement in four ways: (1) to modify the release provisions to the extent superseded by legislation (in particular, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008); (2) to modify the release provisions so that they would not apply to accompanied minors; (3) to modify the state licensing requirements so that they would not apply to family residential facilities; and (4) to modify reporting obligations: see summary of the government’s arguments in Flores v. Johnson, Case No. CV 85-4544 DMG (AGRx), Order re: Plaintiffs’ Motion to Enforce Settlement of Class Action and Defendants’ Motion to Amend Settlement Agreement, 24 July 2015.
21. The Obama administration also sought to justify its proposed amendments by arguing that the law had changed substantially since the Flores Settlement was approved. However, these arguments were rejected by both the District Court for the Central District of California and the Ninth Circuit on appeal: see Flores v. Johnson, Case No. CV 85-4544 DMG (AGRx), Order re: Plaintiffs’ Motion to Enforce Settlement of Class Action and Defendants’ Motion to Amend Settlement Agreement, 24 July 2015; Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
22. Flores v. Johnson, Case No. CV 85-4544 DMG (AGRx), Order re: Plaintiffs’ Motion to Enforce Settlement of Class Action and Defendants’ Motion to Amend Settlement Agreement, 24 July 2015.
23. Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
24. Flores v. Sessions, Case No. CV 85-4544-DMG, Defendants’ Memorandum of Points and Authorities in Support of Ex Parte Application for Relief from the Flores Settlement Agreement, June 21, 2018.
25. National Immigrant Justice Center, The Real Alternatives to Detention, Policy Brief, June 18, 2017.