Immigration and Citizenship

Flores v. Barr

In Flores v. Barr, the United States Court of Appeals for the Ninth Circuit is considering whether new Trump Administration regulations are inconsistent with the Flores Agreement, a settlement agreement governing “the detention, release, and treatment of minors” in federal custody.

Case Summary

In 1997, after over a decade of protracted litigation to address the mistreatment of immigrant children held in detention by the Immigration and Naturalization Service (INS), the federal government entered into a settlement agreement that requires the expeditious release of migrant children from government custody and ensures critical state oversight of federal immigration detention facilities.  This agreement (the Flores Agreement) stated that it would terminate upon the publication of agency regulations implementing the terms of the Agreement.  In August 2019, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued regulations that purport to satisfy those requirements and terminate the Agreement.  A class of minors, however, challenged the Regulations in federal district court, arguing that the Regulations do not implement the Flores Agreement and instead circumvent and undermine its key provisions.  The district court agreed and enjoined enforcement of the Regulations, concluding that they “not only do not implement the Flores Agreement, they intentionally subvert it.”  The Department of Justice (DOJ) appealed to the Ninth Circuit, where CAC filed an amici curiae brief on behalf of 132 members of Congress urging the court to affirm the district court’s judgment.

Our brief makes two main points.  First, we argue that the challenged Regulations are inconsistent with the plain terms and purpose of the Flores Agreement, which remains a binding contract.  In particular, the Regulations effectively authorize the indefinite detention of migrant children, despite the Agreement’s core mandates that the government “shall expeditiously process” a minor upon apprehension and “shall release a minor from its custody without unnecessary delay.”  The Regulations also substantially alter the licensing requirements for programs that detain unaccompanied children.  Although the Agreement states that children in custody must be placed in a program licensed by the relevant state to care for children, the Regulations eliminate this state oversight and instead allow DHS to indefinitely detain children in its own facilities and to handpick the entities that inspect those facilities for compliance with INS standards.  In addition, the Regulations do not provide certain other legal protections for minors that the Agreement requires.

Second, we argue that although DOJ suggests that the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008 necessitate these deviations from the Flores Agreement, the Ninth Circuit has already held that those laws do not supplant the Flores Agreement.  To the contrary, Congress passed those statutes to complement and strengthen the Agreement’s protections, and thus those laws do not excuse the Regulations’ inconsistencies with the Agreement.

Case Timeline

  • January 28, 2020

    CAC files an amici curiae brief

    Ninth Cir. Amici. Curiae Br.
  • March 17, 2020

    The Ninth Circuit has vacated oral arguments originally scheduled for April 23 due to CV-19

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