Current Administration Proposes Regulations To Flores Settlement Agreement

The current administration has released draft regulations to terminate the child welfare protections in the Flores Settlement Agreement.; a court decision passed in 1997 and modified in 2015. Under the Flores Settlement Agreement, immigrant minors can’t be held in jail-like settings and there are sharp limits on how long the government can detain children.


  • limits the government’s ability to indefinitely incarcerate immigrant children
  • requires licensing by state child protection authorities of facilities that hold them
  • The government is also required to release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
  • If a suitable placement is not immediately available, the government is obligated to place children in the “least restrictive” setting appropriate to their age and any special needs
  • Holds the government responsible to implement standards relating to the care and treatment of children in immigration detention


The Justice Department had asked the federal court for permission “to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”


These proposed regulations, published in the Federal Register Sept. 7TH, are an attempt to strip legal protections from families and children seeking refuge in the United States. This move comes just months after the administration attempted to discourage illegal immigration by separating migrant families at the border, but then backed down because of the resulting uproar. As of last week, nearly 500 children were still in government-run shelters without their parents.


Bypassing the Flores Settlement Agreement is a fundamental change in the way our government is required to treat immigrant children. The agreement was the conclusion of years of litigation, including an appeal to the United States Supreme Court. The proposed rules would set up a self-licensing scheme for the federal government where the current administration could certify its own detention facilities and allow for the indefinite incarceration of children with their parents in facilities that fail to meet the current minimum standards for keeping children safe. The proposed regulations would also change current practice, as defined by the Flores agreement and subsequent court rulings, to allow indefinite detention of children in facilities that have not been licensed by the states for child care. This includes holding them in private prisons that operate under the federal government’s standards.

The administration has already failed to protect children in federal detention even with Flores protections in place. Children regularly suffer cruel and abusive treatment in federal custody, including in family detention facilities, where they have been starved, taunted, physically and sexually assaulted and forced to strip naked.


  1. In July, a federal judge ordered the Trump Administration to remove children from a detention center that was using psychotropic drugs as a “chemical straitjacket” — just one example of the torture children experience in detention.
  2. At the Karnes family detention center in Texas, which incarcerates recently reunited families, authorities intentionally recreated trauma for children by tearing them away from their parents again to punish parents for protesting inhumane treatment.
  3. Toddler Marie Juarez died last month after inhumane and negligent treatment in an ICE detention center, where she was detained with her mother.


The Department of Homeland Security’s own advisory committee, which was formed to advise ICE and DHS on how to improve family detention, recommended against the use of family detention and the detention of children, stating “detention is generally neither appropriate nor necessary for families…detention or the separation of families for purposes of immigration enforcement or management are never in the best interest of children.”

“This is an administration that has not complied with the settlement agreement as it is,” Michelle Brane, the director of Migrant Rights and Justice at the Women’s Refugee Commission, told NPR. “So to have them now say we don’t need any more court oversight and we will oversee ourselves is frankly appalling,” said Brane.

“The Trump administration is seeking to dismantle established safeguards and protections for children and to lock them up indefinitely in unlicensed and inhumane facilities. What the administration is calling ‘legal loopholes’ are actually basic standards for protecting children — standards they are trying to scrap to pursue an agenda of family incarceration that the government’s own doctors have warned is harmful and dangerous for children.”

Human Rights First’s Eleanor Acer noted: “Once again the Trump Administration is targeting Central American families seeking refugee protection in the United States. These proposed regulations are yet another shameless attempt to paint the indefinite incarceration of families—in facilities not even licensed by state child protection authorities—as somehow necessary to keep families together. But this is a false choice that purposefully evades real solutions. Locking up families seeking refugee protection in immigration jails for months or longer is not a solution, it is just another humanitarian and political fiasco,”

She continued: “The same administration that forcibly separated children from their parents and knowingly inflicted trauma on them cannot be allowed to set the standard of care for immigrant children.  Instead of allowing the Trump administration to lock children up, Congress must subpoena and investigate the administration officials responsible for policies that subject children to harm and hold the perpetrators accountable for human rights abuses.”

“These proposed regulations are an abomination,” said Jeanne Atkinson, executive director of CLINIC. “Detaining children is inhumane and a violation of all that we hold dear as a nation that has long promised to protect the most vulnerable in society.”


Detention is wholly unnecessary to ensure that refugee families attend their court hearings. On the contrary, families and children with legal counsel overwhelmingly appear in immigration court, with 97 percent of represented mothers whose cases were initiated in fiscal year 2014 complying with immigration court hearing obligations. Similarly, 98 percent of children whose cases were initiated in 2014 and who were represented by legal counsel were in full compliance with their court appearance obligations as of December 2017.


Alternative to detention programs also lead to extremely high appearance rates. For example, community-based case management programs piloted by Lutheran Immigrant and Refugee Services and U.S. Conference of Catholic Bishops’ Migration and Refugee Services have shown high compliance rates of 96 to 97 percent. Immigration and Customs Enforcement’s Family Case Management Program, which provided case worker support to families, led to 99 percent compliance with court appearances and ICE appointments. The Trump Administration discontinued the program despite these high success rates.

“Mass incarceration of vulnerable families is also a massive waste of government resources. Instead of jailing families in costly detention facilities, their cases can be overseen through cost-effective and proven case management systems. But the ICE family case management system was mysteriously canceled last year,” added Acer.

Human Rights First notes that detention of children—even for short periods of time—leads to long-lasting negative mental and physical health outcomes. The American Academy of Pediatrics has warned that even a few days in immigration detention facilities is harmful to the health of children. Human Rights First documented in a series of reports the inadequate medical care of children in detention.

Secretary Nielsen’s claims that Flores legal standards limiting the length of detention are the reason families are coming to the United States are simply specious and ignore the reality on the ground. The U.N. Refugee Agency has documented that families and children fleeing violence in Guatemala, Honduras, and El Salvador have urgent protection needs, reporting a significant increase in numbers fleeing to neighboring countries. If the United States continues using harsh policies, other nations that host many more refugees may follow suit, triggering additional displacement.

“There are far less costly and much more humane alternatives to detaining children and families,” Atkinson said. “We are better than this.”

Indeed. We Are Better Than This.


None of these regulations will take effect until a final rule is published.

Public comments are now open on the DHS and HHS’s proposed regulations. HRI and other national community partners will provide a detailed comment on the legal and moral ramifications of these proposed changes. If you are a part of an organization that would like to present a comment as well, run it by your leadership for permission and watch this space. We will provide guidelines, resources, model language and procedural information on how to become a part of this dialogue.

ABOUT THIS ARTICLE: This article was researched and put together through various sources, including CLINIC, a publication of Catholic Charities and NPR, among many.

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