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AILA Doc. No. 14111359 | Dated June 22, 2022
The parties submitted a proposed stipulated settlement of the plaintiffs’ August 9, 2021, motion to enforce the settlement regarding emergency intake sites (EISs), agreeing on standards that the U.S. Office of Refugee Resettlement (ORR) must meet while operating emergency intake sites. If approved, the agreement will require that EISs provide suitable living accommodations, access to daily outdoor activity, private phone calls at least twice a week for at least 10 minutes in length, family reunification services, appropriate mental health interventions, educational services, legal services information, and structured leisure time activities, among other things. The agreement also generally prohibits the placement of particularly vulnerable children in EISs, absent extraordinary circumstances. Additionally, the agreement requires specific case management services, such as an initial assessment by a case manager within 24 hours of a minor’s admission to the facility and weekly meetings with case managers. (Flores, et al. v. Garland, et al., 6/22/22)
After two years of negotiations, the parties submitted a joint motion for preliminary approval of a settlement under which CBP—specifically, border patrol facilities in the Rio Grande Valley and El Paso Border Patrol Sectors—agreed to a wide range of protocols requiring that detained minors be held in safe and sanitary conditions. The settlement requires that detained minors not be separated from relatives; have access to showers, hygiene kits, age-appropriate meals, clothing, mattresses, and blankets; and have access to medical evaluations and prompt medical treatment when needed. The settlement also requires that the border patrol treat minors in custody with “dignity, respect and special concern for their particular vulnerability as minors,” and that it place each detained minor “in the least restrictive setting appropriate to the class member’s age and special needs.” In addition, the settlement requires that minors apprehended with an adult family member “shall remain with that family member” during their time in border patrol custody, except when operationally infeasible. The parties in the joint motion seek preliminary approval of the settlement from U.S. District Court Judge Dolly M. Gee. (Flores, et al. v. Garland, et al., 5/21/22)
The Biden administration will no longer “seek to terminate” the Flores agreement through the 2019 rules. The 2019 HHS rule has been omitted from the administration's fall unified agenda despite it being on the spring 2021 agenda. It is expected that the Biden administration will now work on its own rules to codify the Flores settlement, which was always intended to be replaced by regulations.
For more information, check out the CBS News article, Biden Administration Discards Trump-Era Plan to End Legal Agreement Protecting Migrant Children
The parties reached a settlement to resolve the plaintiffs’ Motion for Award of Attorneys’ Fees and Costs under the Equal Access to Justice Act (EAJA), in which the government agreed to pay $1,150,000 in settlement of the plaintiffs’ claims and any potential claims for attorneys’ fees, litigation costs, and related expenses pursuant to the motion. Under the settlement agreement, the government will use all good faith efforts to pay the settlement amount within 90 days of the court’s final approval of the agreement. The district court ordered the parties to submit a proposed schedule for final approval of the settlement agreement within 70 days. (Flores, et al. v. Garland, et al., 9/30/21)
The court affirmed the U.S. District Court for the Central District of California’s September 21, 2020, order requiring DHS to apply the 1997 Flores Settlement Agreement to minors detained in hotels for more than a few days pending their expulsion from the United States under the Center for Disease Control’s (CDC) Title 42 order. (Flores v. Garland, 6/30/21)
In an action involving new regulations adopted by HHS and DHS in 2019 that purported to implement the 1997 Flores Settlement Agreement, the court held that the provisions of the new regulations relating to unaccompanied minors were generally consistent with the Agreement, with two exceptions. The court also found that some of the regulations regarding initial detention and custody of both unaccompanied and accompanied minors were consistent with the Agreement. However, the court affirmed the district court’s order enjoining the remaining new regulations relating to accompanied minors, noting that they departed from the Agreement in several important ways. Finally, the court found that the district court correctly concluded that the Agreement was not terminated by the adoption of the regulations, and that the district court did not abuse its discretion in denying the government’s motion to terminate. (Flores v. Rosen, 12/29/20)
Denying the government’s motion for a stay, the court upheld the U.S. District Court for the Central District of California’s 9/21/20 order precluding DHS from placing minors detained pursuant to a public health order under Title 42 in hotels for more than three days in the process of expelling them from the United States, after the district court declared that the 1997 Flores Settlement Agreement applied to the minors. The court concluded that the government was unlikely to succeed on the merits of its appeal, and that the government had not established that it would be irreparably harmed if it were obliged to comply with the district court’s orders while the appeal is pending. (Flores v. Barr, et al., 10/4/20)
The U.S. District Court for the Central District of California ordered the government to stop placing minors detained by DHS pursuant to a public health order under Title 42, which suspends the introduction of certain persons into the United States due to the COVID-19 pandemic, in hotels, effective 9/28/20. The district court found that the 1997 Flores Settlement Agreement applied to the minors, and that detaining them in unlicensed hotels violated the agreement. The court further ordered that DHS may implement brief hotel stays for the minors of no longer than 72 hours “as necessary and in good faith” to alleviate bottlenecks in the intake processes at licensed facilities in the process of expelling them from the United States. (Flores, et al. v. Barr, et al., 9/21/20)
Due to COVID-19, a district court judge ordered that all children currently held at ICE Family Residential Centers (FRCs) for more than 20 days must be released by July 17, 2020, stating that FRCs are “on fire” and there is no more time for half measures. (Flores, et al. v. Barr, et al., 6/26/20)
In a report, U.S. District Court Judge Dolly M. Gee ordered that efforts must be undertaken “with all deliberate speed” and states that by:
By July 17, 2020, ICE shall transfer Class Members who have resided at the FRCs for more than 20 days to non-congregate settings through one of two means: (1) releasing minors to available suitable sponsors or other available COVID-free non-congregate settings with the consent of their adult guardians/parents; or (2) releasing the minors with their guardians/parents if ICE exercises its discretion to release the adults or another Court finds that the conditions at these facilities warrant the transfer of the adults to non-congregate settings. If it is deemed necessary, ICE may apply location monitoring devices to those who are released.
Additionally, the order states that ICE shall urgently enforce its existing COVID-19 protocols, particularly in the following areas:
U.S. District Court Judge Dolly M. Gee issued a permanent injunction, blocking the government from implementing new regulations that would expand its ability to detain migrant children with their parents for indefinite periods of time. The Justice Department had urged the judge to allow the Trump administration to withdraw from the Flores Settlement Agreement. (Flores v. Barr, 9/27/19)
"The blessing or the curse - depending on one's vantage point - of a binding contract is its certitude. The Flores Agreement is a binding contract and a consent decree. It is a final, binding judgment that was never appealed. It is a creature of the parties' own contractual agreements and is analyzed as a contract for purposes of enforcement. Defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy. The proper procedure for seeking relief from a consent decree is a Rule 60(b) motion by which a party must demonstrate that a change in law or facts renders compliance either illegal, impossible, or inequitable. Relief may also come from a change in law through Congressional action. Having failed to obtain such relief, Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree's most basic tenets. That violates the rule of law. And that this Court cannot permit.
For more information, see this Washington Post article, "Federal judge blocks Trump administration from detaining migrant children for indefinite periods."
The court dismissed the government's appeal of the district court's June 27, 2017, order, emphatically rejecting the government's argument that the order modified the Flores Settlement Agreement's requirement that minors be held in "safe and sanitary" conditions that comport with the "special concern for the particular vulnerability of minors" by requiring the government to provide specific hygiene items and adequate sleeping accommodations. Instead, the court found that the district court's explanation of its enforcement of various provisions of the Agreement regarding the conditions at Border Patrol stations concerned only requirements unarguably within the terms of the Agreement, and thus dismissed the appeal for lack of jurisdiction. (Flores, et al. v. Barr, et al., 8/15/19)
The court appointed Andrea Sheridan Ordin as the Special Master/Independent Monitor (“the Monitor”). The order notes that, “While the Monitor shall have broad discretion regarding how to exercise her authority, her responsibilities shall focus initially on monitoring compliance with the June 27, 2017 and July 30, 2018 Orders, recommending measures to cure any violations thereof, and mediating disputes relating to Defendants’ compliance or non-compliance with those Orders.”
Learn more about Andrea Sheridan Ordin.
DHS/HHS issued a notice of proposed rulemaking to amend regulations related to the apprehension, processing, care, custody, and release of undocumented juveniles and would terminate the Flores Settlement Agreement. Comments are due by 11/6/18.
AILA issued a press release, stating that these regulations are, "are intended to terminate the Flores Settlement Agreement, a decades-old court settlement put in place to ensure the safety and proper care of children in immigration detention."
The Immigration Justice Campaign provides a recording of its webinar on the administration’s proposed regulations that would dismantle the longstanding Flores Settlement and undermine critical legal protections for immigrant children against indefinite detention and mistreatment.
U.S. District Judge Dolly Gee found that conditions at the Shiloh Residential Treatment Center in Manvel, Texas violated the Flores settlement and ordered the Trump administration to transfer all undocumented immigrant minors out of the detention facility due to allegations of abuse and overmedication against the children.
Further, Judge Gee ordered the government to get parental consent or a court order before giving children psychotropic drugs, unless it is an emergency as defined in Texas Family Code. The judge also ordered the government to explain to the children in writing why they are being detained and ruled that the government cannot detain a minor only for "reported gang involvement."
For more information, see this NPR article: Federal Judge Orders Government To Seek Consent Before Medicating Migrant Children.
Judge Gee issued a motion stating that a Special Master/ Independent Monitor should be appointed.
"There continue to be persistent problems," U.S. District Judge Dolly Gee said in a status hearing, adding, "There seems to be disconnect between what both sides see at these facilities."
For more information, see this CNN article: Federal judge to appoint independent monitor for detained migrant children.
NPR: The History of the Flores Settlement and Its Effects on Immigration
President Trump has ordered the Justice Department to file a request to modify a court agreement known as the Flores settlement to allow for immigrant families to be detained together at the border. The settlement has governed the detention of immigrant children since the mid-80s.
DOJ filed a request to modify the settlement agreement in Flores v. Sessions requesting the court grant limited emergency relief to exempt DHS from the Flores Settlement Agreement release provisions, among other things. (Flores v. Sessions, 6/21/18)
In the request, DOJ asked that the court to grant limited emergency relief that would:
The request notes that "the Government is not asking to be relieved from the substantive language of the Agreement on the conditions of detention in these facilities. The Government asks for immediate relief, along with a schedule to allow the parties to more fully address the issues raised by this request."
DOJ also released a statement regarding the filing of this request, including key excerpts from the filing and more.
The Women's Refugee Commission issued a backgrounder of the Flores settlement and family separation at the border.
In redacted versions of documents filed under seal in exhibits in support of motion to enforce the settlement, were statements that migrant children in federally contracted immigrant shelters were medicated without parental or judicial consent, and some were forcibly drugged more for control than for health issues. Migrant children said that shelter staff told them if they didn't take the medication, they wouldn't be released. Youths described being forced to take up to nine pills at once, including psychotropics such as Prozac. In some cases, they said they were restrained and forcibly medicated.
According to Justice Department attorneys, the Office of Refugee Resettlement, which oversees the shelters, has the authority to medicate children without parents' consent because the youth are in the agency's custody.
For more information, see this Los Angeles Times article, Lawsuit alleges improper medication of migrant children in federal shelters
The court affirmed the U.S. District Court for the Central District of California’s order granting the motion of a plaintiff class to enforce the 1997 Flores Settlement Agreement, holding that the agreement had not been abrogated by Congress, and that detained immigrant children continue to be protected by it. The court held that two statutes enacted by Congress since the government agreed to the Flores Settlement—the Homeland Security Act and the Trafficking Victims Protection Reauthorization Act—did not terminate the bond hearing requirement of Paragraph 24A of the agreement for unaccompanied, noncitizen minors in removal proceedings. (Flores v. Sessions, 7/5/17)
In an order issued regarding the plaintiffs' motion to enforce and appoint a special monitor, Judge Gee concluded that children continue to be held longer than 20 days in secure, unlicensed facilities in defiance of the Flores settlement and the judge's previous orders, as well as the Ninth Circuit Court of Appeals ruling last year. The court determined that almost all Rio Grande Valley sector facilities in which children and adults were kept had unsafe and unsanitary conditions, with inadequate food, inadequate access to clean drinking water, inadequate hygiene, cold temperatures and inadequate sleeping conditions. Further the court concluded the government has failed to: make repeated efforts to release children, ensure that children are not kept in secure, non-licensed facilities (like the facility in Dilley, Texas), and release children within the court's 20-day limit. As such, the judge ordered the appointment of a Juvenile Coordinator within 30 days. For more information, read AILA's statement. (Flores v. Sessions, 6/27/17)
Finding that the Office of Refugee Resettlement of the Department of Health and Human Services were in breach of the Flores agreement by denying unaccompanied immigrant children the right to a bond hearing, U.S. District Judge Dolly Gee issued an order granting the plaintiffs’ motion to enforce Paragraph 24A of the Flores agreement, which states that a minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge in every case, unless the minor indicates on the Notice of Custody Determination form that he or she refuses such a hearing. (Flores v. Lynch, 1/20/17)
The plaintiffs filed a combined reply in support of their motion to enforce the Flores settlement and appoint a special monitor and in opposition to defendants' motion for an evidentiary hearing. AILA and the American Immigration Council filed an amicus brief with the U.S. District Court for the Central District of California in support of the plaintiffs' motion, arguing that the settlement does not allow the government to prevent the timely release of accompanied children through decisions concerning the parents. Amici also argued that the settlement must be interpreted strictly and faithfully, and that the court should compel or create mechanisms to monitor and enforce compliance with the settlement.
The Ninth Circuit held that the Flores settlement agreement applies both to minors who are accompanied and unaccompanied by their parents, and that the lower court correctly refused to amend the agreement to accommodate family detention. The court also found that the lower court erred in interpreting the agreement to provide an affirmative right to release for accompanying parents, but did not preclude such release and explicitly made no determination about whether DHS is making otherwise appropriate and individualized release determinations for parents. (Flores v. Lynch, 7/6/16)
May 15, 2016 p>
The plaintiffs filed a motion to enforce the Flores settlement agreement, asserting that the Obama administration continues to detain children in deplorable and unsanitary conditions in CBP facilities in violation of the settlement and the court's orders. The motion urges the court to order the government to promptly comply with the settlement's terms and to appoint a Special Monitor to oversee the government's compliance. p>
February 23, 2016 p>
Immigration rights organizations filed an amicus brief in support of the plaintiffs-appellees and in support of affirmation of the district court judgment in the Flores settlement agreement lawsuit, arguing against the government's position that Flores does not apply to children in family detention facilities. (AILA Doc. No. 16022411) p>
January 15, 2016 p>
The government filed a brief with the Ninth Circuit, asking the court to overturn Judge Dolly Gee's July 24, 2015, ruling, which found that the Obama administration's detention of immigrant families violated the 1997 Flores settlement agreement regulating the treatment and conditions of unaccompanied minors in federal immigration custody. The government argues that the district court erred in holding that the Flores agreement applies to accompanied noncitizen minors and their adult noncitizen parents. Alternatively, the government contends that the district court incorrectly denied the government's motion to amend the Flores agreement. (Flores v. Lynch, 1/15/16) p>
December 11, 2015 p>
The plaintiffs responded to the government's motion to expedite the briefing and hearing schedule for its appeal of Judge Dolly Gee's August 2015 order requiring DHS to comply with the Flores settlement agreement by October 23, 2015. In the response, the plaintiffs took no position on whether the court should expedite the government's appeal. However, the plaintiffs did take issue with many of the factual assertions set forth in the government's motion. p>
December 1, 2015 p>
The government filed a motion asking the Ninth Circuit to expedite the briefing, hearing, and consideration of its appeal, citing a "significant surge" of accompanied and unaccompanied migrant children over the last 90 days. p>
October 23, 2015
The court had ordered the government to bring its treatment of asylum-seeking families into compliance with the Flores settlement agreement by today, October 23. Because the government did not seek a stay, the court's order stands while the government's appeal to the Ninth Circuit moves forward, and as of today, children should be released "without unnecessary delay." (Check out this fact sheet for more information on the litigation and its impact on family detention.)
To date, DHS has not complied with Judge Gee's order. AILA and its CARA Family Detention Pro Bono Project partners have called on the government to fully comply with Judge Gee's ruling. The CARA Project has determined that, as of today, approximately 195 families that it represents have been detained in Texas for more than twenty days, and an approximate 507 represented families have been detained for more than five days. These numbers only include family units represented by the CARA Project; hence, the numbers of children and mothers held in violation of the court ruling is likely significantly higher.
The court filed its order denying the government's motion for reconsideration. Further, the court reiterated its conclusion that the Flores agreement encompasses both accompanied and unaccompanied minors, additionally finding that the government's argument on this point violated the local rule against repetitive arguments, characterizing them as "reheated and repackaged." p>
In sum, the court stated that children should be released from detention, as quickly as possible, preferably to a parent, even to a parent with whom they were apprehended. The court ordered the government to monitor compliance with the Agreement and this Order and to provide the plaintiffs with statistical information regarding compliance on a monthly basis. p>
August 14, 2015
The plaintiffs filed their response to the Order to Show Cause, stating “When this Court issued its Order it was fully apprised of the parties’ arguments and submissions. Defendants continue in breach to this day. They offer no rational reason why they cannot comply with the detention and release provisions of the Order starting immediately and within 90 days provide the Court with proposed standards--and procedures for monitoring compliance with such standards--for detaining class members in facilities that are safe and sanitary, consistent with concern for the particular vulnerability of minors, and consistent with Paragraph 12 of the Agreement.” (AILA Doc. No. 15082320)
August 6, 2015
The defendants filed a response to the court's order to show cause why the remedies set forth in the court's July 24, 2015, order should not be implemented. The response requests the court to: 1) reconsider its Order; and 2) if it will not reconsider its Order, consider and adopt the proposed order attached hereto.
Also filed on August 6, 2015:
July 28, 2015
A backgrounder answering basic questions about Judge Gee's July 24 ruling that the administration's family detention policies do not comply with the Flores Settlement Agreement (AILA Doc No. 15072804).
July 24, 2015
District Court Judge Gee found DHS in breach of Flores Agreement on Friday, July 24, 2015 (AILA Doc. No. 15072500). AILA and the American Immigration Council welcomed the ruling that should signal the end of the mass incarceration of children and mothers seeking asylum in the U.S. (AILA Doc No. 15072501). This Quicktake with AILA Director Crystal Williams further explains this ruling and its implications (AILA Doc No. 15072766).
May 22, 2015
Order filed extending the deadline for the parties in Flores v. Holder (formerly known as Flores v. Reno) to meet and confer, from May 24, 2015, to June 12, 2015. The parties must file a joint status report with the district court by June 19, 2015.
March 6, 2015
On March 6, 2015, Plaintiffs filed a motion in opposition to DHS's request to modify the Flores Settlement Agreement.
February 27, 2015
On February 27, 2015, DHS filed a protective Notice of Motion to Modify the Flores Settlement Agreement, Case No. 85-4544, January 28, 1997, under Federal Rules of Civil Procedure 60(b)(5) and (6). DHS also filed a response in opposition to the Plaintiffs' Motion to Enforce Settlement of Class Action.
On February 2, 2015, the plaintiffs' filed a Memorandum in Support of Motion to Enforce Settlement of Class Action.
The nationwide settlement in Flores v. Reno regulates the treatment and conditions of unaccompanied minors in federal immigration custody.
Cite as AILA Doc. No. 14111359.
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