Detaining Families: The Battle to Enforce the Flores Agreement

By Viktoria Safarian (JD ‘17)

Blog Post – Harvard Immigration and Refugee Clinic – Fall 2015

On July 24, 2015 Judge Dolly Gee, Federal District Court Judge for the Central District of California, ruled that the Department of Homeland Security violated the 1997 Flores Settlement Agreement (“Agreement”) by detaining minors and their mothers in family detention centers.  The Agreement creates “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.”[1] According to the plain language of the Agreement, it has been interpreted to apply to all minors, not just those unaccompanied by adults.[2]

The Agreement originated in a suit brought on behalf of Jenny Lisette Flores, a 15-year old girl who came to the United States in 1985 from El Salvador. Jenny Flores “was handcuffed, strip searched” and placed in a detention center, where she had to share living quarters with adults of both sexes, was not provided with recreational or educational opportunities necessary for children. Furthermore, the INS had a policy prohibiting minors to be released to “third-party adults” so Jenny could not go home with her aunt. Litigation on behalf of Jenny Flores and a certified class of “all minors who are detained in the legal custody of the INS” lasted more than ten years, making its way up to the Ninth Circuit and the Supreme Court of the United States, and resulting in an Agreement between the Immigration and Naturalization Service (INS) and the class of minors in INS custody.[3]

In 2014, responding to a “surge” of Central American immigrants, ICE adopted “a blanket policy to detain all female-headed families, including children, in secure, unlicensed facilities for the duration of the proceedings that determine whether they are entitled to remain in the United States.”[4] People detained in this way are unqualified to be released on bond, recognizance, supervision, or parole.[5] To detain families, DHS opened two detention centers in Texas – in Dilley and Karnes City, in addition to a family detention center already in existence in Berks County, Pennsylvania. As of June 30, 2015, about 2,600 women and children were detained in these three centers.[6]

Judge Dolly Gee of the Central District of California held that by detaining families in family detention centers, subject to a “no release” policy, ICE violated the 1997 Flores Settlement Agreement. In relevant part, Paragraph 14 of the Agreement requires US immigration officials “(1) to ‘release a minor from its custody without unnecessary delay’ to a parent, a legal guardian, or other qualified adult custodian, except where the detention of the minor is required to ‘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 other’; and (2) ‘[u]pon taking a minor into custody, . . . [to] make and record prompt and continuous efforts on its part toward family reunification and the release of the minor . . . . ‘”[7] Judge Gee held that the “no release” policy was a material breach of the Agreement and that ICE “must release the accompanying parent as long as doing so would not create a flight risk or safety risk” in order to meet the above cited “preference for release provision” the Agreement.[8]

Furthermore, Judge Gee held that ICE policy of detaining children in secure, non-licensed facilities was a second material breach of the Agreement. Paragraph 12 of the Agreement states that “in any case in which the INS does not release a minor . . . such minor shall be placed temporarily in a licensed program . . . .” A “licensed program” is defined as a “program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children . . . .” The Agreement further requires that ‘[a]ll homes and facilities operated by licensed programs . . . shall be non-secure as required under state law . . . .” Family detention facilities were found by the court to be in violation of the Agreement because they were (1) secure, meaning that detainees were held against their will and unable to leave, and (2) did not meet standards of providing adequate provisions for nutrition, hygiene, education, medical care, or recreation necessary for the particularly vulnerable children detained in these facilities.

Judge Gee ordered the DHS to comply with the Agreement by (1) releasing all minors who do not pose a risk of flight or safety, (2) releasing accompanying parents of minors who do not pose a risk of flight or safety, and (3) taking steps to ensure that detention facilities are in compliance with paragraph 12 of the Agreement. The deadline to comply with the Agreement and the court’s Order was set for October 23, 2015.

It remains to be seen whether Judge Gee’s Order will result in the release of children and accompanying parents. The DHS has appealed Judge Gee’s ruling but has stated that it is “taking steps to ensure compliance” with Judge Gee’s order in the meantime.[9] Meanwhile, the Texas Department of Family Protective Services issued as emergency fast-track process to license the Karnes County Residential Center and the South Texas Family Residential Center.  In response, Grassroots Leadership, a Texas anti-private prison group filed a lawsuit to stop this licensing process. [10] Immigrant-rights groups are pushing to end family detention, while DHS warns that lax policies of not detaining children created the “motive” for the “surge” of Central American and would lead to even greater numbers of families crossing the border.[11]  As the political battle rages on, women and children continue to be detained in unhygienic, cramped, and unsafe conditions.

[1] Order re Plaintiffs’ Motion to Enforce Settlement of Class Action and Defendants’ Motion to Amend Settlement at 5, Flores v. Johnson, CV 85-4544 DMG (AGRx) (C.D. Cal. 2015).

[2] Id. at 5-6.

[3] Id. (In 2003, the INS was abolished and its responsibilities “related to the detention, transportation, and removal of minors” were transferred to the Department of Homeland Security (DHS), including U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). The court interpreted the Agreement to apply in full force to the DHS, as it did to the INS.)

[4] Supra note 1, at 2.

[5] Supra note 1, at 2.

[6] Julia Preston, Judge Orders Release of Immigrant Children Detained by U.S., New York Times, http://www.nytimes.com/2015/07/26/us/detained-immigrant-children-judge-dolly-gee-ruling.html?_r=1 (last visited Nov. 8, 2015).

[7] Supra note 1, at 18.

[8] Supra note 1, at 9.

[9] Caroline May, DHS Releasing ‘Family’ Illegal Immigrants, Breitbart, http://www.breitbart.com/big-government/2015/10/27/dhs-releasing-family-illegal-immigrants/ (last accessed Nov. 8, 2015).

[10] Elise Foley, Pennsylvania Warns Family Immigrant Detention Center: Change Policies of You’re your License, Huffington Post, http://www.huffingtonpost.com/entry/family-immigrant-detention-berks_562a8fe6e4b0443bb563fcbd (last accessed Nov. 8, 2015).

[11] Supra note 1, at 10.

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