{"slug":"flores-replacement-rule-family-detention-2019","title":"2019 Flores Replacement Rule: An Attempt to Authorise Prolonged Detention of Migrant Children With Their Families","date":"2019-08-23","lastUpdated":"2026-10-04","description":"On August 23, 2019, DHS and HHS published a final rule meant to replace the 1997 Flores Settlement Agreement and terminate it. Its central feature, in the government's own words, was an alternative to state licensing so that ICE 'may use appropriate facilities to detain family units together during their immigration proceedings.' Nineteen states and the District of Columbia sued, saying the rule would allow children to be held indefinitely. U.S. District Judge Dolly Gee enjoined the rule before it took effect, and in December 2020 the Ninth Circuit affirmed the injunction against the family-detention provisions, finding that they 'dramatically increase the likelihood that accompanied minors will remain in government detention indefinitely.'","summary":"The first Trump administration wrote a regulation to end the court settlement that limits how long migrant children can be detained, so that families could be held together in ICE-licensed facilities for the length of their cases. Federal courts blocked the family-detention provisions before they took effect, holding that they contradicted the settlement's core presumption in favour of release.","category":"deportation","severity":"major","ongoing":false,"sources":[{"url":"https://www.govinfo.gov/content/pkg/FR-2019-08-23/pdf/2019-17927.pdf","title":"Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children (final rule), 84 Fed. Reg. 44392","publisher":"Federal Register / U.S. Government Publishing Office"},{"url":"https://storage.courtlistener.com/pdf/2020/12/29/jenny_flores_v._jeffrey_rosen.pdf","title":"Flores v. Rosen, No. 19-56326 (9th Cir. Dec. 29, 2020)","publisher":"U.S. Court of Appeals for the Ninth Circuit (via CourtListener)"},{"url":"https://storage.courtlistener.com/recap/gov.uscourts.cacd.45170/gov.uscourts.cacd.45170.688.0_1.pdf","title":"Flores v. Barr, No. CV 85-4544-DMG, Order re Plaintiffs' Motion to Enforce Settlement and Defendants' Motion to Terminate (C.D. Cal. Sept. 27, 2019), Doc. 688","publisher":"U.S. District Court for the Central District of California (via CourtListener RECAP)"},{"url":"https://www.npr.org/2019/08/26/754518950/19-states-and-dc-sue-administration-over-plan-to-detain-migrant-children-indefin","title":"19 States And D.C. File Lawsuit To Stop Indefinite Detention Of Migrant Children","publisher":"NPR"},{"url":"https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en","title":"Convention on the Rights of the Child: status (United States signed 16 February 1995, not ratified)","publisher":"United Nations Treaty Collection"},{"url":"https://en.wikipedia.org/wiki/Reno_v._Flores","title":"Reno v. Flores","publisher":"Wikipedia"}],"draft":false,"status":"published","tags":["Flores settlement","family detention","child detention","immigration detention","DHS","HHS","Judge Dolly Gee","Ninth Circuit"],"relatedEntries":["family-separation-zero-tolerance","family-separations-child-detention","dilley-family-detention-flores-monitor-2026"],"timeline":[{"date":"2019-08-23","title":"Final rule published","summary":"DHS (ICE and CBP) and HHS (Office of Refugee Resettlement) publish the final rule 'Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children', effective October 22, 2019. It is intended to terminate the Flores Settlement Agreement and to let ICE license its own family residential centers."},{"date":"2019-08-26","title":"Nineteen states and D.C. sue","summary":"California and Massachusetts lead 19 states and the District of Columbia in a lawsuit. California Attorney General Xavier Becerra says the rule 'callously puts at risk the safety and well-being of children' (NPR)."},{"date":"2019-09-27","title":"Judge Gee enjoins the rule","summary":"U.S. District Judge Dolly Gee, who supervises the Flores settlement, blocks the regulations from taking effect and denies the government's motion to terminate the agreement."},{"date":"2020-12-29","title":"Ninth Circuit affirms the family-detention injunction","summary":"In Flores v. Rosen, the Ninth Circuit affirms in part and reverses in part. Most HHS provisions on unaccompanied children may take effect. The DHS provisions on accompanied children, including ICE self-licensing of family detention, stay enjoined, and the settlement stays in force."}],"location":{"name":"United States (nationwide immigration detention)","lat":38.9072,"lng":-77.0369},"custom":{"era":"first-term","posture":"judicial-finding","internationalLaw":[{"statute":"International Covenant on Civil and Political Rights","article":"Article 9","provision":"Prohibition of arbitrary detention (the United States is a party)"},{"statute":"International Covenant on Civil and Political Rights","article":"Article 24","provision":"Every child's right to the measures of protection required by his or her status as a minor"},{"statute":"Convention on the Rights of the Child","article":"Article 37(b)","provision":"Detention of a child only as a measure of last resort and for the shortest appropriate period. The United States has signed but not ratified the Convention, so it is cited as a standard, not a binding obligation."}],"iccRelevance":false,"victims":"Children apprehended with their parents, whom the rule would have allowed to be detained in ICE-licensed family facilities for the length of their immigration proceedings. Because the provisions were enjoined before taking effect, no child was detained under them.","perpetrators":"Department of Homeland Security (ICE, CBP) and Department of Health and Human Services, which issued the rule; President Donald Trump's administration, which sought to end the Flores Settlement Agreement","structuredPerpetrators":[{"name":"Department of Homeland Security","role":"Co-issuer of the final rule; author of the family-detention provisions","institution":"Executive branch"},{"name":"Department of Health and Human Services","role":"Co-issuer of the final rule","institution":"Executive branch"}],"keyPoints":["The final rule was published in the Federal Register on August 23, 2019, with an effective date of October 22, 2019. The Flores Settlement Agreement provides that it terminates 45 days after publication of final regulations implementing it.","The rule's own summary says that 'most prominently' it creates an alternative to the state-licensing requirement 'so that ICE may use appropriate facilities to detain family units together during their immigration proceedings.'","NPR described the Flores settlement as allowing migrant children to be detained only for about 20 days. Nineteen states and the District of Columbia sued on August 26, 2019, saying the rule would allow children detained with their families to be held indefinitely.","Judge Dolly Gee blocked the rule on September 27, 2019. Of the DHS release provision, under which minors could be held in family residential centers indefinitely unless there was a medical emergency or law enforcement necessity, her order found that it 'is inconsistent with one of the primary goals of the Flores Agreement, which is to instate a general policy favoring release.' She held that the government 'cannot impose their will by promulgating regulations that abrogate the consent decree's most basic tenets.'","On December 29, 2020, the Ninth Circuit (Fletcher, Berzon, M. Smith) let most of the HHS provisions take effect but affirmed the injunction against the DHS provisions on accompanied children. It found they limit release and allow family detention in facilities 'licensed not by states but by Immigration and Customs Enforcement itself', which 'dramatically increase the likelihood that accompanied minors will remain in government detention indefinitely.'","The court also rejected the argument that the executive branch could end the settlement by issuing inconsistent rules, rejecting 'the notion that the executive branch of the government can unilaterally create the change in law that it then offers as the reason it should be excused from compliance with a consent decree.'"],"legalBasis":"Flores Settlement Agreement (1997, as enforced by the U.S. District Court for the Central District of California); Flores v. Rosen, No. 19-56326 (9th Cir. Dec. 29, 2020); ICCPR Articles 9 and 24","postureNote":"Adjudicated. The district court enjoined the regulations before their October 22, 2019 effective date, and the Ninth Circuit affirmed the injunction against the family-detention provisions on December 29, 2020. No family was held under the rule. The Flores Settlement Agreement remained in force.","relatedIncidents":["family-separation-zero-tolerance","family-separations-child-detention","dilley-family-detention-flores-monitor-2026"]}}