2019 Flores Replacement Rule: An Attempt to Authorise Prolonged Detention of Migrant Children With Their Families

What happened

The Flores Settlement Agreement of 1997 governs the custody of children in federal immigration detention. It sets a general policy in favour of release and requires that children who are not released be placed in licensed, non-secure facilities. By its own terms it ends after the government publishes final regulations implementing it. In 2016 the Ninth Circuit held that it covers children who arrive with their parents as well as those who arrive alone.

On August 23, 2019, DHS and HHS published those regulations. The rule's summary says that "most prominently, in response to great difficulty working under the state-licensing requirement for family residential centers, the final rule creates an alternative to the existing licensed program requirement for ICE family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law." It was to take effect on October 22, 2019.

NPR described the settlement as allowing children to be detained only for about 20 days, and that the administration had announced it would allow children held with their families to be detained indefinitely. Nineteen states and the District of Columbia sued on August 26. The states argued that the rule would expand family detention centres not licensed by any state, with the government in effect licensing itself.

On September 27, 2019, Judge Dolly Gee blocked the rule and denied the government's motion to terminate the settlement. Addressing the DHS release provision, under which, as she put it, minors could be detained "indefinitely in FRCs unless there is a medical emergency or law enforcement necessity," her order found that the regulation "is inconsistent with one of the primary goals of the Flores Agreement, which is to instate a general policy favoring release and expeditiously place minors 'in the least restrictive setting appropriate to the minor's age and special needs.'" She concluded that the government could not "impose their will by promulgating regulations that abrogate the consent decree's most basic tenets. That violates the rule of law."

On December 29, 2020, the Ninth Circuit affirmed in part. Most of the HHS provisions on unaccompanied children could take effect, but the DHS provisions on accompanied children stayed blocked. The court summary records the panel's finding that those provisions "(1) … limit the circumstances in which accompanied minors may be released, and (2) … provide for the detention of families together in facilities licensed not by states but by Immigration and Customs Enforcement itself." It observed that the provisions "dramatically increase the likelihood that accompanied minors will remain in government detention indefinitely," and that "effecting this change was one of the principal features of the Final Rule."

Legal analysis

Rome Statute. No international crime is in play. Art. 7(1)(e) "imprisonment … in violation of fundamental rules of international law" would require detention carried out as part of a widespread or systematic attack on a civilian population. The rule never took effect, and nothing in the sources fetched suggests an attack in the Art. 7 sense. The crime type is none.

Domestic law (adjudicated). Two federal courts found that the family-detention provisions were inconsistent with a binding consent decree. The Ninth Circuit also rejected the government's theory that it could escape the settlement by issuing rules that contradict it. It rejected "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." This is a judicial finding that the rule exceeded what the government was permitted to do, but it is a finding about a settlement agreement, not a constitutional violation.

Human rights. ICCPR Article 9 prohibits arbitrary detention, and Article 24 gives children a right to special protection. Both bind the United States. The UN Convention on the Rights of the Child (Art. 37(b): detention of a child only as a last resort and for the shortest appropriate period) states the international standard, but the United States has not ratified it. A rule designed to keep children in detention for the length of their parents' proceedings runs against both standards. Because the rule was enjoined, however, no individual child was detained under it.

Strongest defence argument. The government's position was that the settlement itself anticipated replacement by regulation, and that it was choosing between three bad options: releasing families, separating children from detained parents, or detaining families together. On this view, family detention avoids the harm of separation. The Ninth Circuit answered this directly. Nothing in the agreement requires taking children from their parents against their will. The agreement provides for release to relatives or to someone the parent designates. And the government had not shown why detaining adults required detaining the children with them. The defence explains the policy choice, but it does not defeat the courts' finding that the rule departed from the decree.

Why this grade

Major. The rule was a deliberate attempt to escape a binding judicial settlement through regulation, and the courts held it unlawful. That is executive action exceeding legal constraints, the core of the major grade. It is not severe: the provisions were blocked before taking effect, so the sources do not show concrete harm to identifiable children from this rule. Family detention and child-detention harms that did occur are recorded in the related family-separation entries. No international crime is in play, so the entry carries no warCrimeClassification.