R eports of alien minors being separated from their parents at the U.S. border—either when they have presented themselves at a port of entry to claim asylum or when they have been apprehended by authorities after unlawfully entering between ports of entry —have raised questions about the authority of the Department of Homeland Security (DHS) to detain families together pending removal proceedings. The Immigration and Nationality Act (INA) does not provide a specific framework for the detention of alien families during the removal process. Much of the governing law stems from a binding, 20-year-old settlement agreement ( Flores Settlement) between the federal government and parties challenging the detention of alien minors, which the U.S. District Court for the Central District of California entered in a case now called Flores v. Sessions . The Flores Settlement establishes a policy favoring the release of alien minors, including alien minors accompanied by an alien parent, from immigration detention and requires that those alien minors who are not released from government custody be transferred within a brief period to non-secure, state-licensed facilities. According to DHS, few if any such state-licensed facilities capable of holding minors and adults together exist. The executive order also directed Attorney General Sessions to ask the district court overseeing the Flores Settlement to modify the agreement to allow the government to detain alien families together throughout the duration of the family's immigration proceedings as well as the pendency of any criminal proceedings for unlawful entry into the United States. However, on September 7, 2018, DHS and the Department of Health and Human Services (HHS), the primary agency responsible for the care and custody of unaccompanied alien minors, published a notice of proposed rulemaking, which, once finalized, w ould allow DHS to detain families together until immigration proceedings were completed. The proposed regulations would create an alternative federal licensing scheme for family residential centers that purports to mimic the standards for the detention of minors set forth in the Flores Settlement, which mandates the use of state-licensed facilities only. In particular, the report addresses (1) the background of the Flores litigation, (2) how the Flores Settlement restricts DHS's power to keep families in civil immigration detention, (3) the relationship between the Ms. L. litigation and the Flores Settlement, (4) the executive branch's policy options for detaining or releasing family units apprehended at or near the U.S. border under the Flores Settlement, (5) the September 7, 2018, notice of proposed rulemaking purporting to implement the terms of the Flores Settlement, and (6) the extent to which either the executive branch or Congress can override or modify the terms of the Flores Settlement. Aliens who demonstrate such a fear are referred to standard removal proceedings in immigration court for further consideration of their claims for asylum or other relief. These modifications would allow DHS to detain accompanied alien minors with their families in ICE family detention centers for more than brief periods without violating the Flores Settlement. The government has filed an appeal to the Ninth Circuit. More generally, it might be argued that the proposed regulations replace Flores 's general policy favoring release of minors with a policy that favors maintaining family unity, even if that requires detaining minors for longer periods in a family residential center.
Reports of alien minors being separated from their parents at the U.S. border have raised questions about the Department of Homeland Security's (DHS's) authority to detain alien families together pending the aliens' removal proceedings, which may include consideration of claims for asylum and other forms of relief from removal.
The Immigration and Nationality Act (INA) authorizes—and in some case requires—DHS to detain aliens pending removal proceedings. However, neither the INA nor other federal laws specifically address when or whether alien family members must be detained together. DHS's options regarding the detention or release of alien families are significantly restricted by a binding settlement agreement from a case in the U.S. District Court for the Central District of California now called Flores v. Sessions. The "Flores Settlement" establishes a policy favoring the release of alien minors, including accompanied alien minors, and requires that those alien minors who are not released from government custody be transferred within a brief period to non-secure, state-licensed facilities. DHS indicates that few such facilities exist that can house adults and children together. Accordingly, under the Flores Settlement and current circumstances, DHS asserts that it generally cannot detain alien children and their parents together for more than brief periods.
Following an executive order President Trump issued that addressed alien family separation, the Department of Justice filed a motion to modify the Flores Settlement to allow for the detention of alien families in unlicensed facilities for longer periods. The district court overseeing the settlement rejected that motion, much as it has rejected similar motions to modify the settlement filed by the government in recent years. (The U.S. Court of Appeals for the Ninth Circuit has affirmed the earlier rulings but has not yet reviewed the most recent ruling.) In its most recent motion, the government has argued, among other things, that a preliminary injunction entered in a separate litigation, Ms. L v. ICE, which generally requires the government to reunite separated alien families and refrain from separating families going forward, supports a modification of the Flores Settlement to allow indefinite detention of alien minors alongside their parents.
On a separate track, DHS and the Department of Health and Human Services (HHS) have announced that they intend to seek termination of the Flores Settlement through the promulgation of new regulations that, according to the agencies, would adopt the substantive terms of the agreement with certain modifications. Significantly, the proposed regulations would allow DHS to detain families together until immigration proceedings were completed by creating an alternative federal licensing scheme for family residential centers. That federal scheme would impose facility standards that purport to mimic the standards set forth in the Flores Settlement, which calls for the exclusive use of state-licensed facilities for the detention of minors. A legal dispute seems likely to arise over whether the proposed regulations adequately implement the Flores Settlement, including whether the regulations are consistent with the agreement's general policy favoring the release of minors from immigration custody.
Congress, for its part, could largely override the Flores Settlement legislatively, although constitutional considerations relating to the rights of aliens in immigration custody may inform the permissible scope and effect of such legislation.