The NCSL Blog

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By Abbie Gruwell

In 1997, the U.S. government reached an agreement known as the Flores Settlement Agreement, which arose out of Flores v. Reno, a 1987 California case.

A child who was separated from his mother at the border arrived for a court hearing on his immigration status in Houston i n August.Credit Marian Carrasquero for The New York TimesThe class-action lawsuit ended in a stipulated settlement agreement outlining standards for the detention and release of unaccompanied minors taken into the custody of the Immigration and Naturalization Service (INS), now handled by the Department of Homeland Security and the Department of Health and Human Services.

The Flores settlement requires that minors in INS custody must be housed in facilities that meet certain standards, including state standards for housing and care of dependent children. The settlement also establishes state licensing authority over detention facilities and defines a “licensed program” as any program, agency or organization that is licensed by an appropriate state agency to provide residential, group or foster care services for dependent children.

Under the agreement, INS is required to place minors in the least restrictive setting appropriate to the child’s age and special needs, provide notice of rights, safe and sanitary facilities, toilets and sinks, drinking water and food, medical assistance, temperature control, supervision, and contact with family members, among other requirements.

The Flores settlement also mandates that INS operates with a policy favoring release to a parent, legal guardian, adult relative or licensed program. Upon taking a minor into custody, INS or the licensed program must make and record a prompt and continuous effort toward family reunification and release, as well as maintain up-to-date records of minors held for longer than 72 hours, including biographical information and hearing dates.

Detained children may seek judicial review with any U.S. District Court with jurisdiction over the venue to challenge their placement determination or noncompliance of the facility with standards listed in the settlement.

The Flores settlement also laid out minimum standards for licensed programs, specifying that these facilities must comply with all applicable state child welfare laws and regulations, as well as all state and local building, fire, health and safety codes.

The program must also provide physical care, food, clothing, grooming items, routine medical and dental care, immunizations, medication, an individualized needs assessment for each child, an educational assessment and plan, a statement of religious preferences, an assessment identifying immediate family members in the United States, education services and communication skills, English language training, recreation and leisure time, and access to social work staff and counseling sessions. Visitation and contact with family members regardless of immigration status and family reunification services are also required.

Notably, in times of emergency or an influx of immigrants, the government has some leeway in the amount of time a child may be detained. The expanded definition of influx as 130 or more minors could be applied to large arrivals of unaccompanied minors and may impact facility standards and oversight. Because many of the current detention facilities do not comply with the standards in the Flores settlement, the government must release children within 20 days, sometimes to a sponsor in the community or an alternative-to-detention program.

A proposed rule was released on Sept. 7 from the Departments of Homeland Security and Health and Human Services detailing changes to the current operations under the Flores settlement.

The rule would eliminate Flores but adopt and modify some of its provisions, including removal of licensing authority over detention facilities from the states to the federal government. The rule also proposes to extend the period of time children may be detained. Comments on the proposed rule close Nov. 6.

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Abbie Gruwell is the policy director for human services in NCSL's State-Federal Affairs team in Washington, D.C.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.