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The Trump administration is taking aim at the Flores Settlement, a consent decree that was revisited by every White House administration since the first ruling under President Bill Clinton in 1997. The ruling, issued by then-district court California Judge Dolly Gee in Flores v. Reno, determined how long illegal immigrant children can be held in custody before they are released—no more than 20 days. She later said that the ruling was for all illegal immigrant minors, not just those traveling alone.
It was no accident that children have become essentially a "golden ticket" for adults to gain access into the United States after crossing illegally into the country. It is this that the Trump administration is seeking to remedy. The Biden administration released some 400,000 illegal immigrant minors into the US with little to no oversight. Over 300,000 of those appear to have been lost in the complex system of custody and court dates and a report said that Immigration and Customs Enforcement was not able to monitor all the minors.
In bringing the case to dissolve Flores, Attorney General Pam Bondi has said that the ruling incentivizes illegal immigration. Bondi, joined by both the Department of Homeland Security and the Department of Health and Human Services, called the consent decree "an unacceptable restriction."
The DOJ's filing reads that the Trump administration is moving "to terminate the FSA completely and with respect to all Defendants, and to dissolve the Court’s injunction of DHS’s regulations for apprehension, processing, care, and custody of alien minors…After 40 years of litigation and 28 years of judicial control over a critical element of U.S. immigration policy by one district court located more than 100 miles from any international border, it is time for this case to end."
"In light of the significant changes in circumstances since this Court entered the FSA 28 years ago, including the promulgation of regulations incorporating the goals of the FSA, and Supreme Court precedent that is inconsistent with continuing such a long-term decree, further continuation of the FSA is no longer equitable or in the public interest," the DOJ filing adds.
"This Court entered the FSA as a consent decree in 1997 and amended it in December 2001. The FSA has governed the care and custody of unaccompanied alien children (UACs) ever since, notwithstanding intervening legislation by the U.S. Congress and agency regulations. In 2015, this Court expanded the FSA to accompanied children... even though it is obvious from the FSA’s terms that the parties did not contemplate their inclusion. Thus, as to accompanied children, the national policy has long been set by a district court (and not the President or Congress), notwithstanding that the consent decree providing the basis for district-court supervision does not claim to regulate this class of aliens. That simply cannot be," the DOJ attests.
"During the 28 years that this Court has controlled federal policy regarding the custody of alien children who are in the United States without immigration status, enormous, cardinal changes have occurred: surges of aliens have entered the U.S. in between ports of entry across the southwest border, including large groups of aliens who voluntarily surrendered to Border Patrol—surrenders orchestrated by traffickers; the demographics of aliens arriving at the border have shifted to include significantly higher numbers from countries outside the Western Hemisphere and higher numbers of children; a global pandemic necessitated the government’s utilization of its expulsion authority to protect public health; and the subsequent lifting of the policy led to an upheaval in immigration policy for over two years," reads the DOJ filing.
"The Executive has not been able to react fully and meaningfully to these changes because the FSA has ossified federal immigration policy," it reads. "Successive administrations have tried unsuccessfully to free themselves from the strictures of the consent decree and this Court’s gloss on it. But detention of juvenile aliens continues to be—as it has been for more than a generation—dominated by the strictures of a 1997 agreement."
"The outdated Flores consent decree was implemented as a stopgap measure almost 30 years ago but in recent years has directly incentivized illegal immigration at our southern border. Congress and various federal agencies have already solved the problems that Flores was designed to fix, and this consent decree is now an unacceptable restriction on our America-first immigration agenda," Bondi said in a statement.
The Flores saga began in 1985 when a case was brought before California District Judge Kelleher on behalf of two unaccompanied minor illegal immigrant children who were detained in an adult facility. The eventual ruling determined that children needed to be placed in child-friendly facilities and could not be detained for more than 20 days before being released to a family member, sponsor, or appropriate home. The prior policy was that illegal immigrant minors could only be released to a parent or legal guardian. A consent decree was approved in which all parties agreed.
In the late 1980s and into the 1990s, the case, Flores v Reno, referring to the Clinton administration's attorney general Janet Reno, went back and forth through the courts, with different iterations of it landing in Ninth Circuit, the Supreme Court. The resulting 1997 settlement saw strict regulations for the detention of unaccompanied minor illegal immigrant children and that settlement has been overseen by the District Court for the Central District of California ever since.
In 2002, President George Bush abolished the Immigration and Naturalization Service, putting the responsibility for unaccompanied minor illegal immigrants under both his newly formed DHS and the HHS. His administration referred all those illegal immigrants to be referred for prosecution except those who were traveling with children. Laws were passed to codify portions of the settlement.
In 2015 under the Obama administration, Gee, appointed by Obama to the federal bench, reinterpreted the 1997 agreement from being specifically about unaccompanied minor illegal immigrants to be about any illegal immigrant child regardless of their accompanied status. That 2015 ruling states that any minor border crosser must be released "without unnecessary delay," not only could unaccompanied minor illegal immigrants not be held, but that those who were accompanied by adults should also be only briefly detained and that their grown-ups should be released along with them.
In her decision, Gee found that the Obama administration wasn't releasing illegal immigrant adults into the country fast enough in cases where they were traveling with children. The Obama policy was that, in order to comply with Flores, children were separated from their parents. This allowed the administration to release the children while detaining the grown-ups who were traveling with them.
Gee's decision was a drastic reinterpretation of the 1997 Flores agreement. Gee changed the decision to be not just about children, which was the subject of the original case, but to be a way for adults to gain entry into the US as well.
Gee reasoned that since the rule was that unaccompanied minors must be released into the protection of a parent or guardian, and since the parent or guardian to whom the detained children would have been released was also in detention, this meant that when children were released, so to would their accompanying adult.
Gee's determination that all children, and their guardians, must be released expediently after illegally crossing the border has changed border policy since 2015. Adult illegal immigrants could now cross the border illegally with a minor and use that minor's status as a minor to gain release themselves. Bringing children became a loophole for adults to get out of detention.
Gee's reasoning behind this was to "minimize the detention of children." To that end, Gee's ruling stated that in cases where the child is not able to be released to a relative who is not in detention and is willing to sponsor the child, the child should be released with the accompanying relative who is in detention. In other words, when children are released, their adults are also released.
When confronted with the concern that this policy would encourage families to make the illegal crossing despite the associated dangers, Judge Gee was unconvinced.
After Gee's decision, human trafficking cartels had every reason to stage families to cross the border illegally together. By saying they were families, cartels could essentially sell the company of a child to adults in order to get those adults a free pass to being released shortly after they were apprehended.
Under the Biden administration, the previously policy of DNA testing of illegal immigrant families to ensure that children were not being trafficked into the US was abandoned, meaning that any adult who presented at the border with a child could claim to be a relative of that child without any verification of that status.
Gee's determination forced the Obama administration to shut down the family detention centers they had built in border areas, which were facilities holding families while their immigration status was determined. The administration had used family detention as a a deterrent to would be illegal immigrants seeking to cross the border, and that deterrent was no longer permitted under Gee's ruling.
A federal court said using deterrence of that kind was not permitted under the Constitution.
In 2018, federal immigration policy was again before Gee's desk. She had claimed that the Obama administration was engaging in "fear mongering" by saying that family separation was a deterrent. Gee ruled against the Trump administration in Trump's effort to be permitted to detain illegal immigrant families for longer terms. Gee saying this was a "cynical attempt" to undo her ruling.
The first Trump administration sought allowance to detain families—not unaccompanied minors on their own—for more than 20 days. Gee rejected the Trump ask. Both Trump and Obama sought to detain families as a means of deterrence as well as to ensure that families would be deported together. Gee's ruling instead said families must be released into the US together.
The Trump administration said at the time that Gee had incentivized illegal immigration by families or groups posing as families. Gee ruled against the Trump administration, just as she'd ruled against Obama, and claimed that it wasn't the court that was at fault, but "20 years of Congressional inaction and ill-considered executive action." She called the 2018 situation a "stalemate."
"We disagree with the court's ruling declining to amend the Flores Agreement to recognize the current crisis of families making the dangerous and unlawful journey across our southern border," said the Trump administration's Devin O'Malley at the time.
The Trump administration lost their 2018 bid to vacate the settlement. The new attempt will be heard before Gee on July 18.
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