Ninth Circuit Flores Decision Puts Biden in a Fix

The more that come, the more that will come

By Andrew R. Arthur on January 11, 2021

On December 29, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Flores v. Rosen, the latest chapter in the Flores saga (Flores III, for reasons I will explain below). That decision will end up putting the Biden administration in a fix as it relates to controlling illegal migration over the Southwest border.

History Pre-Flores

Some historical perspective is in order. In 1985, two organizations sued the former INS on behalf of alien children who were being detained by the agency. The purpose of the suit, as NPR has explained, was to "challeng[e] procedures regarding the detention, treatment, and release of children."

That case went through a number of levels of judicial review, including by the Supreme Court in March 1993 on the question of whether the-then existent regulation limiting the release of unaccompanied alien children (UAC) violated the Due Process Clause.

That regulation provided for the release of UAC only to their parents, close relatives, or legal guardians, "except in unusual and compelling circumstances". If not released under this provision, an INS official — the "Juvenile Coordinator" — was required to find "suitable placement ... in a facility designated for the occupancy of juveniles."

Justice Scalia, writing for six other justices, found that the regulation was not unconstitutional. He noted:

The parties to the present suit agree that the Service must assure itself that someone will care for those minors pending resolution of their deportation proceedings. That is easily done when the juvenile's parents have also been detained and the family can be released together; it becomes complicated when the juvenile is arrested alone, i. e., unaccompanied by a parent, guardian, or other related adult.

The matter was remanded to district court and, in January 1997, the Clinton DOJ and plaintiffs entered into a stipulated settlement agreement (the Flores settlement agreement, or FSA).


The FSA created a policy favoring release of minors, and required INS to place minors it did detain in the "least restrictive setting appropriate" based on their age and special needs "in a licensed facility". Almost 24 years later, the FSA still governs the detention of alien minors.

Thereafter, as the Congressional Research Service (CRS) has noted, in a 2001 amendment to the FSA, "the parties stipulated that the agreement would terminate 45 days after the government publishes final regulations implementing the terms of the agreement." I will get back to that below.

Flores I and Flores II

In 2016, the Ninth Circuit issued an opinion interpreting the FSA in Flores v. Lynch (Flores I). The circuit court in Flores I sustained an August 2015 order by Judge Dolly Gee of the U.S. District Court for the Central District of California.

Both held that the FSA applied to alien minors apprehended by DHS with family members or guardians (family units or FMUs), referred to herein as "accompanied minors", as well as UACs. The courts also created a rule that all alien minors should generally be released by DHS within 20 days.

Background to Flores I

It is important at this point to step back and review the background behind Flores I.

The Ninth Circuit noted there that until 2001, INS's policy was to release apprehended FMUs, due to a lack of detention space for family detention and to avoid separating parents and children. September 11th changed that. Immigration enforcement was beefed up, and expedited removal was expanded, making "the automatic release of families problematic", in the circuit court's words.

In 2001, INS opened a family detention center in Berks County, Pa., (over which I later had jurisdiction as an immigration judge). Needless to say, the detention of adults and children is a situation unique to immigration in law enforcement (criminal adults don't take their kids to prison), and so there were no Pennsylvania state standards to govern the housing of the FMUs therein.

Instead, "Berks has been monitored and licensed by state authorities under the state standards applicable to child residential and day treatment facilities."

In 2002, INS was abolished and DHS was created by the Homeland Security Act (HSA). That act also transferred responsibility for the care and custody of UACs to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS).

DHS established a second family detention center, the Don T. Hutto Family Residential Center (FRC) in Taylor, Texas, in 2006. A suit was filed by minors detained at Hutto in federal court in Texas challenging their continued detention as being in violation of the FSA. A district court held, in an unpublished decision, that the FSA covered accompanied minors as well as UAC, but that the parents in FMUs did not have a right to release.

The case was eventually settled, but it set the stage for Flores I.

Congress thereafter passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), partially codifying the standards for the detention of UACs in the FSA.

The facts on the ground relating to the entry of UACs and FMUs have changed significantly since 1997, and since 2008 for that matter.

In its 1993 decision, the Supreme Court found that the entry of 8,500 minors in 1990 — 70 percent of them UACs (the rest logically in FMUs) — was a "serious" problem.

Compare that to FY 2014, when CBP saw a surge in UACs and FMUs at the Southwest border. That fiscal year, 68,541 UACs were apprehended by the Border Patrol — a 77 percent increase from the year before (thousands more were deemed inadmissible by CBP officers (CBPOs) at the ports along that border).

The increase in FMUs was similar that fiscal year, with Border Patrol agents at the Southwest border apprehending 68,445 aliens in family units. That was a 360 percent increase over FY 2013, when "only" 14,855 FMUs were stopped by the Border Patrol.

The Obama administration responded to that 2014 surge by opening FRCs in Karnes City and Dilley, Texas, and Artesia, N.M., to detain FMUs (Artesia was closed shortly thereafter). By FY 2015, the number of UAC apprehensions at the Southwest border had dropped to 39,970, and the number of FMU apprehensions fell to 39,838.

In February 2015, a federal district court judge in the District of Columbia found that ICE under the then-Obama administration was taking deterrence of illegal entries into consideration in making custody determinations (that is detaining current migrants to deter future ones), resulting in an increase in the number of FMUs detained. It concluded that this policy was "likely unlawful" and harmful to FMUs seeking asylum. It preliminarily enjoined the practice, which ICE dropped in May 2015.

Flores I litigation

That same month, the Flores plaintiffs filed a motion with Judge Gee to enforce the FSA. They asserted that ICE was in breach of the agreement, because it had adopted a no-release policy, and because the Karnes and Dilley facilities did not comply with the licensing requirement in the FSA.

The government argued that the FSA did not apply to accompanied minors. As explained above, Judge Gee and, subsequently, the Ninth Circuit in Flores I disagreed. In essence, they deemed the FSA to be equivalent to a contract, and since it did not expressly exclude accompanied minors, the FSA was deemed to include them.

Further, the Karnes and Dilley (and, until it was closed, Artesia) facilities had operated under ICE's Family Residential Detention Standards — not state ones. Judge Gee held and the circuit court in Flores I agreed that detention in those facilities did not comply with the FSA.

With respect to licensing of such facilities, as CRS explains:

In sum, the reason alien minors and their parents generally cannot remain together for more than brief periods while in immigration detention is because the [FSA] requires minors to be placed in non-secure, state-licensed facilities within days or (in individualized circumstances during an influx) weeks of their apprehension, yet there do not appear to be any facilities that both comply with the Flores-required conditions and authorize adults to be housed in the facility.

The Ninth Circuit in Flores I did not entirely agree with Judge Gee. The district court had held that the detention of an accompanying parent in an FMU also violated the FSA (unless release of the adult posed a flight or safety risk). The circuit court, however, held that this was in error, as the FSA "does not explicitly provide any rights to adults."

That is cold comfort, however, because the release of a child in an FMU coupled with the detention of that's child's parent or guardian results by definition in "family separation" — a very unpopular proposition that Biden (among others, including President Trump, for what it is worth) has decried.

There was also a second Ninth Circuit Flores decision (Flores II, formally Flores v. Sessions), in which the court held that nothing in the HSA or TVPRA excused DHS from providing UACs with bond hearings.

Ramifications of Flores I

In any event, and not surprisingly, the number of UACs and FMUs encountered at the Southwest border skyrocketed after Flores I. In FY 2017, CBP there encountered 104,997 aliens in FMUs, and an additional 48,681 UACs.

In an attempt to stem this tide, then-Attorney General Jeff Sessions implemented a "zero-tolerance policy", under which (to the extent practicable) all aliens who had entered illegally would be prosecuted for illegal entry under section 275 of the Immigration and Nationality Act (INA).

The problem was that, needless to say, the government does not prosecute minors for this offense. Therefore, the parents and guardians in FMUs who were prosecuted under this policy were placed in DOJ custody for prosecution. This left the theretofore accompanied minors as UACs, who were sent to ORR in accordance with the HSA and TVPRA. Implementation of the policy was a public-relations fiasco, which reverberates to this day.

In response, President Trump issued Executive Order (EO) 13841, directing an end to family separations. EO 13841 also ordered Sessions to seek to modify the FSA to permit DHS to detain FMUs through criminal and immigration proceedings.

DOJ complied with that directive, but Judge Gee denied its application for modification in a July 2018 order.

FY 2019 surge in FMUs and UACs

The wave of UACs and FMUs thereafter swelled in FY 2019, when CBP encountered 527,112 aliens in FMUs and 80,634 UACs at the Southwest border, creating a humanitarian and national security disaster.

According to a bipartisan federal panel report issued in the midst of that surge in April 2019, 40 percent of Border Patrol's resources were absorbed in responding to that disaster (my word, not theirs), thus diverting the patrol from its other missions (including those related to the national security).

For a period, due to a lack of resources, many FMUs were not even being subjected to expedited removal, let alone credible fear interviews by asylum officers. Instead, Border Patrol agents were simply releasing those aliens with NTAs to appear at future removal proceedings.

That panel concluded that this policy was a "major pull factor" drawing FMUs to enter the United States illegally, and specifically stated that the border crisis was being "exacerbated" by the Ninth Circuit's orders in Flores (which it clearly stated "expand[ed] to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to" UACs).

Notably, the panel also found that "children are being used as pawns by adult migrants and criminal smuggling organizations solely to gain entry into the United States", and that those children were being "traumatized during their journey to and into the U.S." The panel's first legislative recommendation was for Congress to: "Enact emergency legislation to limit the scope of the [FSA] to unaccompanied minors."

In response, Congress did nothing, except to excoriate the administration for the conditions of detention of those migrant children and their parents. I wrote a series of posts detailing the administration's requests for more funding to ameliorate those conditions in the late spring of 2019, but it took Congress almost two months to provide the money.

DHS and HHS Flores Regulations

Finally, though, on August 23, 2019, DHS and HHS did act. On that date, the departments issued a final rule promulgating regulations implementing the FSA, as well as other provisions relating to UACs in the TVPRA and HSA. Those regulations were to take effect on October 22, 2019.

As I noted above, under the terms of the FSA, as amended, the issuance of those regulations would have terminated the FSA after 45 days.

The regulations in the final rule issued by HHS dealt with the care and custody of UACs. The DHS regulations, on the other hand, related to both accompanied and unaccompanied minors, and in particular their apprehension and processing, as well as with the care and custody of accompanied minors.

The final rule noted that the number of UACs and (in particular) FMUs had increased exponentially since the parties entered into the FSA, facts that I detailed above.

The final rule stated that this had left DHS with three options: releasing all of the aliens in the family unit; detaining the parents and guardians and releasing the minor; or detaining the FMU in a FRC. The problem is, DHS explained: "The practical implications of the FSA, as interpreted by [Judge Gee] and [in Flores I] (and the lack of state licensing for FRCs), is to prevent the Government from using the third option for more than a limited period of time."

The FSA (as interpreted in Flores I), however, prevented DHS from detaining FMUs for any extended period of time. That, the final rule (channeling the aforementioned bipartisan federal panel report) explained:

[C]reates a powerful incentive for adults to bring juveniles on the dangerous journey to the United States and then put them in further danger by illegally crossing the United States border, in the expectation that coming as a family will result in an immediate release into the United States.

To address these issues, the final rule (among numerous other actions) would have made accompanied minors eligible for parole under section 212(d)(5)(A) of the INA on the same terms as all other aliens — that is "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit". Accompanied minors who lacked credible fear or had not received a credible fear screening would have been paroled only in cases of medical necessity or a law-enforcement need, consistent with other regulations.

It also would have barred bond hearings for accompanied minors unless they were in removal proceedings under section 240 of the INA (as opposed to expedited removal proceedings under section 235(b) of the INA, in which aliens are only eligible for parole from DHS).

In addition, the regulations would have allowed ICE to establish family residential standards for facilities in states without such standards, and required DHS to employ an outside entity to ensure that those facilities complied with the standards.

I will note that both Texas and Pennsylvania do now have licensing schemes (to one degree or another), but they have been subject to significant litigation.

Flores III

You likely noted that above, I used the past tense conditional to describe what the DHS regulations would have done. With good reason.

Three days after the final rule was published, the attorney general of California along with other attorneys general filed suit to block the implementation of those regulations. On September 27, 2019, Judge Gee issued an order blocking the termination of the FSA and enjoining the new regulations, finding that they were inconsistent with the FSA.

In her decision, she stated, somewhat blithely: "The blessing or the curse — depending on one's vantage point — of a binding contract is its certitude. The [FSA] is a binding contract and a consent decree."

The government appealed that order. On December 29, 2020, as noted, the Ninth Circuit ruled on that appeal in Flores III.

In its opinion, the circuit court largely affirmed the regulations in the final rules issued by HHS, reversing the district court's injunction with respect to them.

It concluded, however, that "the DHS regulations applicable to the care and custody of accompanied minors, by design, depart significantly from the" FSA, and that the FSA "flatly precludes" DHS's preferred option of detaining accompanied minors with their parents or guardians. Given this, with two extremely limited exceptions, the circuit court affirmed Judge Gee's injunction of the DHS regulations in the final rule.

Somewhat magnanimously, the Ninth Circuit admitted that it had previously "recognized that the" 1997 FSA "'gave inadequate attention' to the 'housing of family units.'" It concluded, however:

The DHS regulations jettison the [FSA]'s release mandate for accompanied minors except in narrow circumstances. The government has not convincingly explained why the increase in families arriving at the southwest border requires DHS to detain instead of releasing accompanied minors.

The circuit court explicitly rejected the government's argument that a change in circumstances, specifically the massive increase in illegal migration by UACs and FMUs (with all of its attendant harms) "warrants termination of the" FSA.

In the final rule, DHS stated that of the three options it has when it encounters an FMU (release of all the aliens, detention of the adults and release of the accompanied minors, or detention of the FMU in an FRC), the second "should be avoided when possible, and has generated significant litigation."

The Ninth Circuit wasn't buying it, holding: "Even if the government has legitimate justifications for detaining adults, it has not shown why it must also detain accompanying minors. For example, the government could detain parents but release their children to another available relative."

It correctly noted that the litigation referenced by DHS had to do with family separations under zero tolerance (and therefore is distinguishable), but respectfully, if they do not understand the implications of the family separation they are proposing, the judges of the circuit court panel either do not live in the real world, or are being incredibly coy.

There is plenty of grumbling about detention of FMUs in FRCs (mostly from people who have never been near one, and who have not seen the housing, medical care, recreation, education, and meal options they provide).

But the separation of migrant families has brought and will bring forth howls of disgust and recrimination. And, frankly, simply explaining that such separation is all in the child's best interests (let alone that it is required under a 23-year-old "contract") will do nothing to calm those full-throated denunciations.


As I noted recently, correlation does not necessarily imply causation. But it is difficult to review the pattern of illegal FMU migration to the United States and compare it temporally to the various court decisions interpreting the FSA without concluding that those migrants are entering the United States — endangering themselves and their children — in response to Judge Gee's decision and Flores I.

Want proof? Again, even a bipartisan federal panel — one focused on the welfare of "families and children" — called for the FSA to be limited in a similar manner to that proposed by DHS in the final rule.

There is no manner in which I can imagine the government could amend or abrogate the FSA — short of legislation (which is highly unlikely given the passions surrounding the issue and Biden's expressed disapproval of detention, and even then) — that would satisfy Judge Gee or the Ninth Circuit.

The FSA, and its interpretation in Flores I and III, will almost definitely put the incoming Biden administration in a bind. Given the then-candidate's expressed repugnance of Trump's immigration policies (which, as the foregoing shows, were not that different when it came to FMU detention than its predecessor), it is difficult to imagine that there will not be a fresh wave of migrants — and in particular FMUs — greater than that in FY 2019, and soon.

Flores III will limit — if it does not eliminate — that administration's options in responding to this wave. It cannot detain those FMUs indefinitely, and it realistically cannot separate parents from children. That means more will come, imperiling themselves and causing significant trauma to their children. And, as history shows, the more that come and get in, the more that will come.