PerspectiveWhat Ending the Flores Agreement on Detention of Immigrant Children Really Means

Published 29 August 2019

Last week, the Department of Homeland Security (DHS) issued its final rule on custody of two groups of noncitizen children, establishing different procedures for the treatment of children accompanied by at least one parent at the border prior to arrest and “unaccompanied alien children” (UACs) who crossed the border and were arrested without a parent. the core of the DHS final rule echoes a position taken earlier by the Obama administration: Protections for UACs in the 1997 Flores Settlement Agreement (FSA) do not apply to accompanied minors.

Last week, the Department of Homeland Security (DHS) issued its final rule on custody of two groups of noncitizen children, establishing different procedures for the treatment of children accompanied by at least one parent at the border prior to arrest and “unaccompanied alien children” (UACs) who crossed the border and were arrested without a parent. Opponents of the DHS rule have asserted that it would eliminate safeguards for all immigrant children and allow “indefinite” detention. Indeed, this is the stance taken in the lawsuit filed by California and other states against the new DHS rule. But while the new DHS final rule raises some serious legal and policy questions, the arguments used by opponents of the new rule oversimplify the issues.

Peter Margulies writes in Lawfare that the core of the DHS final rule echoes a position taken earlier by the Obama administration: Protections for UACs in the 1997 Flores Settlement Agreement (FSA) do not apply to accompanied minors. For both the Obama and Trump administrations, this distinction between UACs and accompanied minors reflected the longtime reading of the FSA itself—as well as Congress’s view that UACs warrant special protections because of the absence of parental supervision, while the treatment of accompanied minors must balance their welfare with the orderly enforcement of U.S. immigration law. If the states’ lawsuit reaches the Supreme Court, the justices will likely uphold the final rule’s core distinction between accompanied minors and UACs.