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1 [1] (April 1, 2021)

handle is hein.crs/govecwb0001 and id is 1 raw text is: Congressional Research Service Inforrning the legislative debate since 1914 April 1, 2021 Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments Reports of child migrants arriving at the southern border have raised interest in the laws governing their custody and treatment by U.S. authorities. The Immigration and Nationality Act (INA) generally authorizes the detention of non-U.S. nationals (aliens under governing law) placed in removal proceedings while their removability and any claims for asylum or other relief are considered. See Jennings v. Rodriguez, 138 S. Ct. 830, 838 (2018). But a more specific body of law-comprised of federal statutes, a 1997 settlement agreement, and regulations partially implementing that agreement-governs the care and custody of alien minors. This framework distinguishes arriving minors who are unaccompanied by immediate family-commonly known as unaccompanied alien children (UACs)-from those arriving with a family unit. The Flores Settlement Agreement In 1985, a class action lawsuit filed in the U.S. District Court for the Central District of California challenged procedures for the detention and release of alien minors by immigration authorities. After more than a decade of litigation, the parties negotiated a settlement agreement commonly known as the Flores Settlement Agreement. See Stipulated Settlement Agreement, Flores v. Reno, No. 85- CV-4544 (C.D. Cal. 1997). The Agreement was entered as a consent decree in 1997, and the district court continues to monitor compliance with its terms. Under a 2001 stipulation, the Agreement is binding until the government promulgates final implementing regulations. See Stipulation Extending Settlement Agreement, Flores v. Reno, No. 85- CV-4544 (C.D. Cal. 2001). The Agreement sets forth a nationwide policy for the detention, release, and treatment of minors in immigration custody-applying to UACs and accompanied minors alike. See Agreement ¶ 9; Flores v. Lynch (Flores 1), 828 F.3d 898, 908 (9th Cir. 2016). It also announces a general policy favoring release of apprehended minors and requiring the government to place them in the least restrictive setting appropriate to the minor's age and special needs, provided that such setting is consistent with its interests in protecting the minor's well-being and ensuring his or her presence at removal proceedings. Agreement ¶ 11. Minors are to be detained in safe and sanitary facilities and cannot be housed with an unrelated adult for more than 24 hours. Id. ¶ 12. Within three to five days of a minor's apprehension and detention, the government generally must either (1) release the minor to a parent, legal guardian, adult relative, or other capable and willing designated adult or entity; or (2) place the minor in a nonsecure facility licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children. See id. ¶ 14; id. at Ex. 2(h). Minors may be placed in secure juvenile facilities in limited cases, such as when charged with a crime. See id. at Ex. 2(i). This detention period of three to five days may be relaxed in the event of an emergency or an influx of minors into the United States, as long as immigration authorities place all minors in a nonsecure, licensed facility as expeditiously as possible. See id. at Ex. 2(h). An alien minor not released from detention is entitled to a bond hearing before an immigration judge. See id. 124A. Implications for UAC Arrivals The treatment and processing of UACs is largely controlled by the interplay of the Flores Agreement, federal laws enacted following the entry of the consent decree, and federal regulations issued in 2019. The Homeland Security Act and the Trafficking Victims Protection Reauthorization Act Two federal laws establish the main framework for the treatment of UACs. The Homeland Security Act of 2002, Pub. L. No. 107-296, defines an unaccompanied alien child as one who (1) lacks lawful immigration status in the United States; (2) is under 18 years old; and (3) is either without a parent or legal guardian in the country or without a parent or legal guardian in the country who is available to provide care and physical custody. See 6 U.S.C. § 279(g)(2). The Act also transferred most immigration functions from the former Immigration and Naturalization Service (INS) to the Department of Homeland Security (DHS). Functions related to the care of UACs, though, were transferred from INS to the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services (HHS). Id. § 279(a)-(b). Congress enacted legislation to address the treatment of UACs comprehensively with the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457. The TVPRA generally requires that a child in government custody be transferred to ORR within 72 hours after determining that the minor is a UAC. 8 U.S.C. § 1232(b)(3). ORR must promptly place the minor in the least restrictive setting that is in the best interest of the child. Id. § 1232(c)(2)(A). A UAC shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense. Id. Besides establishing a framework for the detention, treatment, and release of UACs, the TVPRA sets forth special rules for their removal. While most aliens encountered at the border without valid entry documents undergo a streamlined expedited removal process, UACs are placed in standard ittps://Crsreports.congress.gt 0

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