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Congressional Research Service
nforming the IegisI9tive debate since 1914
Updated December 3, 2024
Child Migrants at the Border: The Flores Settlement Agreement
and Other Legal Developments
A specific body of law-a 1997 settlement agreement,
federal statutes, and regulations enacted that partially
implement that agreement-governs the care and custody
of alien minors who seek to enter and be admitted to the
United States. This framework distinguishes arriving
minors who are unaccompanied by immediate family
(commonly known as unaccompanied alien children
[UACs]) from those arriving at a U.S. border or port of
entry 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
(FSA). The FSA was entered as a consent decree in 1997,
and the district court continues to monitor compliance with
its terms. Under a 2001 stipulation, the FSA is binding until
the government promulgates final implementing
regulations.
The FSA sets forth a nationwide policy for the detention,
release, and treatment of minors in immigration custody-
applying to UACs and accompanied minors alike. 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
protecting the minor's well-being and ensuring the minor's
presence for immigration proceedings. Detained minors are
to be held in safe and sanitary facilities and cannot be
housed with unrelated adults for more than 24 hours. Under
the FSA, within three to five days of a minor's
apprehension and detention, the government must generally
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. Minors may be placed in secure juvenile
facilities in limited cases, such as when charged with a
crime. 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 so long as immigration authorities
place all minors in nonsecure, licensed facilities as
expeditiously as possible. An alien minor not released
from detention is entitled to a bond hearing before an
immigration judge.
Implications for UAC Arrivals
The treatment and processing of UACs is largely controlled
by the interplay of the FSA, federal statutes enacted
following the entry of the FSA as a consent decree, and
federal regulations.
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
(HSA) 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. The HSA 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 were transferred from INS to the Office of Refugee
Resettlement (ORR) of the Department of Health and
Human Services (HHS).
Congress enacted the Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA) to address the
treatment of UACs comprehensively. The TVPRA
generally requires that a child in government custody be
transferred to ORR within 72 hours after the minor is
determined to be a UAC. ORR must promptly place the
minor in the least restrictive setting that is in the best
interest of the child. 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. 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
removal proceedings that offer greater procedural
protections. UACs from Canada or Mexico may also be
given the option to return voluntarily to their home country
rather than being placed in removal proceedings.
Furthermore, UACs are subject to special asylum
processing rules.
Federa Regu ations
The parties in Flores stipulated in 2001 that the FSA would
terminate 45 days following defendants' publication of
final regulations implementing the FSA's terms. In 2019,
DHS and HHS issued a joint final rule to implement the
FSA in a manner that is workable in light of subsequent
statutory, factual, and operational changes. The HHS](ViewImageLocal?handle=hein.crs/govermi0001&div=1&collection=&method=preview&ext=.png&size=3)
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