The Flores Settlement: Why it’s important, and what the government is required to do before getting out of it

The 27-year-old pact, which provides vital protections for children in immigration custody, is in the spotlight as the Biden Administration moves for termination; new bill offers much-needed reform

National Center for Youth Law
NCYL News
6 min readMay 22, 2024

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The Flores Settlement Agreement has required certain services and protections for children in federal immigration custody for nearly three decades. As the government looks to terminate this critical agreement, NCYL’s immigration team explores the history of Flores, why now is not the time to end it, and a new bill that fundamentally reimagines how children in federal immigration custody are treated. (iStock image: shironosov)

Children who are taken into federal immigration custody in the U.S. are guaranteed certain rights and protections — many of them thanks to a nearly 27-year-old deal commonly known as the Flores Settlement Agreement.

The Flores Settlement, reached by co-counsel that includes the National Center for Youth Law, has for nearly three decades played a crucial role in holding the government accountable for its treatment of migrant youth. It remains the only true national oversight mechanism for children in immigration custody.

The Biden Administration this month filed court motions seeking to partially end the Flores Settlement, drawing major media attention in the process. With debate — as well as confusion and misinformation — heating up around this important issue, our team at NCYL offers this closer look at what exactly the Flores Agreement is, why it’s so vitally important, and why we are opposing the government’s efforts to end it.

What is the Flores Settlement?

NCYL and co-counsel filed Flores v. Meese in 1985 to address the egregious harms faced by children in federal immigration custody. At the time, there were no requirements as to the types of facilities that could be used as immigration detention centers and immigrant children were treated just as harshly as adults were. Fifteen-year old Jenny Flores, for example, was detained in a hotel surrounded by a chain link fence, and children were routinely strip-searched, detained with unrelated adults, and denied education, recreation, and other basic services.

The Flores class action lawsuit, brought on behalf of Jenny Flores and other immigrant children, argued that the government must release children to sponsors and improve the conditions of facilities in which it detains children to comply with minimum child welfare standards. The plaintiffs and the government reached a settlement in 1997, which has governed the detention of immigrant children ever since. The Flores Settlement Agreement outlines basic protections that the government must provide to detained immigrant children to facilitate humane treatment and living conditions and expeditious release. The Settlement applies to all children in federal immigration custody, whether they arrive with their parents or legal guardians, or if they arrive unaccompanied.

What does the Flores Settlement require?

The Flores Settlement Agreement imposes a floor — not a ceiling — for the services and protections that must be provided to all children in federal immigration custody. It applies to the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS). Importantly, most of the protections within the Flores Settlement are not found in federal law.

One of the central guarantees of the Flores Settlement is the requirement that, within three days of a child entering immigration custody, the government must generally transfer the child to a placement with a state license to care for dependent children. Licensed facilities must “comply with all applicable state child welfare laws and regulations” and abide by other minimum standards set out in the Settlement. This is critical, because by requiring such a license, these facilities must meet state licensing standards that set minimum requirements to protect the health and wellbeing of children, and such facilities are then subject to independent oversight by state child welfare agencies.

In addition, the Flores Settlement requires that all children must be placed in safe and sanitary facilities from the moment they enter custody, even before being placed in licensed facilities, and those who remain in custody must be provided with basic services, placed in the least restrictive environment, and released “without unnecessary delay” to a sponsor, which may be a parent, relative, designate of the parent, or responsible adult, as deemed appropriate.

Who monitors and enforces the Flores Settlement?

The Flores Settlement is monitored and enforced by Flores counsel — the lawyers and their organizations who brought the lawsuit in 1985. Attorneys from the National Center for Youth Law, the Center for Human Rights and Constitutional Law, and Children’s Rights currently serve as Flores counsel.

Among the roles of Flores counsel:

  • Conduct site visits at facilities where children are held in federal immigration custody, where they tour the facility and confidentially interview children;
  • Receive and analyze monthly census data regarding children in federal immigration custody;
  • Provide technical assistance to legal service providers and child advocates around the country; and
  • Enforce the settlement, as needed.

What happens if the government violates the terms of the Flores Settlement?

Throughout the history of the Flores case, the federal government has violated the terms of the Flores Settlement numerous times. In order to address systemic violations, Flores counsel can file motions to enforce the Settlement in federal court.

Over the past few years, Flores counsel has successfully enforced the Flores Settlement on a wide range of issues, including: the administration of psychotropic medication (2018), inadequate federal regulations under the Trump Administration (2019), unsafe and unsanitary Customs and Border Protection conditions (2019), inappropriately delayed release of children during the COVID-19 pandemic (2020), children detained in motels under Title 42 (2020), unlicensed emergency intake sites (2021), and most recently, the detention of children in open air detention sites along the border (2024).

These motions described the violations of the Settlement, they included evidence from a variety of sources including from children, government data reports, and from experts, and they asked the judge to order the government to stop violating the Settlement’s terms.

Why is the Flores Settlement so important?

The Flores case serves as the only national oversight mechanism to ensure that detained immigrant children are treated appropriately while in custody and are released from custody promptly. Multiple successful motions to enforce the Settlement highlight the enduring need for robust oversight and monitoring of DHS and HHS facilities holding children.

Time and time again, through multiple administrations, the Flores Settlement has stood for the basic care of health and safety of children. Without strong regulatory or legislative provisions codifying basic protections for children in immigration custody, the Flores Settlement remains one of the only sources of legal rights and protections for these children.

When will the Flores Settlement end?

Under the terms of the Settlement, the Flores Settlement can be terminated when the government issues regulations that are consistent with the protections laid out in the Settlement. The Trump Administration was the first Administration ever to issue regulations.

In August 2019, the Trump Administration published HHS and DHS regulations to replace the Flores Settlement. These regulations were inconsistent with the Settlement requirements — they created an alternative licensing process that undermined state child welfare laws and basic protections for children, allowed federal agencies to expand family detention centers, and would have likely increased the length of time that children spent in detention. Flores counsel litigated against these regulations and successfully enjoined them in federal court.

In 2024, the Biden Administration published final HHS regulations to replace the Flores Settlement and asked the court to terminate the Settlement. While these regulations include some new protections for children in custody and represent a step in the right direction, they are fundamentally flawed.

The Flores counsel team will be opposing the Settlement’s termination, because, amongst other things, the government’s regulations flout the Settlement’s key requirement that children be placed in state-licensed programs that meet child welfare standards to ensure their safety. The regulations allow children to be placed in unlicensed facilities, without independent state oversight, in states where licensing is not currently available. While the regulations reference forthcoming additional regulations on the creation of a federal licensing scheme, they do not include any details on what this scheme would entail or when those regulations will be issued.

For now, the Flores Settlement remains in effect.

Is there a better long-term solution that prioritizes children’s well-being?

As years of Flores litigation has shown, it is clear the protections we currently have for children in federal immigration custody are insufficient. They neither adequately ensure that children are in custody for the shortest possible amount of time, nor do they ensure that while in custody, the best interests of children are prioritized. We need stronger and more permanent protections.

The Children’s Safe Welcome Act, re-introduced today by Senator Jeff Merkley (D-Ore.), is a comprehensive framework of legal protections that fundamentally reimagines how children could be treated in immigration custody. It’s supported by leading experts, advocates, and organizations focused on children’s health, safety, and welfare. Flores counsel at NCYL provided expert guidance throughout the bill’s development.

The Children’s Safe Welcome Act prioritizes keeping families together, placing children arriving alone in family-like settings, and promoting the prompt release of these children to minimize the time they spend in federal immigration custody. Support for this bill is support for the safety and well-being of young people.

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National Center for Youth Law
NCYL News

We believe in and support the incredible power, agency, and wisdom of youth.