The Flores Settlement Agreement was the result of a lawsuit against the U.S. government regarded the detention of immigrant children agreed to in 1997. It establishes a “nationwide policy for the detention, release, and treatment of minors” in immigration custody. It institutes a “general policy favoring release” and requires the government house unaccompanied undocumented minors in “the least restrictive setting appropriate to the minor’s age and special needs.”
The agreement additionally stipulates that when minors are first arrested by immigration authorities, the children must be detained only in “safe and sanitary” facilities and that federal authorities must transfer their care to a qualifying adult or a non-secure, state-licensed facility. Critically, the Flores agreement applies to both accompanied and unaccompanied minors in immigration custody.
The government has claimed the Flores Agreement often requires families be separated in immigration detention because minors must be placed in non-secure, state-licensed facilities within days of their apprehension. The government has also tried to modify the agreement several times, including in 2017, when then-Attorney General Jeff Sessions filed a request seeking to extend how long children can be detained. The proposed modification would permit the detention of families throughout the duration of their immigration proceedings, and would exempt the government from having to seek state licensing for family detention facilities.
In one petition to the court, the U.S. government also sought to detain children in unlicensed facilities indefinitely. The request was rejected.