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In 1985, a class-action suit challenged the policies of the former Immigration and Naturalization Service (INS) relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the Flores Settlement Agreement (FSA). The FSA was to terminate five years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until forty- five days after publication of regulations implementing the agreement.

Since 1997, intervening statutory changes, including passage of the Homeland Security Act (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), have significantly changed the applicability of certain provisions of the FSA. The proposed rule will codify the substantive terms of the FSA and enable the U.S. Government to seek termination of the FSA and litigation concerning its enforcement. Through this rule, ICE will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA. The rule will also implement related provisions of the TVPRA.

Statement of Need:

In 1985, a class-action suit challenged the policies of the former INS relating to the detention, processing, and release of alien children; the case eventually reached the U.S. Supreme Court. The Court upheld the constitutionality of the challenged INS regulations on their face and remanded the case for further proceedings consistent with its opinion. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the FSA. The FSA was to terminate five years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until forty- five days after publication of regulations implementing the agreement.

Since 1997, intervening legal changes including passage of the HSA and TVPRA have significantly changed the applicability of certain provisions of the FSA. The proposed rule will codify the substantive terms of the FSA and enable the U.S. Government to seek termination of the FSA and litigation concerning its enforcement. Through this rule, ICE will create a pathway to ensure the humane detention of family units while satisfying the goals of the FSA. The rule will also implement related provisions of the TVPRA.

Summary of the Legal Basis:

Alternatives:

Anticipated Costs and Benefits:

ICE is in the process of determining the costs and benefits which would be incurred by regulated entities and individuals, as well as the costs and benefits to ICE for ensuring compliance with the requirements of this rule.

ICE expects to incur costs related to new or additional procedures for immigration proceedings for alien minors. Benefits include enhancing the process and protections for alien minors. This regulation will also strengthen DHS efforts to combat human trafficking of minors. Other benefits are enabling the U.S. Government to seek termination of the FSA and litigation concerning its enforcement, as well as bringing clarity and certainty to the process of addressing alien minors.

Risks: