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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 45 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 rule would codify the relevant and 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, DHS, HHS, and DOJ 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 5 years after the date of final court approval; however, the termination provisions were modified in 2001, such that the FSA does not terminate until 45 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 rule will codify the relevant and 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, DHS, HHS, and DOJ 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:

Prior to proposing this rule, DHS considered the alternative to publishing this rule, which was not to promulgate regulations. This has required the Government to adhere to the terms of the FSA, as interpreted by the courts, which also rejected the Government’s efforts to amend the FSA to help it better conform to existing legal and operational realities.

The primary source of new costs for the proposed rule would be a result of the proposed alternative licensing process, which ICE expects to extend detention of some minors and their accompanying parent or legal guardian in FRCs. This may increase variable annual FRC costs paid by ICE. The primary benefit of the proposed rule would be to ensure that applicable regulations reflect the Departments’ current operations with respect to minors and UACs in accordance with the relevant and substantive terms of the FSA and the TVPRA. Further, by departing from the FSA in limited cases to reflect the intervening statutory and operational changes, ICE will ensure that it retains discretion to detain families, as appropriate, to meet its enforcement needs.

Anticipated Costs and Benefits:

The primary source of new costs for the proposed rule would be a result of the proposed alternative licensing process which ICE expects to extend detention of some minors and their accompanying parent or legal guardian in Family Residential Centers (FRCs).  This may increase variable annual FRC costs paid by ICE.  The primary benefit of the rule would be to ensure that applicable regulations reflect the Department's current operations with respect to minors and Unaccompanied Minor Children (UACs) in accordance with the relevant and substantive terms of the Flores Settlement Agreement (FSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA).  Further, by departing from the FSA in limited cases to reflect the intervening statutory and operational changes, ICE will ensure that it retains discretion to detain families, as appropriate, to meet its enforcement needs.

Risks: