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UPDATED: NACC joins Amicus Brief supporting the Flores Agreement

Wednesday, May 20, 2020   (0 Comments)
Posted by: Ranni Gonzalez
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Flores v. Barr

NACC joins Amicus Brief supporting the continued implementation of the Flores Agreement


NACC is committed to enhancing the rights and well-being of all children. On August 9, 2019 NACC issued a statement on family separation at the Southern US border. NACC’s advocacy for migrant children in federal custody continues with our most recent amicus effort.


On September 4, 2019, NACC joined Children’s Rights and several other children’s advocacy organizations in the filing of an Amicus brief supporting the plaintiff in Flores v. Barr. This case seeks the continued enforcement of the Flores Settlement Agreement and challenges the Final Rules, recently adopted by the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS), which run contrary to the Flores Agreement.


The Flores Agreement originated in 1997 when the parties in Flores v. Reno reached a settlement regarding the detention of migrant children. The settlement requires detention facilities housing migrant children be subject to state licensing standards. Additionally, the settlement demands that children be placed in the least restrictive environment possible, appropriate to the child’s age and needs, and that children only be detained for a maximum of 72 hours.


By incorporating state licensing standards, the Flores Agreement allows facilities to be monitored and for reported violations to be investigated. On August 21, 2019, DHS announced the administration would be replacing the Flores Agreement with new policies. These new policies, called the Final Rules, allow for indefinite detention of migrant families. Additionally, the Final Rules severely diminish safety standards established by the Flores Agreement by removing the state licensing requirement.


The amicus brief argues the Final Rules violate the Flores Agreement. Under the Final Rules, detention facilities housing migrant children will no longer be required to comply with state licensing standards. Instead, the DHS and HHS will be permitted to simply regulate themselves. As argued in the amicus brief, “[i]nstead of being informed by child welfare and protection principles, the Final Rules are animated by criminal justice principles that prioritize incarceration and detention at the expense of child protection and care.” The Final Rules do not provide an effective way to report or correct violations in detention facilities.


The amicus brief cites research that has long shown any time spent in detention negatively impacts children.[1] That is ever more pressing when the DHS has repeatedly demonstrated its failure to meet the most basic child welfare standards. Because DHS has not been able to ensure the health and safety of children detained in DHS facilities,[2] the department should not be entrusted to license and oversee compliance of detention facilities where children are held.


Amicus organizations conclude that the Flores Agreement provides necessary protections for migrant children consistent with child welfare standards and the Final Rules do not adequately replace those standards.




On September 27, 2019 Judge Gee, of the United States District Court Central District of California, granted a permanent injunction against enforcement of the Final Rules instituted by the Department of Homeland Security (DHS) and Department of Health and Human Services (HHS). Additionally, Judge Gee ordered the DHS and HHS to continue to comply with the Flores Agreement.The government appealed this decision to the Ninth Circuit Court of Appeals.


On January 28, 2020 NACC joined with other children's advocacy organizations in filing an Amicus brief in the Ninth Circuit urging the Court to affirm the District Court's decision.


UPDATED: Watch oral arguments here

[1]  Julie M. Linton, Marsha Griffin, Alan J. Shapiro, Detention of Immigrant Children, 139 PEDIATRICS1, 7 (2017)


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