Policy Resource

The Flores Settlement Agreement: Protecting Babies at the Border

Jan 28, 2020

Administration Rule that attempted to strip essential protections for migrant children rejected by U.S. District Court.

The Flores Settlement Agreement (FSA)—signed in 1997 and expanded since then—mandates critical protections that ensure migrant children are treated with dignity and respect, whether they are unaccompanied or with family members. They must be released without unnecessary delay to family member or other caretaker; they cannot be held in custody for longer than 20 days unless no caretaker is available; and they must be in the “least restrictive environment” and in a licensed facility. The Administration announced changes to the FSA in August of 2019 that would have allowed children to be held indefinitely, paving the way for extended family detention. Moreover, the new Rule provided that the Department of Homeland Security could license its own facilities, with limited outside oversight, raising deep concerns for the well-being of children in their care.

The new Rule threatens to put migrant families with young children in direct harm. Placing babies and toddlers in detention centers even with their families, especially for extended periods of time, is detrimental to their health and well-being. Families belong together, and proven alternatives to detention are the best course.

In September, the District Court with oversight of the Flores Settlement agreement rejected the proposed regulations as inconsistent with the provisions of the agreement, requiring those provisions for migrant children remain in place. Cited in her ruling was an amicus brief that ZERO TO THREE joined. The government has since appealed that ruling to the Ninth Circuit Court off Appeals. ZERO TO THREE joined another amicus brief opposing the appeal.

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Since November 2018, ZERO TO THREE has taken several actions to ensure the FSA is upheld and that the new Rule is struck down.

  • Amicus Briefs: In August 2019, ZERO TO THREE joined more than 20 other organizations on an amicus curiea brief filed in the U.S. District Court for the Central District of California to adamantly oppose the federal government’s new Rule to gut the protections of the FSA. See the amicus brief here and the joint press release here. In January 2020, we joined another amicus curiea brief filed in the Ninth Circuit Court of Appeals opposing the government’s appeal. See the amicus brief here and the joint press release here.
  • Public Comments: ZERO TO THREE submitted public comments opposing the proposed Rule. Download our full comments here.
  • Statements: ZERO TO THREE has released several statements to protect the FSA: