National Center for Youth Law

Press Releases

Ninth Circuit Hears Oral Argument Regarding the Flores Settlement Agreement

FOR IMMEDIATE RELEASE
May 19, 2020

Contact: Patty Guinto, 626.512.4974, pguinto@youthlaw.org

Oakland, CAToday, the U.S. Ninth Circuit Court of Appeals panel heard oral arguments in Flores v. Barr and considered the Federal Government’s attempt to terminate the Flores Settlement Agreement. The Agreement, in effect since 1997, sets national minimum standards for the detention, treatment, and release of all minors detained in the custody of the federal government. The Ninth Circuit panel included Judges Marsha Berzon, William Fletcher, and A. Wallace Tashima.  

In August 2019, the Departments of Homeland Security (DHS) and Health and Human Services (HHS) released final regulations intended to replace the Flores Settlement Agreement. In September 2019, U.S. District Judge Dolly Gee blocked the Government’s regulations, stating that, “Defendants willingly negotiated and bound themselves to these standards for all minors in its custody, and no final regulations or changed circumstances yet merit termination of the Flores Agreement.” The Federal Government appealed this decision in November 2019. 

Today, counsel for Plaintiffs argued that the DHS and HHS regulations are inconsistent with the terms of the Agreement, and therefore the Agreement cannot be terminated. Among others, the inconsistencies include:  

  • Permitting DHS to detain children indefinitely, in substandard facilities without state licensing. 
  • Stripping children’s rights to judicial review of decisions to detain them in lieu of release to parents and other available custodians and decisions to transfer them from licensed dependent care facilities to a juvenile hall or psychiatric detention facility. 
  • Replacing independent oversight of DHS with the power to self-license and inspect. 
  • Replacing several mandatory protections with non-binding, “aspirational” language.

The panel asked detailed questions of both sides, focusing on the clear distinctions between the Agreement’s requirements and the plain language of the government’s final regulations. The decision of the Ninth Circuit is pending.