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Court Holds that Accompanied Minors Cannot be Turned Away at the Border

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By: Alex Lindvall

The Ninth Circuit Court of Appeals—one of thirteen federal appeals courts—recently held that minor children may not be turned away at the border, even if they are accompanied by an adult.

Background. 

This case revolves around Jenny Flores.  In 1985, Flores (15-years-old) fled El Salvador and illegally crossed into the United States.  At the border, she was arrested by INS agents and placed in a juvenile deportation center, where she sat for two months.  Flores asked to be released into the custody of her aunt who lived in the United States.  The government denied her request.  Subsequently, Flores, and a class of immigrants, filed suit, alleging their detention violated the Due Process Clause of the U.S. Constitution.

In 1997, after a United States Supreme Court ruling, the U.S. Government entered into a settlement agreement with the class of immigrants that “set[] out [a] nationwide policy for the detention, release, and treatment of minors in the custody of the INS,” and broadly represents the United States’ policy toward minor immigrants.  This settlement agreement now referred to as the “Flores settlement.”  This settlement requires the government to release illegal immigrant minors, in order of preference, to: their parents, other adult relatives, or licensed U.S. programs willing to accept custody. (A settlement agreement, in this context, is basically a contract between the government and a group of people, and it is enforceable in a court of law.)

Flores v. Lynch

In 2014, there was a surge of Central Americans attempting to flee their home countries, many of whom were children.  Honduras, for example, has held the title of “murder capital of the world” for the last several years. (In fact, five of the top ten cities with the highest murder rates are in Central America.)  In response, the federal government opened detention centers in Texas and New Mexico.  After being detained at these centers for several months, a group of immigrants filed suit seeking to enforce the Flores settlement.  The Flores settlement, however, was created within the context of unaccompanied minors crossing the border.  But what if the minor crossed the border with her adult parent?

The Ninth Circuit recently held that the 1997 settlement agreement applies to accompanied minors, but not their parents.  In other words, children are different—if a parent and child are detained at the border, the government is required to quickly release the minor into the custody of relatives living in the U.S., foster care, or adoptive parents; the parent, however, will be subject to standard immigration laws, likely meaning deportation.

What this decision means is unclear at this point.  But it will undoubtedly have an impact on our immigration policy.