The Flores Saga Continues: Update on DHS and HHS Flores Regulations after the 9th Circuit’s Ruling

On December 29,2020, the 9th Circuit quietly released their most recent opinion in the Flores case. Normally any opinion in the Flores case would cause quite a bit of talk among the unaccompanied immigrant children advocacy community, but this opinion has been ignored somewhat. CILA investigates to determine the impact to our children.

The 9th Circuit was opining on an appeal brought by the government after Judge Gee in a California federal district court enjoined the regulations intended to replace the Flores Settlement Agreement (FSA). The FSA, which came into effect in 1997, was always intended to be replaced by government regulations, but only ones that were consistent with the agreements. After several false starts the government released their proposed regulations in 2018 and made them final in 2019.

The 9th circuit affirmed Judge Gee’s injunction in part and overturned it in part. The FSA, and the court’s opinion, cover the detention of both accompanied and unaccompanied children. This update will not review the entirety of the court’s opinion, but rather the parts of the regulations that are now in effect and what impact they will have on unaccompanied children.

The regulations in question were drafted jointly by the Department of Homeland Security (DHS) and Health and Human Services (HHS) because the duties imposed on the former Immigration and Naturalization Service (INS) by the FSA were divided when the Homeland Security Act of 2002 broke up the INS, created DHS, and delegated the care and custody of unaccompanied children to HHS. As such, both courts analyzed the regulations based on agency. The 9th circuit’s ruling indicated that all the regulations pertaining to HHS, apart from two provisions, could go into effect. The DHS regulations, on the other hand, were enjoined in their entirety except for two provisions. The two remaining DHS regulations concern unaccompanied children.

One of the DHS regulations allowed to take effect was 8 C.F.R. 236.3(f) which concerns the transfer of unaccompanied children from DHS custody (after apprehension) to HHS custody. The 9th Circuit determined that this part of the DHS regulations tracked with the FSA, and therefore there is no change for unaccompanied children here. The transfer will still take place within 72 hours and will not allow unaccompanied children to be transported with adults, unless other transportation is impractical or unavailable.

The 9th Circuit also allowed 8 CFR 236.3(g)(2) to take effect which refers to DHS’s custodial care for unaccompanied children at apprehension and before transfer to HHS. Here, the language of the regulation tracks the FSA closely, as it lists the rights that children have when in DHS custody and what the facilities must provide to the children. The ABA, in its original comments to these proposed regulations, noted that there is problematic qualifying language (also present in the FSA) that could result in DHS depriving children of all the food and water they request along with certain medical assistance. The government chose not to amend that language and the 9th Circuit agreed, as it tracks the FSA.

As far as the HHS version of the regulations are concerned, all of them are in effect except 8 C.F.R. 410.203(a)(5) and 8 C.F.R. 410.810(a). One of the Flores counsel’s concerns about the HHS regulations was that language that would have been interpreted as “mandatory” (i.e. “shall be placed”) in the FSA has been changed to “descriptive” (i.e. “places”) in the regulations. The 9th Circuit had the following to say concerning the change:

The government asserts on appeal that “the use of the present tense in this and other provisions does not render these provisions optional; they are mandatory.” We will hold the government to its word. HHS and ORR are bound by and must comply with the descriptive language in the HHS regulations as equivalent to the mandatory requirements in the Agreement. So interpreted, the descriptive language in the regulations is consistent with the Agreement. [Emphasis added].

Flores v. Rosen, 19-56326, 2020 WL 7705556 (9th Cir. Dec. 29, 2020), pg. 22

Practitioners should hold HHS accountable to continuing to interpret their regulations this way, and alert Flores counsel if there are any doubts.

One major concern about the HHS regulations is the fact that some of the HHS regulations that are now in effect exactly mirror language in the DHS regulations that are enjoined. One glaring example is in 8 C.F.R. 410.101, where, in the definition of “unaccompanied alien child” HHS has included de-designation language, which would codify language found in the recent DHS memo that is currently the subject of the J.O.P. v. D.H.S. litigation:

When an alien previously determined to have been a UAC has reached the age of 18, when a parent or legal guardian in the United States is available to provide care and physical custody for such an alien, or when such alien has obtained lawful immigration status, the alien is no longer a UAC. An alien who is no longer a UAC is not eligible to receive legal protections limited to UACs.

8 C.F.R. 410.101

The DHS equivalent of the regulation, 8 C.F.R. 236.3(d), was enjoined by the 9th Circuit.  The court’s failure to enjoin the identical HHS provision leaves open the possibility that an agency that has absolutely no part in the adjudication of immigration relief for these children can somehow chose to de-designate them and narrow immigration benefits for which they are eligible. How this process would occur and who would be informed is not mentioned, leaving uncertainty as to how this regulation could be implemented, especially by an agency charged with caretaking rather than legal remedies.

The other significant change in the HHS regulations concerns “Flores bond hearings.” These hearings, as they were determined by the Flores litigation, allow a child to contest their HHS placement. In reality, these hearings cannot be used to get a child out of HHS custody but can be useful in getting a child stepped down from a staff secure, secure, or residential treatment facility. Flores bond hearings used to be conducted by the same immigration judges that conduct regular immigration bond hearings for adults in ICE detention. The new regulations change the arbitrator in these situations to an “independent hearing officer employed by HHS.”  In prior related Flores litigation, the 9th circuit concluded that the child had a right to an adjudicator that was independent from the entity making the determination, but that it does not have to be an immigration judge. Therefore, the 9th circuit found that this regulation as HHS has written it achieves the goal.

The 9th Circuit’s most recent Flores ruling did not make major changes to the detention of unaccompanied immigrant children. Nevertheless, there are some issues resulting from their opinion that practitioner need to be aware of. It will be interesting to see where this part of the Flores case goes next and how some of these discrepancies get rectified.