The Department of Homeland Security previously released a rule purporting to end the Flores settlement agreement. Judge Gee, who oversees the Flores settlement, issued an order last spring rejecting the government’s “application for relief” from Flores. That decision made clear why the government’s regulation is invalid. (Judge Gee issued a ruling to this effect last week.) The regulation does not effectuate the Flores settlement, and it is not consistent with it.

The Flores settlement agreement was the result of litigation against DHS regarding its treatment of minors in immigration proceedings. Under the agreement, the government must release children within 20 days of holding them. (The decree actually requires the government to “release a minor from its custody without unnecessary delay,” and courts have construed the injunction to require release within 20 days.)

The Flores settlement agreement is part of a consent decree. In other words, the government cannot just modify or change the agreement at will. Rather, it is a court approved (and therefore court-enforced) settlement. For that reason, DOJ previously appealed to the district court judge overseeing the settlement to release DHS from the Flores agreement, at least in certain cases (specifically, when a minor crossed the border with family). Judge Gee rejected the Department’s application, describing it as “a cynical attempt, on an ex parte basis, to shift responsibility for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”

In order to understand why the government’s regulation is invalid, it’s important to unpack that ruling further.  Judge Gee rejected the government’s claim that the government did not have to follow the Flores agreement because the government wanted to be able to detain minors with families for longer than 20 days. The government’s argument to Judge Gee was that intervening legal developments since Flores, as well as intervening factual circumstances, required modification (or at least scaling back) of the Flores agreement.

The intervening legal developments that the government pointed to in its application to Judge Gee included the legal challenges to family separation, and specifically the judicial rulings that DHS and DOJ’s policy of separating families was unlawful. It’s important here to understand the mechanics of family separation: The administration’s position was that immigration statutes require DHS to release unaccompanied minors into the custody of the Office of Refugee Resettlement (which is part of the Department of Health and Human Services, not DHS). And, the administration claimed, when DOJ (even temporarily) took custody of a child’s parent to prosecute them for unlawful entry, the child became unaccompanied, and therefore had to be transferred into the custody of ORR. And when the parent returned to DHS, presto! Their child was no longer there.

The intervening factual developments that the government pointed to in its application to Judge Gee were the “crisis” at the border (and specifically the increase in the number of border crossings, including by families).

Judge Gee’s order rejecting the government’s “application for relief” rejected the government’s argument that either the intervening legal developments (including the statutory apparatus that placed unaccompanied minors into the custody of ORR) or intervening factual developments (including the alleged crisis at the border) relieved the government’s obligations to comply with the Flores agreement.

The government’s effort to get around the Flores agreement by regulation deserved the same fate. It is true, as the government notes, that the Flores agreement can be terminated by regulations, but the only regulations that can terminate the Flores agreement are ones *that are consistent with the agreement and carry it out*.

And the government’s arguments in the new regulation for why it can detain minors indefinitely—and much longer than 20 days—are the very same arguments that Judge Gee concluded did not relieve the government of its obligation to abide by the Flores settlement, agreement, including the requirement that the government release minors within 20 days. The proposed new rule cites the “border crisis” as a reason for the regulatory change. And it also points the “enactment” of the statutes governing unaccompanied minors as a reason for the regulatory change.

Judge Gee was right to invalidate the regulation.

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