The US Court of Appeals for the Ninth Circuit Tuesday blocked a set of regulations from the Department of Homeland Security (DHS) that were set to significantly reduce the limits on detention for minors taken into custody with a family member or guardian (“accompanied minors”).

In coming to the decision, the court held to the standards set forth by the Flores Settlement Agreement (FSA), a consent decree with protections for minors in immigration custody that the US government agreed to comply with in 1997. The FSA “established nationwide standards for the detention, release, and treatment of minors by US immigration authorities,” creating a “presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards.” In 2015, a federal judge decided the protections applied to both unaccompanied and accompanied minors.

By the FSA’s own terms, it terminates after the government’s publication of final regulations implementing it. DHS’s final regulations issued in 2019 were set to implement, and thus terminate, the FSA. The regulations sought to change the law surrounding accompanied minors.

For example, one shift since the FSA entered into force in 1997 has been the 2015 judicial interpretation of the agreement as applying to accompanied minors, i.e., juveniles encountered with their parents or legal guardians. DHS strongly disagrees with that interpretation and disagrees that the FSA provisions were suited to handling the challenging circumstances that are presented—in exponentially more cases than in 1997—when aliens are apprehended in family units.

Ultimately, the court found that the new regulations relating to accompanied minors were inconsistent with the FSA. It found that the government went beyond the FSA in attempting to detain families together, rather than permitting the placement of parents and children together.

The government’s intent is not to place families together in an open setting, but to “detain” them together for “enforcement” purposes. We therefore conclude that the new regulations regarding licensed facilities are inconsistent with the Agreement.

The court affirmed the district court’s order enjoining the final regulations and approved its conclusion that the FSA was not terminated by the adoption of the regulations.