by Lonnie Burton

On January 20, 2017, the United States District Court for the Central District of California granted a motion seeking to enforce a nearly-two decades old consent decree and force the United States government to grant bond redetermination hearings to accompanied and unaccompanied immigrant children who have been held by U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) for as much as three years without bond.

The consent decree at issue stemmed from a case filed in 1985 involving a class led by Jenny L. Flores, and which resulted, in part, in a settlement agreement which mandated that "a minor in deportation hearings shall be afforded a bond redetermination hearing before an immigration judge in every case." The government contended that this clause no longer applies because when Congress enacted the Homeland Security Act in 2002, it created rules which superseded the Flores Agreement, including a clause which prevents "release of unaccompanied alien children upon their own recognizance."

The federal district court granted the motion to enforce the Flores Agreement, finding that the Homeland Security Act was silent on the issue of bond hearings, or whether other provisions of the Act replaced the bond hearing requirements. The court contrasted this silence with other federal immigration laws and regulations, such as 8 U.S.C. § 1126(a)(2), which explicitly reference bond hearings.

"In short, the bond hearing provision of the Flores Agreement was not superseded by operation of law," the court ruled. "Moreover, the Flores Agreement remains consistent with federal immigration laws requiring bond hearings for immigration detainees."

The motion to enforce was prompted by the relatively recent influx of unaccompanied minors across the southern border, and the government's subsequent action in detaining some of these children without a bond hearing for as long as three years.

According to the Flores class counsel, there are roughly 200 to 300 unaccompanied children currently detained by ICE and DHS nationwide. The Flores Agreement, the court ruled, remains in full force and effect, and the DHS "shall forthwith comply with Paragraph 24A of the Flores Agreement," and provide statutory bond hearings to these immigrant children, the court ordered. See Flores v. Lynch, U.S.D.C. (C.D. Cal.), Case No. CV-85-4544-DMG, January 20, 2017.

Related legal case