Class Action Lawsuits

The Center for Human Rights and Constitutional Law Foundation serves as class counsel for all apprehended unaccompanied minors in the US, pursuant to nationwide settlements reached in two major cases: Perez-Olano v. Johnson and Flores v. Meese. More information, resources, and copies of the settlements are available below.

Flores v. Meese Agreement

In 2014, the Center along with co-counsel including Orrick, Herrington and Sutcliffe, La Raza Centro Legal, and Law Foundation of Silicon Valley,  challenged DHS practices of detaining minors apprehended with their mothers and conditions of detention sites, in violation of the Settlement.  The case is scheduled for a hearing in federal court in Los Angeles on March 27, 2015. We are seeking a federal court order requiring that the Government release minors who were apprehended with their mothers to other relatives, responsible adults, or to licensed group homes. Below are the latest legal filings:

• Download our Memorandum in Support of Motion to Enforce the Flores Settlement of Class Action (Feb. 2, 2015)
• Download the Government’s Motion to Modify the Settlement Agreement (Feb. 27, 2015)
• Download the Government’s Response in Opposition to our Motion to Enforce the Flores Settlement (Feb. 27, 2015)
• Download the Flores Settlement, Case # CV-85-4544 (C.D. Cal. 1997)

UPDATE:

PRESS RELEASE: Human rights and children’s advocates petition federal court to halt en masse detention of refugee women and children

Lawyers for detained Central American families filed papers in the U.S. district court in Los Angeles challenging the Department of Homeland Security’s “no-release” policy for Central American women and children, some 1,000 of whom are currently detained in camps in Karnes City, Texas, Dilley, Texas, and Leesport, Pennsylvania. Read Full Release

BACKGROUND:

The Flores Settlement Agreement was the first document to establish guidelines for the treatment of children in the immigration detention system. The case originated with Jenny Lisette Flores, a 15-year-old child from El Salvador who came to the United States in 1985. Jenny fled the violence of El Salvador to be reunited with her aunt, who was living in the United States; however, she never made it to her aunt’s home. The former United States Immigration and Naturalization Service (INS) – currently USCIS, apprehended and arrested Jenny at the border: She was handcuffed, strip searched, and placed in a juvenile detention center where she spent the next two months waiting for her deportation hearing.  The INS placed Jenny in a facility that did not provide educational, nor many recreational opportunities.  Furthermore, some of the minors in the facility had to share “bathrooms and sleeping quarters with unrelated adults of both sexes.”

Although Jenny had no criminal history, was not a flight risk, and was not a threat to anyone, the INS would not release Jenny to her aunt because the INS did not allow unaccompanied minors to be released to “third-party adults.”

The court certified the class, and the resulting litigation spanned more than nine years. The case eventually reached the United States Supreme Court. The Court found that the release procedures did not violate the minors’ substantive or procedural due process rights, and that the Attorney General was acting within his discretion. Additionally, the Court “described the arrangements as ‘legal custody’ and not ‘detention’ because the facilities in which immigrant minors [were] detained [were] ‘not correctional institutions, but facilities that meet state licensing requirements for the provision of shelter care, foster care, group care, and related services to dependent children.’” The Court remanded the case to the district court. The parties reached a settlement agreement before the district court could make a final determination on the case. The resulting FSA established a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.

Flores v. Meese Settlement Agreement

In 1997, a California federal court approved the Flores settlement agreement that sets national policy regarding the detention, release, and treatment of children in INS custody. Many of the agreement’s terms have been codified at 8 CFR §§236.3, 1236.3. The agreement defines a juvenile as a person under the age of 18 who is not emancipated by a state court or convicted and incarcerated due to a conviction for a criminal offense as an adult. It requires that juveniles be held in the least restrictive setting appropriate to their age and special needs to ensure their protection and wellbeing. It also requires that juveniles be released from custody without unnecessary delay to a parent, legal guardian, adult relative, individual specifically designated by the parent, licensed program, or, alternatively, an adult who seeks custody who DHS deems appropriate. The Flores agreement and INS policy also mandate that “juveniles will not be detained with an unrelated adult for more than 24 hours.” The Flores agreement applies to all children apprehended by DHS.

2014 Motion to Enforce the Settlement

Under the settlement minors may not be detained by immigration authorities in secure facilities for more than 72 hours except in exceptional circumstances (danger to themselves or others, etc.). With the 2014 “surge” in apprehensions of immigrant minors, DHS effectively ceased compliance with several key provisions of the Flores settlement (e.g. holding children for the first 72 hours in facilities without adequate bedding, temperature control, access to toilets, food, etc.), and holding minors apprehended with mothers (but not if apprehended alone,or with fathers) indefinitely, despite the availability of other close family members prepared to care for the children if released from custody.

In 2014, the Center along with co-counsel including Orrick, Herrington and Sutcliffe, La Raza Centro Legal, and Law Foundation of Silicon Valley,  challenged the following practices:

(1) DHS’s refusing to release minors apprehended with their mothers generally arguing such release would we a threat to “national security” because it would encourage other mothers to come illegally with their children (though same standard is not applied to children apprehended with their fathers, with other adults, or alone).
(2) Failing to provide routine bond hearings for minors.
(3) Keeping minors detained with their mothers in unlicensed secure facilities.
(4) Failing to maintain written standards re minors weight loss, mental health, respiratory illnesses, fevers, etc.
(5) Holding children in Border Patrol facilities immediately after arrest without adequate temperature control, beds, toilets, sinks, food, etc.
(6) Failing to assess whether minors have special needs and to place them in facilities that can address those special needs.
(7) Failing to advise apprehended minors of their legal rights including to apply for SIJ, etc.
(8) Failing to have a written plan to address the surge and reasonable plans to release minors during a surge.

The Center is currently in settlement negotiations with DHS and will update this page once an agreement has been reached.  Download the Settlement.