A 'binary choice' for families in ice detention: examining the legitimation costs of litigating the flores settlement agreement

• Author: Gina Starfield
• Position: J.D. Candidate, 2022, Harvard Law School; MSc Refugee and Forced Migration, University of Oxford, 2017; B.A. Ethnicity, Race & Migration, and Political Science, Yale University, 2016
• Pages: 399-429

A “BINARY CHOICE” FOR FAMILIES IN ICE

DETENTION: EXAMINING THE LEGITIMATION

COSTS OF LITIGATING THE FLORES

SETTLEMENT AGREEMENT

GINA STARFIELD*

ABSTRACT

In the spring of 2020, as the world came to terms with the dangers of the

COVID-19 pandemic, immigrant advocates in the United States turned to the

courts and the twenty-three-year-old Flores Settlement Agreement (“FSA”)

to argue for the release of immigrant children detained by Immigration and

Customs Enforcement. But twenty-three years of litigating the FSA and con-

sistent non-compliance with its terms had whittled away the FSA’s protection

for accompanied children. Rights under the FSA became a “binary choice:”

parents could choose to allow ICE to release their children and separate

their family or they could waive their children’s right to freedom under the

FSA and maintain family unity inside detention. Drawing on critical legal

and socio-legal scholarship, this Note refutes parental “choice” and high-

lights how relying on formal legal tools has truncated advocates’ aspirations

for social change and legitimated the broader system of immigration deten-

tion. Instead of ending family detention, litigating the FSA has insulated it

from critique. With President Biden signaling a willingness to end family

detention, advocates must shift away from litigation towards advocating for

durable legislation and formal regulation.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400

II. THE FLORES SETTLEMENT AGREEMENT . . . . . . . . . . . . . . . . . . . 402

III. THE PROMISES AND PITFALLS OF LITIGATION . . . . . . . . . . . . . . . . 405

* J.D. Candidate, 2022, Harvard Law School; MSc Refugee and Forced Migration, University of

Oxford, 2017; B.A. Ethnicity, Race & Migration, and Political Science, Yale University, 2016. © 2021,

Gina Starfield.

399

IV. IMPLEMENTING A “BINARY CHOICE” DURING THE COVID-19

PANDEMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408

V. TURNING TO THE COURTS TO UPHOLD THE FSA’S PROMISE TO

ACCOMPANIED CHILDREN AND CREATING A “BINARY CHOICE”. . . . 412

A. The Start of Family Detention . . . . . . . . . . . . . . . . . . . . 412

B. The “2014” Surge in Families Crossing the Border . . . . 413

C. President Trump’s Zero Tolerance Policy ........... 416

D. Regulatory Attempt to End the FSA. . . . . . . . . . . . . . . . 418

VI. THE LEGITIMATION COSTS OF LITIGATING THE FSA . . . . . . . . . . . 420

VII. TURNING TO THE STREETS AND THE HILL . . . . . . . . . . . . . . . . . . 423

VIII. CONCLUSION ..................................... 427

When we first arrived at Karnes, on July 12, 2020, officers in blue uni-

forms went through various documents with us. . .They stated that. . .-

they were giving us an opportunity. . .I think that what they suggested

to us is not a decision any family could be satisfied with. If ICE is only

releasing part of the family, that means they are not actually releasing

the family. We are a family and we have to be together.

—Declaration of C.M.

1

I. INTRODUCTION

In the spring of 2020, as the world came to terms with the dangers of the

COVID-19 pandemic, immigrant advocates in the United States turned to the

courts and the twenty-three-year-old Flores Settlement Agreement (“FSA”)

2

to argue for the release of immigrant children detained by U.S. Immigration

and Customs Enforcement (“ICE”). Advocates filed a request for a temporary

restraining order and a preliminary injunction to enforce the FSA on behalf

of both unaccompanied immigrant children in the custody of the Office of

Refugee Resettlement (“ORR”) and accompanied immigrant children

1. Amicus Br. 51, Flores v. Barr, 2:85-cv-04544-DMG-AGR (C.D. Cal. Aug. 6, 2020), ECF No. 908.

2. Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17,

1997).

400 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:399