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  6. Acting Secretary McAleenan on the DHS-HHS Federal Rule on Flores Agreement

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Acting Secretary of Homeland Security Kevin K. McAleenan on the DHS-HHS Federal Rule on Flores Agreement

Release Date: August 21, 2019

As Prepared for Delivery

“To help protect children from abuse, and stop this illegal flow, we must close these loopholes. This is an urgent humanitarian necessity.” – President Donald J. Trump

Good morning— thank you for joining us to discuss important action the Administration is taking to address the ongoing security and humanitarian crisis at our Southwest Border—publishing a final rule to implement the Flores Settlement Agreement.


This year, we have seen an unprecedented flow of family units, primarily from Central America, coming to our Southwest Border.  During the first 10 months of this fiscal year, U.S. Customs and Border Protection apprehended or encountered almost 475,000 families, 90% of whom crossed our border unlawfully between ports of entry—three times any previous full-year record. In the month of May alone, we saw 88,630 members of family units arrive at the border – four times the record month of the last major border surge.

As I have testified multiple times – and as experts throughout this Administration, as well as leaders from previous Administrations have explained – the driving factor for this crisis is weakness in our legal framework for immigration. Human smugglers advertise, and intending migrants know well, that even if they cross the border illegally, arriving at our border with a child has meant that they will be released into the United States, to wait for court proceedings that could take 5 years or more.

This key gap in our immigration framework comes from a 2015 reinterpretation of the Flores Settlement Agreement – an agreement that is now more than two decades old – by a Federal district court judge. The reinterpretation, which applied, for the first time, the requirements of the Flores Settlement to accompanied minors has generally forced the Government to release alien families into the country after just 20 days, incentivizing illegal entry, adding to the growing backlog in immigration courts, and often delaying immigration proceedings by many years.  

This single ruling has substantially caused, and continued to fuel, the current family unit crisis, and the unprecedented flow of Central American families and minors illegally crossing the border – until today.

After nearly two years of work by Department of Homeland Security and Health and Human Services professionals, consideration of over 100,000 comments from key stakeholders, and a comprehensive review, the Trump Administration has established a new rule to respond to the realities of current immigration flows – a rule based in the principle that families should remain together during immigration proceedings.

While the Flores Settlement Agreement is operationally outdated and does not respond to the current immigration crisis, it has many important aspects and principles – like the need for special protections for alien children and high standards for Government facilities – that were adopted as defining features of the new rule.

This is an extensive and detailed rule, but this morning, I want to highlight its four key elements.

New Rule

First and foremost, the new rule permanently establishes standards of care in custody for children and families.  These standards are high. In doing so, the rule fulfills one of the central, original purposes of the 1997 Flores court settlement to ensure appropriate care for all children.

A national standard of care ensures that care in custody of children and families is not a policy decision, and should not be subject to the ebbs and flows of state and local politics. Instead, all children in the Government’s care will be universally treated with dignity, respect, and special concern, in concert with American values and faithful to the intent of the settlement.

The facilities that will be used to temporarily house families under this rule are, appropriately, fundamentally different than the facilities where migrants are processed following apprehension or encounter.  They are campus-like settings with appropriate medical, educational, recreational, dining, and private housing facilities.

For example, the first Family Residential Center in Berks, Pennsylvania, has suites where each family is housed separately.  Furniture, bedding, towels, basic clothing, and toiletries are provided.  There is a large community “living room” that has a big-screen television, large cushioned couches and lounge chairs, a gaming area and a separate library that contains books, smaller television sets, video games, and board games.  The facility also has an entire wing dedicated to classroom learning where minors at the facility go to school five days a week.  Another wing is a medical facility where minors and their parents receive any necessary medical care, including all immunizations required for later admission to U.S. public schools.  There are also phone banks to call relatives, consulates, or attorney/representatives. 

In all FRCs, three hot meals a day are provided, and snacks are available throughout the day.  All three FRCs offer a variety of indoor and outdoor daily recreation activities for children and adults. Indoor activities offered include a variety of sports, group exercise classes, arts and crafts classes, movie nights, and seasonal and holiday-themed activities.  Outdoor recreational facilities include soccer fields, volleyball courts, and play structures. 

The FRCs have video conferencing set up for court hearings and private meeting rooms so that families can meet with their attorneys or representatives.  Child care is provided to the parents while they meet with their attorneys/representatives or attend their court hearings.  Interpreting services are available 24 hours a day via telephone.  Attorneys and representatives approved to appear at immigration court hearings are provided access to the residents at various times each week, enabling families to obtain counsel and not have to appear at immigration hearings as pro se respondents. 

The new rule will ensure that children and families in the care of Government are temporarily housed in facilities that are appropriate for their well-being. 

Second, the new rule closes the legal loophole that arose from the reinterpretation of Flores–which Congress has refused to do—allowing the federal government to house alien families together in appropriate facilities during fair and expeditious proceedings, as was done by the previous Administration in 2014 and 2015.

Prior to the 2015 court ruling that restricted our use of the FRCs, immigration proceedings averaged less than 50 days, granting those with meritorious claims prompt relief and permission to stay in the U.S., while swiftly repatriating those meritless claims—who have comprised a substantial majority of the families being processed.

Our goal remains, as in the previous Administration, to provide an expeditious result while holding families together—which particularly benefits legitimate asylum seekers with meritorious claims.  The current system, however, serves those with meritless claims, and leaves all migrants in a state of limbo for years. In recent months, the majority of final orders of removal for families who recently arrived at our border have been issued in absentia—over 85%.  This rule changes that dynamic.

The result of holding families together under the previous Administration was a dramatic reduction in the flow of unlawful crossings by families. The 2015 court ruling upended that process, and the direct and predictable result has been two family surge crises at the border, first in 2016 and now, with unprecedented levels this year.

When fully implemented, the new rule will restore the humane and effective procedures employed in 2014-2015.

Third – by closing the key loophole in Flores – the new rule will restore integrity to our immigration system and eliminate the major pull factor fueling the current crisis. 

As I stated earlier, this year has brought record volumes of family units to our Southwest Border. In the first nine months of fiscal year 2019, U.S. Customs and Border Protection observed a 469% increase in the number of family units apprehended between ports of entry on the southern border from FY 2018 numbers.

While this year’s increase is especially dramatic, family apprehensions have increased at an annual average of 72% over the past six fiscal years. In FY2013 – before Flores was reinterpreted – the total number of family units apprehended entering the United States illegally on the southern border was 14,855. By June of this fiscal year, we have already seen 390,308 family units apprehended.

By eliminating the incentive to make the journey to the United States as a family, the new rule will reduce the unprecedented volume of family units that has strained the already limited resources of our Department components.

The scale of this crisis has required us to ask a tremendous amount of our U.S. Customs and Border Patrol agents and officers, and they have stepped up. This new rule will provide them with well-deserved relief, and allow them to rededicate their resources and time towards stopping criminals crossing the border – the job they signed up to do.

And fourth, the new rule will protect children by reducing incentives for adults, including human smugglers, to exploit minors in the dangerous journey to our border, using them to exploit the system and be released into the United States.

So far this fiscal year, Border Patrol agents have identified approximately 6,000 aliens who have fraudulently presented as members of family units at the border. In response, U.S. Immigration and Customs Enforcement has conducted two DNA-testing pilot programs that  have definitively identified dozens of cases in which children had no familial relation to the adults accompanying them.

In the first operation – Operation Double Helix 1.0 – 16 out of 84 family units were identified as fraudulent based on negative DNA results. And in the second – Operation Double Helix 2.0 – 79 of 522 family units have been identified as fraudulent based on negative DNA results, to date. The egregious examples of migrants posing as family units that ICE has uncovered demonstrates the necessity of the new rule.

In May of this year, an alleged mother traveling to the United States with a two-year-old child was interviewed after U.S. Customs and Border Patrol agents noticed inconsistencies in birth certificates. Over the course of the interview, the mother admitted that the child was in fact not her own – and that the child had been left behind by its mother, who crossed into the United States in February, to be used for her entry into the United States. 

And in June of this year, an alleged mother traveling to the United States with a four-year old child admitted, after being interviewed for inconsistencies in birth certificates, that she had no familial relationship with the child. She stated that she had paid over $3,000 USD for the smuggling arrangement.

No child should be a pawn in a scheme to manipulate our immigration system – which is why the new rule eliminates the incentive to exploit children as a free ticket to this country.


This action by the Trump Administration is just one part of our overall effort, but it is an essential one that will do a great deal to address the crisis we are facing.

To emphasize again in closing, at the heart of the new rule are two core principles – that families should remain together during immigration proceedings, and that conditions for care of children must be appropriate. The new rule establishes a high, national standard of care for children and families in custody, allows the Government to keep families together for fair and expeditious immigration proceedings, restores integrity to the immigration system, and eliminates the incentive for children to be used or exploited as pawns to enter the United States.

The border security and migration challenges we face require a whole-of-government approach, and we look forward to working together, including with our international partners, to continue to address them.

Thank you, I look forward to taking your questions.

Last Updated: 11/03/2023
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