A “Binary Choice” for Families in ICE Detention: Examining the Legitimation Costs of Litigating the Flores Settlement Agreement

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 23-year-old Flores Settlement Agreement (“FSA”) to argue for the release of migrant children detained by Immigration and Customs Enforcement. But 23 years of litigating the FSA and consistent 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. Drawing on critical legal and socio-legal scholarship, this article refutes parental “choice” and highlights how relying on formal legal tools has truncated advocates’ aspirations for social change and legitimated the broader system of immigration detention. 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.