Reno v. Flores: 1993 Ruling, 1997 Settlement, and 2024 Rule

Reno v. Flores is the 1993 U.S. Supreme Court decision that upheld the federal government’s authority to keep unaccompanied immigrant children in institutional custody when no parent, legal guardian, or close adult relative was available to take them. The government won the constitutional question, but the litigation continued, and a 1997 settlement produced from the same case established the national standards that still govern how detained immigrant children are housed, treated, and released today.¹

What the 1993 Ruling Decided

A class of immigrant children in federal custody challenged a 1988 Immigration and Naturalization Service regulation, codified at 8 C.F.R. § 242.24, that limited release to a parent, legal guardian, or close adult relative. If none of those people came forward, the child stayed in detention while the immigration case proceeded. The children argued this violated the Fifth Amendment’s Due Process Clause and that the government had to place each child in the least restrictive setting available, with an individualized hearing before institutional custody.¹

Justice Scalia, writing for the majority, rejected both claims. Children in government custody have no constitutional right to be released to a private party who isn’t a parent, guardian, or close relative. Because the government provided food, shelter, and medical care, institutional detention met constitutional standards. The right the children were asking the Court to recognize was, in the majority’s view, too novel to count as a fundamental liberty rooted in American legal tradition.¹

With no fundamental right at stake, the Court applied the lowest level of scrutiny and found the regulation reasonably tied to the government’s legitimate interest in protecting children’s welfare and ensuring their appearance at hearings. The Due Process Clause, the majority said, requires a constitutionally adequate environment, not the best one available.¹

The 1997 Flores Settlement Agreement

The government won at the Supreme Court, but the case kept moving in the lower courts. In 1997, the parties settled. That settlement established binding national standards that go well beyond what the Court had held was constitutionally required, and it remains enforceable under the supervision of a federal judge in the Central District of California.²

Conditions of Custody

Immediately after arrest, children must be held in facilities that are safe and sanitary and that account for the particular vulnerability of minors. That means access to toilets and sinks, drinking water and food, emergency medical care, adequate temperature control and ventilation, and enough supervision to protect children from other detainees. Unaccompanied children must be separated from unrelated adults, and if immediate separation isn’t possible, a child cannot be held alongside an unrelated adult for more than 24 hours.²

Once a child is transferred to a licensed program, such as a state-licensed shelter, group home, or foster home, further requirements apply. Licensed programs must provide a medical exam within 48 hours of admission, routine dental care, prescribed medications, mental health services when needed, daily recreation, and the right to make phone calls and send and receive uncensored mail.²

Order of Preference for Release

The settlement sets a priority list for releasing a child from custody, in this order:

Parent
Legal guardian
Adult relative such as a sibling, grandparent, aunt, or uncle
Adult designated by the parent or guardian through a signed declaration
Licensed program willing to accept legal custody
Other adult or entity seeking custody, at the government’s discretion, when no other alternative to long-term detention exists

The government cannot skip an available parent and place the child elsewhere, and it cannot default to institutional custody when a qualifying relative is willing to take the child.²

Transfer Timeframes and Notice

Children cannot be held in short-term custody indefinitely. The settlement requires transfer to a licensed program within three days when one is available nearby with space, or within five days otherwise. Emergencies, surges of arriving minors, remote locations, and interpreter needs can push those numbers, but placement must still happen as quickly as possible. Every child in custody must promptly receive a written notice of rights, including the right to a bond hearing where applicable, and children who are not released must be told about judicial review and given a list of free legal service providers.²

Who Runs the System Now

The INS handled both enforcement and care of unaccompanied children when the settlement was signed. That ended in 2002. The Homeland Security Act dissolved the INS and moved responsibility for the care of unaccompanied children to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services. The same statute created the legal definition still used today: an “unaccompanied alien child” is someone under 18, without lawful immigration status, and without a parent or legal guardian in the United States available to provide care and physical custody.³

The Trafficking Victims Protection Reauthorization Act of 2008 tightened the timeline further. Any federal agency holding an unaccompanied child must transfer that child to HHS custody within 72 hours. The same statute requires HHS to place children in the least restrictive setting that serves their best interest, forbids secure placement unless the child is a danger to themselves or others or faces criminal charges, and requires monthly review of any secure placement.⁴

Federal law also directs HHS to ensure, “to the greatest extent practicable,” that children in its custody or in DHS custody have legal counsel for their immigration proceedings, and to make every effort to use pro bono attorneys. That language gives HHS significant discretion, and children in immigration proceedings have no absolute right to a government-appointed attorney. Many still appear without one.⁵

How Children Are Released to Sponsors

Once a child is in ORR custody, the agency vets potential sponsors before releasing the child. ORR sorts sponsors into three categories: Category 1 covers a parent or legal guardian, including qualifying stepparents with legal or joint custody; Category 2 covers siblings, grandparents, aunts, uncles, first cousins, and other immediate relatives; Category 3 covers distant relatives, unrelated adults, and organizations.⁶

All potential sponsors and every adult living in the sponsor’s household must undergo a public records check, a sex offender registry check, and an FBI fingerprint-based criminal history check. Child abuse and neglect registry searches and state or local criminal history reviews are added when specific concerns arise. Sponsors verify identity, address, and relationship to the child and provide documentation for every adult in the household. Home studies are required in all Category 3 cases and in any Category 1 or 2 case where the sponsor isn’t biologically related to the child. Category 3 sponsors who cannot show a genuine preexisting relationship face enhanced vetting on top of the mandatory home study.⁶

The 2024 Foundational Rule

For most of its life, the Flores framework existed in a settlement agreement enforced by a single federal judge rather than in federal regulation. The 2024 HHS Foundational Rule, published at 89 FR 34384 and effective July 1, 2024, wrote many of the settlement’s protections into permanent regulation. It codifies standards for safe and sanitary facility conditions, including toilets, showers, drinking water, temperature control, and adequate supervision. It also created a new Unaccompanied Children Office of the Ombuds within HHS, an independent office with authority to receive complaints from children, sponsors, and the public, investigate them, conduct site visits, and publish an annual report. Its recommendations to ORR are non-binding, but the office can request documents and interview staff.⁷

The settlement contains a provision stating it will terminate 45 days after final regulations implementing the agreement are published. The government acknowledged, though, that any termination triggered by this rule would only apply to ORR-related provisions and would not automatically end the portions of the settlement governing other federal agencies, particularly DHS.⁷

Where the Case Stands Now

The Flores Settlement Agreement is still in effect. In May 2025, the Department of Justice moved to terminate it, arguing that the 2024 Foundational Rule had made the settlement unnecessary. In August 2025, Judge Dolly Gee denied the motion, finding that the government was not in sufficiently substantial compliance to justify termination and that no meaningful change in conditions had occurred since its last attempt to end the agreement. The government appealed to the Ninth Circuit, where the case remained pending as of early 2026.

Compliance has stayed contested. By January 2026, DHS had held more than 900 children in family detention centers beyond 20 days, with roughly 270 of those children detained longer than 40 days. The gap between the settlement’s requirements and actual conditions is the reason courts have declined to end the agreement. Progress, as the judge put it, is not the same as compliance.

1
Justia. Reno v. Flores, 507 U.S. 292
2
Administration for Children and Families. Flores Settlement Agreement
3
Office of the Law Revision Counsel. 6 USC 279 – Children’s Affairs
4
Office of the Law Revision Counsel. 8 USC 1232 – Enhancing Efforts to Combat the Trafficking of Children
5
Office of the Law Revision Counsel. 8 USC 1232 – Enhancing Efforts to Combat the Trafficking of Children
6
Administration for Children and Families. ORR Unaccompanied Children Bureau Policy Guide Section 2
7
Federal Register. Unaccompanied Children Program Foundational Rule