The increase in enforcement actions undertaken by the federal government over the last thirty years has resulted in a broad net of enforcement that has captured vulnerable populations not previously subjected to detention, such as non-criminal immigrant children and their families. The detained children have been subjected to inhumane conditions and abuse by federal authorities and contractors. Unfortunately, few procedural safeguards exist to protect these children. For this reason, the United States government’s treatment of non-criminal immigrant children who are in detention and removal proceedings is of paramount concern.

Since 1997, the treatment of children in federal custody has been governed by the Flores v. Reno Settlement Agreement (FSA). As the INS often did not comply with the requirements, Congress twice passed legislation to reform the immigration system as it applied to unaccompanied children. Later, the Department of Homeland Security began detaining children and their families in violation of the standards set forth in the FSA. Another settlement was reached to address the treatment of those children.

This Comment reviews the history of the detention of unaccompanied minors, the legislation passed by Congress that implemented a system to protect unaccompanied minors in immigration custody, and finally, the recent history of detaining accompanied children and their families. Arguably, the current system does not ensure adequate protection for all children. Moreover, the DHS continues to have broad discretion to again open family detention facilities in the future. Therefore, congressional action is needed to ensure that all children are protected and have access to necessary services. Congress should pass legislation that codifies the settlement agreements into federal law, thereby establishing a clear national policy for the treatment of immigrant children in federal immigration custody.

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