Analysis Law and Policy

Ninth Circuit Sides with Undocumented Migrant Children, Though the Justice Department Might Not Obey

Imani Gandy

The detention of migrant children without a bond hearing, judges agreed Wednesday, violates the consent agreement the government agreed to be bound by in order to resolve this lawsuit, which originated as a class action in 1985 under the case name Flores v. Meese.

On Wednesday, the Ninth Circuit Court of Appeals ruled that the United States government had violated a 20-year-old settlement agreement by denying certain migrant children the right to a bond hearing after they are detained, so that they could fight their detention at home with their family or loved ones, instead of being forced to remain in prison-like detention centers.

The government has insisted throughout the case that the settlement agreement, which requires the government to afford bond hearings to undocumented minor children, was superseded by two federal statutes. But neither the district court, nor a three-judge panel of the Ninth Circuit, agreed.

In 2014, an influx of unaccompanied migrant children escaping Central America prompted Immigration and Customs Enforcement (ICE) to enact a family detention policy. Under this policy, plaintiffs contend in their motion, all “female-headed families,” including children, were detained in unlicensed facilities for however long it took to determine whether they were entitled to remain in the United States.

Affidavits from the plaintiffs paint a grim picture.

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Detained children and women often spent three days in Border Patrol holding cells crammed in with 100 other women and children, according to the affidavits. They slept on a dusty floor (if there was room to sleep on the floor), and weren’t given anything to keep warm aside from a cover of aluminum foil. If there wasn’t room to sleep on the floor, children would sleep standing up or not at all.

The holding cells often had two toilets and no waste basket, so toilet paper, sanitary napkins, and tampons littered the floor. Some children weren’t given any soap to use and weren’t permitted to bathe or brush their teeth. The detainees say they were given inadequate food and drink, with one detainee complaining that the water was so chlorinated that it was undrinkable.

Detainees called the cells “ice boxes,” due to the extreme cold they were forced to endure with no access to clothing, blankets, or beds.

And, of course, none of the children involved were afforded a bond hearing.

This situation, the judges agreed Wednesday, violates the consent agreement that the government agreed to be bound by in order to resolve this lawsuit, which originated as a class action in 1985 under the case name Flores v. Meese. The lawsuit was originally brought on behalf of a group of plaintiffs including Jenny Lisette Flores, a 15-year-old refugee from El Salvador, to challenge the harsh policies of the now-defunct agency the Immigration and Naturalization Service (INS). These policies required the the detention of children who were suspected to be undocumented in secure prison-like facilities. The children’s release was conditioned upon their parents or legal guardians submitting to immigration authorities for interrogation and possibly deportation, according to the original complaint filed in 1985. In essence, the INS was using these children as leverage to ensnare and deport their undocumented parents. The INS would not release the children to an adult relative; the parent or guardian was required to turn themselves in. If they didn’t do so, their children were incarcerated in facilities that, according to plaintiffs, provided no education, recreation, or visitation rights for the detained children, and were forced to live in squalor with unrelated adults.

In 1997, in order to settle the lawsuit, the government signed a consent decree. That consent decree set minimum standards for the detention, housing, and release of undocumented children—whether accompanied or unaccompanied—who are detained by the government anywhere in the country. It also required the government to pursue a “general policy favoring release” of such children. Although the INS no longer exists, the Flores settlement binds the current iteration of immigration agencies: Customs and Border Protection (CBP) and ICE.

The key provision of the Flores settlement in this most recent development is paragraph 24A, which guarantees that a minor facing deportation must be afforded a bond redetermination hearing before an immigration judge, unless the minor doesn’t want one. A bond redetermination hearing is slightly different than a bond hearing: A federal immigration statute allows an undocumented person to be released on a $1,500 bond while they await a deportation hearing. But because many undocumented people can’t afford to pay that much, the Flores settlement requires that undocumented minors be permitted to seek a bond redetermination hearing to demonstrate that the bond amount should be reduced and the minor released from detention.

In 2015, the Flores plaintiffs filed documents requesting that a federal court in Los Angeles enforce the consent decree against the government, arguing that the Flores settlement “guarantees children whom the Government refuses to release the right to a bond redetermination hearing … as a procedural check against wrongful detention.”

“The Settlement requires ICE to take affirmative steps to release a child to a parent, close adult relative, or other qualified custodian …. ICE’s no-release policy as applied against [minors] apprehended with their mothers breaches defendants’ duty to minimize children’s detention,” the motion read. “In addition, the Settlement affords [minors] the right to be released first to their parents. ICE’s categorical refusal to consider releasing [children’s] mothers denies [the children] their right to release to the care and protection of their preferred custodian.”

In response, the government has insisted that Paragraph 24A of the Flores settlement—which affords all detained undocumented children a bond redetermination hearing—no longer applies to unaccompanied minors because it has been superseded by two federal statutes: The Homeland Security Act in 2002 (HSA) and the Trafficking Victims Protection Reauthorization Act in 2008 (TVPRA) granted exclusive authority over the care and placement of unaccompanied minors to the Office of Refugee Resettlement of the Department of Health and Human Services (ORR). The government argues, in other words, that the HSA and TVPRA relieve it of the duty to provide bond redetermination hearings to unaccompanied minors. And when the Central American refugee crisis hit, immigration authorities under the Obama administration decided that they no longer had a responsibility to do just that.

But plaintiffs argued that the ORR was not exempt from compliance with the settlement agreement.

And on Wednesday, both the district court and the Ninth Circuit agreed.

“'[T]here is no reason why [the] bureaucratic reorganization’ enacted by the HSA and TVPRA ‘should prohibit the government from adhering to the Flores Settlement,’” Circuit Judge Stephen Reinhardt wrote for the unanimous panel. “In enacting [those laws], Congress desired to better provide for unaccompanied minors,” he said.

“Depriving these children of their existing right to a bond hearing is incompatible with such an aim,” he continued. “The government remains bound by its bargain in the Flores Settlement.” Last year, he noted, “we held that the Flores Settlement applies to both accompanied and unaccompanied minors.”

What the result of the Ninth Circuit’s ruling means immediately is not clear. The Department of Justice could appeal the ruling to the entire Ninth Circuit, which, given the hostility the Department of Justice in the Trump administration has already shown to immigrants, would not be a surprise. In his short time as attorney general, Jeff Sessions has shown an outright contempt of due process for immigrants and courts that rule in their favor. It’s hard to imagine his Department of Justice complying with the Ninth Circuit’s order—much easier, in fact, to see the Trump administration continuing this fight all the way to the U.S. Supreme Court.

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