Federal District Court Denies Government’s Emergency Request to Terminate Legal Rights of Detained Immigrant Children

We serve as legal counsel for all detained immigrant children nationwide. Today, Federal District Court Judge Dolly M. Gee denied an emergency application brought by the Federal Government seeking to dismantle key provisions of the 1997 Flores Settlement Agreement, finding the Government’s application to be both “procedurally improper and wholly without merit.” (Order available through this link). On June 20th, President Trump ordered the Department of Justice to submit an emergency request that the Court set aside the rights detained immigrant children have under the terms of this important nationwide settlement. The following day, the Attorney General filed an emergency request to the Court to cancel two key provisions of the 1997 Settlement. The Government asked the court to terminate’s its obligation to provide children the option of prompt release if they are not a flight risk or danger. It also asked the Court to end its obligation to hold non-released children in licensed facilities. (Government’s Application available through this link).

“Today’s ruling is a helpful reminder that while this Administration may engage in ‘tough talk’ and careless decision-making which in this case caused the forced separation of thousands of children from their parents with no plan on how or when to reunify them, there are legal constraints that prevent needlessly harming innocent children, even refugee children,” said Peter Schey, Executive Director of the Center for Human Rights and Constitutional Law and counsel for the detained children. “President Trump should target his ‘zero tolerance’ policy on those who are a threat to country’s safety and security, not on children fleeing persecution and seeking safe haven at our borders, as is their right under domestic and international law.”

As the Court noted, “[t]he parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying well established principles of law. Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount.”

Our recently filed opposition to the Government’s emergency application is available through this link.

Our opposition was supported by the American Civil Liberties Union and the City of Los Angeles, the City of Chicago, the City of New York, and the City & County of San Francisco as amici curiae.

The Flores Settlement Agreement sets out the national standards for the care and placement of immigrant children in the custody of the federal Government. In defense of their “zero tolerance” immigration policy and separation of children from their parents, the Trump Administration has repeatedly asserted that the Flores settlement and the federal court’s interpretation of the settlement “forced” it to separate children and parents. Today’s Order makes clear, this is not true.

“The President has had his turn on the offensive against innocent children,” says Mr. Schey regarding Trump’s attacks on the Flores Settlement. “Until this Administration starts treating children with the decency and respect they deserve given their unique vulnerability as children, we will insure that the courts step in to bring normalcy and decency to the treatment of these vulnerable and powerless children. ”

CHRCL is working in collaboration with numerous organizations and volunteers to facilitate the reunification of separated children and parents, conduct ongoing monitoring efforts at all facilities where immigrant children are held, establish immediate telephonic communication between children and parents in cases where this has not taken place, restore parents’ decision-making over their children, and provide services to help parents already deported apply to return to the U.S. to be safely reunited with their children.

Learn more at www.Reunify.org.

Support for this work may be provided at this link.

 

Legal Aid Groups Sue Office of Refugee Resettlement Alleging Arbitrary “Step-ups,” Administering Detained Children Psychotropic Drugs Without Parental Consent, and Failing to Provide Due Process in Evaluating Potential Custodians for Detained Juveniles

On April 16, 2018, the Center for Human Rights & Constitutional Law, the National Center for Youth Law, and the Immigration Clinic of the University of California at Davis sued the Office of Refugee Resettlement, alleging that the following policies and practices violate the Flores settlement:

  1. ORR’s policy and practice to “step up” detained youth from shelters to staff-secure, secure and residential treatment centers without providing youth meaningful notice and an opportunity to be heard regarding the agency’s justification for step-up.
  2. ORR’s policy and practice to administer powerful psychotropic medications to detained youth regardless of their wishes and without securing their parents’ consent.
  3. ORR’s policy and practice to deny or delay detained children’s release on the grounds their parents or other available custodians are or may harm or neglect them without providing meaningful notice and an opportunity to be heard regarding a potential custodian’s actual propensity to harm or neglect.

 

Plaintiffs’ brief and publicly available evidence supporting the motion are available here.

Questions regarding this litigation or reports of similar violations may be directed to the Center’s General Counsel, Carlos Holguín, crholguin<@>centerforhumanrights.org.

Ninth Circuit Rules that Children in ORR Custody Must be Provided Custody Hearings

Today the U.S. Court of Appeals for the Ninth Circuit ruled in the nationwide class action case, Flores v. Sessions, that minors in the custody of the Office of Refugee Resettlement (ORR) must be afforded a hearing before an immigration judge to determine whether they may be continued in federal custody on grounds of dangerousness or flight-risk. The court of appeals affirmed an order of the United States District Court for the Central District of California holding that neither the 2002 Homeland Security Act nor the 2008 Trafficking Victims Protection Reauthorization Act supersede the 1997 Flores Settlement, which provides that a “minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge” in all cases except where affirmatively declined.

Writing for a unanimous court, Circuit Judge Stephen Reinhardt held, “Not a single word in either statute indicates that Congress intended to supersede, terminate, or take away any right enjoyed by unaccompanied minors at the time of the acts’ passage… Thus, we hold that the statutes have not terminated the Flores settlement’s bond-hearing requirement for unaccompanied minors.”

The Court reasoned that without bond hearings, detained immigrant and refugee “children [would] have no meaningful forum in which to challenge [the government’s] decisions,” and would be stuck in a “bureaucratic limbo.”

CHRCL General Counsel, Carlos Holguín, who argued the cause before the Ninth Circuit on behalf of the plaintiff children, praised the court for vindicating the fundamental right of children to be heard when government seeks to incarcerate them

The Ninth Circuit’s opinion is available through this link.

Materials relating to ORR’s implementing the hearing requirement are available here.

Federal District Court Rules that DHS policy of non-release for Flores Class Members and detention conditions at CBP facilities violated the Flores Settlement Agreement

Today, Federal District Judge Dolly M. Gee in the Central District of California issued an order in the nationwide class action case Flores v. Sessions. (See the full Order through this link). The Order states that DHS (including ICE and CBP) may not detain immigrant children by simply placing them into “expedited removal” proceedings and then arguing they are subject to “mandatory detention.” This detention policy violates the 1997 Flores nationwide settlement that sets out a presumption of release for minors – i.e. minors must be released unless there is substantial evidence they are a danger to themselves or others or a flight risk. While federal law enacted in 1996 states that most immigrants in expedited removal proceedings are subject to mandatory detention, in the 1997 Flores settlement the Government agreed to individually assess each apprehended minor for release and to release minors unless a minor is a flight or safety risk. Judge Gee makes clear that DHS cannot legally and consistent with the Flores settlement hold minors in so-called “mandatory detention.” From the time a minor is taken into custody, DHS and the Office of Refugee Resettlement with jurisdiction over unaccompanied minors, must take steps aimed at release to any available parents, other relatives, adults designated by a parent, or licensed group homes.

The court also ordered that DHS’s treatment of children in border patrol stations in the Rio Grand Sector are inhumane and violate the settlement. The Court ordered DHS to provide adequate space for children to sleep, to provide soap, towels, showers and other hygiene products to children, to keep air temperatures at moderate levels, to provide clean water and to provide adequate food. The court ruled that providing detained children with these minimally humane conditions is required by the settlement’s language that DHS must treat children with concern for the “particular vulnerability of minors,” as well as the settlement’s requirement that conditions of detention be “safe and sanitary.”

The Court also decided that for children detained beyond the time required to process them for possible release, DHS’s only three family detention centers (Karnes TX, Dilley TX, Berks PA) operate in violation of the settlement because they are not licensed. The settlement requires that all minors not released be housed in facilities licensed for the care of dependent children.

The court ordered DHS to nominate someone to fill the position of “Juvenile Coordinator,” a DHS employee provided for by the Flores settlement but not filled for many years by the Government.  The Order states that the Juvenile Coordinator “will monitor compliance with those terms of the Flores Agreement, which this Court has found must be enforced and shall report directly to the Court regarding the status of Defendants’ compliance.” Once the court approves a monitor, it will flush out in more detail what it wants monitored and how it wants to receive monitoring reports. Plaintiffs had requested an outside monitor. The Court stated that if the Juvenile Monitoring doesn’t help bring DHS into compliance with the settlement, appointment of an independent monitor will be considered.

You can view the full Order issued by the Court through this link.

Flores Class Counsel, Peter Schey and Carlos Holguin, have prepared a memorandum discussing this Order in full. You can access the memo directly through this link.