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.

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.