The Ninth Circuit heard argument nearly three months after it struck down President Donald Trump’s executive order banning travel from seven majority-Muslim countries.
Justice Department attorney Sarah Fabian told the appeals panel that giving children bond hearing would be “just bandaging the wrong leg. Providing a bond hearing is not a solution.”
The appeals panel did not indicate how it might rule. Though Senior Circuit Judge A. Wallace Tashima and Ninth Circuit Judge Stephen Reinhardt signaled moderate agreement with the plaintiffs, Ninth Circuit Judge Marsha Berzon seemed to ardently agree with both sides, only to later demolish each of their arguments.
The government’s appeal, led by Attorney General Jeff Sessions, is over a 1997 settlement out of then-titled Jenny Lisette Flores v. Edwin Meese, et al., filed in 1985.
The landmark case was brought on behalf of a class of unaccompanied minors fleeing torture and abuse in Central America who were detained by the Immigration and Naturalization Service. The INS had a policy of releasing unaccompanied minors only to parents or legal guardians; the lawsuit sought to allow release to non-parental or private guardians, so the children would not languish in detention.
In the settlement the parties agreed that detained children would have the right to a bond hearing before an immigration judge to determine their suitability for release. But the government claims that laws passed since 1997 have nullified the deal’s bond hearing requirement.
Congress enacted the Homeland Security Act in 2002, which transferred custody of detained children from the INS (which was superseded by the Department of Homeland Security) to the Department of Health and Human Services.
In 2008 Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act, which provides guidelines to HHS for placing unaccompanied minors with suitable guardians to ensure a child’s safety.
Based on those laws, the government declared the settlement’s bond hearing provision null, saying that a bond hearing ran afoul of the Wilberforce requirement that HHS make release decisions based on a child’s safety. In 2015 the government announced that it would do away with bond hearings for detained children.
The following year, the Flores plaintiffs moved to enforce the settlement agreement, in Los Angeles Federal Court.
On President Trump’s inauguration Day, U.S. District Judge Dolly Gee granted the Flores plaintiffs’ motion, finding that the new laws had not nullified the provision.
One month later, the Ninth Circuit granted the government’s motion to stay Gee’s order pending appeal.
The plaintiffs say that when Congress transferred custody of detained children to HHS through the Homeland Security Act, it included a “savings clause” that transferred all of the INS’s legal obligations — including the settlement — to its successor agencies.
Gee agreed that the savings clause preserved the bond hearing provision, and that the provision did not conflict with the Wilberforce safety requirements.
Gee also ruled that due process requires that unaccompanied children be given a bond hearing, as denying it could result in their indefinite detention.
On Tuesday, Judge Berzon repeatedly questioned the Justice Department’s Fabian about Gee’s due process ruling.
“There certainly seems to be a major understanding that there needs to be significant due process if you’re going to treat a child that way, and there isn’t any in the TVPRA,” Berzon said. “For a child who is actually being held in what is essentially a jail, you think that would be adequate? For juvenile detention? It’s essentially juvenile detention.”
Fabian said that if HHS procedures were deemed insufficient for guaranteeing due process, they could be modified. But Berzon seemed dissatisfied.
“If it’s sufficiently severe, then one solution to that problem is to say the TVPRA wasn’t overruling the provision,” she said.
Berzon then demolished Fabian’s key argument: that if Congress had intended for detained children to have bond hearings, it would have spelled it out in the TVPRA, which makes no mention of them.
“That’s one possibility. And another possibility is they knew about the settlement agreement and they knew these children were to have bond hearings, and if they were trying to overrule it they would have said that,” Berzon said. “The question is whether the existence of that gap tips our understanding of these two possibilities of what Congress was doing in the TVPRA.”
Circling back to the district court finding, plaintiffs’ attorney Carlos Holguin told the panel that HHS must provide due process to detained children through a bond hearing.
“Most of time we don’t know why [HHS] is refusing to release these minors. They’re simply left to twist in the wind for months at a time and in some cases over a year, not knowing why or what its evidence is for continuing to detain them,” Holguin said. “At a bare minimum, a bond hearing would require the government to articulate in some clear, definable way why it is it continues to detain a particular class member.”
Holguin is with the Center for Human Rights and Constitutional Law in Los Angeles.