LOS ANGELES (CN) — A federal judge indicated Tuesday she’ll order the Trump administration to face claims it unnecessarily prolongs detention of unaccompanied immigrant children in federal custody, gives them psychotropic drugs and undermines attorney access.
Attorneys for the children have said the Office of Refugee Resettlement (ORR), the federal agency responsible for the care of unaccompanied migrant children, is administering psychiatric treatment without consent and limiting administrative appeal of children’s release denials, all in violation of federal law.
The children who are "stepped up" to more restrictive custody settings aren’t given meaningful notice, attorneys said, and are denied due process rights to challenge their placement.
“Youth housed in shelters report being awakened in the small hours of the morning and soon thereafter finding themselves confined in juvenile detention centers or psychiatric facilities, where they suffer irreparable harm inherent to confinement,” attorneys said in a motion for summary judgment filed in the Central District of California.
Under the landmark 1997 Flores settlement between immigrant rights groups and the federal government, ORR must place children in the “least restrictive” settings and release them ”without unnecessary delay” to qualified family or approved custodians.
Alexandra Mayhugh of the Cooley firm, an attorney for the children, appeared by video conference before U.S. District Judge Dolly Gee on Tuesday that ORR is placing children in “jail-like settings” while it conducts a lengthy review on whether to “step down” a child from more restrictive custody settings.
In court papers, plaintiffs’ counsel said neither the Flores agreement nor the Trafficking Victims Protection Reauthorization Act (TVPRA), which ORR was established to implement, explain how long it should take the agency to determine whether a custodian is fit or how long a child can be held in restrictive settings.
“ORR’s unnecessary delay and refusal to release children to qualified custodians inflicts grievous injury,” plaintiffs’ counsel wrote. “And as days of detention stretch into weeks and months, frustration and trauma often culminate in behaviors indicative of their deteriorating emotional state.”
Gee said in an oral tentative ruling Tuesday that res judicata doesn’t apply to the parties’ claims and that she’ll likely grant partial summary judgment allowing Flores violation claims put forth by the class of “stepped up” children to advance.
U.S. Department of Justice attorney W. Daniel Shieh told Gee that plaintiffs seek due process rights that exceed both congressional mandate and what was negotiated in the Flores agreement.
Attorneys for ORR also made the same argument in their motion for summary judgment.
“Under settled principles of res judicata, the settlement precludes the step-up class from raising a new procedural due process claim to seek new procedures not required under the settlement for this class, and imposing such procedures would deprive defendants of the benefits that they negotiated under the settlement,” the motion said.
Gee said she’ll likely rule that children don’t have to be notified or given a hearing before being stepped up and that plaintiffs are not entitled to “automatic” appeal hearings on all custodian denials, adding that it's normal for potential sponsors to have to demonstrate their “suitability.”
On plaintiffs’ claim that ORR is violating the trafficking victims protection law, Gee said she’ll likely grant the federal government summary judgment as it’s unclear what remedy the children’s’ attorneys seek at this stage.
Shieh also decried plaintiffs’ claims that ORR is acting in bad faith when it reviews custody decisions.
“Not every grant of discretion involves bad faith,” Shieh told Gee.
Plaintiffs’ counsel Carlos Holguin of the Center for Human Rights & Constitutional Law also said Tuesday that ORR is retaliating against children who challenge agency decisions by cutting access to legal services funds.
Holguin said ORR is making children’s records or children themselves inaccessible to attorneys and thus prolonging children’s’ detention and “insulating” the agency from legal review.
“This is an example of self-serving policy,” Holguin told Gee.
Gee said plaintiffs’ claim is likely a triable issue of fact and that granting summary judgment would likely not be appropriate at this stage.
Gee took the motions under submission Tuesday and said she would issue a ruling after the parties report back in February on their efforts to settle all claims. The parties must file a joint status report by Feb. 1.
Lead plaintiff Lucas R., a Guatemalan boy, was released from detention in 2018 after more than 200 days in detention at Shiloh Residential Treatment Center in Texas, according to his attorneys.
In a sworn statement, Lucas told the court agency staff at the Hacienda del Sol facility in Youngtown, Arizona, had given him psychotropic drugs without his consent. He was later transferred to Shiloh without notice or an opportunity to appeal.
After the Lucas R. v. Azar class action was filed in 2018, attorneys for the Trump administration moved to dismiss the complaint on grounds that California was an improper venue for the matter but Gee — who has been overseeing the Flores settlement for years — denied the motion.
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