Feds Can’t Back Out of Landmark Deal Protecting Immigrant Children

FILE – In this Dec. 11, 2018 file photo, an asylum-seeking boy from Central America runs down a hallway after arriving from an immigration detention center to a shelter in San Diego. (AP Photo/Gregory Bull, File)

(CN) — The Trump administration failed to satisfy the requirements of a landmark settlement when it sought to impose new rules governing the detention and release of immigrant children in federal custody and therefore cannot terminate the agreement, a Ninth Circuit panel ruled Tuesday.

The 1997 Flores settlement sets standards for U.S. immigration authorities overseeing the detention, release and treatment of all accompanied and unaccompanied immigrant children in federal custody. It requires U.S. immigration agencies to promptly release immigrant children to parents or guardians or to care for them in non-secure, safe and sanitary facilities until their cases are resolved. 

Immigrant children who are in deportation proceedings and not released are also entitled to a bond hearing under the Flores settlement.

Citing a surge of immigrants crossing at the U.S. Mexico border, the Trump administration moved in 2019 to terminate Flores with new rules governing U.S. Department of Homeland Security’s detention conditions and U.S. Department of Health and Human Services’ immigration proceedings for children picked up at the border.

The rule would have allowed Homeland Security to detain immigrant youth traveling with relatives or guardians for as long it takes to resolve their immigration cases, as well as placement in facilities not licensed to house children.

The Flores settlement does allow federal agencies to place immigrant children in secure facilities if a child has been charged with a crime or when an “influx of minors” overwhelms existing facility capacity. However, the federal government must still resolve children’s cases “expeditiously.”

In September 2019, U.S. District Judge Dolly M. Gee, the judge overseeing the Flores settlement, rejected the government’s attempt to implement the new rules, invalidated them entirely and said that only Congress can overturn the 1997 agreement.

In a 38-page published opinion by U.S. Circuit Judge Marsha Berzon, the Ninth Circuit panel affirmed parts of Gee’s ruling, including that new regulations relating to immigrant children travelling with adults don’t comply with Flores.

“The DHS regulations both limit the circumstances under which accompanied minors may be released and ‘create an alternative to the existing licensed program requirement for U.S. Immigration and Customs Enforcement (ICE) family residential centers,’ allowing ICE to operate family detention centers under internal standards, without state oversight,” Berzon, a Bill Clinton appointee, wrote.

The panel agreed the regulations should be barred from taking effect, that they did not terminate the Flores settlement, and found Gee did not abuse her discretion by denying the Trump administration’s request to get out of the agreement.

The parties to the Flores agreement have clashed on the issue of family separation, with Trump administration attorneys saying the federal government will not release family units together from custody.

Attorneys for the children told the Ninth Circuit panel the Flores settlement includes provisions encouraging the federal government to release parents of detained children, though it isn’t required under the agreement.

Under the settlement, children who arrive in the U.S as part of family units still have a right to be released to their other relatives in the U.S. who might be able to take care of them. But the Trump administration has declined to release families together, creating a legal conundrum forcing detained immigrant parents to choose to have children held in federal custody or be released to guardians as a deadly pandemic grips the nation.

Berzon and the panel found the Trump administration has failed to show how any recent increase in family migration makes it more difficult to comply with requirements for prompt release of children. 

“Even if the government has legitimate justifications for detaining adults, it has not shown why it must also detain accompanying minors,” Berzon wrote. “For example, the government could detain parents but release their children to another available relative. Nothing in the agreement requires the government to take children from their parents against the parents’ will.”

A rule allowing Homeland Security to transfer unaccompanied immigrant children to Health and Human Services (HHS) custody when they’re apprehended and processed is consistent with the Flores agreement and may take effect, the panel ruled.

A U.S. Department of Justice spokesperson did not immediately respond to a request for comment on the ruling.

The Trump administration had argued the Flores settlement is too broad in its regulatory scope and has created conditions that help fuel accompanied and unaccompanied child migration to the U.S.

In 2019, more than 80,000 unaccompanied children arrived at the U.S. Mexico border and 10,000 were held in Department of Health & Human Services custody, according to federal data. More than 500,000 members of family units were encountered at the border that year.

The panel allowed most of the new rules governing HHS bond hearings to take effect but blocked a hearing request requirement and a rule allowing the Office of Refugee Resettlement to place an unaccompanied child in jail-like conditions if they’re deemed a danger to themselves or others.

“We conclude that the HHS hearing regulations are consistent with the agreement except to the extent that they require unaccompanied minors held in secure or staff-secure placements to request a hearing, rather than providing a hearing to those minors automatically unless they refuse one,” Berzon wrote.

Attorneys for the children did not immediately respond to an emailed request for comment.

U.S. Circuit Judges Milan D. Smith, Jr, a George W. Bush appointee, and William Fletcher, also a Clinton appointee, rounded out the panel.

The Flores settlement emerged out of Jenny Lisette Flores v. Edwin Meese, a federal class action filed in 1985 on behalf of unaccompanied immigrant children fleeing torture and abuse in Central America.

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