(CN) — An attorney for immigrant children in federal detention told a Ninth Circuit panel Tuesday that rules governing immigrant youth detention proposed by the Trump administration in 2018 are thinly veiled, unconstitutional efforts at deterring families from coming to the United States.
The landmark 1997 Flores settlement agreement sets national standards for the detention, release and treatment of all undocumented children in federal custody.
Under the agreement, the government isn’t required to release immigrant parents traveling with children but does require children to be placed in state-licensed care facilities, with delays only allowed if an immigration judge deems a child a flight risk or a danger to others.
Citing a surge of immigrants crossing at the U.S. Mexico border, the Trump administration in 2018 moved to terminate the agreement by issuing new rules for detention conditions and immigration proceedings for children picked up at the border.
The rule would have allowed the Department of Homeland Security to detain immigrant youth traveling with relatives or guardians for as long it takes to resolve their immigration cases and allow placement in facilities not licensed to house children.
“Defendants willingly negotiated and bound themselves to these standards for all minors in its custody, and no final regulations or changed circumstances yet merit termination of the Flores agreement,” Gee’s September 2019 permanent injunction order said.
On appeal, the Trump administration argued Gee should have terminated Flores under Rule 60(b) of the Administrative Procedures Act (APA) since proposed final rules would have satisfied settlement requirements regarding hearing procedures and release into safe and sanitary conditions.
“The rules address the comprehensive and multi-faceted responsibilities that arise with respect to immigration custody and release of minors at multiple federal components and in a range of circumstances,” Trump administration attorneys said in its appellate brief.
During oral arguments by video conference Tuesday, Justice Department attorney August E. Flentje told a Ninth Circuit panel the proposed final rules addressed new circumstances in an immigration system that wasn’t as stressed in 1985.
Since the Flores settlement was signed, the number of both accompanied and unaccompanied immigrant children arriving to the U.S. has skyrocketed, leading to regulatory challenges around family migration, Flentje told the panel.
“There is a notion that the Flores settlement is so broad and covers such a large portion of the immigration system that it is both unmanageable and has implications for a democratic process under a consent decree,” Flentje said. “We would dispute the notion that proposed final rules regarding family custody are a significant departure from the Flores agreement.”
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 in 2019.
U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, said the government’s claims don’t match the regulatory area of immigration the proposed final rules would govern.
“What does large numbers of arrivals at the border have to do with a change in rules,” Barzon asked Flentje. “We’re not dealing with the border, we’re dealing with people inside the U.S. So what does a huge influx have to do with [proposed final rules]?”
Flentje said the proposed rules address the crisis of “irregular” family migration.
“Without a durable system to address the situation that Flores doesn’t include there are repeated migration crises and they will happen again,” Flentje said.
Flentje also said the Flores agreement should have terminated when new rules were proposed, according to settlement terms and federal rule-making procedure under the APA.
The hearing was plagued by issues with web connection and audio levels, causing Berzon to have to repeat herself constantly.
Carlos Holguin, an attorney arguing for immigrant children protected under Flores, told the panel the proposed rules were part of the Trump administration’s efforts to deter immigrants from coming to the U.S.
“The only way they make sense of the rules is if the government can justify them as a means of deterring others,” Holguin told the panel. “That is an unconstitutional use of civil detention and should be confined to criminal law.”
Holguin said that contrary to Flentje’s claim, parties to the Flores settlement contemplated family separation issues and included provisions encouraging the government to release parents of detained children, though it isn’t required.
The legal conundrum forces parents to choose to have children detained in licensed facilities or released to relatives, Holguin said.
“The government can force families into this binary choice,” Holguin said. “The parties did understand this.”
Under the proposed regulations, the federal government would have discretion to detain children against their parents’ wishes, Holguin said.
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, according to the settlement.
A Justice Department spokesperson did not immediately respond to a request for comment on the hearing.
U.S. Circuit Judges A. Wallace Tashima and William Fletcher, also Clinton appointees, rounded out the panel, which took the appeal under submission.
The Ninth Circuit ruled in 2017 that detained immigrant children facing deportation will continue to have the right to a bond hearing.
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.