Children Detained at Border Must Have Food, Beds, Soap and Toothpaste, Ninth Circuit Rules

(CN) – Following a legal argument that went viral this summer, a Ninth Circuit panel ruled Thursday that, contrary to the Trump administration's argument, "edible food, clean water, soap and toothpaste are without a doubt essential to the children's safety" at U.S. immigration detention facilities.

The three-judge panel dismissed for lack of jurisdiction the government’s appeal of U.S. District Judge Dolly Gee’s appointment of an independent monitor to ensure government compliance with the terms of the landmark 1997 settlement in Flores v. Meese, which dictates how unaccompanied minors fleeing torture and abuse in Central America are treated while in U.S. custody.

Flores requires detainees to be given bond hearings and be kept in “safe and sanitary” facilities. But at oral arguments in June, the Justice Department’s Sarah Fabian told the Ninth Circuit panel that children’s ability to sleep is not a question of safe and sanitary conditions, which left the panel dumbfounded.

“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?'” U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, said during oral argument.

The court monitor also found the children were not receiving hot, edible food given during the day and did not have access to clean drinking water. Additionally, the monitor found the holding cells and bathrooms were unsanitary and the children did not have access to clean bedding and hygiene products.

Fabien argued the phrase “safe and sanitary” is vague and either cannot be enforced or leaves “specifics of compliance up to the government.”

Writing for the panel Thursday, Berzon said, “Not so.”

Gee’s determinations “reflect a commonsense understanding of what the quoted language requires,” Berzon wrote. “Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep deprived are without doubt essential to the children’s safety. The district court properly construed the agreement as requiring such conditions rather than allowing the government to decide whether to provide them.”

The panel also rejected the government’s claims that Gee had incorporated standards that went beyond the scope of the Flores settlement.

“We doubt that the requirements – that minors ‘be offered a snack upon arrival and a meal at least every six hours thereafter,’ have food that is ‘in edible condition (not frozen, expired, or spoiled),’ and ‘have regular access to snacks, milk, and juice,’ – extend beyond what paragraph 12A requires,” Berzon wrote for the panel, referring to a specific section of the Flores agreement.

As a result, the panel found it lacks jurisdiction since Gee’s orders did not modify the settlement in any way.

U.S. Circuit Judges A. Wallace Tashima and William Fletcher, also Clinton appointees, joined Berzon’s opinion.

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