SAN FRANCISCO (CN) – In another blow to the Trump administration’s unpopular immigration policies, the Ninth Circuit ruled Wednesday that detained immigrant children facing deportation will continue to have the right to a bond hearing, calling the hearings a “fundamental protection” that the court cannot erase.
In 1997, the federal government settled with a class of children to guarantee unaccompanied minors in U.S. custody a bond hearing, but Attorney General Jeff Sessions is now leading the charge to strip them of that right. In an appeal, Sessions argued that two laws passed by Congress since then have terminated the deal’s bond-hearing requirement.
“In enacting the [laws], Congress desired to better provide for unaccompanied minors,” U.S. Circuit Judge Stephen Reinhardt countered in the three-judge panel’s unanimous decision. “Depriving these children of their existing right to a bond hearing is incompatible with such an aim.”
The government’s appeal hinges on a 1997 settlement that came out of Jenny Lisette Flores v. Edwin Meese, a lawsuit filed in 1985 on behalf of a class of unaccompanied minors fleeing torture and abuse in Central America.
At the time, the U.S. Immigration and Naturalization Service 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.
The settlement set the minimum standards for detention and release of the minors and, importantly, provided the right to a bond hearing before an immigration judge to determine their suitability for release.
However, the government insists that the settlement’s bond-hearing requirement was superseded by two laws Congress passed since the Flores settlement took effect: 2002’s Homeland Security Act (HSA),which transferred authority over the care and placement of unaccompanied minors to the Office of Refugee Resettlement; and 2008’s Trafficking Victims Protection Reauthorization Act (TVPRA), which, similar to the Flores settlement, provides guidance to the refugee office in placing unaccompanied minors with suitable guardians.
In 2015, the government announced that it would do away with the bond hearings, arguing that they conflict with the TVPRA’s requirement that the refugee office make release decisions based on a child’s safety.
The following year, the Flores plaintiffs moved to enforce the settlement’s hearing requirement in Los Angeles federal court.
U.S. District Judge Dolly Gee granted their motion on the day of President Trump’s inauguration, finding that the new laws had not terminated the requirement.
The appellate panel affirmed Gee’s decision Wednesday after lifting a temporary stay of the decision two days earlier, noting that neither the HSA nor the TVPRA terminated – or even mentioned – bond hearings.
And although the government had argued that Congress’s failure to address bond hearings for unaccompanied minors under the two statutes means it did not intend to provide them, the panel said that, based on Supreme Court guidance, it could not “construe silence as an affirmative repeal” of the hearing requirement.
“We refuse to read into such legislative silence any affirmative intent,” Reinhardt wrote in the 40-page ruling. “If Congress had intended to terminate the settlement agreement in whole or in part, it would have said so.”
Addressing the government’s argument that bond hearings conflict with the TVPRA’s requirement that the refugee office make release decisions based on safety, the panel pointed out that the hearings do not entitle minors to release unless the government finds a safe placement.
However, the panel expressed concern over the agency’s decision-making process, citing evidence submitted by the plaintiff class that it currently detains unaccompanied minors for months or years without allowing a judge to review its decisions.
According to a declaration referenced by the panel, a 15-year-old unaccompanied minor named Hector was detained by the refugee office for 16 months in Yolo County in Northern California, even though Hector’s mother lived in Los Angeles and had repeatedly attempted to have him released to her.
Hector described the Yolo facility, an 11-hour drive from his Los Angeles home, as a “real prison,” where the child detainees were treated “badly, like delinquents,” according to the Ninth Circuit’s decision.
The guards would “lock us up in the cells every night, to sleep on benches made out of cement with mattresses,” Hector said in his declaration.
“I feel desperate,” he added.
During his detention, the refugee office never told Hector or his attorney why it was delaying his release or when he might be let go, and never gave him a bond hearing. Then, last December, without any explanation for the long stretch in custody, the agency released Hector to his mother.
“A hearing … provides meaningful protections against such perfunctory and ad hoc determinations,” Reinhardt wrote. “In the absence of such hearings, these children are held in bureaucratic limbo, left to rely upon the agency’s alleged benevolence and opaque decision making.”
Although the appeal has been decided in the plaintiffs’ favor, their battle over the hearings may not be over. Nicole Navas Oxman, a spokeswoman with the Justice Department, said in an email Wednesday that the government is reviewing the court’s decision and considering next steps in the litigation.
Reinhardt, however, perhaps anticipating additional legal challenges by the government, implied that it would not be easy to scrap the hearings.
“Indeed, the fact that the plaintiffs are so vigorously fighting to retain the bond hearings, and the government so vigorously fighting to abolish them, may offer some indication that the hearings remain of practical importance,” he wrote.
Senior Circuit Judge A. Wallace Tashima and Circuit Judge Marsha Berzon joined Reinhardt on the panel.
The plaintiffs were represented by Carlos Holguín with the Center for Human Rights and Constitutional Law in Los Angeles. He did not return phone and email inquiries seeking comment Wednesday.
Justice Department attorney Sarah Fabian in Washington argued for the government.