A Policy of Unmitigated Cruelty

If ever there were a doubt that Trump administration policy toward refugees, immigrants and children is one of unmitigated cruelty it should be laid to rest by the Ninth Circuit ruling this week in Jenny Flores v. Sessions: yet another protective order for children against a 32-year-long travesty of justice.

The legal question is whether children arrested by immigration officials are entitled to minimally decent standards of detention, including a bond hearing before an immigration judge. Federal courts, including the Ninth Circuit, say they do. The Department of Justice agreed in 1997, when it settled the Flores class action.

But the Trump administration says it need not abide by the court order in Flores because it doesn’t want to. It says it can lock up children and give them unappealable bonds so high they’ll agree to be deported because the alternative would be indefinite detention under miserable, virtually unsupervised conditions.

On Monday the Ninth Circuit told U.S. Attorney General Jefferson Beauregard Sessions III: Don’t you understand what law means?

Here’s the background. In 1985 the United States opened its first immigration prison specifically built to incarcerate children, mothers and babies. The Corrections Corporation of America ran it in Laredo on a contract with the Immigration and Naturalization Service.

CCA strip-searched every detainee, with body cavity searches, before and after each visit with a legal representative. And only before and after each legal visit.

CCA guards conducted vaginal and anal searches of 3-year-old girls. They forced a 12-year-old girl to remove the tampon she used for her first menstrual period, and show it to them.

I worked in the Laredo prison as a paralegal for immigration attorney Patrick Hughes, who had moved there, like me, to help the children. Our client in the Flores case was typical. She was an orphan. Her village had been burned to the ground and surrounded by Salvadoran army tanks. And so on.

When Patrick complained about the strip searches, the INS said CCA ran the prison: not the federal government. That’s one way the Department of Justice has tried for decades to absolve itself of responsibility for the inhuman conditions in immigration prisons: by claiming it’s all up to the private prisons.

When CCA jailers were not strip searching child victims of rape and torture, they held mock trials inside Laredo prison. Prison guards impersonated judges, told kids they had lost their case and made them sign “voluntary repatriation” orders. The kids showed them to us.

Patrick took all this and more to Los Angeles attorney Carlos Holguin, who has led the Flores case for 32 years.

Bad as Laredo prison was, conditions in immigration prisons are worse today. Dozens of private groups have been given contracts to imprison children in remote jails with virtually no supervision. The entire purpose of scattering these suffering children around the country in remote places is to escape supervision.

The Border Patrol, which catches them, is the most corrupt law enforcement agency in the nation. At least 134 agents were convicted of corruption charges from 2004 to 2016.

CCA, one of the few private immigration prison operators that does get a minimum amount of supervision, has been sued at least 811 times, according to the Courthouse News database. Of those, at least 246 lawsuits involved civil rights violations, at least 15 involved violence and at least 48 involved sex.

So we can take it as given that children in immigration jails have a tough lot.

Now Attorney General Sessions claims that because Congress enacted two laws since the 1997 Flores settlement — the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008 — the Trump administration can ignore the Flores settlement.

It took the Ninth Circuit just five sentences on Monday to make mincemeat of Sessions’ argument. Had Congress wanted to welsh on the Flores deal, it could have said so, the court wrote: “By their plain text, neither law explicitly terminates the bond-hearing requirement for unaccompanied minors. … (T)he HSA and TVPRA do not deny unaccompanied minors the right to a bond hearing. … These statutes sought to protect a uniquely vulnerable population: unaccompanied children. … Congress desired to better provide for unaccompanied minors. Depriving these children of their existing right to a bond hearing is incompatible with such an aim.”

The Department of Justice told CNS reporter Helen Christophi that it is “reviewing the decision and considering next steps in the litigation.”

That’s great: Sessions is considering whether to abide by 35 years of federal court rulings the Justice Department has lost every step of the way.

Sounds like a tough call, Mr. Attorney General.

The late, great immigration lawyer Sam Williamson predicted this entire obscene fiasco to me years ago. “In immigration law, you win by losing slowly,” Sam said. “Sometimes when I’m fighting to put off deportation, the deportation officer dies. It makes you believe there’s a god.”

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