In early July, a three-judge panel of the Ninth Circuit US Court of Appeals submitted a unanimous decision requiring immigrant minors held in detention to be given a fair hearing. In rendering its opinion, the Court referred to a 1997 settlement in Flores v. Janet Reno (the Flores Settlement), which dictated that children being detained by the Immigration and Naturalization Service (INS) have the right to “a bond redetermination hearing before an immigration judge.” Broadly speaking, the Flores Settlement set the groundwork for methods of handling the “detention, release and treatment” of juveniles being held by the INS. As a matter of principle, the settlement’s advisement gave preference to release over further detainment.
Circuit Judges Stephen Reinhardt, A. Wallace Tashima and Marsha S. Berzon were on the panel.
The Question
In his opinion, Judge Reinhardt was tasked with determining whether legislation passed in 2002 and 2008 took precedence over the Flores settlement, as argued by the defendants, Attorney General Jeff Sessions, Secretary of Health and Human Services Tom Price and then-Secretary of Homeland Security John Kelly. According to the defendants, the two pieces of legislation – the Homeland Security Act (HSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA) – gave authority over undocumented minors to the Office of Refugee Resettlement of the Department of Health and Human Services (ORR). Thus, the current administration argued, the Flores Settlement no longer applied, meaning the bond-hearing provision allowing minors to go before a judge was no longer in effect.
The Ruling
Judge Reinhardt disagreed with the defendants, putting forward a different reading of the 2002 and 2008 statutes. According to Reinhardt, “These statutes sought to protect a uniquely vulnerable population: unaccompanied children,” and thus, “[d]epriving these children of their existing right to a bond hearing is incompatible with such an aim.” In closing, Reinhardt upheld the decision of the lower court and gave priority to the protective provisions of the Flores Settlement.
Context
About three years ago, undocumented children started to flee persecution in Central America. Over 68,000 juveniles made their way across the US-Mexico border and into detention centers. And just this year, over 5,000 children have been detained. As per the Flores Settlement, children are supposed to be kept in non-restrictive settings while their bond-hearing is underway. This usually means juveniles end up with family during what can be a long, turbulent process. However, in some cases, minors are funneled into detention centers, where they can be held for long periods of time.
Holly Cooper, an attorney for the plaintiff, had this to say in a conversation with the New York Times: “What we were seeing is that certain kids that the Office of Refugee Resettlement thinks are a flight risk or a danger were being detained without any judicial process to release them.”
Disturbing Examples
The plaintiffs’ attorneys recounted abhorrent tales of terrible injustice. One story centered around the journey of a young 15-year old boy called Hector who spent 16 months in detention without being told why he was there and without being given a lawyer.
The detention center, according to the young boy, was akin to a prison. Children slept on rock-hard benches covered with mattresses. Hector only wanted one thing: “My only wish is to leave detention, live with my mom and study.” Eventually, on December 16th, 2016, Hector was released, rejoining his mother.
Next Steps
Nicole Navas, spokesperson for the DOJ, said attorneys representing the government are in the process of drafting plans for further action. They essentially have two options: they can either file a cert petition with the US Supreme Court or they can request that the Ninth Circuit rehear the case en banc.
Immigrant rights activists surely marked this as a victory, even if minor. For now, we will have to wait and see what course of action the government decides to take.
