Detained Immigrant Children Are Entitled to Hearings, Court Rules

Detained Immigrant Children Are Entitled to Hearings, Court Rules

John Moore/Getty Images

John Moore/Getty Images

Undocumented immigrant children detained by federal authorities are entitled to hearings to determine whether they should remain confined, a federal appeals court ruled on Wednesday.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that immigration authorities must abide by a 1997 legal settlement that established a policy for the detention, release and treatment of minors in immigration custody.

That agreement, named the Flores settlement after the teenage girl who brought the original case, stipulated that a child in deportation proceedings be afforded a bond hearing before an immigration judge.

The federal government had argued that Congress passed laws in 2002 and 2008 that abrogated the settlement, terminating the minors’ right to a bond hearing.

The Ninth Circuit panel disagreed, saying that neither law abolished the bond-hearing requirement for unaccompanied minors.

“Rather, the statutes leave ample room for immigration judges to conduct bond hearings for these children,” Judge Stephen Reinhardt wrote for the court.

“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,” he said in a 40-page decision, which noted evidence submitted by the plaintiffs that minors were held for months, and even years, without hearings to review the basis for detention.

The ruling upheld a decision by a Federal District Court judge, Dolly M. Gee, against the Obama administration. The Department of Justice is expected to appeal the decision, possibly to the United States Supreme Court.

A spokesman for the agency did not reply to messages requesting comment on Wednesday.

The case affects undocumented juveniles arrested in the United States as well as so-called unaccompanied minors, children who cross the border without their parents, often fleeing poverty or violence in Central America. They began to swarm the southwest border three years ago, when 68,541 were detained. Illegal crossings have plunged since President Trump took office, but from February through May, 5,445 unaccompanied minors were still detained, according to federal data.

While their deportation hearings, which can take years, are in process, the government is required to place them in the least restrictive environment available, usually with a parent or relatives or in foster care. However, a minority of them remain in detention, in facilities overseen by the Office of Refugee Resettlement, an agency of the Department of Health and Human Services.

“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,” said Holly Cooper, a lawyer on the case.

“On behalf of those kids, we would go to immigration court and say we want a bond hearing, referring to the settlement, but the government would say there’s no bond hearing,” said Ms. Cooper, who is also co-director of the law clinic at the University of California, Davis.

As a result, she said, immigration judges said they had no power to set bond for the children’s release.

Immigrant advocates hailed the decision, saying that it would rein in the Trump administration’s immigration enforcement efforts.

“We are celebrating this decision because it gives a neutral forum to challenge overzealous enforcement and, most importantly, allows us to advocate for the best interests of the children,” said Lenni Benson, a professor at New York Law School.

If it stands, the ruling could add to the government’s backlog of more than half a million cases in immigration court. In the meantime, the administration has said it will begin arresting undocumented parents on criminal smuggling charges if they are suspected of hiring coyotes, or smugglers, to bring their children from Central America to the United States.

The homeland security secretary, John F. Kelly, has described the effort as a way to combat the dangers of human smuggling. But advocates for undocumented parents say it will discourage parents or relatives from claiming custody of their children, leaving more minors in government facilities.

Lawyers representing the minors in the Flores case presented evidence from more than a dozen children who had endured prolonged detention.

Among them was a child identified as Hector, who was detained when he was 15 and remained confined for 16 months.

“I feel desperate,” he wrote at one point, according to the court. “My only wish is to leave detention, live with my mom and study.”

Then, last December, the government released Hector to his mother without any explanation, the court said.

The decision also cited the example of a child identified as William who was placed in detention when he was 9 years old. His lawyer said that the government did not explain why he should stay detained.

After his lawyer filed to contest his deportation, the Office of Refugee Resettlement “suddenly and without explanation released William to his parents.” All told, he spent about 18 months in custody.

“Bond hearings provide the concrete information needed to advocate for a minor’s release,” the court said.

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