Last July, the Ninth Circuit Court of Appeals affirmed that unaccompanied minors, arriving into the U.S., are entitled to a bond hearing with an Immigration Judge to request release from ICE custody while their case is pending.
The result of Reno v. Flores guaranteed court hearings for immigrant minors, and established a policy for their release.
However, several years after that ruling, Congress enacted two laws to address government interactions with unaccompanied minor immigrants.
The first was the Homeland Security Act (HSA) in 2002, which established the Office of Refugee Resettlement of the Department of Health and Human Services (ORR) as the authority of care and placement of unaccompanied minors.
Next, came the Trafficking Victims Protection Reauthorization Act (TVPRA), of 2008, which primarily affirmed ORR’s responsibility for the care and custody of unaccompanied minors, and supported some aspects of the Flores settlement.
Whether accidentally or intentionally, together, these laws authorized an increase in the number of people to be placed into detention.
Additionally, the authors and proponents of these new laws argued that HSA and TVPRA replaced the marrow of Reno v. Flores, and eliminated the right of unaccompanied minors without parents, to a bond hearing.
Ultimately, the Ninth Circuit Court disagreed with this argument, and actually cited evidence of government malfeasance – holding minors in prison-like conditions for months or even years without a single hearing; even when parents are nearby and can care for them.
Ninth Circuit Court Justice Stephen Reinhardt wrote the following as part of his unanimous opinion in Flores v. Sessions: “Without such hearings, these children have no meaningful forum in which to challenge ORR’s decisions regarding their detention or even to discover why those decisions have been made. There are no procedures available to them that afford them the right to a hearing with counsel, an opportunity to examine adverse evidence, or a forum in which to refute the government’s claims regarding the need for their custody.
“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.”
Compassion for Children
The recent Ninth Circuit Court decision discussed what happened to some of these children. One example was about a boy, Hector, who at age 15 was detained for 480 days in a lock down facility that could best be described as a prison.
Hector never received an explanation for why he was being held, nor was he provided with an attorney to help him.
How does this happen?
How can adults behave this way toward children?
According to Maura Dolan (in her article from July 5, 2017, published by the L.A. Times), after 16 months in custody – in a locked facility in Yolo County, California – Hector was finally released to his mother, who lives in Los Angeles, and who had been seeking his release.
Ms. Dolan wrote, “The court cited evidence that juveniles have agreed to deportation rather than face continued incarceration without their families.”
These are children, who have a credible fear of being killed if they return to their country.
With My Own Eyes
A situation I have seen many times typically involves an at-risk adolescent, boy or girl, who resists recruitment by a violent street gang.
When the child refuses to join the gang, the gang retaliates in some threatening way against the child or the child’s family.
Often, the gang will make an attempt to kill the child; if this attempt is un-successful from the gang’s perspective, at the very least it instills fear in the near-by community, and deters any subsequent meaningful or coordinated acts of defiance.
The local police in these countries have been infiltrated by these gangs and are not able to protect the child, so the child is forced to flee.
If the child attempts to cross the U.S. border and is caught by U.S. Border Patrol agents, the child will be taken into custody and put into detention.
A person who is apprehended while attempting to cross the border has no constitutional rights.
The Flores agreement is a binding contract between the government and the children. The first priority of this agreement is to release these children to a parent without unnecessary delay.
If there is no parent or close relative to take the child they must be placed in a non-secure facility licensed for the care of dependent children, within five days of arrest.
Two years ago, the Center for Human Rights and Constitutional Law (CHURLA) won a very important lawsuit against the Department of Homeland Security,and thus reaffirmed Reno v. Flores as the law of the land. The CHURLA attorneys courageously called-out the government on its illegal actions, and took the lead to try to help these children.
Tragically, Jeff Sessions is definitely the wrong person to be put in charge of the Immigration Court System to oversee the treatment of these helpless children.
But the fight is not over. We need to monitor these detention centers to ensure they are complying with the Flores agreement.
Attorney Peter Schey from CHURLA is now organizing detention site inspections to see if these facilities are complying with the law.
As I stated in my October article, the U.S. system of immigration detention has exploded in recent years – nearly doubling the number of people being detained in the last ten years.
According to the Global Detention Project, the U.S. has the largest detention immigration system in the world. But, we don’t know how many minor children are currently being detained; that information is not provided.
The private companies that own these detention centers do everything they can to avoid being inspected.
I was part of a group from the ACLU’s West Los Angeles Chapter, which received an appointment to inspect the Adelanto Detention Center in San Bernardino California. This detention center is operated by GEO Group, a private prison company.
After a two-hour bus ride the group arrived at the detention center only to be denied entry. After about an hour of trying to speak to someone in charge, the group was stopped at the entrance and not allowed into the detention center.
This is not the first time a detention center has refused to allow monitors to enter a facility.
These private prison companies have spent many millions of dollars on campaign contributions and lobbyists to push legislation at the state and federal level to increase the number of people, who are kept in their prison facilities.
These huge increases in detainees are accompanied by stories of horrible treatment of detainees by these detention facilities, including human rights and due process violations.
I have spent my career working to keep families together, and fighting to ensure that my clients receive proper protection under the law.
If you have an immigration law crisis – a child being unlawfully held in detention; a mother or father facing deportation – time is of the essence.
My team and I have the knowledge, experience, and compassion to intervene when it matters most, and we are committed to protecting the human rights of all people.