Children detained by immigration authorities have the right to a hearing before an immigration judge to consider their release, according to a federal appeals court in San Francisco.
The ruling Wednesday by the 9th U.S. Circuit Court of Appeals will allow thousands of children to petition a judge to be released while they await their day in immigration court, just as most adults in immigration custody can do.
“It’s important because we’ve seen children detained in excess of a year with no reason given for their detention,” said Holly Cooper, an attorney for the plaintiffs and co-director of the Immigration Law Clinic at the UC Davis School of Law.
The appeals court found that a 1997 lawsuit settlement that set standards for immigration detention of minors is still in force — including a provision that guarantees custody hearings — in spite of two laws passed by Congress since then dealing with immigrant children who cross the border unaccompanied by a parent.
The settlement, known today as Flores v. Sessions (the case was Flores v. Reno back in 1997), favors family reunification and says children should be placed “in the least restrictive setting appropriate to the minor’s age and special needs.”
A three-judge panel of the 9th Circuit rejected the federal government’s argument that the more recent laws eliminated the right to a bond hearing under the Flores settlement because they didn’t specifically mention such hearings.
“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,” wrote Judge Stephen Reinhardt for the court. He was referring to the Office of Refugee Resettlement (ORR), the agency charged with the care and placement of unaccompanied minors in immigration proceedings.
Reinhardt went on: “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.”
When adults in deportation proceedings are detained, they are held by Immigration and Customs Enforcement. But for the past 15 years, unaccompanied immigrant children are turned over to the ORR, which is part of the U.S. Health and Human Services agency. ORR officials have maintained that they alone have the authority to decide whether to release a child from custody.
Cooper said she and other advocates decided to challenge that in court because they felt that vulnerable children — some as young as 8 years old — were being denied their rights.
“In every other detention context we could find, the individual was given an immediate right to a hearing on the legality and necessity of their detention — whether at Guantanamo, or someone mentally ill or a child,” she said. “This is a modest win, because all we’ve done is bring the kids up to the level of rights of every other detainee. If we had lost, it would’ve been a very dire blow.”
The decision upholds a January ruling by U.S. District Court Judge Dolly M. Gee, based in Los Angeles. The federal government could decide to appeal, requesting review by either the full 9th Circuit or the U.S. Supreme Court.
“The Justice Department is reviewing the Court’s ruling and considering next steps in the litigation,” said department spokeswoman Nicole Navas Oxman in an email.
The right to a bond hearing affords children the right to a lawyer, if they can find or pay for one (fewer than half of the kids in deportation proceedings have legal counsel). That’s something kids in ORR custody have been denied, Cooper and other lawyers say.
With her students at the UC Davis Immigration Law Clinic, Cooper has represented several immigrant teenagers held at the Yolo County Juvenile Detention Facility. ORR has a contract with the county to detain up to 30 youths in the locked juvenile jail.
One such teenager, Pablo Aguilar, spent 2½ years in immigration custody. In 2014 Aguilar fled a gang in El Salvador that had kidnapped, and probably killed, his brother. He came to the United States to seek asylum and reunite with his mother, who lives in Los Angeles. But despite finding his mother to be a fit parent, ORR would not release Pablo and would not explain why.
“What will be nice about having a judge’s review is that the government will have to come up with some kind of evidence,” said Cooper. “If we put forth evidence that he’s a good kid and has a mom, ORR or ICE will have to come up with something that shows he’s [a flight risk or a danger]. It will give a greater level of transparency.”
Over the past five years, more than 200,000 migrant children traveling without their parents have been detained at the U.S.-Mexico border. Tens of thousands more have been picked up with a parent. Most are from El Salvador, Honduras and Guatemala, and many report fleeing violence, as criminal gangs there operate with impunity and governments struggle to respond.
The vast majority of children detained by immigration authorities spend a month or so in an ORR shelter and are then placed with a relative or another sponsor while their case works its way through immigration court. But hundreds are placed in locked group homes or juvenile jails, as Pablo Aguilar was, and can be held for months or even years.
The 9th Circuit noted that even if an immigration judge determines a child is eligible for release, ORR must still identify a safe and secure placement into which the child can be released.
This post has been updated.