9th Circuit Rules that Government Broke Agreement to Protect Non-Citizen Children

Flores v. Meese, now known as Flores v. Sessions in light of our new Attorney General, is a twenty year old case which resulted in a settlement agreement resulting from now defunct Immigration and Naturalization Services (INS) holding unaccompanied children of immigrants for long periods of time with no beds, little food, and unreliable access to clean water. The settlement dealt with improving the conditions, and-most importantly-duration of hold times on children. The main way the settlement did this was by requiring second bond hearings to allow for non-citizen children to be released in a manner that-barring a danger to society-fits the best interest of the child.

The Ninth Circuit Court of Appeals ruled last week, and not for the first time since the settlement, that Immigration and Customs Enforcement (ICE) is not living up to the terms of its agreement. The settlement, in part, requires the government to hold children no longer than reasonably necessary. Judges have previously ruled that the government has failed to live up to this requirement. They also had failed to keep records of minors held more than 3 days, another settlement requirement. While there is evidence of their violations already, this practice makes it very hard to know exactly how often they have mistreated minors.

To understand this most recent ruling, let’s take a look at the facts of the case, the history of the settlement, and the ruling itself.

The Government’s Mistreatment of Children

So we know that the gist of the settlement agreement requires holding unaccompanied non-citizen children in safe conditions and providing bond redetermination hearings, reassessing how and whether a child should be released, in order to best protect unrepresented children. With this in mind, the settlement generally requires agencies to lean towards just releasing these children-usually as quickly as reasonable. The facts in this case make it clear that this was not at all the case.

The facts before the judge in this case showed unaccompanied children (some as young as nine-years-old) held in prison-like conditions, often for over a year, with no bond redetermination hearings. The children were threatened with pepper-sprayed, kept in cells so cold they were referred to as “iceboxes” with only a sheet of aluminum foil for warmth. The cells had cement benches with mattresses on top as beds. The children sometimes went without working toilets or showers.

History of the Settlement

As horrifying as these facts are, they pale in comparison to the facts that led to the settlement in the first place. In the late 90s, the Flores v. Meese case dealt with a 15-year-old refugee out of El Salvador named Jenny Flores. During this time, INS had a practice of arresting children suspected of being undocumented and holding them in what were essentially prisons until their parents turned themselves in for potential deportation. Essentially holding children to coerce their parents into allowing themselves to be deported. These children were held in cells with as many as 100 people, given little food and water, and provided no education or recreation time.

To make the lawsuit go away, the government agreed to sign a consent decree which essentially amounted to a settlement agreement to enforce standards for both the care and release of non-citizen children as we’ve discussed above.

What the Settlement Requires

The Flores settlement has several requirements to it. However, these requirements can essentially be broken down into three broader stipulations. First, the government needs to, unless the children are a danger to society, release children from their detention facilities with as little delay as possible to either their parents, guardians, or-as a last resort-to programs willing to take custody of the child in question. Second, if the government can’t release the children they need to keep them in a place suitable to their age and needs. Finally, the government has to implement standards relating to how these children must be cared for in immigration detention facilities–something the government has still not done twenty years after they agreed to the settlement.

These broad provisions cover most of the agreement. However, for this case, it’s important to understand at least one specific provision of the Flores settlement–paragraph 24A. Paragraph 24A is the section of the agreement which requires the government to give bond re-determination hearings to these children. This is not a bond hearing, federal law already sets release for an undocumented person at $1,500, this is a follow up hearing to reconsider whether a bond is necessary as many of these children’s parents simply can’t afford a bond. The government has been going years without providing these hearings to some children, and that was central to this most recent ruling.

The Government Loses Its Argument that the Settlement is Defunct

To say that the facts were stacked against the government in this case is an understatement. They had essentially been ignoring the terms of the Flores settlement for years on end–continuing to mistreat these children. However, the government took the position that they hadn’t been bound to the settlement for years-arguing that the Homeland Security Act (HSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA) had overruled the settlement.

The judge in this case was quick to shoot them down. Generally, if you want to say you are bound by an agreement you are a party to you better have a dang good reason and the court simply wasn’t ready to bite on this one.  The HSA and the TVPRA do both deal with how the government should deal with unaccompanied non-citizen minors. However, they don’t mention overruling the Flores settlement or bond rehearings for non-citizen children. In fact, when it comes to these children both laws focus exclusively on making decisions in the children’s best interest. The laws include provisions seeking to investigate detention facilities to ensure proper care and placement on non-citizen children. To argue that holding them for years without a chance to reevaluate their bond status is laughable; the court found that the government’s arguments didn’t hold water.

To make matters even worse for the government, the same court had rejected the very same arguments only a year before when the government had argued that the provisions of the Flores settlement only applied to unaccompanied minors and they were under no constraints in how they treated accompanied minors. With that in mind, it was certainly no surprise to see the government shot down in flames on these arguments.

What Happens To the Children?

With the Flores settlement ruled to be in full force, the government will need to provide the bond reconsideration hearings they have been placing on the back burner. While the terms of the settlement favor release as quickly as reasonable to the minor’s family-it does not require it in all cases. At a minimum, the court’s ruling should at least offer these children a chance to escape years of prison-like detention when they likely want nothing else but to be receiving an education.

The Flores settlement is a fairly bare bones agreement. The truth is it was never intended to be a permanent solution. The settlement expires 45 days after the government put out final regulations on how detained non-citizen minors should be treated. The only reason this case is being litigated is because, as mentioned above, the government simply hasn’t bothered to do so in the last 20 years. While the HSA and TVPRA fill some gaps, the fact that our lack of legal regulation allows for situations such as the facts in this case to continue is a black eye on the United States as a whole.