The federal government can’t hold immigrant kids in detention without explaining their reasons in front of an independent judge, a federal appeals court said on Wednesday.
The decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals means non-citizen minors detained by authorities will maintain the right to have an immigration judge review the government’s reasons for keeping them in custody – a position the federal government argued against.
“We risked losing so much in this case,” said Holly Cooper, co-director of the UC Davis Immigration Law Clinic and co-counsel on the case. “There is no other type of individual in the country that can be held without judicial oversight.”
Wednesday’s ruling upholds a victory Cooper and her colleagues won earlier this year in a class action lawsuit in a lower district court. The decision applies to all non-citizen kids being held nationwide, including more than a dozen currently detained at the Yolo County Juvenile Detention Facility in Woodland, said Cooper.
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But it is most pertinent to a small group of minors – maybe as few as a hundred – who have been held for months or longer, said Lenni Benson, a law professor and director of the Safe Passage Project, a New York-based nonprofit that provides legal services to undocumented minors. Benson’s organization filed an amicus brief in support of Cooper’s case. She said exact numbers of long-term minor detainees are difficult to come by because the detention system lacks transparency.
The federal government has the right to detain immigrant kids while they await immigration proceedings if they pose a risk to themselves or others, are a flight risk or if the government deems there is no suitable parent or guardian available, said Carlos Holguín, the lead council on the case and director of the Los Angeles-based Center for Human Rights and Constitutional Law. The detentions are commonly associated with kids who have crossed the border alone, but Benson said the government also detains kids it suspects of crimes or gang activity – whether or not they have charges filed against them.
The 9th Circuit opinion reaffirms the lower court’s ruling that the federal government is required to follow rules set in the settlement of a 1997 lawsuit, Flores vs. Janet Reno, which gave minors detained by immigration authorities the right to a bond hearing. That legal proceeding gives them the ability to fight the government’s custody case against them in front of an independent judge.
A bond hearing is also often a detained minor’s only chance to get the facts about why they are being held, and have an independent civil review of those reasons, said Benson.
Since the Flores settlement, Congress has passed two laws meant to improve conditions for unaccompanied kids crossing the border. Lawyers for the U.S. attorney general argued in the current case that those laws trumped the Flores settlement and did away with the requirement for a bond hearing – effectively allowing the government to hold non-citizen minors without oversight and at their own discretion.
Government lawyers also argued that because the detained minors were under the purview of the U.S. Department of Health and Human Services, immigration courts didn’t have jurisdiction to decide if detention was appropriate and that imposing the bond hearing requirement “would impact the sound and efficient operation of the government, while providing minimal – if any – benefit” to detained minors, according to court filings.
The 9th Circuit forcefully pushed back on that notion.
Without bond hearings, “these children have no meaningful forum in which to challenge (the government’s) decisions,” wrote Judge Stephen Reinhardt, and would be stuck in a “bureaucratic limbo.”
Prior to the Flores settlement, the government could keep non-citizen immigrant minors detained indefinitely, and without much due process because they inhabit a gray legal area where the government acts in a “quasi-parental” role, said Cooper.
“Immigrant kids who are not citizens have been in a legal quagmire,” said Benson. “In the past, (the government) didn’t feel like they had to share their thought process or reasoning” for keeping kids detained.
Cooper and Holguín used the circumstances of a 15-year-old boy named “Hector” to convince the court of its argument. The boy was held by authorities for 489 days – much of it at the Yolo facility – without being given a clear reason for his detention or the chance to go before a judge. Hector’s mother lived in Los Angeles and attempted to have him released to her custody, but was unsuccessful. Hector described feeling “desperate” while detained in Yolo, a facility he described as a “real prison” where he slept on a concrete bench with a mattress.
After 16 months, Hector was released to his mother without explanation, according to the court filing.
Holguín said the 9th Circuit opinion offers a “fundamental fairness” to kids.
“The bottom line is we don’t lock people away without the chance to be heard,” Holguín said.
A Justice Department spokesman said they are reviewing the court’s ruling and considering next steps in the litigation.