Court Says DHS Must Release Immigrant Children

Thursday, July 7, 2016

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Court Says DHS Must Release Immigrant Children

But Consent Decree From 1997 Does Not Require Releasing Parents From Detention—Ninth Circuit

From Staff and Wire Service Reports

The Ninth U.S. Circuit Court of Appeals ruled yesterday that the Department of Homeland Security must quickly release immigrant children who crossed the Mexican border without documentation from family detention centers, but need not release their parents.

The court said lengthy detentions of migrant children violated a 19-year-old consent decree, known as the Flores Settlement, ordering their quick release after processing. Government lawyers had argued that the decree covered only immigrant children who crossed the border unaccompanied by adult relatives.

But the settlement doesn’t require that parents be released along with the children, the panel held, reversing U.S. District Judge Dolly Gee’s ruling of last year as to that issue. Gee had acknowledged there was no mention of parents’ rights in the consent decree, but reasoned that the government’s “blanket no-release policy with respect to mothers cannot be reconciled with the Agreement’s grant to class members of a right to preferential release to a parent.”

Since Gee’s ruling, immigration officials have released hundreds of families and have been holding newly arriving families for only short durations. Following that earlier ruling, the number of immigrant families has again been on the rise.

Plain Language

Judge Andrew D. Hurwitz, writing yesterday for the appeals court, said the grant of a preference for release of a child to his or her parent could not be read as creating release rights for parents in custody. That would be inconsistent with the consent decree’s plain language, he said, noting that counsel for the plaintiff class argued that the minors would rather be released to individuals other than their parents than remain in custody until their parents came for them.

In a footnote, Hurwitz said the court was expressing no opinion as to what rights, if any, detained parents of accompanied minors have independent of the consent decree, or whether the alleged blanket no-release party would violate the decree. “We hold only that the Settlement is not the source of any affirmative right to release.”

The court affirmed another aspect of Gee’s ruling, denying the government’s motion to amend the decree in light of subsequent events, including the recent surge in unaccompanied children and passage of 2008 legislation that partially codified the decree by creating statutory standards for the treatment of unaccompanied minors. Denial of the motion was not an abuse of discretion, the judge said, based on the evidence before the court.

Flores v. Lynch, 15-56434, was argued in the Ninth Circuit by Peter A. Schey of the Center for Human Rights and Constitutional Law for the plaintiff and Deputy Assistant Attorney General Leon Fresco for the defendant.

Advocates Comment

Mark Krikorian, Center for Immigration Studies executive director, said allowing the parents to be released may have encouraged illegal immigration to migrate with children.

“It makes using children way less attractive,” he said of yesterday’s ruling.

DHS reported that more than 23,000 families have been apprehended in the first five months of the year compared to about 13,400 in 2015 and around 30,600 in 2014. Most are from Honduras, El Salvador or Guatemala.

Melissa Crow, legal director of the American Immigration Council, said she was “somewhat disappointed” with the ruling because the children’s parents can remain detained. “The court misses the point,” Crow said.

At issue are two detention centers in Texas that were built after a flood of immigrants in summer 2014 overwhelmed border authorities. The government poured millions of dollars into the two large detention centers after tens of thousands of immigrant families, mostly mothers with children from Central America, crossed the Rio Grande into the U.S. that year.

Many have petitioned for asylum after fleeing gang and domestic violence back home.

Homeland Security Concerns

A Homeland Security official told a group of immigration advocates in September 2014 that the jails were opened in part because roughly 70 percent of immigrant families released after being caught at the border didn’t report to immigration authorities as ordered.

Critics of the jails complained that they were not suited for children and later went to federal court to argue that the government was violating a decades old agreement about how immigrant children would be treated.

DHS didn’t respond to phone and email inquiries over how it planned to proceed.

If the government decides to start detaining parents after releasing their children, the children would be treated as unaccompanied minors. That means they would be turned over to the Department of Health and Human Services and placed either with relatives or possibly a foster family in the United States while they wait for DHS or a judge to decide if they will be allowed to stay in the United States.

Career law enforcement officials within DHS have long recommended detaining parents if their children must be released to ensure that the adults can be quickly deported, according to a U.S. official briefed on those recommendations.

The official said that detaining parents would also likely serve as deterrent to other people considering crossing the border illegally with their children. The official spoke on the condition of anonymity because the person was not authorized to disclose internal government discussions.