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7/5: Immigrant kids can’t be detained without their day in court, 9th Circuit rules
Released 20 August 2017  By Anita Chabria - The Sacramento Bee

Immigrant kids can’t be detained without their day in court, 9th Circuit rules

Anita Chabria - The Sacramento Bee
July 5, 2017

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.

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.

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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.


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