Flores v. Lynch, an example of the risks in winning your case.

Sunday, August 21st, 2016
By: Jonathan MontagJ.D.

On July 6, 2016, the Ninth Circuit Court of Appeals released its decision in Flores v. Lynch, a lawsuit brought by the Center for Human Rights and Constitutional Law to decide about a difference in interpretation of a Settlement agreement the government entered into in 1997 regarding the detention of alien minors. Based on litigation back then regarding the detention and treatment of minors in detention, the government settled the lawsuits by agreeing to hold minors in facilities that are safe and sanitary and that are consistent with the INS’s (the entity that performed the functions of USCIS, ICE, and CBP before 2003) concern for the particular vulnerability of minors. Within five days of arrest, the INS must transfer the minor to a non-secure, licensed facility, but in the event of an emergency or influx of minors into the United States, the INS need only make the transfer as expeditiously as possible.

This part of the Settlement is the government’s promise not to hold children in jail-like conditions, but in safe, clean, not-locked-up conditions. There was more. The Settlement created a presumption in favor of release and family reunification. According to the Settlement, where the INS determines that the detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others, the INS shall release a minor from its custody without unnecessary delay, in the following order of preference, to:

A. a parent;
B. a legal guardian;
C. an adult relative (brother, sister, aunt, uncle, or grandparent);
D. an adult individual or entity designated by the parent or legal guardian;.
E. a licensed program willing to accept legal custody; or
F. an adult individual or entity seeking custody.

The Settlement required prompt and continuous efforts toward family reunification and the release of the minor. But, if the INS does not release a minor, it must place her in a licensed program. A licensed program, is defined in the Settlement as one licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, which must be non-secure as required under state law and meet the standards set forth in an exhibit attached to the Settlement.

Those standards include food, clothing, grooming items, medical and dental care, individualized needs assessments, educational services, recreation and leisure time, counseling, access to religious services, contact with family members, and a reasonable right to privacy. Some minors, such as those who committed crimes, may be held in a juvenile detention facility instead of a licensed program.

A 2008 statute codifed some of the terms of the Settlement. 8 U.S.C. § 1232(c)(2)(A) (an unaccompanied alien child “shall be promptly placed in the least restrictive setting that is in the best interest of the child,” subject to considerations of flight and danger).

As for the disagreement about the terms of the agreement that is the basis for the recent Flores decision, the disagreement regarded the handling of accompanied minors, i.e., children that came to the border with a parent or parents. The government asserted that the Settlement concerned only unaccompanied minors. If a child came to the border without parents, the child needed to be freed or held in settings that were not prison-like. Accompanied minors and their parents could be held as there was no obligation to release children. Sinisterly, the government also asserted that minors accompanied by their parents did not have to be afforded the humanitarian luxuries the Settlement provided to unaccompanied minors, prompting the Flores court to write, “The government has not explained why the detention claims class would exclude accompanied minors; minors who arrive with their parents are as desirous of education and recreation, and as averse to strip searches, as those who come alone.”

According to Flores, children should not be detained and efforts must be made to effect their release or transfer to a non-jail-like setting, but the parents accompanying the children can be detained. While the children are protected from prolonged harsh conditions by the Settlement, the accompanying parent or parents are not and can be held, presumably, as recently released CBP photos show, like baked potatoes.

Based on this ambiguity as to the parents, CBP and ICE were releasing mothers and children, but keeping fathers detained, though also because of the ambiguity, holding parents, including mothers, and their children and holding the children like baked potatoes. The decision in Flores v. Lynch made plain that the Settlement applied to all children, accompanied and non-accompanied, and to no adults, accompanied or non-accompanied by children. Parents, mothers and fathers, can remain detained. Children need to be released or held in non-jail-like settings.

Do you think CBP and ICE, with that ruling under their belt, will continue to release mothers and children or just the children? When it comes to making cruel decisions for bad reasons, ICE and CBP are kings, so you probably know what I think – ICE better procure more butter and chives, because there will be more mother and fathers held like baked potatoes. The humanitarian disaster of prying children from their parents arms and the administrative disaster of handling the parents’ and children’s cases separately is no longer a questionable interpretation of the Settlement. It is the law. Posted August 21, 2016.


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