The Ninth Circuit Court of Appeals is hearing arguments by attorneys from the Department of Justice, who are saying that detained immigrant minors do not have the right to a bond hearing. According to DOJ attorney Sarah Fabian, granting children a bond hearing is “just bandaging the wrong leg. Providing a bond hearing is not a solution.”
After the settlement of Flores v. Meese, et al., detained immigrant children have the right to a bond hearing for their release in front of an immigration judge. The landmark stems from a group of minors fleeing torture and abuse in Central America, and later detained by the Immigration and Naturalization Service (INS), a now-defunct agency whose functions have since been absorbed by U.S. Immigration and Customs Enforcement (ICE).
But in 2015, the federal government claimed that legislation passed since 1997 have since revoked this precedent.
In particular, the government refers to the Homeland Security Act of 2002, which transferred the custody of detained minors from the INS to the Department of Health and Human Services (HHS). Another law passed in 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), enacted guidelines for the HHS when turning over unaccompanied minors to suitable guardians to ensure their safety.
Citing both laws, U.S. Attorney General Jeff Sessions moved to nullify the bond hearing requirement of unaccompanied minors, finding it in conflict with the TVPRA provision requiring the HHS to make release decisions based on the minor’s safety. The government eventually announced that detained children would no longer be granted bond hearings.
In response, the Flores plaintiffs petitioned to enforcement the settlement’s agreement in Los Angeles Federal Court, a motion granted by U.S. District Judge Dolly Gee.
She agreed with the plaintiffs’ argument that when Congress moved the custody of detained minors to the HHS through the Homeland Security Act, it enacted a “savings clause” that moved the INS’ legal obligations to its succeeding agencies. She added that the provision was not against the TVPRA safety requirements.
But a month later, the Ninth Circuit granted the federal government’s petition to stay Gee’s ruling upon appeal.
This month, Ninth Circuit Judge Marsha Berzon grilled the DOJ’s Fabian over Gee’s due process decision, saying there was a lack of due process in the TVPRA for placing a child in what is essentially juvenile detention.
Fabian argued that HHS procedures could be modified to guarantee due process, but Berzon appeared dissatisfied. She eventually shot down Fabian’s key argument that had Congress actually intended for detained minors to receive bond hearings, it would have stated so in the TVPRA.
“That’s one possibility. And another possibility is (Congress) knew about the settlement agreement, they knew these children were to have bond hearings, and if they were trying to overrule it they would have said that. You have the classic problem of what’s essentially a repeal-by-implication argument, although in a peculiar context, because it’s a settlement agreement, not a statute,” Judge Berzon said.
For further updates on this case, be sure to follow this blog. If you, or a loved one, are facing a case involving an unaccompanied minor, learn about your rights by talking to the legal team of the Lyttle Law Firm. Contact our offices to sit down with a consultation with immigration lawyer Daniella Lyttle.