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Detention of Immigrant Children – Litigated Some 30 Years Ago in Flores v. Reno – Back Before the Courts

Some 30 years ago in 1985, a lawsuit, Flores v. Reno, was brought against the government for detaining minor immigrant children in secure and unlicensed facilities. Twelve years later, in 1997, the government entered into a nationwide settlement agreement and agreed not to detain such children anymore. Those issues are back before the courts in the wake of DHS’s detention of Central American immigrant children and their mothers, which began in the summer of 2014.

The current litigation, brought in federal district court in February 2015, alleges that the government breached the 1997 Flores settlement agreement by detaining immigrant children in the same kind of facilities. After the parties failed to reach an agreement in July, the judge in the case, Judge Dolly Gee, stepped in and issued an order to show cause, essentially a ruling in which she found that the government had, in fact, breached the Flores agreement and that it could not hold the children any longer in these facilities. Judge Gee also found that the immigrant children should be released and preferably to a parent, including the parent with whom they had entered the country unless that parent posed a flight or security risk.

In its lengthy response, the government argued that the circumstances had changed since April 2015 and that it no longer had a blanket policy of detention. It argued that it now had a process whereby children and their mothers who passed the first hurdle of establishing “credible fear” – the first step toward winning asylum – were being released. It also argued that the court should revisit the order and reassess a number of the terms. Furthermore, the government asserted that detention ensured certain medical care and access to counsel to which the children would not be afforded if released. Plaintiffs replied. They argued that the government’s detention policies have not, in fact, changed and that access to counsel and medical care were, in fact, impeded by incarceration. Plaintiffs also argued that expedited removal is not required by law and that the government could issue a Notice to Appear and at the same time parole the women and children into the U.S. while they undergo their removal proceedings in immigration court at a later date. Plaintiffs pointed out that the government has in fact paroled in some children and women, at least for a period of time in July while they await their removal proceedings.

The judge very quickly denied the government’s request for oral argument and signaled that she is ready to rule on the case. A decision is expected by August 24. Assuming the order is issued for the plaintiffs, the government can appeal but it is not expected to do so. Instead, it is believed that the government may respond to pressure from advocates and members of Congress who have called for the end of family detention and will comply with the judge’s order in the case. Stay tuned.