The End of Family Detention or Another Rabbit Hole of Litigation? | CLINIC

The End of Family Detention or Another Rabbit Hole of Litigation?

Michelle Mendez

On July 24, 2015, Judge Dolly Gee of the United States District Court for the Central District of California issued a long-awaited decision applying the Flores Settlement Agreement of 1997 to the minors currently detained in Dilley and Karnes City, Texas, and in Leesport, Pennsylvania.

The Flores Settlement Agreement of 1997 set the standards for the detention, release, and treatment of minors.  It resulted from a class action lawsuit challenging the way the Immigration Service processed, apprehended, detained, and released minors in its custody. The agreement required that the agency hold minors in the least restrictive setting appropriate to their age and special needs in order to ensure their protection.  It also required the agency to release them from custody without unnecessary delay to a parent, legal guardian, adult relative, or other proper adult. See 8 CFR §§ 236.3, 1236.3. The Flores Agreement made no distinction between minors accompanied or unaccompanied by a parent.

Fast forward to February 2015 following the closure of the temporary family detention in Artesia, New Mexico, the continuation of the Berks Family Residential Center in Leesport, Pennsylvania, and the designation of two new family detention centers in Texas: South Texas Family Residential Center and Karnes Country Residential Center. Flores counsel sought enforcement of the 1997 Settlement Agreement arguing that ICE had violated the agreement by detaining minors and their mothers in secure facilities that were not the least restrictive setting. They also argued that ICE had not complied with the minimum standards for short-term custody by subjecting them to cold temperatures in the CPB holding facilities (nicknamed “hieleras”). Government counsel argued that the Flores Settlement Agreement of 1997 only applied to unaccompanied minors and did not apply to minors accompanied by their parents or legal guardians.

Judge Gee agreed with Flores counsel that the Flores Settlement Agreement of 1997 applied to all children in ICE custody, even those accompanied by parents or legal guardians. Judge Gee, a 2009 Obama appointee who is the daughter of Cantonese immigrants, reasoned that because Flores requires release of a minor to a parent when a parent is available, that the parents and their children should be released together.  Immigrant rights advocates welcomed this decision as possibly the end to family detention. The government has 90 days to respond to Judge Gee’s decision explaining why her order should not be implemented. In the meantime, CLINIC’s contract attorneys based in Dilley, Texas, who are part of a four-agency CARA Pro Bono Project, report that hundreds of new mothers and their children continue to be detained and deported.

At the core of this legal battle was the difference between accompanied and unaccompanied minors – a topic that continues to mystify even the most seasoned immigration practitioners. The term “unaccompanied alien child” (UAC) means one who has no lawful immigration status in the United States, has not attained 18 years of age, and either has no parent or legal guardian in the United States or has no parent or legal guardian in the United States who is available to provide care and physical custody. See Homeland Security Act of 2002 § 462(g), 6 USC § 276(g), adopted by TVPRA § 235(g). Either ICE or CBP determines whether a minor is accompanied or unaccompanied at the time the minor is apprehended at the border. Once the UAC determination is made, only an affirmative act by the Department of Health and Human Services, ICE, or CBP can terminate a UAC finding. Releasing a minor from DHHS custody to a parent is not an act that affirmatively terminates UAC status. A parent or a third party obtaining a state custody order does not terminate UAC status. Nor does the minor’s turning 18. Practitioners should know the definition of a UAC because of the benefits this determination offers. For example, Asylum Offices have initial jurisdiction over asylum applications filed by UACs, even those currently in removal proceedings. This provides an additional opportunity to prove asylum eligibility, since the one-year filing deadline applicable to asylum applicants does not apply to UACs. See TVPRA § 235(d)(7)(A) and (B).

The Flores order is available at https://www.documentcloud.org/documents/2179157-flores-order.html. For more information on the CARA Project, go to https://cliniclegal.org/CARA