Last month, the Ninth Circuit issued a ruling that affects all unaccompanied minors in detention. The Court decided that children have the right to a hearing challenging their continued detention, as determined by a nationwide settlement agreement in 1997.
This decision has a tangible impact on the lives of children in prolonged secure detention. CAIR Coalition’s Detained Children’s program represented one such detained child last month in a hearing challenging his continued detention and separation from his mother, who was seeking his release.
A brief history of what the Ninth Circuit decision changed
In the U.S., a child apprehended by immigration authorities and determined to be unaccompanied is placed in the custody of the Office of Refugee Resettlement. Though this occurs in every child’s case, Congress never set the standard for the detention, release, and treatment of minors detained by the government.
In the absence of such standards, a settlement agreement named Flores v. Reno has provided children and their advocates the only tool to ensure government compliance for the past two decades. Thankfully for unaccompanied children, the Flores Settlement explicitly provides for their right to a “bond” hearing before an immigration judge.
Despite this explicit provision, the government successfully prevented unaccompanied children from exercising their right for the past 15 years by arguing that two different laws Congress passed in 2002 and 2008 terminated children’s right to such hearings.
The Ninth Circuit strictly disagreed, determining that those laws do not override the Flores settlement. If anything, the Court noted, Congress intends to further protect vulnerable children, not strip them of protections available to their adult counterparts.
Why this decision matters
CAIR Coalition represents children who have languished in detention for month or years with no end in sight. These children spend their formative years behind bars, merely for being undocumented. Some children have loving parents who have fought hard for their release to no end; many fled unspeakable violence. Instead of healing from years of trauma, children’s mental health frequently deteriorates in detention.
Before this decision, children were unable to request a hearing to challenge their prolonged detention. Unlike adults, children and their sponsors have to navigate bureaucratic channels that frequently take months or years to issue final decisions, without providing kids or their sponsors a single hearing.
The Ninth Circuit gave a moving account of how children and families “lose hope” and wait for years at a time, while given obtuse reasons for denials of release. The Court criticized the “bureaucratic limbo” that left so many kids detained with no end in sight.
Thanks to the Ninth Circuit’s decision, CAIR Coalition was able to bring the first Flores hearing nationwide a mere three weeks after the Court’s decision. The hearing was a helpful forum for a detained child who spent significant time in high security detention. This hearing enabled him to hold the government accountable for his indefinite detention without justification. For the first time in nearly 300 days, this child felt that his voice was heard.
