Government Management of Accompanied Minors Held in the Custody of Immigration Authorities

James A. Armontrout; John R. Chamberlain

Accompanied Minors Who Are Held in Immigration Proceedings Are Entitled to the Protections Outlined in the 1997 Settlement of Reno v. Flores

In Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016), Jenny Lisette Flores brought an action against Immigration and Customs Enforcement (ICE) related to their practice of detaining accompanied minors who are held in deportation proceedings in secure, unlicensed facilities. Ms. Flores argued that this detention violated a 1997 settlement from Reno v. Flores, 507 U.S. 292 (1993) (the Settlement). Ms. Flores based her assertion on the facts that the Immigration and Customs Enforcement (ICE) had adopted a no-release policy and confined children in secure, unlicensed facilities. In its response, the government argued that only unaccompanied minors were covered by the Settlement and that, as such, the Settlement did not apply to ICE policies toward accompanied minors.

The Ninth Circuit Court of Appeals held that the Settlement applied to accompanied minors, that modification of the Settlement was not warranted, and that the Settlement did not provide affirmative release rights to parents who accompanied detained minors.

Facts of the Case

In 1984, the Western Region of the Immigration and Naturalization Service (“INS”) adopted a policy that prohibited the release of detained minors to anyone other than “a parent or lawful guardian, except in extraordinary cases” (Lynch, p 901). In 1985, Ms. Flores filed an action in the U.S. District Court for the Central District of California challenging this policy and challenging the conditions under which juveniles were detained pursuant to this policy. Ultimately, this action resulted in a 1997 settlement, regarding the treatment of minors in immigration proceedings. The Settlement defined a “minor” as any person under the age of 18 years and in the legal custody of the INS. There were exceptions for emancipated minors and individuals who had been incarcerated due to criminal convictions as an adult.

The Settlement provided that after the INS takes a minor into custody, the INS must hold minors in facilities that are safe, sanitary, and in accord with “particular vulnerability of minors.” In addition, the INS was required to transfer minors to licensed, nonsecure facilities within five days of arrest, or “as expeditiously as possible” if there is an emergency or influx of minors into the United States. The Settlement also favored release and family reunification. It specified that the minor should be released in order of preference to (1) a parent; (2) a legal guardian; (3) an adult relative, (4) an adult individual or entity designated by the parent or legal guardian; (5) a licensed program willing to adopt legal custody; or (6) an adult individual or entity seeking custody.

In 2014, Immigration and Customs Enforcement (ICE), which took over most of the immigration functions of the INS after Congress abolished the INS in 2002, opened family detention centers in Karnes City, Texas; Dilley, Texas; and Artesia, New Mexico, in response to a surge of undocumented Central American immigrants. The centers operated under ICE's Family Residential Detention Standards, which did not comply with the Settlement. As a result, in February 2015, Ms. Flores filed a motion alleging that ICE had breached the terms of the Settlement by (1) adopting a no-release policy and (2) confining children in the secure, unlicensed facilities at Dilley and Karnes. The U.S. District Court for the Central District of California granted Ms. Flores' motion, denied the government's assertion that the Settlement does not apply to accompanied minors, and held that the Settlement requires the release of a minor to an accompanying parent, “as long as doing so would not create a flight risk or a safety risk” (Lynch, p 905). The government appealed.

Ruling and Reasoning

The Court of Appeals for the Ninth Circuit held the Settlement “unambiguously applies both to accompanied and unaccompanied minors, but does not create affirmative release rights for parents” (Lynch, p 901). The court stated that the task in this case was “straightforward—we must interpret the Settlement” (Lynch, p 901). The Settlement was written to apply to all minors who are detained in the custody of INS. The Settlement's inclusion of special guidelines for unaccompanied minors provided evidence that the Settlement as a whole did not intend to limit itself to unaccompanied minors. The Settlement was explicit about excluding emancipated minors and minors who have been incarcerated for criminal offenses as an adult. Accordingly, accompanied minors could have been specified for exclusion as well if that had been the Settlement's original intent.

The court rejected the government's argument that because the certified classes in Reno v. Flores were limited to unaccompanied minors, the parties could not have entered into a settlement granting rights to accompanied minors. The conduct that Ms. Flores challenged applied to accompanied and unaccompanied minors alike, and the court noted that “minors who arrive with their parents are as desirous of education and recreation, and as averse to strip searches, as those who come alone” (Lynch, p 907). In reversing one part of the ruling of the district court, the Ninth Circuit held that the Settlement did not require the government to release parents of accompanied minors. “The fact that the Settlement grants class members a right to preferential release to a parent over others does not mean that the government must also make a parent available; it simply means that, if available, a parent is the first choice” (Lynch, p 908). Noncriminal aliens who are detained in removal proceedings typically have the burden of establishing that they are not a threat and they do not pose a risk of flight. The district court's holding would have shifted this burden to the government. This shift would have the effect of erroneously creating an affirmative right of release for parents, which was not found in the original Settlement.

Finally, the government motioned to amend the Settlement, asserting the surge in family units crossing the border makes it “no longer equitable” to enforce the Settlement as written. However, the court noted that the original Settlement had anticipated an influx and provided that under such circumstances the government would have more time to release minors or to place them in licensed facilities. Because no unanticipated conditions had arisen, the original Settlement still stood. The court rejected the government's assertion that the law has changed substantially since the Settlement was approved because the law the government referred to was passed in 1996, before the Settlement was approved. Further, the “bureaucratic reorganization” of the INS to the Department of Homeland Security (DHS) was not grounds for invalidating the Settlement.

Discussion

The Reno v. Flores Settlement provided rights to minors who are held in deportation proceedings. The decision by the court of appeals in Flores v. Lynch clarified that the Settlement applies to both accompanied and unaccompanied minors. The present decision by the court of appeals also rejected the government's attempts to modify the Settlement. The Flores v. Lynch ruling strengthens the position of accompanied minors by clarifying they are entitled to the same protections that the Settlement grants to unaccompanied minors. Both the Settlement and the current ruling raise questions upon which the psychiatrist might be asked to comment. For example, psychiatrists might be called upon to assess minors for their risk of dangerousness, as a finding of dangerousness could impact their standing under both the Settlement and the present ruling. A second question that psychiatrists might be asked to comment on is what needs minors have in placement settings to satisfy their rights under the Settlement and the current ruling. Finally, psychiatrists could be called upon to assess adequacy and appropriateness of placements for minors and services offered at such facilities.