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Federal Judge Harshly Rebukes Government’s Treatment of Immigrant Children Held in Detention

By WPPilot (Own work) [CC BY 4.0 (], via Wikimedia CommonsThe United States has long viewed itself as a beacon of freedom and hope for the rest of the world. The Statue of Liberty stands atop a pedestal bearing Emma Lazarus’ famous words “Give me your tired, your poor, your huddled masses yearning to breathe free.” Living up to these words is always a challenge, and those who advocate for immigrants seeking a better life in America often find themselves standing against a state that finds it easy to lock people away. A federal judge recently issued an important ruling affecting over 1,000 immigrant parents and children in the custody of the U.S. Department of Homeland Security (DHS). The judge ordered most of the children released under a settlement agreement that took effect in 1997. The government has until late October to comply.

More than 68,000 people, many of them children, were taken into DHS custody at or near the U.S.-Mexico border in 2014. Some were apprehended trying to cross the border, while others surrendered to Customs and Border Patrol (CBP) officials and requested asylum. Most of these people were fleeing crime and civil unrest in Central America. Immigration and Customs Enforcement (ICE) adopted a policy of detaining families headed by a female adult, including children, for the duration of any proceedings to determine if they qualify for immigration benefits. It is currently holding about 1,400 parents and children in three detention centers, one in Pennsylvania and two in Texas.

The current legal proceedings began as a class action filed by the National Center for Immigrants’ Rights (NCIR) and the National Center for Youth Law (NCYL), Flores v. Meese, No. 2:85-cv-04544 (C.D. Cal., Jul. 11, 1985). Litigation from 1985 to 1991 resulted in rulings that the Immigration and Naturalization Service (INS) policy “to strip search all juvenile aliens upon their admission to INS detention facilities, and following all visits with persons other than their attorneys” violated the Fourth Amendment. Flores v. Meese, 681 F.Supp. 665, 666 (C.D. Cal. 1988), rev’d 934 F.2d 991 (9th Cir. 1990), aff’d en banc 942 F.2d 1352 (1991). The Supreme Court reversed this ruling, finding the INS policy to be “a reasonable response to the difficult problems presented when the Service arrests unaccompanied alien juveniles.” Reno v. Flores, 507 U.S. 292, 315 (1993).

The plaintiffs and the federal government reached a settlement, now known as the “Flores Agreement,” and entered it in the court’s files on January 17, 1997. The 23-page agreement establishes procedures for “expeditiously process[ing]” minors taken into custody by the INS and providing them with notice of their rights. Flores Agreement at 7. It sets minimum standards for detention facilities, including access to food, water, toilets, and medical attention. It states that the preference must be to release minor detainees “without unnecessary delay” to a parent, guardian, or adult relative, id. at 10. It also requires monitoring and reporting regarding minors held for longer than 72 hours.

The NCIR and NCYL brought an action in February 2015 against DHS, which replaced the INS after Congress passed the Homeland Security Act of 2002, to enforce the Flores Agreement based on conditions in the three detention facilities. The court found DHS in breach of the Agreement and granted the plaintiffs’ motion to enforce it in July 2015. In a formal written order issued on August 21, 2015, the court gave DHS until October 23 to remedy its breaches by releasing most of the children in its custody.

Immigration attorney Samuel C. Berger represents individuals who want to immigrate to the United States, or who have already made their homes in the New York City and Northern New Jersey areas, as well as family members and employers petitioning on an immigrant’s behalf. To schedule a confidential consultation with a knowledgeable and experienced advocate for immigrants’ rights, contact us today online or at (212) 380-8117.

More Blog Posts:

The Right of Asylum for Immigrants in New Jersey and New York, New York & New Jersey Immigration Lawyer Blog, August 27, 2015

How Immigration Laws Regarding Refugees and Asylum Relate to the Situation at the U.S.-Mexico Border, New York & New Jersey Immigration Lawyer Blog, July 9, 2014

BIA Standards in Deportation Cases are No Better than Rolling Dice, says Supreme Court, New York & New Jersey Immigration Lawyer Blog, January 10, 2012

Photo credit: By WPPilot (Own work) [CC BY 4.0], via Wikimedia Commons.