Expanded Hearing Rights for Detained Alien Minors

A federal appeals court has expanded protection of minor immigrants held by ICE to get a swift bond hearing before an immigration judge to allow the migrant to challenge the agency’s determination that the minor is a danger.

The order applies to unaccompanied minors who have previously been found not to be dangerous but were rearrested by ICE and held.

The ruling Monday by the 9th U.S. Circuit Court of Appeals upholds a nationwide preliminary injunction requiring a prompt hearing before an immigration judge so the minors may contest the basis for their arrest.

The decision comes in the case of a Honduran boy, identified only as A.H., who arrived at the US border at age 15 in 2015. He requested help at the border and was later found by the Office of Refugee Resettlement (ORR), not to be a danger or a flight risk and was released to live with his mother in New York.

In 2016, A.H. was charged as a juvenile with possession of a weapon, which was later dismissed after he completed community service. In March 2017, he was charged with possession of marijuana, which was also dismissed.

But in June 2017, ICE arrested him as part of “Operation Matador,” as a removable juvenile and he was flown from New York to a detention facility in Yolo County, California. The ICE program sought to gather migrants allegedly affiliated with gangs, something A.H. has denied.

Through his mother Ilsa Saravia, A.H. petitioned federal court in San Francisco seeking a bond hearing and asserting his detention violated his Fifth amendment due process rights. He asserted the claim on behalf of a class of all similarly situation unaccompanied minors.

The Trafficking Victims Protection law covering A.H., requires ORR to place unaccompanied children in the least restrictive setting that is in the best interest of the child. The preliminary injunction requires they be given a hearing on potential release on bond within seven days. A.H. and all other class members were found not dangerous.

The appeals court upheld the injunction and the requirement that ORR review the minor’s placement in a secure facility on a monthly basis.

In addition, a prior class action settlement, known as the Flores case, gives minors a right to a bond hearing to challenge any finding of dangerousness and to tell minors they have this right.

The appeals court said the government “did not provide a clear timeline for hearings,” instead describing the hearings as a “new requirement” and “a work in progress.”  That left the possibility of minors in the class remaining in ORR custody indefinitely.

Immigration officials must now give the migrant children a chance to challenge a finding that they be held as dangerous.

Case: Saravia v. Sessions, No. 18-15114



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