An incredulous panel of appeals judges asked a government lawyer if she was not really arguing that it was “safe and sanitary” to make detained migrant children sleep on a cold cement floor with a foil blanket and lights on all night, and no soap or toothbrushes.
The 9th US Circuit Court of Appeals this week heard the government challenge a lower court finding that Customs and Border Patrol had violated conditions of the long-standing Flores settlement, which set terms for the holding of migrant children.
The government was appealing a finding that it violated the agreement and must come into compliance. The immigration authorities argue that the lower court order imposes new terms on the government that were not part of the original Flores settlement.
The Flores settlement is best known for its term that children may not be held longer than 20 days in custody but also includes a number of conditions for holding children.
“’Safe and sanitary’ is not enumerated in the terms of the settlement, it was left to the agency,” argued Sarah Fabian for the Dept of Justice.
Judge William Fletcher responded, “But it is so obvious that if people are left to sleep on a concrete floor with a foil blanket it does not meet the standard. I know they don’t get super thread-count Egyptian cotton, but it gets really cold and the lights are on all night.”
Judge Marsha Berzon added, “You know we have an opinion that it is unconstitutional to make homeless people not sleep?”
“You’re not arguing that you don’t have to do more on a cold night with the lights on, than say you can sleep on concrete and get an aluminum blanket?” Fletcher pressed.
“And it’s too crowded to lie down,” Berzon added.
Fabian acknowledged that sleeping conditions were at “the more difficult end” of the government’s argument.
So the panel turned to soap and toothbrushes.
Soap and a Toothbrush
“Under everyone’s common understanding, if you don’t have soap and you don’t have a toothbrush, it is not safe and sanitary,” said Judge Wallace Tashima. “Wouldn’t everyone agree to that?” (During WWII, Tashima was held in a Japanese internment camp in Arizona.)
Fabian argued that many in the facilities were there for very short periods.
“Maybe they are, but they did not have soap, a toothbrush or toothpaste for days,” he said.
Fletcher added there is evidence that many people were not getting these things for a substantial period.
The court order calls for soap, Fletcher suggested. “It wasn’t high class milled soap, it was soap. Are you arguing with that?”
“Simply not providing them does not violate the agreement,” Fabian said.
Yet, the court may not weigh in on those issues in its final opinion. The panel also pressed whether it even had jurisdiction to hear the case at this stage and whether the government simply had to comply at this stage.
Berzon pointed out that a since this was appealed, the trial judge in Los Angeles has appointed an independent outside monitor to ensure terms of the agreement are met. Maybe the government doesn’t want to appeal at this point, she said.
Peter Schey, attorney for the children was question about what difference it makes whether the children are in the custody of the Office of Refugee Resettlement (ORR) or Immigration and Customs Enforcement (ICE).
He said the agreement is binding on ORR, but as a practical matter ICE has custody of tens of thousands of children and the government can’t point to a single case of a child transferred from ICE to ORR.
ORR has no bed space for them, Schey said. But under terms of the settlement, whoever has custody must make a continuous effort to release the child to a relative. The judge has said ICE lacks the capacity to decide if a child has a suitable custodian.
“It is creating an administrative nightmare,” he said.
He also noted facilities for children are supposed to be licensed but Texas and some other states have no licensing system for this. In Homestead, Florida, there is a military camp with 2,000 children. There is currently a motion to enforce the Flores terms and “we’re meeting this Friday” to work it out, he said.
The panel did not rule but will issue a written opinion in coming weeks.
Case: Flores v. Barr, No. 17-56297