Detaining migrant children without adequate food or water, soap or toothbrushes, and forcing them to sleep on a cold cement floor with a foil blanket does not meet “safe and sanitary” standards, a federal appeals court told the Justice Department Thursday.
The 9th US Circuit Court of Appeals found the Customs and Border Patrol was violating conditions of the long-standing Flores settlement, which sets terms for holding migrant children and limits detention to 20-days.
The government had appealed a lower court ruling 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.
Among the conditions the appeals court upheld was an order that the government appoint an internal “juvenile coordinator” to monitor government compliance with the terms and report back to the lower court.
Immigration officials must also consider release of the children after initial detention, with the first option being release to a parent, adult relative or legal guardian.
The DOJ attorney Sarah Fabian had argued that among the enumerated conditions in the settlement, nothing was said about allowing children to sleep or wash themselves with soap and so the original deal had been improperly modified.
“That cramped understanding… is untenable,” wrote Judge Marsha Berzon. The lower court’s interpretation of the agreement is consistent with the ordinary meaning of the language calling for “safe and sanitary” conditions.
During oral arguments in June, Judge Wallace Tashima said, “Under everyone’s common understanding, if you don’t have soap and you don’t have a toothbrush, it is not safe and sanitary. Wouldn’t everyone agree to that?” (During WWII, Tashima was held in a Japanese internment camp in Arizona.)
Joining Berzon in the opinion was Tashima and Judge William Fletcher.
Case: Flores v. Barr, No. 17-56297