Juveniles held in immigration detention centers have a right to bail hearings under a 1997 court settlement that established a national policy for the detention, release and treatment of minors held by immigration authorities, a federal appeals court ruled Wednesday.
The 9th U.S. Circuit Court of Appeals ruling is a blow to the U.S. Justice Department efforts to crack down on undocumented immigrants and to send them swiftly back to their home countries.
The Trump Administration had argued that two laws, passed in 2002 and 2008, the Trafficking Victims Protection Reauthorization Act, trumped the 1997 deal.
But the 9th Circuit said Congress never expressly nullified or changed the 1997 settlement allowing for bail hearings for minors.
“If Congress had intended to terminate the settlement agreement in whole or in part, it would have said so,” wrote Judge Stephen Reinhardt.
The TVPRA and the 2002 law were intended to protect “a uniquely vulnerable population: unaccompanied children,” he said. In passing both laws Congress desired to better protect unaccompanied children. Depriving them of their existing right to a bond hearing would be incompatible with that aim, he said.
Even if an immigration judge finds that the form of detention was improper, the government must still identify a safe and secure placement to release the children.
Reinhardt also said the child has a the right to be represented by an attorney and have the merits of his or her detention assessed. Without these hearings a child has no meaningful way to challenge a decision to detain them and they are held “in bureaucratic limbo.”
Judges Wallace Tashima and Marsha Berzon joined Reinhardt.
Case: Flores v. Sessions, No. 17-55208