Unaccompanied minors in immigration detention are entitled to bail hearings in front of an immigration judge, a federal appeals court panel ruled unanimously Wednesday.
The Justice Department argued that a 2002 law transferring responsibility for unaccompanied immigrant minors to the Department of Health and Human Services and a 2008 law aimed at limiting human trafficking superseded a 1997 settlement under which the government agreed to provide such hearings.
However, the three-judge 9th Circuit Court of Appeals panel disagreed.
“Not a single word in either statute indicates that Congress intended to supersede, terminate, or take away any right enjoyed by unaccompanied minors at the time of the acts’ passage. Thus, we hold that the statutes have not terminated the Flores Settlement’s bond-hearing requirement for unaccompanied minors,” Judge Stephen Reinhardt wrote, joined by Judges Marsha Berzon and Wallace Tashima.
Government lawyers argued that meetings HHS officials hold with detained minors are sufficient to protect their interests. But immigration lawyers are not permitted at those sessions, and they lack many of the formal procedural safeguards of immigration court hearings.
The decision rejected an emergency appeal filed in February as one of the Justice Department’s first immigration-related actions under President Donald Trump, although the government took a similar stance under President Barack Obama.
At the government’s request, another 9th Circuit panel temporarily halted a lower-court judge’s order requiring the bond hearings for minors earlier this year. That stay was canceled Monday.
Justice Department spokeswoman Nicole Navas said government lawyers are mulling what to do next. Options include asking a larger set of 9th Circuit judges to take the case or seeking review by the Supreme Court.
“The Justice Department is reviewing the court’s ruling and considering next steps in the litigation,” Navas said Wednesday.
A lawyer representing immigrant children in the litigation, Holly Cooper, hailed the ruling.
"We are elated and think the decision provides a much needed check on the power to detain a child with no judicial oversight, " Cooper told POLITICO.
HHS’ Office of Refugee Resettlement, which is in charge of making arrangements for unaccompanied child immigrants, "will now have to answer with evidence in an adversarial hearing the reasons for its prolonged confinement of children," she added. "It can no longer cloak itself in child welfare garb while denying children basic rights that are fundamental to our democracy."
The litigation that led to the settlement involving immigration detention of minors was filed in 1985 against then-Attorney General Edwin Meese. The agency responsible for such issues at the time, the Immigration and Naturalization Service, no longer exists. Most of its activities have been taken over by the Department of Homeland Security.
The 1997 consent decree required bond hearings for minors until final procedures were set on how to handle children accused of being in the U.S. illegally. Those regulations have never been issued.
Reinhardt is a President Jimmy Carter appointee. Berzon and Tashima were appointed by President Bill Clinton.