Children Go Free, Parents Remain Detained: Ninth U.S. Circuit Court of Appeals

The Ninth Circuit Court of Appeals ruled yesterday on a dispute regarding the Flores national settlement agreement, which has dictated how the government can treat detained illegal immigrant children for almost 20 years. This has resulted in recent protests in California regarding the detention of parents with their children. These protests have occurred several times in the past.
There are two general categories of detained children, those who arrive without their parents, who are called “unaccompanied,” and those who arrive with a family member who are defined as “accompanied.” Accompanied children are now often detained for a long time along with their parents in adult style detention facilities. Under Flores in the past, unaccompanied children must be released to parents or guardians or moved as quickly as possible to places that do not resemble jails, such as foster homes, unless they have committed crimes.
In light of the big increase in asylum seekers from Central America who have been arriving in the U.S. with their children in recent times, the government has been refusing to release accompanied children under the Flores settlement because they argued that the settlement did not apply to people who arrive with their parents or adult relatives. A California district court ruled that not only did the settlement apply to accompanied children, but they had to be released with their mother or father if the parent did not pose a “significant” risk of flight. This second part was not a stated part of the settlement.
Federal Circuit Courts are the last courts of appeal before the U.S. Supreme Court. The U. S. Court of Appeals for the Ninth Federal Circuit, widely considered the most liberal of the Federal Circuit Courts, agreed partially with the District Court, but reversed the portion of the decision that said that Flores required that a parent be released with the accompanied child. They ruled that the Flores settlement did not apply to parents, partly because parents were not plaintiffs in the original suit.
This decision means that immigration must release accompanied children, either to a guardian or relative or to a foster care facility, as soon as practical, but they are not required to release either of the children’s parents with them, whether or not they are a flight risk. Relatives are usually required to file an Affidavit of Support that they will provide financially for the child, and agree that they will help make sure the child appears at future Immigration Court hearings.
Both Congress and the courts have agreed in the past that it is not appropriate to hold a child under the age of 18 in a detention facility with adults, or in a place where they have no access to education, visitation or recreation and are subject to strip searches like an adult. It is unknown whether the Government will try to appeal this decision to the U. S. Supreme Court.

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