9th Circuit: Immigrant kids must be released, parents can remain jailed

Homeland Security officials must quickly process and release children who illegally cross the border, but their parents may remain behind bars, according to a federal appeals court ruling last week.

At issue is a disagreement over a 19-year-old settlement requiring officials to process and quickly release immigrant children. Federal officials argued the settlement only applies to unaccompanied children, and that entire families should be detained until their court date. Human rights advocates said it applies to all children, and that, for the good of the children, the entire family should be released.

Last week’s unanimous decision by the San Francisco-based 9th U.S. Circuit Court of Appeals tried to stake out a middle ground.

The three-judge panel upheld a lower court’s ruling that said detaining immigrant children accompanied by their parents does violate the settlement—known as the Flores agreement. The court reasoned “minors who arrive with their parents are as desirous of education and recreation, and as averse to strip searches, as those who come alone.”

“This decision makes it clear that the Obama administration can no longer detain accompanied children for long periods of time in unlicensed, locked-down facilities,” said Peter Schey, one of the lead plaintiff attorneys in the case and the president of the Center for Human Rights and Constitutional Law, according to the Los Angeles Times.

But the appeals court also overturned a key portion of the lower court ruling: Immigration officials may continue to detain parents. Since U.S. District Judge Dolly Gee ruled last year that officials must release any adult traveling with a child, the number of families crossing the border has doubled. Officials apprehended 24,903 children and their families at the Mexico border through June 2015, according to U.S. Customs and Border Protection. During the same time period in 2016, officials apprehended 51,153 children and families. Most came from El Salvador, Guatemala, and Honduras.

Experts say some immigrants are exploiting children, sometimes even abducting them, to appear as a family and avoid detention. In 2014, a Homeland Security official said about 70 percent of immigrant families released after being apprehended at the border do not report to immigration officials as ordered.

Last week’s ruling could change all that.

“It makes using children way less attractive,” said Mark Krikorian, executive director of the Center for Immigration Studies.

But the decision “misses the point,” said Melissa Crow, legal director of the American Immigration Council. Crow argues the ruling still treats children unfairly by separating them from their parents. Released children would be placed with a relative, if possible, or turned over to the Department of Health and Human Services to be placed with a foster family while they wait for an immigration court decision.

But this is not a policy debate, it is a contract dispute, said John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies and a senior fellow at The Heritage Foundation.

“If the government enters into an agreement, the government is held to that agreement,” he said, noting the Flores agreement clearly applies to minors and does not specify whether they are accompanied or unaccompanied. The agreement also does not require the release of their parents.

“The government cannot come in later and say ‘we think we made a bad deal and we want to undo it,’” Malcolm said.

The federal government’s attorneys have not announced what they plan to do next. They could appeal the decision to the Supreme Court or ask the 9th Circuit to rehear the case with a full panel of judges.

“I would be very surprised if they didn’t appeal,” Malcolm said, adding he thinks the government’s odds of prevailing are “fairly slim.”