On July 24, a federal court in California ruled that the Obama Administration’s policy of detaining mothers and children violated the 1997 Flores Agreement. In a 25-page ruling, Judge Dolly Gee noted she found it “astonishing” that immigration authorities had adopted a policy requiring such an expensive infrastructure without more evidence that it would be compliant with the agreement.
What is more astonishing is the government’s argument that detention was necessary as a deterrent for migrants – a policy reflecting complete disregard and understanding of the despair felt by those who flee for their lives and the lives of their loved ones. Judge Gee disagreed and ordered the government to comply with the Flores Agreement.
The government now has filed an appeal to the July ruling, and while it is still unclear what legal arguments the government will set forth in their appeal, Secretary Johnson made it clear that the government disagrees “with portions of the legal reasoning in the decision.” Let’s look at some of the government’s past arguments.
Back in February, the government argued that the Flores agreement does not apply to children accompanied by their parents. In its ruling, the Court concentrated on whether the definition of “minors” in the agreement encompasses “accompanied minors” and concluded that it does: “Because the plain language of the Agreement is clear that accompanied minors are part of the class, the inquiry can end here.” The ruling further states: “just because the Agreement does not explicitly provide for the release of parents and legal guardians or address the rights of adult detainees does not mean that the Agreement does not apply to accompanied minors.”
The line of reasoning the government chose to show the Agreement should not cover accompanied children ignores the agony of a dangerous journey that these mothers have embarked upon to save their children’s lives. Instead, the government argued in February that release of all accompanied children and their parents “incentivizes such families to make the dangerous journey to this country.” And that “[adults] looking to smuggle children would effectively be rewarded for having children accompany them.”
Do these mothers really have a choice? If the child remains at home, violence and death are not only highly probable but in many cases certain. If the mother sends her child abroad alone, the perils of the journey are life-threatening. Finally, if the mother accompanies the child, together they will face incarceration in a U.S. detention facility, where the child’s health and well-being are also at risk.
The government’s position that “unaccompanied children” deserve more protection than “accompanied children” is not only flawed, but illogical. Why should children who reach our borders deserve less protection simply because they are accompanied by a parent?
Another argument the government made in February was that recent circumstances, including the surge of migrant mothers and children, have changed so greatly that the government couldn’t comply with the Flores Agreement and also protect public safety. The reality is these mothers and children have left their gang-infested and violence-ridden countries seeking refuge. There is no evidence that any of these mothers and children would be a threat to public safety – they are trying to find peace.
Right now, an estimated 2,450 mothers and children are held at three family detention facilities, two in Texas and one in Pennsylvania. The Administration’s policy of family detention is cruel. Refugees deserve an opportunity to see a light at the end of a very dark tunnel of fear and despair. Detention exacerbates their condition and wounds their spirit. It is time to #EndFamilyDetention.
Written by Annaluisa Padilla, AILA First Vice President
If you are an AILA member, law student, paralegal, or translator, who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at firstname.lastname@example.org – we could really use your help this fall, particularly the week of October 11 and after.
If you would like to donate funds to help staff the project through the end of the year, we thank you in advance, and please see the American Immigration Council’s page dedicated to the fundraising effort.
To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.