9th Circuit Opens Door for Mass Release of Illegal-Immigrant Minors

The 9th U.S. Circuit Court of Appeals ruled on Wednesday that illegal-immigrant minors must be granted a bond hearing — a hearing in which the burden of proof is on the government to show why the person should be held rather than released.

“The overall issue is that it releases people we know nothing about and can’t properly vet,” says Matthew O’Brien, a former trial attorney for Immigration and Customs Enforcement (ICE) who now works for the Federation for American Immigration Reform (FAIR).

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The justices of the 9th Circuit ruled against Attorney General Jeff Sessions, Secretary of Health and Human Services Tom Price, Secretary of Homeland Security John Kelly, and the U.S. Department of Immigration and Customs Enforcement, writing that two federal laws did not invalidate a 1997 settlement, in which the government had agreed to certain practices regarding the detention and release of illegal immigrant juveniles.

According to this agreement, referred to as the Flores settlement, minors cannot be held without being given a bond hearing at which they have the right to be represented by a lawyer, and at which the government must make an argument for why they should be held.

In a bond hearing in a regular criminal case, O’Brien noted, the government would have to show that the person is a danger or is a flight risk in order for a judge to agree that he should be held pending a trial.

Under mandatory detention rules, all illegal immigrants have always been considered a flight risk, as they are unlikely to show up at a future court appearance.

“That puts this on its head,” says O’Brien of the 9th Circuit’s decision, and adds that it removes a lot of the discretion normally accorded to ICE and Customs and Border Protection (CBP).

The case, he says, represents a “further erosion” of those agencies’ power to determine who should not be released for national security reasons.

“The interests of alien children should not trump the security interests of the citizens of the United States,” he told LifeZette.

In the original Flores case, which dates to the 1980s, a 15-year-old girl from El Salvador who’d entered the country illegally was handcuffed and detained in an area with minors of both sexes for two months.

But things have changed since the ’80s, and the influx of thousands of unaccompanied minors from Mexico and Central America, most of them male, created a crisis at the border in 2014 and 2015 after President Barack Obama signed the executive order creating DACA — Deferred Action for Childhood Arrivals.

Tens of thousands of illegal immigrant minors from Mexico and Central America have been released in the past few years and placed around the country. Many have joined the ranks of criminal gangs such as MS-13 in small, previously peaceful small towns like Central Islip on Long Island, New York, where young gang members murdered a teenage girl last year. The Department of Homeland Security estimates that there are more than 1,000 MS-13 members in towns on Long Island, and that most came to the U.S. as unaccompanied minors.

And while those claiming to be minors are supposed to show documentation to verify their age, many don’t have anything, making it very easy for an illegal immigrant who is 18 or older to claim that he is a minor, and thus win release — and avoid deportation.

But why would they be in a detention center in the first place?

A 2008 law meant to protect victims of human trafficking made it difficult for the U.S. government to deport unaccompanied minors. The law required the government to institute a legal process for unaccompanied minors from Central America, in particular, rather than quickly returning them to their countries. The legal process usually takes several years, and more often than not results in the minors remaining in the U.S.

Added to this is a special visa program that awards permanent residency status — “green cards” — to thousands of illegal immigrants who were detained as juveniles.

The 9th Circuit’s decision applies only to the western states — California, Idaho, Montana, Nevada, Oregon, and Washington — and also Alaska, Guam, Hawaii, and the Mariana Islands.

But other federal appeals courts are likely to consider its decision in similar cases, and it throws yet another wrench into the Trump administration’s efforts to enforce immigration laws.

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“I think all these things do is hobble the federal government and hobble ICE as they attempt to do their jobs,” says O’Brien. “We believe they should be challenging things like this. There’s no reason why, 20 years later, the government should be hewing to this agreement,” he said, referring to the Flores settlement.

After the 9th Circuit blocked the travel ban and the attempt to withhold funds from any city that refused to cooperate with enforcement of immigration laws, President Donald Trump said that he was “absolutely” considering proposals to break up the 9th Circuit, presumably into two or more smaller courts.

And now, he has a third reason to consider such a proposal.