DOJ Calls Move To Reform Migrant Custody 'Judicial Rewrite'

By Asher Stockler
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Law360 (November 9, 2020, 10:04 PM EST) -- The Trump administration on Friday asked a California federal judge to reject a class action brought on behalf of unaccompanied migrant children, casting it as an attempted "judicial rewrite" of administration policy that is preempted by previous litigation.

Attorneys for the children have alleged that hundreds or thousands of detained migrant kids have been unfairly denied the opportunity to be released to a relative, live in less-restrictive housing or communicate with counsel, but the government responded that the children are already afforded adequate safeguards.

A 1997 agreement between immigration advocacy groups and the federal government already lays out a framework for challenging custodial decisions made by the Office of Refugee Resettlement, including judicial review of placement decisions and referral of outside legal services, and the migrant children should not be allowed to relitigate the terms of that settlement, the U.S. Department of Justice said.

"Plaintiffs ignore the policies and procedures that they themselves previously negotiated in a nationwide settlement agreement that resolved due process claims for placement, release, and legal representation," the DOJ said in a Friday filing. "Rewriting those procedures now under the same due-process theory as the prior suit would contravene settled principles of res judicata."

Three classes of migrant children in the custody of the Office of Refugee Resettlement, the federal agency responsible for unaccompanied migrant children, have alleged that the Trump administration has denied them procedural protections needed to enforce due-process rights guaranteed by the Constitution, federal law and the 1997 agreement reached in Flores v. Reno.

Despite a clear instruction that ORR place minors with family sponsors "without unnecessary delay" as mandated by Flores, the class action accuses ORR of making custodial decisions "with minimal if any oversight."

ORR does not provide written notice or rationale explaining its refusal to release migrant children "in all but the most limited circumstances," the plaintiffs said. Furthermore, ORR does not offer an opportunity to review or challenge the evidence used to make custodial decisions, they added.

The Justice Department rebutted these conclusions on Friday, arguing that there are already specific oversight procedures in place, such as weekly meetings among staff to discuss release options, "regular communications with potential sponsors" and a process for appealing adverse decisions.

"The [Flores] Settlement does not provide a right to the additional procedures Plaintiffs seek at all," the department wrote.

The lawsuit further contends that minors "stepped up" to more restrictive custody, akin to juvenile detention, are denied a meaningful chance to object. The plaintiffs say that children have been roused from their beds "in the small hours of the morning" only to end up at a detention facility "where they suffer irreparable harm."

In the most secure detention centers, "children are detained alone in small cells with concrete beds layered with only a thin mattress and no pillow," they said.

When deciding whether to "step up" migrant children, case coordinators "rarely speak with [the] children" themselves, the plaintiffs allege. Administrative appeals, they say, are limited to a single petition, not a hearing, and only after the child has spent 30 days in detention.

The Justice Department disputed the idea that children have no way of challenging their custodial placement, noting that Flores sets out procedures to obtain a new bond hearing or seek redress in federal court.

"Flores bond hearings and judicial review are available to any minor in ORR custody seeking reconsideration of a placement decision, regardless of the type of facility," the department wrote.

The children's attorneys said that ORR's policies and procedures prevent them from ensuring that their clients are afforded their rightful protections, but the Justice Department shot back that the lawyers do not have a right to "challenge routine ORR decisions involving step-up, release, and medical care."

Moreover, ORR policy provides for routine communication between case managers and counsel, the department said. Their motion castigated the relief sought by the plaintiffs as "sprawling," and requiring robust administrative procedures that could impinge on "ORR's discretion and operational ability."

Lawyers for the migrant children and the Justice Department did not return requests for comment.

The plaintiffs are represented by Carlos Holguin of the Center for Human Rights & Constitutional Law, Holly Cooper, Carter White, Daisy Felt, Jonathan Mulligan and Monica Julian of the University of California Davis School of Law, and Leecia Welch, Neha Desai, Poonam Juneja, Freya Pitts, Mishan Wroe, Brenda Shum, Crystal Adams and Melissa Adamson of the National Center for Youth Law.

The Department of Justice is represented by Jeffrey Clark, Scott Stewart, Ernesto Molina Jr., Christopher Bates, W. Daniel Shieh, Benjamin Moss, Nancy Canter, Anthony Messuri and Jonathan Ross.

The case is Lucas R. et al. v. Alex Azar et al., case number 18-05741, in the U.S. District Court for the Central District of California.

--Editing by Michael Watanabe.

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