Immigration policy hasn’t always been the friendliest to migrants entering the country illegally, especially young children. Activists and all those in favor of a more lenient policy will be happy with the U.S. 9th Circuit Court of Appeals’ recent decision that handed down a ruling confirming migrant children who cross the border accompanied by a parent are afforded the same protections as children who cross without one. The aspect gaining the most attention requires migrant children held in family detention centers be released without unnecessary delay, regardless of whether they crossed the border alone or with a parent.
Why is this important, you ask? Well, in the past, unaccompanied children were the only ones afforded any protection. Situations affecting children accompanied by parents went, for years, largely unnoticed. It wasn’t until members of a nearly two-decade-old class action lawsuit brought the issue to the forefront and requested the court order authorities to enforce the Flores Agreement.
A Little History on the Flores Agreement
Back in the 80’s, a few organizations filed a class action lawsuit on behalf of immigrant children who had been detained by the Immigration and Naturalization Service (INS). The lawsuit basically challenged the procedures regarding detention, as well as the treatment and release of children detained after illegally entering the country. In 1997, the lawsuit eventually ended up settling and, thus, the Flores Settlement Agreement was born. That Agreement required government authorities to:
- Release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
- If a suitable placement is not available, government authorities are required to place the children in the “lease restrictive” setting appropriate to their age and any special needs.
- Implement and maintain standards relating to the care and treatment of children in immigration detention.
The Office of Refugee Resettlement (ORR) replaced the INS and now oversees responsibility for the care of these unaccompanied children. Herein lies the crux of the question before the Court of Appeals. Does the Flores Agreement apply to all children—unaccompanied and those that are accompanied by their parents?
Lower court Ruled Yes Based on Contract Law
In July 2015, Judge Dolly Gee of the U.S. District Court for the Central District of California ruled that the government violated the terms of the Agreement. Not only did she find the detention centers to have deplorable conditions, but she ruled the Flores Agreement applied not just to children who cross the border alone, but to children accompanied by parents as well.
The enforcement of the Agreement is based solely in contract law and that’s where the courts get their power to interpret and enforce such an agreement. This means the courts must consider the contract as a whole and give effect to the mutual intention of the parties; following plain language only controls when the contract terms are clear. Judge Gee ruled the plain language of the Agreement encompassed accompanied children.
Here’s an excerpt from the Agreement:
“All minors who are detained in the legal custody of the INS.”
All minors. Looks pretty clear, right? To further back her decision, the Agreement defines a minor as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Simple contract law tells us that when language is ambiguous, extrinsic evidence of intent is admissible. Judge Gee considered this language as wholly unambiguous and, therefore, even if the government had offered any evidence to a contrary intent, which they didn’t, it wouldn’t have mattered—the language is clear and doesn’t place any restrictions on a child’s travel partner (or lack thereof).
What About the Parents?
The Court of Appeals agreed with Judge Gee’s decision. Not only is the language clear, but, secondly, the Agreement provided special provisions in relation to unaccompanied minors. As Judge Gee reasoned, it wouldn’t make much sense to include extra guidelines specifically for unaccompanied children if the intention was to only applied to unaccompanied minors. Third, the Court of Appeals affirmed that the Agreement included two different definitions of minors that would not be protected—accompanied minors were not one of them.
The unfortunate part of this case is that because the decision rests solely on contract law principles, this means the court had no place to determine issues outside the Agreement. The Flores Agreement pertains strictly to migrant children—parents aren’t protected. Since neither court could address any issues outside the contract of Flores, it raises potential issues.
Where does that leave accompanying parents when the law requires that their children be timely released from detention? The only alternative is to release the children and let their parent(s) be released with them. The government could employ alternative means to detention, but this is definitely an area that will need to be addressed and we’ll likely see the effects of the ruling sooner rather than later.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law