As a Trump administration lawyer made her argument in favor of reversing a ruling that found the government had violated standards for detaining migrant children set forth by a 1990s court settlement, the judges on the 9th Circuit Court of Appeals were visibly stunned.
“You’re really going stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?” Judge Marsha Berzon asked Sarah Fabian, the career Justice Department attorney representing the administration.
“I find that inconceivable that the government would say that that is safe and sanitary,” Judge William Fletcher weighed in.
“It’s within everybody’s common understanding: If you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that? Do you agree to that?” Judge Wallace Tashima asked when it was his turn to press Fabian.
The government’s oral arguments before the three-judge appellate panel in California last week caused an outcry among immigrant advocates and Democrats as segments surfaced online. They accused Fabian and the administration of making callous arguments and of suggesting it was not essential for the government to ensure migrant children in U.S. custody could sleep well and had access to basic hygienic products like soap and toothbrushes.
At the crux of the government’s argument is ongoing litigation surrounding the 1997 Flores agreement, a court settlement that stemmed from a 1987 case in which Jenny Lisette Flores, a 15-year-old girl from El Salvador, and three other migrant children filed a class action lawsuit against the government over poor detention conditions for minors in U.S. custody.
In 1997, both parties reached an agreement that along with prohibiting the government from detaining migrant families for more than 20 days, set standards for the care of migrant children in the custody of the Immigration and Naturalization Service (INS), a now-defunct branch of the Justice Department.
“Following arrest, the INS shall hold minors in facilities that are safe and sanitary and that are consistent with the INS’s concern for the particular vulnerability of minors,” the agreement reads. “Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.”
Since the INS was abolished in 2003, the Department of Homeland Security (DHS) has taken up most of its functions and is bound to the parameters set forth by the Flores settlement.
Over the years, however, immigration lawyers and advocates have accused various Republican and Democratic administrations of violating the agreement and housing migrants in poor conditions.