(Bloomberg) -- Children who allege they’re being detained for crossing the U.S. border without any court oversight and forcibly medicated will have to wait another month for a judge to consider whether the government’s practices violate a 1997 agreement.
A federal judge in Los Angeles on Monday postponed to July 27 a hearing that had been scheduled for this week. U.S. District Judge Dolly Gee gave human rights’ lawyers representing immigrant children two days to respond to a separate U.S. Justice Department request to modify the 1997 settlement that restricts the use of detainment so that children caught crossing the border illegally can be held together with their families.
Even though President Donald Trump was forced by public outcry last week to reverse his administration’s policy of separating families caught crossing the border illegally, there doesn’t seem to be an end in sight to the questions it raises and challenges that lie ahead.
The child-separation policy, spearheaded by Attorney General Jeff Sessions and defended by Trump’s staunchest allies, sparked national outrage and bipartisan criticism in Congress.
After Trump’s June 20 executive order to end family separation at the border, the Justice Department asked Gee to alter a 1997 national settlement agreement that bars immigration officials from detaining undocumented children for longer than 20 days so they can be held indefinitely with their families.
That won’t be simple. Republican Senator Jeff Flake of Arizona said on ABC Sunday he expects Trump’s order will be struck down. “Congress has to fix this” with another solution such as monitored release, he said. Trump complicated things even further, saying on Twitter the same day that people who “invade” the U.S. illegally should be deported immediately without due process.
“We cannot allow all of these people to invade our country,” he wrote on the social-media site. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
Previous administrations avoided the 20-day deadline entirely by releasing families after asking them to appear in court at a subsequent date, according to Lee Gelernt, a lawyer at the American Civil Liberties Union. The Trump administration announced its “zero tolerance” policy in April -- detaining families trying to cross the border without visas and separating the children from their parents. It is now saying that if the Los Angeles judge doesn’t tweak the Flores settlement, as it’s called, it will be forced to resume breaking up families.
Separate allegations in the 33-year-old lawsuit that led to the Flores settlement muddy things even further. Immigrant children in the care of the U.S. Health and Human Services Department are being locked up “without the most rudimentary procedural fairness” and are forced to take psychotropic drugs against their will and without their parents’ consent, human rights lawyers allege.
In addition, the parents or other custodians of the children have to go through a Kafkaesque experience to free the minors from detention by the Office of Refugee Resettlement, the Health and Human Services unit that is responsible for them, according to a request from the lawyers to have a federal judge step in.
“Awakening youth in the small hours of the morning and transferring them to juvenile lock-ups without notice or opportunity to be heard breaks faith with both law and common decency,” the attorneys said in a June 15 federal court filing in Los Angeles.
Lawyers from the Center for Human Rights and Constitutional Law and the National Center for Youth Law claim the Office for Refugee Resettlement escalates the detention of children, without giving them notice or an opportunity to be heard, on only vague suspicions that they might be dangerous. Once sent to secure facilities, children are held indefinitely because the government suspects a potential custodian might be unfit, according to the lawyers.
“ORR’s refusal to release non-dangerous children so it may engage in extreme vetting of their parents or other relatives is wholly irrational,” the lawyers said. “Defendants admit as much, conceding that several of ORR’s vetting practices have no empirical foundation, but are rather self-serving hedges against political reproach.”
While in detention, the government regularly places the minors on multiple antidepressants, anti-anxiety and other psychotropic medications without telling them what the drugs are or consulting with their parents, the lawyers said. If they refuse, they are told they will be denied release or privileges, or they are forcibly fed the drugs, they said.
The Justice Department’s Office of Immigration Litigation said in a May 25 court filing that the procedures for placing unaccompanied alien children in secured facilities are governed by a 2008 federal law, the Trafficking Victims Protection Reauthorization Act, rather than by the Flores agreement.
In addition, the Justice Department said, the Shiloh Residential Treatment Center, where according to the human rights lawyers the minors are medicated against their will, cares for children with a a very high level of mental health needs and/or violent histories and is monitored closely by the State of Texas for compliance with its child welfare laws.
“Shiloh’s Texas state license also mandates that it comply with applicable Texas state laws concerning informed consent with regard to the prescription of psychotropic medications to children in state residential treatment facilities,” the Justice Department said. If a child “has a viable sponsor, Shiloh informs the sponsor about any changes in medications prescribed for the child, including starting a new medication or increasing the dose of a current medication.”
The detention of immigrant minors without any court oversight predates the Justice Department’s zero-tolerance policy, said Jesse Hahnel, executive director of the National Center of Youth Law, whose attorneys have been visiting facilities to monitor the conditions under which the children are held for the past year.
“What we have seen at these facilities is absolutely horrific,” Hahnel said in a telephone interview.
The case is Flores v. Meese, 85-cv-04544, U.S. District Court, Central District of California (Los Angeles).
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