Ninth Circuit Rules Unaccompanied Minors Entitled to Bond Hearings

CapturedHector was detained as an unaccompanied minor in California at the age of fifteen by the Office of Refugee Resettlement (ORR). Even though he had a parent living in the state, the ORR held him in a detention facility for almost a year and a half, without an immigration hearing or an explanation for why he was being held in secure detention. Hector described the facility as a prison where youth were locked up and treated as delinquents. “I feel desperate,” he wrote at one point, according to the court. “My only wish is to leave detention, live with my mom and study.”

In an effort to protect vulnerable immigrant children like Hector, Children’s Rights joined a national coalition of advocates in filing an amicus brief challenging the federal government’s practice of detaining unaccompanied minors in institutional and lock-down facilities without demonstrating the need for such harmful settings.

This week a federal appeals court panel ruled that unaccompanied minors are entitled to a bond hearing before an immigration judge. Hector’s experience was included in declarations presented by the plaintiffs, along with those of other minors who had been held for months, and even years, by the ORR under the Department of Health and Human Services. The decision rejected an emergency appeal by the Justice Department to halt an earlier ruling by a lower court.

“The detention of children is inherently harmful to them.  This critical decision allows advocates to fight for the rights of their young clients in bond hearings, and hold the government accountable for only detaining children when it is absolutely necessary,” said Christina Wilson Remlin, lead counsel, Childrens Rights.

In 2002, when Congress passed the Homeland Security Act (HSA) and abolished the former office of Immigration and Naturalization Services (INS), the responsibility for unaccompanied minors was transferred to the Department of Health and Human Services (HHS).  In 2008, Congress passed the Trafficking Victims Protection Reauthorization Act (TVPRA) which also assigns responsibility for unaccompanied minors to HHS. Government lawyers argued that these two acts allow adequate protections for unaccompanied minors without requiring bond hearings.

But in a victory for the rights of unaccompanied immigrant children, the Ninth Circuit panel rejected the Justice Department’s arguments.  “The overarching purpose of the HSA and TVPRA was quite clearly to give unaccompanied minors more protection, not less,” wrote the court.  “To deprive unaccompanied minors of an opportunity to contest their detention before an immigration judge is hardly consistent with such Congressional intent.”