September 04, 2015 Practice Points

Department of Justice in Violation Through Use of Policies of Indefinite Detainment of Children

By Jessalyn Schwartz

In a ruling issued on July 24, Judge Dolly M. Gee stated that the U.S. Department of Justice (DOJ) was in violation of the 1997 consent decree regarding immigrant children through the use of their policies of indefinite detainment of children and their mothers. The court found that the government's policy violated the 1997 agreement's requirement to shorten the detention of children, hold them in the least restrictive conditions possible, avoid holding children in centers that were unlicensed or under-resourced for youth. It also found that the policy exposes children to abhorrent conditions and treatment. The DOJ had argued for a change in the agreement, but Judge Gee found that they had failed to meet their burden and did not show that a change in factual circumstances warranted a modification of the agreement. The judge's orders required the DOJ to respond to the court's assertion that its family detention policies violate the consent decree by August 3, 2015, with the plaintiffs having an ability to file a response by August 10.

On August 6, 2015, the DOJ filed a response, arguing that the family detention centers run by the Department of Homeland Security (DHS) are necessary for immigration control and that the order by Judge Gee would severely impede DHS' ability to secure the borders and operate effectively, while still supporting legal trade and travel. The DOJ warned that the court decision may create an increase in the number of parents trying to cross the U.S. border with their children. The DOJ also claimed that detaining immigrants is one way to ensure that they will appear for their court hearings, as 84 percent of undocumented immigrants with children who are not detained skip such hearings The American Immigration Lawyers Association and other immigrant rights groups responded with outrage, claiming that the Obama administration and the DOJ have moved too quickly to release some of the imprisoned mothers and children, doing so in a manner that has left many still in detention.

As of this writing, nothing has been published on the plaintiffs' response to DOJ's claims, but once it has been filed, the matter will stand as submitted and the parties await further action from the court.

Keywords: children's rights, litigation, Judge Gee, Department of Justice, immigrant children, 1997 consent degree, Department of Homeland Security, detainment

Jessalyn Schwartz is a member of the ABA Children and the Law Advisory Task Force in Boston, Massachusetts.

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