On April 18, a California appeals court heard arguments in Jenny Flores v. Jefferson Sessions III, a high-profile case concerning the rights of immigrant children held in custody by the federal government.
Students, faculty members, and staff attorneys affiliated with New York Law School’s Immigration Law and Litigation Clinic intently watched a live stream of the arguments. The clinic—led by Professor Lenni Benson and Adjunct Professor Claire Thomas ’11—had partnered with a pro bono team from Kramer Levin Naftalis & Frankel LLP—led by Mark Baghdassarian ’99—to file an amicus brief opposing the federal government’s position in the case. Representatives from 23 law schools signed on in support.
The federal government hopes to overturn a district court decision ordering the U.S. Department of Health and Human Services (HHS) to comply with the Flores settlement agreement of 1997. That agreement guarantees all children in immigration detention the right to a bond determination: the chance to challenge the length of their detention before an immigration judge. While most young people are released from HHS custody within a few days, some have been held for over a year. HHS maintains that its other youth detention policies negate the need for mandatory bond determinations and that immigration judges should not be able to weigh in on HHS custody.
In contrast, the clinic’s brief argues that HHS’s current policies are “effectively warehousing unaccompanied children in detention facilities.” In New York State alone, HHS has detention capacity for nearly 1,000 children.
“This case highlights the government’s attempt to detain non-citizen youths without oversight or any opportunity to challenge their detention and to do so in direct violation of the Flores settlement agreement designed to protect such youth from arbitrary detention,” the brief contends.
Issues at the center of the case relate closely to the clinic’s mission. Clinic students work with attorneys from the Safe Passage Project, a non-profit founded by Professor Benson that recruits, trains, and mentors attorneys to represent unaccompanied children and teens in immigration court, which is just a few blocks from NYLS’s campus. Immigration court does not provide free legal representation, even to juveniles. Most of the young people served by the clinic are ultimately entitled to relief from deportation and are able to settle in the United States.
The U.S. Court of Appeals for the Ninth Circuit panel that heard today’s arguments consisted of Judges Stephen Roy Reinhardt, Atsushi Wallace Tashima, and Marsha Siegel Berzon. The court is expected to issue a ruling in the coming months.