THE CASE OF FLORES V. BARR

Back in 1997, the United States entered into an agreement with a class of minors who were subject to detention by United States immigration authorities. This agreement, known as the Flores Agreement, provides that once the government apprehends any undocumented minors, they have to transfer them to a licensed children’s shelter within three days. In March 2020, the Centers for Disease Control (CDC) issued an order closing the border to entry into the United States from Canada or Mexico, citing the dangers of the spread of COVID-19. Thereafter, a motion was filed on behalf of undocumented migrant children which sought to enforce the rules as agreed to by the United States government under Flores. The United States District Court for the Central District of California appointed an independent monitor to oversee how the government was operating in dealing with unaccompanied minors and to determine if the government was following the Flores Agreement. In August 2020, the independent monitor reported to the court that the Department of Homeland Security (DHS) since the CDC order had held 660 minors between the ages of ten and seventeen for stays as long as 28 days in hotels instead of the normal approved child shelters. The District Court found that the government was not complying with the Flores agreement because they were holding the minors longer than three days and made no good faith effort to actually place minors in licensed facilities as required. In actuality, the government was using this method to deny these minors access to legal counsel and the ability to properly claim asylum. After their stay in the hotels, the children were then removed from the United States without following typical procedure. The government appealed the District Court’s ruling to the Ninth Circuit Court of Appeals and filed an emergency motion seeking a stay pending appeal.

NINTH CIRCUIT COURT OF APPEALS RULING

On October 4th, 2020 the Ninth Circuit Court of Appeals denied the government’s request for a stay pending appeal. The Court noted that the District Court’s order does not require them to do anything additional to the Flores agreement and simply directed the government to come into compliance with Flores. The Ninth Circuit Court found that the government was not likely to win the case on the merits anyways, and as such a stay would not be appropriate. The court also found that the government was not able to establish a likelihood of irreparable injury if a stay was not granted. Simply put, the Ninth Circuit Court flatly rejected the government’s arguments in this case, and further required them to follow the District Court’s order until the case is fully heard at the Ninth Circuit Court of Appeals.

THE CONTINUING PROBLEM OF CHILD EXPULSION

Immigrant rights advocates claim that actions like these by the federal government are using the pandemic as a pretext to bypass the typical and legal asylum process for children. The Trump administration has expelled nearly 9,000 migrant children citing the COVID-19 pandemic without using the typical steps of the asylum process. There is a real assault on asylum due process currently occurring in the United States. Each step the government takes to chip away at due process for people that were not born in this country further complicates immigration law and practice. Do not ever go it alone; It is important to that you have experienced and knowledgeable legal counsel if you are facing immigration crimes levied against you by the federal government and Immigration and Customs Enforcement (ICE). If you have any questions about you or a loved one’s case, then it is important to seek the advice of an experienced immigration crimes attorney as soon as possible.