In this Sept. 10, 2014, file photo, detained immigrant children line up in the cafeteria at the Karnes County Residential Center, a detention center for immigrant families, in Karnes City, Texas.

A federal appeals court in San Francisco on Tuesday appeared inclined to uphold a lower court order that gave details on the minimum necessities that must be provided to undocumented immigrant children being held by the government.

The order was issued in 2017 by U.S. District Judge Dolly Gee of Los Angeles, who is overseeing a 1997 agreement, known as the Flores settlement, concerning the conditions for holding immigrant children.

The settlement requires "safe and sanitary" conditions, including access to drinking water, food, toilets and adequate temperature control.

In 2017, after reviewing claims of substandard conditions, Gee ordered officials to provide soap, toothbrushes and showers and to end an alleged practice of having children sleep on concrete floors under an aluminum blanket in cold, noisy and constantly lighted rooms.

The U.S. Justice Department is asking the 9th U.S. Circuit Court of Appeals to strike down the order, claiming that it adds new requirements that go beyond the 1997 settlement.

Justice Department attorney Sarah Fabian argued before a three-judge appeals panel that Gee "in fact expanded the terms of the agreement."

Immigration attorney Peter Schey, who helped to negotiate the 1997 agreement on behalf of undocumented Salvadoran teenager Jenny Flores, argued that the requirements were a reasonable interpretation of "safe and sanitary" conditions.

The panel took the case under submission and will issue a written ruling at a later date.

All three judges on the panel questioned Fabian as to why the requirements in Gee's order shouldn't be considered necessities.

Judge William Fletcher said, "If you're putting people in a crowded room to sleep on a concrete floor with an aluminum blanket on top and lights on all night long, no one could argue this is safe and sanitary."

Judge Wallace Tashima said, "It's within anyone's understanding that if you don't have a toothbrush, soap and blanket, it's not safe and sanitary."

The Flores agreement also requires that undocumented immigrant children be released to a relative or family friend or placed in a licensed care program within 20 days.

The current case is one of several legal disputes about the interpretation of the settlement that have gone through the court system.

Copyright Bay City News </s> FILE – In this June 26, 2018, file photo, protesters carry signs and chant slogans in front of Federal Courthouse in Los Angeles. A panel of appeals court judges in California will hear arguments in the long-running battle between advocates for immigrant children and the U.S. government over conditions in detention and holding facilities near the southwest border. (AP Photo/Richard Vogel,File)

SAN FRANCISCO (AP) — A U.S. government lawyer on Tuesday said a longstanding settlement agreement requiring sanitary conditions for detained immigrant children may not necessarily mean a toothbrush and soap must be provided for shorter stays.

Sarah Fabian, senior litigation counsel for the Department of Justice, told a three judge-panel at the Ninth U.S. Circuit Court of Appeals in San Francisco the agreement doesn’t list items that must be provided in border facilities.

“There’s fair reason to find those things may be part of safe and sanitary,” she told the panel during an exchange over the conditions in facilities for immigrant children caught crossing the U.S.-Mexico border.

One of the judges then asked whether there could be an instance when a person didn’t need a toothbrush and soap for days. She said possibly for shorter term stays.

The hearing focused on the U.S. government’s appeal of a federal judge’s 2017 ruling that U.S. authorities breached the agreement after young immigrants caught on the border said they had to sleep in cold, overcrowded cells and were given inadequate food and dirty water.

In its appeal, the Department contends the judge’s order is imposing “new substantive requirements” for the detention of immigrant children that aren’t laid out in the 1997 settlement. Advocates disagreed, saying the agreement requires youth be held in “safe and sanitary” facilities, which should include basic hygiene items and sufficient food and water.

During the hearing, Fabian said the agreement was vague about what is required to determine a facility is safe and sanitary.

Immigrant advocate Peter Schey provided dictionary definitions for the terms and noted problems in Customs and Border Protection facilities have persisted since the ruling by U.S. District Court Judge Dolly Gee, who has since appointed an independent monitor to evaluate conditions.

The issues date back years but mirror more recent allegations about the facilities amid a rise in the number of children and families, mostly from Central America, arriving on the southwest border. Five children have died since late last year after being detained by the Border Patrol and a 17-year-old Guatemalan girl was found last week in a wheelchair with her premature baby at a border facility.

The settlement between advocates for young immigrants and the U.S. government says children should be held in facilities that meet certain standards and released as soon as is reasonably possible, which has been considered to be about 20 days. </s> The Trump administration’s defense of conditions at its shelters for immigrant minors — it argues it is not legally required to provide all of them with such items as soap, toothbrushes and sleeping accommodations — drew an incredulous response from federal appeals court judges Tuesday at a hearing in San Francisco.

The administration is appealing a federal judge’s June 2017 ruling that immigration officials were violating a 1997 court settlement requiring unaccompanied minors in federal custody to be kept in safe and sanitary conditions before being released to relatives or sponsors as promptly as possible. U.S. District Judge Dolly Gee of Los Angeles found that youths held in the Rio Grande Valley in Texas were being denied basic necessities and appointed a monitor to oversee compliance.

The administration denied violating the settlement and argued in court papers that nothing in the 1997 agreement required officials “to provide minors, in all situations, with sleeping accommodations, toothbrushes, toothpaste, showers, soap, towels and dry clothes,” as long as the facilities were safe and sanitary. A panel of the Ninth U.S. Circuit Court of Appeals was clearly unconvinced.

“It’s within everybody’s common understanding that if you don’t have a toothbrush, you don’t have soap, you don’t have a blanket, those are not safe and sanitary,” Judge A. Wallace Tashima told Justice Department lawyer Sarah Fabian.

“Those things may be part of ‘safe and sanitary,’ “ depending on the length of a minor’s confinement, Fabian replied. But she said Gee had “expanded the terms of the agreement” by imposing new conditions.

“You’re really going to stand up and tell us that not being able to sleep isn’t a question of safe and sanitary conditions?” asked a second judge, Marsha Berzon.

Judge William Fletcher, the third panel member, said Gee found evidence that minors were kept overnight in crowded, chilly rooms, sleeping on concrete floors with aluminum-foil blankets with the lights kept on all night.

“No one would argue that this is safe and sanitary,” Fletcher said.

Fabian didn’t disagree, but contended the settlement gave immigration officials some leeway in housing minors. There are “challenges in interpreting a very old agreement” that was reached before the current Department of Homeland Security and its immigration agencies were even established, she said.

Plaintiffs’ lawyer Peter Schey of the nonprofit Center for Human Rights and Constitutional Law said court enforcement of the agreement was essential.

“Once a month a kid is dying in (U.S. Customs and Border Protection) custody,” he said.

The court heard an hour of arguments and will rule at a later date. </s> Panel hears case on conditions for young migrants on border

SAN FRANCISCO (AP) — A U.S. government lawyer says a settlement agreement requiring sanitary conditions for detained immigrant children may not necessarily mean a toothbrush and soap must be provided for shorter stays.

Sarah Fabian, senior litigation counsel for the Department of Justice, told a three judge-panel Tuesday at the Ninth U.S. Circuit Court of Appeals in San Francisco the agreement doesn't list items that must be provided in border facilities.

She was responding to a judge's question about whether there could be an instance when a person didn't need a toothbrush or soap for days.

The hearing focused on the Department's appeal of a 2017 court ruling finding authorities breached the longstanding agreement after young immigrants caught on the southwest border said they had to sleep in cold, overcrowded cells. </s> WASHINGTON (Reuters) - The Trump administration said on Thursday that it plans to withdraw from a federal court agreement that strictly limits the conditions under which authorities can detain migrant children, and proposed new rules that it said would enable it to detain minors during their immigration proceedings.

The administration is targeting the Flores Settlement Agreement, a 1997 federal consent decree that places significant curbs on how long and in what conditions the government can detain migrant children as it seeks to dissuade migrants from crossing the U.S. southern border.

Immigrants and their advocates are expected to mount legal challenges to the administration’s effort to exit the agreement, which has been interpreted over the years to set a 20-day limit on detaining children who entered the country illegally, and also requires facilities that house migrant children to be licensed by a state authority.

Trump administration officials have repeatedly referred to the agreement’s standards as “loopholes” that attract migrants by forcing authorities to release people pending their immigration hearings.

On Thursday, the administration said in a regulatory filing it would seek to terminate the Flores settlement, and put forward regulations it said “parallel the relevant and substantive terms” of the agreement.

The new rules would ensure “that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors,” the regulation said.

The administration earlier this year asked a federal court to ease the limits mandated by the Flores agreement, but the judge overseeing the agreement, U.S. District Court Judge Dolly M. Gee, rejected those requests.

That attempt by the administration came after it instituted a “zero-tolerance” policy at the U.S. border that led to the separation of thousands of migrant children from their parents. After intense public outcry over the policy, the administration was forced to abandon it, but hundreds of children remain separated from parents who were deported without them.

The regulation proposed on Thursday would create a new federal licensing system, so authorities could hold children with their parents in detention centers that are not licensed by state authorities to hold children.

“The goal is to provide materially identical assurances about the conditions of such facilities...and in turn to allow families to remain together during their immigration proceedings,” the rule states.

The public has 60 days to comment on the proposal, followed by a 45-day period before the court settlement is terminated. </s> The Trump administration is taking steps to indefinitely detain undocumented families that arrive at the border seeking asylum rather than releasing them into the community while their immigration cases are pending.

Under proposed regulations to be filed Friday, the Trump administration will seek to terminate a decades-old legal settlement known as the Flores agreement as part of the administration's continuing effort to deter thousands of undocumented families arriving at the border, the majority of them from Central American countries and regions of Mexico plagued by high levels of poverty, gang and drug cartel violence.

The proposed regulations, however, drew immediate condemnation from some Democrats and immigrant advocates who view the Trump administration's efforts to terminate the Flores settlement as an attack on the human rights of desperate migrant families seeking asylum in the United States.

The Flores agreement, reached in 1997, was initially intended to provide humanitarian protections to undocumented minors who arrive at the border unaccompanied by parents. It sets limits on how long the federal government can detain unaccompanied minors and spells out the conditions under which they must be held.

In 2015, a federal judge in California ruled that the Flores settlement also applies to undocumented children who arrive at the border with their parents.

As a result, federal authorities cannot hold undocumented families in immigration detention facilities for more than 20 days and, under current practice, they are typically released while their immigration cases are pending, a process that can take several years.

MORE: Without legal representation, migrants face long odds on immigration, asylum claims

The Trump administration has characterized the Flores agreement as a "loophole" and argues that releasing undocumented families encourages more Central American families to make the dangerous journey through Mexico, often with the help of smugglers, under the hope that once they reach the U.S. border they will be allowed to settle permanently in this country.

The Trump administration vowed to seek to replace the Flores agreement with new regulations after being forced to back off a "zero-tolerance policy" this summer that criminally prosecuted anyone caught crossing the border illegally, including parents arriving with children.

Nearly 3,000 children were separated from their parents as a result of the policy, drawing intense criticism and a global outcry. The Trump administration, however, blamed the Flores agreement for the separation of families, arguing that since children couldn’t be held in criminal custody with their parents, they had to be taken away and sent to shelters typically used only to house unaccompanied minors.

In proposed regulations to be filed Friday, the Trump administration is seeking to terminate the Flores agreement and replace it with a new system that would let the government detain families for longer periods of time while their immigration cases are pending. The Trump administration maintains that the proposed regulations would still provide the same humanitarian protections to detained minors as under the Flores settlement.

MORE: Respite centers for migrants preparing for possibility of indefinite detention

“Today, legal loopholes significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” Homeland Security Secretary Kirstjen Nielsen said, according to the Associated Press. “This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.”

The proposed regulations, however, are already being denounced by some Democrats and immigrant advocates and likely will be challenged in court.

U.S. District Court Judge Dolly M. Gee rejected a request by administration lawyers this summer to allow for longer family detention.

“The Flores Settlement is not a loophole," U.S. Sen. Bob Menendez, D-N.J., said in a statement.

The Flores agreement, he said, was the result of over a decade of litigation aimed at "protecting children from prison-like conditions" and the proposed regulations shows the Trump administration is "is doubling down on indefinite detention of immigrant children and families, a cruel and inhumane policy."

“Indefinite detention of mothers and children is not the solution to the trauma caused by family separation of families legitimately seeking asylum," Menendez added. "The harm caused by such a policy is in many cases irreparable. This does not comport with our values and is among the most shameful of this administration’s actions.

Michelle Brane, director of migrant rights and justice program at the Women's Refugee Commission, said the proposed regulations are an attempt to "gut basic standards" on the conditions for detaining immigrant children while in federal custody.

"The Trump administration has been whittling away at the basic rights of women and children since they came into office," Brane said. "Efforts to weaken or eliminate basic child protection standards by calling them loopholes and eliminating their obligations for the basic care of children is just another example of this administration's abdication of human rights."

The Associated Press contributed to this story.
• None Reunited or deported? Mother in ICE detention faces the inevitable
• None Trump administration releases plan to reunite migrant children with parents in mass detention center </s> The Trump administration proposed a new rule on Thursday that would allow it to get around restrictions that prevent immigrant children from being held in federal detention for more than 20 days.

The proposal would circumvent rules established by a federal court settlement – known as the Flores settlement – that limited the detention of children and families for more than 20 days.

The proposed change is likely to face legal challenges from immigrant rights activists who oppose detaining children.

U.S. District Court Judge Dolly M. Gee has already denied a request by the Trump administration earlier this year to allow the government to detain families for longer periods than allowed under Flores.

The Flores settlement played a significant role in the Trump administration's now-defunct policy of separating children from parents at the Southern U.S. border.

The settlement requires that migrant children be held in the 'least restrictive' environment possible and precludes their detainment for more than 20 days – even if they are with their parents.

When the Trump administration separated immigrant children from their parents earlier this year, officials pointed to the settlement, saying they had to separate them because it would violate Flores to detain families together.

Administration officials also said that their actions under the 'zero tolerance' immigration policy were a deterrent to parents who would bring their children across the border to avoid being detained.

In other words, the administration sought to end a practice under the Obama administration of 'catch and release,' in which families were typically allowed parole after illegal border crossings.

'Today, legal loopholes significantly hinder the department's ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,' said the Secretary of Homeland Security, Kristjen Nielsen. 'This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.'

The proposed changes would allow U.S. Immigration and Customs Enforcement to establish more family detention facilities where immigrant parents and children could be held together.

The U.S. currently has three family detention centers, which have a total capacity of roughly 3,500 beds.

Homeland Security officials are seeking 12,000 additional beds to house families, in addition to enough space to hold 20,000 minors who entered the country by themselves.

The proposed rule change would allow the government to hold immigrants indefinitely while their cases litigated in immigration court.

Officials said the proposed rule changes would 'satisfy the purpose' of Flores while also making certain that immigrant children 'are treated with dignity, respect and concern for their particular vulnerability as minors.'

Under the administration’s zero-tolerance policy, more than 2,600 children were separated from their parents.

Broad public outrage and widespread protests eventually forced Donald Trump to issue an executive order on June 20 ending the practice. Nearly 500 children remain separated from their parents and in government custody. </s> The Trump administration went to court this week to argue that migrant children detained at the United States-Mexico border do not require basic hygiene products like soap and toothbrushes in order to be in held in "safe and sanitary" conditions. Trump's team also argued that requiring minors to sleep on cold concrete floors in crowded cells with low temperatures similarly fulfilled that requirement.

Arguing in a 9th district San Francisco court about the conditions that they must hold migrant children in, the administration said that they did not violate a precedent set by a landmark 1985 class action lawsuit which established guidelines for the way minors held in federal immigration detention must be treated. The case, Jenny Lisette Flores v. Edwin Meese, created rules around the timely release of migrant minors to their parents, and said that those not released must be kept in facilities that are "safe and sanitary."

But on Tuesday, the Justice Department's Sarah Fabian claimed that the ruling did not list specific requirements like "toothbrushes" or "towels," to establish a sanitary condition.

"One has to assume it was left that way and not enumerated by the parties because either the parties couldn't reach agreement on how to enumerate that or it was left to the agencies to determine," Fabian said to the three Clinton-appointed federal judges on the court.

"You're really going to stand up and tell us that being able to sleep isn't a question of safe and sanitary conditions?" U.S. Circuit Judge Marsha Berzon asked Fabian.

Other judges also expressed outrage.

"Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you've got an aluminum foil blanket?" U.S. Circuit Judge William Fletcher asked Fabian. "I find that inconceivable that the government would say that that is safe and sanitary."

Still, Fabian said that the Trump administration plans to apply for a motion of reconsideration and continue to appeal the ruling.

"Have you considered whether you might go back and consider whether you really want to continue this appeal?" replied Berzon. "There doesn't seem to be a whole lot left of it, considering that life has moved on now. I just feel like we're litigating ancient history at this point."

At least seven migrant children have died in U.S. custody since late 2018 when the president began his policy of detaining them separately from their families. John Sanders, the acting commissioner of Customs and Border Protection warned today that his agency would need at least another $4.6 billion in emergency funding to prevent more deaths.

In an interview with the Associated Press, Sanders said that "The death of a child is always a terrible thing, but here is a situation where, because there is not enough funding … they can't move the people out of our custody."

The exact number of children who had died under the care of the federal government is unknown because of a law that does not require various agencies to report deaths.

This week, the ACLU found a migrant teenager in the care of Texas border control nursing her prematurely-born baby without any proper medical care. </s> WASHINGTON (AP) - The Trump administration on Thursday moved to abandon a longstanding court settlement that limits how long immigrant children can be kept locked up, proposing new regulations that would allow the government to detain families until their immigration cases are decided.

 

 Homeland Security Department officials said that ending the so-called Flores agreement of 1997 will speed up the handling of immigration cases while also deterring people from illegally crossing the Mexican border.

 

 The move angered immigrant rights advocates and is all but certain to trigger a court battle.

 

 "It is sickening to see the United States government looking for ways to jail more children for longer," said Omar Jadwat, director of the ACLU's Immigrants' Rights Project. "And it's yet another example of the Trump administration's hostility toward immigrants resulting in a policy incompatible with the most basic human values."

 

 The Flores agreement requires the government to keep children in the least restrictive setting possible and to release them generally after 20 days in detention. For decades, because of those restrictions, many parents and children caught trying to slip into the country have been released into the U.S. while their asylum requests wind their way through the courts - a practice President Donald Trump has decried as "catch-and-release."

 

 Such cases can drag on for years, and some immigrants stop showing up to court when it becomes clear their asylum requests are going to be denied.

 

 The newly proposed rules would allow the government to hold families in detention until their cases are completed.

 

 Homeland Security did not say how long it expects families to be kept locked up. But immigration officials say asylum cases involving detained families move much more quickly, taking months instead of years to resolve, in part because there are none of the delays that result when immigrants set free in the U.S. fail to show up for a hearing.

 

 "Today, legal loopholes significantly hinder the department's ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country," Homeland Security Secretary Kirstjen Nielsen. "This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress."

 

 Earlier this summer, a federal judge in California rejected a request by the administration to modify Flores to allow for longer family detention. Administration officials say they have the authority to terminate the agreement, but that is likely to be tested in court.

 

 Peter Schey, an attorney representing detained immigrant children under the settlement and president of the Center for Human Rights and Constitutional Law, said he will oppose any effort to end Flores unless the government proposes acceptable regulations for the safe and humane treatment of youngsters.

 

 "Refugee children should not be made to suffer inhumane treatment and prolonged and unnecessary detention just to satisfy President Trump's zero-tolerance approach to refugees seeking safety in the United States from the violence and lawlessness spreading throughout Central America," Schey said.

 

 The Flores agreement became an issue last spring when the Trump administration adopted a policy of prosecuting anyone caught crossing illegally. More than 2,900 children were separated from their parents, prompting international outrage.

 

 Trump eventually backed down and stopped the separation of families. A federal judge ordered parents and children reunified; the government has said it has done so in as many cases as it could. But hundreds of parents were deported without their children, while others had criminal records or were not parents as they claimed to be, officials said.

 

 Because under Flores children cannot be kept in criminal custody with their parents or held for an extended period in immigration detention, the administration has limited options when dealing with families.

 

 The government operates three family detention centers, and they are mostly at capacity. Homeland Security and the Pentagon have been working to line up as many as 12,000 beds for family members at Fort Bliss in El Paso, Texas. Another request for up to 20,000 beds for youngsters who arrive without parents is also pending.

 

 The ACLU's Jadwat accused the administration of "trying to expand the trauma it is inflicting on these children in order to deter other people from coming to the country."

 

 Rachel Prandini, staff attorney at the Immigrant Legal Resource Center, said the erosion of Flores' protections would subject children to worsening conditions.

 

 "The Trump administration's decision to exacerbate the suffering of kids, by imposing the cruel policy of family separation earlier this summer and now with this rule change to vastly expand detention of children, is horrifying," she said.

 

 The regulations will be published in the Federal Register and will be subject to a 60-day public comment period starting Friday.

 

 ___

 

 Taxin reported from Santa Ana, Calif.

(Copyright 2018 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)
A three-judge panel of federal appeal court judges from the ninth circuit hears arguments concerning a 2017 ruling that U.S. authorities breached the Flores Settlement Agreement's order on holding undocumented immigrant children in "safe and sanitary" conditions. The Department of Justice is seeking relief because the order imposes “new substantive requirements” for the detention of immigrant children that aren’t laid out in the settlement. The panel will issue a ruling at a later date.