The Trump administration is taking another immigration policy fight to the 9th Circuit Court of Appeals, less than two weeks after that court delivered a stinging rebuff to President Donald Trump’s travel ban executive order.
The latest battle is over the rights of detained immigrant children and teenagers to immigration court hearings to determine suitability for release on bond.
Los Angeles-based U.S. District Court Judge Dolly Gee ruled on Inauguration Day that such “unaccompanied” minors are entitled to go before an immigration judge in accordance with the terms of a 20-year-old legal settlement.
On Friday night, the Justice Department filed an emergency motion with the 9th Circuit asking it to block Gee’s order while an appeal goes forward.
Gee’s “order unquestionably diverts the agencies’ time, resources, and personnel away from the reunification process provided in [a 2008 law] and away from the already-burdened operations of the immigration courts thus interfering with pressing immigration adjudication and enforcement priorities,” Justice Department lawyers wrote in their request for an emergency stay.
It’s not entirely clear which 9th Circuit judges will consider the request but lawyers said it could be the same monthly motions panel that turned down a government stay request earlier this month in connection with the Trump travel ban. (Trump is expected to issue a replacement order as soon as Tuesday.)
A court spokesman did not immediately reply to a message seeking comment on to whom the new motion will be assigned.
Attorneys for the detained minors responded Monday with a filing calling the government’s arguments “legally and factually specious.”
The immigrants’ lawyers say that in some instances teenagers have been held for more than a year without hearings, only to be released by an immigration judge soon after they turn 18.
“It is virtually self-evident that needlessly detaining children is profoundly injurious,” the minors’ attorneys wrote. The brief also cites the 9th Circuit’s travel ban decision three times in arguing that the government doesn’t deserve a stay.
“This is the closest analogy that we have,” said University of California at Davis law professor Holly Cooper, one of the lawyers for the immigrant children.
Cooper said she’s detected no clear policy shift between the Trump and Obama administrations in the litigation, which actually dates back to the Reagan administration. “In terms of change in policy, it’s hard to tell,” she said.
In 2015, the Obama administration appealed an earlier ruling by Gee — an Obama appointee — that the 1997 agreement applied to minors accompanied by a family member at the time of detention. A 9th Circuit panel upheld Gee’s conclusion that the pact put limits on the detention of both unaccompanied and accompanied minors, but rejected her efforts to constrain actions the government could take against parents who entered the country illegally.
In the new dispute, the Justice Department contends that a 2008 law known as the Trafficking Victims Protection Reauthorization Act essentially supersedes the 1997 settlement by transferring responsibility for custody and placement of minors in immigration proceedings to the Department of Health and Human Services. However, Gee agreed with lawyers for the children and teenagers that the 2008 law doesn’t explicitly contradict the settlement so provisions in the deal for bond hearings should be enforced.