[U] Saravia Update: Status Hearing On Migrant Kids Falsely Accused Of Being Gang Members… And The Trump Lawyers’ Shocking Position

SEE UPDATE — IN COMMENTS.

During the pendency of this 2019 Trump-created federal shutdown, almost all asylum / immigration cases have been essentially frozen in place (by court orders; and under 31 U.S.C. § 1342), except where danger to life or limb is palpable. The exact statutory test is “emergencies involving the safety of human life or the protection of property“.

One such “safety of human life” hearing event transpired today — in San Francisco — where asylum seekers, young kids all, are falsely accused of gang affiliations — and under an October 2018 Ninth Circuit opinion we already detailed, these children are to be released to their guardians, to await their hearings on “credible fear“. [Joint status report setting up today’s hearing, here.] Then the hearing went sideways, when the Trump lawyer rose to explain how they planned to treat these kids. See below:

I credit the cogent Twitter account stylings, of Cecilia Wang, for the ACLU, who captured the below dialogue, as offered by Trump administration lawyers — as to what Team 45 thinks ought to happen, after the kids are so released by ICE:

. . . .Saravia case challenging ICE’s detention of kids based on false allegations of gang affiliation: government says ICE can rearrest kids who are released by Office of Refugee Resettlement as many times as it wants and “for no reason.”. . .

Government attorney [Editors’ nota bene: was it Chad Readler?] responds. . . “no law against that comes to mind. . . .”

Court says “the 4th Amendment doesn’t come to mind?

[Our able narrator, Ms. Wang:] It does for us, Your Honor. . . .

[And, some actual black letter law, then — to educate Trump’s lawyers:] Flores hearings provide minors in ORR custody the right to a bond hearing before an immigration judge to challenge the agency’s determination that the minor is a danger to himself or the community. See Flores, 862 F.3d at 879; see also ORR Guide § 2.9; Flores Settlement ¶ 24A. But, these hearings were designed to consider ORR’s initial determination under the TVPRA that a minor should be detained in a secure facility. Thus, “a favorable finding in a [Flores hearing] does not entitle minors to release” because “the government must still identify a safe and secure placement into which the child can be released.” Flores, 862 F.3d at 867; ORR Guide § 2.9. This requires a “verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” See 8 U.S.C. § 1232(c)(3)(A). That process can take months. See, e.g., Santos v. Smith, 260 F. Supp. 3d 598, 613–14 (W.D. Va. 2017); Beltran v. Cardall, 222 F. Supp. 3d 476, 483–84 (E.D. Va. 2016). The district court did not abuse its discretion in concluding that Flores hearings were not sufficient to protect the TVPRA rights of the members of the plaintiff class, each of whom had initially been found to qualify for placement with a parent or sponsor previously approved by ORR.

Moreover, due process requires “the opportunity to be heard ‘at a meaningful time.’” Mathews, 424 U.S. at 333
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). But, as the government candidly conceded at oral argument, see Oral Argument at 1:01–:09, 4:19–6:47, 8:33–:42, the record is unclear as to how promptly minors receive Flores hearings. One class member, for example, was arrested on June 16, 2017, and requested a Flores hearing on August 22, 2017. As of September 22, 2017, no such hearing had been scheduled. . . .

[Ninth Circuit opinion:] We hold only that, on this record, the district court did not abuse its discretion in concluding that the minors were entitled to some sort of due process hearing and ordering the government, pendente lite, to provide members of the minor class with the procedural protections set forth in its order. . . .

This — as I’ve said — is less and less any. . . government, at all, and more a crime syndicate — administered by the Trump family.

Me? I think the Fourth Amendment isn’t just a goofy suggestion, or a “nice to have. . .” guideline. It is black letter law. Onward.

नमस्ते

One Response

  1. UPDATED @ 8 PM EST:

    And now, in accordance with the ACLU’s skillful advocacy, the able Judge Chhabria has ruled that indeed the fourth amendment prohibits arrests without probable cause, and the government must immediately inform the ACLU of any and all re-arrests, tonight:

    “. . .As discussed at today’s hearing, absent extraordinary circumstances the stay will remain in place for the duration of the shutdown. However, activities that are necessary to ensure compliance with the terms of the preliminary injunction must continue.

    These activities include providing class counsel with information on all arrests of unaccompanied minors who have previously been placed with sponsors by ORR. . . .”

    IT IS SO ORDERED.

    Dated: January 24, 2019
    /s/ VINCE CHHABRIA
    United States District Judge

    Excellent.

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