Flores Update: Sarah Fabian — And Her Client, Trump — May Well Be Held In Contempt After September 4, 2020 Hearing, In LA.

The able lawyers representing various asylum seeking children and their parents and guardians in the latest maddening proceedings, in the now 35 years of Flores litigation. . . overnight formally moved to hold the US government in contempt, for what Sarah Fabian, at a hearing on August 7 (live blogged there) all but admitted were willful violations of multiple federal court orders.

The able USDC Judge Dolly Gee, in Los Angeles ought to hold Sarah Fabian1 in criminal contempt, based on the transcript of the August 7, 2020 hearing. Here are the latest papers (a 40 page motion and memo of law), filed overnight (and a now corrected 18 page proposed order informing would-be asylees of their rights, to be provided by the government — to every detainee) — and a bit:

. . . .In Flores, the Court of Appeals held that “although the Agreement makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’. . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions,” and that although “the word ‘sleep’ does not appear in the Agreement, . . . whether Defendants have set up conditions that allow class members to sleep in the [Border Patrol] facilities is relevant to the issue of whether they have acted in a manner that is consistent with ‘the INS’s concern for the particular vulnerability of minors’ as well as the Agreement’s ‘safe and sanitary’ requirement.” Id. at 914.21 This Court therefore “properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them. . . .”

Like the FSA’s provisions that facilities be “safe and sanitary and … consistent with the INS’s concern for the particular vulnerability of minors,” paragraph 12A’s requirement that “[w]henever the [Defendants] take[ ] a minor into custody, [they] shall expeditiously. . . provide the minor with a notice of rights” has “independent force and can be interpreted and enforced without thereby modifying the Agreement.” See Flores, 934 F.3d at 915; see also Gates v. Gomez, 60 F.3d 525, 531 (9th Cir. 1995). . . .

Defendants failure to adopt procedures to “obtain information regarding, and procedures for placement with, available and suitable sponsors” (June 2020 Order ¶ 6), also fails to comply with the FSA: When the parties agreed that Class Members would be entitled to prompt release — unless a flight risk, or danger, or a designated sponsor is unfit to care safely for the minor — they clearly intended for Defendants to adopt actual procedures Defendants would follow to assess a Class Member’s eligibility for release. . . .

While neither the Court nor the parties know how many parents may believe it is in their child’s best interest to be released, the FSA does not permit Defendants to eliminate accompanied children’s rights under the FSA by failing to inform parents about their children’s rights and having no procedures in place to release minors if that’s what a parent believes is in her child’s best interest. . . . [Thus,] contempt of court is. . . [warranted.]

This is how totalitarian governments establish their toe-hold: they simply defy lawful court orders — repeatedly. We must end this. Now.


[1. Ms. Fabian’s obligations are clear — if she wants to avoid jail, herself: she should resign, and make a “noisy withdrawal,” under applicable professional ethics canons — declining to represent a party that is intentionally, repeatedly, violating lawful court orders. These willful pattern violations are endangering vulnerable young human lives, Ms. Fabian — you have an obligation — as an officer of the court (even pro hac vice).]


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