Appeals Court Rules INS Cannot Detain Children Awaiting Hearings

A federal appeals court in San Francisco delivered a stinging rebuke to the Immigration and Naturalization Service Friday, ruling that the agency’s policy of keeping children in custody pending deportation hearings unless an adult relative is available to take them violates the Constitution.

The 7-4 decision of the U.S. 9th Circuit Court of Appeals may affect thousands of immigrant children in the United States, according to attorney Peter Schey of the Center for Human Rights and Constitutional Law.

Most are children who fled war-torn Central American countries unaccompanied, sought political asylum in the United States and found themselves incarcerated here, Schey said. “The detention has a traumatic effect on the children, creating eating disorders and sleeping disorders,” he added.

Center lawyers asserted that the INS was using some of the juveniles as “bait” to capture their parents who were suspected to be illegal immigrants.

The ruling allows them to be released to other responsible adults or social service agencies pending deportation hearings. It overturned a 1990 decision by a smaller panel of 9th Circuit judges that held that the INS policy was an appropriate use of governmental power that did not encroach on a fundamental right.

Judge Mary M. Schroeder in her majority opinion said authorities had no right to detain the children “who have not been convicted of any crime, do not pose a risk of flight and who have not been determined to present any threat of harm to themselves or to the community.”

“The deprivation of the children’s liberty is so plain, and the government’s interest in detaining them so trivial, that the due process violation could not be more clear-cut,” Judge William A. Norris wrote in a concurring opinion.

Schey and his co-counsel Carlos Holguin hailed the ruling in the case that had attracted nationwide concern, manifested by the filing of numerous friend-of-the court briefs by groups such as Amnesty International and Defense for Children International.

“It’s a major defeat for an irrational and inhumane policy,” Schey said. “It’s a major vindication of the constitutional rights of these children.”

INS spokesman Virginia Kice said the decision was significant and a setback for the agency.

“We are very disappointed with the ruling but until our attorneys have had an opportunity to review the decision thoroughly we won’t truly know its long-term impact,” she said. Carol Levitzsky, a spokesman for the U.S. attorney’s office in Los Angeles said the Justice Department was weighing the possibility of an appeal.

The Center for Human Rights filed the suit in federal district court in Los Angeles in 1985, attempting to block “the blanket detention” of children who were suspected illegal immigrants and who did not have a parent, relative or guardian to care for them.

A coalition of immigrants’ rights groups said that about 2,000 children were being detained nationwide because of a policy that the INS imposed in 1984 prohibiting the release of children on bond to anyone but their parents or legal guardians.

At the time, the INS was refusing to release the children to close relatives or to U.S. citizens with a legal power of attorney.

As a consequence, the center asserted, the children, were being held in unsafe facilities that often failed to meet state and federal licensing standards.

In November, 1987, the INS settled part of the case, by agreeing to house the minors in facilities equal to those in which other juveniles are held.

Then, in May, 1988, U.S. District Court Judge Robert J. Kelleher granted an injunction against the INS basic detention policy. He ruled that the agency must release an eligible minor to his parents, guardian, custodian, conservator or “other responsible party,” which included social service agencies.

The INS appealed, precipitating another three years of litigation which led to Friday’s ruling upholding Kelleher.

Schey said that until Kelleher issued his injunction, about 85% of the minors detained in the United States were in the INS Western Region, which includes California, Arizona, Hawaii and Nevada. Now, he said, only about 15% of the detainees are in this region. Kice said that the INS is currently detaining 34 juveniles in the West.

He said the “indefinite detention and the oppressive conditions of detention strongly influences children to give up their rights to apply for political asylum or other forms of relief from deportation.”

Ironically, Schey said, children applying for political asylum tend to win it at a much higher rate than adults. He said the three original plaintiffs in the case were now free and he believed that they had won asylum in this country.

Friday’s decision is binding in all nine states that make up the 9th Circuit, which also includes Alaska, Idaho, Montana, Oregon and Washington. Schey said if the INS did not change its policy nationally, similar suits would be filed in other parts of the country.

Schroeder’s majority opinion stated strongly that suspected illegal immigrants--whether adults or children--are entitled to basic constitutional protections. “We must hold that aliens have a fundamental right to be free from governmental detention unless there is a determination that such detention furthers a significant governmental interest,” she wrote.

In dissent, Judge J. Clifford Wallace contended that the majority was wrong to characterize the regulation as “a blanket detention policy.” He said, “The regulation does not bar the release of all alien juveniles, but merely those who do not have an identifiable parent, legal guardian or adult relative.”

Wallace also said that because of the INS’s special expertise on immigration matters, its decisions should be given considerable deference by courts.

Schroeder stressed that such deference was not warranted because the INS lacks expertise in child welfare issues. She said the agency had not justified its basic position that the children would be better off detained than released to a third party.