On July 30, 2018, Judge Dolly Gee of the United States District Court for the Central District of California issued yet another order in Flores v. Sessions. That order is the latest chapter in the micromanagement of the process by which alien minors are detained or released by an individual without any apparent expertise in the subject overseeing a department (Health and Human Services (HHS)) that has omitted such responsibility from its mission statement. Particularly notable in this latest order were the judge's findings with respect to alien minors with admitted gang involvement or displayed gang affiliation.
As the New York Times describes her:
Judge Gee, 58, a graduate of the UCLA School of Law, had a long career in private practice before joining the bench, mostly as an advocate for labor unions. In Los Angeles, she became involved in other social causes, working with activists to oppose government efforts to end affirmative action, and working pro bono to help victims of the civil unrest in 1992 after the beating of Rodney King by the police.
Notably absent from this biography is any reference to experience or interaction involving the care of minors or the detention of aliens. The United States' judicial system, however, is unique among our nation's institutions in that it does not require (and often eschews) experience in a subject before one must make significant decisions with respect to it.
As for HHS, its mission statement reads as follows:
The mission of the U.S. Department of Health and Human Services (HHS) is to enhance the health and well-being of all Americans, by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services.
Again, notably absent from this statement is any indication that HHS has responsibility for "coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status", despite the fact that department was given such responsibility under the Homeland Security Act, almost 16 years ago.
One issue of many in that order involved the placement in "secure facilities" of alien minors with "reported gang involvement" or who have "displayed gang affiliation" while in the care of the HHS agency with jurisdiction over alien minors, the Office of Refugee Resettlement (ORR), as well as of alien minors with "self-disclosed ... gang involvement prior to placement into ORR custody that requires further assessment."
With respect to "secure facilities", ORR states:
Secure Care – A secure care provider is a facility with a physically secure structure and staff able to control violent behavior. ORR uses a secure facility as the most restrictive placement option for an unaccompanied alien child who poses a danger to self or others or has been charged with having committed a criminal offense. A secure facility may be a licensed juvenile detention center or a highly structured therapeutic facility.
Similarly, the order notes: "ORR defines secure facilities as 'licensed juvenile detention centers' comprised of 'physically secure structures' that are staffed with personnel who are able to control violent behavior[.]'"
At issue with respect to purported gang members is paragraph 21 of the Flores settlement agreement, which states:
A minor may be held in or transferred to a suitable State or county juvenile detention facility or a secure INS detention facility, or INS-contracted facility, having separate accommodations for minors whenever the District Director or Chief Patrol Agent determines that the minor:
A. has been charged with, is chargeable, or has been convicted of a crime, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act; provided, however, that this provision shall not apply to any minor whose offense(s) fall(s) within either of the following categories:
i. Isolated offenses that (1) were not within a pattern or practice of criminal activity and (2) did not involve violence against a person or the use or carrying of a weapon (Examples: breaking and entering, vandalism, DUI, etc. This list is not exhaustive.);
ii. Petty offenses, which are not considered grounds for stricter means of detention in any case (Examples: shoplifting, joy riding, disturbing the peace, etc. This list is not exhaustive.);
As used in this paragraph, "chargeable" means that the INS has probable cause to believe that the individual has committed a specified offense;
B. has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself or others) while in INS legal custody or while in the presence of an INS officer;
C. has engaged, while in a licensed program, in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed program in which he or she has been placed and removal is necessary to ensure the welfare of the minor or others, as determined by the staff of the licensed program (Examples: drug or alcohol abuse, stealing, fighting, intimidation of others, etc. This list is not exhaustive.);
D. is an escape-risk; or
E. must be held in a secure facility for his or her own safety, such as when the INS has reason to believe that a smuggler would abduct or coerce a particular minor to secure payment of smuggling fees.
As I have noted elsewhere, this agreement is more than two decades old, and was entered into by the Clinton administration. It predates the Homeland Security Act, as well as the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which modified the rules governing the detention of unaccompanied alien children (UACs).
Section 235(c)(2) of the TVPRA states, in part:
Subject to section 462(b)(2) of the Homeland Security Act of 2002 [a UAC] in the custody of [HHS] shall be promptly placed in the least restrictive setting that is in the best interest of the child. In making such placements, the Secretary may consider danger to self, danger to the community, and risk of flight. [Emphasis added.]
This provision is broader as it relates to the factors that HHS may consider in assessing whether a UAC should be detained under more restrictive conditions, that is, allowing HHS to consider the simple danger that the UAC poses to the community regardless of the intricate calculus in paragraph 21 of the Flores settlement agreement. Notwithstanding that fact, Judge Gee concludes that the TVPRA does not conflict with that paragraph, but rather that paragraph 21 "complement[s]" the aforementioned provision in the TVPRA.
Logically, the fact that an alien minor is a member of a gang would be a salient, if not dispositive, point in assessing whether he or she is a "danger to the community". For example, my colleague Jessica Vaughan has detailed the dangers posed by one such gang, MS-13:
All criminal gangs are a threat to public safety, but MS-13 is a unique problem because of the unusually brutal crimes its members have committed, its success in using intimidation to victimize and control people in its territory, and its focus on recruiting young members, often in schools.
Such arguments are not enough for Judge Gee, however, who found "a Class Member's gang membership does not necessarily establish that he or she is chargeable with a delinquent act or offense, or that any of the other criteria of Paragraph 21 have been satisfied."
She does concede, however, that "to the extent" an alien minor's reported gang involvement or display of gang affiliation while in the care of ORR, or self-disclosure of gang involvement prior to placement in the custody of ORR, contributes to a "probable cause determination that an [alien minor] has engaged in a pattern or practice of criminal conduct or committed a violent crime," paragraph 21 of the settlement agreement "explicitly authorizes detention of that [alien minor] in a secure facility."
By its nature, a criminal gang is a form of criminal conspiracy, the purpose of which is to commit crimes. Logically, therefore, simple membership in such an organization would be sufficient to provide probable cause that the member "has engaged in a pattern or practice of criminal conduct or committed a violent crime." Given this, it is not entirely clear what additional evidence of this fact would be required by Judge Gee to allow ORR to place an alien minor gang member in a secure facility.
It is beyond time for Congress to act to amend the Flores settlement agreement and return logic to the detention of alien minors in the United States. Until then, litigation of these issues will continue, as the Department of Justice and HHS struggle with the implementation of the latest interpretation of that agreement.