SAN FRANCISCO (AP) — Immigrant children who cross the border without their parents have the right to a court hearing to challenge any decision to detain them instead of turning them over to family in the U.S., a federal appeals court said Wednesday.
The 9th U.S. Circuit Court of Appeals said two laws passed by Congress did not end the right to a bond hearing for unaccompanied immigrant children who are detained by federal authorities.
Tens of thousands of unaccompanied children fleeing gang and drug violence in Guatemala, Honduras and El Salvador have entered the U.S. in recent years.
Federal officials place the vast majority of them with family in the U.S. But the Department of Human Services has the authority to hold children who pose a danger to themselves or others or have committed a crime in secure facilities, where some have spent months.
Immigration advocates estimate the size of that group at several hundred children and say bond hearings allow them to understand why they are being held and challenge their detention.
The Obama administration, however, argued that two laws — one approved in 2002 and the other in 2008 — did away with the bond hearing requirement in a 1997 court settlement by giving the human services department all authority over custody and placement decisions for unaccompanied children.
The Department of Justice said in a 2016 court filing that immigration judges “are not experts in child-welfare issues and possess significantly less expertise in determining what is in the best interest of the child” than human services officials.
Judge Stephen Reinhardt, writing for a unanimous three-judge panel of the 9th Circuit, said the two laws do not give exclusive authority over unaccompanied minors to HHS’ Office of Refugee Resettlement.
Reinhardt said bond hearings are “an opportunity for counsel to bring forth the reasons for the minor’s detention, examine and rebut the government’s evidence, and build a record regarding the child’s custody.
“Without such hearings, these children have no meaningful forum in which to challenge ORR’s decisions regarding their detention or even to discover why those decisions have been made,” he said.
Justice Department spokeswoman Nicole Navas said the agency was reviewing the court’s ruling and considering its next steps.