Feds ask Ninth Circuit to scrap 40-year-old safeguards for unaccompanied minor migrants

Two Donald Trump appointees on the appellate panel appeared skeptical that the 1986 injunction doesn't run afoul of subsequent developments in U.S. immigration law.PASADENA, Calif. (CN) — The Trump administration asked the Ninth Circuit on Thursday to end a 40-year-old injunction aimed at protecting unaccompanied minor migrants from agreeing to voluntarily leave the country without first being informed of their legal rights and allowed to speak with a relative or an attorney.The administration is appealing an April decision by a federal judge in Los Angeles who denied the Justice Department’s request to terminate the injunction.The government argues changes in immigration law since the injunction was issued in 1986 and, in particular, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 prohibit trial courts from issuing class-wide injunctions that pertain to enforcement of immigration law.U.S. District Judge Michael Fitzgerald, however, agreed with attorneys representing the interests of migrant children that the subsequent Trafficking Victims Protection Reauthorization Act of 2008 controls how federal immigration agents process so-called unaccompanied alien children in their custody, and the 1986 injunction pertains to this statute rather than the 1996 law.“The responsibilities of immigration officers when they encounter children are dictated by the TVPRA, not by the covered provisions of the IIRIRA,” the Barack Obama appointee said in his April 6 ruling. “In light of Congress’ codification of the TVPRA, the court is hesitant to […] prohibit courts from imposing class-wide injunctive relief when it comes to the treatment of children under this statute.”The argument before the Ninth Circuit panel in Pasadena, California, revolved largely around the issue of whether the 1986 injunction has a direct effect on provisions of the 1996 immigration law, which presumably would mean it can’t be enforced, or whether its effect is only “collateral.”While the panel didn’t say how they might rule, they revealed their colors in their questions to the parties, with the two Donald Trump appointees, U.S. Circuit Judges Patrick Bumatay and Lawrence VanDyke, taking turns skewering the attorney for the immigrant children, and U.S. Circuit Judge Salvador Mendoza Jr., a Joe Biden appointee, taking aim at the government lawyer.“It’s a blatant logical fallacy,” VanDyke told Public Counsel attorney Mark Rosenbaum, to assume the injunction couldn’t have a direct, non-collateral implication on both the 1996 law and the TVPRA.“You can have an injunction that says don’t do A or B,” VanDyke said. “That directly affects two things, and you can’t say A is what it directly affects and therefore everything else is just collateral. That’s just wrong.”Bumatay, in turn, challenged the attorney to define what it means to have a collateral impact.Rosenbaum, however, pointed to a recent Ninth Circuit decision involving asylum-seekers in which a split panel upheld a class-wide injunction despite its impact on some provisions of the 1996 immigration law.“It had a dramatic effect on removal,” the lawyer said. “Once the individual was free to perfect his asylum claim, then, Boom!, he’s not going to be removed. Whether you want to call that a direct effect, with a small ’d,’ this court called it a collateral effect.”The 1986 injunction resulted from a class action brought by children who were detained by immigration agents and claimed they were coerced with threats and intimidation into agreeing to voluntary removal and, as such, into waiving their right to a deportation hearing.The judge at the time agreed the children found themselves in an “inherently coercive” situation and ordered immigration agents to advise them of their legal rights and allow them to call a parent, relative, friend or attorney.According to Public Counsel, legal services providers in the Rio Grande Valley area of Texas have reported children are already being pressured to sign expedited return forms under coercive circumstances during the 72-hour window between when they are apprehended and when they are to be transferred to the Office of Refugee Resettlement.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads