Trump is leading a court battle to increase restrictions on immigration detention

For more than a century, a settlement from a Los Angeles federal court has set the conditions for children held in immigration detention.

But now, the longstanding agreement — which sets minimum standards for housing, education and health care for migrant children held in federal custody, while strictly limiting how long they can stay there — hangs in the balance in the 9th Circuit Court of Appeals after a challenge from the Trump administration.

At the same time, the federal judge in LA overseeing the deal appears poised to appoint a powerful new candidate to back it up.

President Trump has long sought to end the Flores settlement, which began under Clinton. In recent months, the Trump administration has waged a legal battle to cancel the deal, while urging a district court not to order the private watchdog to enforce its compliance.

“[Flores] the only thing standing between them is permanent family incarceration,” said Leecia Welch, senior legal director at Children’s Rights, a plaintiff in the case.

Last month, assistant Atty. Gen. Brett A. Shumate pressed the 9th Circuit court to give the administration a “thumbs up or thumbs down” in its campaign to end the settlement and end what he called “miniscule administration” of federal immigration policy.

“Flores’ consent decree is an agreement that goes beyond the constitutional basis,” Shumate told the court during oral arguments in June. “We ask you that [the Department of Homeland Security’s] compliance with the law must be assessed based on the law, not a 30-year settlement agreement.”

The three-judge panel was highly skeptical of the Justice Department’s legal claims, saying little had changed since the government last applied to the court for the deal to be scrapped in 2020 – a request that was rejected.

The judges also pressed Trump’s attorneys to respond to testimony from numerous declarations filed in district court since last summer, in which inmates describe having trouble sleeping in cold, dimly lit rooms, vomiting from eating spoiled food, and asking for diapers, baby formula and asthma inhalers.

“He said that the main reason for doing this is to discourage families from coming first, so he is actually punishing the children because their parents bring them here,” said Judge Marsha S. Berzon.

Berzon, a Clinton appointee who delivered a fiery speech last year in a lawsuit challenging the administration’s use of armed forces in immigration enforcement, asked: “You’re saying there’s no constitutional problem there?”

“I understand that the detention of children at the border is a controversial issue, but that is a policy decision,” said Shumate.

The day before, US District Chief Judge Dolly M. Gee scolded two federal lawyers on her bench in Los Angeles, indicating that she will likely appoint a new special prosecutor to enforce compliance with the settlement agreement.

“We’re talking about 11 years of this,” Gee said during a June 1 status conference. “This is not a new issue to me. These are all issues that I’ve issued orders on. I’m upset that my orders are being ignored and not followed, not in good faith.”

“Both sides seem to be operating on different planes of reality,” Gee said.

The resolution of the dispute came in a 1985 case over the fate of 15-year-old Jenny Flores, a Salvadoran fugitive who was picked up by federal immigration officials and held in custody in Pasadena. At the time, there was little awareness that children were among the tens of thousands of migrants fleeing civil war and regime collapse in Central America – with no US government infrastructure to protect them.

“It was amazing,” said Benjamin Roth, a professor at the University of South Carolina College of Social Work and an expert on the deal. “At that time it was unthinkable that there were children in the mix.”

The current court battle centers on an immigration detention center in Dilley, Texas, run by the private prison company CoreCivic, where most of the children and families are held in immigration detention.

In court filings earlier this month, US Immigration and Customs Enforcement said it had “detained significant resources related to Flores” in Dilley and said its residency numbers were skewed by the small number of families it was forced to detain because it was deemed a “national security risk.” US Customs and Border Protection also boasted its July 1 report “shows our highest level of compliance to date.”

Immigrant rights advocates call those claims “fiction.”

“We’re seeing the same kinds of problems and concerns and grief that we’ve been seeing for the last 15 months,” said Welch, a children’s rights attorney.

In several declarations collected as part of the court record, inmates recount broccoli infested with worms, disposable diapers, and workers tearing up children’s drawings.

One mother said the medical staff laughed at her 8-year-old child’s broken arm. Another said she was denied treatment for hepatitis B, even after doctors told her she could develop liver cancer and pass the disease on to her unborn daughter.

Still others describe unexplained rashes, diarrhea outbreaks and head lice, among a host of other ailments that many attribute to being given only Tylenol or allergy medications. Even Christmas brought misery in the form of an ICE agent dressed as Santa, who chased away children who tried to hug him, according to inmate declarations submitted to the court.

“What happened on Christmas Day can be described as cruel,” recalled one mother. Children “dropped everything, ran to him, asked for candy and wanted to take pictures. Some children even cried and begged him to release them.”

The Department of Justice said that immigrant children would still be sued for bad conditions if the Flores area was not damaged. But experts say existing protections will collapse without the formal creation of a consent decree to back them up.

“[Under the settlement]the federal government has created a very effective system to provide temporary care for children.” If Flores is disbanded, it will not be easy to represent this same program.”

If the Trump administration loses before the 9th Circuit, the fight over Flores could move to the Supreme Court.

“I’d be shocked if the 9th Circuit rules, and I’d be shocked if the Trump administration doesn’t appeal,” said Eric J. Segall, a law professor at Georgia State University and an expert on the high court.

But consent laws are legally and politically complex, and the treatment of migrant children continues to complicate the situation. Given the legal and political complexity, the Supreme Court may decide to uphold the agreement, or refuse to take the case at all, experts say.

“There is a good chance that the court will stay away from this,” Segall said.

Meanwhile, the district judge and the 9th Circuit panel appear to be fed up.

“I think my patience has run out,” Gee said during a recent hearing in his Los Angeles courtroom.