As a Trump administration lawyer made her argument in favor of reversing a ruling that found the government had violated standards for detaining migrant children set forth by a 1990s court settlement, the judges on the 9th Circuit Court of Appeals were visibly stunned.
"You're really going stand up and tell us that being able to sleep isn't a question of safe and sanitary conditions?" Judge Marsha Berzon asked Sarah Fabian, the career Justice Department attorney representing the administration.
"I find that inconceivable that the government would say that that is safe and sanitary," Judge William Fletcher weighed in.
"It's within everybody's common understanding: If you don't have a toothbrush, if you don't have soap, if you don't have a blanket, it's not safe and sanitary. Wouldn't everybody agree to that? Do you agree to that?" Judge Wallace Tashima asked when it was his turn to press Fabian.
The government's oral arguments before the three-judge appellate panel in California last week caused an outcry among immigrant advocates and Democrats as segments surfaced online. They accused Fabian and the administration of making callous arguments and of suggesting it was not essential for the government to ensure migrant children in U.S. custody could sleep well and had access to basic hygienic products like soap and toothbrushes.
At the crux of the government's argument is ongoing litigation surrounding the 1997 Flores agreement, a court settlement that stemmed from a 1987 case in which Jenny Lisette Flores, a 15-year-old girl from El Salvador, and three other migrant children filed a class action lawsuit against the government over poor detention conditions for minors in U.S. custody.
In 1997, both parties reached an agreement that along with prohibiting the government from detaining migrant families for more than 20 days, set standards for the care of migrant children in the custody of the Immigration and Naturalization Service (INS), a now-defunct branch of the Justice Department.
"Following arrest, the INS shall hold minors in facilities that are safe and sanitary and that are consistent with the INS's concern for the particular vulnerability of minors," the agreement reads. "Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor."
Since the INS was abolished in 2003, the Department of Homeland Security (DHS) has taken up most of its functions and is bound to the parameters set forth by the Flores settlement.
Over the years, however, immigration lawyers and advocates have accused Republican and Democratic administrations of violating the agreement and detaining migrants in poor conditions.
Starting in 2015, U.S. District Court Judge Dolly Gee reviewed several accounts from minors and their parents of living conditions in Customs and Border Protection (CBP) facilities during the Obama administration. In several rulings, she found the government had not provided migrant minors "safe and sanitary" living conditions. Facilities near the U.S.-Mexico were overcrowded and the children living in them did not have access to toothbrushes and soap, could not sleep because of the cold and were not given enough food. In 2017, Gee also ordered the creation of an independent monitor to ensure the government adhered to the Flores agreement.
The Trump administration has appealed Gee's ruling to the Ninth Circuit and essentially accused the lower court judge of legislating from the bench by ruling that the government should — among other things — provide migrant children in its custody toothbrushes and soap. The administration contends that Gee modified the Flores agreement with her order, as the text of the settlement does not include word-for-word references to "soap" or "toothbrushes."
That's what Fabian, the Justice Department lawyer, was arguing in front of three incredulous judges in a California courtroom last week. She and the government want the Ninth Circuit — a liberal-leaning court which has repeatedly ruled against the current administration — to reverse Gee's ruling.
In her argument to the court, Fabian conceded that the sleeping conditions were the most "difficult end" of her legal argument but she nevertheless contended that the section on "safe and sanitary" conditions in the Flores agreement was left vague because "the parties couldn't reach an agreement on how to enumerate that or that it was left to the agencies to determine."
But, Fletcher, one of the judges, quickly interjected, "Or it was relatively obvious."
He, along with his colleagues, stressed that even if the agreement didn't specifically list products like soap and toothbrushes — along with a conducive environment to sound sleeping — these items are instrumental to "safe and sanitary" conditions. Fletcher noted that migrants were not asking for special products like "perfumed soap," but just basic items like a warm blanket.
"It may be they don't get super-thread-count Egyptian linen, I get that," he told Fabian.
While litigation surrounding the Flores agreement continues, the Trump administration is set to unveil the final version of a regulation that would establish parameters for the government to handle the detention, processing and release of migrant minors. Its implementation would render the 1997 court settlement obsolete.
Although the conditions reviewed by Gee when she made her decision in 2017 were documented during President Obama's tenure, lawyers and immigrant advocates have also denounced the conditions in migrant detention centers operated by the Trump administration.
Last week, lawyers detailedfaced by approximately 250 migrant children at an overcrowded Border Patrol station in Clint, Texas. According to the attorneys, older children were taking care of the younger ones. Some young mothers had to wear clothes stained with breast milk. The children also did not have access to soap and toothbrushes, and most had not showered since they crossed the southern border.
Additionally, six migrant children have died in U.S. custody — or shortly after being released — under President Trump's tenure.