A federal court on Thursday rejected the government’s argument that it is not required to provide migrant children with toothbrushes, soap and showers. Credit Credit Ilana Panich-Linsman for The New York Times By Caitlin Dickerson Aug. 15, 2019 A federal appeals court panel ruled on Thursday that the government must provide detained migrant children with basic hygiene supplies such as toothbrushes and sleeping mats, ending a debate that incited national outrage after a Justice Department lawyer argued against the need to do so.
The exchange in June between the lawyer and a panel of openly aghast federal judges spread rapidly in the national media. The case grew in significance days later, when a group of lawyers told reporters they had observed distressed migrant children held in cramped, dirty conditions and without sufficient food or clean water at a Border Patrol station in Clint, Tex.
The lawyers said they saw infants being cared for by other detainees, some as young as 7 years old.
Lawmakers sprang into action, decrying the conditions. Hundreds of children were transferred out of the station, which was cleaned up, and the top Border Patrol agent who oversaw the facility was reassigned before resigning from his job.
“It’s a major victory for children in federal immigration custody,” Elora Mukherjee, one of the lawyers who visited the Clint facility and who has served as an official monitor on the ongoing court case for several years, said of the court’s decision.
A lawyer for the government had tried to parse the meaning of “safe and sanitary” conditions — the existing legal standard for detained children — in lodging her appeal. She said that provisions such as soap and toothbrushes might not be necessary under the rules that govern facilities in which children are held for only a short period of time.
“This decision just guts all of those arguments, it shows that they have no basis,” said Ms. Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School.
The ruling by a three-judge panel for the United States Court of Appeals for the Ninth Circuit strengthens protections for children being held in detention after crossing the border without authorization. It is the latest development in a protracted legal battle over the standards that have been in place for more than two decades, established as part of a settlement agreement in a class-action lawsuit brought in 1985, known as the Flores agreement.
President Trump has argued that the protections have become a powerful incentive, drawing large numbers of migrant children and families. Federal officials are preparing a new set of regulations that could upend the existing rules.
Judges Marsha S. Berzon, William A. Fletcher and A. Wallace Tashima also upheld a requirement that government officials work to release detained children from custody as quickly as possible because of the detrimental impact that detention can have on their mental and physical health.
The judges rejected on procedural grounds an appeal brought by the government challenging the current limit under the Flores agreement of about 20 days.
In their opinion, the judges said the ruling represented a “common sense” reading of the agreement, which requires “safe and sanitary” conditions inside detention facilities that house migrant children.
“Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep-deprived are without doubt essential to the children’s safety,” Judge Berzon wrote for the panel.
Judge Tashima’s exchanges in court with the Justice Department lawyer, Sarah B. Fabian, were widely shared on social media in part because the judge had been imprisoned in a Japanese-American internment camp in Arizona during World War II. “It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, that’s not ‘safe and sanitary,’” he said to Ms. Fabian. “Wouldn’t everybody agree to that? Do you agree with that?”
“Well, I think it’s — I think those are — there’s fair reason to find that those things may be part of ‘safe and sanitary,’” she replied.
“Not ‘may be,’” Judge Tashima shot back. “‘Are’ a part. Why do you say ‘may be’? You mean there’s circumstances when a person doesn’t need to have a toothbrush, toothpaste and soap for days?”
In the following days, the exchange spread online and critics called for Ms. Fabian’s firing. Her office phone number was posted on the internet and she received death threats.
Migrant detention facilities, especially those along the southwestern border, have often been severely overcrowded since last fall. At that time record numbers of migrant children and families, many from Central America, began crossing through Mexico, leaving the government scrambling to find room to house them.
Some policies the administration has introduced have worsened the logjams. Immigration officials have been detaining as many migrants as possible, rather than allowing them to go free while they wait for their day in immigration court. Officials have also added significant bureaucratic hurdles that have slowed the process of releasing children from federal custody.
The Department of Justice and the Department of Homeland Security did not respond to requests for comment on the decision.