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March 14, 2022 (5 min read)

National Center for Youth Law, Mar. 14, 2022

"On Friday, March 11, 2022, a federal judge held that unaccompanied children in federal immigration custody are entitled to greater constitutional protections than they are currently afforded when they are detained in restrictive placements or denied release to family. 

A group of children, including one who spent nearly two years in immigration custody, brought a class-action suit, Lucas R. v. Azar, against the U.S. government in 2018. The suit alleges the U.S. Office of Refugee Resettlement (ORR), which is responsible for the custody and release of unaccompanied immigrant children, employs policies that violate the constitutional rights of the children in its custody.

The National Center for Youth Law, the Center for Human Rights and Constitutional Law, UC Davis Immigration Law Clinic, and Cooley LLP, as counsel for Plaintiffs, sought a court order to resolve three of the five claims alleged in Plaintiffs’ complaint. 

Judge Dolly M. Gee, who presides over the case in California’s Central District, held that ORR’s policies and procedures “fall short of its constitutional and statutory obligations in several specific ways.” Citing the harm that detention causes children, particularly young children, she ordered ORR to set and abide by clear standards when determining whether to transfer a child to restrictive, jail-like facilities, and that it make other reforms aimed at providing children and their families appropriate avenues for due process, access to legal representation, and the ability to appeal ORR’s decisions to refuse to release children to their families.

“We are thrilled that this order will prevent children from languishing in custody without recourse and prevent them from being unnecessarily detained in restrictive facilities without appropriate procedural protections,” said Mishan Wroe, senior attorney with the National Center for Youth Law. “It will require the government to finally afford children the due process rights to which they are entitled and give them greater access to counsel if and when they seek to appeal their placement in a restrictive facility or the denial of their release to a family member.”

The suit alleges a litany of violations of rights afforded to these children under the U.S. Constitution and the Flores Settlement Agreement, which establishes standards for the custody, detention, and release of children in federal immigration custody. 

Among the allegations:

  • ORR prolongs detention of some children on grounds that their parents or other available guardians are unfit, while simultaneously affording neither these detained children nor their proposed custodians any meaningful opportunity to be heard. 
  • ORR “steps up” children to restrictive placements without even the most rudimentary appeals process.

Young members of the plaintiff class expressed their frustrations and fears in statements to the court. One of the named class members, Gabriela N., was in ORR custody for 633 days while ORR refused to release her to her grandfather. 

Gabriela N. explained that she “desperately want[ed] to live with [her] grandfather.” She went on to say, “He has done everything the government asked of him. I know I would feel cared for if I lived with him. My hope is that I can leave detention and live with family.”

Lucas R. was refused release to his sister and brother for more than 200 days.

When Lucas R. was just 12 years old, he told the Court, “I want to live with my brother.” He reported being told by staff that he would have to stay in a restrictive placement “for about two or three more months” before he could be released to his brother. He stated, “I don’t know why my release depends on my behavior – I don’t misbehave or get in trouble.”

New standards

“Immigrant children detained in jail-like settings bravely stepped forward over three years ago to sue the U.S. government arguing that they were denied fair process to challenge their placements in secure and restrictive detention facilities,” said Holly Cooper, Co-Director of the UC Davis Immigration Law Clinic. “On Friday, the court recognized the unique vulnerabilities of detaining unaccompanied immigrant children and provided much-needed procedural protections to ensure that no child will endure prolonged detention without a fair process. The credit for this decision belongs to the immigrant children who had the courage to hold the U.S. government accountable and fight for the future generations of immigrant children.”

The judge found that children have been transferred to and remained in more secure facilities longer than necessary or without sufficient justification. The court agreed that ORR’s policy of moving children to restrictive placements including juvenile detention centers, residential treatment centers, and so-called “staff secure” placements, with no appeals process, negatively impacts these kids’ mental health. In light of this, she ordered that the government must “employ a ‘clear and convincing’ evidentiary standard in deciding when a minor should be stepped up to a more restrictive placement” and give minors the opportunity to immediately appeal their placement in a restrictive setting, with the assistance of counsel.

Further, the order extends the right to appeal the denial of a sponsorship application beyond just parents of a child in custody to their siblings, aunts, uncles, and grandparents. Moreover, the court will require the government to ensure written notice to denied sponsors to inform them of their right to appeal and be represented by counsel.

“The order will provide critical due process protections for children who often arrive in the United States alone and afraid and then have to endure lengthy detentions although they have a family member able to care for them,” said Summer Wynn, a partner in Cooley LLP’s San Diego office and member of the firm’s Pro Bono Committee. “Cooley is deeply committed to advancing immigrant rights and is proud of this hard-fought victory, which comes after years of litigation.”

The court also will require broader access to counsel for detained children, including notice to counsel of placement in restrictive facilities, access to counsel to appeal step-up decisions and sponsor denials, and access to class members’ case files upon request.

The parties are ordered to submit a proposed preliminary injunction consistent with the court’s order by April 1, 2022. The parties are also negotiating the case’s remaining two claims which are set for trial November 1, 2022. 

Further information

For more information, please contact"