FILE – In this June 26, 2018, file photo, protesters carry signs and chant slogans in front of Federal Courthouse in Los Angeles. A panel of appeals court judges in California will hear arguments in the long-running battle between advocates for immigrant children and the U.S. government over conditions in detention and holding facilities near the southwest border. (AP Photo/Richard Vogel,File)

SAN FRANCISCO (AP) — A U.S. government lawyer on Tuesday said a longstanding settlement agreement requiring sanitary conditions for detained immigrant children may not necessarily mean a toothbrush and soap must be provided for shorter stays.

Sarah Fabian, senior litigation counsel for the Department of Justice, told a three judge-panel at the Ninth U.S. Circuit Court of Appeals in San Francisco the agreement doesn’t list items that must be provided in border facilities.

“There’s fair reason to find those things may be part of safe and sanitary,” she told the panel during an exchange over the conditions in facilities for immigrant children caught crossing the U.S.-Mexico border.

One of the judges then asked whether there could be an instance when a person didn’t need a toothbrush and soap for days. She said possibly for shorter term stays.

The hearing focused on the U.S. government’s appeal of a federal judge’s 2017 ruling that U.S. authorities breached the agreement after young immigrants caught on the border said they had to sleep in cold, overcrowded cells and were given inadequate food and dirty water.

In its appeal, the Department contends the judge’s order is imposing “new substantive requirements” for the detention of immigrant children that aren’t laid out in the 1997 settlement. Advocates disagreed, saying the agreement requires youth be held in “safe and sanitary” facilities, which should include basic hygiene items and sufficient food and water.

During the hearing, Fabian said the agreement was vague about what is required to determine a facility is safe and sanitary.

Immigrant advocate Peter Schey provided dictionary definitions for the terms and noted problems in Customs and Border Protection facilities have persisted since the ruling by U.S. District Court Judge Dolly Gee, who has since appointed an independent monitor to evaluate conditions.

The issues date back years but mirror more recent allegations about the facilities amid a rise in the number of children and families, mostly from Central America, arriving on the southwest border. Five children have died since late last year after being detained by the Border Patrol and a 17-year-old Guatemalan girl was found last week in a wheelchair with her premature baby at a border facility.

The settlement between advocates for young immigrants and the U.S. government says children should be held in facilities that meet certain standards and released as soon as is reasonably possible, which has been considered to be about 20 days. </s> In this Sept. 10, 2014, file photo, detained immigrant children line up in the cafeteria at the Karnes County Residential Center, a detention center for immigrant families, in Karnes City, Texas.

A federal appeals court in San Francisco on Tuesday appeared inclined to uphold a lower court order that gave details on the minimum necessities that must be provided to undocumented immigrant children being held by the government.

The order was issued in 2017 by U.S. District Judge Dolly Gee of Los Angeles, who is overseeing a 1997 agreement, known as the Flores settlement, concerning the conditions for holding immigrant children.

The settlement requires "safe and sanitary" conditions, including access to drinking water, food, toilets and adequate temperature control.

In 2017, after reviewing claims of substandard conditions, Gee ordered officials to provide soap, toothbrushes and showers and to end an alleged practice of having children sleep on concrete floors under an aluminum blanket in cold, noisy and constantly lighted rooms.

The U.S. Justice Department is asking the 9th U.S. Circuit Court of Appeals to strike down the order, claiming that it adds new requirements that go beyond the 1997 settlement.

Justice Department attorney Sarah Fabian argued before a three-judge appeals panel that Gee "in fact expanded the terms of the agreement."

Immigration attorney Peter Schey, who helped to negotiate the 1997 agreement on behalf of undocumented Salvadoran teenager Jenny Flores, argued that the requirements were a reasonable interpretation of "safe and sanitary" conditions.

The panel took the case under submission and will issue a written ruling at a later date.

All three judges on the panel questioned Fabian as to why the requirements in Gee's order shouldn't be considered necessities.

Judge William Fletcher said, "If you're putting people in a crowded room to sleep on a concrete floor with an aluminum blanket on top and lights on all night long, no one could argue this is safe and sanitary."

Judge Wallace Tashima said, "It's within anyone's understanding that if you don't have a toothbrush, soap and blanket, it's not safe and sanitary."

The Flores agreement also requires that undocumented immigrant children be released to a relative or family friend or placed in a licensed care program within 20 days.

The current case is one of several legal disputes about the interpretation of the settlement that have gone through the court system.

Copyright Bay City News </s> The Trump administration’s defense of conditions at its shelters for immigrant minors — it argues it is not legally required to provide all of them with such items as soap, toothbrushes and sleeping accommodations — drew an incredulous response from federal appeals court judges Tuesday at a hearing in San Francisco.

The administration is appealing a federal judge’s June 2017 ruling that immigration officials were violating a 1997 court settlement requiring unaccompanied minors in federal custody to be kept in safe and sanitary conditions before being released to relatives or sponsors as promptly as possible. U.S. District Judge Dolly Gee of Los Angeles found that youths held in the Rio Grande Valley in Texas were being denied basic necessities and appointed a monitor to oversee compliance.

The administration denied violating the settlement and argued in court papers that nothing in the 1997 agreement required officials “to provide minors, in all situations, with sleeping accommodations, toothbrushes, toothpaste, showers, soap, towels and dry clothes,” as long as the facilities were safe and sanitary. A panel of the Ninth U.S. Circuit Court of Appeals was clearly unconvinced.

“It’s within everybody’s common understanding that if you don’t have a toothbrush, you don’t have soap, you don’t have a blanket, those are not safe and sanitary,” Judge A. Wallace Tashima told Justice Department lawyer Sarah Fabian.

“Those things may be part of ‘safe and sanitary,’ “ depending on the length of a minor’s confinement, Fabian replied. But she said Gee had “expanded the terms of the agreement” by imposing new conditions.

“You’re really going to stand up and tell us that not being able to sleep isn’t a question of safe and sanitary conditions?” asked a second judge, Marsha Berzon.

Judge William Fletcher, the third panel member, said Gee found evidence that minors were kept overnight in crowded, chilly rooms, sleeping on concrete floors with aluminum-foil blankets with the lights kept on all night.

“No one would argue that this is safe and sanitary,” Fletcher said.

Fabian didn’t disagree, but contended the settlement gave immigration officials some leeway in housing minors. There are “challenges in interpreting a very old agreement” that was reached before the current Department of Homeland Security and its immigration agencies were even established, she said.

Plaintiffs’ lawyer Peter Schey of the nonprofit Center for Human Rights and Constitutional Law said court enforcement of the agreement was essential.

“Once a month a kid is dying in (U.S. Customs and Border Protection) custody,” he said.

The court heard an hour of arguments and will rule at a later date. </s> Panel hears case on conditions for young migrants on border

SAN FRANCISCO (AP) — A U.S. government lawyer says a settlement agreement requiring sanitary conditions for detained immigrant children may not necessarily mean a toothbrush and soap must be provided for shorter stays.

Sarah Fabian, senior litigation counsel for the Department of Justice, told a three judge-panel Tuesday at the Ninth U.S. Circuit Court of Appeals in San Francisco the agreement doesn't list items that must be provided in border facilities.

She was responding to a judge's question about whether there could be an instance when a person didn't need a toothbrush or soap for days.

The hearing focused on the Department's appeal of a 2017 court ruling finding authorities breached the longstanding agreement after young immigrants caught on the southwest border said they had to sleep in cold, overcrowded cells. </s> WASHINGTON (Reuters) - The Trump administration said on Thursday that it plans to withdraw from a federal court agreement that strictly limits the conditions under which authorities can detain migrant children, and proposed new rules that it said would enable it to detain minors during their immigration proceedings.

The administration is targeting the Flores Settlement Agreement, a 1997 federal consent decree that places significant curbs on how long and in what conditions the government can detain migrant children as it seeks to dissuade migrants from crossing the U.S. southern border.

Immigrants and their advocates are expected to mount legal challenges to the administration’s effort to exit the agreement, which has been interpreted over the years to set a 20-day limit on detaining children who entered the country illegally, and also requires facilities that house migrant children to be licensed by a state authority.

Trump administration officials have repeatedly referred to the agreement’s standards as “loopholes” that attract migrants by forcing authorities to release people pending their immigration hearings.

On Thursday, the administration said in a regulatory filing it would seek to terminate the Flores settlement, and put forward regulations it said “parallel the relevant and substantive terms” of the agreement.

The new rules would ensure “that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors,” the regulation said.

The administration earlier this year asked a federal court to ease the limits mandated by the Flores agreement, but the judge overseeing the agreement, U.S. District Court Judge Dolly M. Gee, rejected those requests.

That attempt by the administration came after it instituted a “zero-tolerance” policy at the U.S. border that led to the separation of thousands of migrant children from their parents. After intense public outcry over the policy, the administration was forced to abandon it, but hundreds of children remain separated from parents who were deported without them.

The regulation proposed on Thursday would create a new federal licensing system, so authorities could hold children with their parents in detention centers that are not licensed by state authorities to hold children.

“The goal is to provide materially identical assurances about the conditions of such facilities...and in turn to allow families to remain together during their immigration proceedings,” the rule states.

The public has 60 days to comment on the proposal, followed by a 45-day period before the court settlement is terminated.
A three-judge panel of federal appeal court judges from the ninth circuit hears arguments concerning a 2017 ruling that U.S. authorities breached the Flores Settlement Agreement's order on holding undocumented immigrant children in "safe and sanitary" conditions. The Department of Justice is seeking relief because the order imposes “new substantive requirements” for the detention of immigrant children that aren’t laid out in the settlement. The panel will issue a ruling at a later date.