Questions abound over whether migrant children being held in facilities set up by the Trump administration are being treated in hospitable and sanitary conditions.
Seven children are known to have died in U.S. custody since last year — an astounding number, considering that for almost a decade before there were no migrant children deaths at all, NBC News reported in May.
The deaths of these children suggested to some experts and humanitarians that conditions for those who are in the care of Customs and Border Protection or other federal agencies are lacking. In spite of these concerns, the administration has argued there’s nothing to worry about, even as they acknowledge some kids are being forced to sleep on concrete floors and deprived of soap.
Earlier this week, Justice Department lawyer Sarah Fabian, arguing before a three-judge 9th Circuit court panel in San Francisco, said that conditions for children fit with a 1985 class action lawsuit that established how children of immigrants, detained by the U.S., should be treated, Newsweek reported.
Priority is given to reunite children with their parents, but when that doesn’t occur, according to the 1985 precedent, children are meant to be kept at facilities in conditions that are “safe and sanitary.” Fabian suggested that present conditions met those needs, even as the facts of the case noted that children were lacking in access to soap, toothbrushes, and other items.
Migrant youths have also been subjected to sleeping in cold conditions, on hard concrete floors, and in crowded cells. Fabian suggested that, because the class action agreement didn’t explicitly state what needs were required, the Trump administration was within the letter of the law.
“Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?” U.S. Circuit Judge William Fletcher asked Fabian. “I find that inconceivable that the government would say that that is safe and sanitary.”
Here's the argument (at around 25:00). The Justice Department is arguing that a consent decree requiring the gov't to provide "safe and sanitary" conditions for detained minors doesn't mean they need to be able to sleep or wash.
Judge Berzon: "Really?"
— Brad Heath (@bradheath) June 20, 2019
Fletcher’s colleagues seemed to agree.
“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?” asked U.S. Circuit Judge Marsha Berzon.
Earlier in the proceedings, Fabian had argued that nothing the Trump administration had set up was proper.
“One has to assume it was left that way and not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” she said.
Fletcher saw things differently, according to Courthouse News. “Or it was relatively obvious,” he said, “and at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum-foil blanket on top of them that it doesn’t comply with the agreement.”
Berzon added that federal counsel ought to consider whether the appeal of a lower court decision, stating that conditions were not safe and sanitary, ought to continue.
“Have you considered whether you might go back and consider whether you really want to continue this appeal?” she asked Fabian.