[Cross-posted from The Conversation]

By Kevin R. Johnson

The Trump administration is trying to terminate the Flores settlement, a legal agreement that determines how immigrant children are treated in U.S. immigration detention.

The 1997 settlement established basic standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating immigration laws.

It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them, and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can be kept in federal immigrant detention for only 20 days.

But a new regulation, originally proposed by the Trump administration in 2018 and finalized on Aug. 21, would remove the requirements of the Flores settlement.

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from that region, where violent civil wars had caused tens of thousands to flee.

Central Americans arrested at the U.S.-Mexico border were held in custody – including many who sought asylum in the U.S. because they feared persecution if returned home.

Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying migrants access to counsel, taking steps to encourage them to “consent” to deportation and detaining them in isolated locations far from families and attorneys.

One suit was filed by the American Civil Liberties Union in 1985 on behalf of Jenny Lisette Flores, a 15-year-old from El Salvador. She had fled violence in her home country to live with an aunt who was in the U.S.

But Flores was detained by federal authorities at the U.S. border for not having proper documentation permitting her to stay in the U.S.

The American Civil Liberties Union charged that holding Flores indefinitely violated the U.S. Constitution and immigration laws. The Flores case slowly made its way to the U.S. Supreme Court.

In its 1993 ruling in the case, the court held that a regulation allowing the government to release a migrant child to a close family member or legal guardian in the United States was legal.

But the primary legacy of the case was the subsequent settlement, to which both the Clinton administration and the plaintiffs agreed in 1997.

The Flores settlement is a landmark agreement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children.

Although the settlement was agreeable to the Clinton administration, the Trump administration strongly desires to detain families, including children, for periods longer than permitted by the settlement – in fact, indefinitely.

Litigation over enforcement of the Flores settlement has exploded during the Trump administration, which has detained migrant children in poor conditions along the U.S.-Mexico border since soon after taking office.

The lawsuits include a court case brought by immigrants’ rights and civil liberties groups in response to what they called the “imminent threat to the health and welfare” of migrant children in detention. U.S. border officials should have “promptly released children to their relatives and provided safe and sanitary detention conditions for all children in its custody,” said an attorney representing the groups that brought the action.

Similarly, in the summer of 2018, based on the Flores settlement, a federal court barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

Conditions apparently have not improved in detention centers across the country. Several children have died while in custody since January, and public outcry over the conditions of detention for the migrants have led to numerous court fights.

During recent litigation seeking to enforce the Flores settlement, the Department of Justice made headlines for its defense of the detention conditions of migrant children. The judges of the court of appeals were incredulous at the government’s claim that soap and a toothbrush were not necessarily required for detained migrant children. Not surprisingly, the court flatly rejected the government’s claim.

Last year, the Trump administration requested to amend the settlement to allow it to indefinitely detain migrant children.

The courts consistently have denied these requests and have continued to monitor the detention of migrant children, as the Flores settlement requires them to do.

Importantly, the new rule will allow the Department of Homeland Security and Health and Human Services to respond to significant changes that have occurred since the Flores settlement agreement has been in place, including dramatic increases in the numbers of unaccompanied children and family units crossing into the United States.

The rule is slated to take effect on Oct. 23. But immigration and civil liberties advocates have vowed to challenge the rule, which will put the proposed change in front of U.S. District Judge Dolly M. Gee. Gee is the judge who denied the administration’s request last year to extend family detentions.

This is an updated version of an article originally published on Aug. 2, 2018 and revised on June 27, 2019.

[Cross-posted from Just Security]

By William S. Dodge and Ingrid Wuerth

Are foreign states and their property immune from civil forfeiture suits brought by the U.S. government? The Second Circuit recently held that the Foreign Sovereign Immunities Act (FSIA) does not bar in rem civil forfeiture suits, but the Court’s reasoning was flawed in several respects.

The case, United States v. Assa, involves a 36-story skyscraper, 650 Fifth Avenue, in midtown Manhattan, as well as other real property and bank accounts. The case began in 2008, when the U.S. government brought a civil forfeiture action alleging that Assa Co. Ltd and Assa Corporation (together “Assa”) were owned and controlled by the government of Iran and had provided services to Iran in violation of U.S. sanctions. Based on uncontroverted evidence, the district court found that Assa served as “a front for Bank Melli [the central bank of Iran], and thus a front for the Government of Iran.” The district court granted summary judgment and ordered much of the property forfeited. After appeals by other defendants and a subsequent trial, the district court entered judgment against Assa in 2017. The property at issue in the forfeiture action has been the subject of much litigation, as summarized by the Second Circuit in In re 650 Fifth Ave. and Related Properties.

On appeal, Assa argued that if it is so controlled by Iran that it is Iran’s alter ego – as the Second Circuit held in a related case – then it is a foreign state entitled to the protections of the FSIA. If so, the district court lacked subject matter jurisdiction, a defense that may be raised at any time. The FSIA confers immunity on foreign states in two relevant provisions: 28 U.S.C. §§ 1604 and 1609. Section 1604 deals with the immunity of foreign states from suit, whereas Section 1609 deals with the immunity of a foreign state’s property from legal measures constraining that property known as attachment and execution. The Second Circuit held that neither of these sections applies to civil forfeiture suits. Because it held that Assa was not entitled to immunity at all, the court did not need to address whether any exceptions to immunity apply.

Section 1604 provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607” of the FSIA. The Second Circuit reasoned that Section 1604 does not bar in rem civil forfeiture suits because such suits are actions against the propertyof a foreign state, not against the foreign state itself. That reasoning ignores the FSIA’s treatment of other in rem proceedings. Specifically, Sections 1605(b)-(d) permit suits against foreign states to enforce maritime liens and preferred ship mortgages, subject to certain notice requirements, when a suit in rem could have been brought if the vessel had been privately owned. Under these provisions, the suit against the foreign state is technically in personam, but it follows the law and practices for in rem suits. The fundamental premise of these FSIA provisions is that maritime actions should be brought in personam, not in rem, because of the international friction that results from thein rem actions against foreign state property. The Second Circuit’s reasoning would render these provisions ineffective. If actions in rem never entitle foreign states to immunity, then plaintiffs may still use the in rem proceedings that the FSIA sought to eliminate.

The FSIA’s goal of eliminating in rem actions against foreign state vessels and cargos is underscored by the operation of the original language in Section 1605(b). As described in the legislative history, it ensured that “if the vessel or its cargo is arrested or attached, the plaintiff will lose his in personam remedy and the foreign state will be entitled to immunity—except in the case where the plaintiff was unaware that the vessel or cargo of a foreign state was involved.” Under the Second Circuit’s reasoning, by contrast, the foreign state would notbe entitled to immunity because neither Section 1604 nor Section 1609 (discussed below) would confer immunity at all in an in rem action. The language of 1605(b) has since been amended, but not in ways that change the operation of Sections 1604 and 1609.

Section 1609 provides that the “property in the United States of a foreign state shall be immune from attachment arrest and execution” subject to certain exceptions. The Court reasoned that this language“refers to quasi in rem suits meant to enforce in personam judgments against a foreign state” but not to in rem proceedings. But the text of Section 1609 draws no such distinction. Instead, it broadly confers immunity “from attachment arrest and execution,” subject only to the enumerated exceptions found in Sections 1610 and 1611. Those provisions contain no exception for civil forfeiture. Moreover, in the admiralty context, courts have held that Section 1609 confers immunity in in rem cases. See, e.g., Coastal Cargo Co. v. M/V GUSTAV SULE, 942 F. Supp. 1082, 1085 (E.D. La. 1996) (noting that “the arrest of the vessel” violated Section 1609).

It is true, as the Second Circuit noted, that one goal of the FSIA was to eliminate the attachment of property for the purpose of establishing jurisdiction. But that goal is accomplished by Section 1610(d)(2), which permits prejudgment attachment only when “the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.” Section 1609 sweeps more broadly.

Finally, interpreting Section 1609 to apply to civil forfeiture actions is probably necessary to avoid violations of customary international law. As the International Court of Justice has noted, the customary international law rules governing immunity from execution are distinct from, and generally broader than, the customary international law rules governing immunity from suit. See Jurisdictional Immunities of the State (Germ. v. It.), 2012 I.C.J. 99, para. 113 (Feb. 3). Customary international law provides immunity to state-owned corporations only in limited circumstances, but the Second Circuit held (in the related case of Kirschenbaum v. Assa Corporation) that Assa should be treated as the foreign state itself under U.S. law because Iran extensively controlled Assa’s operations. International law may not require that Assa receive the immunity to which Iran is entitled, an issue upon which we do not offer an opinion. But in any event, the Second Circuit’s reasoning covers situations in which the property subject to civil forfeiture is owned directly by a foreign government, which would almost certainly violate customary international law in at least some circumstances.

The Second Circuit erred in this case. It should seriously consider withdrawing and amending its opinion. To hold that foreign states enjoy no immunity at all from suit or execution in civil forfeiture suits is contrary to both Section 1604 and Section 1609 of the FSIA, and it may put the United States in violation of customary international law.

[Cross-posted from ImmigrationProf Blog]

By Jasmine E. Harris

We cannot fully understand the treatment of immigrant detainees and the numerous lawsuits filed against ICE and the Trump Administration without attention to disability rights. Not only do these cases underscore the intersection of immigration and disability rights broadly, but, more concretely, they offer novel and underdeveloped remedial avenues rooted in disability law. Disability statutes, like the U.S. Constitution, apply to individuals in the United States irrespective of citizenship and immigration status.

Yesterday, a coalition of leading civil rights groups filed a nationwide class action in the Central District of California to challenge the systematic denial of constitutional and statutory rights of people with disabilities in immigrant detention centers. Abdallah Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., No. 5:19-cv-01546 (C.D. Cal. Aug 19, 2019) (hereinafter, Fraihat Complaint). The putative plaintiffs are fifteen individuals detained at eight different facilities in six states, representing a putative class of approximately fifty-five thousand immigrants imprisoned by ICE daily, and two nonprofit organizations, Al Otro Lado and the Inland Coalition for Immigrant Justice (ICIJ). The Fraihat Complaint challenges the federal government’s failure to ensure detained immigrants at one-hundred fifty-eight detention facilities receive appropriate medical and mental health care, its alleged use of segregation in violation of the Fifth Amendment of the U.S. Constitution, and its failure to ensure that detained immigrants with disabilities are provided legally-mandated accommodations and are not discriminated against as required by Section 504 of the Rehabilitation Act of 1973.  The Fraihat Complaint details dangerous conditions present in detention facilities that place detainees with medical and mental health disabilities in precarious situations. Examples include self-accommodating wheelchair users without assistive mobility devices being forced to rely on fellow detainees to carry them; and people denied access to medications to manage chronic illness, exacerbating current disabilities and generating new ones.

Fraihat builds on well-established substantive and procedural precedents in the prisoners’ rights context. First, the key theory of liability is that Immigration and Customs Enforcement (ICE) cannot avoid statutory and constitutional duties by contracting with third parties to manage and operate detention facilities. Although ICE directly operates only a handful of detention facilities, plaintiffs rely on familiar agency principles to hold ICE, the Department of Homeland Security, and institutional actors liable for their failure to monitor, investigate, and remedy alleged systematic violations at approximately one-hundred fifty-three facilities run by local sheriffs’ offices and private contractors.  Among those implicated, the GEO Group and CoreCivic (formerly “Corrections Corporation of America”) are two repeat defendants in prison condition cases. The fact that ICE has failed to effectively monitor and oversee the daily management of these private contractors, and to take effective measures when it learns of problems in those centers under their care and control, is not news. Consider this recent report from California Department of Justice detailing the findings from an investigation of all ten detention facilities in the state. Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019) (finding highly-restrictive prison-like conditions including required uniforms, compulsory prison-wage labor, restrictions on access to counsel and receipt of medical and mental health care).  Nor is use of class remediation novel. Fraihat relies on Ninth Circuit precedent in an analogous prisoners’ rights case for the proposition that class certification is appropriate. The Ninth Circuit in Parsons v. Ryan , 754 F.3d 657 (9th Cir. 2014)., held that prisoners could proceed as a class to challenge Arizona’s policies and practices denying access to medical care, dental care, mental health care, and punitively employing isolation.

With respect to remedies, Plaintiffs seek injunctive and declaratory relief. They want Defendants to stop using segregation as a punitive weapon, to effectively monitor federal contractors acting as their agents, and to build institutional capacity to attend to the needs of those detained.  For example, the Fraihat Complaint alleges that ICE and DHS have no system of tracking detainees’ medical and mental health needs or requests for care and accommodations.  As a result, when detainees are transferred from one facility to another, they are forced to restart the process of requesting medical care or reasonable accommodations from the beginning, leading to major delays in receipt of urgent medical attention and disability accommodations.

Plaintiffs in Fraihat face an impossible choice: either languish in detention without medical and mental health care and risk exacerbation of disabilities (including death) or abandon their immigration cases. The Trump Administration’s aggressive enforcement and use of detention has flooded an already broken system that, unfortunately (and perhaps inconceivably), continues to be years behind failing prisons in terms of compliance with disability rights laws. 

The lawsuit was filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), the Southern Poverty Law Center (SPLC), and Orrick, Herrington & Sutcliffe LLP in the U.S District Court for the Central District of California. You can read the full Fraihat Complaint here.

Another recent example of disability rights at work in immigration debates is the Trump Administration’s amended “public charge” regulation, also the subject of California’s most recent lawsuit filed in federal court on August 16, 2019.  The new DHS regulation denies green cards to immigrants who use Medicaid, food stamps, housing vouchers or other forms of public assistance. While the rule may be problematic on its face, even if considered facially neutral, en arguendo, it will almost certainly have a disproportionate impact on immigrants with disabilities and their family members who are more likely to rely on Medicaid for health insurance. Before the DHS amendment, people with disabilities were considered “public charges” if they were likely to require institutional services such as long-term care. The expanded language in the rule may result in greater exclusion of people with disabilities and their families who rely on public insurance for the very supports necessary for them to access gainful employment and avoid economic dependency, such as personal home assistants or assistive technology.  Furthermore, other challenges to the Trump Administration’s immigration policies and practices, such as those pursuant to the settlement agreement in Flores v. Reno to challenge, among other policies, the Admiration’s separation of immigrant children at the U.S. border, while widely known, are filed within the immigration law cabinet without regard for the ways in which disability rights operate.  Flores, for example, requires that detained children be placed in “the least restrictive setting” in line with their age and other “special needs,” language that comes from the implementing regulations for Section 504 of the Rehabilitation Act of 1973 (requiring that services be provided in the “most integrated setting” appropriate). 

Perhaps most promising for this disability legal scholar is the recognition of disability rights as part of a broader civil rights agenda. My hope is that activists, practitioners, and scholars recognize the utility of these coalitions and consistently engage disability rights theoretical and legal principles to redress our most pressing social justice offenses of the day.

[Cross-posted from Undark]

For much of the 20th century, asbestos — dubbed a “miracle mineral” for its strength and fire resistance — was ubiquitous in buildings, homes, and consumer products. But beginning in the 1970s, as the material was shown to cause cancer and respiratory illnesses, a combination of tort liability and regulation curbed its use in the U.S. For many, that awakening has been too little, too late. Thousands of Americans continue to die each year from asbestos-related diseases.

Today, we may be facing the next asbestos: Per- and polyfluoroalkyl substances, or PFAS. Stain resistant, waterproof, and grease repellant, PFAS are widely used in nonstick cookware, food packaging, clothing, furniture, and fire retardants. Their best-known applications include Teflon, Scotchgard, and GORE-TEX. But for more than a decade now, PFAS have been linked to increased cancer risk, reduced fertility, immune system suppression, and stunted growth and learning.

Known as “forever chemicals” because they do not easily break down, PFAS have found their way into drinking water supplies and into a variety of foods, and almost all Americans have detectable levels of PFAS in their blood. Yet federal regulators have taken few measures to protect citizens from PFAS’s harms — and when they have acted, they’ve been seemingly a step behind at every turn. That must change.

To their credit, manufacturers have taken some steps to respond to concerns regarding PFAS. Industry largely phased out two of the most commonly used and extensively studied PFAS — perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) — by 2002 and 2015, respectively. But both of these substances continue to seep from contaminated sites into the drinking water supplies of millions of Americans. And, for the most part, manufacturers simply replaced PFOA and PFOS with other PFAS chemicals that have similar structures, similar characteristics, and — scientists fear — similar health risks.

In theory, several environmental statutes — including the Safe Drinking Water Act and the Toxic Substances Control Act — could be used to address at least some aspects of the problem. However, federal regulators have been slow to respond. In 2016, the U.S. Environmental Protection Agency advised drinking water system operators to take action whenever combined PFOA and PFOS concentrations exceed 70 parts per trillion. Operators were advised to conduct further sampling, inform consumers of the elevated concentrations and potential dangers, and limit the public’s exposure to tainted water supplies. But the agency’s advisories govern only those two chemicals and are not enforceable. In February 2019, the EPA announced that, by the end of the year, it will start the process for developing enforceable standards for PFOA and PFOS levels in drinking water, though it’s unclear when the work will be completed.

As the EPA drags its feet, some states have begun to develop their own regulatory standards — and to file lawsuits against industry and the U.S. Department of Defense, which owns or operates hundreds of sites contaminated by PFAS-containing firefighting foam. In Congress, bipartisan support for legislative action is building. More than 30 PFAS-related bills have been introduced on the Hill, including proposals requiring the Defense Department to address water contamination at military bases and EPA to establish enforceable standards for PFOA and PFOS in drinking water within two years.

Although these developments are encouraging, PFAS contamination is a multifaceted problem that calls for a multifaceted response. So, as Congress pursues legislative solutions, there are several things it should keep in mind.

First, because PFAS comprises thousands of substances, a chemical-by-chemical approach to regulation is likely to fail. Hundreds of scientists have concluded that the structural similarities between PFOS and PFOA — for which the evidence of toxicity is clear cut — and other PFAS warrant caution in the use of all PFAS. Regulation of the various PFAS chemicals should not require definitive evidence of each individual substance’s toxicity.

Second, Congress should address not only the threat of present-day exposure to PFAS, but also harms from past exposure and risks of future exposure. It will be essential to identify and redress harms to those who have already been exposed to PFAS, to clean up contaminated sites and secure safe water supplies, and to prevent future contamination. In the cleanup process, establishing drinking water standards is only a first step. Water suppliers will likely require financial and technical assistance to achieve those standards — and basic fairness suggests that the companies responsible for the contamination should bear the costs. To prevent future contamination, Congress should limit PFAS use and promote non-PFAS alternatives.

Third, although drinking water contamination is the most pressing and significant pathway for PFAS exposure, people can also be exposed to PFAS through their work environments, contaminated foods, foods wrapped in PFAS-treated packaging, and various consumer products. It will be important to assess the risks associated with these alternative pathways and to develop strategies to deal with them.

The broad bipartisan support for action on PFAS reflects the urgency and importance of the substances’ known health hazards. Congress must act quickly — and wisely — to make sure PFAS doesn’t become the next asbestos.