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Leiden University supports amici curiae brief in U.S. case about detention of immigrant children

The amici curiae brief was filed with the United States District Court for the Central District of California, on 28 January 2020.

Prof. dr. Ton Liefaard, prof. dr. Peter Rodrigues, prof. Julia Sloth-Nielsen and prof. dr. Jaap Doek serve as amici of the brief to vindicate the public interest in ensuring understanding and application of international law by the court, together with more than one hundred experts from the U.S. and elsewhere. The brief comes in the latest round of litigation, in a case known as Flores v. Barr, on the treatment of children in immigration detention. The brief urges the Court to consider core human rights protection, including children’s rights to be free from unlawful detention, to special measures of protection, and to consideration of their best interests in all decisions that affect them.

The original lawsuit was filed in 1985 on behalf of a group of unaccompanied children who were detained for months with unrelated adults, routinely strip searched, and held without access to education, recreation, or family visits. The government agreed to settle the case in 1997 under terms that required it to implement policies 'favoring release' of children to relatives in the United States and, during periods in which children are detained, to hold most children in state-licensed, non-secure facilities similar to the placements used by state child protection agencies to provide care for children who cannot be in their home environments. The settlement also requires any detention of children to be in 'safe and sanitary' conditions.

In an effort to end federal court oversight, the Trump administration published regulations in August 2019. As written, the regulations would allow for indefinite detention of children and their parents. The district court judge overseeing the settlement struck down the regulations the following month, concluding that they 'fail to implement and are inconsistent with' the settlement. The government’s appeal is now pending before the U.S. Court of Appeals for the Ninth Circuit. The amici curiae brief, which can be read here, argues (amongst others) that both treaty obligations and customary international law prohibit the United States from subjecting children to arbitrary detention in the context of immigration enforcement.  

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