There are now more than 14,000 children being detained by U.S. immigration authorities. That’s an increase of nearly 100 per cent in just the last year. The growing number of children detained by immigration comes despite a twenty year old settlement agreement in Flores v. Reno  that requires the Federal Government to release children without unnecessary delay except when it is necessary for the safety of the child.
The original counsel in Flores, NCYL and the Center for Human Rights and Constitutional Law, joined by the Immigration Law and Civil Rights Clinics of University of California Davis School of Law, obtained a favorable ruling in July from Federal District Court Judge Dolly Gee which found that the government is unnecessarily delaying the release of children, “stepping up” children to more secure facilities without justification and without providing the children meaningful notice to challenge those placements. The judge issued orders for the government to comply with the agreement including ending the policy of requiring various services to be in place before a child can be released from custody and requiring the director of the Office of Refugee Resettlement (ORR) to approve the release of any child that was ever in a staff-secure or secure facility. Judge Gee found both of these practices were preventing the timely release of children. Despite this order the number of children in detention has continued to grow.
Last month NCYL joined with the Morrison & Forester, the ACLU, and the New York Civil Liberties Union, to file a new class action lawsuit  targeting the Trump Administration’s use of fingerprint-based background checks of parents and other potential sponsors as a means of prolonging the detention of immigrant children. The Office of Refugee Resettlement, the federal agency responsible for immigrant children in government custody, began requiring fingerprint checks of children’s parents and all of their household members in June 2018, shortly after adopting new policies to share fingerprints with Immigration and Customs Enforcement (ICE) for enforcement purposes. Family members must wait weeks for appointments to have their fingerprints taken and then weeks and even months longer for the results. These delays have caused the length of time that children spend in government custody to spike dramatically—in many cases, to more than double the previous average.
In a related development, Judge Gee has granted class certification and rejected the government’s motion to dismiss in a new case filed by Flores Counsel along with Cooley LLP. Filed on behalf of five immigrant children, the complaint in Lucas R. v Azar,  charges the government with inappropriately detaining children in unnecessarily restrictive detention centers without fair process, unlawfully medicating children without parental or other appropriate authorization, and failing to promptly release children to family members in the United States. It also alleges that the government is violating the Fifth Amendment of the U.S. Constitution by obstructing detained children from accessing lawyers and failing to provide due process.