Federal Appeals Court Orders Immigration Authority to Protect Unaccompanied Minors Charged With Deportation

March 26, 2004 12:00 am

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SAN FRANCISCO – A federal appeals court has ruled unanimously that immigration officials must ensure that a responsible adult is notified when the agency attempts to deport 14-to-18-year-old children who have been arrested and taken into custody on immigration charges, the American Civil Liberties Union announced today.

As a result of this ruling, thousands of minors will now be entitled to proper notice, according to Lucas Guttentag, director of the ACLU’s Immigrants’ Rights Project, who was appointed by the court to argue the case last June.

“This important decision protects the rights of thousands of children and prohibits the government from ignoring or exploiting the special vulnerability of unaccompanied minors,” he said, noting that immigration officials have not confirmed the exact number of 14-to-18-year-olds currently in custody.

“As the court has affirmed,” Guttentag added, “teenagers, particularly those who may not speak fluent English, cannot be expected to understand the complexities of our immigration system or get themselves to an immigration hearing that may be far in the future and in a distant location.”

The case, Jose Flores-Chavez v. INS, 01-70748, arose from a 1993 incident in which the Immigration and Naturalization Service began deportation proceedings against 14-year-old Jose Flores-Chavez without any notice to the adult responsible for him.

Flores-Chavez, a native of El Salvador, did not appear for his hearing and as a result a deportation order was entered against him. In 2001, the INS sought to deport him because he failed to appear for his 1993 hearing. He has been in custody since 2000 based on the deportation charge. The court declared that the government had acted “contrary to law” and in a notable ruling ordered that he be released immediately.

Justice Department lawyers had argued that the immigration agency has no obligation to notify an adult of a pending deportation hearing once a child turns 14 – despite the fact that the agency’s own regulations prohibit the release of any child under the age of 18 unless he or she is released into the custody of a responsible adult.

But as the ACLU argued in its brief, requiring the INS to notify the adult guardian of a juvenile “furthers the government’s interest in ensuring a minor’s appearance, vindicates the juvenile’s due process right to meaningful notice and imposes no measurable burden on the government.” The failure to provide such notice, the ACLU argued, “is inexplicable unless the government’s true (and impermissible) purpose is to provide only formalistic notice to the juvenile in order to increase the likelihood of obtaining an in absentia order when the juvenile fails to appear.”

The appeals court found that the failure to provide notice to an adult raises serious constitutional problems, saying the government’s position “defies logic.” As the court emphasized, “It would be illogical for us to determine that notice need not be served upon the responsible adult who takes custody of a minor over 14 when the INS’s own regulations would forbid the [immigration judge] from accepting that minor’s admission of deportability without a responsible adult present.”

The opinion is online at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ 4A656293E710C2CA88256E61007BA023/$file/0170748.pdf?openelement

The ACLU’s brief was filed by Guttentag and Omar Jadwat of the ACLU Immigrants’ Rights Project. Also on the brief were the National Immigration Law Center, the Youth Law Center and the pro bono law firm of Heller, Ehrman, White & McAuliffe of San Francisco.

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