Case: 17-55208, 03/10/2017, ID: 10352719, DktEntry: 17, Page 1 of 32

No. 17-55208

IN THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
JENNY LISETTE FLORES, et al.,
Plaintiffs-Appellees-Appellees,
v.
JEFFERSON B. SESSIONS III, ATTORNEY GENERAL OF THE UNITED
STATES, et al.,
Defendants-Appellants.

On Appeal from the
United States District Court for the
Central District of California
D.C. No. 2:85-cv-04544-DMG-AGR
BRIEF OF AMICI CURIAE YOUTH ADVOCACY
ORGANIZATIONS IN SUPPORT OF JENNY LISETTE
FLORES, ET AL., PLAINTIFFS-APPELLEES
JACK W. LONDEN
(CA BAR NO. 85776)
JLonden@mofo.com
JAMES R. SIGEL
(CA BAR NO. 288478)
JSigel@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000

MARTHA MATTHEWS
(CA BAR NO. 130088)
Martha Matthews
mmatthews@publiccounsel.org
PUBLIC COUNSEL
Directing Attorney
Children’s Rights Project
610 S. Ardmore Avenue
Los Angeles, CA 90005
Telephone: (213) 385-2977 x113

Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT
None of Amici curiae is owned by any parent corporation and
no publicly traded corporation owns any stock of any amicus curiae.
See Fed. R. App. P. 26.1.

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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ..........................................................i 
STATEMENT OF INTEREST OF AMICI CURIAE ................................................ 1 
I.

INTRODUCTION ......................................................................................... 10 

II.

DETENTION OF CHILDREN IN INSTITUTIONAL SETTINGS IS
INHERENTLY HARMFUL. ........................................................................ 11 

III.

A.

Child welfare and health professional have long recognized the
harm to children resulting from institutional confinement. ................ 11 

B.

Federal and state governments have recognized this likelihood
of harm................................................................................................. 12 

C.

Immigrant children in particular suffer harm in detention.................. 15 

CHILDREN ARE ENTITLED TO BASIC DUE PROCESS
PROTECTIONS REGARDING DETENTION. ........................................... 18 

CERTIFICATE OF SERVICE ................................................................................ 24 

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TABLE OF AUTHORITIES
Page
Cases
In re Gault,
387 U.S. 1 (1967) ..........................................................................................18, 19
Reno v. Flores,
507 U.S. 292 (1993) ............................................................................................ 21
Schall v. Martin,
467 U.S. 253 (1984) ............................................................................................ 19
Statutes
42 U.S.C.
§ 671(a)(16) ........................................................................................................ 12
§ 675(5)(A) ......................................................................................................... 12
Other Authorities
American Bar Association, Standards for the Custody, Placement and
Care; Legal Representation; and Adjudication of Unaccompanied
Migrant Children in the United States (2004),
http://www.americanbar.org/content/dam/aba/migrated/Immigratio
n/PublicDocuments/Immigrant_Standards.authcheckdam.pdf .......................... 16
Barry Holman & Jason Ziedenberg, The Dangers of Detention: The
Impact of Incarcerating Youth in Detention and Other Secure
Facilities (Justice Policy Institute ed., 2006),
http://www.justicepolicy.org/images/upload/0611_rep_dangersofdetention_jj.pdf ...................................................................... 13
Child Welfare League of America, Position Statement on Residential
Services (2005), https://ncfy.acf.hhs.gov/library/2005/positionstatement-residential-services ............................................................................. 12

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TABLE OF AUTHORITIES
(continued)
Page

Elizabeth Calvin, Legal Strategies to Reduce Unnecessary Detention
of Children (National Juvenile Defense Center 2004),
http://njdc.info/wp-content/uploads/2013/11/Legal-Strategise-toReduce-the-Unnecessary-Detention-of-Children.pdf ......................................... 20
Elizabeth S. Bernert et al., How Does Incarcerating Young People
Affect Their Adult Health Outcomes, 139 Pediatrics 2 (Feb. 2017),
http://pediatrics.aappublications.org/content/139/2/e2016262........................... 14
Institute of Judicial Administration & American Bar Association,
Juvenile Justice Standards Annotated: A Balanced Approach
(1996), www.ncjrs.gov/pdffiles1/ojjdp/166773.pdf ........................................... 20
Karen de Sa, Horduran Boy, 14, Wins U.S. Asylum But Remains In
Jail, San Francisco Chronicle, Mar. 5, 2017,
http://www.sfchronicle.com/bayarea/article/Honduran-boy-14wins-U-S-asylum-but-remains-in-10977616.php ............................................... 17
Letter from American Academy of Pediatrics to Jeh Johnson (July 24,
2015), https://www.aap.org/en-us/advocacy-and-policy/federaladvocacy/Documents/AAP%20Letter%20to%20Secretary%20Joh
nson%20Family%20Detention%20Final.pdf ..................................................... 17
Mary Dozier et al., Consensus Statement on Group Care for Children
and Adolescents: A Statement of Policy of the American
Orthopsychiatric Association, Am. J. Orthopsychiatry Vol. 84, No.
3, 219-225 (2014), https://www.apa.org/pubs/journals/features/ort0000005.pdf ........................................................................................................ 11
Micah Bump & Elzbieta Gozdziak, The Care of Unaccompanied
Undocumented Children in Federal Custody: Issues and Options,
22 Protecting Children 2:77-78 (American Humane 2007),
https://issuu.com/georgetownsfs/docs/gozdziak_federal_custody ..................... 16

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TABLE OF AUTHORITIES
(continued)
Page

National Center for Juvenile Justice and Office of Juvenile Justice and
Delinquency Prevention, Juvenile Offenders and Victims: 2014
National Report (Melissa Sickmund & Charles Puzzanchera eds.,
2014),
https://www.ojjdp.gov/ojstatbb/nr2014/downloads/NR2014.pdf ...................... 19
National Council of Juvenile and Family Court Judges, Resource
Guidelines: Improving Court Practice in Child Abuse & Neglect
Cases (1995), www.ncjfcj.org/sites/default/files/resguide_0.pdf ...................... 21
Office of Juvenile Justice & Delinquency Prevention, The Number of
Juveniles in Residential Placement Continued to Decline in 2013
(2015),
http://www.ojjdp.gov/ojstatbb/snapshots/DataSnapshot_CJRP2013
.pdf; ..................................................................................................................... 14
Pew Charitable Trusts, Re-Examining Juvenile Incarceration: High
Cost, Poor Outcomes Spark Shift To Alternatives (2015),
http://www.pewtrusts.org/en/research-and-analysis/issuebriefs/2015/04/reexamining-juvenile-incarceration ........................................... 14
Randy Hertz et al., Trial Manual for Defense Attorneys in Juvenile
Cases (National Juvenile Defense Center 2016),
http://njdc.info/trial-manual-for-defense-attorneys-in-juveniledelinquency-cases-by-randy-hertz-martin-guggenheim-anthony-gamsterdam/ .......................................................................................................... 19
Richard P. Barth, Foster Homes: The Empirical Base For the Second
Century of Debate (Jordan Institute for Families, School of Social
Work 2002),
http://assembly.ca.gov/sites/assembly.ca.gov/files/BarthInstitutions
vFosterHomes.pdf ............................................................................................... 11
Richard A. Mandel, No Place for Kids: The Case For Reducing
Juvenile Incarceration (Annie E. Casey Foundation 2011),
http://www.aecf.org/resources/no-place-for-kids-full-report/ ............................ 14

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TABLE OF AUTHORITIES
(continued)
Page

S. Gatowski et al., Enhanced Resource Guidelines: Improving Court
Practice In Child Abuse and Neglect Cases (National Council of
Juvenile and Family Court Judges 2016),
http://www.ncjfcj.org/EnhancedResourceGuidelines ........................................ 20
Tyche Hendricks, Hundreds of Migrant Teens Are Being Held
Indefinitely in Locked Detention, KQED California Report, Apr.
11, 2016, https://ww2.kqed.org/news/2016/04/11/hundreds-ofmigrant-teens-are-being-held-indefinitely-in-locked-detention/ ........................ 17
U.S. Dep’t of Health & Human Servs., Administration for Children
and Families, Children’s Bureau, A National Look at the Use of
Congregate Care in Child Welfare (2015),
www.acf.hhs.gov/sites/default/files/cb/cbcongregatecare_brief.pdf.................. 13

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STATEMENT OF INTEREST OF AMICI CURIAE
Public Counsel is the nation’s largest public interest law firm specializing in
delivering pro bono legal services to low-income communities. Public Counsel’s
goals are to protect the legal rights of disadvantaged children; to provide
individuals and non-profit community organizations in underserved communities
with legal representation; and to represent immigrants who have been the victims
of torture, persecution, trafficking, and other crimes. The Children’s Rights
Project at Public Counsel provides free legal representation to children and youth
in Los Angeles County, including undocumented unaccompanied minors. Many of
the immigrant children who are our clients have suffered serious trauma both in
their countries of origin and after being brought to the United States. Our clients
also include children and youth who have experienced confinement in locked
facilities, in the juvenile justice system, and in federal immigration detention. We
have witnessed first-hand the adverse effects both on the physical and mental
health and on the long-term well-being and future prospects of children who have
experienced locked detention.
Centro Legal de la Raza was founded in 1969 to provide culturally and
linguistically appropriate legal aid services to low-income residents of the Bay
Area. Centro Legal’s Immigration Project provides legal representation and
consultations to detained and non-detained immigrants, refugees, and asylum

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seekers throughout Northern California. Centro Legal advises and/or represents
hundreds of detained individuals before the immigration courts and Board of
Immigration Appeals each year. Centro Legal provides legal rights presentations
and consultations three times a month to individuals in immigration detention and
represents clients before the detained immigration court on a weekly basis. In
addition, Centro Legal is currently representing over 400 unaccompanied minors in
seeking asylum and/or Special Immigrant Juvenile Status. As Centro Legal
provides legal education, consultations and direct service representation to a high
volume of detained individuals and to unaccompanied minors, it has a substantial
interest in the present case.
Children’s Rights is a national advocacy non-profit organization dedicated
to improving the lives of vulnerable children in government systems. Children’s
Rights uses civil rights litigation, policy expertise, and public education to create
positive systems change, with a 20-year track record in the area of child welfare
reform of raising accountability, protecting rights, and improving outcomes for
children. Children’s Rights has brought approximately 20 federal class action child
welfare reform lawsuits against state and local child welfare agencies throughout
the country, and it has won legal victories that improved the child welfare systems
for thousands of children. As part of its work, Children’s Rights also directly
represents youth petitioning for Special Immigrant Juvenile (“SIJ”) status, which

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provides the legal right to remain and work in the United States indefinitely.
Children’s Rights has particular concerns about the harmful effects resulting from
the over-institutionalization of children in state custody, especially children who
already have been traumatized as a result of separation from their homes and
families. In many cases, it has successfully challenged unnecessary and harmful
practices in this area.
The Human Rights Defense Center (“HRDC”) is a nonprofit charitable
corporation headquartered in Florida that advocates nationally in furtherance of the
human rights of people held in state and federal jails, prisons, and detention
facilities. Such advocacy is inclusive of the rights of juvenile prisoners and alien
detainees. HRDC’s advocacy efforts include publishing Prison Legal News
(“PLN”), a monthly publication that covers criminal justice-related news and
litigation nationwide, publishing and distributing self-help reference books for
prisoners, and engaging in litigation in state and federal courts on issues
concerning detainees. PLN has reported extensively on both juvenile and
immigration detention facilities and human rights violations within them.
Juvenile Law Center, founded in 1975, is the oldest public interest law firm
for children in the United States. Juvenile Law Center advocates on behalf of youth
in the child welfare and criminal and juvenile justice systems to promote fairness,
prevent harm, and ensure access to appropriate services. Among other things,

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Juvenile Law Center works to ensure that children’s rights to due process are
protected at all stages of juvenile court proceedings, from arrest through
disposition, from post-disposition through appeal. It also seeks to guarantee that
the juvenile and adult criminal justice systems consider the unique developmental
differences between youth and adults in enforcing these rights.
The National Institute for Criminal Justice Reform is a national nonprofit organization providing technical assistance, consulting, research, and
organizational development in the fields of juvenile and criminal justice, youth
development, and violence prevention. NICJR provides consultation, program
development technical assistance and training to an array of organizations;
including government agencies, non-profit organizations, and philanthropic
foundations. Our services are rooted in evidence-based, data-driven practices
aimed violence prevention and positive youth development in order to reduce
recidivism and promote public safety nationwide.
The Pacific Juvenile Defender Center (“PJDC”) is the California regional
affiliate of the National Juvenile Defender Center. PJDC works to improve
children’s access to counsel and quality of representation in the justice system.
PJDC provides support to its more than 900 members across the state to ensure
quality legal representation and due process for California children, including
immigrant children. Collectively, its members—who are juvenile trial lawyers,

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appellate counsel, law school clinical programs, and nonprofit law centers—
represent tens of thousands of youth in delinquency, dependency, criminal, and
immigration courts. PJDC also has long been concerned about the overuse of
secure detention of children, and the lifelong effects of incarceration on youth and
their development. It joins this amicus brief because it believes all youth,
including immigrant children, are entitled to robust due process and should be
protected from the ill-effects of incarceration.
Pegasus Legal Services for Children is a New Mexico nonprofit
corporation established in 2002 to promote and defend the rights of children and
youth to safe and stable homes, quality education and healthcare, and a voice in
decisions that impact their lives. Pegasus represents children, including immigrant
children, who live in New Mexico. Pegasus joins this brief as an advocate for
ensuring that children are not subject to unlawful detention. Detention of children,
regardless of conditions, places them at significant risk of profound harm,
including negatively impacting their development and well-being.
The Prison Law Office is a nonprofit public interest law firm based in
Berkeley, California that provides free legal services to adult and juvenile
offenders to improve their conditions of confinement. The office provides direct
services to thousands of prisoners and juveniles each year, advocates for policy
changes, and, if necessary, engages in impact litigation to ensure that correctional

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institutions meet standards required by the U.S. Constitution. The Prison Law
Office has litigated numerous successful institutional reform cases that, among
other things, have improved health care services, guaranteed prisoners with
disabilities reasonable accommodations and equal access to prison programs,
reduced the use of excessive force, limited racial discrimination and restricted the
use of solitary confinement in adult and juvenile correctional systems.
WestCoast Children’s Clinic, located in Oakland, California, is a nonprofit community psychology clinic that has provided mental health services to
Bay Area children since 1979. Its mission is threefold: 1) to provide psychological
services to vulnerable children, adolescents, and their families regardless of their
ability to pay; 2) to train the next generation of mental health professionals; and 3)
to improve services to children and families by conducting research on the impact
of clinical services, and using findings to advocate on behalf of the children we
serve. Annually, it serves over 1,700 children who live in poverty and high-stress
communities. Its clients experience ongoing trauma, physical and sexual abuse,
neglect, disrupted attachments, and community violence. Most of its clients have
been removed from their families because of abuse or neglect. Sixty-five percent
live in foster care, with the remaining at risk of entering foster care. WestCoast
provides services through specialized, mobile, and community-based programs.
Many of its clients have also experienced confinement in juvenile justice and

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institutional settings. WestCoast has seen that detaining youth in locked facilities
can exacerbate the impact of prior trauma, and the experience of being detained
causes further harm.
Young Minds Advocacy (“YMA”), based in San Francisco and founded in
2012, is a nonprofit organization focused on ensuring full access to quality mental
health care for children and youth across California and the western United States.
YMA uses a blend of impact litigation, policy advocacy, and strategic
communications to achieve its mission. Additionally, it focuses on vulnerable
youth populations, including low-income youth and young people in the child
welfare, foster care, and juvenile justice systems. It is well-established that
detaining children in congregate institutional facilities is extremely harmful to their
mental and emotional health. Not only are youth’s preexisting mental illnesses
exacerbated in custodial settings, but also, the experience of being detained is
traumatic in and of itself—especially for children—and often creates mental health
problems for youth that did not exist before detention. Moreover, research
consistently shows that children who are detained in institutional settings have
higher rates of unaddressed trauma and unmet mental health needs than young
people in the general population. YMA is joining this amicus brief because it
believes that all efforts must be made to avoid warehousing children and youth in
restrictive institutional settings, given the proven, long-term negative health

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outcomes that result from detention.
All parties to the action have consented to the filing of this amicus curiae
brief. Based on substantial experience in legal advocacy for individual children,
youth and families, and in legal and policy advocacy at a systemic level, the
children’s advocacy amici organizations who submit this brief are able to offer a
unique and valuable policy perspective that would not be duplicative of the
arguments and authorities presented by the parties and other amici, and would be
helpful to this Court in deciding the important issues presented in this case.
Granting leave to file this attached amicus brief would not delay or
complicate the proceedings in this case. The parties would have ample time to
respond to the points discussed in this brief, if requested and granted leave by this
Court, prior to oral argument.
No party or counsel for a party has authored the attached amicus brief in
whole or in part, or made any monetary contribution to fund the preparation or
submission of this brief. No person other than amici curiae or their counsel made a
monetary contribution to the preparation or submission of this brief.
For the reasons stated above, amici Public Counsel, Centro Legal de la Raza,
Children’s Rights, Juvenile Law Center, Human Rights Defense Center, Juvenile
Law Center, National Institute for Criminal Justice Reform, Pacific Juvenile
Defender Center, Pegasus Legal Services for Children, Prison Law Office,

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WestCoast Children's Clinic, and Young Minds Advocacy respectfully request
leave to file the attached amicus brief.

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I.

INTRODUCTION
In deciding whether to affirm the district court’s order enforcing

Paragraph 24A of the settlement agreement, amici urge this Court to keep in mind
two well-settled principles of public policy emphasizing the protection of children
and youth, which are expressed in numerous federal and state statutes, regulations
and policies. First, detention in institutional facilities – especially locked
facilities – is inherently harmful to the growth, development, and physical and
mental health of children and adolescents, and is permissible only as a last resort.
Second, children, no less than adults, are entitled to basic due process protections
regarding locked confinement, and no government agency should be permitted to
lock up a child based only on its own unreviewable determination that such
detention is necessary.
The position of the government in this case is highly anomalous, contrary to
long-standing public policies at both the federal and state levels, and it directly
conflicts with these two basic principles. The government contends that it may
detain children in locked facilities—causing significant and even permanent harm
to these children—without ever demonstrating to a neutral arbiter that such
detention is necessary to protect the child, promote public safety, or address a
flight risk. In no other context would a state or federal government agency
advance such a position. This Court should not accept this novel contention here.

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II.

DETENTION OF CHILDREN IN INSTITUTIONAL SETTINGS IS
INHERENTLY HARMFUL.
A.

Child welfare and health professional have long recognized the
harm to children resulting from institutional confinement.

There is a broad consensus among child welfare and health professionals
that children should be placed in institutional, congregate care settings—even
humane, well-staffed, high-quality institutional settings—only in strictly limited
circumstances and only as a last resort. This is because institutional care deprives
children of the family relationships, interpersonal attachments, and access to
normal educational, social. and recreational activities that are essential to child
development. See Mary Dozier et al., Consensus Statement on Group Care for
Children and Adolescents: A Statement of Policy of the American Orthopsychiatric
Association, Am. J. Orthopsychiatry Vol. 84, No. 3, 219-225 (2014),
https://www.apa.org/pubs/journals/features/ort-0000005.pdf (institutional care
deprives children of healthy attachments and normal developmental experiences,
causes psychological harm and problem behaviors, and should only be used as a
short-term intervention when it is the “least detrimental alternative” consistent with
the therapeutic needs of the child); Richard P. Barth, Institutions vs. Foster Homes:
The Empirical Base For the Second Century of Debate (Jordan Institute for
Families, School of Social Work 2002),
http://assembly.ca.gov/sites/assembly.ca.gov/files/BarthInstitutionsvFosterHomes.

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pdf. Likewise, the Child Welfare League of America’s position on residential
placement of children reflects the broad consensus that children should be placed
in the least restrictive, most family-like setting in which the needs of the child can
be met, and that residential placement should be used only when therapeutically
necessary. See Child Welfare League of America, Position Statement on
Residential Services (2005), https://ncfy.acf.hhs.gov/library/2005/positionstatement-residential-services.
B.

Federal and state governments have recognized this likelihood of
harm.

The federal government recognized this consensus among social science and
child welfare professionals as early as 1980. Thus, for example, the Adoption
Assistance and Child Welfare Act requires all states, as a condition of receiving
federal funding for foster care and child welfare services, to implement procedural
safeguards to ensure that children removed from home due to abuse, neglect, or
abandonment are placed in the “least restrictive setting” consistent with their
needs, and to prioritize family foster care over group homes and other forms of
congregate care. 42 U.S.C. §§ 671(a)(16), 675(5)(A) (requiring states to have case
review system for all children in foster care, and to ensure that “each child has a
case plan designed to achieve placement in a safe setting that is the least restrictive
(most family like) and most appropriate setting available … consistent with the
best interest and special needs of the child…”). In 2015, the Children’s Bureau of
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the federal Administration for Children and Families noted the “consensus among
multiple stakeholders that most children and youth … are best served in a family
setting” and that congregate care “should be used only for as long as is needed to
stabilize the child or youth so they can return to a family-like setting.” U.S. Dep’t
of Health & Human Servs., Administration for Children and Families, Children’s
Bureau, A National Look at the Use of Congregate Care in Child Welfare (2015),
www.acf.hhs.gov/sites/default/files/cb/cbcongregatecare_brief.pdf. The Children’s
Bureau, surveying data from all 50 states’ child welfare systems, reported a
“significant decrease in the percentage of children placed in congregate care
settings in the past decade” and that “child welfare practice is moving toward more
limited use of congregate care.” Id.
It is also well understood in the juvenile justice context that institutional
placements have harmful effects on youth and should be used only as a last resort
when necessary because a child is a danger to himself or others or is a flight risk.
Even for youth who have been charged with or convicted of an offense, research
has shown that confinement in juvenile halls, camps, or other institutional settings
causes serious, long-term harm, and is in many cases unnecessary to protect public
safety. See, e.g., Barry Holman & Jason Ziedenberg, The Dangers of Detention:
The Impact of Incarcerating Youth in Detention and Other Secure Facilities, at 2-3
(Justice Policy Institute ed., 2006), http://www.justicepolicy.org/images/upload/06-

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11_rep_dangersofdetention_jj.pdf (review of recent health research literature
shows that “detention has a profoundly negative impact on young people’s mental
and physical well-being, their education, and their employment”); Elizabeth S.
Bernert et al., How Does Incarcerating Young People Affect Their Adult Health
Outcomes, 139 Pediatrics 2 (Feb. 2017),
http://pediatrics.aappublications.org/content/139/2/e2016262 (incarceration during
adolescence leads to worse physical and mental health later in adulthood); Richard
A. Mandel, No Place for Kids: The Case For Reducing Juvenile Incarceration
(Annie E. Casey Foundation 2011), http://www.aecf.org/resources/no-place-forkids-full-report/ (overreliance on institutional confinement exposes youth to
maltreatment, incarcerates youth who do not pose threats to public safety, and has
negative outcomes compared to family- and community-based alternatives).
As a result, juvenile justice policy in many states and at the federal level has
shifted dramatically away from incarceration and towards family- and communitybased alternatives. The numbers of youth in juvenile halls, camps, and other
institutional placements has declined steadily over the past 20 years. See, e.g.,
Office of Juvenile Justice & Delinquency Prevention, The Number of Juveniles in
Residential Placement Continued to Decline in 2013 (2015),
http://www.ojjdp.gov/ojstatbb/snapshots/DataSnapshot_CJRP2013.pdf; Pew
Charitable Trusts, Re-Examining Juvenile Incarceration: High Cost, Poor

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Outcomes Spark Shift To Alternatives (2015),
http://www.pewtrusts.org/en/research-and-analysis/issuebriefs/2015/04/reexamining-juvenile-incarceration (highlighting several states that
enacted laws limiting youth incarceration and decreasing lengths of stay).
C.

Immigrant children in particular suffer harm in detention.

This basic principle of child welfare and juvenile justice applies to
immigrant children with special force. Such children are particularly likely to have
suffered serious trauma, both in their country of origin and during or after their
journey to the United States and their apprehension by immigration authorities.
Because children who have been previously traumatized are especially vulnerable
to the negative effects of institutional care, The American Academy of Pediatrics
has expressed grave concern about the detention of immigrant children:
Children and mothers from Central America who have
crossed the border to enter the United States have high
rates of exposure to trauma in the form of threat of death,
physical and sexual abuse, and exploitation that leave
serious physical and psychological scars. The act of
detention or incarceration itself is associated with poorer
health outcomes, higher rates of psychological distress,
and suicidality making the situation for already
vulnerable women and children even worse. For
children, exposure to early adverse experiences, often
referred to as toxic stress, has long-term consequences …
[including] measurable effects in his or her
developmental trajectory, with lifelong consequences for
educational achievement, economic productivity, health
status, and longevity.

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Letter from American Academy of Pediatrics to Jeh Johnson (July 24, 2015),
https://www.aap.org/en-us/advocacy-and-policy/federaladvocacy/Documents/AAP%20Letter%20to%20Secretary%20Johnson%20Family
%20Detention%20Final.pdf. In the same letter, the American Academy of
Pediatrics concludes that, in light of the complex trauma history of many
immigrant children, detention facilities are “not capable of providing generally
recognized medical and mental health care for children.”
This conclusion accords with empirical research, which has demonstrated
that institutional detention has profound negative effects on immigrant children.
See Micah Bump & Elzbieta Gozdziak, The Care of Unaccompanied
Undocumented Children in Federal Custody: Issues and Options, 22 Protecting
Children 2:77-78 (American Humane 2007),
https://issuu.com/georgetownsfs/docs/gozdziak_federal_custody; see also
American Bar Association, Standards for the Custody, Placement and Care; Legal
Representation; and Adjudication of Unaccompanied Migrant Children in the
United States (2004),
http://www.americanbar.org/content/dam/aba/migrated/Immigration/PublicDocum
ents/Immigrant_Standards.authcheckdam.pdf (standards developed by the ABA
Commission on Immigration with the participation of leading experts in
immigration policy, health, corrections, and related fields, calling for strong

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presumption against institutional detention and in favor of release to a parent or
other appropriate caretaker).
The harms caused by detention of immigration children are not theoretical or
speculative. Individual children who are currently being detained, and who will be
directly affected by this Court’s decision, have suffered actual and serious harm
due to the government’s practice of indefinite, unreviewable detention of
unaccompanied immigrant children. The declaration submitted to the district court
by attorney Lorelei Williams states that she has personally observed that “detained
children—already traumatized by horrific experiences in their countries of origin—
have expressed to me feeling profound helplessness and despair.” (Plaintiffs’Appellees’ Supplemental Excerpts of Record at PER 66.) Media reports
concerning detained children highlight the case of a 14-year-old boy who fled
extreme domestic abuse in his country of origin, and who has remained in locked
detention for over a year, even after he was granted asylum, so that the effects of
his severe trauma have been “made worse by his indefinite detention.” Karen de
Sa, Horduran Boy, 14, Wins U.S. Asylum But Remains In Jail, San Francisco
Chronicle, Mar. 5, 2017, http://www.sfchronicle.com/bayarea/article/Honduranboy-14-wins-U-S-asylum-but-remains-in-10977616.php; see also Tyche
Hendricks, Hundreds of Migrant Teens Are Being Held Indefinitely in Locked
Detention, KQED California Report, Apr. 11, 2016,

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https://ww2.kqed.org/news/2016/04/11/hundreds-of-migrant-teens-are-being-heldindefinitely-in-locked-detention/ (children’s attorney “has seen kids who have
harmed themselves, including cutting themselves, in responses to the
powerlessness of indefinite detention. An official at the Yolo County juvenile hall
said they routinely have kids on suicide watch”).
The government’s position in this litigation, if accepted, would subvert thirty
years of research, best practice standards, and legislation uniformly providing that
children should not be placed in institutional care unless clearly necessary.
Asserting that it possesses the unreviewable discretion to detain children in locked
facilities, the government seeks to evade the practices and procedures designed to
ensure that children are placed in institutional care only as a last resort. In so
doing, the government threatens to subject these children to the serious harms that
follow from unnecessary detention.
III.

CHILDREN ARE ENTITLED TO BASIC DUE PROCESS
PROTECTIONS REGARDING DETENTION.
Not only does the government’s position contravene well-recognized

principles of child welfare and juvenile justice, it also contravenes the Constitution.
Ever since the Supreme Court decided In re Gault, 387 U.S. 1 (1967), the idea that
any government entity—federal, state, or local—may lock up a child either for his
own protection or that of the public without basic due process protections has been
thoroughly discredited. The Gault opinion described the serious harms and
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inequities experienced by youth when deprived of basic due process protections,
and it squarely rejected the fallacy of ‘benevolent paternalism’ based on the
discredited notion that juvenile justice agencies are not the children’s adversary
and could be relied upon to act in their best interests. See also Schall v. Martin,
467 U.S. 253, 277 (1984) (holding that state juvenile detention statute provided
adequate procedural safeguards adequate, in part because “a detained juvenile is
entitled to a formal, adversarial probable-cause hearing within three days…”).
Almost 50 years of case law and the evolution of public policy since Gault
have only underscored the critical importance of procedural due process both in
juvenile justice cases and in any other context where a government entity seeks to
detain children. For example, the laws of all 50 states require basic procedural
safeguards whenever a youth is detained by law enforcement, juvenile justice, or
probation agencies. See National Center for Juvenile Justice and Office of Juvenile
Justice and Delinquency Prevention, Juvenile Offenders and Victims: 2014
National Report, at 162 (Melissa Sickmund & Charles Puzzanchera eds., 2014),
https://www.ojjdp.gov/ojstatbb/nr2014/downloads/NR2014.pdf (“In all states, law
requires that a detention hearing be held within a few days (generally within 24
hours). At that time, a judge reviews the decision to detain the youth and either
orders the youth released or continues the detention.”); Randy Hertz et al., Trial
Manual for Defense Attorneys in Juvenile Cases, at 79-81 (National Juvenile

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Defense Center 2016), http://njdc.info/trial-manual-for-defense-attorneys-injuvenile-delinquency-cases-by-randy-hertz-martin-guggenheim-anthony-gamsterdam/ (survey of state statutes requiring a detention hearing within a
specified time of a youth’s arrest, at which a judge determines whether detention is
necessary due to danger to self or others, or flight risk); Elizabeth Calvin, Legal
Strategies to Reduce Unnecessary Detention of Children, at Appendix A, pp. 84-89
(National Juvenile Defense Center 2004), http://njdc.info/wpcontent/uploads/2013/11/Legal-Strategise-to-Reduce-the-Unnecessary-Detentionof-Children.pdf (50-state survey of statutes requiring detention hearings); see also
Institute of Judicial Administration & American Bar Association, Juvenile Justice
Standards Annotated: A Balanced Approach, at 131, 134 (1996),
www.ncjrs.gov/pdffiles1/ojjdp/166773.pdf (best practice standard calling for
hearing within 24 hours of detention).
Similarly, in the child welfare context, the laws of all 50 states require a
hearing within a short time after a government agency has detained a child due to
abuse, neglect, or abandonment. See S. Gatowski et al., Enhanced Resource
Guidelines: Improving Court Practice In Child Abuse and Neglect Cases, at 108
(National Council of Juvenile and Family Court Judges 2016),
http://www.ncjfcj.org/EnhancedResourceGuidelines (“In all states, the initial
hearing must take place within a short time after the child has been removed from

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the home … The main purpose of the initial hearing is to determine whether
removal was necessary … If the court determines that the child needs to be placed,
the court must evaluate the appropriateness of the placement proposed by the
agency and seek the most appropriate, least restrictive alternative that can meet the
needs of the child.”). Guidelines for state juvenile courts issued by the National
Council of Juvenile and Family Court Judges require a hearing within three days,
even when a child is detained for the child’s own protection rather than because of
an alleged offense. See National Council of Juvenile and Family Court Judges,
Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases,
at 30 (1995), www.ncjfcj.org/sites/default/files/resguide_0.pdf.
Thus, even in cases where the government detains a child because of a
determination that no parent, relative, or other caregiver is available to care for that
child, well-settled principles of child welfare law require the very proceedings that
the government in this case now seeks to avoid. Child welfare agencies’
determinations that a child must be placed in institutional care because no less
restrictive alternative is available are never within the agencies’ unreviewable
discretion; they are always subject to challenge in a hearing before an impartial
tribunal. The Supreme Court’s decision in Reno v. Flores, 507 U.S. 292 (1993), on
which the government relies heavily in this appeal, is not to the contrary. That
case held only that immigrant children who had no parent available to care for

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them did not have a constitutional liberty interest in release from non-secure
shelter care. The question whether immigrant children have a right to a hearing as
to the factual determination whether they have a parent available to care for them,
or whether there are other less restrictive alternatives to detention in a locked, jaillike institution, was not before the Court.
In sum, in no other context would it be plausible to suggest that a
government agency could lawfully detain children in locked institutions for an
indefinite period of time, based only on that entity’s own discretionary and
unreviewable determination that the child presented a danger to himself or others,
or was a flight risk, or that no less restrictive alternative was available. The
government’s position in this case conflicts with decades of federal and state
legislation and with case law applying constitutional protections, all of which
recognize the critical role of procedural safeguards in protecting children and
adolescents from arbitrary, unjust, or unnecessary detention.
For the reasons stated above, amici Public Counsel, Centro Legal de la Raza,
Children’s Rights, Juvenile Law Center, Human Rights Defense Center, Juvenile
Law Center, National Institute for Criminal Justice Reform, Pacific Juvenile
Defender Center, Pegasus Legal Services for Children, Prison Law Office,
WestCoast Children’s Clinic, and Young Minds Advocacy respectfully urge this
Court to consider the substantial body of health and social science research,

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professional best practice standards in the fields of child welfare and juvenile
justice, and constitutional and statutory protections, which contradict the
government’s position in this case.

Dated: March 10, 2017

JACK W. LONDEN
JAMES R. SIGEL
MORRISON & FOERSTER LLP
By: /s/ Jack W. Londen
JACK W. LONDEN
JAMES R. SIGEL
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105
Telephone: 415.268.7000

Dated: March 10, 2017

MARTHA MATTHEWS
PUBLIC COUNSEL
610 S. Ardmore Avenue
Los Angeles, CA 90005
Telephone: (213) 385-2977 x113
Attorneys for Amici Curiae

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Case: 17-55208, 03/10/2017, ID: 10352719, DktEntry: 17, Page 31 of 32

Form 8.

Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f),
29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 17-55208

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.
I certify that (check appropriate option):
This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is 4,566
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable, and is filed by (1)
separately represented parties; (2)
a party or parties filing a
single brief in response to multiple briefs; or (3)
a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).
This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is
words or
pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).
This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or
/s/ Jack W. Londen
Unrepresented Litigant

Date

March 10, 2017

("s/" plus typed name is acceptable for electronically-filed documents)

(Rev.12/1/16)

Case: 17-55208, 03/10/2017, ID: 10352719, DktEntry: 17, Page 32 of 32

CERTIFICATE OF SERVICE
I certify that on March 10, 2017, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.

/s/ Jack W. Londen
Jack W. Londen

__

JACK W. LONDEN
JAMES R. SIGEL
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105
Telephone: 415.268.7000
Attorneys for Amici Curiae

24