Remember when government attorney Sarah Fabian got famous for all the wrong reasons, thanks to a viral video of her arguing in court that detained migrant kids don’t really need bare necessities such as a toothbrush? That miserable argument thankfully got rejected, following a unanimous decision from the U.S. Court of Appeals for the 9th Circuit ruling that, yes, these kids actually do require soap and sleeping mats.
“Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep deprived are without doubt essential to the children’s safety,” wrote Judge Marsha Berzon. “It’s a major victory for children in federal immigration custody,” said Elora Mukherjee, an attorney who has the right to inspect immigration detention facilities as part of the Flores agreement.
A team of lawyers who inspected a Border Patrol facility near El Paso, Texas, in June found dozens of sick kids lacking access to water and food. Some jailed children had been forced to take care of other jailed children. Three girls said they were trying to watch over a 2-year-old boy “who had wet his pants and no diaper and was wearing a mucus-smeared shirt when the legal team encountered him.” “In my 22 years of doing visits with children in detention,” said Holly Cooper of the University of California, Davis, Immigration Law Clinic, “I have never heard of this level of inhumanity.”
In the video, Fabian had said kids don’t really need any of this stuff because, “Well, I think, in C.B.P. custody, it’s frequently intended to be much shorter term. So it may be that for a shorter-term stay in C.B.P. custody that some of those things may not be required.” But kids at the El Paso facility told attorneys they’d gone weeks without being able to take a bath or even change their clothes. Weeks, when under the law, Border Patrol is not supposed to be detaining them longer than 72 hours.
“Berzon, William A. Fletcher and A. Wallace Tashima also upheld a requirement that government officials work to release detained children from custody as quickly as possible because of the detrimental impact that detention can have on their mental and physical health,” The New York Times reported. “The Department of Justice and the Department of Homeland Security did not respond to requests for comment on the decision.”
The court’s decision is no doubt a major victory, as Mukherjee noted, but at the same time we should all really think about the fact that we’ve sunk so far as a nation that a federal court had to tell the federal government that kids should be able to brush their teeth. As Illinois Sen. Tammy Duckworth tweeted yesterday, “A court needed to force them to let children bathe. Let that sink in.”