Toothbrush, Toothpaste, and Blankets

By Josue Monrouzeau, Esq.

The outcome of constant raids and attacks on the immigrant community ended in not one, but two courts of law of our federal judicial system. One may wonder how is that in days where the USA is showing a solid the economy, its government has decided to continue a legal battle over toothbrush, toothpaste, and blankets. Seems like the pursuit of a solid economy coupled with the rhetoric of protecting US borders at all costs are a sufficient argument to act inhumanly and not sanitary. Turns out that ICE conducted a raid of illegal immigrants and as a result several children were held at detention centers. While at this detention center the children do not have access to their parents, since this are deported back to their home countries. Although, I resist to believe that the US Government is capable of holding these children in such an inhumane fashion, turns out that the rumor is real. These children are living in unsanitary conditions.

The Center for Human Rights and Constitutional Law, La Raza Centro Legal, Inc., The Law Foundation of Silicon Valley, Legal Advocates for Children, and Youth Public Interest Law Firm, along other private law firms and long-time immigration advocates such as  Peter Anthony Schey joined forces and decided to act and brought a legal recourse in the US District Court upon learning the fact that these children are not given toothbrush, toothpaste, nor blankets. The US District Court analyzed the case after the Government and the plaintiffs provided its briefs and agreed with the plaintiffs. There, the court reasoned that if children are going to be held in this detention centers, they should be treated as humane as possible and to provide these articles as articles of first need and of daily use.

Upon learning the ruling of the court, you would think that the children at least will now be somewhat protected, however, the US Government had another idea. Believe it or not, they appealed the case, and it was brought in front of a panel of Judges at the 9th Circuit Court of Appeals. I am in total shock, how much money, time, effort, is been put into this litigation to accomplish what? The principle is to simply show that the if you migrate to the US is going to be hard, even upon your minor children. The message is to put an extra burden, so they think, and re-think the idea of crossing the border, because in doing so, they are now also taking the risk of having their children held in such conditions. However, the Circuit Court also agreed with the District Court and ruled in favor of the plaintiffs. The ruling was simple: toothpaste, toothbrush, and blankets are items of first need and of daily use and if the US Government is going to hold these children in these facilities it must provide such items. The safe and sanitary standard under what the present case was to be analyzed was well established by the simple fact that these children are staying for long hours, or even days in these facilities.

Sadly, the main interest of the US Government is to challenge the Flores Agreement. The Flores Agreement is a court settlement agreement which dates back to 1997. Such agreement is still binding as it was between the US Government and a group of minors subject to Immigration Detention. The Flores Agreement requires the US Government to hold minors in custody only in conditions that are “safe and sanitary.” Further, the Agreement requires the US Government to treat these minors with respect, honor, and dignity paying special attention to the fact that they are minors. In sum,  the US Government hope is to challenge such agreement and that is why it has entertained the present litigation.

The arguments of the US Government were embarrassing, during the oral arguments it argued that since these facilities do not have the intention of holding people for extended periods of times, they do not carry these items of first need. Judges questioned and insisted in making the government reason in how or in what scenario one would not need toothbrush, toothpaste, and blankets. In specific, Judge A. Wallace Tashima asked the government’s attorney: “It is within common understanding that if you don’t have a toothbrush, if you don’t have soap, or if you don’t have a blanket, that is not ‘safe and sanitary’, Wouldn’t you agree to that?” Do you agree with that?” To what attorney Fabian replied: “Well I think it is -those are- there’s fair reason to find that those things may be part of ‘safe and sanitary.” To what Judge Tashima promptly replied: “Not ‘may be’?  “‘Are’ a part. Why do you say may be? You mean there’s circumstances when a person doesn’t need to have a toothbrush, toothpaste and soap for days?”

“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” reads part of the written opinion of the court.

If you want to observe the entire oral argument you can watch the following link:

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