Sarah Fabian, senior litigation counsel for the Department of Justice, told a three judge-panel at the Ninth U.S. Circuit Court of Appeals in San Francisco the agreement doesn't list items that must be provided in border facilities.
"There's fair reason to find those things may be part of safe and sanitary," she told the panel during an exchange over the conditions in facilities for immigrant children caught crossing the U.S.-Mexico border.
One of the judges then asked whether there could be an instance when a person didn't need a toothbrush and soap for days. She said possibly for shorter term stays. The hearing focused on the U.S. government's appeal of a federal judge's 2017 ruling that U.S. authorities breached the agreement after young immigrants caught on the border said they had to sleep in cold, overcrowded cells and were given inadequate food and dirty water.
In its appeal, the Department contends the judge's order is imposing "new substantive requirements" for the detention of immigrant children that aren't laid out in the 1997 settlement. Advocates disagreed, saying the agreement requires youth be held in "safe and sanitary" facilities, which should include basic hygiene items and sufficient food and water.
During the hearing, Fabian said the agreement was vague about what is required to determine a facility is safe and sanitary. Immigrant advocate Peter Schey provided dictionary definitions for the terms and noted problems in Customs and Border Protection facilities have persisted since the ruling by U.S. District Court Judge Dolly Gee, who has since appointed an independent monitor to evaluate conditions.
The issues date back years but mirror more recent allegations about the facilities amid a rise in the number of children and families, mostly from Central America, arriving on the southwest border. Five children have died since late last year after being detained by the Border Patrol and a 17-year-old Guatemalan girl was found last week in a wheelchair with her premature baby at a border facility.
The settlement between advocates for young immigrants and the U.S. government says children should be held in facilities that meet certain standards and released as soon as is reasonably possible, which has been considered to be about 20 days.