A FEDERAL JUDGE in San Francisco this week issued an injunction to restore the principal funding stream for organizations that represent unaccompanied children in immigration matters, but the legal battle is far from over.
The injunction was “preliminary,” meaning it is designed to allow the funds to flow while the parties prepare the case for a full trial.
The ruling Tuesday is a victory for a group of 11 legal services providers — led by two Bay Area organizations — that sued the federal government after their funding was abruptly cut off while they were in the midst of actively representing thousands of children in immigration matters.
The lawsuit involves a category of immigrants called “unaccompanied children” who are foreign born minors who arrive in the United States without parents or caregivers.
There are a number of reasons children arrive in the country without an adult, some of them tragic.
In their court filings, the plaintiffs alleged that the most common reasons are “because (the children) were separated from their parents on their way to the United States, because they were trafficked to the United States, because they were separated from their families by immigration authorities after entering the United States, or because they fled their home countries without their parents.”
Whatever the reason, Congress recognized the particular vulnerability of the children and granted them special legal protections in the immigration process.
Congress also recognized that without legal representation, unaccompanied children would be in no position to take advantage of those protections. Therefore, it directed the U.S. Department of Health and Human Services to arrange for legal representation of the children “to the greatest extent practical.”
To that end, the government contracted with Acacia Center for Justice, which in turn subcontracted the work to a network of 89 legal services organizations in 159 offices around the country. The plaintiffs are among the subcontracted organizations that undertake the work.
Congress appropriated funding for this work through September 2027, but on March 21, the Trump administration advised Acacia that it was ceasing the funding of “direct” (one-on-one) legal representation of unaccompanied children and directed Acacia to immediately stop work representing the children in immigration cases.
Plaintiffs: Children need representation
The plaintiffs alleged that without representation the children — many who speak little English — would be unable to understand their rights or present their circumstances to the authorities. That would not only cause grievous harm to the children but would cripple the plaintiffs’ organizations and greatly exacerbate the backlog and workload of immigration judges.
The plaintiffs said that the government’s unilateral decision to terminate funding was arbitrary and capricious and violated federal law.
In her ruling, U.S. District Judge Araceli Martinez-Olguin, a 2022 appointee by former President Joe Biden, focused on the language of the statute and an implementing rule.
Taken together, the statute and rule directed the government to arrange for legal representation of the children to “the greatest extent practical,” subject to Congressional appropriation of funding and taking into account the availability of “pro bono” or volunteer legal services.
The judge recognized that this direction was intended to allow the administration to use its discretion on how to provide the representation; for example, it could hire outside lawyers or use volunteer services to the extent they were available, or it could use a combination of the two.
The government argued that because it was given broad discretion over how to provide legal representation to the children, the judge did not have authority to second-guess its approach.
The judge did not accept that argument. While she agreed that the administration had discretion, she said that the discretion had to be exercised in compliance with the statutory directive. She found that the government proposed to terminate all funding for direct representation without a plan to replace it with another approach that would achieve the same result.
This wasn’t a situation where the termination was to bring in a different group of lawyers; it was in effect an attempt to stop doing what Congress required it do — provide unaccompanied children with legal representation to the greatest extent practical.
Because she found that was inconsistent with the law and would cause irreparable injury to the plaintiffs, she ruled that an injunction was appropriate pending a full trial on the merits.
The ruling is unlikely to end the matter.
The government has pushed aggressively in the litigation so far and there is no indication that it will back off. (A request for comment to one of the government’s lawyers was not immediately returned.)
Government likely to appeal
Alvaro Huerta, one of the plaintiffs’ lawyers said, “I’m almost certain the government will attempt to appeal.”
He pointed out that after the judge entered a short-term order in early April to preserve the status quo pending an initial hearing, the government filed a motion to dissolve the order and when that did not work, it tried to appeal the order to the U.S. Court of Appeals for the 9th Circuit.
The appeal failed when a three-judge panel of the circuit court said the short-term order could not be appealed. The government then filed a motion asking for review by all of the active judges in the circuit. That motion also failed, though 10 judges dissented, saying they thought it should be heard.
Even though an appeal appears likely, developments in another area raise the question of whether the administration will also pursue an alternative strategy.
The administration has been in the news regularly for using executive orders to target and punish some of the large law firms that have represented parties disfavored by the president. Some of those firms have sued the administration, but a number of those elite firms have settled with the government by agreeing to provide pro bono services on matters that are aligned with the administration’s priorities.
Those firms have pledged pro bono services amounting to nearly a billion dollars.
To date, the administration has not publicly identified what pro bono work those firms will be doing, but an executive order issued Monday gives a sign that the administration is considering that question.
The executive order is titled “Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens” and directs the U.S. attorney general to create a “mechanism” for the representation of state and local law enforcement officers when they are “wrongly accused and abused by State or local officials.”
The order specifically states that the “mechanism shall include the use of private-sector pro bono assistance for such law enforcement officers.”
While that executive order is in a different legal arena, it raises the question of whether the administration will attempt to send its big firm pro bono lawyers into immigration court on behalf of unaccompanied children.
Huerta would not be surprised.
He said, “it’s very possible that’s the route the administration decides to take,” though he questioned whether those attorneys would have the background to handle matters in the complex and sometimes arcane world of immigration law.
In his view, “they simply don’t have the expertise to take on a full case by themselves without the assistance of an organization that has trained up their staff and their attorneys as experts on these cases.”