Why a DOJ lawyer argued against giving immigrant kids toothbrushes

United States District Judge Dolly Gee, who considered hundreds of declarations from minors and their parents, ultimately ruled that CBP was violating the Flores Agreement. In 2017, during the Trump administration, she found that CBP failed to provide adequate food and water to minors, that it did not maintain the facilities at adequate temperatures, and that it deprived the minors of sleep by confining them on concrete floors under bright lights. Gee also found that CBP’s obligation to provide “safe and sanitary” conditions included providing soap, dry towels, showers, toothbrushes, and dry clothes. Gee ultimately ordered CBP to appoint a monitor to bring its facilities into compliance with the Flores Agreement.

Gee’s order put the government in a technical legal bind. When a federal judge appoints an official to monitor compliance with an already existing injunction or agreement like the Flores Agreement, the government cannot immediately appeal. Such a measure is considered an “interlocutory” order—an intermediate one that does not generate a final decision suitable for appellate review. The government can only appeal if the judge modifies the prior injunction or order.

So that’s what the United States argued. In its appeal to the Ninth Circuit, the United States—through Fabian and the other attorneys of the Office of Immigration Litigation—claimed that Gee had altered the deal. They argued that by ruling that “safe and sanitary conditions” specifically required things like dry clothes and toothbrushes and showers and not sleeping on concrete under bright lights, Gee changed the Flores Agreement and “substantially altered the legal relations of the parties by reading new requirements into the Agreement.” That was the premise of their assertion that they could appeal, after all.