Arguments made in the Ninth Circuit on Access for Migrant Children to Soap, Toothbrush and Blankets // Torres v Barr // June 20, 2019

Jun 26, 2019 by

Glenn Friendly

2:39 AM (9 hours ago)
to Steve
June 26, 2019
Attention Hon. William Barr, Attorney General of the United States
cc Donald J. Trump, President of the United States
I am no lawyer and do not possess the background for why AG Barr is arguing the points in this case but no reasonable person could or would deny children access to beds, blankets, soap and toothbrushes while in detention.
The president should be made fully aware of the arguments in this case as this is an unreasonable position to be taking pertaining to basic rights for children and for that matter any and all humans under detention while being held.
I fully understand there are legal restrictions and things the government can and cannot do during this overwhelming issue but administering basic and fundamental protections need to be followed.
This is reasonable and obviously humane.
Why this kind of argument is made is beyond me but it is high time that both democrats and republicans do something once and for all to resolve this crisis for all involved.
Both parties are responsible for dealing with issues of not only border security but the proper care and handling of anyone who enters the country illegally including children.
I fully understand the amount of people is overwhelming but something that should not be used as a political wedge issue but to once and for all establish appropriate care for detainees.
The issue of immigration both legal and illegal needs to be dealt with as anyone who lives in California knows all too well the costs to tax payers of massive illegal immigration while the increases of homelessness is rampant all over the state and with more and more needing housing including illegal immigrants the decrease in affordable housing has resulted in higher and higher living costs.
Until and unless the entirety is dealt with responsibly this crisis from all sides of the aisle will remain a tragedy for all involved.
This is a very sensitive issue and the bureaucracy of this situation has never gotten solved and this issue should raise the specter to push both sides of the aisle to fix this humane and legal crisis.
The United States has a generous asylum program but since the report presented by former Congressman Barbara Jordan delivered in 1995 for a variety of reasons including access to cheap labor the can has been kicked down the road for far too long.
This issue must be resolved and done so in a humane manner that is in accordance with acceptable law.
After reviewing this case which frankly is hard to fathom the AG’s argument please once again read and review the work of Barbara Jordan considered by many the seminal analysis on immigration.
Time to take the politics out of this situation and finally and effectively coming up with a policy that works and is humane adhering to ethical and moral standards.
Please do your best to leave any and all biases at the door so as neighbors and constituents we can resolve a most unfortunate and challenging situation that we can all live with even with all the economic, social and legal challenges. 
My best
If you do not have the time to watch the arguments please drop down to the article below that clearly reviews the case argued in court.
Arguments made in the Ninth Circuit on Access for Migrant Children to Soap, Toothbrush and Blankets.

Justice Department Argues Against Providing Soap, Toothbrushes, Beds To Detained Kids


An incredulous panel of appeals judges asked a government lawyer if she was not really arguing that it was “safe and sanitary” to make detained migrant children sleep on a cold cement floor with a foil blanket and lights on all night, and no soap or toothbrushes.

The 9th US Circuit Court of Appeals this week heard the government challenge a lower court finding that Customs and Border Patrol had violated conditions of the long-standing Flores settlement, which set terms for the holding of migrant children.

The government was appealing a finding that it violated the agreement and must come into compliance. The immigration authorities argue that the lower court order imposes new terms on the government that were not part of the original Flores settlement.

The Flores settlement is best known for its term that children may not be held longer than 20 days in custody but also includes a number of conditions for holding children.

“’Safe and sanitary’ is not enumerated in the terms of the settlement, it was left to the agency,” argued Sarah Fabian for the Dept of Justice.

Judge William Fletcher responded, “But it is so obvious that if people are left to sleep on a concrete floor with a foil blanket it does not meet the standard. I know they don’t get super thread-count Egyptian cotton, but it gets really cold and the lights are on all night.”

Judge Marsha Berzon added, “You know we have an opinion that it is unconstitutional to make homeless people not sleep?”

“You’re not arguing that you don’t have to do more on a cold night with the lights on, than say you can sleep on concrete and get an aluminum blanket?” Fletcher pressed.

“And it’s too crowded to lie down,” Berzon added.

Fabian acknowledged that sleeping conditions were at “the more difficult end” of the government’s argument.

So the panel turned to soap and toothbrushes.

Soap and a Toothbrush

“Under everyone’s common understanding, if you don’t have soap and you don’t have a toothbrush, it is not safe and sanitary,” said Judge Wallace Tashima. “Wouldn’t everyone agree to that?”  (During WWII, Tashima was held in a Japanese internment camp in Arizona.)

Fabian argued that many in the facilities were there for very short periods.

“Maybe they are, but they did not have soap, a toothbrush or toothpaste for days,” he said.

Fletcher added there is evidence that many people were not getting these things for a substantial period.

The court order calls for soap, Fletcher suggested. “It wasn’t high class milled soap, it was soap. Are you arguing with that?”

“Simply not providing them does not violate the agreement,” Fabian said.

Yet, the court may not weigh in on those issues in its final opinion. The panel also pressed whether it even had jurisdiction to hear the case at this stage and whether the government simply had to comply at this stage.

Berzon pointed out that a since this was appealed, the trial judge in Los Angeles has appointed an independent outside monitor to ensure terms of the agreement are met. Maybe the government doesn’t want to appeal at this point, she said.

Peter Schey, attorney for the children was question about what difference it makes whether the children are in the custody of the Office of Refugee Resettlement (ORR) or Immigration and Customs Enforcement (ICE).

He said the agreement is binding on ORR, but as a practical matter ICE has custody of tens of thousands of children and the government can’t point to a single case of a child transferred from ICE to ORR.

ORR has no bed space for them, Schey said. But under terms of the settlement, whoever has custody must make a continuous effort to release the child to a relative. The judge has said ICE lacks the capacity to decide if a child has a suitable custodian.

“It is creating an administrative nightmare,” he said.

He also noted facilities for children are supposed to be licensed but Texas and some other states have no licensing system for this. In Homestead, Florida, there is a military camp with 2,000 children. There is currently a motion to enforce the Flores terms and “we’re meeting this Friday” to work it out, he said.

The panel did not rule but will issue a written opinion in coming weeks.

Case: Flores v. Barr, No. 17-56297
Immigration Study Results CSPAN VIDEO Former Congressman and U.S. Immigration Reform Commission Chair the Hon. Barbara Jordan // A Second Viewing – Recalling “The Americanization Ideal”: The Legacy of Barbara Jordan Distinguished Member of the House of Representative of the State of Texas and One of Our Nation’s Finest and Most Honorable Public Servants
The perspective of one of America’s true patriots and exceptional women in the history of the House of Representatives, Barbara Jordan, Chair of the US Immigration Commission.
Proportional context of a wise soul.
It is important to be objective of what you have been led by the tail down the rabbit hole.
During a time when responsible adults were in positions of influence and the wise ‘voice’ of Congress was there to raise the bar.
A true Yoda Jedi Warrior of public service who had the Force strong within and around her.
From one of America’s finest.
Her words are a reminder of what Ms. Jordan meant to all Americans.
One of the greatest minds of calm rational perspective in history.
She was the eye of the hurricane.
When reason and rationale went far beyond political hyperbole and was the foundation for discussion of principled and thoughtful doctrine in public policy.
This is one to share with family, friends and colleagues on all angles and divergence of the spectrum.
For your consideration.

JUNE 7, 1995

Immigration Study Results

Ms. Jordan and Ms. Martin spoke with reporters about a report on legal immigration. The U.S. Immigration Reform Commission issued a report on the effect of legal immigration and the implementation of the 1990 Immigration Act.



And is case you missed the first sending of this attachment.

Recalling “The Americanization Ideal”: The Legacy of Barbara Jordan

Immigration, like foreign policy, ought to be a place where the national interest comes first, last, and always.
Barbara Jordan, 1995
By Nayla Rush, Senior Researcher
The Americanization Ideal” is the title of an article written by the late Barbara Jordan (1936-1996) for The New York Times in 1995. Jordan was a prominent public figure, civil rights advocate, and leading presence in Democratic Party politics for four decades. She was a ground-breaking “national icon”: the first African- American woman elected to the Texas Senate (1966), the first woman to represent Texas in the U.S. Congress (1972), and the first African-American woman to deliver the keynote address at a Democratic National Convention (1976). Her uniqueness transcended death; she became the first African-American to be buried in the Texas State Cemetery amongst public officials.
One of her last works of public service was to head the U.S. Commission on Immigration Reform (she acted as chair from December 14, 1993 till the time of her death on January 17, 1996). This bi-partisan commission was established under the Immigration Act of 1990 and mandated to report to Congress on U.S. immigration policy. President Bill Clinton appointed Jordan to head this commission, commonly called since, the Jordan Commission. Jordan’s appointment gave it instant credibility as she was a respected moral authority in the political arena.
The conclusions and recommendations of this commission are quite enlightening and more relevant than ever. Today, when “comprehensive immigration reform” is being pushed by a coalition of narrow special interests and supported by the leadership of both political parties, Jordan and her work on immigration is largely ignored. It is important to revisit what she had to say on the issue to put current immigration politics in proper perspective. Jordan advocated for genuine reforms to the U.S. immigration system and urged a concomitant process of Americanization for immigrants. Recalling ‘the Americanization ideal’ is not a shallow endeavor nor is it a fruitless journey into the past. It is, in Jordan’s words, “the cultivation of a shared commitment to the American values of liberty, democracy and equal opportunity.”

Barbara Jordan: Background

Barbara Jordan was born in Houston, Texas in 1936. Even though she was from a modest background, she was raised to believe that race and poverty were no hindrances to intelligence and hard work, and that education was a path for success. Following a visit by a female lawyer to her high school on “career day,” Jordan decided to become a lawyer herself. She graduated from Boston University Law School in 1959 and passed the Massachusetts and Texas bar examinations that same year.
Jordan’s first law office was in her parents’ kitchen. With time, and as her clientele grew, she rented an office in downtown Houston. Inspired by the Civil Rights Movement, she opted for public service. She twice ran for the Texas House of Representatives and eventually won a state Senate seat in 1966, becoming the first African-American to be elected to the Texas Senate in 80 years, and the first African- American woman ever to be elected to a state office in Texas. She was reelected in 1968.
Being the first black woman to represent Texas could have been problematic. Yet, Jordan was reconciliatory, rising beyond partisanship, driven by a belief that she needed to work within the system in order to reach her goals. A former editorial writer for the Houston Chronicle said of Jordan, “If one wanted to think up the three handicaps with which one could enter a know-nothing, reactionary state senate of those days, it would be a person of liberal persuasion, a woman, and a black. Yet her intelligence and her commanding personality got her to the point where she had the senate eating out her hand.”
Jordan spent six years fighting to improve the lives of all her Texan constituents with a particular attention to the most vulnerable. She worked to pass the first state law on minimum wage that covered farmworkers and pushed for more money for workers who got injured on the job. She protected voting rights, especially for minorities and the poor.  She worked on legislation to promoting women’s rights and supported the Equal Rights Amendment.
In 1972, Jordan was elected to the U.S. Congress where she served until her retirement from politics in 1979. As a member of the House Judiciary Committee she gave in 1974 the opening statement in the impeachment hearing for Richard Nixon. This televised appearance propelled her into the national spotlight. She was acclaimed for her oratory skills, her deep knowledge of the Constitution, and her profound patriotism.
Jordan retired from public life in 1979 due to illness (multiple sclerosis and leukemia). She pursued her teaching career at the University of Texas’ Lyndon Baines Johnson School of Public Affairs in Houston. Her ethics course was so popular that a lottery was set up for enrollment purposes. President Bill Clinton awarded Jordan with the Presidential Medal of Freedom in 1994, the highest civilian award in the nation. On the eve of the White House ceremony scheduled to receive the Medal, Jordan told reporters: “If I were in public office today, my primary task would be one of educating…and pulling in those people who continue to feel so left out.”
Throughout her life, as a lawyer, a state senator, a U.S. Representative, a university professor, and the Chair of the U.S. Commission on Immigration Reform, Barbara Jordan fought for the equal rights of all Americans.

U.S. Commission on Immigration Reform: Main Findings and Recommendations

The U.S. Commission on Immigration Reform was set up as a provision in the Immigration Act of 1990 which was signed into law by President George H. W. Bush. The Commission was to systematically review U.S. immigration policy and to report back to Congress with recommendations for future reforms that should enacted into law.  When Bill Clinton was elected as President, it became his responsibility to appoint the Chair of this commission, and he chose Barbara Jordan, a pick that had wide bi-partisan support.
The Jordan Commission, as it became commonly known, included immigration experts, scholars, economists, and sociologists who examined the effects of immigration in the United States. After five years of exhaustive study, 13 consultations, 15 roundtables with experts and scholars, 18 research papers, eight public hearings, and seven site visits, the commission’s findings and recommendations were published in reports on “Restoring Credibility” (1994), “Setting Priorities” (1995) and a final report in 1997: “Becoming an American: Immigration & Immigrant Policy.”

The reports were the result of a huge bi-partisan effort. The Commission was formed by nine members: five democrats and four Republicans, all driven by a desire to “find answers and not excuses”, and to eschew from rhetoric and polemic. They were unanimous in every recommendation, excepting an 8-1 vote to reduce legal immigration (the one vote against came from the Executive Director of the American Immigration Lawyers Association and long-time advocate for expansive immigration, Warren Leiden).
The Commission recognized the United States’ immigrant heritage, yet, as Jordan stated:
for immigration to continue to serve our national interest, it must be lawful. There are people who argue that some illegal aliens contribute to our community because they may work, pay taxes, send their children to our schools, and in all respects except one, obey the law. Let me be clear: that is not enough.
As chair, Jordan was driven by her life-long dedication to serve the national interest and to uphold the rule of law. She denounced hostility and discrimination against immigrants, but refuted claims that opposition to illegal immigration and support for the reduction of legal immigration were anti-immigrant positions. As she reminded Congress during testimony in 1995, “in order to make sense about the national interest in immigration, it is necessary to make distinctions between those who obey the law, and those who violate it. Therefore, we disagree, also, with those who label our efforts to control illegal immigration as somehow inherently anti-immigrant.” She was emphatic: “Unlawful immigration is unacceptable.”
Three key principles can be drawn from the Commission’s conclusions under Jordan’s leadership:
  • Illegal immigration undermines America’s tradition as a nation of immigrants, it is in direct violation of the rule of law and must be deterred.
  • Legal immigration needs to be properly regulated and its numbers reduced to serve the interests of the nation.
  • Admission policy is not a sufficient immigration policy; attention must also be given to immigrants beyond their entry.
Jordan was unambiguous in her recommendations for dealing with the problem of illegal immigration, rejecting amnesty as an option when she testified before Congress in 1995:
Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.
Jordan believed that ending illegal immigration and restoring integrity to the immigration system by vigorously enforcing the law was in accord with the Constitution and vital to ensuring the civil rights and civil liberties of Americans. It was also necessary in order to maintain strong public support for legal immigration.
If we cannot control illegal immigration, we cannot sustain our national interest in legal immigration. Those who come here illegally, and those who hire them, will destroy the credibility of our immigration policies and their implementation. In the course of that, I fear, they will destroy our commitment to immigration itself.
A number of strategies were laid out to deter illegal entry and unauthorized work.  They were enhanced border management, a ban on employment of illegal aliens, a more consistent benefits eligibility policy, cooperative efforts with source countries, and an improved capacity to remove deportable aliens.

Jordan Commission Recommendations to Prevent Illegal Immigration

  • Border management needs to be reinforced in order to prevent illegal immigration and facilitate legal entries. Increased resources are necessary for additional Border Patrol officers, inspectors, and operational support.
  • Employment magnets for illegal aliens need to be eliminated through worksite enforcement. Economic gains and employment prospects are major pull factors of immigrants- including over-stayers. As Jordan (1995) noted, “roughly one-half of the nation’s illegal alien problem results from visitors who entered legally but who do not leave when their time is up. Let me tell you in three simple words why that isthey get jobs…”
  • Eligibility of illegal aliens for publicly-funded services or assistance (except those made available on an emergency basis) is ruled out: “Decisions about eligibility should support our immigration objectives. Accordingly, the Commission recommended against eligibility for illegal aliens “except in most unusual circumstances” (Jordan 1995).
  • Coordinated strategies with foreign governments to address the causes of illegal immigration in sending countries. This can be done through development programs in an attempt to reduce the push factors of migration. Coordination with Mexico is fundamental, given its geographical proximity to the United States and its large flow of migrants.
  • Increase the capacity in detention centers to facilitate the processing and removal of deportable aliens. A credible immigration policy requires the deportation of immigrants who have no right of residence. Going from the premise that “unlawful immigration is unacceptable,” the Commission warned against rewarding illegal aliens. If aliens believe they can remain in the States indefinitely, they will be encouraged to enter or reside illegally.
  • Amnesty is out of the question and “deportation is crucial.”

Jordan Commission Recommendations on Immigrant Admissions

  • Reduce immigrant admission by 30 percent (from 822,000 to 550,000 admissions per year).
  • Favor the admission of skilled immigrants instead of admitting immigrants based on extended family relations. The Commission found no justification for the continued entry of low-skilled skilled foreign nationals.
  • End chain migration by allowing immigrants to sponsor only spouses and minor children.
  • Prevent the expansion of guest worker programs for low-skilled workers. The Commission found that low-skilled workers have far too few opportunities open to them: When immigrants are less well-educated and less skilled, they may pose economic hardships for the most vulnerable of Americans.”
  • Eliminate the Visa Lottery (55,000 immigrant visas awarded randomly every year).
  • Scrutinize the basic rules of naturalization. Naturalization should not be an avenue to welfare.
  • Give more attention to the integration process and not just admission policies. The Commission found a great need to emphasize Americanization.

The Jordan Commission on Americanization

As Barbara Jordan stressed, Americanization was the integral component in the immigration process, and she sought to reclaim that concept. “That word earned a bad reputation when it was stolen by racists and xenophobes in the 1920s. But it is our word, and we are taking it back,” said Jordan in 1995.
Jordan saw Americanization as a process of integration by which immigrants become part of the American community. This occurs in parallel with the welcoming of immigration by existing citizens. It is a unifying process. Immigrants do bring their own cultures with them, but Jordan believed that we could remain united as a nation if immigrants acknowledged that the United States was founded on the rule of law, and this history must be respected and fiercely protected if Americans were to remain a free people.
We are a nation of immigrants, dedicated to the rule of law. That is our history — and it is our challenge to ourselves… It is literally a matter of who we are as a nation and who we become as a people. E Pluribus Unum. Out of many, one. One people. The American people.
The Jordan Commission was explicit about what it meant by Americanization. It was a “covenant” that was:
  • Voluntary: Americanization is a “process of integration, not an entitlement, it cannot be forced upon people.” Migration has often been portrayed as an imposed process — migrants being “pushed” away from their familiar surroundings in search for better opportunities, host countries being forced to accept these newcomers. The Jordan Commission stressed the element of choice — migrants choose to come and become part of our nation, and Americans choose to admit them.
  • Mutual and reciprocal: Immigration entails mutual obligations. Immigrants must abide by the laws, pay taxes, and respect American culture. At the same time, immigrants must not be excluded from participating fully in civic life in America. However, always keeping in mind vulnerable Americans, the Commission added, “this obligation to immigrants by no means excuses us from our obligations to our own disadvantaged population.”
  • Individual, not collective: The Constitution assures us that in the United States each individual is born with certain inalienable rights and the government is responsible for securing those rights. Immigrants are admitted and granted Constitutional rights as individuals, not as group, in order to avoid division or disunity. The rights of individuals over groups should therefore be emphasized.
Becoming an American entails first and foremost adhering to the principles and values embodied in the American Constitution: equal protection and justice under the law, freedom of speech and religion, representative government. Immigrants should be able to demonstrate a full knowledge of U.S. history, civics, and the laws and principles of democracy. They should also communicate in English (even if able to do so in other languages), which is a strengthening and unifying factor. English proficiency is essential as the Commission recognized: “English is the most critical of basic skills for successful integration.”
The Jordan Commission recommended that the U.S. immigration should be open to individuals from around the world, and that through Americanization all immigrants must gain an infrangible commitment to American values, foremost being a commitment to the equal application of the law under the guidance of the Constitution.

Barbara Jordan: Legacy

Barbara Jordan was an extraordinary woman who was a pioneer of American politics.  She was passionate about pursuing justice for all Americans, while approaching political questions with a dispassionate and reasoned mien.  To assure her proper place in history, her work on immigration must not be swept aside by contemporary politicians who wish to obscure the long history of civil rights pioneers who understood that immigration policy must not be used to undermine the standing of American citizens.
Jordan stands alongside Frederick Douglass, Booker T. Washington, A. Philip Randolph, and Coretta Scott King. These respected leaders fought for the economic well-being of African-Americans and understood that mass immigration undermined the standing of minority workers.  Various voices today are calling for blanket amnesty for 12 million illegal aliens and massive increases in legal immigration and guest workers.  Are these groups driven by the nation’s best interest or by the appeal of greater profits or increased political power? Jordan had the public interest at heart, this is why we pay tribute to her today and recall her work for genuine immigration reform. As immigration historian Vernon Briggs stated so rightfully, “the blueprint for real reform is all there — just waiting for true political leadership or a coalition of dedicated citizens to pick it up and follow the instructions.” We are still waiting for true political leaders to carry the torch forward. When Barbara Jordan died in 1996, President Bill Clinton declared that “Barbara always stirred our national conscience.” May she continue to do just that as we resist the effort to marginalize her important work on immigration.

Footnotes and endnotes

Bibliography Barbara Jordan: Biography,
Allerfeldt, Kristofer. “Review Article Some Current Thinking on American Immigration.” History, 92 (2007): 84–89
Binational Study on Migration. Migration between the U.S. and Mexico. Mexican Ministry of Foreign Affairs and U.S. Commission on Immigration Reform, 1997 (
Briggs, Vernon M., Jr.”The Report of the Commission on Immigration Reform (i.e. the Jordan Commission): A Beacon for Real Immigration Reform.” Progressives for Immigration Reform Policy Brief #09-1, Washington, DC: Progressives for Immigration Reform, 2009 (
Briggs, Vernon M., Jr. “Illegal Immigration and Immigration Reform: Protecting the Employment Rights of the American Labor Force (Native-Born and Foreign-Born) Who Are Eligible To Be Employed.” Memorandum, Center for Immigration StudiesApril 2010 (
Jordan, Barbara. 1992 Democratic National Convention Keynote Address, New York, 13 July 1992 (
Jordan, Barbara. “Testimony of Barbara Jordan before the U.S. House of Representatives,” U.S. Commission on Immigration Reform, September 29, 1994, (
Jordan, Barbara. “Testimony of Barbara Jordan before the U.S. House of Representatives,” U.S. Commission on Immigration Reform, February 24, 1995, (
Jordan, Barbara. “The Americanization Ideal,” The New York Times, September 11, 1995 (
Pear, Robert. “Clinton Embraces a Proposal to Cut Immigration by a Third,” The New York Times, June 08, 1995. (
Rogers, Mary Beth. Barbara Jordan: American Hero. New York: Bantam Books, 1998.
U.S. Commission on Immigration Reform. U.S. Immigration Policy: Restoring Credibility, Washington, DC: UCIR, September 1994 (

U.S. Commission on Immigration Reform. Becoming an American: Immigration and Immigrant Policy. Washington, DC: UCIR, September 1997 (

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