Feds appeal injunction ordering restoration of legal aid for undocumented children

The DOJ argued the organizations that brought the suit did not have standing and it made a judgment call to allocate funds toward other initiatives.SAN FRANCISCO (CN) — The Department of Justice asked a Ninth Circuit panel Thursday to vacate a lower court’s order blocking the government from terminating legal funding for undocumented children who are in the United States without a legal guardian.“The statute says nothing, and neither does the regulation, about whether to terminate funding or who to fund. That particular choice is particularly committed to our discretion,” Thomas Vaseliou, representing the government, said.Vaseliou argued the lower court lacked jurisdiction because the plaintiffs’ claims arose from a breach-of-contract issue and belong in the Court of Federal Claims.He objected to U.S. District Judge Araceli Martinez-Olguin’s description of a “complete abandonment” of the program.“When we’re still providing pro bono services, which was true when we terminated direct legal representation, and we were still preventing manipulation, exploitation and trafficking of children, that’s enough to say it’s not a complete shutdown of the program,” he said.Vaseliou told the panel Congress appropriated the money for legal services as a lump sum across multiple programs under the Trafficking Victims Protection Reauthorization Act of 2008, and it was up to the government to decide how to use the funding.“With a lump sum appropriation, however, we’re not required to because we can make a judgment call, a budget-making decision to allocate the funds in a different direction,” Vaseliou said.U.S. Circuit Judge Lucy H. Koh, a Joe Biden appointee, questioned Vaseliou about the termination of funding without a backup plan to ensure the children had legal counsel, while U.S. Circuit Judge Consuelo M. Callahan, a George W. Bush appointee, focused on Martinez-Olguin’s orders regarding the government’s compliance with the preliminary injunction and the judge’s decision not to recuse herself from the case, despite previous employment at one of the plaintiff organizations.However, Callahan and U.S. Circuit Judge Kenneth Kiyul Lee, a Donald Trump appointee, directed the majority of their questions to plaintiffs’ attorney Laura Sturges, focusing on jurisdiction and redressability.“It does seem at its core a contract case. That contract was canceled; we don’t have the money that we would have received under the contract. So it seems like then it should go to the Court of Federal Claims,” Lee said.Sturges told the panel the plaintiff organizations’ contract does not need to be reinstated for an adequate remedy; instead, the government only has to ensure it was providing the required legal services under the TVPRA — which mandates the government “shall ensure, to the greatest extent practicable,” that unaccompanied children receive legal counsel.“If the government was able to provide services to the greatest extent practicable, as required by the TVPRA, that would redress our harms without money flowing to us,” she said.She added the courts should have power to determine whether the government abused its discretion in terminating the funds.“We think the government has an obligation to fund direct representation for unaccompanied minors to the greatest extent practicable, and the government thinks it does not. That is a question of interpretation, that that is a statutory question, that is a question for a court, and that is not a Court of Federal Claims issue or a breach of contract issue,” she said.Representatives for the parties did not immediately respond to a request for comment.In March 2025, the plaintiffs — Community Legal Services in East Palo Alto, Immigrant Defenders Law Center and the Amica Center for Immigrant Rights, among others — said the U.S. Department of Health and Human Services, the Office of Refugee Resettlement and the Department of the Interior abruptly — and without explanation — terminated the contract that enabled the plaintiffs and their sister legal service organizations to provide critical services to thousands of unaccompanied children nationwide.Last year, the groups say approximately 26,000 children were at risk of losing legal representation. Many children arrive in the United States without parents or legal guardians, often unable to speak English and lacking the resources to hire an attorney. The plaintiffs argue the funding cut is particularly egregious given Congress appropriated more than $5 billion for fiscal year 2024 to deliver services to unaccompanied children, including funding for legal representation.Last April, Martinez-Olguin, a Joe Biden appointee, granted the plaintiffs a temporary restraining order, writing the Trump administration’s plan to terminate the funding raised serious concerns it would violate the TVPRA. Later that month, Martínez-Olguín issued a preliminary injunction to restore nationwide legal aid funding through the Office of Refugee Resettlement.In August, the judge granted an emergency motion from the groups to enforce her prior preliminary injunction, ordering the government to “issue and release the funds they have withheld since December.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads