LOS ANGELES (CN) — A federal judge has denied the Trump administration’s request to continue detaining unaccompanied immigrant children in hotels, finding the children are protected by a settlement governing their treatment in federal custody.
U.S. District Judge Dolly M. Gee called the Trump administration’s reasoning for continuing the private contractor-run program “bewildering” and said it fails to show how it protects immigrant children from contracting Covid-19.
“The public also has an interest in preventing the spread of Covid-19, and as this court has now reiterated on multiple occasions (and as defendants have yet to refute), placing minors in licensed, regulated facilities, with proper safety protocols, would likely do more to mitigate the spread of the virus than housing them in hotels open to the public,” Gee wrote in the order, which takes effect Sep. 28.
In recent months, the Trump administration has detained hundreds of immigrant children in hotels, claiming the move was a public health measure to prevent people from bringing the novel coronavirus into the U.S. during a raging pandemic.
The Department of Homeland Security used the order to detain children in public hotels instead of its licensed facilities being monitored by Gee, the federal judge presiding over the Flores settlement proceedings in Los Angeles federal court. The landmark 1997 agreement sets national standards on the treatment, detention and release of immigrant children in federal custody.
Federal officials said in court papers the program is necessary to prevent unaccompanied children or their families from contracting Covid-19 at immigrant detention facilities.
Attorneys for the nationwide class of children sharply condemned the jailing of children in hotels, saying in court the program increased the risk of contracting Covid-19 by operating outside of health and legal standards set by Flores.
On Sep. 4, Gee blocked the program, finding it violates the Flores settlement, and ordered the Trump administration to move children to licensed facilities by Sep. 15.
The government requested a two-week stay so that Immigration and Customs Enforcement agency could transfer children to its facilities. But Gee only gave until Sep. 8 for transfers to conclude, prompting federal officials to ask the Ninth Circuit for a longer stay.
The appeals court denied the emergency motion without prejudice, saying the Trump administration should first bring their request to Gee, and extended an administrative stay of Gee’s order to Sep. 23.
Government attorneys moved for stay on Sep. 17 which Gee, a Barack Obama appointee, again denied.
Gee said in her 5-page order the Trump administration fails to justify the legal foundation of the hotel program, namely how the Flores agreement could grant the government authority to detain unaccompanied children in hotels.
The government’s court briefs have fallen short of addressing these shortcomings, Gee found, by including only details about MVM, the private contractor operating the program.
“But the fact that MVM personnel receive a mere two days of training, only a fraction of which are dedicated to child development and care, before being placed alone in a room with a tender-age child for hours at a time reaffirms the court’s finding that hoteling is not suitable for unaccompanied minors,” Gee wrote.
Government attorneys have said the program addresses potential bottlenecking in processing and detaining children, therefore preventing the spread of Covid-19 at any overpopulated facilities. But Gee called those assertions “highly speculative,” adding that her Sept. 4 order allowed for hoteling children when the government could argue a public health justification and that ICE has shown insufficient progress on processing children in custody.
“Even if the infection control protocols at [Office of Refugee Resettlement] come under some stress, or are forced to make some adjustments, the court is confident that they would remain far safer than unregulated hotel stays for both detained minors and the general public,” Gee wrote. “Moreover, there are sufficient numbers of currently under-utilized ORR facilities such that transfers can be allocated among facilities to avoid over-concentration or bottlenecking.”
In a footnote, Gee slammed the government for submitting court papers that include discrepancies regarding how many immigrant children are in its custody.
“They provide no explanation for the discrepancy between the 577 number used just a few weeks ago and the 2,200 number deployed now,” Gee wrote. “The fact that the government cannot seem to consistently keep track of how many children it has held in its custody is disturbing, to put it mildly. It is emblematic of the problem with such an opaque, unregulated, ad hoc program.”
Under the Sep. 4 order, the government can detain Flores class members in hotels for up to 72 hours “as necessary and in good faith to alleviate bottlenecks in the intake processes at licensed facilities.”
Carlos Holguín, the attorney for the detained children with Center for Human Rights & Constitutional Law, praised Gee’s ruling in a statement Tuesday.
“In candor, the border closure order appears more of an end-run around protections Congress has conferred on immigrants and asylum-seeking children than a rational measure to protect public health during the Covid-19 pandemic,” Holguín said. “Yet however inhumane, unnecessary and unlawful the border closure order, the Flores settlement does not prevent the government from expelling anyone. What it does require is that DHS treat children properly for howsoever long it may detain them. The district court rightly rejected the government’s position that protecting the public health requires throwing out baby with bathwater.”
Justice Department attorney Sarah Fabian did not immediately respond to a request for comment.
Fabian has said in court the government faces the challenge of some parents not requesting their child be released separately, or that there is no suitable party to whom they can release a child.
The issue has created a challenge for both parties as it relates to Gee’s order to release Flores class members where conditions are unsafe due to Covid-19.
In a Sep. 18 order granting a bid to enforce the settlement, Gee ordered ICE to give detained children a notice of their rights under Flores and directed the agency to provide its employees an updated policy guide regarding the agreement.