Judge Tells Feds to Abide by 20-Year Deal on Release of Detained Immigrant Kids

Immigrant children play outside a former Job Corps site that now houses them in Homestead, Fla. (AP Photo/Wilfredo Lee)

LOS ANGELES (CN) — A federal judge in Los Angeles said Friday the risk of Covid-19 spreading in immigrant detention facilities requires the government to adhere to a longstanding settlement requiring prompt release of immigrant youth from custody.

The landmark 1997 Flores settlement sets national standards for the detention, release and treatment of all immigrant children in federal custody, such as requiring their release to guardians or placement in facilities within 5 to 20 days of detention.

Youths who have sponsors should be released to them without unnecessary delay, unless they’re deemed flight risks, or released to state-licensed care facilities, according to the settlement. 

But detention settings amid the coronavirus outbreak places immigrant youths at risk of exposure to the virus, attorneys for class members of the settlement said in March 26 ex parte papers seeking a preliminary injunction allowing for immediate release of the youth.  

The motion said youths held in congregate settings are exposed to “the clear and present danger the Covid-19 pandemic poses to their safety and well-being.”

The fact that immigrant youths detained by the Office of Refugee Resettlement or Immigration and Customs Enforcement can’t practice physical distancing guidelines established by health experts is a violation of the settlement, attorneys for children said in briefs. 

The spread of Covid-19 in facilities for immigrant youth is not speculative, the attorneys said, adding that detained children in ORR’s MercyFirst and Abbott House facilities in New York have been infected. 

U.S. District Judge Dolly M. Gee said in a March 28 order that the federal government had not done enough to ensure detained youth were safe from infection and that agencies failed to promptly release immigrant children from facilities in light of the pandemic.

“The severity of the harm to which plaintiffs are exposed and the public’s interest in preventing outbreaks of Covid-19 among families and children in ICE or ORR custody that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems tips the balance of equities sharply in plaintiffs’ favor,” the order states.

Citing pandemic-related travel restrictions, social-distancing guidelines and the risk of spreading infection in sponsors’ homes, Gee stopped short of ordering en masse release of immigrant children from federal custody.

Gee extended her order on April 10, saying the federal government should continue efforts to release youth and justify any unnecessary delays.

Under the order, the federal government provided records of their efforts to place detained youth in the custody of suitable sponsors. 

In a verbal order during a telephonic hearing Friday and issued in writing later in the day, Gee said she would convert the preliminary injunction motion into a motion to enforce the Flores settlement, specifically provisions governing safe and sanitary conditions of facilities and prompt release of children to their sponsors.

“But I want to remind everyone, for 23 years we’ve had the Flores settlement. It’s a consent decree and a permanent injunction,” Gee said Friday. “It doesn’t make sense to have a preliminary injunction. We’re not going to have a trial on the merits. We have an agreement I’m going to be able to enforce.”

Under Gee’s Friday order, ORR must release class members who have an immediate relative — or relatives through legal marriage — or other sponsor that can care for them, known as category 2B and 3 sponsors.

For immigrant children in the custody of Immigration and Customs Enforcement, or ICE, Gee ordered all class members be released to guardians in every category of relatives or sponsor.

Due to pandemic-related business closures, the government can temporarily place children with sponsors who’ve undergone basic background checks instead of the more intensive checks that require fingerprint scanning at brick-and-mortar businesses.  

Justice Department attorney Sarah Fabian took issue with the delay in obtaining fingerprint scan results for background checks, telling Gee it would disrupt procedures for releasing immigrant youth.

“It would in effect be a permanent release pending [fingerprint] results,” Fabian told Gee.

Attorneys for the government have said in court papers some delays stem from having doctors review the health of a detained youth before they’re released, but Gee said Friday while that is fine she will ask for records on whether that process adds unnecessary delays to youths being released. 

Gee said in the hearing she doesn’t want parties engaged in endless litigation and instead seeks settlement enforcement through monitoring and, if needed, additional hearings on compliance. 

“This pandemic has caused some serious dislocation. It’s a deadly serious virus and I am deadly serious to have this settlement enforced, finally,” Gee said. “Hopefully it doesn’t take a  pandemic to have all the provisions taken seriously.”

Gee also ordered the court’s independent monitors to continue reporting on conditions of federal detention facilities nationwide, including whether they’re adhering to U.S. Centers for Disease Control and Prevention guidelines for stemming the spread of Covid-19.

“Juvenile coordinators are my eyes and ears on the ground,” Gee said. “I hope you’ll be honest brokers. I don’t want any spin, I want the truth from you. In this environment, I want to make sure children are not in danger.”

Gee’s order applies to more than 3,400 immigrant children in facilities operated by ORR and hundreds more operated by ICE.

In a 21-page order, Gee said ICE deserves credit for its response to the pandemic but that it has not implemented its own comprehensive plans. 

“The design of the ICE [Family Residential Centers’] COVID-19 prevention measures may substantially comply with the [settlement’s] safe and sanitary and medical care requirements,” the order states. “But proper policy design, without proper implementation, does not offer class members the baseline of care bargained for in the [settlement].”

Gee also ruled that ORR’s decision to delay children’s release from custody because they have pending orders for removal – along with parents who accompanied them – under the Trump administration’s Migrant Protection Protocol policy.

“Some minors have remained in ORR care for months despite pending appeals of their initial removal orders under the MPP. Such appeals are precisely the type of protracted proceeding that ORR claims will render a minor eligible to be evaluated for release, yet these minors’ attorneys see no sign of ORR’s willingness to evaluate them for release,” the order states. “The court sees no reason why, if removal is not “ready to take place,” ORR should not release minors whose removal orders under the MPP are under appeal.”

In court papers, attorneys for ORR claim four unaccompanied immigrant children in the agency’s 32 facilities have not been released due to pending MPP appeals, but Flores counsel said in opposing declarations the number is much higher.

Spokespersons for both agencies did not respond to a request for comment by press time.

Peter A. Schey, an attorney with the Center for Human Rights and Constitutional Law representing immigrant youths, said Gee’s order doesn’t only apply while shelter-in-place measures are in effect.

“Federal Judge Dolly Gee has again stepped in to prevent President Trump’s policy of detaining immigrant children for months on end from exposing them to Covid-19 infection and her ordering the children’s prompt release may actually save the lives of some children or at least prevent their serious illness,” Schey said in a statement.

Monica Julian, an attorney at the University of California, Davis, School of Law’s Immigration Law Clinic, said the ruling is relief for advocates of detained immigrant youth.

“It is so concerning to me that [class members] remain at risk during the pandemic,” Julian said in a phone interview. “We see how quickly [Covid-19] can spread in congregate settings. The sooner we can get youth out of congregate care and with families the better.”

A status conference in the matter is scheduled for May 22 in Los Angeles. 

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