(CN) — The Ninth Circuit has blocked the Trump administration from detaining children who enter the United States without their parents or an adult guardian in hotels during the pandemic, ordering them to be placed in licensed facilities instead.
According to court filings, an independent monitor reported that the U.S. Department of Homeland Security used 25 hotels in three states to house 660 minors between the ages of 10 and 17. Of those, 577 were unaccompanied when they entered the United States..
About a quarter were held for more than 10 days and some stayed for nearly a month.
The Ninth Circuit panel’s order filed on Sunday takes aim at the practice, which federal officials say is meant to protect public health by stopping the spread of the novel coronavirus into the U.S.
U.S. District Judge Dolly Gee had ordered the agency to stop the program, with a narrow 72-hour exception that would allow children to be held in a hotel to reduce process “bottlenecking” at detention facilities.
The Trump administration filed an emergency appeal, but a three-judge panel found that the government would not be irreparably harmed if they complied with Gee’s orders. The Ninth Circuit panel issued its order just four days after oral argument.
U.S. Circuit Judges William Fletcher and Marsha Berzon, both Bill Clinton appointees, and U.S. Circuit Judge Milan Smith, a George W. Bush appointee, issued the order per curiam.
“The district court’s orders in fact are not strict,” the panel said in its 16-page order. “The original order provides the government with flexibility to address ‘exigent circumstances that necessitate future hotel placements.’”
They added: “Nothing in the present record establishes that the Covid-19 pandemic prevents the government from placing minors in licensed programs within three days. As addressed further below, the capacity of the government’s shelters for unaccompanied minors — 10,000 vacant beds as of Aug. 22, 2020 — appears more than adequate to accommodate the number of unaccompanied minors who need licensed placements, taking Covid-19 safety protocols into account.”
Gee had found the children are protected under the Flores agreement, a longstanding settlement the U.S. government struck in 1997 that remains in effect today. Under the deal, detained children must be transferred to a “licensed program” within three days and guarantees attorney access and prompt release to family or sponsors.
The Ninth Circuit panel found the government hadn’t shown Gee’s order requires actions not found in the Flores agreement.
“We therefore conclude that we likely do not have jurisdiction over the appeal, and that for that reason, the government has not shown a strong likelihood of success on the merits,” the panel wrote.
According to the panel, the Office of Refugee Resettlement, the federal agency tasked with processing detained immigrant children, had not shown why “largely empty shelters” are not able to house the estimated 140 additional children the Department of Homeland Security said it must absorb if it followed Gee’s order.
Homeland Security did not offer any testimony from a public health official explaining “why holding minors in hotels, which are open to the public, presents less risk of Covid-19 exposure and spread, both to the minors and to the public, than holding them in licensed facilities,” the panel found.
“Finally, if any of the problems prophesied by the government show signs of materializing, the district court’s orders give the government the option of ‘alert[ing] plaintiffs and the independent monitor’ that ‘exigent circumstances . . . necessitate . . . hotel placements’ and ‘providing good cause for why such unlicensed placements are necessary,’” the panel wrote, quoting Gee’s Sept. 4 order.
An email to Homeland Security seeking comment was not returned by press time. The plaintiffs in the case, Center for Human Rights & Constitutional Law — representing a nationwide class of detained children — applauded the ruling.
In a statement, the group said if recent news reports about the U.S. Centers for Disease Control and Prevention opposition to the border closure order are accurate, the closure has little to do with stopping the spread of Covid-19.
The group called the Trump administration’s actions “an end-run around humanitarian protections Congress has given immigrant and asylum-seeking children.”
“The Flores settlement does not prevent the government from expelling anyone, but it does require that DHS treat children properly when it detains them,” the group said. “The court of appeals correctly rejected one part of the government’s scheme to use Covid-19 as cover for a needless, extreme and unlawful anti-immigration agenda.”
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.