(CN) — A Ninth Circuit panel was skeptical Wednesday of the Trump administration’s authority to detain unaccompanied immigrant children in hotels during the Covid-19 pandemic, saying the government has so far failed to present reliable data showing its licensed facilities are too crowded and unsafe to hold children.
In recent months, the Department of Homeland Security has detained hundreds of immigrant children in hotels, claiming the move is a public health measure to prevent people from bringing the novel coronavirus into the U.S. during a pandemic.
After a federal judge ordered the agency to cease its program, with an exception allowing a 72-hour hotel stay to avoid “bottlenecking” during processing at facilities, the Trump administration appealed to the Ninth Circuit.
U.S. District Judge Dolly Gee said in her Sept. 21 ruling placing children in the government’s licensed facilities “would likely do more to mitigate the spread of the virus than housing them in hotels open to the public.”
Gee’s ruling said the children are protected under the Flores agreement, a longstanding settlement governing the treatment of all immigrant children in federal custody and one that requires attorney access and children’s prompt release to family or sponsors.
Justice Department attorney Scott Stewart told the Ninth Circuit panel Wednesday that Flores doesn’t apply to DHS’s program and that it should stay Gee’s order.
U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, noted the Centers For Disease Control and Prevention’s order that DHS relied on to launch the hotel program and told Stewart she found nothing articulating authority to detain immigrant children in hotels.
“Why does the CDC order apply here at all,” Berzon asked Stewart. “What’s in this order that’s even implicated?”
Stewart said DHS chose to detain children in hotels after determining it could not deport them fast enough or find space for them at federal facilities that were already at capacity under strict health guidelines.
“It’s a means by which we exercise custody,” Steward said. “In operationalizing the order, it’s very challenging. It’s hard to expel as fast as we like.”
Carlos Holguin, an attorney for the nationwide class of detained children, told the panel Flores clearly applies in this matter and that Gee’s order doesn’t represent a settlement modification that would give the panel jurisdiction to rule on a stay request.
Holguin said the government has presented no compelling argument on why it continues to prevent prompt transfer of Flores class members to safe, sanitary facilities.
“Unless the government is ready to deport these minors, they should go to a licensed facility,” Holguin said.
U.S. Circuit Judge Milan Smith, Jr., a George W. Bush appointee, noted court briefs explaining that federal detention facilities for immigrant children are currently operating at 3% capacity.
“So what’s the problem,” Smith asked Stewart. “Why are the minors not being transferred to licensed facilities?”
Stewart told the panel he believes the federal government’s hoteling program satisfies the prompt transfer requirement under Flores.
U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, challenged Stewart’s assertion that immigrant children are spending an average of five days in hotels, saying some stay for much longer, and asked why facilities aren’t faster at processing children.
Stewart said if current intake procedure is altered it could risk exposing facility staff, children and others to the coronavirus.
“You get risks of the sort we’re trying to avoid here,” Stewart told the panel.
Fletcher told Stewart allowing Flores counsel and court-appointed monitors to report on conditions inside hotels — which is currently being prevented — would provide much needed clarity on the condition of the detained children.
Holguin told the panel evidence Flores counsel has gathered shows immigrant children are being held “incommunicado” in hotels and deprived of attorney access.
“That requirement doesn’t apply since Flores doesn’t,” Stewart said, adding that if the court says the Flores agreement applies, the court should still stay the order that prevents hoteling.
Fletcher, appearing frustrated with the answer, asked how the Trump administration could unilaterally determine it need not provide attorney access since it believed Flores didn’t apply to children in hotels.
“Does the government think it’s not obliged to,” Fletcher asked Stewart. “It strikes me almost as a scofflaw.”
After oral arguments Wednesday, the panel briefly extended an administrative stay of Gee’s order to Oct. 5.
The government’s appeal was taken under submission and the panel didn’t indicate when it would issue a decision.