By Craig Clough

Law360 (March 27, 2020, 10:17 PM EDT) -- A California federal judge ordered the U.S. government Saturday to show it is releasing detained migrant children without delays to protect them from COVID-19, but stopped short of granting an emergency order requiring releases within seven days of detention.

U.S. District Judge Dolly Gee also ordered detention facilities in states that have 3,000 or more confirmed cases of COVID-19 to open themselves up for inspection to confirm implementation of the Centers for Disease Control and Prevention guidelines on COVID-19, and to provide legal and immigration advocacy groups with detailed data sought on children being held.

The order came one day after the judge held a hearing on the advocates' motion for a temporary restraining order via teleconference and videoconference to protect participants from the novel coronavirus.

But as she indicated during the hearing on Friday, the judge's order stopped short of requiring a quick release of the more than 3,000 children currently in custody, as she said a mass release of minors would not guarantee their conditions would improve.

"I have serious concerns about en masse ordering the government to release thousands of minors without knowing where they're going, to whom they're going and whether they will be exposed to even worse conditions where they are going," Judge Gee said Friday.

The motion for a temporary restraining order was made by representatives of a settlement signed in 1997 under the long-running Flores class action. The TRO sought for the government to release minors within seven days, unless the youths are a flight risk or there is other good cause not to free them. The timeline would have been quicker than the currently required 20 days as part of the settlement agreement.

The class also sought implementation of the CDC's guidelines for COVID-19 prevention by the Office of Refugee Resettlement and Immigration and U.S. Immigration and Customs Enforcement, and for the enforcement of the Flores agreement's provision requiring the government to make and record continuous efforts toward releasing minors.

Judge Gee said the ORR appears to be in substantial compliance with the safe and sanitary requirements of the Flores agreement by following the CDC's COVID-19 guidelines, but there was evidence suggesting ICE was not in full compliance. She said that considering the evidence, she would be requiring a special master and independent monitor to implement heightened inspections at ICE facilities and limited inspections at ORR facilities.

The class' request for an emergency restraining order said that conditions in the detention facilities render it "nearly impossible for detained class members to engage in the required infection control policies, such as social distancing and increased hygiene, necessary to mitigate the risk of COVID-19 transmission," adding that detained children are "sitting ducks waiting to contract COVID-19."

The class also said seven days is "more than enough" time to release the minors, arguing that in "the vast majority of cases, delay releasing class members is attributable either to (1) entirely elective investigatory measures, or (2) administrative torpor or indifference."

Friday's hearing came a day after the ORR announced that three unaccompanied migrant children in government custody had tested positive for the coronavirus, making them the first announced positive cases among children in the agency's care.

Peter Schey, an attorney for the class with the Center for Human Rights & Constitutional Law, said during the hearing that the migrants are not seeking an "en masse, put-them-out-on-the-streets release of children within seven days, within 10 days or 20 days," but for officials to "do their jobs and assess an appropriate placement" for the detained children.

Migrants in a separate case, Lucas R. et al. v. Azar et al., had filed a similar motion for a temporary restraining order to expedite the release of detained children. Judge Gee jointly considered the motion at the hearing, but said she would focus the discussion on the Flores case as the issues raised by the Lucas class were like "fitting a square peg in a round hole."

As she indicated she would Friday, Judge Gee granted the Flores class' TRO in regard to reporting requirements that allegedly are not being met by the government, and to children sometimes being held for long periods without justification. She harshly criticized the government several times during the hour-plus hearing, saying it had failed to meet some requirements of the Flores agreement and her prior orders.

The class claimed the monthly data the government provides them on detainees per the agreement is insufficient, and that as of February about 1,861 class members in ICE custody have been detained for three months or longer, "with no efforts made by defendants to release them under the terms of the agreement."

Judge Gee said Friday she was disturbed by the statistics and said the objective of her order would be for the government to show cause why the minors have not been placed.

Sarah B. Fabian of the U.S. Department of Justice's Office of Immigration Litigation told Judge Gee on Friday the government believed those numbers were incorrect but did not have enough time in trying to respond to the motion to get up-to-date statistics. She also said the class' statistics were "speculative" and assumed there were available sponsors for the children.

"Where there are sponsors, ORR is taking steps to expeditiously release," Fabian said. "ORR has no equities in keeping the children in custody."

But Judge Gee responded that she could not "tell the plaintiffs to come up with data that they do not have because you won't give it to them."

The judge's order requires the government to show cause by April 10 why a preliminary injunction should not be issued requiring the feds to make and record continuous efforts to release class members, and enjoins the government from keeping minors who have suitable custodians in congregate custody "due to ORR's unexplained failure to promptly release them" and ICE's "unexplained failure to release these minors within 20 days, especially given the emergent circumstances and the court's prior orders requiring the same."

The Flores class is represented by Carlos Holguin and Peter A. Schey of the Center for Human Rights & Constitutional Law, Holly S. Cooper of the University of California, Davis School of Law, Bill Ong Hing with the University of San Francisco School of Law Immigration Clinic, Stephen Rosenbaum of La Raza Centro Legal Inc., Jennifer Kelleher Cloyd, Katherine H. Manning and Annette Kirkham of the Law Foundation of Silicon Valley, and Bridget Cambria of Aldea-The People's Justice Center.

The Lucas class is represented by Carlos Holguin.

The federal government is represented by August E. Flentje and Sarah B. Fabian of the DOJ's Civil Division.

The cases are Flores v. Barr, case number 2:85-cv-04544, and Lucas R. et al. v. Azar et al., case number 2:18-cv-05741, in the U.S. District Court for the Central District of California.

Update: This story has been updated to include information from Judge Gee's order.

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