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Law360 (July 13, 2020, 10:24 PM EDT) -- Although a D.C. federal judge appeared wary on Monday of ordering the nation's three family detention centers emptied, he seemed to be seriously considering releasing detainees with health conditions amid the COVID-19 pandemic.
U.S. District Judge James Boasberg's line of questioning at the virtual status conference on Monday indicated he was mulling such a remedy, because he appeared to have reservations about "wholesale release" of the detained families.
"Your position is that everyone should be released," Judge Boasberg told the attorney representing the detained families. "But if I determine that's not warranted here, do you have particular clients you would seek the release of given their special health situations?"
Susan Baker Manning of Morgan Lewis & Bockius LLP gave a resounding yes, but the attorney emphasized that she didn't think any order short of total release of the detained families — who say they are living in "tinderbox-like conditions," ready to be set aflame by COVID-19 — would be sufficient.
"I don't think that an order to go forth and sin no more is going to be enough here," Manning said. "There has been order after order from many different courts, including this one, to follow [Centers for Disease Control and Prevention] guidelines and ensure the safety of detainees."
The parties were in virtual court to fill Judge Boasberg in on their arguments over which standard he should be using to analyze the families' motion for an injunction ordering the release of the adults and children being detained in the family detention centers.
While the families are pushing for the court to employ a standard that asks whether the government has been objectively unreasonable in providing for their safety, the government says the court would have to find them deliberately indifferent to the detainees' safety to act.
The suit centers on three residential detainment centers in Pennsylvania and Texas that only house families, and where hundreds continue to languish under the threat of the pandemic and being separated from their children, according to the suit.
More than 20 staff members at the Texas facility have tested positive for the coronavirus, which has killed more than 135,000 people across the country, and almost all of those employees had contact with detainees, according to Manning.
Court mandates requiring staff to wear masks and maintain social distancing have been shoddily implemented at best, the attorney said, and testing for detainees is still lacking.
At a hearing in May, the court seemed to take heart in evidence that the government was working to steadily bring down the population in those centers by releasing certainly families — and at the time, no one had tested positive for COVID-19 in any of the facilities.
The facilities were at about 10% capacity at that time, which Judge Boasberg said must surely be a good sign. But on Monday, he seemed to take notice that the population of the facilities had ticked up since, resting at about 14% capacity overall.
Judge Boasberg said he'd have a decision by early next week, but not in time to meet the Friday deadline handed down by U.S. District Judge Dolly Gee in California, who gave U.S. Immigration and Customs Enforcement until Friday to release all migrant children who have been detained longer than 20 days.
The deadline matters because families in the detention centers are going to have to decide whether to allow their children to be released without them, or to keep them detained with their adult relatives.
"I don't want people in the dark about how I'm going to proceed," Judge Boasberg said. "Ms. Manning, you said you wanted to advise your clients about whether to release their children. They shouldn't expect a decision by the 17th. They will have to make an independent decision about what's best for their family and children before then."
The families are represented by Susan Baker Manning of Morgan Lewis & Bockius LLP.
The federal government is represented by Vanessa Molina of the U.S. Department of Justice's Office of Immigration Litigation.
The case is O.M.G. et al. v. Wolf et al., case number 1:20-cv-00786, in the U.S. District Court for the District of Columbia.
--Additional reporting by Suzanne Monyak and Alyssa Aquino. Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
