By Jennifer Doherty

Law360 (July 23, 2020, 7:38 PM EDT) -- The U.S. government responded Wednesday to nonprofits seeking to intervene in the Flores class action over detained migrant children saying that decertifying the class — recognized by the California federal court since 1997 — was the correct response to the problems they raised.

The U.S. Department of Justice asked the court to toss a bid by nonprofit legal service providers to take over representation for three migrant children detained in U.S. Immigration and Customs Enforcement centers with their families, arguing that if class counsel were inadequate, as the nonprofits claimed, class certification is not justified.

"The government agrees that class counsel representation is not adequate, but the proper action for this court to take as a result is to terminate the agreement and decertify the class," the motion said.

The DOJ is also arguing that the would-be intervenors were late, given that the case was settled 23 years ago.

The settlement itself took 10 years to reach after the complaint was filed in 1987 on behalf of Jenny Lisette Flores, who was apprehended crossing the border when she was 15 and was detained with adults of both sexes. The Flores settlement agreement established standards of care the U.S. government must provide to migrant minors in its custody and conditions for their release after 20 days if those standards cannot be met.

While children may be released, no such provision exists for their parents, so migrant families in detention confront a "binary choice": hand over their children to someone else's custody, or sign away the children's Flores rights and remain locked up together.

That choice has been further complicated by health concerns raised by the COVID-19 pandemic. In June, U.S. District Judge Dolly Gee ordered ICE to release the minors held in its three family residential centers by July 17, she later extended the deadline to July 27.

Representatives of Aldea — The People's Justice Center and the Refugee and Immigrant Center for Education and Legal Services, or RAICES, slammed this conundrum Monday in their bid to take over representation for three detained children who qualify as part of the Flores class.

The groups accused the class's lead counsel Peter Schey, co-founder of the Center for Human Rights and Constitutional Law, of inadequacy and advocating for a "coercive family separation process." Court records indicate that five attorneys withdrew from the case between Monday and Thursday.

Schey did not immediately respond to a request for comment.

"The issues raised in the application to intervene supports the government's position that the Flores class has become too large and unwieldy for class action treatment," the government said Wednesday.

"If ... the agreement is inadequate to deal with the problems of accompanied class members, and proposed intervenors now further complain that class counsel is not adequately representing the interests of these class members, then the proper step … is to decertify the class and allow these class members to pursue their claims elsewhere," the DOJ said.

Aldea and RAICES are represented by Michael J. Stortz and Brett M. Manisco of Akin Gump Strauss Hauer & Feld LLP, Manoj Govindaia of the Refugee and Immigrant Center for Education and Legal Services, and Bridget Cambria of Aldea — The People's Justice Center.

The federal government is represented by Sarah B. Fabian of the U.S. Department of Justice's Office of Immigration Litigation.

The class of children is represented by Peter A. Schey of the Center for Human Rights and Constitutional Law.

The case is Jenny L. Flores v. Barr, case number 2:85-cv-04544, in the U.S. District Court for the Central District of California.

--Additional reporting by Suzanne Monyak and Nadia Dreid. Edited by Brian Baresch.

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