Law360 (July 29, 2020, 7:50 PM EDT) -- A D.C. federal judge sent the government and lawyers for detained migrant families to the negotiating table on Wednesday to discuss whether certain vulnerable families who fear contracting COVID-19 in immigration detention should be released on a case-by-case basis.
One week after U.S. District Judge James Boasberg refused to issue a blanket order emptying the nation's three family detention facilities, he asked the families' lawyers to work out with the government if some families could be freed individually, including those with serious illnesses or families with babies too young to wear masks.
He also told Vanessa Molina, the government attorney representing U.S. Immigration and Customs Enforcement, to provide medical records for the detained families and documentation justifying the agency's decision to keep them in detention.
"It would seem that it makes more sense for you folks to negotiate and to see if you agree, Ms. Molina, that at least some of the particular people whom the plaintiffs are targeting are deserving of release given their medical situations," Judge Boasberg said at the status hearing.
If ICE refuses to release some, or all, of the families, their lawyers could file another request for a preliminary injunction alleging that the families' continued detention violates their constitutional rights, the judge said.
Judge Boasberg had previously declined to decide whether keeping families in detention due a pandemic was unconstitutional, saying only that the families had not shown an "obvious violation" of their due process rights. However, in that decision, he acknowledged that it "is a close question."
Susan Baker Manning of Morgan Lewis, an attorney for the families, told the judge that the team would start with an initial round of release requests for five to 10 families, but that more rounds of requests may be necessary as coronavirus conditions in family detention change.
"Frankly, if there's an enormous outbreak, it may be more than that," Manning said. According to Manning, the attorneys represent 87 families currently detained at the three detention centers in Pennsylvania and Texas.
"The COVID-19 situation, it's certainly fluid," Judge Boasberg replied. "Changed circumstances could lead to a changed outcome."
The judge set the next status hearing for Aug. 19 to go over the parties' progress on individual release discussions.
Amy Maldonado, another attorney for the families, told Law360 after the hearing that she wasn't optimistic that ICE would agree to release more than one or two detained families during these negotiations unless ordered by a court to do so. She noted that ICE already has the discretion to release families and is aware that many have been detained for hundreds of days.
"I don't think that we're going to get very far without the court's intervention," Maldonado said. "And I don't think that that's going to be very pleasing to the court."
In the meantime, she said the legal team will go through the "extremely burdensome process" of documenting why each family's detention violates their Fifth Amendment rights.
Their case may be bolstered by a recent decision by U.S. District Judge Timothy Kelly, a Trump appointee, striking down the Trump administration's rule that stripped asylum eligibility from migrants who crossed through another country en route to the U.S., according to Maldonado.
While the policy was in effect, many migrant families currently in detention failed their initial fear screenings and were ordered deported under the now-invalidated restrictions, and Maldonado argued that those expedited removal orders should now be vacated.
However, until the next hearing, "that's another three weeks in a COVID facility where they've never done any testing," Maldonado said.
An ICE spokesperson didn't respond to a request for comment on Wednesday.
Wednesday's hearing comes two days after the court-ordered deadline passed for the government to release all children from family detention in separation litigation. U.S. District Judge Dolly Gee, the California federal judge overseeing that case — a long-running class action called Flores on behalf of detained migrant children — had described the family resident centers as "on fire" and ordered ICE to release any minors held there longer than 20 days by July 27.
However, infighting within the children's own legal team and ICE's refusal to release the families together has stalled that release effort.
On Saturday, Judge Gee rejected the government's request to extend the July 27 deadline, saying that if the government has not put protocols in place to either release families together, or allow parents to choose, her deadline was "unenforceable by its own terms."
Asked for an update by Judge Boasberg at Wednesday's hearing, Molina said that she wasn't sure if ICE had released any children as a result of Judge Gee's order.
Manning told Judge Boasberg that it was her understanding that the government has not approached any of the detained families with the choice to release their children to sponsors or remain in family detention together.
The attorneys in that case are due to provide a status update to Judge Gee by Aug. 5.
The migrant families are represented by Susan Baker Manning of Morgan Lewis, Manoj Govindaiah of the Refugee and Immigrant Center for Education and Legal Services and Amy Maldanado of the Law Office of Amy Maldonado.
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.
--Editing by Jay Jackson Jr.
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