By Alyssa Aquino

Law360 (August 27, 2020, 4:32 PM EDT) -- U.S. Immigration and Customs Enforcement's practice of holding migrants in hotels while arranging their swift deportation isn't "fully responsive to the safe and sanitary" needs of children, a court-appointed monitor has reported, recommending that unaccompanied minors be excluded from hotel detention entirely.

Five hundred seventy-seven children ranging from 10 to 17 years of age have been detained in hotels as part of an expulsion program under Title 42, a rarely used public health statute, in light of the U.S.' coronavirus health emergency, monitor Andrea Ordin told a California federal court Wednesday.

After reviewing the detention program — which the monitor said is "much larger" than previously reported — Ordin found that there still is no information on how ICE cares for children unable to care for themselves and expressed concerns that the children are at risk of contracting coronavirus.

"While the legal provisions of the Title 42 expulsion policy will be deliberated elsewhere, it seems clear that the Temporary Housing Program is not fully responsive to the safe and sanitary requirements of young children," Ordin said. "There remains no assurance that the THP can provide adequate custodial care for single minors, who by definition are being moved through the immigration system alone and without familiar support or protection."

ICE should exclude unaccompanied monitors from the hotel detention program entirely, Ordin recommended. She noted that her suggestion was "particularly directed" to minors younger than 15 years old.

In March, the Trump administration invoked Title 42, which bars migrants without proper travel documentation from entering the U.S. in order to curb the spread of disease. Unaccompanied minors were initially exempted from the border block, but the government walked back the carveout, saying that children who entered the U.S. alone could be sent back.

Under federal immigration law, minors who arrive at the border alone are placed into the custody of the Office of Refugee Resettlement, where they'll be transferred to a government-run shelter or to relatives in the U.S. while they pursue asylum claims. Under Title 42, the children are instead kept in ICE custody while the agency arranges return flights to their home countries.

The Texas Civil Rights Project, with the backing of the American Civil Liberties Union, sued the Trump administration over the practice, arguing that the Title 42 program moved too quickly for children to file an asylum claim or access counsel.

U.S. District Judge Dolly Gee, who is overseeing a long-running class action over the well-being of detained migrant children, authorized Ordin to review the hotel detention program in an Aug. 7 hearing, saying that she found reports of the practice "very disturbing."

An ICE official said the agency doesn't comment on pending litigation.

Since the coronavirus pandemic hit, unaccompanied minors have been held in 25 hotels across three states, including Arizona and Texas. Their stays range from one to 28 days, with the average length of detention clocking in at five days, Ordin said.

Children placed in hotel detention are supervised by private security company MVM Inc., and have access to ICE medical personnel, beds, hygiene materials, and hot meals and snacks, Ordin said, largely describing the reported features of their detention as amenities.

"While the amenities provided by the THP are appreciated, a list of amenities is not a system of care for children of different ages and development ages," she said. It was unclear whether ICE gave special attention to the youngest detainees, according to the report.

Ordin found no time limits on how long ICE could detain the minors, saying "even relatively young children can be held in the hotels for extended periods of time." Without the time cap, more minors could be detained in a single hotel than can be supervised, she said.

"Concerns for the protection of minors in the [program] from acquiring COVID-19 remain," Ordin said. Since the program began, three unaccompanied minors tested positive for the virus while they were detained in the hotel, according to the report.

The Texas Civil Rights Project did not immediately respond to Thursday requests for comment.

The children are represented by Peter A. Schey and Carlos Holguin of the Center for Human Rights & Constitutional Law.

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

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

--Editing by Abbie Sarfo.

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