9th Circ. Preserves End To Hotel Detention For Migrant Kids

By Suzanne Monyak
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Law360 (October 5, 2020, 7:06 PM EDT) -- The Ninth Circuit preserved a lower court order barring the Trump administration from holding asylum-seeking children in hotels for more than three days before deporting them, finding in a ruling Sunday that the administration wasn't likely to win its case defending the practice.

A three-judge panel for the federal appeals court refused to lift a California federal judge's decision that limited these hotel stays for minors to three days, except in emergency circumstances flagged to the court.  In making its ruling, the district court cited the decades-old class action settlement called Flores that established standards of care for migrant children in government custody.

The federal government has "more than adequate" capacity to hold these migrant children in licensed facilities, rather than alone in hotels, before sending them out of the U.S. under the administration's coronavirus-related order to expel migrants seeking protection at the U.S. border, the judges concluded.

According to the court's order, the refugee office, which takes custody of foreign-born unaccompanied minors, had 10,000 open beds as of Aug. 22. Additionally, according to a government official's declaration, as of Sept. 17, the government was not holding any children in hotels anyway.

"Nothing in the present record establishes that the COVID-19 pandemic prevents the government from placing minors in licensed programs within three days," the panel said.

The Ninth Circuit's decision keeps intact U.S. District Judge Dolly Gee's September ruling ordering the U.S. Department of Homeland Security to stop holding children in hotels, a practice the department implemented as part of its border expulsion program.

That program, begun in March through a directive by the Centers for Disease Control and Prevention, allows DHS to swiftly send migrants, including children, out of the U.S. in a purported effort to stem the spread of the novel coronavirus in border facilities.

Immigrant advocates have challenged that directive in several lawsuits, so far without success. More than 147,000 people have been expelled from the border under the CDC order since March, according to statistics by U.S. Customs and Border Protection, and 577 children ranging from 10 to 17 years of age have been detained in hotels as part of the expulsion program, according to an August court filing.

In her Sept. 4 ruling, Judge Gee found that hotels are not safe places for children and that the children in the hotels were not given sufficient access to counsel. The government then asked the Ninth Circuit for emergency reprieve from Judge Gee's order, arguing that the Flores settlement does not cover children who are part of the border expulsion program and that the lower court's order barring DHS from holding the youngsters in hotels "will irreparably harm public safety during the pandemic."

Sunday's decision rejecting that request came less than a week after U.S. Circuit Judge William Fletcher, a Clinton appointee, had ripped the government's request to pause Judge Gee's order during oral arguments, telling the government's lawyer that it was "troublesome" to hear that lawyers and families had struggled to reach their children under the program.

"I'm trying to figure out why the government is not providing access to lawyers, because it thinks it's not obliged to?" Judge Fletcher said during the hearing. "This strikes me almost as a scofflaw."

Counsel for the children and a spokesperson for U.S. Immigration and Customs Enforcement, the agency within DHS that implemented the hotel program, didn't respond to requests for comment Monday.

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

The children are represented by Carlos R. Holguin of the Center for Human Rights and Constitutional Law and Leecia Welch, Neha Desai, Poonam Juneja and Freya Pitts of the National Center for Youth Law.

The case is Jenny Flores v. William Barr et al., case number 20-55951, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Dorothy Atkins and Alyssa Aquino. Editing by Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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