By Lauren Berg

Law360 (June 30, 2021, 6:59 PM EDT) -- The Ninth Circuit has again preserved a lower court order barring the U.S. Department of Homeland Security from holding unaccompanied migrant children in hotels for more than three days before moving them to licensed facilities, ruling Wednesday that the order gives the government flexibility in emergency situations.

A three-judge panel once more refused to lift a California federal judge's decision that limited hotel stays for minors to three days, despite the government's contention that the decades-old Flores class action settlement — which established standards of care for migrant children in government custody — doesn't apply to children held in custody under a Centers for Disease Control and Prevention order aimed at reducing the spread of COVID-19.

The agreement applies to all children who are detained by DHS, the panel said, rejecting the government's argument that children held under the coronavirus-related order are in the legal custody of the CDC.

"It is clear that DHS both maintains physical control and exercises decision-making authority over the minors held in hotels under [the CDC's order]," the panel said."

In March 2020, the CDC issued an order to expel migrants seeking protection at the U.S. border in a purported effort to stem the spread of the coronavirus in border facilities. DHS used hotels to house unaccompanied children, as well as children apprehended at the border with a family member, before deporting them under the order, according to the opinion.

On average, children were housed in hotels for about five days, though 25% were held for more than 10 days, with a maximum stay of 28 days, the opinion said.

A group of children then filed a motion to enforce the Flores agreement, arguing that the hotel program violated the agreement's requirement that DHS transfer children to a licensed program if it holds them for longer than three days, according to the opinion. The district court granted the motion, finding that hotels are not safe places for children and that the children in the hotels were not given sufficient access to counsel.

The district court then directed DHS to stop placing children in hotels by Sept. 15, 2020, unless exigent circumstances necessitated short stays, and to transfer all children in hotels to licensed facilities as quickly as possible, the opinion said.

The government asked the Ninth Circuit for emergency reprieve from the 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 minors in hotels "will irreparably harm public safety during the pandemic."

But the appellate court denied the request in October, less than a week after U.S. Circuit Judge William Fletcher, a Clinton appointee, said during oral arguments that it was "troublesome" to hear that lawyers and families had struggled to reach their children under the program.

In February, the CDC changed its order to temporarily except unaccompanied children from deportation, saying it was in the process of reassessing the order, according to the opinion.

The government has since said it stopped using hotels for housing children accompanying their parents or legal guardians before deporting them, except on very rare occasions, according to the opinion. But it did say it might use hotels in the future, either during the current pandemic or a future public health emergency, if it is allowed, the opinion said.

In the latest appeal, the government argued that its hotel program doesn't violate the Flores agreement and that the district court incorrectly concluded that the agreement requires that children be transferred to licensed facilities within 72 hours, ignoring the exception for emergencies.

But the appeals panel disagreed Wednesday, finding that the district court's order is not strict and provides the government flexibility to address exigent circumstances that might necessitate future hotel placements, according to the opinion. The order also permits three-day hotel stays to allow the government to alleviate bottlenecks in the intake processes at licensed facilities, the panel said.

The panel also rejected the government's contention that the risk of harm to the U.S. necessitates reversing the district court's order, saying the government hasn't shown how complying with the order will cause irreparable harm.

If the government wants to use hotels for custody related to the CDC's order, either during the current pandemic or a future public health emergency, it has the option to request a modification to the district court's order, the panel said.

Representatives for the parties did not immediately respond to requests for comment Wednesday.

U.S. Circuit Judges William A. Fletcher, Marsha S. Berzon and Milan D. Smith Jr. sat on the panel that reached Wednesday's decision.

The federal government is represented by Sarah Fabian, William Peachey, Jeffrey S. Robins and William Silvis of the U.S. Department of Justice's Civil Division.

The children are represented by Peter Schey and Carlos R. Holguin of the Center for Human Rights & Constitutional Law; Neha Desai, Poonam Juneja, Freya Pitts and Leecia Welch of the National Center for Youth Law; Annette Kirkham and Katherine Manning of the Law Foundation of Silicon Valley; and Holly S. Cooper of the University of California, Davis School of Law.

The case is Jenny Lisette Flores v. Merrick B. Garland et al., case numbers 20-55951 and 20-56052, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Alyssa Aquino, Craig Clough and Dorothy Atkins. Editing by Breda Lund.

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