By Nadia Dreid

Law360 (May 20, 2020, 8:31 PM EDT) -- Despite some "good lawyering," a D.C. federal judge said Wednesday he has seen no proof that the supposedly tinderbox-like conditions under which some immigrant families are being detained amid the coronavirus outbreak amount to a violation of their Fifth Amendment rights.

U.S. District Judge James Boasberg also said during the 30-minute teleconference hearing he didn't think there was a case for debating the length of detention in a suit that was supposed to focus exclusively on the conditions the families are living in.

"To me, I just don't think that's what this case is about," Judge Boasberg said, taking on arguments from counsel for the families.

In doing so, he rebuffed attempts to require the government to provide a justification for keeping some of the migrants in detention, saying it would "intrude beyond the scope of the case and into the government's decision making authority."

The suit, spearheaded by several advocacy groups on behalf of three dozen immigrant families, accuses the government of detaining families in conditions that aren't properly sanitized and that are too crowded to allow for safe social distancing.

According to the groups, hundreds of people had begun to show tell-tale symptoms by the time the suit was filed in March, yet were not being tested or treated for their illness.

The suit centers around three residential detainment centers in Pennsylvania and Texas that only house families, and where hundreds continue to languish under the threat of the pandemic and being separated from their children, according to the suit.

The groups argue that because the threat of contracting the illness is strong enough in the facilities, it effectively becomes a punishment, and precedent says pretrial punishment is a violation of due process rights.

But Judge Boasberg said he was encouraged by evidence the government is working to steadily bring down the population in those centers by releasing families, as well as the fact that no one has yet tested positive for COVID-19 in any of the facilities.

The facilities are now down to 10 to 11% capacity, which surely must be a good sign, the court said.

"What you're asking for is the immediate release of everybody else based on conditions, and I just don't think I have the capacity to do that," the judge said. "I don't see that the conditions at this point by themselves rise to the level of a due process violation."

But Morgan Lewis & Bockius LLP attorney Susan Baker Manning, who represents the families, told the court that any benefit gained from reduced capacity is erased by the detention center's decision to close off parts of the facilities and move people closer together.

The attorney used her time before the court to make the case for viewing length of detention as a due process violation.

"The fact that some of them get out in comparatively short periods of time is obviously good, but we are extremely concerned that we are getting down to a population that is effectively stuck and going to be warehoused in these dangerous conditions," she told the court.

More than 1.5 million people across the country have been diagnosed with COVID-19, the disease caused by the novel coronavirus, and 93,000 are confirmed to have died from it as of Wednesday.

The families are represented by Susan Baker Manning of Morgan Lewis & Bockius LLP.

The 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.

--Additional reporting by Alyssa Aquino, Suzanne Monyak and Khorri Atkinson. Editing by Philip Shea.

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