Flores Update

On March 26, counsel for the children under the Flores Settlement filed an emergency action asking the court to order the release of all children and the government to comply with CDC guidelines for avoiding the spread of infection in detention facilities where thousands of children detained by ORR (Office of Refugee Resettlement) in shelters and by ICE in “family residential centers” were at immediate and risk of contracting Covid-19.

On March 28, Judge Dolly Gee, who oversees the government’s compliance with the Flores Settlement Agreement, issued a nationwide temporary restraining order requiring the government to “make every effort to promptly and safely release” all the children.

On April 24, Judge Gee found a continuing failure by the government to meet its obligations to release the children. By this time dozens of immigrant children in custody had tested positive for Covid-19 in ORR shelters Judge Gee said that, “under the current extraordinary circumstances in the midst of a pandemic, the government’s obligation to release minors without unnecessary delay requires moving with greater speed to remove minors from congregate environments where a suitable custodian exists.”

Judge Gee also found that the government violated the Flores Settlement by delaying the release of children, by refusing to release children to some relatives unless the relatives were first fingerprinted, and continuing children in custody even though their legal proceedings were ongoing and therefore they could not deported. She also had concerns about the failure of ICE to follow CDC guidelines.

In recognizing the gravity of the situation, the court looked to medical expert Dr. Julie DeAun Graves who said,  “Postponing the release of children in facilities with known Covid-19 exposure is like leaving them in a burning house rather than going in to rescue them and take them to safety.”

On June 26, citing the severity of the coronavirus pandemic, Judge Gee ordered the release of all migrant children held by ICE in the three family detention centers to relatives living in the U.S. to whom detained parents want their children released. The order requires the release of all children with designated sponsors by July 17. While she cannot order the release of the parents, Judge Gee suggested that ICE use its discretion to release families together.

Judge Gee slammed ICE for its “spotty” compliance with CDC recommendations including social distancing, wearing of masks, and enhanced testing for the virus and issued specific orders for compliance with those guidelines. The government and class counsel were wrangling over language for a notice telling parents their options for release, so the date came and went.

On September 4, Judge Gee found that the federal government cannot continue to place or hold immigrant children in unmonitored and unlicensed motels for weeks on end before expelling them from the United States, affirming they should not be “left in a legal no-man’s land, where no enforceable standards apply.”

In her order, Judge Gee held that these children are protected by the Flores Settlement Agreement and stated, “DHS cannot evade its obligations under the Flores Agreement by hiding behind a different statute while exercising unfettered discretion over the minors within its care.”

Between April and July 2020, over 650 immigrant children, including infants, were transferred from CBP to ICE custody, detained in motels, and then expelled from the United States under the Title 42 Order. Many of these children – including babies and toddlers – were held in motels for over a week. This is particularly egregious as there are at least 10,000 beds available in licensed ORR shelters.

On September 18, Judge Gee again ordered ICE to release children from ICE family detention and to provide details regarding the reasons for the continued detention of each child. The judge reiterated that she does not have the authority to order ICE to release parents with their children.

On September 21, Judge Gee denied the government’s request to stay her order that they stop hotelling children as of September 28. In so ruling, Judge Gee said that Covid-19 is, “no excuse for DHS to skirt the fundamental humanitarian protections that the Flores Agreement guarantees.”

Judge Gee took the government to task, telling them that they did not, “provide any support for their bewildering logic that a public health law designed to prevent the introduction of persons and diseases into the United States somehow allows DHS to detain minors in hotels open to the American public but not house them in monitored, regulated, licensed facilities.”

On October 9, the Ninth Circuit Court of Appeals denied the government’s motion for a stay, upholding the district’s court order precluding the government from detaining children for more than three days in hotels. Even though the government has appealed that ruling, the Ninth Circuit concluded that they were unlikely to succeed.