June 10, 2023

Federal judge halts Trump administration policy detaining migrant children in hotels

Judge Dolly Gee of the U.S. District Court in Los Angeles is best known for a series of decisions on immigration in which she has often ruled against the government. She is the first Chinese-American woman appointed to a federal trial court and she says her upbringing was shaped as the child of immigrants. She was appointed by President Obama.

Friday Judge Gee ruled against the Trump administration’s recently implemented practice of placing migrant children (and some families) in hotels to mitigate exposure to the coronavirus. Migrant children are detained in hotel rooms while arrangements are made for them to be deported. Gee points to the Flores Agreement as guidance for her ruling. The Flores Agreement, signed into effect during the Clinton administration, set limits on the length of time and conditions under which children can be incarcerated in immigration detention. Judge Gee ruled that the coronavirus cannot be used as an “excuse for DHS to skirt the fundamental humanitarian protections” of the Flores Agreement.

“This court is sensitive to the exigencies created by COVID-19 and recognizes that the pandemic may require temporary, emergency modifications to the immigration system to enhance public safety. But that is no excuse for [the Department of Homeland Security] to skirt the fundamental humanitarian protections that the Flores Amendment guarantees for minors in their custody, especially when there is no persuasive evidence that hoteling is safer than licensed facilities,” she wrote.

Gee added that “the Court is obliged to ensure that minors in DHS custody are not left in a legal no-man’s land.”

With this ruling, border agencies must halt the placement of children in hotels by Sept. 15 and remove those already there as soon as possible. Her opinion is that hotel rooms do not provide a safer place for illegal migrant children during the coronavirus pandemic than do federal detention centers. Since March, at least 577 unaccompanied children have been placed in hotels in Texas and Arizona. They remain in hotels until they are placed on deportation flights.

Judge Gee opines that the Trump administration “cannot seriously argue in good faith that flouting their contractual obligation to place minors in licensed programs is necessary to mitigate the spread of COVID-19.”

The Friday ruling orders the government to resume sending unaccompanied children to Department of Health and Human Services’s (HHS) shelters where they can receive legal services, education and the opportunity to be placed with relatives already in the U.S. The ruling also gives immigration lawyers access to children the government is trying to deport under an emergency declaration put in place during the pandemic, and it applies to children with parents who crossed the border with no authorization.

An argument frequently heard since the outbreak of the coronavirus throughout the country has been that detainees should just be released because detention centers are facilities that are ripe for the spread of the virus among detainees. This kind of argument usually comes from those who prefer open borders or less stringent measures to uphold immigration laws. Nonetheless, the Trump administration has continued to work to secure the borders. Wouldn’t it be a humane move to detain illegal immigrant minors outside the facilities, if they are so dangerous to the health of detainees, in a taxpayer-funded hotel room until arrangements are completed to deport them? Wouldn’t it be a comfortable arrangement? Of course, it would. I would argue it is a very generous arrangement. Judge Gee’s ruling doesn’t sound so “sensitive”, does it? It sounds like she just wants to continue her streak of rulings against the Trump administration’s immigration policies, especially since her ruling does allow the minors to be detained for a night or two as they travel between locations. Why not leave them in one spot until final arrangements are in place?

Back in March, it was the CDC that issued a directive that addressed rapid expulsions of illegal migrants in order to curb the spread of the coronavirus. Since then U.S. officials have, as rapidly as possible, expelled the migrants to Canada or Mexico. The judge makes it sound as though minors are just checked into a hotel and left unattended to wait for deportation. That’s not the case. There is a protocol in place and the minors are supervised. Are they as free as they would be if they were released into the general population? No. They shouldn’t be.

While single migrant adults are being expelled directly to Mexico or Canada, hundreds of unaccompanied children and families with minors have been held in hotel rooms while they await to return to their home countries on flights chartered by U.S. Immigration and Customs Enforcement (ICE). Inside these hotels, children and families are supervised by private contractors hired by ICE and generally not allowed to call lawyers or present their case for asylum if they fear returning to their home countries, according to attorneys and court documents.

The judge wrote that it isn’t CDC personnel but DHS that are the ones who process and detain minors and ultimately decide whether they should be expelled. The Trump administration maintains that the minors don’t fall under the Flores Agreement. The CDC released a final rule codifying its authority to direct DHS to expel the illegal immigrants due to a pandemic. The open-borders crowd, as you’d expect, disagrees.

Citing the CDC order, the Trump administration has argued it can exclude unaccompanied minors from this process. On Friday, the CDC published the text of a final rule that would codify the CDC’s authority to direct DHS to expel unauthorized migrants during a pandemic. The rule argued that unaccompanied children processed under public health authorities are generally not entitled to safeguards in the 2008 anti-trafficking law or the Flores settlement.

“This regulation makes clear that the CDC is fully complicit with the Trump administration’s use of the COVID-19 pandemic to turn away refugees,” Aaron Reichlin-Melnick, a policy counsel at the American Immigration Council, told CBS News.

Friday’s ruling also requires the administration to allow lawyers in the Flores case, as well as independent monitors Gee appointed, to visit facilities where minors processed under the CDC order are held to conduct interviews and oversight.

“We are thrilled that the Court unequivocally stripped away the government’s legal fiction that these children are not in ‘immigration custody,’” Neha Desai, one of the lead Flores attorneys and the director of the immigration division at the National Center for Youth Law, told CBS News. “While the government keeps insisting on violating the basic human rights of children, thankfully the courts are here to uphold the rule of law.”

The Justice Department will likely appeal the judge’s ruling.

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