Tuesday, October 6, 2020
Panel Declines to Extend Stay, Pending Appeal, of Order by Judge Gee
By a MetNews Staff Writer
The U.S. Ninth Circuit Court of Appeals has denied a motion by the Trump Administration to allow it to continue detaining migrant children in hotels before expelling them from the United States under rules it says is protecting the nation from the spread of the coronavirus.
Circuit Judges William A. Fletcher, Marsha S. Berzon, and Milan D. Smith Jr. issued the order Sunday, a day before a temporary stay pending appeal expired.
The unanimous panel concluded that the federal government failed to prove that orders issued by District Judge Dolly A. Gee of the Central District of California were unduly onerous or would cause irreparable harm.
Gee ordered the U.S. Department of Homeland Security (“DHS”) to transfer all minors currently housed in hotels into licensed facilities and put a stop to keeping minors in public lodging facilities for any longer than three days. Rejecting the government’s contention that there is a danger to the detainees of infection in crowded facilities, she said in her Sept. 21 order:
“The public also has an interest in preventing the spread of COVID-19, and as this court has now reiterated on multiple occasions (and as defendants have yet to refute), placing minors in licensed, regulated facilities, with proper safety protocols, would likely do more to mitigate the spread of the virus than housing them in hotels open to the public.”
According to an independent monitor appointed by Gee, DHS had placed 660 minors between the ages of 10 and 17 in 25 hotels across three states as of August. Of that number, 577 were unaccompanied, and a quarter of them had been held between 10 and 28 days.
The government argued Gee’s orders improperly modified the terms of a 1997 settlement agreement governing the treatment of minors held in federal custody by requiring DHS to take actions beyond the scope of the agreement.
Under the Flores Agreement—reached in a case filed in 1985 in the District Court for the Central District of California—minors in federal custody must be transferred to a licensed federal program within three days. Plaintiffs seeking to enforce the agreement argued the government’s “hoteling” program is a violation of the terms.
DHS and the Department of Health and Human Services (“HHS”) have been trying to nullify the 1997 agreement since before the pandemic. Gee denied the government’s motion to terminate the agreement in September 2019, and the appeal is pending.
Exception to Rule
The government noted that the agreement makes an exception to the three-day rule “in the event of an emergency” and, it argued, the pandemic constitutes an emergency. The opinion responds:
“Nothing in the present record establishes that the COVID-19 pandemic prevents the government from placing minors in licensed programs within three days….[T]he capacity of the government’s shelters for unaccompanied minors—10,000 vacant beds as of August 22. 2020—appears more than adequate to accommodate the number of unaccompanied minors who need licensed placements, taking COVID-19 safety protocols into account….
“The government has not shown that the district court’s orders require it to take actions not required by the Agreement. We therefore conclude that we likely do not have jurisdiction over the appeal, and that for that reason, the government has not shown a strong likelihood of success on the merits.”
The opinion adds that the government has not “offered testimony from any public health official explaining why holding minors in hotels, which are open to the public, presents less risk of COVID-19 exposure and spread, both to the minors and to the public, than holding them in licensed facilities.”
The case is Flores v. Barr, 20-55951.
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