Outside the Beltway

Judge Orders Children Released from Detention Centers

The federal judge who oversees treatment of detained immigrant children has had enough.

James Joyner · Saturday, June 27, 2020 · 6 comments

CNN (“Judge rules migrant children in government family detention centers must be released due to coronavirus“)

The US government must release migrant children held in the country’s three family detention centers by mid-July due to the coronavirus pandemic, a federal judge ruled Friday.

The ruling is part of an ongoing effort to release immigrants held in detention who are particularly susceptible to the coronavirus given the confined settings at facilities and the potential for spread.

In her order, Judge Dolly M. Gee of the US District Court for the Central District of California called for the swift removal of migrant children who are at one of the three family detention centers, which are run by Immigration and Customs Enforcement and located in Texas and Pennsylvania.

The children must be released with their parents or to “available suitable sponsors or other available COVID-free non-congregate settings” with the consent of their parents or guardians, Judge Gee said.

As of June 8, there were 124 children in ICE custody, according to the ruling. The ruling, which calls for children to be let go by July 17, applies to children who have resided at the three facilities for more than 20 days.
The efforts, Gee wrote, must be made with “deliberate speed.”

NYT (“U.S. Must Release Children From Family Detention Centers, Judge Rules“) adds:

In her order, Judge Dolly M. Gee of the U.S. District Court for the Central District of California criticized the Trump administration for its spotty compliance with recommendations from the Centers for Disease Control and Prevention. To prevent the virus from spreading in congregate detention facilities, the agency had recommended social distancing, the wearing of masks and early medical intervention for those with virus symptoms.

“The family residential centers are on fire and there is no more time for half measures,” she wrote.

Given the pandemic, Judge Gee wrote, ICE must work to release the children with “all deliberate speed,” either along with their parents or to suitable guardians with the consent of their parents.

My initial reaction to the news was that this is obviously sound and just public policy but to wonder on what legal basis she was ruling. CNN doesn’t answer the second question and the NYT report doesn’t do so into well into the piece:

Judge Gee oversees compliance with the 1997 Flores settlement agreement that sets national standards for the treatment and release of detained immigrant children.

The Trump administration has been trying to terminate the settlement for the last two years, but those efforts have been blocked by Judge Gee and are currently being appealed to the U.S. Court of Appeals for the Ninth Circuit.

I must admit to being unfamiliar with the Flores agreement. The link above is to a NYT report from last year about new DHS regulations that were trying to supplant the agreement (presumably, unsuccessfully) and notes bipartisan discomfort with it:

The Obama administration, which battled a new surge in migrant families arriving on the border in 2014, tried and failed to get out from under the strict limits.

Further research into the agreement reveals:

• Beginning in 1985, the activist groups began a series of lawsuits against the federal government over its perceived mistreatment of alien minors in detention facilities (notably a 15-year-old Salvadoran girl named Jenny Flores), culminating in a consent decree, the Flores settlement, more than a decade later.
• This 1997 settlement led to the government agreeing to set immigration detention standards for unaccompanied alien children (UACs), particularly regarding facility conditions and the timing and terms of the UACs’ release.
• When the government entered into the Flores settlement agreement, its stated intention was to finally resolve years of litigation against the INS, but this is only partially true. Recent comments and actions by Clinton administration officials indicate that they were at least partially motivated by a desire to cooperate with the activist plaintiffs to loosen asylum rules.
• Since 1997, Flores has been significantly expanded upon by federal judges with loose border proclivities, and is now interpreted to mean that all minors in detention — accompanied by their parents or not — cannot be held for more than 20 days.
• Partially driven by Flores, the number of apprehended aliens who claim credible fear (the first step in applying for asylum) has soared — up 67 percent in FY 18 vs. FY 17, and up over 10-fold from a decade ago. Moreover, only 3.5 percent of UACs are ever removed, according to DHS.
• Congress could pass a law superseding Flores, but has yet to do so.

The settlement itself was pursuant to a 7-2 Supreme Court ruling in Reno v. Flores (1993) written by the late Justice Antonin Scalia that upheld existing immigration regulations as within Constitutional bounds. The Clinton Administration nonetheless continued good faith negotiations and changed the rules four years later.