Updated: Apr 13, 2021
Click here to read the Courthouse News article titled Federal Judge ‘Alarmed’ Immigrant Children Still Detained During Pandemic
by Martin Macias Jr
Published August 7, 2020
LOS ANGELES (CN) — A California federal judge said Friday the Trump administration has not sufficiently explained why immigrant youth continue to be held in federal custody weeks after she ordered their release.
U.S. District Judge Dolly Gee presides over the landmark 1997 Flores settlement agreement that sets national standards on the treatment, detention and release of immigrant children in federal custody.
As cases of the novel coronavirus surged in jurisdictions where immigrant youth detention facilities are located, attorneys for class members filed motions to enforce the settlement.
They cited reports of unsafe health conditions inside facilities and unnecessary delays in granting children release to their parents, a suitable guardian or a court approved sponsor.
Gee, a Barack Obama appointee, ordered U.S. Immigration and Customs Enforcement to release detained immigrant youth who’ve been held for more than 20 days at the agency’s Family Residential Centers.
The order, which set a July 17 deadline, also requested the agency exercise its discretion by also releasing class members’ parents, a procedure Gee has no jurisdiction over.
After parties to the settlement requested a deadline extension, Gee extended it to July 27, adding that while her release mandate was likely “unenforceable by its own terms” the federal government should continue to release class members where conditions are unsafe due to Covid-19.
In a telephonic hearing Friday, Gee said she was “displeased and alarmed” that class members continue to be held in ICE facilities where active Covid-19 outbreaks are occurring.
“Defendants have done nothing to release minors by July 27,” Gee said. “It seems like a month has been squandered and defendants are not doing much of anything.”
A reason for the delays is the difficult choice parents face in deciding to approve their children’s release during a deadly pandemic, a situation made more difficult by the federal government’s decision not to release families together.
Gee blasted Justice Department attorney Sarah Fabian for failing to meet and confer with Flores counsel on release protocols, saying her action “betrayed a lack of understanding” of the court’s procedures.
“Let’s get on the same page. I have to impose a remedy whenever I find a breach,” Gee said. “A mutually agreed upon remedy is usually stronger and better thought out. I didn’t think it would be misconstrued as some permission for defendants to not comply with prior orders. My remedy may be unilateral, or one that neither side likes or one that only one side will like.”
Fabian said the federal government’s position is that it has exhausted its practice of meeting with Flores counsel to shape a policy governing the release of class members.
“That’s disingenuous because the federal government has chosen to implement the policy that has given rise for parents to be in that position,” Gee said.
Peter Schey, an attorney for class members, told Gee he believes she has authority to impose a release procedure that allows counsel to inform detained immigrant children about their rights, as long as it’s a “reasonable interpretation” of the settlement.
“I understand the need to interpret the language of a contract,” Gee said, noting her past rulings ordering the government to adopt healthier sanitation practices. “But new procedures seem to be a different animal.”
The Trump administration has also failed to provide the court a reason why detained class members continue to be held if they’re not categorized as flight risks or dangerous to others, Gee said.
“When I said my July 27 order was ‘unenforceable’ I knew defendants were not going to meet that deadline as I had wanted, but that doesn’t mean defendants don’t have a duty to comply with the settlement agreement,” Gee said.
Flores counsel has requested data on how many class members have been impacted by the coronavirus pandemic.
In a related matter, Gee ordered Fabian to report to the court whether any class members are impacted by a recent ICE practice of detaining immigrant youth in Texas hotels during removal proceedings or while in transit to other facilities.
“I found the information I received about this to be very disturbing,” Gee said.
Fabian said she will comply and added that the practice is likely covered in separate litigation.
“It’s a separate process under a separate authority,” Fabian said, adding that the regulation governing the practice — called Title 42 — has been “reissued and is still underway.”
Carlos Holguin, a Flores counsel member, asked Gee to ensure that independent court monitors can access detention facilities for inspections and receive relevant data for their reports to the court.
Gee said she need not reiterate the Trump administration’s requirement to comply with her standing order governing monitors’ access privileges.
“I want to see that data,” Gee said.
A status conference is set for Sep. 4 in the Central District of California.