Judge finds government is violating protections for migrant children during pandemic

The federal judge overseeing a 1997 court settlement that governs the care of migrant children in U.S. government custody ordered the Trump administration on Friday to promptly release minors from immigration detention, finding yet again that officials are violating the long-standing agreement.

Judge Dolly Gee of the U.S. District Court in Los Angeles found that U.S. Immigration and Customs Enforcement, which detains migrant families with children, and the Office of Refugee Resettlement, which has custody over unaccompanied minors, are both violating the Flores Settlement Agreement during the coronavirus pandemic, for distinct reasons.

Over the years and throughout different administrations, Gee has found that the government has violated elements of the settlement, primarily its requirement that migrant children be released from custody without “unnecessary delay.” But Friday’s order considered the risks faced by immigrants detained in close quarters during a deadly, global pandemic. In a different order last month, Gee called immigration detention centers “hotbeds of contagion.”

The order applies to the approximately 2,100 unaccompanied minors in ORR custody, as well as the 342 children held with their families at the three ICE family detention centers. 

Through Friday’s order, Gee required both ICE and the U.S. refugee agency to “make every effort to promptly and safely” release the children in their custody who have sponsors, don’t pose a danger to themselves or others and are not flight risks. She prohibited the agencies from using certain justifications to continue detaining minors. 

Gee said the U.S. refugee agency can’t block the release of children with sponsors simply because they were formerly in Mexico with their family under the Migrant Protection Protocols and have a pending case linked to that program. Some parents returned to Mexico under the MPP policy have sent their children to seek asylum alone at the U.S. southern border, since unaccompanied minors can’t be placed in the program, per government policy. 

ICE, meanwhile, can’t justify not releasing families with children because they are named in federal litigation or due to the fact that they are waiting for a decision by an immigration judge or for officials to adjudicate their credible fear screenings, the first step in the asylum process.

Gee also ordered the U.S. refugee agency to temporarily waive the fingerprint requirement for some immediate family members, distant relatives and unrelated adults seeking to sponsor unaccompanied migrant minors. While coronavirus shelter in place orders remain in effect, she said officials can release minors to these sponsors without fingerprinting them if that is not available, as long as red flags don’t show up in their background checks. The sponsors also have to agree to submit fingerprints “as soon as practicable.”

Friday’s order stems from a request by lawyers involved in the decades-long Flores litigation for Gee to order the government to rapidly release all children with sponsors. This week, the lawyers said the need for the release of minors is particularly urgent as the coronavirus continues to spread throughout facilities for detained immigrants. 

At least 59 migrant children in ORR-overseen facilities in New York, Texas, Illinois and Pennsylvania have tested positive for coronavirus, according to the agency’s latest tally. ICE has not reported any cases at the three family detention centers in Texas and Pennsylvania, but has identified at least 317 positive coronavirus test results among adults in its custody and 35 among direct detention center employees, as of Friday.

Gee said ICE deserved “some credit” for moving away from a “laggardly initial response” and implementing a “rapidly-evolving response to the pandemic” in the wake of the litigation by the children’s lawyers. She also said she appreciated that ICE has released dozens of families in recent weeks. But she said the lawyers, through first-hand accounts from detained immigrants, have undercut the “optimistic portrait of the implementation” of the agency’s coronavirus guidelines.

Peter Schey, one of the two attorneys who filed the original lawsuit that prompted the Flores agreement, praised Friday’s order.  

“I think Judge Gee’s order will result in an acceleration of the release of both accompanied and unaccompanied minors in the coming days and weeks as the judge made very clear the government’s current policies are in breach of the settlement,” Schey told CBS News.

Officials at ORR and ICE did not respond to requests to comment on Friday’s order.