Court Upholds Ban On Detaining Migrant Children In Hotels Without Legal Counsel

A ban on holding immigrant minors in hotels without legal counsel has been upheld by the 9th Circuit Court of Appeals. The ban was originally placed by a district court on Sept. 4, but the government applied for an emergency stay on the order ahead of further appeals. That stay has been denied.

The suit in district court was provoked by extended stays in hotels by migrant children in the custody of the Department of Homeland Security. The plaintiffs alleged that minors were taken into custody, held in hotels where they did not have access to due process or legal counsel, and then deported under the guise of COVID-19 safety.

The court sided against the DHS, finding that migrant children were held on average for “‘just under five days,’ but 25 percent had been held for more than 10 days, with a maximum stay of 28 days.” Of the 660 minors held, 577 were unaccompanied by an adult. The conditions were reported in July by an independent monitor installed by the courts.

These conditions violate the Flores agreement, a 1997 settlement named for a 14-year-old Salvadorean girl who was strip-searched, housed with adult male detainees, and refused release to family members.

The Flores agreement mandates that minors held by the DHS be transferred to a licensed program if held for more than three days. Even children not yet in a licensed program are supposed to have access to legal counsel. The agreement and subsequent rulings do provide contingencies for scheduling issues or emergencies such as chickenpox outbreaks, but minors should be transferred to licensed facilities “as expeditiously as possible.”

After being held in hotels, minors were expelled from the U.S. According to Justice Department lawyer Scott Stewart, they are deported to prevent the spread of COVID-19.

“The idea is turn away as quickly as possible, at the border, potential vectors of infection,” Stewart told the Associated Press.

The appellate decision notes that the CDC requested in March that the DHS suspend the “introduction into the United States [of] persons traveling from Canada or Mexico who would otherwise be introduced into a congregate setting.”

That order has been extended indefinitely. It also called for “the movement of all aliens [covered by the order] to the country from which they entered the United States, or their country of origin as rapidly as possible, with as little time spent in congregate settings as practicable under the circumstances”

In her original decision on the case in district court, Judge Dolly Gee wrote: “That is no excuse for [the DHS] 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 called housing children in hotels a violation of “fundamental humanitarian protections.”

Many outraged by the practice find little comfort that the courts have ordered a stop to the practice since deportations without due process are still ongoing.

“The true problem here is not the hotels, it's the expulsions. Just because [the Department of Homeland Security] has stopped using hotels does not mean that children are not being expeditiously expelled without any due process, without any chance to seek asylum,” said Taylor Levy, an immigration attorney.

Leecia Welch, an attorney with the National Center for Youth Law, agreed in an interview with the Associated Press about the original ruling.

“The government’s attempt to use the pandemic as a subterfuge to carry out its ruthless immigration agenda clearly violates the rule of law and human decency,” she said.