Appeals Court Upholds Ban on Holding Migrant Children in Hotel Detention

October 5, 2020 Updated: October 5, 2020

A federal appeals court denied a Trump administration request to hold a lower court’s ruling that ordered it to end its practice of detaining children asylum seekers in hotels while arrangements are made to expel them from the country.

The practice was implemented as part of an immigration policy designed to curb the spread of the CCP (Chinese Communist Party) virus pandemic when the Centers for Disease Control and Prevention (CDC) issued an order in March closing the U.S. border with Mexico and Canada.

The three-judge panel of the 9th Circuit Court of Appeals on Oct. 4 rejected the request to urgently stay the district court decision, pending appeal, that found children who were brought over or crossed over illegally into the United States during the pandemic are entitled to protections under the 1997 Flores settlement agreement.

The Flores agreement is a court ruling that states minors who cross the border illegally can’t be detained for more than 20 days and requires children in the custody of the Department of Homeland Security (DHS) to be housed in facilities that meet certain standards as well as be given certain standards of care.

The panel stated (pdf) that the federal government has failed to show that it would suffer irreparable harm if it were to comply with the lower court’s order to stop detaining children and families in hotels while the appeal is pending.

The March order called for certain foreigners to be removed from the United States and returned to their country of origin, or another practicable location, as quickly as possible. The order has been extended twice and the second time it was extended indefinitely.

As part of this policy, the DHS has been using hotels to temporarily house accompanied and unaccompanied children for multiple days before they are removed from the country.

Citing an independent monitor, the district court stated that 660 minors between the ages of 10 and 17 were being housed in 25 hotels in three states, where 577 of them were unaccompanied.

An official from U.S. Immigration and Customs Enforcement told CBS News that it hasn’t held children asylum seekers in hotels since Sept. 11. However, children asylum seekers and families who cross the U.S.-Mexico border illegally are still subject to expulsion under the March order, a Customs and Border Protection spokesperson told the news outlet.

In her ruling in early September, U.S. District Court Judge Dolly Gee in Los Angeles found that this practice breaches the DHS’s duty under the Flores agreement because children are meant to be placed in licensed programs after arrest, if no qualified adult or entity can take custody. Moreover, she ruled that the practice of hoteling lacks oversight and raises concerns about the standard of care for young children.

She also found that children and families have trouble in accessing a lawyer and that legal services providers have claimed that they face unusual difficulty locating children who are held in hotel detention.

Although Gee acknowledged that the Trump administration may make changes to the immigration system to protect public safety against the pandemic, it is still “no excuse for DHS to skirt the fundamental humanitarian protections that the Flores Agreement guarantees for minors in their custody, especially when there is no persuasive evidence that hoteling is safer than licensed facilities.”

“While the legality of the Closure Order generally is beyond the scope of this Court’s jurisdiction, the Court is obligated to ensure that minors in DHS custody are not left in a legal no-man’s land, where no enforceable standards apply,” Gee wrote.

She ordered the department to cease placing children in hotel detention by Sept. 15, with the exception of one- to two-night stays while in transit or prior to flights. She also ordered DHS to “transfer all minors—both accompanied and unaccompanied—currently held in hotels to licensed facilities.”

Leecia Welch, the senior director of Child Welfare at National Center for Youth Law, who brought the motion, said in a statement on Twitter in reaction to the appeals court ruling, “It is a sad fact that court involvement was needed once again to ensure the basic safety of children.”

The Justice Department and the Department of Homeland Security didn’t immediately respond to The Epoch Times’ request for comment.

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