Judge Finds Administration Has Unnecessarily Delayed The Release Of Children In Federal Custody During Covid-19 Pandemic
In a significant victory for immigrant children, U.S. District Court Judge Dolly Gee has determined that the federal government has failed to meet its legal obligations to children in immigration custody during the COVID-19 pandemic. Dozens of immigrant children in federal custody across the country have tested positive for COVID-19.
Today’s ruling comes in response to a motion filed by NCYL and co-counsel (Center for Human Rights and Constitutional Law and the Immigration Law Clinic of the U.C. Davis School of Law) to enforce the Flores Settlement Agreement, which governs the conditions under which immigrant children may be detained.
In granting the Motion to Enforce, Judge Gee found ORR and ICE in violation of the Flores Settlement and required them to “make every effort to promptly and safely release” children who have suitable custodians. As the court stated, “under the current extraordinary circumstances in the midst of a pandemic, ORR’s obligation to release minors without unnecessary delay requires moving with greater speed to remove minors from congregate environments where a suitable custodian exists.”
The court additionally found that ORR’s fingerprint-based checks for certain sponsor categories and ORR & ICE’s policies regarding children subject to removal orders violated the Settlement’s terms.
In response to the ruling, Leecia Welch, NCYL’s Senior Director of Legal Advocacy & Child Welfare, stated, “Now more than ever, as COVID-19 rapidly spreads through congregate care facilities, children deserve the safety and protection of their families. This ruling recognizes the enduring importance of the Flores Settlement Agreement to ensure that children are released from ORR custody without unnecessary delay and orders that bureaucratic barriers to release, such as discretionary fingerprinting, be lifted when children’s safety is not a concern.”
In recognizing the gravity of the current situation, the court quoted medical expert Dr. Julie DeAun Graves: “Postponing the release of children in facilities with known COVID-19 exposure is like leaving them in a burning house rather than going in to rescue them and take them to safety.”
The court also ordered the ORR and ICE Juvenile Coordinators to submit monthly monitoring reports, detailing: ORR and ICE’s compliance with CDC COVID-19 recommendations, measures taken to expedite children’s release, data regarding children experiencing delays in release, data regarding ORR/ICE facilities with confirmed COVID-19 cases, the timeline for medical assessments if a child has been exposed to COVID-19, plans to identify and protect children at higher risk of serious illness from COVID-19, and individualized assessments of children subject to removal orders.
Judge Gee will continue to monitor the government’s compliance with this order at a hearing on May 22. We remain hopeful that the government will fulfill its obligations to safely and expeditiously release immigrant children to their sponsors and keep children in custody safe from COVID-19, as required by the Flores Settlement Agreement.