The Government's Detention of Children in Motels Violates the Flores Settlement Agreement
Between April and July 2020, over 650 immigrant children from ages 0-17 years old were transferred from CBP to ICE custody, detained in motels, and then expelled from the United States under the Title 42 Order. Many of these children - including babies and toddlers - were held in motels for over a week. This is an egregious violation of these children's rights under the Flores Settlement Agreement. The government's detention of children in motels for days on end instead of placement in licensed facilities is a flagrant violation of its legal obligations. Moreover, this forces already vulnerable children into a situation that further threatens their health, safety and wellbeing.
Members of Congress Call for End to Expulsions of Children, Demand Answers from DHS and CDC
NCYL has worked diligently to educate congressional offices on the harms faced by immigrant children unlawfully expelled under the Title 42 CDC border closure order. On Friday, October 30, 58 Members of Congress sent a letter to Department of Homeland Security (DHS) Acting Secretary Chad Wolf and Centers for Disease Control and Prevention (CDC) Director Robert Redfield demanding an end to the Trump Administration's expulsion of unaccompanied children at the border without due process. The letter, endorsed by the National Center for Youth Law, also requests information regarding how the expulsions were implemented, who the children are, if the children are being tested for COVID-19, and if the children's welfare and development are being protected. The letter requests responses to these questions by November 13.
Ninth Circuit Denies Government's Emergency Motion for Stay of District Court Order
On September 24, the Government filed another motion to stay the September 4 District Court order in the Ninth Circuit. NCYL and co-counsel filed an opposition to the requested stay on September 25. On September 30, the Ninth Circuit held a hearing, in which the judges questioned why the children in motels were not given access to lawyers and why the Government was refusing to place children in the many available licensed facilities.
On October 4, the Ninth Circuit denied the government's request for a stay, finding that the Government was unlikely to succeed on the merits of its appeal and had not established a likelihood of irreparable injury. Although further briefing on the merits had been set for October 16 and November 6, respectively, the Ninth Circuit instructed the parties that they are not required to file further briefs unless the brief is “nonrepetitive” and addresses points “not already discussed in the stay briefing.”
District Court Denies Government's Emergency Motion for Stay
On September 17, the Government filed a motion to stay the September 4 District Court order in district court. NCYL and co-counsel filed an opposition to the requested stay on September 18. On September 21, the district court denied the Government's request for a stay, noting that the Government did not "provide any support for their bewildering logic that a public health law designed to prevent the introduction of persons and diseases into the United States somehow allows DHS to detain minors in hotels open to the American public but not house them in monitored, regulated, licensed facilities." The district court ordered DHS to cease placing minors at hotels immediately as of September 28, with a limited exception for "brief hotel stays (not more than 72 hours) as necessary and in good faith to alleviate bottlenecks in the intake processes at licensed facilities." Order, p. 5.
Ninth Circuit Denies Government's Emergency Motion for Stay of District Court Order
On September 11, the Government filed a motion to stay the September 4 District Court order pending appeal with the Ninth Circuit. NCYL and co-counsel filed an opposition to the requested stay on September 15. On September 16, the Ninth Circuit denied Defendants' request for a stay based on Defendants' failure to first request a stay from the District Court. The Ninth Circuit extended the administrative stay through September 23 to permit the Government to move for a stay before the District Court, and granted the Government's request for an expedited appeals hearing. The Government's opening brief is due on October 16, and Plaintiffs'/Appellees answering brief is due November 6.
Judge Rules Government May Not Exploit Title 42 to Send Children in Their Legal Custody "Off Into the Night"
On September 4, Judge Dolly Gee granted a motion brought by the National Center for Youth Law and co-counsel. The Court held that the federal government cannot continue to place or hold immigrant children in unmonitored and unlicensed motels for weeks on end before expelling them from the United States, affirming they should not be “left in a legal no-man's land, where no enforceable standards apply.” This decision is a huge win in the ongoing fight to protect vulnerable immigrant children. Read the order here. Read our statement here.
Plaintiffs' Reply to Government's Opposition to Motion to Enforce the Settlement Regarding "Title 42" Class Members
On August 28, Plaintiffs filed a reply to the government's Opposition to Motion to Enforce the Flores Settlement Agreement. Plaintiffs' motion to enforce asked the Court to order the government to acknowledge that children designated by expulsion under “Title 42” are class members in accordance with the Flores Settlement. This reply includes a detailed summary of the numbers of unaccompanied and accompanied children expelled or awaiting expulsion under Title 42 or reprocessed to Title 8 in July. There is a court hearing on the matter scheduled for September 4. Read the Reply here.
Plaintiffs' Motion to Enforce the Settlement Regarding "Title 42" Class Members
On August 14, Plaintiffs filed a motion to enforce the Flores Settlement Agreement. This motion asks the Court to order the government to acknowledge that children designated by expulsion under "Title 42" are class members in accordance with the Flores Settlement, which requires children to be placed in licensed facilities and to have access to attorneys, among other protections. This filing includes several powerful declarations by legal services providers describing the extreme difficulty attorneys face in locating children detained in motels as well as the harm experienced by children detained in such conditions (Exhibits A-F, pages 29-83). The government is expected to file their opposition by August 21, Plaintiffs will submit a reply by August 28, and there is a court hearing on the matter scheduled for September 4. Read the Motion to Enforce here.
Flores Order Re: August 7 Status Conference
During an August 7, 2020, status conference, Judge Dolly Gee acknowledged that the hoteling of children is a disturbing and urgent issue that needs to be addressed immediately unless Defendants intend to end the practice. To determine if the hoteling of children violates the Flores Agreement, she has ordered an expedited briefing process. Additionally, Judge Gee expressed dismay at the hearing over the government's failure to expeditiously release children in ICE custody because of the COVID-19 pandemic - which she has clearly called for in previous orders. Read the order here.
Plaintiffs' Report on Parties' Conference regarding “Title 42” Class Members
On July 29, NCYL and co-counsel requested the court to recognize that children designated by expulsion under “Title 42” are class members in accordance with the Flores Settlement Agreement, which requires children to be expeditiously placed in licensed facilities, to be released without delay to sponsors, to have access to attorneys, and for Plaintiff's Counsel to have monitoring access, among other protections. Read the filing here.
Response to the Government's Objections to the Independent Monitor's Interim Report Regarding Temporary Housing for Minors and Families under Title 42
On July 25, NCYL and co-counsel filed a detailed analysis of government data from April, May, and June 2020, showing that over 200 unaccompanied children were detained in motels by ICE. The data analysis shows that the number of children detained in motels and expelled from the country has increased rapidly each month - 29 children in April, 71 children in May, and 120 children in June, with an additional 20 children still detained at the end of June. Read the analysis here.