Gov’t Must Expedite Release Of Immigrant Children Amid Pandemic

Shortly after the COVID-19 pandemic triggered widespread shutdowns to protect public health in early 2020, the National Center for Youth Law and co-counsel secured a major victory for immigrant children detained in federal custody.

Nationwide TRO requires prompt release of detained children

In response to the COVID-19 pandemic and the immediate risk it posed to thousands of detained immigrant children in congregate facilities, NCYL and co-counsel filed a Temporary Restraining Order (TRO) on March 26, 2020, arguing that the Office of Refugee Resettlement (ORR) and Immigration and Customs Enforcement (ICE) must promptly release or provide justification for keeping immigrant youth in federal custody, and that ORR and ICE should implement the practices recommended by the Centers for Disease Control and Prevention (CDC) to avoid the spread of infection. 

On March 28, United States District Judge Dolly M. Gee issued a nationwide TRO requiring the federal government “make every effort to promptly and safely release” the thousands of immigrant children in federal custody. 

In April 2020, Judge Gee extended the TRO, recognizing that the “medical consensus is that any form of congregate care puts a child in custody at higher risk of infection” and that “the current pandemic makes the [Flores] Agreement’s promise to protect and expeditiously release minors even more critical to their safety.”

Court finds government failed to meet legal obligations to immigrant children during pandemic

On April 24, 2020, in a significant victory for immigrant children, Judge Gee found that ORR and ICE were in violation of the Flores Settlement and granted NCYL and co-counsel’s motion to enforce its terms. 
 
The court required the government to “make every effort to promptly and safely release” children who have suitable sponsors, stating that “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” and “[p]ostponing 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 additionally found that ORR’s fingerprint-based checks for certain sponsor categories and the policies employed by ORR and ICE regarding children who are subject to removal orders violated terms of the Flores Settlement, and required ORR and ICE to submit monthly monitoring reports regarding COVID-19 exposure in immigration facilities holding children.

In May 2020, Judge Gee issued an updated order that highlighted ongoing problems with the government’s compliance with the Flores Settlement.

In that order, the court specifically noted that “contrary to the April 24, 2020 Order, ORR has not provisionally released any minors whose vetted sponsors are unable to obtain fingerprints due to pandemic-related closures.”

The court also found that ICE had shown a lack of compliance with Paragraph 18 of the Flores Settlement, which requires defendants to “make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor,” and that the information submitted by ICE justifying the continued detention of children was “cursory” and “vague.” The court also noted ongoing concern with the implementation of public health guidelines at ICE Family Residential Centers, given the multiple declarations submitted by legal advocates detailing the unsanitary conditions of those facilities.

The court has continued to monitor the government’s compliance with its orders through status conferences and court-mandated ORR, ICE, and CBP monitoring reports.
 
NCYL has continued to monitor these facilities and remains vigilant in ensuring that children detained in government custody have their rights recognized and respected.

To read the district court order (April 10, 2020), click here.

To read the district court order (April 24, 2020), click here.

To read the district court order (May 22, 2020), click here.