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Law360 (April 6, 2020, 11:31 PM EDT )
The federal government urged a California federal judge not to order the release of unaccompanied migrant children from custody and ICE family detention centers, arguing that the government is abiding by release terms outlined in a 1997 settlement and the deal shouldn't be reinterpreted because of the pandemic.
In a 42-page brief, the government said U.S. District Judge Dolly Gee got it wrong when she concluded in March that any "unexplained delay" in releasing unaccompanied immigrant children violates the terms of the 1997 so-called Flores settlement, under which the federal government must provide minors in their care with special consideration.
"This reading of the agreement, however, incorrectly adds to the requirements of ... the agreement, and thereby alters the plain terms of the agreement as it was agreed to by the parties and entered by this court in 1997," the brief says.
The brief is the latest filing in the long-running Flores class action. Advocates for the minors had sought a temporary restraining order in March, asking the court to order the government to release detained immigrant minors within seven days, unless they are a flight risk or there is other good cause not to free them, in order to protect them against the coronavirus.
The timeline would have been quicker than the currently required 20 days as part of the settlement agreement.
On March 27, Judge Gee ordered detention facilities in states that have 3,000 or more confirmed cases of COVID-19 to open themselves up for inspection to confirm implementation of the Centers for Disease Control and Prevention guidelines on COVID-19, and to provide legal and immigration advocacy groups with detailed data sought on children being held.
But the judge's order stopped short of requiring a quick release of the more than 3,000 children currently in custody, as she said a mass release of minors would not guarantee their conditions would improve.
Still, Judge Gee required the government to respond with the efforts it has taken to protect children from contracting the coronavirus at the California detention facilities.
In its brief Monday, the government argued that it is following federal public health guidelines at facilities. The brief says the facilities have also reduced their populations and they are operating at reduced capacity. As of April 5, at least one facility is only housing one family per bedroom to encourage social distancing "to the greatest extent possible," the brief says.
The government also notes in the brief that the facilities have increased their soap and hand sanitizer stock and have offered detainees personal protective equipment upon request. Additionally, the staff has taken other preventative measures like cleaning certain areas multiple times a day, the brief says.
The government argued that ultimately there's no requirement in the Flores settlement that the government must release class members without "unexplained delay," but even so, the government is making efforts to release detainees promptly and safely if an appropriate custodian is available.
The government added that Judge Gee shouldn't alter the process that ICE has followed for years.
"The understandable concern with this novel disease does not mean the court should 'reexamin[e]' longstanding terms of the agreement, nor supplement the plain meaning of the existing terms with new requirements," the brief says.
In a separate case on Monday, the government also asked U.S. District Judge Terry J. Hatter not to grant an injunction that would order the government to release adult immigrants detained in Adelanto Detention Center in California's San Bernardino County because of the health and safety risks of contracting COVID-19 at the center.
The injunction bid came after Judge Hatter found that ICE was being "deliberately indifferent" and acting with "callous disregard" with respect to the detainees' potential exposure to the virus.
But in its brief, the government argued that Judge Hatter misapplied the law and ignored evidence showing that detainees have access to medical care. The brief says the judge also ignored that ICE implemented preventative measures, including isolating potential coronavirus patients, to protect detainees and staff, even though there's no legal requirement to ensure detainees don't contract COVID-19.
"The law does not require the government to represent or ensure that no one in Adelanto will ever be infected with the coronavirus," the brief adds.
Also, the government argued that the detainees do not face an irreparable injury, that their request includes "conclusory allegations or generalized hearsay regarding the alleged risk they face" and that their requested relief is not in the public interest.
But Michael Skocpol of Kaplan Hecker & Fink LLP, who represents the detained adults, told Law360 Monday that the government's filing proves it is refusing to heed the advice of public health experts.
"It's egregious that ICE persists in locking people up when the dangers of this pandemic are so obvious," Skocpol said. "The government should be focused on keeping us safe, not packing people into death traps like Adelanto Detention Center. This should not be controversial: detaining hundreds of people in crowded facilities, without adequate health care or hygiene or social distancing, is a recipe for disaster."
Representatives and counsel for the government and the Flores class didn't immediately respond Monday to requests for comment.
The Flores class is represented by Carlos Holguin and Peter A. Schey of the Center for Human Rights & Constitutional Law, Holly S. Cooper of the University of California, Davis School of Law, Bill Ong Hing with the University of San Francisco School of Law Immigration Clinic, Stephen Rosenbaum of La Raza Centro Legal Inc., Jennifer Kelleher Cloyd, Katherine H. Manning and Annette Kirkham of the Law Foundation of Silicon Valley, and Bridget Cambria of Aldea-The People's Justice Center.
The Adelanto Detention Center detainees are represented by Joshua A. Matz, Kyla Magun, Dylan Cowit and Michael Skocpol of Kaplan Hecker & Fink LLP and Mark Rosenbaum of Public Counsel.
The government is represented in the Flores case by Nicole N. Murley and Sarah B. Fabian of the DOJ's Civil Division. The government is represented in the other case by Mariam Kaloustian also of the DOJ's Civil Division.
The cases are Jenny Flores et al. v. Loretta Lynch et al., case number 2:85-cv-04544, and Pedro Castillo et al. v. William Barr et al., case number, 5:20-cv-00605. Both are in the U.S. District Court for the Central District of California.
--Additional reporting by Craig Clough. Editing by Amy Rowe.
Update: This story has been updated to include additional counsel for the Adelanto Detention Center detainees.
For a reprint of this article, please contact reprints@law360.com.
