By Alyssa Aquino

Law360 (July 22, 2020, 9:50 PM EDT ) A D.C. federal judge on Wednesday refused to empty family detention centers during the pandemic, a decision that may force detained parents to choose between breaking up their families by releasing their children to a sponsor or keeping the family whole in detention.

U.S. District Judge James E. Boasberg refused to order U.S. Immigration and Customs Enforcement to release the over 200 immigrant detainees held in facilities in Texas and Pennsylvania, finding that the detainees hadn't shown that being released was the only possible means of safeguarding their health amid the COVID-19 pandemic.

"For the moment, ICE's efforts at preventing COVID-19 outbreaks at the [family residential centers] — whatever one thinks of them — seem to have yielded a moderate, though undeniably fragile, success," he wrote.

Attorneys for the detainees had pushed for a preliminary injunction forcing the government to empty the family detention centers. 

A California federal judge previously set a July 17 deadline for ICE to release minors who have been held in the detention centers for over 20 days, finding that the government was unnecessarily holding them amid a global pandemic. The order, which has since been extended to July 27, did not require ICE to release detained adults with their children, but permitted the agency to continue holding children whose release rights were waived.

Judge Boasberg acknowledged that some detainees would "now face the heart-rending choice between handing over their children, in some cases to potentially unsuitable guardians, and keeping them in the FRCs to face an unknown virus risk."

"That is a painful dilemma for any parent," he said.

The judge took note of the contradicting reports of ICE's compliance to federal guidelines to mitigate the spread of COVID-19. The government agency and the detainees' advocates had agreed that ICE had enacted certain measures to contain the virus, but the groups split on whether those practices were consistently enforced, Judge Boasberg explained.

And though no detainees at two of the centers had recently tested positive for the virus, 41 detainees in the Karnes County Correctional Center in Texas were confirmed cases, according to the order.

"It … seems fair to say that the agency, while likely trending in the right direction, continues to fall short of full compliance with its policies in practice," the judge found. However, these shortcomings weren't enough to warrant detainees' "extraordinary" request for blanket release, he concluded.

Attorneys for the detainees directed the court to Judge Dolly M. Gee's release order — which described the facilities as "on fire" — when they pushed for their clients' release. But the California judge issued the order after finding the government likely flouted their obligations under the Flores settlement, which sets bedrock standards for minors' care, Judge Boasberg said.

In contrast, the current release bid was based on detainees' due process rights. To meet that bar, the detainees had to prove that there was no other measure the government could take to protect them from contracting the virus, according to the order.

But the detainees could ask for narrower requests, such as individual bail hearings, Judge Boasberg found.

"Petitioners, fearful as we all are of contracting a novel and dangerous disease, understandably swing for the fences in seeking wholesale release. Those fences are high and hard to clear, however, as petitioners must demonstrate that no court-ordered remedy other than their release will do," the judge said.

Amy Maldonado, one of the detainees' attorneys, said the team was disappointed with the court's findings.

"Our litigation team is going to confer on next steps, but the denial of preliminary injunctive relief is far from the end of the road," Maldonado said. 

An ICE spokesperson said the agency is unable to comment due to litigation.

The families are represented by Susan Baker Manning, Karon Nicole Fowler, Maria Doukas, Michael Sikora and Sanjay Murthy of Morgan Lewis & Bockius LLP, Manoj Govindaiah of the Refugee and Immigrant Center for Education and Legal Services, Amy Maldonado of the Law Office of Amy Maldonado, Curtis F.J. Doebbler of RAICES, Sarah T. Gillman and Gregory P. Copeland of Rapid Defense Network.

The federal government is represented by Vanessa Molina of the U.S. Department of Justice's Office of Immigration Litigation and Daniel Franklin Van Horn of the U.S. Attorney's Office for the District of Columbia.

The case is O.M.G. et al. v. Chad Wolf et al., case number 1:20-cv-00786, in the U.S. District Court for the District of Columbia.

---Additional reporting by Suzanne Monyak. Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.