By Craig Clough

Law360 (September 22, 2020, 5:46 PM EDT ) A California federal judge on Monday shot down the government's request to stay her earlier order barring immigration officials from detaining asylum-seeking migrant children in hotels, saying the government made no substantive new arguments in its application while demonstrating "bewildering logic."

U.S. District Judge Dolly Gee again ordered the federal government to end the practice that was implemented at the border as part of an expulsion program to purportedly curb the spread of COVID-19. The judge said the government again failed to demonstrate how putting the children in hotels was safer than in licensed facilities.

"Defendants fail to show they are likely to succeed on the merits for the simple reason that their stay application merely recycles the same arguments they made in their opposition to the motion to enforce, which the court thoroughly addressed and refuted in its [earlier] order," the judge said.

The judge added 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 [the U.S. Department of Homeland Security] to detain minors in hotels open to the American public but not house them in monitored, regulated, licensed facilities. Or for the notion that hoteling is a lawful means of processing minors 'as expeditiously as possible' when the program makes no good faith effort to actually place minors in licensed facilities."

The judge's Sept. 4 order for the government to quickly end the practice of hoteling migrant children came after a court-appointed monitor recently concluded the practice isn't "fully responsive to the safe and sanitary" needs of children. Judge Gee is overseeing the long-running class action settlement known as the Flores agreement over the well-being of detained migrant children. The agreement was reached 23 years ago on behalf of a minor migrant named Jenny Lisette Flores.

During a Sept. 4 phone hearing before the order was issued, the government tried to convince Judge Gee to delay its implementation, with government attorneys saying they were concerned about how fast the program would need to end. In response, Judge Gee agreed to stay the order until Sept. 8, but said DHS shall cease placing minors at hotels by no later than Sept. 15. 

The government filed an appeal with the Ninth Circuit seeking to stay the order but was rejected on Sept. 16. The Ninth Circuit panel said the district court was more familiar with the details of the case and "therefore in a position to evaluate the specific representations made by officials of those departments in declarations filed with this court but not in the district court concerning the likely practical effects and public health consequences of the injunction."

The Ninth Circuit did extend the temporary administrative stay of Judge Gee's injunction order to Wednesday to permit the district court to consider a request for a stay or for a modification of the injunction.

In her Monday order, Judge Gee gave the government a little more time to stop the hotel program and ordered it ceased by Monday. She also left the door open for the government to put children in "brief" hotel stays of no more than 72 hours, as long as it was "in good faith to alleviate bottlenecks in the intake processes at licensed facilities."

If class member children are placed in hotels, the judge said that the plaintiffs' counsel must be notified along with the identities of the children and their locations.

As she did previously, Judge Gee had criticized the hotel program and MVM Inc., the private contractor helping monitor the children in the hotels. The judge said the only new information provided by the government in its request for a stay was about the training the MVM "transportation specialists" receive.

"But the fact that MVM personnel receive a mere two days of training, only a fraction of which are dedicated to child development and care, before being placed alone in a room with a tender age child for hours at a time reaffirms the court's finding that hoteling is not suitable for unaccompanied minors," the judge said. 

The U.S. Department of Justice did not immediately respond to requests for comment.

"We are not surprised that the federal court has denied the government a stay of its order that immigrant children may not be detained in ICE 'hold rooms' and hotels under armed guard because the Flores settlement makes clear that children must be held in facilities licensed by a state for the care of dependent children," said Peter Schey of the Center for Human Rights and Constitutional Law, who represents the class of children covered by the Flores agreement, in an email to Law360. "This is the law as set down in the Flores settlement and the government is clearly obligated to comply with the settlement's terms despite President [Donald] Trump's ongoing efforts in court to terminate the settlement."

The children are represented by Peter A. Schey and Carlos Holguin of the Center for Human Rights & Constitutional Law.

The government is represented by Sarah B. Fabian and Nicole N. Murley of the DOJ's Office of Immigration Litigation.

The case is Flores et al. v. Barr et al., case number 2:85-cv-04544, in the U.S. District Court for the Central District of California.

--Editing by Jay Jackson Jr.

Update: This story has been updated with comment from the plaintiffs' counsel.

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