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Law360 (July 1, 2021, 6:41 PM EDT ) The Ninth Circuit has brushed off claims from the government that children facing expulsion from the U.S. under a public health policy are not subject to the same standards of care as other minors who cross the border.
In its Wednesday ruling, a unanimous appeals court panel rejected the government's contentions regarding children set to be removed under Title 42, a public health rule imposed last spring with the stated intention of limiting the spread of COVID-19.
Initially, the rule allowed U.S. Department of Homeland Security officials to send back all non-U.S. persons arriving by land from Mexico or Canada. In February, the federal Centers for Disease Control and Prevention, the agency that issued the rule, officially exempted unaccompanied minors from the policy. Children who arrive with adult family members are still being expelled.
The government has argued that minors subject to expulsion under the regulation are actually in the custody of the CDC and not DHS, the agency responsible for their arrest, detention and removal.
That argument held no sway with the appeals court.
"DHS apprehends the minors; DHS decides, apparently unilaterally and with no explanation or articulated standards, whether to expel them under Title 42 or to detain them for removal proceedings under the immigration statutes; DHS decides where and for how long to hold them (the Title 42 Order says nothing whatsoever about detention in hotels); and DHS provides for their physical needs, including medical care," wrote U.S. Circuit Judge Marsha S. Berzon in the panel opinion.
The district court suit arose after DHS was found to be detaining minors in hotels, sometimes for weeks at a time prior to expelling them from the U.S.
Under the terms of a 1997 class action settlement known as the Flores agreement, DHS must abide by certain standards in the care it provides to minors who cross the border. The terms include keeping them in "safe and sanitary" conditions and transferring them to a licensed care provider within three days.
In a pair of decisions, the district court ruled against DHS, finding that hotels did not meet the agreement's "safe and sanitary" requirement, but ultimately granted the agency leeway to use them in emergency situations for up to three days.
The panel determined that it had jurisdiction to hear the government's appeal on the second order, finding that it was a sufficiently final post-judgment order and with meaningful impact on the settlement agreement.
"The September 21 Order has a significant impact because it makes clear that the Agreement applies to minors expelled under the Title 42 Order and requires the government to comply with the Agreement as to those minors," the panel said.
Since, in the panel's view, the district court's orders were consistent with the settlement agreement and did not modify it, the appeals court had no reason not to affirm the lower court's ruling.
The government's earlier argument that ending its use of hotels for Title 42 child removals would cause irreparable harm had been weakened by the CDC's decision to exempt minors and DHS' own compliance with the order.
"Should the government seek to 'use hotels for custody related to Title 42 in the future, either during the current pandemic or a future public health emergency,' it retains the option of moving to modify the consent decree to permit that practice. If the district court denies the government's motion, we will have jurisdiction to review the denial under 28 U.S.C. [Section] 1292(a)(1)," the panel said, citing the same statutory authority it used to review the instant appeal.
Counsel for the parties did not immediately respond to requests for comment Thursday.
U.S. Circuit Judges William A. Fletcher, Marsha S. Berzon and Milan D. Smith Jr. sat on the panel for the Ninth Circuit.
The Flores settlement class is represented in the appeals by Carlos R. Holguin of the Center for Human Rights & Constitutional Law and Leecia Welch, Neha Desai, Mishan Wroe and Melissa Adamson of the National Center for Youth Law.
The government is represented by Brian Boynton, August E. Flentje, William C. Peachey, William C. Silvis, Sarah B. Fabian and Nicole N. Murley of the U.S. Department of Justice.
The cases are Flores v. Garland et al., case numbers 20-55951 and 20-56052, at the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Andrew Cohen.
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