By Craig Clough

Law360 (March 26, 2020, 10:50 PM EDT) -- Attorneys in a long-running class action sought an emergency order Thursday to quickly release migrant children in government custody who crossed the border alone to protect them from COVID-19, a move that came on the same day it was announced three detained children were diagnosed with the virus.

The plaintiffs urged U.S. District Judge Dolly Gee of the Central District of California to approve the motion for a temporary restraining order requiring the government to release minors within seven days unless the youths are a flight risk or there is other good cause not to free them.

The conditions in the detention facilities render it "nearly impossible for detained class members to engage in the required infection control policies, such as social distancing and increased hygiene, necessary to mitigate the risk of COVID-19 transmission," the plaintiffs said, adding that class members in defendants' congregate detention are sitting ducks waiting to contract COVID-19. "The threat of irreparable injury to their health and safety is palpable."

The plaintiffs also argued that seven days was "more than enough" time to release the minors, stating that in "the vast majority of cases, delay releasing class members is attributable either to (1) entirely elective investigatory measures, or (2) administrative torpor or indifference."

A settlement agreement signed in 1997 as part of the long-running Flores class action established a 20-day limit on detaining migrant minors and bedrock standards of care for migrant children. The Flores agreement has continued to make headlines since President Donald Trump took office and made legal attempts to challenge the regulations in the agreement and detain children indefinitely.

In the Thursday motion, the plaintiffs said that "the balance here tips decidedly in favor of plaintiffs' interest in health and safety. Unless this court intervenes, class members are likely to suffer serious and severe irreparable harm, including potential exposure to COVID-19 and the effects thereof should they become infected. No purported government interest justifies subjecting children to these conditions."

The plaintiffs added, "Under present circumstances, it is reasonable and necessary to order defendants to promptly release children to available custodians, or if they are not entitled to release under Paragraph 14, to transfer them to non-congregate settings, or justify why it has done neither. Unless they are a flight risk or a danger, or there is good cause for not doing so, minors should generally be released within seven days."

The filing comes on the same day that the Office of Refugee Resettlement announced that three unaccompanied migrant children in government custody have tested positive for the coronavirus, making them the first announced positive cases among children in the agency's care.

"The Office of Refugee Resettlement (ORR) is committed to providing for the safety and well-being of unaccompanied alien children (UAC), as well as protecting the health and safety of the communities in which these children live," the ORR said in a statement Thursday. "Out of an abundance of caution, ORR has stopped placements of UAC in the states of California, New York, and Washington. ORR is prioritizing local placements for all new referrals from DHS to limit air travel when possible."

The U.S. Department of Justice and counsel for the plaintiffs did not immediately respond to a request for comment.

The 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 federal government is represented by August E. Flentje and Sarah B. Fabian of the DOJ's Civil Division.

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

--Editing by Jill Coffey.

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