Judge Orders Release of Detained Migrant Children to Halt Coronavirus Spread

ICE's largest detention facility for families in Dilley, Texas, can hold up to 2,400 people. (Julie Small/KQED)

Updated Tuesday, March 31, 12:20 p.m.

With four children in immigration custody diagnosed with COVID-19, a federal judge in Los Angeles has ordered government officials to swiftly release the nearly 4,000 migrant children in their care.

U.S. District Court Judge Dolly M. Gee issued an order Saturday evening that the Trump administration should “make every effort to promptly and safely release” migrant children from government custody. Gee said by April 6, federal officials must report to the court on their efforts to release children and reunify families.

The order came after a request from attorneys who, for more than 20 years, have represented children in immigration custody under a consent decree known as the Flores Settlement Agreement. Gee oversees compliance with the longstanding settlement, which protects the rights and the welfare of detained children.

“We are relieved for thousands of detained children that the court has intervened to keep these children as safe as possible during this COVID-19 health crisis,” said lead plaintiffs’ attorney Peter Schey, with the Center for Human Rights and Constitutional Law in Los Angeles. “Judge Dolly Gee's order that the government must promptly release all children to available sponsors may save children's lives.”

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The ruling covers both unaccompanied children who are in the custody of the Office of Refugee Resettlement, part of the U.S. Department of Health and Human Services, as well as migrant children who are locked up with a parent in one of three so-called “family residential centers” operated by U.S. Immigration and Customs Enforcement.

In addition to the four children with COVID-19, all of them in an ORR shelter in New York, six staff members at three separate ORR facilities in New York also tested positive for COVID-19, as well as one staff member at a Texas facility and one ORR foster parent in Washington state, according to the refugee agency.

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“ORR is currently locating and notifying anyone that may have been exposed at these care provider facilities,” Lydia Holt, a spokesperson with ORR, said in a statement. “Out of an abundance of caution, ORR has stopped placements of [unaccompanied migrant children] in the states of California, New York, and Washington. ORR is prioritizing local placements for all new referrals from [the U.S. Department of Homeland Security] to limit air travel when possible.”

In addition, Gee noted, at least one child in ICE custody is under quarantine and awaiting results of a COVID-19 test.

ORR currently has about 3,200 children in 107 shelters and other facilities around the country, a spokesperson said Monday. ICE reported 1,244 parents and children in its family detention facilities as of Monday, but would not say how many are children. In February 2020, ICE had 3,359 children in detention, according to Schey.

Gee noted that even before the coronavirus crisis, both agencies had spotty track records for promptly releasing children to live with family or sponsors while their immigration cases proceed.

Gee cited an analysis from late December that found that almost 12% of children in ORR’s care had been in custody for six months to a year. And she pointed to a report from legal advocates that, as of last week, in the ICE family facility in Dilley, Texas, “at least 22 minors have been detained more than 160 days, 10 have been detained for over 200 days, seven have been detained for more than 220 days, and one has been detained for 229 days.”

Gee had ruled previously that children should generally be released from jail-like settings not licensed for child care, including ICE family detention facilities, within 20 days. The Flores settlement requires children to be released "without unnecessary delay" to a parent or guardian, another relative or an approved sponsor.

In her order Saturday night, Gee wrote: “Because COVID-19 poses unprecedented threats to the safety of [migrant children in custody] and all who come in contact with them ... the Court finds that any unexplained delay in releasing a child in ORR and ICE custody violates [the Flores settlement]. ...”

The judge’s order found that “ORR apparently still fails to address recommendations related to social distancing, personal hygiene, or personal protective equipment ...” but said the refugee agency was taking steps to comply with guidelines from the Centers for Disease Control and Prevention.

By contrast, she wrote, ICE “appears deficient ... .” She added, “Nor does the ICE Guidance recognize the potential psychological harm of quarantining or isolating children for the duration of this pandemic.”

Gee ordered officials at both ORR and ICE to submit to facility inspections, including videotaping of living conditions, and to report by April 9 on how full their facilities are, and whether they’re complying with public health guidance from the CDC.