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Federal judge rules DHS cannot hold migrant children in hotels before expelling them

Judge Dolly Gee of the US District Court for the Central District of California ruled Friday that the Department of Homeland Security (DHS) must end their practice of holding migrant children in hotels before they can be expelled from the US.

On March 20, the Centers for Disease Control (CDC) ordered the US borders with Canada and Mexico to be closed and for anyone traveling from those countries, regardless of their country of origin, to be removed from the US. An August 26 report found that “25 hotels across three states have been used to house 660 minors between the ages of 10 and 17, 577 of whom were unaccompanied.” The average stay in these hotels was five days.

This action is based on the 1997 Flores Agreement, which provides protections to minors detained in the “legal custody” of DHS. The agreement requires that unaccompanied minors must be placed in a licensed program to provide care services for minors, be provided with safe and sanitary conditions and have access to counsel.

The court noted that the Office of Refugee Resettlement shelters were 97 percent vacant as of August, and their 10,000-bed capacity could have held these migrant children instead of putting them in hotels. While the COVID-19 emergency situation could permissibly slow down the placement of these minors into shelters, the court found that the hoteling program has “fully replaced” any shelter placements.

There was a “lack of qualified, specialized supervision, especially for younger, unaccompanied children” in the hotels, which violated the safety requirement of the Flores Agreement. The court also found that oversight of the program was “vague and minimal.” Additionally, their COVID-19 safety protocols were found to be insufficient. The hotels are located in high transmission areas, hotel staff are not monitored and testing is only performed when migrants are about to leave the country.

Legal services providers have faced “unusual difficulty” in locating children, and DHS officials are often “unable to provide accurate information as to where a child is at any given moment.” Attorneys were prevented from entering the hotels to talk to their clients, and children’s access to attorneys on the phone has been limited.

The court ordered DHS to stop placing minors in hotels by September 15 except for short stays while in transit and for the children to be allowed access to counsel. Neha Desai of the National Center for Youth Law, who brought the case, stated, “While the government keeps insisting on violating the basic human rights of children, thankfully the courts are here to uphold the rule of law.”