All migrant children, including those who entered the U.S. illegally during the COVID-19 pandemic and were expected to be expelled from the country, must be placed in licensed facilities rather than hotels, a federal appeals panel ruled Wednesday, upholding a Los Angeles federal judge’s order.
The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed a judge’s decision that the so-called Flores settlement agreement — which set standards for the treatment of children in detention and ordered their quick release in most cases — applies to minors who illegally crossed the border in the midst of the pandemic.
Last summer, a court-appointed monitor overseeing implementation of the Flores agreement told U.S. District Judge Dolly Gee that immigration officials were using hotels to place minors pending expulsion, in violation of the settlement.
Gee subsequently banned DHS from using hotels for minors, except for emergency stays of no more than 72 hours until a bed opened up at a licensed facility. The appellate court denied the government’s bid to stay the order.
DHS argued in its appeal that the Flores agreement only applied to children who were in the custody of the department — but it was the U.S. Centers for Disease Control and Prevention that was in charge of a coronavirus-related public health order that resulted in the prompt removal of migrants who crossed illegally from Mexico during the pandemic.
The appellate panel rejected the argument, concluding that DHS has legal custody over such minors because it maintains physical control and exercises decision-making authority. In February, the CDC temporarily excepted unaccompanied minors from expulsion, reversing a Trump administration order.
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