Migrant Children Can No Longer Be Secretly Held in Hotels, But Advocates Continue to Worry Children May Still Be Expeditiously Expelled Without Any Due Process
Guest blogger: Violeta Velazquez, law student, University of San Francisco:
On September 4, 2020 District Court Judge Dolly Gee ordered the Trump Administration to halt using hotels to hold migrant children caught at the border before expelling them. In her decision, Judge Gee stated that keeping children in hotels violated fundamental humanitarian protections under the Flores Settlement Agreement.[1]
The Flores Agreement stems from a 1977 case, Flores v. Reno[2], which requires the government to release children from immigration detention without unnecessary delay to their parents, other adult relatives, or non-secure licensed facilities, generally through the Office for Refugee Resettlement (ORR) within three to five days. [3] The agreement also stipulates that unaccompanied migrant children must have access to lawyers, safe and sanitary facilities, and other safeguards while the government seeks their prompt release. [4]
The 9th Circuit Court of Appeals upheld the lower court’s decision to ban the use of hotels on October 4, 2020[5] agreeing with District Judge Gee that the practice of holding immigrant children in hotels and quickly expelling them without access to lawyers violated the Flores Settlement Agreement.
Since the Pandemic began back in March, The Trump administration began instituting a shadow immigration system near the U.S. – Mexico Border, in which private contractors would detain migrant children in hotels without access to lawyers for about three to five days, though sometimes for weeks, before deporting them back to their home countries. In many instances, parents or relatives were unable to find out the whereabouts of the child. In one case, a desperate father living in Texas called the Honduran Consulate, only to be told his son was on an express deportation list, but given no further details as to his whereabouts.[6] His son was able to call him on one occasion, but was forbidden to tell him where he was located.[7] In that case, thankfully the father was able to obtain legal assistance from KIND, who was able to get his son transferred to a shelter for minors. But this was the exception.[8] For most of the minors who were kept in hotels, they would be quickly expelled after entering the U.S.
Since March, the U.S. has placed at least 577 unaccompanied children in hotel rooms without before deporting them without a chance to request asylum or other protections per the Flores Settlement Agreement.[9]
The Trump administration claims it’s allowed to quickly expel immigrants including children under a COVID Rule, issued by the CDC in March, Title 42 of the Public Health Safety Act. This act allows the temporary suspension of entry of any persons that might introduce a disease into the United States.[10] In total, the U.S. under this rule has expelled about 147,000 immigrants since March which includes about 8,8000 unaccompanied children.[11]
Though the Trump administration claimed it had to expel all people crossing the border including unaccompanied children, due to public health and preventing the spread of Covid-19, it’s quite clear that this is a pretext for restricting asylum. In the case of the unaccompanied children, The Trump administration had actually been testing all the children before sending them back to their home countries.[12] Essentially, the children had already been tested and proven not to be infected with COVID-19 virus, but were still being boarded onto planes and deported anyways.
While the decision by the Appeals Court to uphold District Judge Gee’s decision gives protection to accompanied and unaccompanied minors who now must be placed in licensed facilities, many advocates continue to express concern about expeditious expulsions without due process continuing. One immigration attorney, Taylor Levy speaking to CBS news said, “The true problem here is not the hotels, it’s the expulsions. Just because [the Department of Homeland Security] has stopped using hotels does not mean that children are not being expeditiously expelled without any due process, without any chance to seek asylum.”[13]
This administration has proven to be relentless and cruel when it comes to attacking immigrants including their right to seek asylum. They have no regard for families, women, or children. While this is an important decision and victory, immigrants’ rights advocates will likely continue to remain vigilant and ready to call out this administration’s attacks on immigrants.
[1] “Judge Orders DHS to Stop Holding Illegal Immigrant Families in Hotels.” Washington Times. September 4, 2020.
https://www.washingtontimes.com/news/2020/sep/4/judge-orders-dhs-stop-holding-illegal-immigrant-fa/
[2] Reno v. Flores, 507 U.S. 292 (1993).
[3] The Flores Settlement and Family Incarceration: A brief History and Next Steps Fact Sheet.” Human Rights First. October 2018. https://www.humanrightsfirst.org/sites/default/files/FLORES_SETTLEMENT_AGREEMENT.pdf
[4] “U.S. stops holding migrant children in hotels, but says they can still be expelled.” CBSNews. October 2, 2020. https://www.cbsnews.com/news/u-s-stops-holding-migrant-children-in-hotels-but-says-they-can-still-be-expelled/
[5] “Appeals Court Upholds Ban on Holding Migrant Kids in Hotels.” ABCNews. October 4, 2020. https://abcnews.go.com/Politics/wireStory/appeals-court-upholds-ban-holding-migrant-kids-hotels-73423799
[6] “Shadow Immigration System: Migrant Children Detained In Hotels By Private Contractors.” NPR. August 20, 2020. https://www.npr.org/2020/08/20/904027735/shadow-immigration-system-migrant-children-detained-in-hotels-by-private-contrac
[7] Id. at 6
[8] Id. at 6.
[9] Id. at 5
[10] “ICE is making sure migrant kids don’t have COVID-19, then expelling them to “prevent the spread” of COVID-19.” The Texas Tribune. August 10, 2020. https://www.texastribune.org/2020/08/10/coronavirus-texas-ice-migrant-children-deport/.
[11] Id. at 5.
[12] Id. at 5.
[13] “Appeals court rules Trump administration can’t detain young immigrants in hotels.” The Hill. October 5, 2020.
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