Judge Uses Wuhan Coronavirus to Expand Flores Settlement Agreement to Cover Parents

Apparently — but it won't make much of a difference

By Andrew R. Arthur on April 29, 2020

  • A federal district court judge on Monday ordered ICE to justify the detention of parents of alien children the agency is holding at one of three family detention centers for more than 20 days, in a case filed about concerns those aliens would be exposed to the Wuhan coronavirus.
  • This order would apparently extend recent interpretations of the Flores settlement agreement, which currently only covers alien children, to their parents as well.
  • None of the detainees at the three facilities has tested positive for the disease.
  • The number of detainees at the three facilities has fallen by more than 50 percent over the past two weeks.
  • The judge has stated that he doubts that he can order emergency releases sought by the petitioners in that case.

The Washington Post reported on Monday that Judge James E. Boasberg of the U.S. District Court for the District of Columbia ordered ICE "to individually justify the detention of parents held longer than 20 days at family detention centers", premised on concerns about the spread of the Wuhan coronavirus. Judge Boasberg has not, however, apparently issued a written order to that effect (requiring me to rely on reporting), but in any event his ruling likely does not change much with respect to how those families will be detained.

This order would appear to extend the Flores settlement agreement to parents who brought their children with them when they entered the United States illegally, or when they sought entry without proper documents. My colleagues and I have written extensively about Flores, but here is the somewhat simplistic snapshot: It is a settlement agreement from 1997 addressing the conditions of immigration detention of alien children. It was subsequently interpreted in 2015 by Judge Dolly M. Gee of the U.S. District Court for the Central District of California to apply to both accompanied and unaccompanied children, and to mandate their release within 20 days.

Extension of that policy to the parents of those accompanied children likely will not make much of a difference, however. I will note that in July 2016, the Ninth Circuit affirmed Judge Gee's determination that Flores applies to accompanied children, but found she erred in ruling it requires the government to release their parents. That said, as a matter of policy, the Department of Homeland Security does not generally release accompanied children without at least one of their accompanying parents.

In an interesting passage, the Post explains:

[Judge Boasberg] said in a teleconference hearing that he doubted he had jurisdiction to order emergency releases from ICE's family detention facilities as sought by immigrant advocates who filed a class-action suit on March 31 arguing that the facilities lack hygiene and social distancing standards to prevent coronavirus spread.

The judge's reasoning is not clear from the reporting, but this shows a level of judicial restraint that has been lacking in many district-court decisions, at least since Donald Trump has assumed the presidency.

That said, I would question as a factual matter whether release is really justified even given concerns about the Wuhan coronavirus.

At issue in this case is the detention of aliens in three family detention centers: Berks Family Residential Center in Pennsylvania, the South Texas Family Residential Center in Dilley, Texas, and the Karnes County Residential Center, also in Texas. I have visited both Berks (I had jurisdiction over removal cases there as an immigration judge) and Dilley. Both are exceptionally clean and well staffed, and the respondents detained there have ample access to medical care onsite. Respectfully, the detainees at those facilities are better protected against coronavirus than they would be if they were released.

In fact, according to the government, no detainees at those three facilities have tested positive for Wuhan coronavirus. Given the fact that access to those facilities is fairly restricted (although there is not much that would keep the detainees from simply walking out), the odds of them catching the disease is almost definitely lower than it would be in the general population.

Plus, as the population at those three centers has dropped by more than half in the last two weeks (from 1,350 to 620), the ability of the detainees to "socially distance" — a key to slowing the rate of infection — has increased exponentially. Again, however, Berks and Dilley have more than ample space for social distancing even when they are at capacity, at least by my reckoning.

And, as I have noted previously in the general detention context, if they are released and get sick, those aliens will likely seek care from local emergency rooms, putting a strain on limited health resources in a time of pandemic.

Additionally, I will take issue with one final point in that article. The Post reports:

Lawyers for the Refugee and Immigrant Center for Education and Legal Services, the Rapid Defense Network and ALDEA allege that ICE facilities are like jails and that families seeking asylum are civil detainees who should not be held under punitive conditions.

Perhaps that is simply the Post's interpretation of the arguments made by those groups, but really? What jail is surrounded by a split-rail fence like Berks? In what jail are the residents/detainees/inmates ensured of receiving age-appropriate education from a state charter school, like at Dilley? Are Zoomba classes, karaoke, beauty salons, and soccer fields fixtures at jails? Because they sure aren't at any jail I have ever been to (and I have been to a lot — in a professional capacity, of course).

"Punitive?" That word comes from the past participle of the Latin word punier, which means "to punish". But the Supreme Court held almost 124 years ago that immigration detention is not punishment. In fact, it stated:

We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation. Detention is a usual feature in every case of arrest on a criminal charge, even when an innocent person [is] wrongfully accused, but it is not imprisonment in a legal sense.

And as the foregoing shows, the conditions at the facilities are hardly punitive. If anything, they are ameliorative, providing the detainees with services they would not otherwise receive.

According to Law360 (behind a paywall), the government has until May 15 to deliver Judge Boasberg "an account of what's being done to expedite the release of adult detainees as well as efforts to ensure those detained at facilities with confirmed COVID-19 cases are being protected." I hope, at the end of the day, his decision is guided by facts, not fear.