The Justice Department is fighting a court order that halted the use of a COVID-era loophole to detain hundreds of children in hotels rather than licensed immigration facilities and then expel them from the country without access to lawyers or deportation proceedings.

Hotel detentions for children, toddlers and infants — which sometimes lasted weeks — came about when the CDC issued a public health order March 20 that shut the border to prevent the spread of COVID-19. Under this provision, Customs and Border Protection began funneling minors who wanted asylum or lacked entry visas through a different chain of custody that bypassed protections that date back decades. These accompanied and unaccompanied children were detained under the CDC’s coronavirus order, the government said, so they weren’t privy to safeguards for children detained under immigration law.

ICE officials said in the wake of a ruling banning this practice, no unaccompanied children have been housed in hotels since Sept. 11.

Melissa Adamson, class counsel for the children at the National Center for Youth Law, called the policy particularly egregious given there are more than 10,000 beds available at licensed refugee shelters.

“The government’s detention of children in unlicensed and unmonitored hotels presents a significant risk of harm to these children, as children are supervised by private contractors who do not have licensure or appropriate training in children’s development, trauma or legal rights,” she said.

Jennifer Podkul, vice president for policy at Kids in Need of Defense, which provides lawyers to unaccompanied children, views the detentions as a symptom of a larger problem, that children who have legitimate claims for asylum are being denied due process. “In order to avoid giving these kids their rights they were stashing them in hotel rooms,” she said.

“My understanding… is that finding these kids in hotels around the country is kind of a needle in a haystack,” she said.

The majority of at least 660 child detentions between March and July occurred in Texas, including some at a Doubletree hotel in Houston. The mostly unaccompanied children were held in 25 hotels in Texas, Arizona and Louisiana, according to court documents.

The children were kept 24/7 in mid-tier chain hotel rooms and supervised by MVM Transport, an ICE contractor normally used for transportation. MVM employees undergo a few hours of training on child development and crisis intervention during their two-day orientation, according to court documents.

The government said the children play board or video games and watch TV and movies “to keep them comfortable, engaged, and at ease.” But the trial judge highlighted a finding that a “list of amenities is not a system of care for children of different ages and developmental stages.” The judge also cited a report that found “a detention experience need not require mistreatment to be traumatic for a young child.”

In late July, Roberto Lopez, a community organizer with the Texas Civil Rights Project, visited a Hampton Inn & Suites in McAllen where he witnessed two unmarked white vans loaded with children and adults and several other vans parked in the hotel lot. Lopez saw people in scrubs going from room to room or seated on chairs on several floors. On one floor, a boy who was about 2 was gripping a baby gate in a doorway as an adult on the other side of the gate played with him. Lopez heard the cries of at least one child from the hallway. Employees at a nearby taqueria told Lopez they’d made about 60 meals for the children and families in the hotel whom they understood were awaiting expulsion.

Employees working with the children later physically blocked attorneys from contacting them about their rights, according to he Texas Civil Rights Project. The nonprofit group later sued the government for summarily expelling dozens of unaccompanied minors under the CDC order without due process.

Class counsel for the accompanied and unaccompanied children say holding children under these conditions, denying them access to lawyers and licensed care providers and expelling them from the country amounts to a flagrant violation of a longstanding settlement.

U.S. District Judge Dolly Gee ruled the government had circumvented “fundamental humanitarian protections,” saying the conditions were not adequately safe nor did they “sufficiently account for the vulnerability of unaccompanied minors in detention.” Under the landmark 1997 Flores settlement, all detained immigrant children must be placed in state licensed facilities, supervised by childcare professionals and protected by due process afforded to refugees, she said.

In a footnote to her September order denying the stay, Gee called the CDC detentions “an opaque, unregulated, ad hoc program.”

The children were exposed to unnecessary risk, the judge said, because hotel staff in cities such as Houston, San Antonio, McAllen, El Paso and Phoenix moved back and forth from communities that experienced high rates of COVID-19 transmission and were exposed to travelers who could have been exposed at nearby airports.

The government has argued that the children were not protected by the order, nor were they entitled to immigration custody, since they’d entered the U.S. in violation of public health law, preventing entry during the coronavirus pandemic. The hotel stays are an emergency action, the rooms are “safe and sanitary,” and most children are expelled from the country within days, according to government lawyers.

A lawyer for Homeland Security told a panel of 9th circuit judges at a video hearing Wednesday that local communities would suffer “irreparable harm” if children stayed in licensed shelters because there isn’t enough space to comply with social distancing requirements.

U.S. Judge Milan D. Smith Jr. in California countered with the government’s own data, indicating a sharp decline in such detentions: “They’re only 3 percent occupied. They can go up to 30 percent.”

As of late August, the shelters had more than 10,000 empty beds, according to pleadings.

Deputy Attorney General Scott Stewart disputed the 30 percent cap at group shelters, saying that number was based on early and less stringent calculations about the danger the virus posed. He told another judge: “The concern, your honor, is that once we have a bottleneck, we’ve already got the problem that we were trying to avoid.”

Class counsel for the children told the appellate judges that without access or information, there is no way to accurately assess the conditions in hotels.

“They’re all over the map when it comes to the number of children and where they’re being held,” said Carlos Holguin, of the Center for Human Rights and Constitutional Law. “Frankly right now this situation with children in hotels is sort of a black hole. The government has refused to give up information on any kind of a coherent basis regarding the treatment of these children and in fact…has run out lawyers who’ve attempted to come in and assist children on a pro bono basis.”

Podkul said the government has been inconsistent in claiming its goal is to protect people from the virus. “This is an administration (that) is keeping immigrants detained in crowded ICE facilities. They’re packed even with COVID running rampant. They’re continuing deportation flights. They’re sticking kids on crowded deportation flights yet they’re claiming that they can’t legally process these children under the law. It’s absurd.”

Plaintiffs argued that legal services providers are often unaware that unaccompanied children have been detained under the CDC order unless a parent or family member calls seeking help.

The appellate judges are expected to rule by Monday on the government’s request for a stay. A Justice Department appeal of the order halting the hotel stays is also pending.

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