A COVID loophole kept immigrant kids ‘stashed’ in Texas hotels. The US wants to make it permanent.

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.

© Joel Martinez, MBI / Associated Press

Protesters wave signs in front of the Hampton Inn hotel on Thursday, July 23, 2020, in McAllen, Texas. The government is seeking to halt an order barring officials from detaining children, toddlers and infants in hotels before expelling them to their home countries due to COVID-19 restrictions at the border.

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.”

Class counsel for these accompanied and unaccompanied children say holding children under these conditions, denying them access to lawyers, doctors and licensed care providers and expelling them from the country amounts to a flagrant violation of the government’s obligations under anti-trafficking and asylum laws.

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 newly arriving children must be supervised by state licensed 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 fact that the government cannot seem to consistently keep track of how many children it has held in its custody is disturbing, to put it mildly,” she wrote.

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 a high-turnover population of 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” to local communities 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 officials feared a bottleneck of incoming children, “The concern, your honor, is that once we have a bottleneck, we’ve already got the problem that we were trying to avoid…it’s a very delicate thing, you get the upticks, you get the increased spread of disease, you get some staff knocked out, it’s hard to make sure you have folks to care for these kids and all of a sudden the dominoes start falling, you have a real problem.”

Class counsel for the children said there is no way 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 this about protecting people from the virus. “They took advantage of the global pandemic, ” she said. “This is an administration who is keeping immigrants detained in crowded ICE facilites. 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 cant 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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