The Trump administration has quietly stopped its controversial practice of holding migrant children in hotels before expelling them from the southern border, though it says these minors can still be quickly removed from U.S. soil under emergency coronavirus restrictions.
U.S. Immigration and Customs Enforcement (ICE) has not held migrant minors in border-area hotels since September 11, an agency spokesperson told CBS News on Thursday. The confirmation of the previously undisclosed policy shift follows a court declaration, signed on September 17, in which ICE official Mellissa Harper said the number of migrant minors who were awaiting expulsion at a hotel had dwindled to zero.
Despite this shift, unaccompanied children and families with minors who cross or arrive at the U.S.-Mexico border without documents — just like single adults — can still be expelled from the country under a Centers for Disease Control and Prevention (CDC) directive issued in March, Customs and Border Protection (CBP) spokesperson Matthew Dyman told CBS News on Thursday.
"The CDC order allows for everyone to be amenable to expulsion," Dyman said. "Anyone can be infected with COVID."
Taylor Levy, an independent immigration attorney in El Paso, said she continues to receive cases of unaccompanied children whom border officials seek to expel. On Thursday, Levy said she helped halt the expulsions of two Central American teenagers who are now going to be allowed to stay in the U.S. while their immigration cases are adjudicated.
"The true problem here is not the hotels, it's the expulsions," Taylor told CBS News. "Just because DHS has stopped using hotels does not mean that children are not being expeditiously expelled without any due process, without any chance to seek asylum."
It is unclear why exactly U.S. immigration officials closed, at least temporarily, their unprecedented border hotel detention system for migrant children, which was overseen by personnel from MVM, an ICE contractor. ICE did not provide an explanation or say whether it would resume its use of hotels, saying in a statement it could not provide further comment due to ongoing litigation.
"Any temporary housing of minors will comply with all legal requirements," an ICE spokesperson said.
On September 4, Judge Dolly Gee of the U.S. District Court in Los Angeles ordered the Trump administration to stop holding migrant children in hotels, absent limited three-day stays, finding that the makeshift detention system violated the Flores Settlement Agreement, which stipulates that undocumented minors in U.S. custody need to have access to lawyers, safe and sanitary facilities and other safeguards while the government seeks their prompt release.
But that ruling is not in effect due to several orders by the 9th Circuit Court of Appeals, which has placed an administrative stay on Gee's mandate. On Wednesday, a three-member panel of 9th Circuit judges extended the stay to next Monday.
During a hearing Wednesday, Judge Marsha Berzon, one of the members of the 9th Circuit panel, asked Scott Stewart, the Justice Department lawyer representing the government, whether immigration officials had stopped placing children in border hotels.
"My understanding is that that's the situation at the time, your honor. I don't know all the reasons for that," Stewart responded. "But, again, I would emphasize that time in hotels is meant to be very quick."
"We've been in this kind of odd limbo for some period of time with administrative stays, your honor, where the agencies are gearing up to, you know, maybe they're going to need to comply all the sudden, maybe not, so ... they've taken some caution," Stewart added.
After Berzon said "I have no idea what you just said" and asked Stewart whether the government was complying with an order it was not bound to, the Justice Department lawyer responded: "No, your honor, what I'm saying is that, you know, it's hard to gear up and close down this operation. And I think they keep seeing they're on the eve of the order taking effect multiple times in recent weeks, so ... I think there's been some difficulty with going full speed ahead."
Since March, U.S. authorities along the southern border have carried out more than 159,000 expulsions — including of 8,800 unaccompanied children — under the CDC order, which the administration says is designed to prevent potentially infected migrants from spreading the coronavirus inside the country. While most single adults have been expelled directly to Mexico, hundreds of unaccompanied children and families with minors were held in hotels prior to their expulsion from the U.S.
Lawyers and advocates have denounced the hotel detention system as secretive, saying children were essentially held isolated before being summarily expelled from the U.S. without the opportunity to seek asylum.
The administration has used the CDC order to circumvent certain legal safeguards for migrant children, including a 2008 anti-trafficking law that requires border officials to transfer non-Mexican unaccompanied minors to the Office of Refugee Resettlement, which holds them in shelters until they are released to sponsors.
Between April and July, the refugee agency received 330 migrant children, even as border officials recorded more than 5,900 apprehensions of unaccompanied minors during the same time span. The population of children in the agency's care dropped to approximately 800 in late July, a more than a decade low.
But the number of children being transferred to the Office of Refugee Resettlement has increased significantly in recent weeks. Border officials made 423 referrals in August, when more than 3,000 arrests of unaccompanied minors were recorded, according to data obtained by CBS News.
During the first three weeks of September, the refugee agency received 568 migrant children, according to court documents. While it received zero referrals on several spring and summer days, in one September day, the agency received 32 children. At the end of September, 1,680 minors were in Office of Refugee Resettlement custody, according to agency statistics provided on Friday.
Trump administration officials have said Gee's order, if implemented, would overburden ICE family detention centers and U.S. refugee agency shelters and hinder efforts to contain the coronavirus inside these facilities. In a court declaration, Office of Refugee Resettlement deputy director Jallyn Sualog said two of the newly admitted children tested positive for coronavirus, while 170 were in quarantine after her agency determined they had been exposed to the virus.
Advocates, however, have said the refugee agency can safely take in migrant children, noting that it has approximately 13,000 empty beds.
Neha Desai, one of the attorneys in the Flores settlement case and the director of the immigration division at the National Center for Youth Law, said that while hotel detention of children has temporarily ceased, the administration's policies and court requests still raise concerns.
"Simply because they were no children in hotels at a specific point in time, does not mean that the government has abandoned their use of hotels," Desai told CBS News. "In fact, they are vigorously litigating to ensure that they have continued ability to detain children in unlicensed facilities, including hotels. Moreover, the government continues to demonstrate a reckless, disregard for the lives of vulnerable children as they continue to summarily expel these children."
While they extended their stay of Gee's order, the panel of 9th Circuit judges on Wednesday expressed skepticism over the administration's argument that children it wants to expel under the CDC order are not entitled to Flores agreement safeguards.
In one exchange, Judge William Fletcher pressed Stewart, the government attorney, on why immigration officials could not provide children in hotels access to attorneys, highlighting a declaration that said a detained minor was instructed not to tell her mother where she was.
"Sometimes, you know, letting people have lawyers, even if you're not obliged to, might be a good idea. I mean this strikes me almost as a scofflaw, when there's a plausible argument — in fact I think it's an argument you may be about to lose — as to whether or not the Flores Agreement applies, and the government says, 'well, we don't think it applies, so you don't get a lawyer,'" Fletcher said.
Stewart said Fletcher was relying on a "number of hearsay statements" and reiterated that hotel detention is designed to be "short-term."
"I might have something better than what I have on the record if you allowed access," Fletcher countered.