“Your ask is quite a reach, though, I think at this point and it’s one that I’m not inclined to order today, certainly,” the judge told a lawyer for the detainees during a 45-minute hearing held via telephone conference. “I think that a number of the things you sought in your complaint short of release are reasonable,” he quickly added.

Boasberg, an appointee of President Barack Obama, demanded a detailed report from the government in one week about whether it is in compliance with guidelines issued by the Centers for Disease Control for “congregate” facilities, like jails. He also said authorities must turn over videos showing how closely packed-in detainees are at the centers at issue, which are located in Dilley, Texas, Karnes City, Texas, and Berks, Pa.

Near the outset of the hearing, the judge told a lawyer for the families, Susan Baker Manning, that the request for immediate release seemed like a shift from the pleas in the suit for more humane conditions taking account of the viral pandemic.

“Aren’t you moving the goal posts here a bit?” asked Boasberg.

“We’ve obviously seen enormous change in the world with the ever-increasing pandemic,” said Manning, a partner at law firm Morgan Lewis & Bockius in Washington. “We need to put children and families out of harms way.”

Manning said she sees no way that the detention centers can comply anytime soon with recommendations from the CDC, like those calling for people to remain six feet apart.

“You still have three and four families to a room. It is not possible to social distance,” she said, emphasizing that the viral outbreak appears to be on a major upswing. “Giving ICE a couple of weeks to improve things is deeply problematic.”

A Justice Department lawyer representing ICE, Vanessa Molina, said the facilities are taking appropriate steps, like taking temperatures of incoming staff, having non-essential staff telework, and releasing some detainees to lower the head count at the centers.

The scope of releases of detained immigrants due to the pandemic is unclear. Officials have been vague about that process. President Donald Trump has reportedly expressed anger over news reports that immigration enforcement was being lessened due to the virus.

Molina asserted that the so-called family residential centers are complying with the CDC guidelines, but she said they don’t really give concrete answers about what’s needed to reduce the risk of infection to an acceptable level.

“Those guidelines state that the guidelines are malleable in response to the conditions of a confined setting,” Molina said.

So far, there have been no reported cases of Covid-19 at the three centers. However, four adult immigration detainees being held at county jails in New Jersey have tested positive, according to data posted on ICE’s website Monday afternoon.

While serious illness in children due to the virus is rare, Manning noted that the smallest sometimes get grave cases. “Younger children, they are in an enormous amount of danger,” she said.

The suit before Boasberg covered about three dozen families at the time it was filed March 20. Since then, some of those listed have been released while lawyers have sought to add others to the suit.

The suit is one of handful of cases, filed as the pandemic has grown, urging courts to protect immigration detainees or release them altogether.
On Saturday, a federal judge in California who has long overseen a 23-year-old consent decree involving the treatment of children in immigration custody issued an order finding “deficient” ICE’s policies related to the outbreak.

U.S. District Court Judge Dolly Gee, an Obama appointee, also ordered the Department of Health and Human Services to step up its efforts to release children to suitable guardians wherever possible.

Boasberg expressed worries Monday about different strands of the litigation getting tangled. “I’m concerned with interfering with her order, especially as she’s been monitoring this Flores case for quite a while,” he said.

However, Boasberg noted that Gee’s case covers only children, so may not ensure that parents in the family centers get the same protections she is enforcing for those under 18. A brief order Boasberg issued just after Monday’s arguments mandates that the adults in those detention centers be handled in compliance with CDC guidelines and all protections Gee ordered for the children last week.

A lawyer for the families, Gregory Copeland, welcomed Boasberg’s ruling.

“‘We appreciate that the Court ordered that the rights of detained children to be quickly released to sponsors are shared by their parents given the public health crisis,” Copeland said. “We hope all the families in family detention are urgently released to their sponsors as all experts agree best serves public health.”