A federal judge in Washington, D.C., has barred President Donald Trump’s administration from deporting any more migrant children who arrived to the U.S.-Mexico border by themselves, chipping away at a policy that U.S. border officials have been using for months to quickly remove more than 200,000 migrants during the COVID-19 pandemic.
U.S. District Judge Emmet Sullivan issued a preliminary injunction on Wednesday ordering the U.S. Department of Homeland Security to stop expelling unaccompanied migrant children using an emergency order published by the U.S. Centers for Disease Control and Prevention under Title 42 of the U.S. Code.
That policy has allowed U.S. border and immigration officials since March to hold migrant children in custody — in holding facilities or hotels in border states like Texas and Arizona — and then quickly expel them to Mexico or other countries, without the possibility to seek asylum and in defiance of court-mandated protections for unaccompanied minors in the U.S.
Four groups, including the American Civil Liberties Union, filed the lawsuit against the Homeland Security Department and Acting Homeland Security Secretary Chad Wolf in August, arguing that the public health provisions under Title 42 do not authorize the expulsion or removal of migrants, and especially children.
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“Today’s ruling is a critical step in halting the Trump administration’s unprecedented and illegal attempt to expel children under the thin guise of public health,” ACLU lead attorney Lee Gelernt said in a written statement.
“The administration’s order has already allowed for the rapid expulsion of more than 13,000 children in need of protection, who were legally entitled to apply for asylum,” Gelernt said.
In his two-page order, Sullivan created a class-action suit but limited the scope of his injunction only to unaccompanied minors and not to the children who traveled to the border with a parent. These families remain subject to expulsion under Title 42.
Sullivan denied a request from the U.S. Justice Department to stay the order pending an appeal, meaning the U.S. government cannot continue expelling unaccompanied migrant children while the case is litigated in court.
The U.S. government has used the CDC order to expel 204,787 migrants processed at the U.S.-Mexico border since March, according to statistics from U.S. Customs and Border Protection. Those numbers do not include statistics from October.
The Homeland Security and Justice departments have not responded to requests for comment about whether officials intend to appeal Wednesday’s ruling.
Lawyers for the Justice Department argued in court that Title 42 granted the U.S. government the authority to block the entry of certain people in order to contain the spread of communicable diseases.
DHS said the expulsions under Title 42 are necessary to protect the health of border agents and officers and of the American public. It argued that taking migrants into custody at permanent holding facilities would lead to COVID-19 outbreaks that would be difficult to contain.
Under U.S. law, the federal government must provide special protections for unaccompanied children who arrive at the U.S.-Mexico border. That includes placing them into the custody of the U.S. Department of Health and Human Services’ Office of Refugee Resettlement.
While many of the shelters for unaccompanied minors had ample space to take in migrant children arriving at the border during the pandemic, border and immigration officials placed them instead in holding facilities or hotel rooms, sometimes for days at a time, before they were expelled.
“It has taken months and a suit against the government to confirm what we already knew: The Trump administration cannot weaponize a pandemic to destroy long-established protections for children with a shadow system of zero accountability. We will continue to keep this administration and the next, in check,” said Karla Marisol Vargas, a senior attorney with the Texas Civil Rights Project, which also filed the suit.
Should the government appeal Wednesday’s ruling, the case could carry over into the incoming administration of President-elect Joe Biden.
Biden has stated that he will review or reverse a number of Trump’s restrictive immigration policies, including the CDC order under Title 42. However, his team has not disclosed how he would approach the policy.
