A federal court has blocked the Trump administration from continuing to deport unaccompanied migrant children under a program that allowed immigration officials to summarily expel asylum seekers arriving at the southern border on account of the Covid-19 pandemic.
At least 13,000 such children have already been deported under the policy, often with little if any notice to their parents or legal counsel and even if they show no symptoms of the virus. Others have been held in hotels along the border for extended periods of time under the program.
That’s in spite of the fact that immigration officials are required to transfer migrant children within 72 hours of their apprehension to the Department of Health and Human Services’ Office of Refugee Resettlement, where they would be provided with a lawyer and the opportunity to pursue asylum and other forms of legal protection in the US.
In a ruling Wednesday, US District Judge Emmet Sullivan found that the Trump administration illegally invoked the pandemic to achieve its longstanding goal of keeping out asylum seekers.
One of the plaintiffs in the lawsuit challenging the policy, a 16-year-old identified only as P.J.E.S. in court filings, had fled his home country of Guatemala after receiving death threats due to his father’s political opinions and because he refused to join a gang. He sought to join his father, who is currently living in the US and awaiting deportation proceedings. But when he arrived at the southern border, he was taken into custody by US Customs and Border Protection in McAllen, Texas, and subjected to the rapid expulsion program.
Since the ACLU filed its lawsuit challenging the policy, the government voluntarily took P.J.E.S. out of the rapid expulsion program and sent him to an HHS facility.
The Trump administration began expelling migrants to Mexico in March under Title 42, a section of the Public Health Safety Act, that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.”
Trump had previously relied on a series of interlocking policies to make the asylum system all but inaccessible for the vast majority of people arriving on the border. That included a program under which tens of thousands of asylum seekers were sent back to Mexico to wait on their immigration court hearings in the US and agreements with Central American countries that allowed immigration officials to deport migrants who had passed through those countries on their way to the US.
But the Title 42 expulsions largely replaced those policies as the Trump administration’s primary means of keeping out migrants amid the pandemic. The administration has made it effective until the director of the Centers for Disease Control and Prevention determines that the further spread of Covid-19 has “ceased to be a serious danger to public health.”
While President-elect Joe Biden has vowed to dismantle most of Trump’s policies on the border once he takes office, he has left open the possibility of maintaining the Title 42 program at least temporarily. But it’s not clear that there is a public health rationale for keeping the policy in place, given that the level of community transmission inside the US is already so high.
Immigrant advocates have argued that the US can safely continue to give protection to vulnerable immigrants.
“This policy is counter to our nation’s longstanding commitment to protecting refugees, including unaccompanied kids on the move, and the court rightly enjoined it,” Wendy Young, president of the legal aid group Kids in Need of Defense, said in a statement on Wednesday. “The United States is capable of determining the protection needs of these children while at the same time addressing public health concerns.”