Judge rules border agents can’t use COVID-19 order to expel migrant children

A federal judge on Wednesday ordered border authorities to stop expelling migrant children without letting them seek humanitarian refuge, dealing a blow to a pandemic-era policy the Trump administration has used to curtail legal protections for minors in U.S. immigration custody.

In a two-page order, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia said unaccompanied migrant children who are taken into custody by border officials must be afforded the safeguards Congress established for them and placed in shelters overseen by the government during their immigration proceedings.

“This cruel and unlawful policy, like so many others from the Trump administration, was putting thousands of children in grave danger,” Lee Gelernt, the top American Civil Liberties Union lawyer in the case, told CBS News. “Not surprisingly, all three federal judges who have looked at it have concluded it should be halted.”

Since mid-March, U.S. officials at both land borders have been summarily expelling most migrants who lack valid travel documents, sending them to Mexico, Canada or their home countries without affording them the opportunity to see an immigration judge or talk to an asylum officer.

By the end of September, authorities along the U.S.-Mexico border had carried out more than 200,000 summary expulsions, including of more than 9,000 unaccompanied minors. Wednesday’s order does not prohibit officials from continuing to expel adults or families with children.

The Trump administration has portrayed the Centers for Disease Control and Prevention (CDC) orders that have authorized these expulsions as necessary to prevent COVID-19 outbreaks inside migrant holding facilities and border communities. It has cited a legal authority dating back to a late 19th century law that allows the U.S. government “to prohibit, in whole or in part, the introduction of persons” who may spread a communicable disease inside the U.S. 

But advocates for migrants have denounced the unprecedented emergency policy as another attempt to gut humanitarian protections for border crossers, whom the Trump administration has often accused of exploiting the U.S. asylum system to enter the country for better economic opportunities. President Trump’s top immigration enforcement officials have strongly defended the order, casting it as instrumental to containing the pandemic.

However, three former Trump administration officials told CBS News that the White House pressured the CDC to authorize the policy in March, overruling career experts who believed there was no sound public health justification to give border officials the power to effectively shut U.S. borders to migrants, including asylum-seekers and children.  

One of the protections partially suspended through the expulsions policy is a provision in a Bush-era law that requires border officials to quickly transfer unaccompanied migrant children to the Office of Refugee Resettlement, which houses the minors in shelters and other facilities while it seeks to release them to sponsors, who are typically family members in the U.S.

In an opinion Wednesday, Sullivan, an appointee of former President Bill Clinton, said the public health law cited by the Trump administration does not authorize expulsions, reaching the same conclusions made by two other federal judges who have reviewed the policy. He also rejected the Justice Department’s argument that public health law overrides the legal protections Congress created for migrant children during a pandemic. 

Sullivan certified all unaccompanied migrant children who are or will be in U.S. custody as class members in the court case and blocked the government from summarily expelling them. They will be represented by the ACLU in future proceedings.

President-elect Joe Biden’s team has pledged to direct the CDC and homeland security officials to review the expulsions order so that migrants are allowed to make asylum claims. Any changes to the policy, Mr. Biden’s advisors have said, will be guided by public health experts.

In a statement to CBS News on Thursday, Mark Morgan, the head of Customs and Border Protection (CBP), said Sullivan’s order “jeopardizes the health and safety” of his agents. 

“If this ruling stands, our brave CBP personnel will be forced to come into prolonged contact with countless illegal aliens who are potentially infected with COVID-19,” he added. “Putting lives in jeopardy in the midst of an ever-growing global health pandemic is irresponsible and makes no sense.”

Morgan said CBP officials will continue expelling migrant adults and families with children, who are not class members in the litigation mounted by the ACLU.

The Department of Justice, which could appeal Wednesday’s order, did not offer any comment.

Wendy Young, the president of Kids in Need of Defense, a U.S. non-profit that provides legal assistance to migrant minors, applauded Sullivan’s decision.

“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,” Young said. “The United States is capable of determining the protection needs of these children while at the same time addressing public health concerns.” 

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