U.S. policy of expelling migrant children without an asylum interview challenged in class-action lawsuit

Advocacy groups on Friday mounted the first class-action court challenge against the Trump administration’s unprecedented policy of expelling migrant children from the U.S. southern border without giving them an opportunity to seek humanitarian refuge.

The lawsuit, spearheaded by the American Civil Liberties Union and filed in the U.S. District Court in Washington, D.C., seeks to block border officials from citing an emergency public health order to suspend the legal safeguards Congress created for migrant children who are apprehended without their parents or legal guardians.

During the pandemic, the Trump administration has rapidly expelled tens of thousands of unauthorized migrants and asylum-seekers from the U.S.-Mexico border, saying they could spread the coronavirus inside the U.S. if processed and detained under regular immigration laws. At least 2,000 unaccompanied children have been expelled under the policy, instead of being placed in government-overseen shelters and allowed to seek asylum or other forms of relief from deportation.

While Customs and Border Protection has said its officials have carried out more than 109,000 summary expulsions along the southern border since March, the exact number of unaccompanied children expelled by the U.S. is unknown because the agency has refused to disclose recent figures, citing ongoing litigation. But statistics from the Office of Refugee Resettlement, which Congress tasked with caring for these minors, show that relatively few migrant children are being allowed to stay in the U.S during the pandemic.

Last month, for instance, officials along the U.S.-Mexico border made 2,506 apprehensions of unaccompanied minors. But only 168 migrant children — less than 7% of the total arrests — were transferred to the Office of Refugee Resettlement in July, according to government data obtained by CBS News. Due to the drop in referrals from border officials, the population of migrant children in the refugee agency’s custody has dropped dramatically, reaching less than 830 this week after standing at more than 3,500 in late March.

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While the ACLU and other groups have filed several lawsuits in recent weeks on behalf of individual migrant children, most were rendered moot after immigration officials agreed to transfer the named plaintiffs to the U.S. refugee agency. Friday’s lawsuit is the first to ask the district court in Washington, D.C, to block the use of the public health order to expel minors and to certify all migrant children as class members in the case.

“We filed this class-action lawsuit because the Trump administration left us no choice, repeatedly refusing to allow its unprecedented shadow immigration policy to be tested in the courts in an individual case,” Lee Gelernt, the lead ACLU attorney in the case, said in a statement. “The policy is the most extreme asylum ban yet from this administration, ignoring all of the protections Congress has enacted since World War II to protect children and those fleeing danger.”

The plaintiff in Friday’s lawsuit is an indigenous 16-year-old boy from Guatemala who border officials are seeking to expel under the public health order, which was first issued in March by the director of the Centers for Disease Control and Prevention. 

According to the ACLU, the boy, identified by his initials P.J.E.S., fled his Mayan community after he and his family received death threats because of his father’s political views. The teenager, who the ACLU said also fled threats from gang members who wanted to recruit him, journeyed north to reunite with his father, who lives in the U.S. But when he crossed the Texas border earlier this week, he was processed under the CDC order and is set to be expelled.

Instead of transferring unaccompanied children to the Office of Refugee Resettlement, which connects them with lawyers and child advocates as it seeks to place them with family members in the U.S., the Trump administration has been placing many of them in hotels along the border without access to counsel and expelling them to their home countries via deportation flights.

The administration has argued in court that the children it seeks to expel under the public health directive are not in the “legal custody” of the immigration authorities physically apprehending them, but rather in the “legal custody” of CDC officials they never interact with while on U.S. soil. Citing this argument, lawyers for the administration have said migrant children are not protected under the landmark Flores Settlement Agreement, which ensures them access to counsel and mandates their prompt release from detention.

In their lawsuit Friday, the ACLU, the Texas Civil Rights Project and Oxfam America argued that the centuries-old public health law the administration is citing to expel migrants does not authorize expulsions. The law, first enacted in the late 19th century and recodified during the 1940s, authorizes the surgeon general to bar the “introduction of persons or property” posing the danger of introducing a communicable disease into the U.S.

The groups argued that expelling unaccompanied migrant children violates a 2008 anti-trafficking statute that requires their prompt transfer to the refugee agency and protects them from expedited deportations, as well as laws that afford them access to humanitarian protections from deportation, like asylum. 

In late June, a federal judge appointed by President Trump said the ACLU was likely to successfully argue that public health laws do not authorize deportations. Even if the CDC could delegate an expulsion authority to border officials, U.S. District Judge Carl Nichols said he did not believe those powers override the legal safeguards Congress created for unaccompanied children. 

U.S. Department of Homeland Security officials did not respond to a request to comment on Friday’s lawsuit.