Civil Rights Groups Challenge Feds’ Expulsion of Immigrant Children Seeking Asylum

A girl from Guatemala eats breakfast near the DeConcini Port of Entry in Nogales, Mexico. (Courthouse News photo/Brad Poole)

(CN) — Three nonprofit groups filed a federal class action Friday evening against the Trump administration’s controversial use of a Covid-19 emergency health order to immediately expel migrant children out of the country, claiming the children are denied the usual immigration protections in spite of showing no signs of the disease.

The American Civil Liberties Union, Texas Civil Rights Project and Oxfam America sued in Washington on behalf of a 16-year-old Guatemalan boy who entered the country alone to purportedly flee persecution as an indigenous Mayan. He claims his family faced death threats due to his father’s political opinions and the boy’s refusal to join a gang.

“His father currently lives in the United States and is awaiting immigration proceedings,” the 31-page complaint states. “After [the plaintiff] came to the United States, [Customs and Border Protection] apprehended him and subjected him to the [U.S. Centers for Disease Control and Prevention’s] Title 42 process. He is currently in CBP custody in the McAllen, Texas, area.”

The class action claims the Title 42 process is being carried out in secret, that the children are supposed to be taken to shelters run by the Department of Health and Human Services’ Office of Refugee Resettlement for assignment with lawyers and child advocates and matching with relatives already in the United States while their asylum cases are pending. 

The lawsuit claims over 2,000 children have been expelled from the country under Title 42, a process they say is unjustified by public health concerns.

“A principal justification is that border agents will have greater exposure if they are required to process individuals who lack documents and that is therefore necessary to deport such individuals to reduce the risk to agents,” the complaint states. 

“But, as plaintiff’s facts illustrate, arranging for air transport to deport individuals will generally take longer than time in which DHS must transfer children to ORR or family members. In addition, where the individual shows no signs of COVID-19, as is likely true for many of the unaccompanied children at issue here, the risk is even less.” 

The lawsuit says the public health argument for the expulsions is further undermined by the Trump administration continuing to allow large numbers of non-migrants into the country – “essential” travelers that include truck drivers, students, emergency responders and military members.

The lawsuit comes one month after a Texas Civil Rights Project attorney went viral on social media entering a Hampton Inn in McAllen where migrants were being held by Immigration and Customs Enforcement contractors for expulsion. 

In a 38-second video posted on Twitter, the attorney is confronted by three men as he steps off the elevator. After the men refuse to answer his questions about their identity or if they are police, the attorney yells down the hall in Spanish and English for the detainees to provide him their phone numbers if they are being detained.

The men forcibly shove the attorney back into the elevator, slamming him into the back wall. They angrily and repeatedly yell “don’t worry about it” and “get out now” before the video ends.

Three days later, DHS backtracked from plans to expel the migrants held at the hotel after the ACLU and Texas Civil Rights Project sued in federal court. The agency agreed to process those particular migrants under existing immigration procedures and not Title 42.

DHS did not immediately respond to an email message requesting comment late Friday evening.

The plaintiffs say they filed a class action to cover all migrant children subject to Title 42 because the government would end earlier cases filed by individual migrants by transferring each of them to the ORR.

ACLU attorney Lee Gelernt said the Trump administration “repeatedly refused to allow its unprecedented shadow immigration policy to be tested in the courts in an individual case,” resulting in the class action.

“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,” he said.

The Texas Civil Rights Project tweeted that the Trump administration has illegally detained and expelled children under Title 42 “all without access to attorneys and with no due process.”

Oxfam American said it is suing on “behalf of unaccompanied children fleeing danger” in their native countries.

“Seeking asylum in a human right,” the group tweeted.

The lawsuit claims DHS’s reliance on Title 42 expulsions violates the Trafficking Victims Protection Reauthorization Act, the Administrative Procedure Act, Public Health Service Act, the Immigration and Nationality Act and the Foreign Affairs Reform and Restructuring Act. 

It seeks a declaration that the Title 42 process is illegal and an injunction blocking its application against proposed class members.

Acting Homeland Security Secretary Chad Wolf is a co-defendant in the case. Earlier Friday, the nonpartisan Government Accountability Office concluded that he and acting deputy Ken Cuccinelli were illegally appointed to their posts due to violations of the framework of succession within the Homeland Security Act. 

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