SAN FRANCISCO (CN) - A federal judge in San Francisco said Tuesday she might order the Trump administration to reinstate a refugee program for children fleeing violence in Central America until the government complies with legal requirements for ending it.
U.S. Magistrate Judge Laurel Beeler said in a hearing it appeared the U.S. Department of Homeland Security failed to explain why it ended the parole portion of the Central American Minors program, which gave children in the region a path to reunify with their parents in the United States.
This lack of explanation would violate the Administrative Procedure Act, which requires federal agencies to sufficiently articulate their reasons for policy changes.
Beeler said she was inclined to grant a preliminary injunction to the plaintiffs - Central American immigrants legally residing in the United States and their minor children living in Central America - tethered only to their Administrative Procedure Act claim.
Under such an injunction, the program would be reinstated while Homeland Security works on issuing a sufficient explanation for its August 2017 decision to end the program, Beeler said.
"If the answer at the end of the day was you didn't do enough, you didn't consider enough," Beeler said, the remedy is "a do-over."
In their June class action complaint, the plaintiffs claim racism against Latinos motivated the administration’s decision to terminate the Central American Minors program.
According to the class, an executive order shut down the program just days after Trump entered office in January 2017, but the government didn’t announce the termination until August.
The administration immediately stopped interviewing program beneficiaries and froze their applications; stopped issuing decisions to applicants who were likely candidates for parole into the United States; and stopped scheduling the medical exams required for parolees to enter the country – all in secret, the class claims.
On Tuesday, Beeler said there "was no real discussion" in two documents published in the Federal Register purportedly explaining Homeland Security's decision to terminate the program.
The Administrative Procedure Act imposes a heightened duty on agencies to provide "a more detailed justification" for a policy shift when the shift changes a prior policy that "engendered serious reliance interests," the plaintiffs argue, such as immigrants' reliance on government representations that children conditionally approved for parole would soon join them in the United States.
Linda Evarts, an International Refugee Assistance Project attorney representing the class, suggested issuing an injunction for a certain class, such as the 2,700 children who had been conditionally approved for parole before the program’s termination.
Justice Department attorney Wendy Garber countered an injunction wasn't appropriate because Homeland Security had in fact explained its policy change. The agency had also addressed reliance issues by extending the deadline for requesting case-by-case review of decisions denying refugee status under the program, she said.
But Garber still found the proposed injunction acceptable.
"Remanding to the agency is preferable over what plaintiffs are asking for, which is to admit 2,700 aliens into the country," Garber said. "That's just not a good situation for the public, to have that uncertain status to deal with. If it would require removals, more lawsuits, it would be a harm to the public."
Beeler emphasized she could change her mind as she reviews the case.
"I'm still struggling overall" with how to rule, she said toward the end of the two-hour hearing.
Established under the Obama administration in 2014, the Central American Minors program allowed legal immigrants from El Salvador, Guatemala and Honduras – sometimes called the Northern Triangle countries – to bring their children fleeing violence to the United States as refugees or parolees.
The program responded to the explosion in the number of unaccompanied children from the Northern Triangle arriving at the United States’ southern border.
Border Patrol apprehended about 50,000 children at the border the year the program took effect, up from 8,000 two years earlier, according to the complaint. Before then, Border Patrol had stopped just 4,000 unaccompanied children from these countries each year.
The plaintiffs, identified in the complaint only by their initials, include a teenage girl who was forced to drop out of high school just before graduation because she feared being raped or killed by an MS-13 gang member trying to forcibly “date” her; a teenage boy who has trouble walking and bathing after MS-13 members beat him; and a teenage boy being threatened with murder after MS-13 members shot his uncle outside the boy’s home.
Honduras, El Salvador and Guatemala have some of the highest child homicide rates in the world, according to the complaint.
Gangs like MS-13 and Barrio 18 have created “semi-autonomous mini-states” there, facilitating gruesome acts of violence, much of it aimed at children.
Attacks on buses, abductions, gang rapes, and shootings occur each day in many neighborhoods, according to the plaintiffs. Gangs regularly try to recruit young children as members and sex slaves, killing them when their efforts are rebuffed.
One Honduran city has reported regular killings of children under 10 years old and as young as two.