Pandemic Pretext to Deport Kids Snuffed by Federal Judge

Immigrants seeking asylum walk at the ICE South Texas Family Residential Center, in Dilley, Texas, last year. (AP Photo/Eric Gay, File)

WASHINGTON (CN) — A federal judge blocked the Trump administration on Wednesday from deporting asylum-seeking minors who arrive in the United States without a guardian.

Such expulsions have been occurring since March as part of a rule set in the early days of the coronavirus pandemic by Centers for Disease Control and Prevention director Robert Redfield.

Previously, federal agents who picked up an unaccompanied minors who hailed from countries other than Mexico or Canada would transfer the children to the Office of Refugee Resettlement, if parents could not be located, then assigned to a sponsor — normally a close relative.

According to officials quoted in the court record, these ORR facilities were operating at 30% capacity at the same time Redfield issued his order, giving the system ample space for staff and minors in custody to observe Covid-19 safety protocols. They were operating at 3% capacity in September.

Meanwhile the U.S. government has relied on Redfield’s order to cast out more than 159,000 immigrants, including 8,800 children, one government official testified in connection to a Ninth Circuit case in September.

Whereas that appeal focused on the government’s use of hotels to house  thousands of children whose flights out could not be arranged immediately, the suit that U.S. Judge Emmet Sullivan advanced on Wednesday stems from a class action led by an anonymous 16-year-old boy from Guatemala whose father lives in the United States and has a pending immigration case.

After the teen filed suit with support from the ACLU, the government exempted him from the CDC orders.

Going farther on Wednesday, Judge Sullivan enjoined the government from using the CDC order to expel similarly situated immigrants, saying Homeland Security is unlikely to show that the law is on its side.

At the heart of the matter, the Clinton appointee said, is that the CDC order relies on a federal law called Section 265 that contains no authorization for deportation.

“The Covid-19 pandemic is unprecedented,” Sullivan wrote. “But that is entirely distinguishable from whether or not Section 265 authorizes the government to expel persons. … The legislative history cited by the government provides not support for its position that Section 265 authorizes it to expel persons.

“Not only is expulsion not mentioned in the statute, but all of these sections, including Section 265, are referred to as ‘quarantine laws,’ suggesting that the CDC’s powers were limited to quarantine and containment,” the ruling continues.

Meanwhile the threat of irreparable injury weighs in favor of the children at risk of being deported, Sullivan found.

As for the public interest, the judge credited the ACLU’s argument that “the CDC Order[] … ‘likely increases any potential exposure’ because expelling unaccompanied children takes longer than transferring them to the ORR.”

P.J.E.S., the initials of the lead plaintiff, has noted that “unaccompanied children referred to ORR care are typically released to sponsors under the [Trafficking Victims Protection Reauthorization Act], which in most cases will be a parent or close relative who can ensure the child will self-quarantine.”

If he returned to Guatemala, P.J.E.S says he would experience “severe persecution” for his father’s political views.

Sullivan’s ruling largely adopts a report and recommendation issued in September by U.S. Magistrate Judge G. Michael Harvey.

Attorneys for the immigrants celebrated the decision.

“We are thrilled that the court has enjoined this cruel policy, which has placed thousands of vulnerable refugee children in harm’s way,” Jamie Crook, litigation director at the Center for Gender & Refugee Studies, said in a statement. “Today’s ruling affirms that the Trump administration cannot use the pandemic as a pretext to flout its legal obligations to children fleeing persecution.”

The Department of Justice did not immediately return a request for comment.

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