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International News

Federal Judge Halts Policy of Returning Migrant Children, Throwing COVID-Linked Policy into Question

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Federal Judge Halts Policy of Returning Migrant Children, Throwing COVID-Linked Policy into Question

2020-11-19 21:00:02

By Laura Tucker, Staff writer; Image: Children by lake (Image source: Public domain)

The Trump administration seems to have been using the coronavirus pandemic as a reason to follow up on Trump's long-held desire to keep immigrants out of the country. On Wednesday, however, a federal judge ordered the administration to stop "expelling underage migrants," throwing into question the government's practice of keeping migrants out of the country because of the coronavirus pandemic.

U.S. District Judge Emmet Sullivan, the same judge presiding over former national security adviser Michael Flynn's case, issued a preliminary injunction that requires the administration to process the humanitarian claims of minors who cross the U.S.-Mexico border alone instead of forcing them back into Mexico or flying them back to their home countries without due process.

In March, the Trump administration had implemented emergency public health measures with the goal of preventing the spread of COVID-19 in border stations, detention centers, and child migrant shelters. More than 200,000 migrants have been expelled from the country since then, including many unaccompanied underage migrants.

Sullivan did not rule on the legality of expelling migrants as a whole, but he did question the basis of the administration's use of the public health rule, a 19th-century provision, as he said it does not mention expulsion authorities.

"The Court agrees that the undisputed authority granted in Section 265 is extraordinary and that the COVID-19 pandemic is unprecedented," wrote Sullivan. "But that is entirely distinguishable from whether or not Section 265 authorizes the Government to expel persons."

It's unknown what will happen to this law under President-elect Joe Biden's administration. With a worsening situation in Mexico and Central America, it could lead to a larger push north, at a time when illegal border crossings have been at their highest levels in more than a year. Biden has not said whether he would continue this policy, but he has vowed to revoke Trump administration measures that affect access to the U.S. court system and asylum protections.

Immigrant advocates had argued that the government has been violating anti-trafficking laws and other protections the law gives to minors.

"This is an enormous step," said Lee Gelernt, deputy director of the Immigrants Rights Project at the American Civil Liberties Union.

The group had sued the government on behalf of a 16-year-old Guatemalan boy who had been expelled from the United States after crossing in August. He had been trying to reunite with his father in the U.S. after escaping forced gang recruitment. He was denied a chance at asylum and sent back to Guatemala.

With the belief that the expulsion policy hasn't received the attention it deserves, Gelernt referred to it as "the most egregious asylum policy this administration has enacted because it completely bypasses the entire asylum system."

"If people need to be tested and quarantined, so be it, but the government can't just expel them without a hearing," argued Gelernt. There are more than 14,000 minors to have been expelled since March, according to ACLU estimates.

The ACLU's position is that the administration has exceeded its legal authority. "Judge Sullivan seems to be of the view that public health laws don't permit the expulsion of anyone, but he also rested his decision on statutes protecting children and asylum seekers, so we're continuing to evaluate the ruling," said Gelernt.

The administration is expected to seek an immediate stay on the injunction and appeal the judge's ruling.

A Department of Homeland Security spokesman, Chase Jennings, called Sullivan an "activist judge."

"Today's dangerous decision is the propagation of one judge's agenda thousands of miles away from the border, in the face of science and the law, with total disregard for the health of those whose lives will be affected," said Jennings in a statement.

"Along with executive branch partners, DHS is exploring all options to ensure this vital public health tool is quickly reinstated." 

The number of unaccompanied minors has risen sharply this fall. In September, border authorities took 3,756 underage migrants into custody, the most it has in 14 months.

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