Federal judge stops administration from expelling unaccompanied children—11-20-20

Immigration news, in context

This is the fifty-eighth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

  • In The Big Picture, we dig into a recent judicial ruling blocking the administration’s rapid expulsions of unaccompanied migrant children.

  • In Under the Radar, we discuss how the pandemic has affected the immigration courts, which are still in disarray.

  • In Next Destination, we look at the administration’s attempts to revive its asylum agreements with Central American countries.

The Big Picture

The news: A federal judge blocked the government from using a public health law to summarily expel unaccompanied minors seeking asylum at the southern border; the CDC orders remain in effect or others.

What’s happening?

Federal District Judge Emmet Sullivan has decided to accept the recommendations put forth in a report by Magistrate Judge Michael Harvey and grant class certification to unaccompanied minors arriving at U.S. borders who would otherwise be subject to the CDC’s Title 42 expulsion orders, with a simultaneous injunction preventing these expulsions from going forward.

To briefly recap, in March, the Centers for Disease Control and Prevention issued an order under a provision of law that permits health authorities to restrict the “introduction of persons” to the country if they pose a risk of “introduction of… communicable diseases” of public concern. Subsequent updates and memos clarified that the order essentially permits officials to block any person who does not possess entry documents, and immediately expel those who are able to enter anyway, any potential humanitarian claims notwithstanding. In effect, the government was declaring that its interest in preventing COVID-19 introduction—to the country with the highest infection rates—superseded the provisions of law allowing asylum claims and granting additional protections for children.

While officials do have discretion, internal figures have shown that almost all asylum seekers are expelled, including families with children and unaccompanied minors, who have been placed in hotels without access to legal services before expulsions (a practice that a separate federal judge ordered stopped). Internal documents viewed by BuzzFeed News put the total number of unaccompanied minors expelled at about 13,000 as of the end of October. At least three separate cases have been filed on behalf of such minors. This ruling, in PJES v. Wolf—brought by the ACLU, Oxfam, and the Texas Civil Rights Project, representing a Guatemalan teenager seeking asylum—was the first to recognize this group as a class and enjoin the government from continuing the expulsions.

In another case with similar facts, JBBC v. Wolf, the government wormed out of the threat of a class certification by exempting the primary plaintiff from the broader policy and allowing him to enter the U.S., then claiming the point was moot. When the case added another plaintiff, the government exempted him, too. It tried a similar strategy in PJES, exempting the teenager from the policy and claiming that it was improper to have a plaintiff for whom the legal questions were rendered moot to serve as a class representative for others in the same situation. Sullivan soundly rejected this argument, noting that “the actions the Government has taken to avoid judicial scrutiny by mooting the claims of the unaccompanied children, Plaintiff’s counsel bring to their attention, arguably reveals an intent” to make it impossible for the court to have time to rule on the class request. In other words, every time a new person sued over the policy, the government would simply decide to not apply the policy to them.

On the broader question of the merits, the injunction was approved because the judge agreed that the government was engaging in a logical leap by asserting that the language of Title 42 gave it the authority to expel unaccompanied minors, on several separate grounds. Perhaps most directly, Sullivan noted that the plain language doesn’t say anything about expulsions; rather it gives the government authority to prevent the introduction of communicable disease, presumably by stopping individuals from entering. Once they have entered, the law includes no provision for removal, despite the administration’s assertions to that effect. These authorities also run counter to the language of other portions of the law relating to immigration and child protection. While the government bafflingly tried to claim Chevron deference—i.e. that this involves a properly delegated agency determination that is unreviewable—the judge shot that down by pointing out that agency decision-making cannot run counter to the statute’s authorities.

How we got here

More than any other policy, expulsions at the border have given the Trump administration the ability to do what it sought from the beginning: virtually end asylum and unauthorized immigration to the United States. It’s almost impossible for an “inadmissible” migrant, be they an adult asylum seeker or an unaccompanied child, to arrive and remain in the U.S. now. The latest restrictions have been done under the guise of pandemic-era safety: the order was issued by the Centers for Disease Control and Prevention, not by the Departments of Homeland Security or Justice, which typically issue and implement immigration-related policies. 

Notably, the order was issued around the same time that the president was insisting that COVID wasn’t a big deal. A week before the CDC issued the order closing the border to undocumented travelers, Trump claimed the virus was fully under control and downplayed its spread in the United States. His public comments regarding the seriousness of the pandemic belied what administration officials were doing behind the scenes to limit immigration. Trump issued executive orders reducing visa issuances and limiting travel from China, Iran, and several European countries. Meanwhile, Vice President Mike Pence told the CDC to issue the border shutdown order, despite protests from public health officials, according to an October report by the Associated Press. 

“This was a Stephen Miller special,” former Pence aide Olivia Troye told the AP. “There was a lot of pressure on DHS and CDC to push this forward.”

It was clear from the beginning that the goal of the CDC order was largely unrelated to safeguarding public health.  The law allows the CDC to shut down the border “for the purpose of preventing the introduction, transmission, or spread of such communicable diseases” in the United States. But at the time the order was issued, the United States had far more coronavirus cases than Mexico; in fact, the U.S. had more confirmed coronavirus cases than Mexico, Honduras, El Salvador, and Guatemala combined. Coronavirus was already here. Rather than importing it from abroad, the U.S. was actually exporting the virus through deportations, causing it to spread to the very communities that asylum seekers often hail from.

The border shutdown was supposed to include some exceptions, but those were virtually nonexistent. An internal Border Patrol guidance regarding implementation of the order, obtained by ProPublica, instructed officers to turn away all unauthorized migrants encountered at the border except for those who affirmatively tell an agent that they’ll be tortured if sent back to their country. Rather than being turned back, those asylum seekers would then have to convince a higher-ranking Border Patrol official of the same thing. Put simply, in order to not be immediately sent back to Mexico or their country of origin, an asylum seeker would have to know the specific language to use with the first Border Patrol officer they encounter, communicate despite a language barrier, wait for the officer to call their supervisor, and then convince the supervisor of the same thing.

In practice, the expulsions worked differently for children, though the result was largely the same. Rather than immediately turning unaccompanied migrant children away, border officers would detain them in hotels along the border, often for several days. Under normal circumstances, migrant children who arrive at the border without their parents are supposed to be briefly detained by Customs and Border Protection before being transferred to shelters operated by the Office of Refugee Resettlement, where they’re paired with a caseworker who works to locate their family in the United States. After the child is released from the shelter and to their sponsor—a process that can take weeks if not months, particularly in recent years due to new requirements for sponsors introduced by the Trump administration—they can apply for asylum under the Trafficking Victims Protection Reauthorization Act, with an easier path than adults applying for the same status. 

By detaining children in hotels and quickly expelling them to their countries of origin, the Trump administration circumvented this entire process—an imperfect one, to be sure, but one that granted migrant children some level of rights and protections under the law. 

As ProPublica reported in August, immigration officials were testing migrant children for coronavirus before putting them on deportation flights. These tests were part of the negotiations the U.S. reached with certain countries in order to let the deportation flights continue; they were a reaction to reports that deportees from the U.S. had often introduced or spread coronavirus to their home countries after having contracted it in the United States. By testing children for coronavirus before deporting or expelling them, immigration officials were hoping to prevent future outbreaks among deportees; at the same time, they were negating the foundation upon which the CDC order relied, setting the stage for legal challenges.

What’s next?

The order means that the government will be forced to stop expelling unaccompanied minors arriving at U.S. borders (in practice this really means the southern border). This of course doesn’t mean that they will be granted asylum, but they should regain the opportunity to apply for it and go through a formal removal process, with placement in Office of Refugee Resettlement-licensed shelters with greater access to legal counsel. These minors are also not (supposed to be) impacted by other asylum-restriction policies like the Migrant Protection Protocols and the third-country asylum agreements that could send others to apply for asylum in Guatemala if that agreement is resumed, or El Salvador and Honduras, if those are ever implemented.

Many of the legal deficiencies outlined by the court would also apply to other asylum-seeking migrants, not just unaccompanied minors. The statute’s lack of authority to expel would presumably apply across the board, and, while this particular case was not ruling on those questions, the legal groundwork can pave the path for the policy to be generally enjoined in another case. This of course may all become unnecessary next January, when Joe Bide takes over the administration. His transition team has pledged to evaluate the CDC order, which was issued over agency staff’s objections. While that’s not a firm commitment to rescind it, it would be difficult to imagine the new administration keeping it in place given the court losses and the absurdity of its underlying claims.

That said, it’s not clear what, if any, remedies would exist for the roughly 200,000 people that have already been expelled, some of them all the way back to their countries of origin. The one positive point for them is the fact that an expulsion is legally distinct from a deportation, including not preventing an individual from subsequently attempting another asylum claim in the future. However, many of those expelled might never get another chance.

Under the Radar

What in the world is happening at EOIR?

When the coronavirus started ramping up in the U.S. this spring, the Executive Office for Immigration Review, the federal agency that oversees the immigration courts, sporadically began announcing court closures. EOIR eventually postponed all hearings for non-detained people, but kept most detained hearings running as scheduled—except, of course, in the all-too-common instances when someone in the court, be it an immigration judge, an ICE attorney, or an immigrant respondent, was later found to have coronavirus. In these instances of exposure, the courts would shut down for cleaning. The shutdowns would be announced the morning of, or sometimes the night before, leaving immigration lawyers and their clients in the dark about court operations until the last minute.

EOIR has since resumed non-detained hearings at many immigration courts across the country. According to its current operational status listings, 50 courts are open for all hearings, while others are open only for detained hearings and/or filings. But the exposure problems continue. On the night of November 18, EOIR announced the immigration court in Phoenix, Arizona would be closed the following day. Just one day earlier, EOIR announced that one of its courts in Chicago would be closed the next day “due to a possible COVID-19 exposure.” That same day, EOIR shut down the Dallas immigration court for cleaning, once again due to a possible exposure.

Every time this happens, all the hearings on that day’s docket get pushed back. For immigrants in detention in particular, these constant closures and postponements mean that important hearings—be they for scheduling, bond requests, or merits hearings where they plead their case before an immigration judge—get postponed, leaving them detained in dangerous facilities for that much longer. Immigrant detention centers have proven to be coronavirus hotspots; it’s difficult for detainees to keep a safe physical distance from each other, and detained immigrants across the country have told reporters that they aren’t given adequate cleaning supplies, masks, or other protective gear.

It’s been eight months since the pandemic began affecting immigration court operations. In that time, it seems that little has changed when it comes to transparency.

Next Destination

Trump administration tries to revive Central American asylum agreements before Biden’s inauguration

Trump has just two months left in office, and it doesn’t seem like he’s planning on leaving quietly—or at all. CNN reports that the administration is trying to move forward with its asylum cooperative agreements with Guatemala, El Salvador, and Honduras ahead of Biden’s inauguration. 

These agreements, which we’ve covered in the past, essentially let the U.S. send some asylum seekers to other countries, requiring them to apply for protections there. For example, under the Guatemalan agreement—the only one that was implemented before the pandemic put it on hold in March—asylum seekers from El Salvador and Honduras who arrived in the U.S. could instead be sent to Guatemala, despite the country hardly having an asylum process to speak of. Human Rights Watch called it “deportation with a layover,” and found that migrants sent to Guatemala to apply for asylum there weren’t given enough time or resources to make informed decisions about their cases.

Per the CNN story, the plan to roll out similar programs in El Salvador and Honduras didn’t stop because of the pandemic. (The initial agreements were scant on details; they were essentially a plan to make a plan at a later date.) Despite the extensive damage caused by two subsequent hurricanes, Eta and Iota, the administration is still eager to enact asylum plans in both Honduras and El Salvador—even if it means putting migrants in harm’s way.

It’s unclear how far along negotiations are, or whether the Honduran and Salvadoran governments will try to put negotiations on hold until Biden’s inauguration in two months. The Trump administration’s desire to ram through as many changes to the immigration system as it can in that time is clear, but in this instance, the administration can’t act unilaterally. There are two foreign governments to contend with, and those governments may not want to anger the incoming administration, whose immigration priorities will likely be different from Trump’s.