By Dorothy Atkins

Law360 (December 14, 2020, 4:52 PM EST) -- The federal government told a D.C. federal judge Friday that 34 children were expelled from the United States under a public health order, despite the judge's recent ruling prohibiting the immigration officials from applying a COVID-19 expulsion policy to the certified class of migrant children.

In a three-page notice, the government admitted that immigration officials have expelled the children, who are between 12 and 17 years old, under an expulsion policy issued by the Centers for Disease Control and Prevention through a rarely used public health law known as Title 42.

The expulsions run afoul of U.S. District Judge Emmet Sullivan's November injunction blocking the policy, but the government noted that since their expulsions, nine of the 34 children have returned to the U.S. and their asylum requests have been processed.

"Defendants regret that class members were expelled contrary to the court's injunction and are committed to full compliance with the court's injunction going forward," the notice said.

The government's admission is the latest chapter in a legal battle over a policy that has allowed the U.S. Department of Homeland Security to expel thousands of foreign citizens, including asylum-seekers and children traveling alone, back to their home countries without any legal process since March.

The American Civil Liberties Union hit top federal immigration officials with a class action in August. The lawsuit, which was filed on behalf of a Guatemalan teenager referred to by his initial P.J.E.S., claims that the government's practice of holding migrant children who seek protection in the U.S. in unlicensed facilities before quickly expelling them without processing their asylum claims violates federal immigration laws and put children in danger.

The ACLU also questioned the public health rationale behind the policy, saying in its lawsuit that only children who test negative for COVID-19 are expelled, while children who test positive for the illness are quarantined in the U.S.

In November, Judge Sullivan provisionally certified a class of unaccompanied migrant children who are or will be detained and subjected to the border expulsion policy and found that the 1944 statute at issue does not authorize the government to expel foreign citizens from the country.

The judge blocked the government from enforcing the policy against class members and denied the government's bid to stay the injunction pending its appeal of the injunction order. At the time the injunction was issued, an ACLU attorney estimated that more than 13,000 children had been expelled from the country under the policy.

In a declaration filed Friday, U.S. Border Patrol Chief Rodney S. Scott said that since the injunction was issued in November, roughly 3,740 unaccompanied migrant children have been processed at the border, but 26 of those children, who are between the ages of 14 and 17, were expelled under the public health order in violation of the injunction.

"Based on the USBP's investigation thus far, it appears that these expulsions may have resulted from first-line supervisors and field agents being unaware of the guidance," Scott wrote, adding that COVID-19 protocols have prevented in-person meetings between supervisors and border agents, who may have overlooked emails and message board posts regarding the policy change.

In a separate declaration submitted Friday, William A. Ferrara, who is the executive assistant commissioner of the U.S. Customs and Border Protection's Office of Field Operations, said the OFO has reached out to Mexican and Canadian authorities to try to locate eight teenage class members whom the OFO improperly expelled after the injunction was issued to give them a chance to reenter the country so that their asylum requests can be processed.

"CBP, and specifically OFO, sincerely regrets these errors and fully understands the gravity of the circumstances and are committed to taking appropriate actions to redress these concerns," Ferrara said.

Class counsel Lee Gelernt of the ACLU Immigrants' Rights Project said Monday that violating a court order in which young children's lives are at stake is "deeply troubling."

Representatives for the government didn't immediately respond Monday to requests for comment.

The class of children is represented by Lee Gelernt, Daniel A. Galindo, Celso J. Perez, Omar Jadwat and Ming Cheung of the ACLU.

The federal government is represented by Jean Lin, Tanya Senanayake and Kevin Snell of the DOJ's Civil Division.

The case is P.J.E.S. v. Chad Wolf et al., case number 1:20-cv-02245, in the U.S. District Court for the District of Columbia.

--Additional reporting by Suzanne Monyak. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.