By Suzanne Monyak

Law360 (June 10, 2020, 10:47 AM EDT) -- The American Civil Liberties Union told a D.C. federal court Tuesday night that the Trump administration's public health order to swiftly turn away asylum-seekers and children at U.S. borders conflicts with immigration and anti-trafficking laws.

In the first two legal challenges to the administration's border expulsions, the ACLU's lawsuits argue that the order, issued by the Centers for Disease Control and Prevention in March under a rarely used public health statute known as Title 42, undermines protections enshrined by Congress for migrant children and foreigners facing persecution in their home countries.

That 1944 public health statute permits the surgeon general to prevent the "introduction" of people "by reason of the existence of any communicable disease in a foreign country" that may spread to the U.S.

"The administration's use of Title 42 is a transparent end-run around Congress's considered decision to provide protection to children and others fleeing danger even where communicable disease is a concern — and to address that concern through the use of testing and quarantines, not deportations," the lawsuits say.

Brought on behalf of two teenagers from Central America, the suits also claim that the order puts children at increased risk of contracting COVID-19 by holding them in government custody longer while arranging for their deportations, rather than moving them to a shelter or reuniting them with relatives already in the U.S.

A 16-year-old Honduran citizen, referred to by his initials J.B.B.C., had fled persecution and entered the U.S. in Texas in early June, but border officers did not give him the chance to request asylum, the suit says. Instead, the teenager was held in custody at the border for five days, even though his father is currently living in the U.S. with a pending asylum case.

In the other case, a 13-year-old girl from El Salvador, referred to as G.Y.J.P., was already sent back to El Salvador and seeks to return to the U.S. According to the ACLU, her mother is a former Salvadoran police officer who has already been granted legal protection in the U.S.

U.S. Customs and Border Protection swiftly sent back nearly 1,000 children in March and April, according to the lawsuits, and the CDC order has been extended indefinitely.

U.S. District Judge Emmet G. Sullivan issued an order late Tuesday pausing J.B.B.C's impending deportation until the end of the day on Wednesday to give the court time to consider the ACLU's request for relief.

"The stakes could not be higher," said Lee Gelernt, deputy director of the ACLU's immigrant rights project. "This is the most extreme of all the anti-asylum, anti-children policies enacted by this administration. If this order is upheld and continues indefinitely, it will mean the government literally will have the power to shut off asylum, including for children."

CBP had initially stated that unaccompanied migrant children would be exempted from the CDC order, which allowed border officers to summarily expel foreign citizens who cross or attempt to cross U.S. land borders without legal permission, regardless of whether they were seeking asylum or other protection.

The U.S. has separately closed its land borders with Mexico and Canada to nonessential travel to curb the spread of the new coronavirus.

But days later, the agency reversed course and announced the children who entered the U.S. alone could be sent back under the CDC order.

The order has come under fire by human rights and refugee advocates who say that it conflicts with the U.S.' obligations not to deport individuals to danger.

UNICEF, the United Nations agency that provides aid to children, warned last month that children who are sent back under the public health order are viewed as potential carriers of the virus and have been targeted for violence and discrimination.

"This means many returned children are now doubly at risk and in even greater peril than when they left their communities. It is never in a child's best interest to be sent back to an unsafe situation," UNICEF's executive director, Henrietta Fore, said in a May statement.

Public health experts also penned a letter to administration officials last month saying that the order is based on "specious justifications and fails to protect public health."

On Tuesday, before the litigation was filed, members of the Congressional Hispanic Caucus called on acting Homeland Security chief Chad Wolf to halt the expulsions of migrant children and instead release them to family members, calling the expulsions "unacceptable to the American sense of decency and humanity."

A spokesperson for the U.S. Department of Homeland Security declined to comment on the litigation but defended the public health order for prioritizing public health and safety. 

"The measures taken by CBP at the northern and southern borders have been instrumental in saving American lives by reducing time and numbers in custody, resulting in an approximately 99% decrease of aliens held in close quarters in CBP facilities from this time last year and preventing a potential catastrophe along the southwest border," DHS spokesperson Alexei Woltornist said in a statement. 

Spokespeople for CBP, the CDC and the U.S Department of Health and Human Services' refugee agency declined to comment on pending litigation.

J.B.B.C. and G.Y.J.P. are represented by Lee Gelernt, Daniel A. Galindo, Celso J. Perez, Scott Michelman, Arthur B. Spitzer, Stephen B. Kang, Cody Wofsy, Morgan Russell, Adrienne Harrold, Andre Segura, Kathryn Huddleston, Rochelle Garza and Brantley Shaw Drake of the ACLU; Jamie Crook, Blaine Bookey and Karen Musalo of the Center for Gender & Refugee Studies; and Robert Silverman of Oxfam America. G.Y.J.P. is additionally represented by Karla M. Vargas and Efren C. Olivares of the Texas Civil Rights Project.

Counsel for the federal government was not yet available.

The cases are J. B. B. C. v. Wolf et al., case number 1:20-cv-01509, and G. Y. J. P. v. Wolf et al., case number 1:20-cv-01511, in the U.S. District Court for the District of Columbia.

--Editing by Alyssa Miller.

Update: The story has been updated with additional information about J.B.B.C.'s lawsuit, with details about G.Y.J.P.'s suit and with responses from the parties.

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