Gov't Says Border Expulsion Policy Needed To Contain Virus

By Suzanne Monyak
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Law360 (October 15, 2020, 6:00 PM EDT) -- The Trump administration is fighting to continue expelling asylum-seeking children from the U.S., telling a D.C. federal judge Wednesday that nixing the policy will "all but strip" its authority to contain the coronavirus.

Government lawyers urged U.S. District Judge Emmet G. Sullivan, a Clinton appointee, in a Wednesday court filing to reject a magistrate judge's finding that the administration doesn't have the authority under a public health statute to expel people who have already entered the U.S., only to bar the entry of those abroad.

The magistrate judge had also recommended that the court accordingly provisionally certify a class of unaccompanied foreign-born children who are or will be detained by the U.S. government and expelled out of the country.

Such a ruling by the court would "all but strip the government's authority" to manage the COVID-19 outbreak, the government said in its latest filing in the case.

The magistrate judge's "atextual reasoning leads to an absurd result," the government said, arguing that the magistrate judge's interpretation of the statute — which allows the U.S. to bar the "introduction" of foreign citizens to prevent the spread of disease — would declaw the statute.

"This interpretation cannot be right because it renders [the statute] ineffective to prevent the introduction of a communicable disease transmitted through land border crossings," the government said.

However, the American Civil Liberties Union, representing a Guatemalan teenager fleeing persecution who was subjected to the policy, has urged Judge Sullivan to adopt the magistrate judge's reasoning and recommended ruling in full.

According to the ACLU, the government has "avoided judicial scrutiny" by voluntarily removing children — at least 97 — from the expulsion process when contacted by lawyers.

In the first legal challenge to the expulsion policy as a whole, the ACLU successfully convinced a D.C. federal judge in June to shield a Honduran teenager from expulsion under the policy, with the judge finding that the Centers for Disease Control and Prevention order didn't comport with other immigration protections enshrined for minors.

The ACLU then filed the instant suit in August on behalf of a teenage boy from Guatemala who is referred to in court papers as P.J.E.S., similarly challenging the administration's expulsion policy as applied to children.

"But in the meantime, thousands of unaccompanied children who could not contact a lawyer in time have been expelled, and an untold number of children are expelled to grave danger every day. A classwide injunction is needed, and no further delay should be accepted," the ACLU said in a court filing earlier this month.

The CDC's contested order, which draws upon a rarely used public health law known as Title 42, permits immigration agents to swiftly send back migrants caught after crossing the border — including asylum-seekers and children who crossed alone — without any sort of immigration process.

The order, which has been in place since March, had drawn outcry and litigation from immigration activists, who say the order flouts U.S. immigration law and undermines core refugee protections.

Under the expulsion policy, migrant children were held in hotels — rather than facilities licensed to care for children — before being swiftly expelled from the U.S. This hoteling practice has been separately challenged in California federal court for violating a class action settlement that established bedrock standards of care for migrant kids in custody, and a federal judge in Los Angeles restricted the practice last month.

The legal battle over class certification comes less than a month after U.S. Magistrate Judge G. Michael Harvey found that the administration had misinterpreted a statute allowing the government to bar the "introduction" of foreign citizens into the U.S. to prevent disease.

"The government stretches the syntax of that clause well past its breaking point," Judge Harvey wrote.

He reasoned that "introduction" applies to those who have not yet entered the U.S., and would not permit expulsions — a term he noted does not appear in the statute. When Congress has chosen to expel individuals from the U.S., it has done so "plainly," the judge continued, pointing to the language of the Chinese Exclusion Act of the late 19th century, which targeted immigration from China.

A representative for P.J.E.S. declined to comment Thursday, and a representative for the U.S. Department of Homeland Security didn't immediately respond to a request for comment.

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

The government is represented by Jean Li, Kevin Snell and Tanya Senanayake of the U.S. Department of Justice's Civil Division.

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

--Editing by Stephen Berg.

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