By Craig Clough

Law360 (October 30, 2020, 9:35 PM EDT) -- Immigrant advocacy groups filed a Freedom of Information Act lawsuit in Illinois federal court Thursday demanding info about the Centers for Disease Control's public health order barring migrants, including children and asylum-seekers, from making claims for protection in the U.S. over concerns of spreading COVID-19.

The Center for the Human Rights of Children and the American Immigration Council filed the suit against the U.S. Department of Homeland Security and U.S. Customs and Border Protection. They claim they filed a FOIA request in August seeking information including how the March order is being implemented and how many migrants and children it has impacted, but did not receive a proper response within the required time frame.

The policy appears to violate statutory obligations to unaccompanied minors, including under the Trafficking Victims Protection Reauthorization Act, and the federal government has not sufficiently explained how the CDC's "purported authority" of public health law 42 U.S.C. § 265 overrides those legal obligations, according to the suit.

"Despite those statutory obligations to the contrary, defendants have reportedly carried out an unprecedented number of summary expulsions of individuals apprehended and subjected to the procedures under Title 42 expulsion," the advocate groups said. "According to media reports, over 150,000 individuals have been expelled since March. Defendants have repatriated almost 9,000 [unaccompanied children] to unknown conditions without any regard for their safety or well-being."

The groups added, "Title 42 expulsion has occurred out of the public eye and with little to no information regarding the whereabouts or treatment of children apprehended by [Customs and Border Protection]."

The organizations also want to know about quarantine measures being taken, how a negative COVID-19 test impacts a child's expulsion and information on the detention of children in hotels, a policy that was recently suspended by a federal court.

The CDC's border restrictions were handed down in March under a rarely used public health statute to purportedly to combat the coronavirus pandemic, but the groups argue the expulsion could violate U.S. obligations not to return people to countries where they will be persecuted.

The CDC order instructs border agents to swiftly return to Mexico, Canada or other countries all migrants who cross a U.S. land border or arrive at a port of entry without proper documentation, in an effort to keep them out of crowded facilities where the virus could easily spread.

The federal government is currently defending the Title 42 expulsions in D.C. federal court in a lawsuit brought by a Guatemalan teenager fleeing persecution who was subjected to the policy. 

"It is essential for the public to know whether and to what extent a federal agency is violating its obligations under the law. Particularly when the protections of a vulnerable population, such as unaccompanied migrant children, are at stake," Claudia Valenzuela, a FOIA senior attorney at the American Immigration Council, said in a statement.

The lawsuit claims a long list of potential violations of the law the Title 42 expulsions are creating but only seeks for the federal government to honor its FOIA requests. According to the suit, existing statutory obligations require CBP to determine within 48 hours of apprehending a child if he or she is an "unaccompanied alien child," and then transfer them to the custody of the secretary of Health and Human Services within 72 hours of making the determination.

Unaccompanied children also have a legal right to appear before an immigration judge along with other due process rights, including access to counsel, according to the groups.

"Despite the public's urgent need to understand the impact of Title 42 Expulsion on [unaccompanied children] due to the many legal ramifications, defendants have failed to provide a response within the statutory timeframe mandated by law," the advocacy groups said. "As a result, the full scope of defendants' actions with regard to the continued implementation of Title 42 expulsion as to [unaccompanied children] remains unknown to the public."

DHS did not immediately respond to a request for comment.

The advocacy groups are represented by Claudia Valenzuela of the American Immigration Council.

Counsel for the federal government was not immediately available.

The case is Center for the Human Rights of Children et al. v. U.S. Department of Homeland Security, case number 1:20-cv-06449, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Suzanne Monyak. Editing by Gemma Horowitz.

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