By Hannah Albarazi

Law360 (December 11, 2020, 10:29 PM EST) -- A D.C. federal judge denied the U.S. Department of Homeland Security's bid to extinguish a lawsuit challenging the Trump administration's pandemic-era regulation ordering asylum-seekers and children to be turned away at U.S. borders, stating in an opinion Friday that the government's argument hinges too much on one possible remedy.

U.S. District Judge Trevor N. McFadden denied the federal government's bid to dismiss a suit by a 13-year-old girl from El Salvador, referred to by her initials as G.Y.J.P., for lack of jurisdiction, saying he's satisfied that the court could fashion a form of meaningful relief for the minor, if she prevails on her claims.

"The government latches onto the most extreme remedy that G.Y.J.P. requests, but it ignores lesser forms of relief that the court could unquestionably provide," Judge McFadden wrote in his order Friday.

The court "need not decide now what would be acceptable" relief, the judge said.

Judge McFadden notes that aside from an order requiring the government to facilitate the migrant's return to the U.S., the migrant has also asked the court to declare unlawful the Title 42 process as applied to her and to enjoin the government from applying it to her again in future proceedings.

The American Civil Liberties Union, which is backing the migrant's complaint, says the government expelled G.Y.J.P. because of a set of policies enacted by the Trump administration in March in response to the COVID-19 pandemic.

The ACLU backed two legal challenges in D.C. federal court against the Trump administration's public health order, which instructs agents to swiftly turn away asylum-seekers and children at U.S. borders.

The Centers for Disease Control and Prevention issued an order in March under a rarely used public health statute known as Title 42. 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.

G.Y.J.P. ventured to the U.S. facing threats of violence in her home country but was apprehended by U.S. Customs and Border Protection agents as she crossed into the U.S. from Mexico in April 2020.

After a week in custody, the U.S. government sent G.Y.J.P. back to El Salvador, even though her mother, a former Salvadoran police officer, had already been granted legal protection in the U.S. 

The ACLU says the CDC's order undermines protections enshrined by Congress for migrant children and foreigners facing persecution in their home countries. Concerns posed by COVID-19 should be addressed through the use of testing and quarantines, not deportations, the ACLU said.

The statute conflicts with immigration and anti-trafficking laws, the ACLU maintains.

In addition to G.Y.J.P.'s suit, the ACLU backed a case brought by a 16-year-old Honduran citizen referred to by his initials J.B.B.C. The teenager 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, his suit alleged. Instead, the teen was held in custody at the border for five days, even though his father had been living in the U.S. with a pending asylum case.

That case has since been voluntarily dismissed.

The ACLU's legal challenges alleged that the CDC order put children at increased risk of contracting COVID-19 by extending the time they are in government custody while arranging for their deportations, rather than moving them to a shelter or reuniting them with relatives already in the U.S.

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

On Friday, Judge McFadden said there were other remedies available to the court other than ordering the government to help the 13-year-old minor return to the U.S. 

"Enjoining the government from applying the Title 42 Process to G.Y.J.P. again would be a necessary step for G.Y.J.P. to secure all the relief that she seeks," wrote the judge.

After reviewing G.Y.J.P.'s claims, the judge said he is confident "that there is at least some form of relief that it could order if it determines that G.Y.J.P. has prevailed on her claims."

Judge McFadden said in his order that since this 13-year-old girl has already come to the U.S. without assistance, it is far from inconceivable that she would do so again.

"The court will thus deny the motion," Judge McFadden wrote, noting that "the court need not wade far into this debate — at least today."

Spokespeople for the ACLU, 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.

The federal government is represented by Jean Lin of the U.S. Department of Justice's Civil Division. 

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.

--Additional reporting by Suzanne Monyak. Editing by Jay Jackson Jr.

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