DC Circ. Lifts Block On Migrant Children Expulsion Policy

By Alyssa Aquino
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Law360 (January 29, 2021, 6:21 PM EST) -- The D.C. Circuit on Friday lifted a lower court's order barring the U.S. government from turning back unaccompanied migrant children from the border under a COVID-19 public health directive as it reviews the expulsion policy.

In a brief two-page order, a three-judge panel lifted the injunction at the December 2020 request of the Trump administration, saying the administration had "satisfied the stringent requirements for a stay pending appeal."

It is unknown whether the recently installed Biden administration will enforce the policy, which was issued by the Centers for Disease Control and Prevention through a rarely used public health law known as Title 42.

The White House didn't immediately respond to after-hours requests for comment.

Under the CDC order, which was set when COVID-19 cases first began to spike in the country, the U.S. Department of Homeland Security was able to expel thousands from the border, including asylum-seekers and unaccompanied migrant children, without first processing their asylum claims.

The policy spurred the American Civil Liberties Union to take the Trump administration to court. By enacting the expulsion policy, the U.S. had endangered a class of unaccompanied migrant children who were kept in unlicensed facilities before they were quickly removed to their home countries, the ACLU said.

U.S. District Judge Emmet Sullivan was eventually persuaded to bar the Title 42 expulsion of migrant children, finding that though the statute authorized the U.S. to "prohibit ... the introduction of persons" for public health purposes, it didn't permit border expulsions.

The Trump administration appealed Judge Sullivan's injunction to the D.C. Circuit, pressing it to stay the order while it reviewed the case. It argued that the injunction prevented the government from implementing "critical public health measures" intended to curb the spread of COVID-19.

That argument swayed U.S. Circuit Judges Neomi Rao, Gregory Katsas and John Walker, who sat on the motions panel.

ACLU attorney Lee Gelernt called the D.C. Circuit's injunction lift a temporary setback in a statement to Law360.

"We will continue to litigate this case on behalf of these vulnerable unaccompanied children, who are in need of protection and legally entitled to apply for asylum. But we hope the Biden administration will not make ongoing litigation necessary by rescinding this illegal policy created by the Trump administration," Gelernt said.

While President Joe Biden has scrapped several of former President Donald Trump's immigration policies, he has yet to revoke the Title 42 order.

In December, the U.S. government admitted that it expelled 34 children under the border block, despite Judge Sullivan's injunction.

The migrant children are represented by Lee Gelernt, Daniel A. Galindo, Celso J. Perez, Stephen B. Kang, Cody Wofsy, Morgan Russell, Adrienne Harrold, Ming Cheung, Scott Michelman and Arthur B. Spitzer of the American Civil Liberties Union, Robert Silverman of Oxfam America, Karla M. Vargas and Efrén C. Olivares of the Texas Civil Rights Project, and Jamie Crook 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. et al. v. Pekoske et al., case number 20-5357, in the U.S. Court of Appeals for the D.C. Circuit.

Update: This story has been updated to provide further details on the case and comments from the ACLU.

--Editing by Adam LoBelia.

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

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