DHS Says Detaining Migrant Children Protects Public Health

By Sarah Martinson
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Law360 (September 10, 2020, 7:41 PM EDT) -- The U.S. Department of Homeland Security slammed a proposed class action challenging the detention and deportation of unaccompanied migrant children, saying that the suit's request for remedy would hinder the government's ability to protect public health during the pandemic.

In response to a lawsuit from the American Civil Liberties Union aimed at stopping the detention of unaccompanied minors in hotels and their subsequent summary expulsion, DHS told a D.C. federal court on Wednesday that the director of the Centers for Disease Control and Prevention has the authority to prohibit undocumented immigrants from Mexico and Canada from entering the U.S. to contain the spread of the novel coronavirus.

Border facilities where undocumented immigrants are held up to days while awaiting immigration proceedings are not able to implement social distancing measures, making them high-risk areas for virus transmission, DHS said.

"There is no reason to allow plaintiff to hamper the CDC director's lawful and demonstrably effective response to the pandemic, and second-guessing the director's judgment at this juncture potentially could lead to devastating public health consequences," DHS said.

The ACLU, which is representing a 16-year-old Guatemalan boy who allegedly came to the U.S. by himself to escape persecution, hit DHS with the suit in August, saying the department is skirting immigration law by detaining unaccompanied children in hotels for days before deporting them during the COVID-19 pandemic.

The ACLU asked the federal court to stop DHS from deporting unaccompanied minors — who may be trying to escape torture or persecution — before they are processed and given an opportunity to seek relief in the U.S.

Under the law, unaccompanied children are supposed to be placed in the custody of the U.S. Department of Health and Human Services' Office of Refugee Resettlement within 72 hours of being apprehended by immigration authorities, according to the suit.

DHS said that Section 265 of Title 42 in the Public Health Service Act — a law that outlines special powers for the federal government during public health emergencies — gives the CDC director the authority to limit entry into the U.S. from Canada and Mexico.

Under Section 265, Congress gave the federal government "the power to prevent persons from entering the country who might further the spread of a communicable disease," according to DHS, which also asked the court not to certify the proposed class.

On Wednesday, DHS' Office of Inspector General released a report that found that U.S. Customs and Border Protection is taking measures other than social distancing to safeguard individuals in their facilities from the coronavirus. CBP's measures include reducing traffic in its facilities, providing personal protective equipment and conducting risk assessments.

Representatives for the proposed class and the government did not respond to requests for comment on Thursday.

The proposed class is represented by Stephen B. Kang, Cody Wofsy, Morgan Russell, Adrienne Harrold, Andre Segura, Kathryn Huddleston, Rochelle Garza, Brantley S. Drake, Celso J. Perez, Lee Gelernt and Daniel A. Galindo, Scott Michelman and Arthur B. Spitzer of the ACLU, Robert Silverman of Oxfam America, and Karla M. Vargas and Efren C. Olivares of Texas Civil Rights Project.

The government is represented by Jeffrey Bossert Clark, David Morrell, Jean Lin, Kevin Snell, Bradley Craigmyle and Tanya Senanayake of the U.S. Department of Justice's Civil Division.

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

--Editing by Steven Edelstone.

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

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