The Trump administration is arguing that migrant children set to be expelled from the country under an emergency coronavirus order are not entitled to legal safeguards guaranteed to all minors in U.S. immigration custody.
In a court filing on Tuesday, Justice Department lawyers argued that migrant minors processed under a public health order meant to curb the coronavirus’ spread are not in the “legal custody” of the U.S. immigration officials who physically detain them. Instead, the government lawyers said, the children are in the “legal custody” of public health officials they never interact with while on U.S. soil.
Citing that distinction, the Trump administration says these children are not covered under the landmark Flores Settlement Agreement, which guarantees minors access to lawyers, safe and sanitary housing facilities and prompt release from U.S. government detention.
During the pandemic, Department of Homeland Security officials have been relying on a directive issued by the Centers for Disease Control and Prevention to bounce most border-crossers off U.S. soil. More than 72,000 of these expulsions were carried out in June, May, April and the last 11 days of March.
Like adults, most migrant children who arrive at the border unaccompanied or with their families have been processed and expelled under the CDC order. Despite a federal law generally requiring their transfer to the Office of Refugee Resettlement, only 162 migrant children were transferred to the agency’s state-licensed shelters in April, May and June — a time period in which more than 3,300 apprehensions of unaccompanied minors were made by officials at the southern border.
The exact number of children who have been expelled under the CDC order is unknown, as the Trump administration has declined to disclose figures. There are fewer than 800 unaccompanied minors in the custody of the Office of Refugee Resettlement, which has the capacity to care for more than 13,000 children at a time.
While some are expelled directly to Mexico, at least 249 children have been held in hotels in Texas and Arizona before being placed on deportation flights to Central America, according to government data provided to the lawyers representing minors in the Flores court case. If they are placed in hotels, unaccompanied children and families with minors are supervised by an Immigration and Customs Enforcement (ICE) contractor and not allowed to consult with lawyers before being expelled.
Those processed under the CDC order can’t request asylum. If they express fear of being tortured in their home country, they can speak to an asylum officer to see if they are eligible for temporary, limited protection from deportation under the United Nations Convention Against Torture. But even during these screenings, migrants are barred from consulting with lawyers, according to an email from an ICE official obtained by CBS News.
According to Justice Department lawyers, migrant children slated to be expelled are in the “legal custody” of the CDC, despite being in the physical custody of ICE or Customs and Border Protection (CBP), the agency that initially apprehends them.
The now-defunct Immigration and Naturalization Service (INS) was at the center of the 1997 Flores consent decree. ICE and CBP grew out of the INS, but the CDC did not. That distinction, the government lawyers argue, means children processed under the CDC’s public health order are not covered by the Flores agreement.
“Individuals subject to these processes are in the legal custody of HHS, and are not held pursuant to any authority vested in DHS,” the government lawyers wrote. “Under the plain terms of the Agreement, it does not apply to the custody at issue here because these minors are not in the ‘legal custody’ of CBP and/or ICE (or any successor to INS).”
Migrants whom officials seek to expel are processed under the CDC order solely because of their lack of immigration status. U.S. citizens and green card holders are exempt from the policy. Instead of being placed in regular immigration deportation proceedings, they are categorized as “Title 42” cases subject to “expulsion.”
The Justice Department attorneys contended that ICE and CBP are simply executing a directive issued by the CDC — which relies on a 1944 public health statute, not immigration law. “There is no reasonable argument that, at the time the Agreement was signed, the parties anticipated that 23 years later there would be a global pandemic, and that some of the legal-successor agencies to the INS would be charged with implementing emergency procedures on behalf of the Surgeon General,” the government lawyers wrote.
CDC officials did not respond to questions about whether they agree with the notion that migrant children are in their “legal custody” before being expelled. The officials referred questions to the Department of Health and Human Services (HHS), which oversees the CDC. HHS officials did not respond.
Homeland Security and ICE officials did not respond to requests for comment. CBP spokesperson Matthew Dyman declined to comment, citing ongoing litigation. The agency has previously said that minors processed under the CDC order are provided “amenities and services consistent with applicable law and policy.”
Attorneys representing migrant children in the Flores case said the Trump administration’s legal argument is another effort to strip migrant children of key protections won through years of court battles.
“As the courts have previously and repeatedly articulated, the Flores Settlement Agreement covers all children in federal immigration custody,” Neha Desai, the director of the immigration division at the National Center for Youth Law, told CBS News. “The government’s attempt to flout the Settlement by reclassifying children as ‘Title 42’ is reminiscent of their failed attempts to evade protections for accompanied children by arguing they are not Flores class members.”
U.S. District Judge Dolly Gee, who has overseen the Flores case for years, is expected to make a ruling on the government’s argument soon. Justice Department lawyers have asked her to hold a full briefing before doing so.
First issued on March 20, the CDC expulsions order was formally extended two times by Director Robert Redfield, including in May, when he said the policy would remain in place indefinitely. Since then, Redfield has made reassessments every 30 days to continue the policy.
“The order is still in place because, based on his assessment, it did not warrant being rescinded,” said CDC spokesperson Jason McDonald.
Redfield’s recent reassessments are not public and the CDC has not disclosed the factors he’s weighing as he continues to authorize the expulsion of migrants.
The American Civil Liberties Union has filed several lawsuits on behalf of unaccompanied children processed under the CDC order. During a hearing for one of the cases, a federal judge appointed by President Trump said the expulsions policy likely violated public health laws and those designed to protect unaccompanied children.
In all but one of the cases, the government has moved to exclude the named plaintiffs from the policy, allowing them to seek asylum in the U.S. and then arguing in court that the lawsuits are moot. One of the ongoing cases involves a 13-year-old girl who had been expelled to El Salvador before a lawsuit was filed on her behalf.
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