Judge orders Trump administration to stop expelling migrant children under COVID-19 public health order

U.S. District Judge Emmet Sullivan in Washington, D.C., ordered the Trump administration Wednesday to stop "expelling" unaccompanied young migrants at the U.S. border with Mexico, also suggesting the administration's use of an emergency public health law to seal the border might not pass legal muster.

Sullivan declined to stay his preliminary injunction, meaning the Homeland Security Department will have to stop returning unaccompanied minors to Mexico or flying them home while DHS appeals the ruling, as expected. Either way, this will push a decision into the Biden administration. President-elect Joe Biden has not said he will review or reverse most of President Trump's border policies, but has not specified his plans for the expulsion regime.

The Trump administration pressured the Centers for Disease Control and Prevention in March to use its emergency public health powers under Title 42, Section 265 of the U.S. Code to effectively halt all migration at U.S. borders. Dr. Martin Cetron, the CDC's director of global migration and quarantine, refused to sign the order, ProPublica reported in October, telling a colleague, "It's just morally wrong to use a public authority that has never, ever, ever been used this way. It's to keep Hispanics out of the country.." CDC Director Robert Redfield signed it instead.

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Through September, the U.S. government has used the order to expel 204,787 migrants processed at the U.S.-Mexico border, DHS says, and the ACLU says nearly 14,000 of those asylum-seekers were children.

Sullivan, while not ruling on the legality of adults and families crossing the border, did note that the 19th century law did not mention expulsion powers. "The court agrees that the undisputed authority granted in Section 265 is extraordinary and that the COVID-19 pandemic is unprecedented," he wrote in his two-page ruling. "But that is entirely distinguishable from whether or not Section 265 authorizes the government to expel persons."

Lee Gelernt, director of the ACLU's Immigration Rights Project, called Sullivan's ruling "an enormous step" and an effective repudiation of "the most egregious asylum policy this administration has enacted, because it completely bypasses the entire asylum system." Karla Marisol Vargas with the Texas Civil Rights Project said the lawsuit confirms "what we already knew: The Trump administration cannot weaponize a pandemic to destroy long-established protections for children with a shadow system of zero accountability."