The Trump administration has expelled at least 67 unaccompanied migrant children who arrived on the US-Mexico border since November 18, continuing to invoke Covid-19 as a rationale in defiance of a court order.
US District Judge Emmet Sullivan blocked the administration on November 18 from turning unaccompanied migrant children away on the basis of Centers for Disease Control and Prevention public health restrictions. President Donald Trump has used those restrictions to shut the door on virtually all asylum seekers arriving on the southern border, largely replacing other policy barriers he implemented prior to the pandemic.
US Immigration and Customs Enforcement put 33 unaccompanied children on a flight to Guatemala on the day Sullivan issued the decision and decided not to bring them back to the US, BuzzFeed reported at the time. And on Saturday, the Justice Department admitted in a filing in Washington federal court that the administration had expelled 34 additional unaccompanied children in “contravention” of Sullivan’s ruling, saying that officials had “already begun taking steps to remedy those actions as well as to avoid future expulsions.”
Border Patrol chief Rodney Scott said in a court filing Saturday that his agents had encountered more than 3,700 unaccompanied children from November 18 to December 10 who were processed in compliance with the court order and resulting agency guidance. But 26 children — ages 14 to 17 years old and mostly arriving in the Rio Grande Valley — had also been expelled. Nine of the children later tried to reenter and were processed in accordance with the court order.
He said that his office has since reiterated the agency guidance to all of its field offices and sector chiefs and has contacted Mexican authorities in order to locate the affected children, but has not had success so far. He cited in-person training challenges due to the pandemic and said that “formal discipline is being actively considered” for the officials responsible, who were apparently “unaware of the guidance.”
William Ferrara, a senior field operations official at US Customs and Border Protection, also reported in a court filing Saturday that his office had expelled eight unaccompanied children, ages 12 to 17, including one who was expelled a second time upon trying to reenter the US. The officers responsible had claimed that the children had “made a wrong turn and had no intention of entering the United States” or were unable to prove their identity or immigration status, he said.
The Trump administration began expelling migrants to Mexico in March under Title 42, a section of the Public Health Safety Act, that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.” It resulted in the expulsions of more than 250,000 people from March through October and remains effective until the CDC director determines that the further spread of Covid-19 has “ceased to be a serious danger to public health.”
By the time Sullivan prevented the administration from expelling unaccompanied children under the policy, at least 13,000 such children had already been deported, often with little if any notice to their parents or legal counsel and even if they showed no symptoms of the virus. Others had been held in hotels along the border for extended periods under the program.
President-elect Joe Biden has left open the possibility of maintaining the Title 42 program at least temporarily. But it’s not clear that there remains a legitimate public health rationale for keeping the policy in place, given that the level of community transmission inside the US is already so high.
Immigrant advocates have argued that the US can continue to protect vulnerable immigrants without adverse consequences to public health. Jennifer Podkul, the vice president of policy and advocacy at the legal aid group Kids in Need of Defense, said in a press call that the administration could at least create exceptions for particularly vulnerable classes of migrants.
Still, the Biden administration might be weighing whether to maintain the Title 42 program as a means of stemming migration temporarily at a time when many Americans support such restrictions. An August NPR/Ipsos poll found that 58 percent of Americans support “banning the entry of asylum seekers and refugees into the US” to curb the spread of Covid-19.
“They’re coming into office in January. It’s highly likely that Covid conditions will continue to be in an emergency state,” Doris Meissner, a senior fellow at the Migration Policy Institute who served as an immigration official under the Clinton administration, said in a press call. “So it is possible that we would see a new administration maintain the CDC guidance at the border, at least for some period of time, which would also then gain some time for putting changes into place that allow for a more functional system for granting asylum.”