UPDATE: On Nov. 18, 2020, a federal judge ordered the U.S. Department of Homeland Security and border control authorities to stop expelling unaccompanied immigrant and refugee children – something the Trump administration said was necessary to stem the spread of COVID-19.
The Department of Homeland Security recently hit back against a class action lawsuit challenging their treatment of migrant children during the COVID-19 pandemic.
The DHS filed their opposition to a migrant children class action lawsuit, arguing that their actions were justified based on the ongoing COVID-19 pandemic. Congress has reportedly given the government special leniency during such situations under the Public Health Service Act.
Based on this, the Centers for Disease Control and Prevention (CDC) director is legally allowed to deport unaccompanied children during the pandemic, the DHS argues.
“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,” the DHS wrote in their opposition motion.
The ACLU filed a class action lawsuit against the DHS in August, representing a 16-year-old Guatemalan who says he tried to come to the U.S. to escape persecution. In the class action lawsuit, the ACLU argued that the government is violating immigration laws with their treatment of unaccompanied minors.
Allegedly, the DHS is detaining migrant children in hotels for days. Unfortunately, during this time, migrant children are reportedly unable to socially distance despite the increased risk of COVID-19 transmission. After being subjected to these risks, migrant children are allegedly deported before they are given a fair chance to seek relief under immigration laws.
According to the ACLU, this treatment violates immigration law – even in the midst of the COVID-19 pandemic. Under the law, the DHS is reportedly required to take custody of unaccompanied migrant children within 72 hours of them being apprehended.
The ACLU asked the court to stop the DHS from illegally deporting migrant children without processing them and giving them the chance to seek refuge from torture or persecution.
However, according to the DHS’ recent opposition to the case, the government is completely justified in their actions under the Public Health Service Act.
One section of this law reportedly outlines special powers given to the government during health emergencies such as a pandemic. Section 265 of Title 42 in the Public Health Service Act reportedly establishes “the power to prevent persons from entering the country who might further the spread of a communicable disease.”
Because of the high risk posed by detained migrant children, the DHS argues that they are authorized to take actions which otherwise would not be justified.
The ACLU disagrees. In the migrant children class action lawsuit, the ACLU argues that Title 42 doesn’t justify the universal denial of migrant children’s rights. Instead, this section of the Public Health Service Act allegedly allows the government to exercise powers of quarantine and testing.
The migrant children class action lawsuit stresses that “unaccompanied children may under no circumstances be deported without a proper opportunity to determine their right to remain in the United States.”
The ACLU offers further preemptive arguments against justification based on the COVID-19 pandemic. The migrant children class action lawsuit contends that there are better ways to protect border officials than indiscriminately deporting children.
Measures such as face masks, gloves, and social distancing will reportedly be effective in preventing the spread of COVID-19 without violating immigration law.
The DHS’ Office of Inspector General released a report in early September finding that border patrol is taking COVID-19 preventative measures including socially distancing. Other measures are reportedly being utilized as well, including reducing traffic, personal protective equipment such as masks, risk assessments, cleaning, and more.
“However, facilities reported concerns with their inability to practice social distancing and the risk of exposure to COVID-19 due to the close-contact nature of their work. The facilities expressed concerns regarding staff availability, however, if there were an outbreak of COVID-19 at the facility,” the DHS inspector’s report found.
“Overall, the majority of respondents reported that their facilities were prepared to address COVID-19.”
Do you think the Department of Homeland Security is fair in their treatment of migrant children? Share your thoughts in the comment section below.
Plaintiffs and the proposed Class are 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 Migrant Children COVID-19 Class Action Lawsuit is P.J.E.S., et al. v. Wolf, et al., Case No. 1:20-cv-02245, in the U.S. District Court for the District of Columbia.
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