A federal court on Wednesday tossed a wrench into the works of the Trump administration’s deportation policy, barring the U.S. government from deporting unaccompanied immigrant children using the pretext of the ongoing coronavirus (COVID-19) pandemic.
In a 50-page memorandum opinion and order, the U.S. District Court for the District of Columbia enjoined a Department of Homeland Security (DHS) program aimed at expelling unaccompanied minors. This program relied on the authority of recent regulations issued by the Centers for Disease Control (CDC) in response to COVID-19.
In fact, the CDC regulations were issued by the agency after an executive branch power play earlier this year. The agency’s top scientists resolutely refused to issue the directive–which has resulted in well over 10,000 children being deported–because there was no evidence it would decrease the spread of the coronavirus.
After that flash of rebellion, Vice President Mike Pence stepped in and leaned on CDC Director Dr. Robert Redfield, forcing the agency’s hand by way of a conference call including Pence’s chief of staff, Marc Short, and unlawfully appointed Acting Homeland Security Secretary Chad Wolf.
The American Civil Liberties Union (ACLU) sued the Trump administration on behalf of minor child and a class of other children like him who were harmed by the controversial directive.
U.S. Magistrate Judge G. Michael Harvey issued as report broadly in the ACLU’s favor and recommended that the D.C. District Court “provisionally grant the motion for class certification and grant the motion for preliminary injunction.” In his Friday opinion and order, U.S. District Judge Emmet G. Sullivan did exactly that. Sullivan is known recently for being Michael Flynn’s trial judge and for his grilling of the United States Postal Service.
Key to both of those decisions favoring the immigrants rights plaintiffs is the fact that the Trump administration’s use of the CDC order–which the ACLU refers to as the “Title 42 Process”–is in direct conflict with the actual language of regulation issued.
Namely, the regulation itself provides the government absolutely no statutory authority to deport people. That interpretation was created out of whole cloth by the DHS–reportedly at Stephen Miller’s request–in order to fit the square peg of new deportation powers into the round hole of pandemic-themed rule-making.
Judge Sullivan noted a recent decision in another district court that summarized the incongruity of using the CDC order to deport people:
(1) [The rule] does not grant the CDC Director the power to return or remove, in light of the fact that immigration statutes directly “reference the power to return or to remove,”; (2) [the rule] “should be harmonized, to the maximum extent possible, with immigration statutes,”; and (3) the CDC Director is not entitled to deference under Chevron because [the rule] must be “read in light of statutes that the CDC Director quite plainly has no special expertise regarding and . . . the order does very little by way of an analysis of what exactly the power to prohibit the introduction of persons and property means.”
In other words: (1) the expulsions were not based on any actual rule or law in existence; (2) the expulsion program completely lacks any form of process which is in direct violation of federal immigration law; and (3) the expulsions themselves were also “arbitrary and capricious” under the relevant considerations of the Administrative Procedure Act of 1946.
Advocates reacted favorably to the court’s decision.
“Fantastic news!” American Immigration Council attorney Aaron Reichlin-Melnick tweeted in response. “The judge makes absolutely clear that deporting children under a federal quarantine law that does not even mention the word ‘deport’ or ‘expel’ is illegal, given the extensive protections provided for them in law.”
The ACLU also celebrated the victory via Twitter.
“A court blocked the dangerous and illegal deportation of unaccompanied kids without any due process under the Trump administration’s ‘Title 42’ policy, which closed the border to asylum seekers,” the storied civil liberties organization said. “At least 13,000 unaccompanied kids were already subjected to the policy.”
The ruling will have a huge and immediate impact on “[a]ll unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process.”
[image via BRENDAN-SMIALOWSKI/AFP/Getty Images]
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