The Trump administration expelled 32 children who came to the US without a parent back to Guatemala after a federal judge issued a preliminary injunction blocking the controversial practice that same day.
The injunction was issued Wednesday by US Judge Emmet Sullivan minutes before an Immigration and Customs Enforcement (ICE) flight left for Guatemala City with the 32 children.
An ICE official confirmed that the flight left “shortly before ICE was informed of the court's injunction” against Title 42, the public health provision used by the Trump administration to expel people from the US citing the coronavirus pandemic.
The official said that ICE officers on the ground did not become aware of the judge’s order until the flight had landed and Guatemalan authorities were greeting the children, who remained in Guatemala as of Tuesday.
“We are aware of the situation and are looking into it. Hopefully, no child is being denied the benefit of the ruling,” said Lee Gelernt, an ACLU attorney who led the lawsuit that resulted in the preliminary injunction blocking the policy.
The expulsion of the 32 children happening on the same day of Sullivan’s order could force the agency to bring back the children because it violated the judge’s decision, legal experts said.
“It is unconscionable that they are leaving the kids there and that they did not immediately bring them back,” said Sarah Pierce, an analyst at the Migration Policy Institute. Even if the flight took off before ICE officials knew, she added, “the expulsion is not only putting kids on the plane and taking off, it is also placing them in another country.”
Pratheepan Gulasekaram, a professor at Santa Clara University Law School, said ICE’s repeated issues in court under the Trump administration could play a factor in this case if Sullivan assesses whether they violated his order. Federal court judges have complained that they were lied to by officials in cases involving immigration policy during the Trump administration.
“It is not out of the power of the district court, if someone could raise the matter, to order ICE to return the children that it removed on that flight,” he said, noting that ICE officials will likely say that there will be practical difficulties in tracking down and locating the 32 children. (The agency initially said there were 33, but one of them was later found to be an adult.)
The Trump administration has argued that the current policy is necessary to prevent the spread of the coronavirus in the United States.
“If the Title 42 order were to be undone by the court or the next administration, especially in the midst of a surging pandemic, ICE will be obligated to increase transportation operations, conducting the escorts of individuals and unaccompanied children using commercial airlines and ground transportation, as appropriate,” the ICE official said. “This poses an increased risk to the general public aboard commercial airlines as the Title 42 order was enacted to mitigate the public health risks of aliens attempting to unlawfully enter the United States in the midst of the pandemic.”
Critics said the government was using public health orders from the Centers for Disease Control and Prevention as an excuse to violate federal laws that govern the processing of unaccompanied children at the border.
BuzzFeed News previously reported that the Department of Homeland Security has expelled unaccompanied immigrant children from the US border more than 13,000 times since March.
Before the pandemic, unaccompanied children picked up by Border Patrol agents would be sent to the Office of Refugee Resettlement (ORR), where they would be housed in shelters as they started applying for asylum and waited to be reunited with family members in the US.
The ORR referral process was created by the Trafficking Victims Protection Reauthorization Act, which was signed by then-president George W. Bush in 2008. Under the law, Customs and Border Protection officials are generally required to refer the children within 72 hours to the US refugee agency. But those referrals dropped precipitously after the CDC's coronavirus order.
Instead, unaccompanied children at the border are turned back immediately to Mexico or held in detention facilities until a flight can get them out of the country.
In late June, US District Judge Carl Nichols, who was appointed by President Donald Trump, blocked the deportation of a 16-year-old Honduran boy under the CDC's order. While the ruling did not void the policy altogether, it was seen as a blow to the administration. Since then, the government has said it was no longer seeking to use the CDC's order to remove the boy from the country.
ICE officials said four of the children on the flight to Guatemala had tested positive for COVID-19.