A Judge Has Ordered The Biden Administration To Resume Trump’s Policy Of Expelling Unaccompanied Immigrant Children At The Border

President Biden has continued to invoke the public health order to expel most immigrants at the southern border, but was making an exception for children who arrive without an adult family member.

Dario Lopez-mills / AP

Unaccompanied immigrants, ages 3 to 9, watch television inside a playpen at a Customs and Border Protection facility in Donna, Texas, on March 30, 2021.

A Texas judge on Friday ruled that the Biden administration can no longer exempt unaccompanied immigrant children from a Trump-era order, which could lead to the resumption of their being turned back at the border.

Citing an obscure public health law known as Title 42 to contain the coronavirus, the US immediately expels immigrants at the border, blocking them from accessing the asylum system or an immigration judge. Some immigrants are quickly expelled to Mexico, and others are flown back to their countries. While Title 42 was launched by former president Donald Trump, Joe Biden's White House has continued to enforce the policy and defend it in court — with the exception of unaccompanied immigrant children.

In his order, though, Judge Mark Pittman told the government to stop the exemption. The order doesn't go into effect for seven days, giving the government time to appeal.

Pittman, who was appointed by Trump, questioned why the Biden administration believed it was appropriate to exempt unaccompanied minors from Title 42 in two orders it issued in July 2021 and August 2021.

Unaccompanied minors "still spend, on average, more than a day clustered at a DHS facility, where they can expose other detainees, [Department of Homeland Security] personnel, and American citizens and residents to whatever viruses they are carrying," Pittman said in his order.

The decision was met with criticism from advocates for immigrant children.

“Under no circumstance should a policy that was never about public health be used to return children arriving at the border alone to harm in Mexico or their countries of origin,” said Katharina Obser, director of the Migrant Rights and Justice program at the Women’s Refugee Commission. “Ending the policy has been long overdue, but there is no question that the Biden administration must now immediately move to end this unlawful, xenophobic policy to ensure the safety of children, families, and adults fleeing danger, and before a single unaccompanied child is returned to harm.”

Pittman found that the government not only had violated the Administrative Procedure Act but also had, in fact, put Texas in a position to sustain financial consequences. Pittman said the order’s exemption for unaccompanied children had led to the fact that “Texas has experienced, and will continue to experience, significant financial loss.”

Since Title 42 was invoked in March 2020, advocates and attorneys have criticized the policy’s effectiveness in helping to stop the spread of COVID-19.

The order Friday came the same day the US Court of Appeals for the District of Columbia Circuit upheld a lower court's ruling allowing the government to continue using Title 42, although the Biden administration was blocked from expelling immigrant families to places where they would be persecuted or tortured.

More than 1.6 million immigrants and asylum-seekers have been expelled under Title 42, according to data from Customs and Border Protection.