On Wednesday, Judge Emmet G. Sullivan granted the plaintiff, a class representative for a putative class of unaccompanied minors at risk of deportation from the United States by the Center for Disease Control (CDC), a preliminary injunction to stop future deportations. The federal government authorized such deportations using a law from the 1800s that allowed the government to prohibit the entry of persons into the country to prevent the spread of a communicable disease.
The plaintiff, a 16-year-old child from Guatemala, attempted to enter the United States in August, when he was apprehended by Customs and Border Patrol (CBP) in Texas. The unaccompanied minor alleged that he was attempting to get to his father, who was already residing in Texas. The plaintiff further asserted that he was confined awaiting deportation, rather than being transferred to his father’s custody. As such, the minor filed suit against the federal government, seeking to not only prevent his deportation but to prevent the deportation of all unaccompanied minors remaining in the United States and enjoin the policy granting the federal government such authority.
The government, through the CDC and the Department of Homeland Security (DHS), proffered that such deportations were legal under the 1893 Act that gives the president authority, power which was then delegated to the CDC by executive order, to “prohibit…the introduction of persons (into the United States)…from (other) countries…(as) is required in the interest of the public health…by reason of the existence of any communicable disease in a foreign country.”
The defendants further pointed to the CDC order developed in furtherance of the 1893 Act that enabled the CDC director “to suspend the introduction of persons into the United States” as is necessary to prevent “a risk of transmission of a communicable disease to persons or property, even if the communicable disease has already been introduced, transmitted, or is spreading within the United States…” The CDC director used this order’s authority to initially allow DHS to just prevent the entry of all persons from Mexico or Canada, however, the plaintiffs proffered that the Director expanded the power in September to also allow the DHS to expel unaccompanied minors already in the United States.
The defendants did not refute the allegations that DHS was indeed expelling unaccompanied minors in the United States but argued that the 1893 Act and accompanying CDC orders legally gave the government grounds to do so.
Judge Sullivan summarily disagreed, granting the plaintiffs the desired preliminary injunction to enjoin the government’s power to expel additional unaccompanied minors. The court wrote that the 1893 Act, during the COVID-19 pandemic, clearly gave the federal government the authority to bar entry into the United States to prevent the spread of the coronavirus, but also just as clearly did not authorize expulsion of minors already in the United States. The district judge concluded by noting that, as has been done for hundreds of years, “when Congress wants to grant the power to expel individuals out of the United States, it does so plainly.”
The plaintiff is represented by the American Civil Liberties Union Foundation Immigrants’ Rights Project, the American Civil Liberties Union Foundation of the District of Columbia, the Center for Gender & Refugee Studies, and the Texas Civil Rights Project.
