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WASHINGTON—The Trump administration, which has used the coronavirus health emergency to expel migrants at the border without allowing them to apply for asylum, faces its first court challenge over the practice in a lawsuit filed on behalf of a 16-year-old boy.
Since President Trump declared a public-health emergency in March, immigration agents have turned back nearly all migrants, including children, at the border without providing a chance to file asylum claims. The government invoked a 1944 public-health law allowing it to expel any noncitizen who poses a threat of spreading disease during an emergency. It extended that provision indefinitely in May.
The new process overrides immigration laws that allow any foreigner on American soil with a credible fear of persecution to apply for asylum, and laws prohibiting migrant children from being deported.
The lawsuit was filed in the district court in Washington by the American Civil Liberties Union on behalf of a 16-year-old boy from Honduras, known only by his initials J.B.B.C. He crossed the border in early June to join his father, who is living in the U.S. and awaiting his own immigration case to be heard, after fleeing what the suit described as “severe persecution” in his home country.
Under the typical process, border agents would have turned over the child to the Department of Health and Human Services, which runs a network of migrant shelters for children across the country and seeks to find them suitable guardians. Instead, border agents detained the boy in El Paso, Texas, and plan to deport him imminently, in accordance with the public-health emergency process.
Late Tuesday evening, Judge Emmet G. Sullivan granted J.B.B.C. a temporary restraining order, ordering the government not to deport him through at least Wednesday at midnight.
The White House and the Department of Homeland Security didn’t immediately respond to requests for comment.
The lawsuit’s supporters acknowledge that the suit is a gamble. If a federal judge rules that immigration laws can be bypassed during an emergency—a novel application of the public-health law—the government would gain broad new authority. But not suing, they say, could allow deportations without due process to continue.
“If the courts don’t step in, the Trump administration will continue to indefinitely strip refugees of the right to seek asylum,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
The Trump administration has long said the immigration laws it is overriding are loopholes that encourage people to migrate to the U.S. It has repeatedly advocated for Congress to repeal them. The government said the new process was designed to prevent the coronavirus from spreading through its cramped border-detention facilities, sickening other migrants and border patrol agents.
The ACLU said the immigration law already allows the government to test and quarantine migrants it believes to be carrying communicable diseases. “Through the [public-health] Process, the Administration has sought to usurp Congress’s role and bypass the entire immigration statutory scheme,” the suit reads.
Even if the public-health law “permits the expulsion of some individuals, that power would not apply to children or those seeking protection from persecution or torture,” according to the suit.
In May, the administration indefinitely extended its public-health emergency and the accompanying new border process, which had originally been introduced for a 30-day duration, later renewed for another 30 days.
Though immigrant advocates and Democrats had previously sounded alarms about the bypassing of immigration laws, no organization had sued. Advocates said they feared challenging the public-health emergency when it had an end date would appear tone-deaf to the dangers of the virus and wouldn’t stand up in court.
Since the earliest days of the administration, the president’s immigration advisers—including Stephen Miller, a top White House aide—have explored declaring a public-health emergency at the border in the belief it would allow the government to prevent asylum applications, The Wall Street Journal has previously reported. The plan gained traction in the spring of 2019, during a particularly virulent flu outbreak inside border detentions, but it was ultimately scrapped by administration lawyers.
Several administration officials said they now expect the current public-health emergency to remain in effect well beyond the introduction of a Covid-19 vaccine—which experts believe could take more than a year—as migrants would be unlikely to have received it.