U.S. can’t exempt migrant children from border deportation policy, judge rules

A federal judge in Texas on Friday ruled against the Biden administration’s decision to exempt unaccompanied children from a Trump-era order that U.S. border agents have used to rapidly expel hundreds of thousands of migrants during the coronavirus pandemic.

Granting a request made by Republican officials in Texas, District Court Judge Mark Pittman barred the Biden administration from exempting migrant children traveling without their parents from the pandemic-era expulsion policy, which is known as Title 42, a section of the U.S. public health code.

Friday’s ruling by Pittman, who was appointed by former President Donald Trump in 2019, is the latest judicial victory for Texas’ Republican government, which has filed numerous lawsuits since President Biden’s inauguration to hinder his administration’s immigration and border policies.

Texas has already blocked key Biden administration immigration policies, including a proposed 100-day moratorium on deportations last January, and convinced a federal judge last summer to require U.S. border authorities to revive a Trump-era program that requires migrants to await their asylum hearings in Mexico.

Pittman’s ruling was issued just a few hours after a federal appeals court in Washington, D.C. barred the Biden administration from using Title 42 to expel migrant families traveling with children to countries where they could be harmed or tortured. That order has not yet taken effect. 

First instituted in March 2020, the Title 42 policy allows U.S. immigration authorities to expel migrants to Mexico or their home country without screening them for asylum or allowing them to see a judge. Over 1.5 million migrant expulsions have been carried out so far, according to government data.

The Biden administration has retained the Title 42 expulsions, arguing they are needed to curb the spread of the coronavirus inside border detention facilities. Under Mr. Biden, U.S. border officials have used Title 42 to expel most single adult migrants and some families traveling with minors. 

But the Biden administration has declined to expel unaccompanied children, who have special legal protections under U.S. law. Instead, officials have been transferring unaccompanied children to shelters overseen by the Department of Health and Human Services, as mandated by a 2008 anti-trafficking law. 

After entering HHS custody, unaccompanied children remain in government care until they are placed with sponsors, typically family members in the U.S. To remain in the U.S. permanently, they can seek asylum or other immigrant benefits, such as visas for abused, neglected or abandoned youth.

On Friday, Pittman said the Biden administration failed to properly justify the Centers for Disease and Control Prevention orders that codified the Title 42 exemption for unaccompanied minors last summer, calling them “arbitrary and capricious” and in violation of federal administrative law.

Pittman also agreed with Texas’ argument that migrant children who are not expelled could spread the coronavirus. 

“Here, the President has (arbitrarily) excepted COVID-19 positive unaccompanied alien children from Title 42 procedures—which were purposed with preventing the spread of COVID-19,” he wrote in his 37-page order.

The Biden administration has previously rebuffed these arguments, noting that all unaccompanied children are tested for the coronavirus upon being transferred to HHS, which has also offered vaccines to eligible minors.

Texas, Pittman argued Friday, has been harmed financially by the Title 42 exemptions because of costs associated with schooling and medical services for migrant children who have relocated to the state.

A record number of unaccompanied children arrived at the U.S.-Mexico border in fiscal year 2021. More than 122,000 of them were transferred to HHS shelters, an all-time high. 

It’s unclear if the administration will start to expel unaccompanied minors in light of Friday’s court order. During the Trump administration, nearly 16,000 unaccompanied children were expelled under Title 42 before a federal judge blocked the practice in November 2020, calling it illegal.

Representatives for the Department of Homeland Security (DHS) did not immediately respond to requests to explain how it would comply with Friday’s court order. Pittman suspended his order for seven days to give the government time to appeal. The Justice Department, which would file the appeal, did not respond to a request for comment.

Neha Desai, a lawyer at the National Center for Youth Law who represents migrant minors in a landmark court case, denounced Friday’s ruling, recalling “harrowing accounts” from children she interviewed after they were expelled.

“This decision, requiring the Biden Administration to block unaccompanied children from seeking safety at our borders, will place thousands of children directly in harm’s way,” Desai told CBS News. “There is no public health rationale for preventing children from seeking asylum and expelling them to life-threatening dangers.”

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.