Biden Modifies Trump Policy to Allow Entry of Unaccompanied Children

February 13, 2021
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Last week, the Biden Administration decided to allow unaccompanied children crossing illegally into the U.S. to stay while waiting for their court dates.  It did so by modifying the CDC’s order that bars the entry of most aliens along the Mexican and Canadian borders to help stop the spread of Covid-19.  The modified order, signed by CDC Director Rochelle Walensky, expressly exempts “unaccompanied noncitizen children” from the bar to entry.

Prior to the modification, the CDC had generally barred all aliens from entering at land borders due to Covid-19.  Back in March 2020, just as Covid-19 had been declared a pandemic by the World Health Organization and a National Emergency by President Trump, the Administration took steps to limit travel in and out of the United States.  As part of this effort, the U.S. government signed join agreements with Mexico and Canada to limit non-essential travel between countries.  (DHS press release on Mexico, March 20, 2020; DHS press release on Canada (March 20, 2020); extended in March 2021)

At the same time, the CDC decided to act on its Title 42 authority to limit cross-border travel.  Like other restrictions placed on air and sea travel at the time, the Trump Administration hoped that invoking Title 42 authority would help prevent the spread of Covid-19.  However, there were certain hurdles the government had to jump in order to implement this policy.    

Title 42 grants the government broad authority to prohibit the entry of persons for the purpose of spreading communicable diseases.  In particular, Section 265 of Title 42 (originally passed in 1944 as Section 362 of the Public Health Service Act) provides:

“Whenever the Surgeon General determines that, by reason of the existence of any communicable disease in a foreign country, there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger and for such period of time as he may deem necessary for such purpose.”

While Section 265 assigns the authority to invoke Title 42 authority to prohibit the entry of persons to the Surgeon General, due to multiple delegations of authority over time, the CDC has inherited the authority.  (HHS Final Rule, Sept. 11, 2020; Congressional Research Service, Federal and State Quarantine and Isolation Authority, Note 26, Oct. 9, 2014).  

However, before CDC may invoke this authority, Section 265 requires that sufficient regulatory guidelines are in place.  As existing CDC regulations only addressed the agency’s authority to prohibit the introduction of property into the U.S. or to quarantine or isolate persons entering the U.S., the CDC needed to add a provision regarding the prohibition on the entry of persons to the books. 

On March 20, 2020, the CDC accomplished this by publishing an interim final rule that set forth the details of how CDC may exercise its authority to prohibit the entry of persons to the U.S. under Section 265.  To support its actions, the CDC argued it was well-accepted that “COVID–19 infection transmits easily, spreads quickly through global travel, and can have a high mortality rate for some of the most vulnerable members of society.”  It pointed out that there was (at the time) no vaccine, therapeutic, or rapid testing for the disease. It also explained how quarantine and isolation do not always offer a practical solution to stop the spread of a highly communicable disease, citing, as an example, the difficulty of handling the outbreak on cruise ships in February and March 2020.  It also noted that testing procedures, which usually required three to four days to receive results, did not offer a practical solution to stop cross-border spread.  Therefore, it argued, the “CDC needs a robust, efficient mechanism for exercising its authority under section [265] and other applicable authorities to suspend the introduction of persons into the United States.”   

After the CDC issued the interim final rule, the CDC Director Robert Redfield issued an order prohibiting the entry of persons by land from Mexico or Canada (regardless of their country of origin) who would otherwise be introduced into “congregate settings” at a land port of entry or Border Patrol station at or near the U.S. border.  The CDC stressed it would not apply to U.S. citizens, lawful permanent residents, members of the armed forces, individuals with valid travel documents who arrive at a port of entry and individuals participating in the visa waiver program who arrive at a port of entry. Thus, the CDC order generally applied to illegal aliens, who, upon their arrest would be held in close quarters in Border Patrol facilities for processing.  The Border Patrol facilities, as the CDC noted, are not designed to isolate individuals or enable social distancing.  They also usually have minimal medical resources and ability to test or treat sick individuals.    

Within 24 hours, Customs and Border Protection (CBP), which has jurisdiction over the ports of entry (Office of Field Operations) and the territory between the ports of entry (Border Patrol) announced it would enforce the CDC’s order.   (CBP press release, March 21, 2020)  “To help prevent the introduction of COVID-19 into border facilities and into the United States,” CBP stated, “persons subject to the order will not be held in congregate areas for processing and instead will immediately be expelled to their country of last transit.”  At the same time, CBP clarified that it would not expel persons who should be excepted based on considerations of law enforcement, officer and public safety, humanitarian, or public health interests. Thus, for example, if a known sex offender walked through a CBP port of entry, CBP would not expel the individual, but instead process him pursuant to regular procedures and take him into custody. 

Immigration advocates cried foul at the Trump Administration’s move to expel aliens at the border, arguing it entirely blocked the ability for anyone to claim asylum.  Although the vast majority of these aliens could have claimed asylum in Mexico, they argue that the U.S. public health laws should not trump immigration laws and that CBP should simply allow illegal aliens into the U.S. to claim asylum and release them to relatives and friends already in the U.S. (i.e. not detain them) so they will not contribute to the spread of Covid-19. (See, e.g., Refugees International, Apr.27, 2020; NIJC, March 12, 2021)  Note that this would still require the CBP to process the aliens, who are arriving in unprecedented numbers, and temporarily detain them in Border Patrol Stations, Ports of Entry, ICE detention facilities, or HHS shelters. By allowing them to circulate throughout the country, it would also let potentially infected migrants come into contact with more people while still contagious.  At the same time, the advocates urge the U.S. to provide aliens arriving illegally in the U.S. with testing, vaccines, and treatments. (Id.)

Despite these protests, the CDC renewed its order pursuant to Title 42 on April 20 and May 19, at which time the CDC provided that the order was effective immediately and would remain effective until the CDC determines that “the danger of further introduction of Covid-19 into the United States has ceased to be a serious danger to the public health, and continuation of this Order is no longer necessary to protect public health.”  To ensure regular review of the situation, the CDC committed to reviewing the order every 30 days to determine whether revision or termination was necessary. (Id.)

By August 2020, the ACLU, Oxfam, and Texas Civil Rights Project filed a class-action lawsuit challenging the Trump administration on behalf of Unaccompanied Alien Children (UACs) (P.J.E.S. v. Wolf complaint (Aug. 14, 2020))  Plaintiffs argued that the Administration’s use of Title 42 authority to expel illegal aliens:

  • Is unlawful because Section 265 of Title 42 only gives the government the power to “prevent the introduction of persons,” it does not give the government the authority to expel persons;
  • Violates the provisions specifying the processing of Unaccompanied Alien Children (UACs) at the border pursuant to the Trafficking Victims Protection Reauthorization Act of 2008 and that these laws supersede the public health laws in Title 42;  (TVPRA; 8 USC 1232); and
  • Is arbitrary and capricious in violation of the Administrative Procedure Act;

As the litigation unfolded, the CDC finalized its initial rule to implement the Title 42 authority and published it September 11, 2020, providing it would become effective October 13.  (HHS Final Rule (Sept. 11, 2020)  

In November, the District Court ruled in favor of the Plaintiffs.  (P.J.E.S. v. Wolf, Civ. Action No. 20-2245_EMG (Nov. 18, 2020)  The Court first granted the class certification for a class action lawsuit against the government. The Court then granted the injunction based on Plaintiffs’ argument that Section 265 of Title 42 did not expressly authorize expulsions.  The Government argued that the word “prohibit” means “to forbid” or “prevent,” which clearly encompasses the act of expelling.  Thus, the phrase “prohibiting the introduction of, in whole or in part, of persons” into the U.S. means that the Government could intercept aliens at the border and quarantine (in part) them or intercept them and expel them (in whole).  

The Court disagreed.  The Court concluded that, while the statute does authorize the government “the power to prohibit, in whole or in part, the introduction of persons” into the United States, this power is not the same as the power to expel.  “Even accepting that the phrase, “prohibit[ing] . . . the introduction of,” means “intercepting” or “preventing”; the phrase does not encompass expulsion; but merely means that the process of introduction can be halted. (Id. at 26)

By the Court’s reasoning, in order for the Government to invoke its Title 42 authority at a land border, CBP would have to stop aliens as they have one foot over the international border.  CBP cannot station border agents outside of the physical territory of the United States, which would allow them to prevent aliens from crossing into the U.S.  Moreover, border agents could not stand 20 feet behind the border because, once the aliens have crossed that border, the process of introducing persons into the U.S. has already taken place and cannot be undone.  Thus, to legally prohibit the introduction of persons under 42 USC 265, according to the Court, border agents would have to literally stand on the international border and stop illegal aliens from crossing.  The only alternative for the Government. to stop the spread of a communicable disease from migrants-- following the Court’s logic—would be to quarantine everyone arriving by land at the border, which amounts to the quarantine of hundreds of thousands – if not millions – of people annually.  But CBP neither has the manpower or bed space to accomplish this and it would only further the spread of communicable diseases, in this case Covid-19, within the U.S. 

The Court applied its injunction to the final rule, issued in October.  Therefore, from mid-November to late January, the Government was required to allow the entry of UACs, process them, and transfer them to HHS custody, pursuant to current law.   

On January 29, 2021, the Circuit Court of Appeals for the District of Columbia Circuit (or the DC Circuit Court) stayed the District Court’s injunction. (DC Circuit Court order, Jan. 29, 2021)  Although it did not provide an analysis for its decision, the Court stated that the Government had “satisfied the stringent requirements for a stay pending appeal.”  It also ordered that the case be expedited. 

The ACLU responded quickly.  In a press release, ACLU lead attorney Lee Gelernt stated: “This is only a temporary setback. We will continue to litigate this case on behalf of these vulnerable unaccompanied children, who are in need of protection and legally entitled to apply for asylum. But we hope the Biden administration will not make ongoing litigation necessary by rescinding this illegal policy created by the Trump administration.” (ACLU press release, Jan. 29, 2021)

The message was received.  On February 11, the Biden Administration amended the CDC Order, temporarily exempting “unaccompanied noncitizen children” from aliens otherwise subject to expulsion.  This exemption appears to be broader then than the category of Unaccompanied Alien Children (UAC), who, by statutory definition (8 USC 1232), do not have a parent or guardian in the U.S., are entitled to specific processing requirements, and must be transferred to the custody of HHS.  The CDC footnote which explains the scope of its exemption states:

“Unaccompanied noncitizen children are unaccompanied children who do not hold valid travel documents and who are encountered by the U.S. Department of Homeland Security (DHS) in the United States or otherwise upon introduction into the United States. CDC understands ''unaccompanied noncitizen children" as the class of individuals subject to the PJES litigation ("all unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to expulsion from the United States under the CDC Order Process"). It is also CDC's understanding that this class of individuals is similar to or the same as those individuals who would be “unaccompanied alien children” for purposes of HHS Office of Refugee Resettlement custody, were DHS to make the necessary immigration determination under Title 8 of the United States Code.

Thus, the CDC appears to have exempted all unaccompanied children from CBP’s expulsion processing regardless of whether they are entitled to special procedures as Unaccompanied Alien Children. 

CBP data shows the impact of the new exemption. 

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Aliens processed under the laws of Title 8 are what one would consider “normal” processing, or in other words pre-Covid-19 processing.  Aliens expelled under Title 42 are done under the authority of 42 USC 265, its newly-adopted regulations, and the CDC order.  The dramatic growth of the Title 8 processing reflects what most observers are seeing on the news—the dramatic influx of unaccompanied children who are filling CBP and HHS facilities along the southern border. 

 

Updated April 8, 2021