Immigration Officials Hit with ACLU Class Action Over Detainment of Minors in Hotels Before Deportation

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The American Civil Liberties Union (ACLU) has filed a proposed class action alleging the federal government has violated immigration law by detaining unaccompanied minors in hotels for days on end during the pandemic before arranging for their deportation. 

The 29-page lawsuit, filed in District of Columbia federal court on behalf of a 16-year-old Guatemalan minor, alleges a new system of immigration restrictions—the “Title 42 Process”—enforced by Acting Secretary of Homeland Security Chad Wolf, Acting Commissioner of U.S. Customs and Border Protection Mark Morgan, U.S. Secretary of Health and Human Services Alex Azar and a host of other officials along the Canadian and Mexican borders amid the COVID-19 pandemic aims to “usurp Congress’s role and bypass the entire immigration statutory scheme” to an unprecedented extent under the guise of protecting public health. 

“Specifically, the Administration contends that public health provisions in Title 42 of the U.S. code—provisions that have rarely been used and never in this way—entitle it to set aside the immigration laws,” the ACLU alleges. “But those public health provisions do not authorize this unprecedented Title 42 Process. Title 42 authorizes various powers, such as testing and quarantines, but has never been interpreted to authorize the broad powers the government is claiming here.”

According to the complaint, the Title 42 Process authorizes the summary expulsion of unaccompanied minors without any procedural protections, even if a child shows no signs of having COVID-19 or is fleeing danger and seeking protection in the United States. The lawsuit says the plaintiff came unaccompanied to the U.S. from Guatemala to “escape severe persecution” before being apprehended by Customs and Border Protection (CBP) and kept in custody in Texas.

The minor’s father currently lives in the United States and is awaiting immigration proceedings, the suit says. The ACLU argues the plaintiff, pursuant to longstanding immigration statutes, should have been given shelter in a children’s facility until he could be released to his father or another suitable sponsor in the U.S., as well as entitled to a full hearing and appeals process to determine his right to remain in the country. 

Congress has a history of plainly addressing communicable diseases in immigration laws, the case says. If a border official suspects an arriving noncitizen has a communicable disease, the official has “numerous options, including testing and even quarantine,” the complaint relays. 

According to the lawsuit, however, unaccompanied children “may under no circumstances be deported without a proper opportunity to determine their right to remain in the United States.” In this light, the defendants’ use of Title 42 amounts to what the ACLU alleges is “a transparent end-run around Congress’s considered decision to provide protection to children and others fleeing danger even where communicable disease is a concern—and to address that concern through testing and quarantines, not deportations.”

The complaint charges the defendants’ application of the Title 42 process to unaccompanied children not only violates immigration law but is “patently arbitrary and capricious from a public health standpoint.” 

Though the stated justification for the Title 42 Process revolves around protecting the health of border officials, numerous other safety measures, including social distancing and the use of face masks and gloves, are available, the lawsuit continues, adding unaccompanied minors have been held at hotels “frequently for more than 72 hours” while awaiting deportation under the Title 42 Process. 

“Whatever the Administration’s motivation for applying the Title 42 Process to unaccompanied children, the Process is unlawful,” the suit asserts.

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