“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
The three judges Trump appointed to the DC Circuit, Greg Katsas, Neomi Rao, and Justin Walker, blocked a district court order that had temporarily barred enforcement of a Trump rule calling for immediately expelling unaccompanied minors seeking to enter the US at the border without even a hearing. The January 2021 ruling was in PJES v Pekoske.
Claiming that it was necessary because of the pandemic, even though public health officials later reported that they were simply required to issue the edict by then-Vice President Pence, the Trump Administration issued a rule calling for the summary expulsion of people seeking admission at the US border, including unaccompanied minors. Reports indicate that the Trump Administration expelled some 180,000 people in the last three months of 2020 under the rule, including 8,800 children, some of whom were “as young as 9” and were “denied the chance to request asylum or other protections under US law.”
The Texas Civil Rights Project, the ACLU and others filed a challenge to the Trump rule, on behalf of a 16 year-old unaccompanied minor from Guatemala and a class of all unaccompanied children harmed by the edict. In November 2020, Judge Emmet Sullivan issued a preliminary injunction against the rule as applied to them, accompanied by a 50-page opinion. Sullivan explained that the class was clearly “likely to succeed’ on its contention that the Trump rule violated the “explicit” language of the relevant immigration statute, which provided for specific “procedures and protections” for unaccompanied minors at the border, including temporary placement, quarantine and other health protections as needed, and counsel to help bring asylum or other claims.
Such quarantine would satisfy the government’s public health rationale, Sullivan noted, especially since such procedures are used for citizens and permanent residents stopped at the border on their way back to the US. The unaccompanied minors would likely suffer “irreparable injury” without an injunction, the judge continued, since expelling them to their country of origin would threaten “grave harm” by subjecting then to abuse, torture and child trafficking, without giving them an opportunity to pursue their claims in the US or even have immigration officials conduct screening for those issues.
The Trump Administration immediately appealed, and sought a stay in order to block Judge Sullivan’s order pending appeal. On January 29, a week after President Biden was inaugurated to replace President Trump, without any specific explanation, Trump judges Katsas, Rao and Walker granted the stay, reinstituting the Trump rule pending appeal, and setting an expedited February-March schedule for briefing the case.
The Trump judges’ order was subject to immediate criticism, with advocates noting that the Trump rule was an “illegal attempt to weaponize the pandemic against unaccompanied children and other refugees.” The Biden Administration will hopefully drop the appeal of Judge Sullivan’s order promptly, and reconsider the entire Trump rule. Even after Trump left office, however, three Trump judges have tried their best to resurrect the discredited Trump rule.