COVID-19 Summary: This putative class action case challenges the government’s use of an emergency public health order issued under 42 U.S.C. § 265 to restrict immigration of unaccompanied minors. Pursuant to the emergency public order, the government has expelled unaccompanied children without following usual immigration laws, saying the children could spread COVID-19 if the children were processed and detained under regular immigration laws. The plaintiff sought declaratory and injunctive relief from the order, as well as class certification and a preliminary injunction. On November 18, the court granted the plaintiff's request for a preliminary injunction and certified the class. The defendants appealed on November 25 and moved to stay the case pending appeal, which the D.C. Circuit granted. The case and appeal remain ongoing.

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Immigration Safeguards For Unaccompanied Children
Previously, unaccompanied children arriving at the border seeking safety were awarded protection under two laws. First, provisions in the Homeland Security Act vest care for unaccompanied children with the Office of Refugee Resettlement (ORR), giving the minors access to legal care and housing. Second, the Trafficking Victims Protection Reauthorization Act (TVPRA) requires that minors must be transferred to ORR custody within 72 hours following apprehension, and removal of a child requires a decision by an immigration judge. Separately, statutes affirming internationally agreed upon protections permit unaccompanied children to seek shelter in the United States by claiming asylum, withholding of removal, and protection from torture. Furthermore, immigration laws recognize the possibility that immigrants arrive at the border with a communicable disease, however these statutes do not permit deportation without screening for persecution or torture.

CDC Issues Emergency Public Health Order (Title 42 Process)
On March 20, 2020, the President announced that public health provision of Title 42 of the U.S. Code would be used to suspend entry of all individuals at the border who lack proper documentation. Simultaneously, the Centers for Disease Control (CDC) issued a regulation without notice and comment. Specifically invoking language contained in Section 265, the government claimed that the Surgeon General may prohibit introduction of persons that pose serious danger to the United States because of the presence of a communicable disease in their country of origin. Pursuant to the regulation, the CDC issued an order that other agencies may immediately suspend the introduction of these immigrants because of the danger they pose to Border Patrol personnel at ports of entry. The order gives the Department of Homeland Security discretion to allow exceptions based on the totality of the circumstances, and it remains silent on application for individuals seeking asylum, withholding of removal, Convention Against Torture (CAT) protection, and circumstances for unaccompanied children. In the complaint, this regulation and subsequent order is referred to as the Title 42 Process.

The Plaintiff’s Apprehension Under the Title 42 Process and Subsequent Lawsuit
On August 11, 2020, border patrol agents apprehended the plaintiff, a 16-year-old unaccompanied minor fleeing persecution in Guatemala. Immediately, U.S. Customs and Border Patrol (CBP) placed him into custody awaiting deportation pursuant to the Title 42 Process. Additionally, even with the presence of a relative in the United States and vacancy in an ORR facility, the plaintiff – exhibiting no COVID-19 symptoms – remained in CBP custody.

In response to this treatment by the Border Patrol, on August 14, 2020, the plaintiff, represented by the ACLU, sued the leaders of numerous governmental departments, including the Acting Secretary of Homeland Security, the Secretary of Health and Human Services, the Director of the Centers for Disease and Control, and officials leading CPB, Immigration and Customs Enforcement, and the Office of Refugee Resettlement in the U.S. District Court for the District of Columbia under the Administrative Procedure Act for unlawful agency action and arbitrary and capricious enforcement. The plaintiff alleged that the Title 42 Process violates the requirements of the TVPRA, the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, and the Public Health Service Act. The plaintiff requested the court certify the class as “[a]ll 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 the Title 42 Process.” In addition, the plaintiff sought declaratory and injunctive relief from the new Title 42 Process as applied to the plaintiff and class members, as well as attorney’s fees and costs. The case was assigned to Judge Emmet G. Sullivan.

The plaintiff filed a motion for classwide preliminary injunction on August 20th, asking the court to cease the application of the Title 42 Process to plaintiff and class members. The International Refugee Assistance Project filed an Amicus Brief in support of the plaintiff’s motion. On September 6, the case was referred to Magistrate Judge G. Michael Harvey for the preparation of a report and recommendation on both the motions for a preliminary injunction and class certification.

On September 25, Magistrate Judge Harvey recommended that Judge Sullivan grant the class certification and the preliminary injunction. 2020 WL 5793305. He found that the plaintiff was likely to succeed on his claim that the Regulation and Order exceeded the authority granted by the Public Health Service Act because the Act does not authorize the government to expel the plaintiff or putative class members from the US outside of the removal process of the Immigration and Nationality Act and other safeguards in Title 8 of the U.S. Code, including protections provided in the TVPRA.

On November 18, Judge Sullivan adopted Magistrate Judge Harvey's recommendations and granted the plaintiff's motion for preliminary injunction and provisionally granted the motion to certify class. 2020 WL 6770508. The order declared that the removal of the plaintiff without due process exceeded the authority that public health emergency decrees usually confer. Judge Harvey noted that another court in the D.C. District Court examined the Title 42 Process in a case with similar facts also granted a preliminary injunction based on likelihood of success on the merits. For more information, see J.B.B.C. v. Wolf.

On November 25, the defendants appealed the order to the D.C. Circuit, which was assigned USCA Case Number 20-5357. The defendants also filed a motion to stay pending appeal on December 3.

Back in the district court, the defendants moved for reconsideration of the November 18 order, which the court denied on December 3. The defendants contended that, given the strain on the strain on the healthcare systems along the southern border and increased number of unaccompanied minors covered by the CDC Order, prohibiting the expulsion of class members deprived the government of an "important tool" to help address the public health emergency, increased the risk of transmitting COVID-19 into the United States, and further strained the country's limited healthcare resources. The court ruled that the government did not meet its its burden of showing that the circumstances justified a stay pending appeal.

In response to the defendants' notices to the court regarding their compliance with the preliminary injunction, on January 22, the court ordered the parties to submit joint status reports addressing the defendants' compliance and, more specifically, updating the court on the situation regarding thirty-two minors who were returned to Guatemala in violation of the injunction.

On January 29, the D.C. Circuit granted the defendants' motion to stay. On March 1, the defendants filed a joint motion to suspend the briefing schedule, which the Circuit Court granted the following day.

In the District Court, the defendants filed multiple joint motions to hold the case in abeyance, which the court granted. The defendants continued filing status reports to the court throughout 2021.

The case remains ongoing.

Andrew Pierce - 10/01/2020
Chandler Hart-McGonigle - 11/27/2020
Zofia Peach - 03/26/2021


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