Filed Date: Aug. 24, 2020
Closed Date: Nov. 6, 2023
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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, 2020, 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 in January 2021. On May 11, 2023, implementation of the Title 42 Policy ended after the CDC's public health emergency expired. Thereafter, the parties jointly stipulated to dismiss this case in November 2023.
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, President Trump 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 U.S. Department of Homeland Security discretion to allow exceptions based on the totality of the circumstances. The order 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 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 under the Title 42 Process. Despite the presence of a relative in the United States and vacancy in an Office of Refugee Resettlement facility, Plaintiff – exhibiting no COVID-19 symptoms – remained in CBP custody.
In response to this treatment by CPB, on August 14, 2020, 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 CDC, 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. 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 also that the court certify a class for purposes of the suit comprised of “[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, Plaintiff sought declaratory and injunctive relief from the new Title 42 Process as applied to himself and other class members, as well as attorney’s fees and costs. The case was assigned to Judge Emmet G. Sullivan.
Plaintiff filed a motion for class-wide preliminary injunction on August 20, 2020, asking the court to cease the application of the Title 42 Process to himself and class members. On September 6, 2020, 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, 2020, Magistrate Judge Harvey recommended that Judge Sullivan grant the class certification and the preliminary injunction. 2020 WL 5793305. He found that Plaintiff was likely to succeed on his claim that the government's regulation and order exceeded the authority granted by the Public Health Service Act because the Act does not authorize the government to expel Plaintiff or putative class members from the United States 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, 2020, Judge Sullivan adopted Magistrate Judge Harvey's recommendations and granted Plaintiff's motion for preliminary injunction and provisionally granted the class certification motion. 502 F. Supp. 3d 492. The order declared that the removal of Plaintiff without due process exceeded the authority that public health emergency decrees usually confer. Judge Harvey noted that in another case with similar facts where the D.C. District Court examined the Title 42 Process, the court 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, 2020, Defendants appealed the district court's order to the U.S. Court of Appeals for the D.C. Circuit. Defendants then filed a motion to stay pending appeal on December 3, 2020.
Back in the district court, Defendants moved for reconsideration of the November 18 order, which the court denied on December 3, 2020. Defendants contended that, given the strain on the healthcare systems along the southern border and the 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. This, they argued, 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 burden of showing that the circumstances justified a stay pending appeal.
In response to status reports submitted to the court regarding Defendants' compliance with the preliminary injunction, on January 22, 2021, the district court ordered the parties to submit joint status reports addressing Defendants' compliance and, more specifically, updating the court on the situation regarding thirty-two minors who the government returned to Guatemala in November 2020 in violation of the injunction.
On January 29, 2021, the D.C. Circuit granted Defendants' motion to stay. 2021 WL 9100552. Shortly thereafter, the Biden Administration, which had taken office just days before the stay was issued, announced changes to the Trump-era immigration policies. More specifically, on February 11, 2021, the CDC issued a notice stating that it had “exercised its discretion to temporarily exempt from expulsion unaccompanied noncitizen children encountered in the United States” pending a reassessment of the Title 42 Process. As a result, on March 1, 2021, Defendants filed a joint motion to hold the briefing schedule in abeyance, which the D.C. Circuit granted the following day. On July 19, 2021, following the aforementioned reassessment of the Title 42 Process, the CDC issued an order that exempted unaccompanied noncitizen children from the process's application.
In the district court, Defendants filed multiple joint motions throughout 2021 to hold the case in abeyance, which the court granted. The defendants also continued filing status reports to the court. Defendants filed with the D.C. Circuit on March 2, 2022, a motion to terminate the abeyance, vacate this court’s preliminary injunction as moot, and remand to the district court for a determination of whether the case as a whole is moot. On October 17, 2022, the D.C. Circuit ordered the abeyance be lifted. 2022 WL 17246563. As requested by Defendants, the circuit court also ordered the case be remanded to the district court to consider whether all or part of the case had become moot.
On November 22, 2022, Defendants filed a motion in district court seeking to have the case dismissed as moot or, in the alternative, to have the court vacate the preliminary injunction. On January 25, 2023, the district court issued an order granting Plaintiff's motion to hold Defendants' motion to dismiss in abeyance. The order also stayed the case pending completion of appellate proceedings in a related case, Huisha-Huisha v. Mayorkas. 652 F.Supp.3d 103.
On May 11, 2023, implementation of the Title 42 Process ended after the CDC's public health emergency expired. Federal courts quickly thereafter resolved Huisha-Huisha. With the implementation of the Title 42 Process over, and with the resumption of immigration processing of noncitizens apprehended in the United States without travel documents, the parties jointly stipulated to dismiss this case in November 2023.
Summary Authors
Andrew Pierce (10/1/2020)
Chandler Hart-McGonigle (11/27/2020)
Zofia Peach (3/26/2021)
Logan Moore (4/12/2024)
J.B.B.C. v. Wolf, District of Columbia (2020)
Texas Civil Rights Project v. Wolf, District of Columbia (2020)
Huisha-Huisha v. Mayorkas, District of Columbia (2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17448296/parties/pjes-v-wolf/
Cheung, Ming (New York)
Crook, Jamie Lorraine (California)
Craigmyle, Bradley (District of Columbia)
Austin, Kathryn (New York)
Castillo, Geroline (New York)
Harvey, G. Michael (District of Columbia)
Sullivan, Emmet G. (District of Columbia)
Crook, Jamie Lorraine (California)
Galindo, Daniel Antonio (New York)
Harrold, Adrienne (California)
Kang, Stephen Bonggyun (District of Columbia)
Michelman, Scott (District of Columbia)
Olivares, Efren Carlos (Texas)
Perez, Celso Javier (New York)
Silverman, Robert (Massachusetts)
See docket on RECAP: https://www.courtlistener.com/docket/17448296/pjes-v-wolf/
Last updated April 12, 2024, 9:32 a.m.
State / Territory: District of Columbia
Case Type(s):
Special Collection(s):
Post-WalMart decisions on class certification
Key Dates
Filing Date: Aug. 24, 2020
Closing Date: Nov. 6, 2023
Case Ongoing: No
Plaintiffs
Plaintiff Description:
16-year old minor fleeing Guatemala. The provisional class is "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, whether pursuant to an Order issued by the Director of the Centers for Disease Control and Prevention."
Plaintiff Type(s):
Attorney Organizations:
ACLU Immigrants' Rights Project
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Secretary of Homeland Security (Washington, DC, District of Columbia), Federal
Acting Commissioner of CBP (Washington DC, District of Columbia), Federal
Chief of U.S. Border Patrol (Washington D.C. , District of Columbia), Federal
Deputy Director of ICE (Washington DC, District of Columbia), Federal
Secretary of Health and Human Services (Washington DC, District of Columbia), Federal
Director of the Center for Disease Control (Washington DC, District of Columbia), Federal
Acting Director of the Office of Refugee Resettlement (Washington DC, District of Columbia), Federal
Defendant Type(s):
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Trafficking Victims Protection Act (TVPA), 18 U.S.C. § 1589
Constitutional Clause(s):
Due Process: Substantive Due Process
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Preliminary injunction / Temp. restraining order
Source of Relief:
Content of Injunction:
Issues
COVID-19:
Release-process created/modified
Transfer-ordered or process created/modified
Type of Facility:
Immigration/Border: