University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name P.J.E.S v. Wolf IM-DC-0087
Docket / Court 1:20-cv-02245 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Immigration and/or the Border
Special Collection COVID-19 (novel coronavirus)
Attorney Organization ACLU Chapters (any)
ACLU Immigrants' Rights Project
Case Summary
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 ... read more >
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 September 25, Magistrate Judge G. Michael Harvey recommended the class be provisionally certified and a preliminary injunction granted.


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 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, 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 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 Customs and Border Protection, 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 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.

Andrew Pierce - 10/01/2020


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Issues and Causes of Action
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Issues
Immigration/Border
Admission - procedure
Asylum - procedure
Convention against Torture
Deportation - procedure
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
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
Defendant(s) Acting Commissioner of CBP
Acting Director of the Office of Refugee Resettlement
Chief of U.S. Border Patrol
Deputy Director of ICE
Director of the Center for Disease Control
Executive Assistant Commissioner of CBP's Office of Field Operations
Secretary of Health and Human Services
Secretary of Homeland Security
Plaintiff Description 16-year old minor fleeing Guatamala. Plaintiff seeks a class certification of 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 the Title 42 Process.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU Immigrants' Rights Project
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 08/24/2020
Case Ongoing Yes
Docket(s)
1:20-cv-02245 (D.D.C.)
IM-DC-0087-9000.pdf | Detail
Date: 09/13/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint for Declaratory and Injunctive Relief [ECF# 1]
IM-DC-0087-0001.pdf | Detail
Date: 08/14/2020
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Classwide Preliminary Injunction [ECF# 15 & 15-1]
IM-DC-0087-0002.pdf | Detail
Date: 08/20/2020
Source: PACER [Public Access to Court Electronic Records]
Brief of Amicus Curiae the International Refugee Assistance Project, INC. In Support of Plaintiff's Motion for Classwide Preliminary Injunction [ECF# 30-1]
IM-DC-0087-0003.pdf | Detail
Date: 08/31/2020
Source: PACER [Public Access to Court Electronic Records]
Magistrate Judge's Report and Recommendation [ECF# 65] (2020 WL 5793305)
IM-DC-0087-0004.pdf | WESTLAW | Detail
Date: 09/25/2020
Source: PACER [Public Access to Court Electronic Records]
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Judges Harvey, G. Michael (D.D.C.) [Magistrate] show/hide docs
IM-DC-0087-0004 | IM-DC-0087-9000
Sullivan, Emmet G. (D.D.C.) show/hide docs
IM-DC-0087-9000
Plaintiff's Lawyers Crook, Jamie Lorraine (California) show/hide docs
IM-DC-0087-0002 | IM-DC-0087-9000
Drake, Brantley Shaw (Texas) show/hide docs
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Galindo, Daniel Antonio (New York) show/hide docs
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Garza, Rochelle M (Texas) show/hide docs
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Gelernt, Lee (New York) show/hide docs
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Harrold, Adrienne (California) show/hide docs
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Huddleston, Kathryn (Texas) show/hide docs
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Kang, Stephen Bonggyun (District of Columbia) show/hide docs
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Michelman, Scott (District of Columbia) show/hide docs
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Olivares, Efren Carlos (Texas) show/hide docs
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Perez, Celso Javier (New York) show/hide docs
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Russell, Morgan (California) show/hide docs
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Segura, Andre (Texas) show/hide docs
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Silverman, Robert (Massachusetts) show/hide docs
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Spitzer, Arthur (District of Columbia) show/hide docs
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Vargas, Karla (Texas) show/hide docs
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Wofsy, Cody H. (California) show/hide docs
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Defendant's Lawyers Lin, Jean (District of Columbia) show/hide docs
IM-DC-0087-9000
Senanayake, Tanya D (District of Columbia) show/hide docs
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Snell, Kevin Matthew (District of Columbia) show/hide docs
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Other Lawyers Austin, Kathryn (New York) show/hide docs
IM-DC-0087-0003 | IM-DC-0087-9000
Castillo, Geroline (New York) show/hide docs
IM-DC-0087-0003
Hirose, Mariko (New York) show/hide docs
IM-DC-0087-0003 | IM-DC-0087-9000
Levine, Noah Adam (New York) show/hide docs
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Miano, John Michael (New York) show/hide docs
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Wolfson, Paul R. Q. (Illinois) show/hide docs
IM-DC-0087-9000

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