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Title 42 Challenges

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Case Status: 

P.J.E.S. v. Mayorkas, et al., U.S. Court of Appeals for the District of Columbia, No. 20-5357

Huisha-Huisha v. Mayorkas, et al., U.S. Court of Appeals for the District of Columbia, No. 22-5325

Arizona v. Mayorkas, Supreme Court of the United States, No. 22-592

What is the government doing and why are we challenging it? 

In March 2020 the federal government established an unlawful system for restricting immigration along our borders, invoking Title 42 of the U.S. Code, a public health provision that has been on the books for almost 130 years but had never before been applied to immigration. The policy, often referred to as the “Title 42 policy,” expelled adults, children, and families seeking protection, denying them any chance to present their case to an immigration judge. While the Trump administration insisted that closing the borders to asylum seekers was necessary to control the COVID-19 pandemic, medical and public health experts repeatedly debunked such claims as baseless.

Pursuant to longstanding immigration statutes protecting refugees, people fleeing persecution are entitled to assert claims for asylum and related forms of humanitarian relief, and to access procedures established by Congress to ensure the fair determination of their right to remain in the United States. Unaccompanied children are entitled to additional protections and must generally be transferred to the custody of the Office of Refugee Resettlement, where they receive a range of services including legal representation. But under the Title 42 policy, adult and unaccompanied child asylum seekers alike were subject to detention and summary expulsion to Mexico, or to the very countries they fled. It is estimated that the government carried out over 2.8 million expulsions pursuant to the Title 42 policy.  

Both the Trump and Biden administrations claimed that the Title 42 policy is necessary to protect border officers and that asylum seekers cannot be processed at the border without spending time in congregate settings (i.e., Customs and Border Protection (CBP) facilities) where COVID-19 would spread. From the policy’s inception, this justification was roundly rejected by public health experts, who explained that the government could safely process asylum seekers with commonsense COVID-19 mitigation measures – including social distancing, masks, and testing.

Even top scientists at the Centers for Disease Control and Prevention (CDC) – which issued the order underlying the policy – rejected Title 42 expulsions as unnecessary. When the policy was first proposed by the Trump administration, the agency’s head of global migration and quarantine refused to sign off on it, calling it a “morally wrong” attempt to “keep Hispanics out of the country.” Nevertheless, the Trump administration forced the policy into effect, and the Biden administration kept Title 42 in place for more than two years.

On April 1, 2022 the Biden administration announced it would terminate the Title 42 policy on May 23, 2022. That decision was halted due to litigation brought by a group of states that opposed the winddown of Title 42. The administration proceeded to expand the policy’s application to new nationalities, which the court order did not require. 

On January 30, 2023, the Biden Administration announced the public health emergency would expire on May 11, 2023, automatically ending the Title 42 policy at the border. 

Anti-immigrant lawmakers have repeatedly attempted to codify an expulsion policy akin to Title 42 and keep it in place by attaching it to must-pass legislation. 

What is at stake? 

In P.J.E.S., we represent a class of unaccompanied children seeking protection in the United States. Many are seeking to be reunited with parents or other family members who are living in the United States after fleeing persecution or torture in their countries of origin.

In Huisha-Huisha, we represent a class of family units that fled their countries and wish to seek safety in the United States.

What’s the status of this case? 

In P.J.E.S. v. Mayorkas, the D.C. District Court certified a class comprising unaccompanied noncitizen children who have been or will be detained by the U.S. government and have been or will be subjected to expulsion under the Title 42 policy. In November 2020, the court entered a preliminary injunction, temporarily blocking the federal government from applying the policy to class members. 

On January 29, 2021, the D.C. Circuit Court granted the government's motion for a stay of the preliminary injunction, allowing the policy to go back into effect. However, the CDC issued a new order exempting unaccompanied children from Title 42.  Unaccompanied children were thus not subject to the Title 42 policy under Biden. The parties jointly stipulated to dismiss P.J.E.S. on November 6, 2023.

In Huisha-Huisha v. Mayorkas, the D.C. District Court issued a preliminary injunction on September 16, 2021 prohibiting the government from continuing to expel families from the United States under the Title 42 policy. On September 30, 2021, the Court of Appeals for the D.C. Circuit granted the government's motion for a stay of the injunction, allowing the government to resume expulsions of families while it pursued an appeal. On March 4, 2022, the D.C. Circuit issued an opinion upholding a narrower version of the district court injunction, holding that the government cannot expel asylum-seeking families to places where they would be persecuted or tortured.

As noted above, on April 1, 2022, the Biden administration announced that it would terminate its Title 42 policy on May 23, 2022. The termination was preliminarily enjoined by a Trump-appointed judge in the Western District of Louisiana, forcing the administration to keep Title 42 in place. 

In August 2022, we returned to district court and asked for partial summary judgment on our challenges to Title 42, arguing that the policy is arbitrary and capricious and did not rationally serve a public health purpose. These challenges had not been previously addressed by the district or circuit court.

On November 15, 2022, the district court found that the Title 42 policy was arbitrary and capricious. The court ordered the policy vacated and permanently enjoined the government from applying it to class members. The district court order was slated to take effect on December 21, 2022. The government appealed to the D.C. Circuit.

A group of states opposed to the winddown attempted to intervene in the litigation before the D.C. Circuit. Citing the states’ “inordinate and unexplained untimeliness” in seeking intervention, the circuit court denied their motion. The states next petitioned the Supreme Court for certiorari on the question of intervention. The Supreme Court granted the petition for a writ of certiorari and a stay pending review, allowing the Title 42 policy to remain in effect. The D.C. Circuit Court of Appeals put the case on hold pending a decision by the Supreme Court on the issue of intervention.

Though the Supreme Court requested briefing on the issue of the states’ attempted intervention, it canceled oral arguments after the Biden administration announced the public health emergency would expire on May 11, 2023. However, the Supreme Court did not lift the stay of the district court’s order until May 18, 2023.

The Title 42 policy expired at midnight on May 11, 2023, along with the public health emergency. The government subsequently replaced Title 42 with a new, sweeping ban on asylum at the border. On September 7, 2023, the Court of Appeals for the D.C. Circuit granted the government’s motion to vacate the district court’s judgment and remanded with instructions to dismiss as moot.

On November 8, 2023, the district court dismissed the case as moot.

CGRS has brought legal challenges to that policy in East Bay Sanctuary Covenant v. Biden and M.A. v. Mayorkas.

Who’s involved? 

The Center for Gender & Refugee Studies is co-counsel in P.J.E.S. and Huisha-Huisha with the American Civil Liberties Union Foundation, the American Civil Liberties Union Foundation of Texas, the American Civil Liberties Union Foundation of the District of ColumbiaOxfam AmericaRefugee and Immigrant Center for Legal Education and Legal Services (RAICES), and the Texas Civil Rights Project.

How can you help? 

Take the #WelcomeWithDignity pledge and join our movement to defend the right to seek asylum. You can support CGRS’s vital work on cases like this one by making a donation.

Need more information? 

Contact Brianna Krong, Communications and Advocacy Manager, at krongbrianna@uclawsf.edu.

Resources for Advocates 

CGRS has produced several resources to support attorneys representing clients impacted by policies affecting asylum seekers at the border. Click here to request materials relevant to your client’s case.

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