Original Date Announced

CBP issues memo implementing CDC March 20, 2020, Notice of Order under the Public Health Service Act, instructing Border Patrol agents to expel or repatriate all noncitizens arriving without documents from Mexico or Canada, in particular affecting asylum seekers and unaccompanied minors; memo provides for minimal CAT screening.

[ID #840]

See Biden administration action below.

Subsequent Trump and Court Action

CBP COVID-19 Response: Suspension of Entries and Imports Concept of Operations

Human Rights First obtained internal DHS documents (via FOIA request) detailing Border Patrol practices related to the March 2020 CDC order. These practices include expelling asylum seekers without adequate screening, expelling pregnant women, expelling children, and adopting a more narrow definition of "unaccompanied minor."

Subsequent Trump and Court Action

2020.11.18 PJES v. Wolf.

In August 2020, the ACLU, Texas Civil Rights Project, and Oxfam filed a class action suit, P.J.E.S. v. Wolf (D.D.C. 1:20-cv-02245), challenging the expulsion of unaccompanied minors under Title 42 COVID restrictions. A magistrate judge on Sept. 25, 2020 recommended the grant of a preliminary injunction and class certification. On November 18, 2020, the federal district court in D.C. granted the preliminary injunction and on January 29, 2021, the D.C. Circuit granted a stay of the preliminary injunction pending appeal.

On March 11, 2022, the CDC terminated the expulsion policy to the extent it applied to unaccompanied children. In fall 2022, the government then argued that the controversy at stake had become moot because the expulsion policy no longer extended to unaccompanied minors. They asked the court of appeals to vacate the preliminary injunction. The court of appeals remanded the case to the district court “to consider whether all or part of the case has become moot.”

On January 25, 2023, the district court granted plaintiff's motion to hold the defendant's motion to dismiss in abeyance. The case was stayed pending the completion of appellate proceedings in Huisha-Huisha v. Mayorkas. On November 6, 2023, the parties filed a joint stipulation of dismissal without prejudice.

**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

Subsequent Trump and Court Action

2021.09.16 Huisha-Huisha v. Mayorkas, No. 21-100(EGS) (D.D.C., September 16, 2021).

To the extent that the policy identified in this entry relied on Title 42, on September 16, 2021, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issued a preliminary injunction to prevent U.S. border officials from using Title 42 to expel families with young children seeking asylum.

**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

Subsequent Trump and Court Action

2022.03.04 Huisha Huisha v. Mayorkas 21-5200 (CADC March 4, 2022)

On March 4, 2022, the D.C. Circuit issued a decision in Huisha-Huisha v. Mayorkas, upholding in part the district court's September 2021 preliminary injunction. The D.C. Circuit held that, though "[i]t is likely that [Title 42] grants the Executive sweeping authority to prohibit aliens from entering the United States during a public-health emergency[, and] that the Executive may expel aliens who violate such a prohibition," the government may not expel noncitizens "to countries where their 'life or freedom would be threatened' on account of their 'race, religion, nationality, membership in a particular social group, or political opinion' or where they will likely face torture." The court remanded for implementation of these withholding and Convention Against Torture standards, and assessment of the plaintiff's Administrative Procedure Act (APA) arbitrary and capricious claim.

In April 2022, the CDC issued an order terminating the Title 42 policy, but a group of States sued to block termination of the Title 42 policy, claiming that the CDC had not solicited public comments before terminating the policy. The ACLU and its co-counsel responded by challenging the policy as a violation of the APA. On November 15, 2022, the D.C. District Court held the policy unlawful because it was arbitrary and capricious, and rejected subsequent State intervention, as did the Court of Appeals.

The States then sought relief from the Supreme Court. In December 2022, the Court temporarily blocked the district's court's order and granted review regarding the States' right to intervene in the case. After the Biden administration clarified that the expiring public health emergency had been the basis for the Title 42 policy, however, the Court took the case off the argument calendar.

Title 42 expired on May 11, 2023. In September 2023, the D.C. Circuit granted a motion to vacate the district court's judgment and remand with instructions to dismiss the case as moot.

**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

Subsequent Trump and Court Action

2022.05.20 Preliminary Injunction Ruling in Louisiana v. CDC

On May 20, 2022, a federal district judge in the Western District of Louisiana enjoined the April 2022 CDC order reversing the Trump administration's use of Title 42 to limit entry. The Court found that the plaintiff States were likely to succeed on the merits of their claim that the CDC had failed to follow notice and comment procedures when rescinding the policy. The government appealed that ruling to the Fifth Circuit.

On February 14, 2023, the Fifth Circuit ordered the appeal to be held in abeyance until Title 42 was terminated in May 2023. On June 13, 2023, the Fifth Circuit held that in light of subsequent events, the district court's preliminary injunction had become moot. Accordingly, the court granted the government's motion to vacate the district court's preliminary injunction and remand the case to the district court with instructions to dismiss the case as moot.

**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**