Huisha-Huisha v. Gaynor

Huisha-Huisha, et al. v. Gaynor, et al., No. 1:21-cv-0100 (D.D.C., filed Jan. 12, 2021); 21-05200 (D.C. Cir., filed Sep. 17, 2021); 22-05325 (Sup. Ct., filed Dec. 19, 2022)

On January 21, 2021, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Refugee and Immigrant Center for Legal Education and Legal Services, Oxfam America, and the ACLU of the District of Colombia filed Huisha-Huisha, et al. v. Gaynor, et al., a class action on behalf of noncitizens who arrive in the United States as a family unit of at least one child and that child’s parent or legal guardian and are subject to Title 42. The named plaintiffs are three parents and their minor children who sought asylum in the United States. In January 2021, Plaintiffs moved to certify a class consisting of all noncitizens who “(1) are or will be in the United States; (2) come to the United States as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian; and (3) are or will be subjected to the Title 42 Process.” Plaintiffs also filed a series of emergency motions to stay the removal of the named petitioners. In February, the district court granted the stays of removal over the government’s objections.

On February 5, 2021, Plaintiffs moved for a preliminary injunction prohibiting Defendants from applying the Title 42 Process to members of the putative class. On February 23, 2021, the district court granted the parties’ joint motion to hold in abeyance the motions for class certification and a preliminary injunction. The case was held in abeyance until August 2, 2021, while the parties attempted to engage in settlement negotiations. On August 2, the parties jointly filed a motion to reset the briefing schedule on Plaintiffs’ motions for class certification and a preliminary injunction, indicating their intent to resume litigation, and Plaintiffs filed their reply in support of their motions on August 11, 2021.

The district court granted Plaintiffs’ motions for class certification and a preliminary injunction on September 16, 2021, enjoining Defendants from applying the Title 42 process, including the CDC’s August 2021 order, to class members. The court agreed that the government’s policy was not authorized by statute and that class members would face “real threats of violence and persecution” if returned to their home countries. The government appealed the order to the D.C. Circuit the following day. On September 30, 2021, the D.C. Circuit stayed the preliminary injunction pending appeal, and as such, the preliminary injunction did not go into effect.

On March 4, 2022, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s preliminary injunction in part, holding that the government may expel Plaintiffs, but only to places where they will not be persecuted or tortured. As a result, the preliminary injunction is now in effect. The court of appeals remanded the case to the district court to decide in the first instance whether the Title 42 expulsion rule is arbitrary and capricious.

On remand, Plaintiffs filed a motion for a preliminary injunction and a motion for partial summary judgment. On November 15, 2022, the district court issued an order holding that the U.S. government acted arbitrarily and capriciously in instituting the Title 42 policy and enjoined Defendants from continuing to apply the policy. The court granted Defendants’ request to stay the injunction until December 21, 2022.

On November 21, 2022, the states of Arizona, Louisiana, Texas, and 12 other states filed a motion to intervene with the district court. Shortly after, on December 7, Defendants filed a notice of appeal of the district court’s final judgment. Given the appeal, the district court deferred on the motion to intervene, and Arizona, et al. filed a motion to intervene with the D.C. Circuit, along with a motion to stay the trial court’s decision pending appeal. The D.C. Circuit denied the motion to stay on December 9, 2022, and deferred the ruling on the motion to intervene.

On December 19, 2022, Arizona, et al. filed an application to the U.S. Supreme Court for a stay pending certiorari along with a petition for a writ of certiorari. That same day the Supreme Court stayed the D.C. Circuit Court’s decision to end Title 42 and ordered the parties’ responses be filed on December 20, 2022. The Supreme Court granted certiorari on December 27, 2022 to determine whether the state applicants may intervene to challenge the district court’s summary judgment order.  The Supreme Court’s review is limited to the question of intervention by the states.

The parties filed their briefs and the Supreme Court scheduled oral arguments for March 1, 2023. On January 30, 2023, the White House issued a statement of administration policy ending the COVID national emergency and public health emergency declarations on May 11, 2023. On February 16, 2023, the Supreme Court removed the case from the February 2023 argument calendar.


Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project |

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