P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)
J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)
P.J.E.S. v. Wolf and J.B.B.C. v. Wolf are two cases in a series of cases challenging the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.
On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.”
On March 20, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC and issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules.
The CDC order and regulations do not exempt unaccompanied children, who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act, or those seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.
J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various INA provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.
Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.
On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020 Plaintiffs moved for a classwide preliminary injunction. The District Court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the Immigration and Nationality Act (INA).
On October 2, 2020, Defendants filed their objection to the Report, to which Plaintiffs responded on October 9, 2020. Defendants filed their reply on October 14. On November 18, 2020, the court adopted the Report, provisionally granting Plaintiffs’ motion to certify class and motion for preliminary injunction. Defendants moved for reconsideration on their request to stay the preliminary injunction and appealed the order to the DC Circuit. On December 3, the court denied Defendants’ motion for reconsideration.
On December 12, 2020, Defendants filed a notice advising the court that approximately 34 class members were expelled from the US contrary to the court’s injunction. These 34 were in addition to another 32 unaccompanied children expelled the same day the court granted the preliminary injunction.
Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).
J.B.B.C. v. Wolf:
- Emergency Motion for Temporary Restraining Order
- Opposition to Temporary Restraining Order
- Reply in Support of Temporary Restraining Order
- Hearing Transcript
- Motion to Dismiss
P.J.E.S. v. Wolf:
- Motion for Class Certification
- Motion for Preliminary Injunction
- Opposition to Motion for Class Certification and Preliminary Injunction
- Reply in Support of Motion for Class Certification and Preliminary Injunction
- Magistrate Judge’s Report and Recommendation
- Defendants’ Objections to the Magistrate Judge’s Report and Recommendation
- Plaintiff’s Opposition to Defendants’ Objections to the Magistrate Judge’s Report and Recommendation
- Defendants’ Reply in Support of their Objections to the Magistrate Judge’s Report and Recommendation
- Order Adopting Report and Recommendation
- Memo Opinion
- Defendants’ Notice Regarding PI Compliance
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 | email@example.com
- Lomi Kriel, Federal Agents Are Expelling Asylum Seekers as Young as 8 Months from the Border, Citing COVID-19 Risks,Texas Tribune & ProPublica, Aug. 4, 2020, https://www.texastribune.org/2020/08/04/border-migrant-children-hotels/.
- Dara Lind, Leaked Border Patrol Memo Tells Agents to Send Migrants Back Immediately – Ignoring Asylum Law, ProPublica, Apr. 2, 2020, https://www.propublica.org/article/leaked-border-patrol-memo-tells-agents-to-send-migrants-back-immediately-ignoring-asylum-law.
- Jason Dearen and Garance Burke, Pence Ordered Borders Closed after CDC Experts Refused, AP News, Oct. 3, 2020, https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health-4ef0c6c5263815a26f8aa17f6ea490ae.
- Camilo Montoya-Galvez, Judge rules border agents can’t use COVID-19 order to expel migrant children, CBS News, Nov. 19, 2020, https://www.cbsnews.com/news/judge-border-agents-covid-19-order-expel-migrant-kids-immigration/.
- Camilo Montoya-Galvez, U.S. border officials expelled dozens of migrant children in violation of court order, CBS News, Dec. 13, 2020, https://www.cbsnews.com/news/us-border-officials-expelled-dozens-migrant-children-violation-court-order/.