Title 42 Challenges

P.J.E.S. v. Mayorkas, et al., U.S. Court of Appeals for the District of Columbia

Huisha-Huisha v. Mayorkas, et al., U.S. Court of Appeals for the District of Columbia

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,” expels adults, children, and families seeking U.S. protection en masse, 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 have 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 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 have been subject to detention and summary expulsion to Mexico, or to the very countries they fled. It is estimated that since February 2021, the Biden administration has carried out over one million expulsions pursuant to the Title 42 policy.

Both the Trump and Biden administrations have 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 will spread. Since the policy’s inception, this justification has been roundly rejected by public health experts, who have explained that the government can safely process asylum seekers with the same commonsense measures – including social distancing, masks, and testing – we all use to mitigate COVID-19 spread in our daily lives.

Even top scientists at the Centers for Disease Control and Prevention (CDC) – which issued the order underlying the policy – have 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 has kept Title 42 in place.

On April 1, 2022 the Biden Administration announced it would terminate the Title 42 policy on May 23, 2022. That decision is now being challenged in litigation brought by a group of states that oppose the winddown of Title 42. Anti-immigrant lawmakers are also seeking to codify Title 42 and keep it in place by tying it to the emergency declaration that provides for vital COVID-19 measures.

What is 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 are thus not currently subject to the Title 42 policy.

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 has been preliminarily enjoined by a Trump-appointed judge in the Western District of Louisiana, meaning that Title 42 remains in force.

Whose life 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.

Who’s involved?

The Center for Gender & Refugee Studies is 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 Columbia, Oxfam America, Refugee and Immigrant Center for Legal Education and Legal Services (RAICES), and the Texas Civil Rights Project.

How can you help?

Visit our Action Page to learn more about how you can support asylum seekers. 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 Coordinator, at krongbrianna@uchastings.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.