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, 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 is 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 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 are subject to detention and summary expulsion back to the very same countries they fled. It is estimated that since February 2021, the Biden administration has carried out over a million expulsions pursuant to the Title 42 Policy.  

The government has claimed that the Title 42 Policy is necessary to protect border officers and that the introduction of persons into congregate settings poses a danger to public health. But as public health experts have explained, basic measures, including social distancing, face masks, and gloves, would allow the government to safely process asylum seekers.

Even scientists at the Centers for Disease Control and Prevention (CDC) – which issued the order underlying the policy – have rejected Title 42 expulsions as unnecessary, with one top doctor refusing to sign off on a policy he described as 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.

What is the status of this case?

In P.J.E.S., the D.C. District Court has 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. But 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 Biden administration has since confirmed that the government is exercising its discretion to not apply the policy to unaccompanied children. Thus, notwithstanding the D.C. Circuit’s ruling, unaccompanied children are currently not subject to the Title 42 policy.

In Huisha-Huisha, the D.C. District Court issued a preliminary injunction on September 16, 2021. The government has appealed the order D.C. Circuit Court of Appeals and asked the court to prevent the injunction from going into effect while the appeal is pending.

Whose life is at stake?

In P.J.E.S., we represent a class of unaccompanied children seeking protection in the United States and, in many cases, to be reunited with parents or other family members who have already been permitted to reside 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 are seeking safety in the United States. We also seek to represent a class that includes all noncitizens who arrive in the United States as a family unit of at least one child and that child’s parent or legal guardian, who are or will be subjected to the Title 42 Policy.

Who’s involved?

The Center for Gender & Refugee Studies is counsel in P.J.E.S. 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 AmericaRefugee and Immigrant Center for Legal Education and Legal Services (RAICES), and the Texas Civil Rights Project.

Counsel in Huisha-Huisha are the Center for Gender & Refugee Studies, 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.

Press Releases

Immigrants Rights Advocates Head Back to Court Over Title 42 Expulsions | August 2, 2021

Comment on Title 42 Immigration Stay Ruling | January 29, 2021

District Court Blocks Administration’s Illegal Border Expulsions | November 18, 2020

Federal Court Again Blocks Removal of Honduran Youth in First Challenge to Trump Administration’s Illegal Border Expulsion Order | June 24, 2020

CGRS, ACLU, Oxfam Block Unlawful Deportation of Honduran Child | June 10, 2020

Groups Challenge Trump Administration’s Illegal Border Expulsions | June 10, 2020

Select Media Coverage

"The Trump-era order Biden is using to turn away most migrants," Jillian Kestler-D'Amours, Al Jazeera English, April 7, 2021

"DHS blames Trump while continuing to deport children and families under Biden," Chris Riotta, The Independent, February 9, 2021

"Will Biden stop the public health order that has turned away migrants nearly 400,000 times?," Dianne Solis and Alfredo Corchado, The Dallas Morning News, January 21, 2021

"Judge Says Coronavirus Can't Be Used As Reason To Quickly Deport Unaccompanied Minors," John Burnett, NPR, November 18, 2020

"Lawsuit challenges imminent expulsion of migrant children previously held at Texas hotel," Camilo Montoya-Galvez, CBS News, July 24, 2020

"Gov't Can't Deport Migrant Teen Over COVID-19 Ban, For Now," Khorri Atkinson, Law360, June 24, 2020

"Lawsuit alleges illegal expulsion of unaccompanied migrant teen," Sandra Sanchez, Border Report, June 15, 2020

"Advocates Sue Trump Administration Over Mass Border Expulsions," Dara Lind, ProPublica, June 10, 2020

"U.S. policy of expelling migrant children during pandemic faces first court challenge," Camilo Montoya-Galvez, CBS News, June 9, 2020

"US Is Using Pandemic as an Excuse to Send Asylum Seekers Back Into Harm’s Way," Sandra Cuffe, TruthOut, May 19, 2020

"The Trump Administration Must Not Use Pandemic as Excuse to Endanger Refugees," Brianna Krong and Karen Musalo, Ms., March 27, 2020