This is our fifth case challenging the Trump administration’s policy (known as “Title 42”) of expelling refugees without any of the protections required by the immigration laws, on the ground that they might have COVID-19 infections. (The earlier cases are J.B.B.C. v. Wolf, G.Y.J.P. v. Wolf, Texas Civil Rights Project v. Wolf, and P.J.E.S. v. Wolf.) The earlier cases involved minors who arrived unaccompanied by an adult; this class action challenges the policy’s application to family units. The named plaintiffs are three parents and their minor children, all of whom fled their countries to seek safety in the United States and were then detained by the Department of Homeland Security, awaiting expulsion. Once again, we argued that the public health laws do not authorize the government to expel refugees from the country without observing the standards and procedures required by the immigration laws.
In September 2021, the court certified a class action and issued a preliminary injunction halting the government’s expulsion policy. 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.
In March 2022, the D.C. Circuit affirmed in significant part, holding that the public health laws do authorize the government to expel refugees from the country without observing the procedures required by the immigration laws, but that, under a provision of the immigration laws that the public health laws do not supersede, the government cannot remove refugees to a country 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 to a country where they will likely be tortured. As a result, people crossing the border cannot be immediately expelled but must be given an opportunity to show that returning them to their home country would expose them to these consequences—and if they do make that showing, then the government would have to find some other country that is willing to accept them, which might not be quick or easy. The court of appeals also remanded the case to the district court for it to decide, in the first instance, whether the expulsion rule is invalid because it is arbitrary and capricious. The court broadly hinted that it likely is, because “this is March 2022, not March 2020,” and the “order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.”
Less than a month after the D.C. Circuit’s opinion, CDC issued an order terminating the expulsion policy as unnecessary and concluding that “less restrictive means are available to avert the public health risks” associated with COVID-19. However, the termination order was preliminarily enjoined on May 20, 2022, in separate litigation brought by Louisiana and other states, on the ground that CDC had improperly failed to conduct notice-and-comment rulemaking before rescinding the policy. The government appealed.
Meanwhile, in August 2022, back in the district court in our case, we filed a motion for partial summary judgment, asking the district court to rule that the policy is arbitrary and capricious and to order the government to stop enforcing it. The court granted our motion on November 15, 2022. It held that the Title 42 process was arbitrary and capricious because the CDC had failed to consider, as it was required to do, the harm its policy would impose upon migrants and measures that might have accomplished the CDC’s health goals (such as testing, vaccinations, and outdoor processing). Additionally, the CDC lacked evidence that the Title 42 policy would be effective in preventing the spread of Covid-19, especially in light of the fact that it applied to only one-tenth of one percent of the people crossing the land border from Mexico. The court therefore vacated the policy and enjoined its application to the plaintiff class. The court agreed to delay the effectiveness of its order through December 21, in order to give the government time to prepare for the transition.
In December, the government appealed. A coalition of states (including plaintiffs in the Louisiana litigation) moved to intervene and for an emergency stay of the district court’s injunction—which the district court and the D.C. Court both denied. The states asked the Supreme Court for a stay, which it granted in late December along with certiorari to review the denial of intervention. That action effectively leaves the government’s inhumane policy in place for months more while the Supreme Court considers this procedural issue. Supreme Court argument date: March 1, 2023.