This is our fifth case challenging the Trump administration’s policy 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; P.J.E.S. v. Wolf is a class action on behalf of such minors. In that case, the court issued a preliminary injunction prohibiting the expulsions; that order is now on appeal.
This case is also 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, who are or will be subjected to the new expulsion process. It was filed on January 12, 2021, together with the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Refugee and Immigrant Center for Legal Education and Legal Services, the Center for Gender & Refugee Studies, and Oxfam America. The named plaintiffs are three parents and their minor children, all of whom fled their countries to seek safety in the United States, and who are currently in the custody of the Department of Homeland Security, awaiting expulsion.
Our basic argument is 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 has appealed.
UPDATE: On March 4, 2022, the court of appeals issued its decision. It held that the public health laws do authorize the government to expel refugees from the country without observing the standards and 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 some kind of due process where they will have 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 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.” Today, government personnel “have access to effective vaccines, abundant testing, and plenty of face masks,” and there are no statements in the record by CDC officials testifying to the efficacy of the Order. Thus, “from a public-health perspective . . . it’s far from clear that the CDC’s order serves any purpose.”
UPDATE: 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 the introduction, transmission, and spread of COVID-19 into the United States." 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. That ruling is on appeal, but meanwhile the policy remains in effect and class members continue to be expelled. Accordingly, on August 15, 2022, 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.
UPDATE: On November 15, 2022, the district court ruled that the Title 42 process was arbitrary and capricious, for four reasons. First, the CDC had failed, without explanation, to follow its usual practice of choosing the least restrictive manner of accomplishing its public health goals. Second, the CDC had failed to consider, as it was required to do, the harm its policy would impose upon migrants. Third, the CDC had failed to consider, as it was required to do, alternative measures that might have accomplished its goals, for example, testing, vaccinations, and outdoor processing. And fourth, the CDC lacked evidence that the Title 42 policy would be efficacious 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 members of 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, including moving additional resources to the border. At this time, it is not known whether the government will appeal.