P.J.E.S. v. Mayorkas
| Decision Date | 25 January 2023 |
| Docket Number | 1:20-cv-2245 (EGS/GMH) |
| Parties | P.J.E.S., a minor child by and through his father and next friend, Mario Escobar Francisco, on behalf of himself and others similarly situated, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary of Homeland Security, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This action is one in a tangle of cases working their way through the federal court system that either challenge or defend rules and orders issued by Defendants pursuant to 42 U.S.C § 265 implementing what has come to be known as the “Title 42 Policy” or “Title 42 Process.” In this case, Judge Sullivan issued a preliminary injunction prohibiting the enforcement of orders issued by the Centers for Disease Control and Prevention (“CDC”) pursuant to that statute that, described in broad strokes, authorized the expulsion on public health grounds of certain non-citizens entering the country to the extent those orders applied to unaccompanied children. In light of further developments, both in the courts and in the Executive Branch, the government has moved to dismiss this case as moot. Plaintiff now asks that Defendants' motion be held in abeyance. For the reasons below, Plaintiff's motion is granted and this case is stayed.
Section 265 provides that, when there is a serious danger of importation into the United States of a communicable disease from a foreign country that “is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health,” the government has “the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as [it] shall designate in order to avert such danger and for such period of time as [it] may deem necessary for such purpose.” 42 U.S.C. § 265. In March 2020, citing the COVID-19 pandemic, the government (via the Department of Health and Human Services) issued an interim final rule (the “Interim Final Rule”) under the statute, which authorized the Director of the CDC to “suspend the introduction of persons into the United States.” PJES ex rel. Francisco v. Wolf, 502 F.Supp.3d 492, 503 (D.D.C. 2020) (); see also Huisha-Huisha v. Mayorkas, __ F.Supp.3d __, 2022 WL 16948610, at *1 (D.D.C. 2022) [hereinafter, Huisha-Huisha II] (same), appeal docketed, No. 22-5325 (D.C. Cir. Dec. 9, 2022); see also Huisha-Huisha v. Mayorkas, 560 F.Supp.3d 146, 157 (D.D.C. 2021) [hereinafter, Huisha-Huisha I] (same), aff'd in part and , 27 F.4th 718 (D.C. Cir. 2022) [hereinafter, Huisha-Huisha III]; see also Louisiana v. Ctrs. for Disease Control & Prevention, __ F.Supp.3d __, 2022 WL 1604901, at *1 (W.D. La. 2022), appeal docketed, No. 22-30303 (5th Cir. May 23, 2022).
Under the authority of the Interim Final Rule, the CDC issued orders “suspending . . . the introduction of ‘covered aliens,' . . . defined as ‘persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry . . . or Border Patrol station at or near the United States borders with Canada and Mexico.'” Huisha-Hiusha II, __ F.Supp.3d at __, 2022 WL 16948610, at *2 (); see also id. at __, 2022 WL 16948610, at *3 (discussing the two extensions of that rule in April 2020 and May 2020). Under the authority of those orders, a number of “covered noncitizens,” including asylum seekers and unaccompanied children, were detained pending expulsion and/or expelled from the United States. See Huisha-Huisha I, 560 F.Supp.3d at 159; PJES, 502 F.Supp.3d at 505-506.
Plaintiff filed this action in August 2020 and sought certification of a class of “[a]ll unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process,” and followed up one week later a motion for a class-wide preliminary injunction. PJES, 502 F.Supp.3d at 509 (citing ECF No. 2 at 1). One week later, he filed a motion for a preliminary injunction arguing that “Section 265 ‘does not authorize deportation'”; that “‘unaccompanied children are entitled to explicit statutory procedures and protections,'” such as those included in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and the Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232; and that “‘subjecting Class Members to the CDC Orders is arbitrary and capricious in violation of the' [Administrative Procedures Act (‘APA')].” Id. at 510 (quoting ECF No. 15-1 at 21); see also id. at 534-35.
In September 2020, the government issued a final rule (the “Final Rule”) that, in relevant part, reaffirmed its authority to expel certain individuals under Section 265. See id. at 505 (); see also id. at 520 . In October 2020, the CDC replaced its earlier orders with a new order exercising that power. See Huisha-Huisha I, 560 F.Supp.3d at 158 ().
In November 2020, Judge Sullivan provisionally certified the proposed class in this case and granted Plaintiff's motion for a preliminary injunction. See generally PJES, 502 F.Supp.3d at 501-21. He found that Plaintiff was likely to succeed on the merits of his argument that neither “the vocabulary of Section 265, its context within the subsection of the Public Health Service Act it occupies, its relationship to other relevant statutes, [nor] its legislative and enforcement history” authorized the expulsion of the class members from the United States and, therefore, the rules and orders at issue “exceed[ed] the authority granted by Congress” in the statute. Id. at 534-35; see also id. at 510-16. He further found that class members were likely to suffer irreparable injury in the absence of a preliminary injunction and that the balance of the equities and the public interest favored granting Plaintiff's motion. See id. at 516-20. The government appealed that decision and, in January 2021, the D.C. Circuit granted its motion to stay the district court's order pending disposition of the appeal. PJES ex rel. Francisco v. Peskoske, No. 20-5357, 2021 WL 9100552 (D.C. Cir. Jan. 29, 2021).
In early February 2021, the CDC “issued a notice ‘temporarily except[ing] . . . unaccompanied noncitizen children' from expulsion under the Title 42 Process” pending its reassessment of its October 2020 order. Huisha-Huisha I, 560 F.Supp.3d at 159 (alterations in original) (quoting Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children Encountered in the United States Pending Forthcoming Public Health Determination, 86 Fed.Reg. 9942-01, 2021 WL 600683 (Feb. 11, 2021)). Both the D.C. Circuit and this Court granted the parties' motions to hold the case in abeyance.[1]See id. at 160. In July 2021, the CDC issued an order “fully excepting” unaccompanied noncitizen children from the Title 42 Process. Public Health Determination Regarding an Exception for Unaccompanied Noncitizen Children from the Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 86 Fed.Reg. 38717-01, 38717, 2021 WL 3081447 (July 22, 2021). In August 2021, the CDC issued a new order reaffirming the Title 42 Process as it applied to “covered noncitizens” other than unaccompanied noncitizen children. Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 86 Fed.Reg. 42828-02, 42829, 2021 WL 3403847 (Aug. 5, 2021). In March 2022, while this case was still held in abeyance, the CDC issued an order terminating all prior orders to the extent that they applied the Title 42 Process to unaccompanied children, which had the effect of continuing the exception of unaccompanied children from that process.[2] See generally Public Health Reassessment and Immediate Termination of Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists with Respect to Unaccompanied Noncitizen Children, 87 Fed.Reg. 1524301, 2022 WL 797266 (Mar. 17, 2022). In October 2022, at the request of Defendants, the D.C. Circuit lifted the abeyance in this case and remanded it to this Court to consider whether all or part of the case has become moot. See Order, PJES v. Mayorkas, No. 20-5357 (D.C. Cir. Oct. 17, 2022). The government filed its motion to...
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