This case, like J.B.B.C. v. Wolf, G.Y.J.P. v. Wolf, and Texas Civil Rights Project v. Wolf, challenges 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 illegality of that policy is especially clear in cases involving minors who arrive unaccompanied by an adult, because they have special legal protections. Those earlier cases became moot when the government decided not to expel each of the juvenile refugees on whose behalf we had filed suit—while it continued to expel many others.
In this case, we filed a lawsuit on August 14, 2020, together with the ACLU Immigrants’ Rights Project, the Texas Civil Rights Project, and Oxfam America, on behalf of a 16-year-old boy from Guatemala who fled to the United States after he and other family members were threatened with death because of his father’s political opinions. In addition, gang members threatened to kill him when he refused to join their gang. In order to prevent the government from mooting this case, we filed the lawsuit as a class action and filed a motion for class certification together with the complaint, asking to have the case recognized as a class action on behalf of all unaccompanied noncitizen children who are or will be detained in U.S. government custody, and who the government will seek to expel under its new “public health” policy. On August 20, we filed a motion for a preliminary injunction on behalf of all class members.
As in the earlier cases, the government quickly exempted P.J.E.S. from the expulsion process and argued that the case was therefore moot.
The case was assigned to Judge Emmet G. Sullivan, who referred it to Magistrate Judge G. Michael Harvey. On September 25, Judge Harvey issued his Report and Recommendation, agreeing with us that the case could still be certified as a class action even though P.J.E.S. was no longer subject to expulsion. He recommended that the class be provisionally certified, and that a preliminary injunction should be granted, prohibiting the government from expelling members of the class, because the Trump administration’s new policy was probably illegal (as Judge Nichols had also found in the J.B.B.C. case).
On November 18, 2020, the court adopted the recommendations and enjoined the government’s policy. On November 25, the government appealed, and on January 29, 2021, a panel of three judges stayed the preliminary injunction (i.e., allowed the government to resume expelling the class of unaccompanied minors we represent). But on January 30, the Biden administration suspended the expulsion policy for unaccompanied minors, pending a reassessment of the policy.
On March 11, 2022, the CDC terminated the expulsion policy to the extent it applied to unaccompanied children, meaning that the policy we challenged has ended. The litigation then remained on hold until fall 2022, when the government argued that it had become moot because the policy had permanently ended, and asked the court of appeals to vacate the preliminary injunction decision we had obtained in November 2020. We agreed that the appeal should be dismissed, but argued that the preliminary injunction decision should not be vacated. In October 2022 the court of appeals remanded the case to the district court “to consider whether all or part of the case has become moot.”
