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This case is a challenge by Texas to narrow exceptions  to orders issued by the Center for Disease Control (CDC) under which most migrants at the southern border seeking asylum have been summarily expelled back to Mexico, ostensibly to prevent the spread of COVID-19. 

The Trump CDC issued the first such order in March 2020, and President Biden largely kept the policy in place for his first 15 months in office.  Starting in February 2021, however, the CDC issued orders under which some unaccompanied migrant children could have their asylum claims considered before being expelled to Mexico.  

Texas sued, claiming principally that the creation of potential exceptions to the CDC expulsion orders did not go through proper procedures; they also argued the exceptions violated immigration statutes.  Texas sought a court order extinguishing all exceptions and requiring the Biden Administration to subject even unaccompanied children with meritorious asylum claims to immediate expulsion to Mexico. 

On March 4, 2022, Judge Pittman granted Texas’s request for an order preliminarily enjoining (blocking) the exception in the expulsion order for unaccompanied migrant children during the pendency of this case.  Judge Pittman stayed (paused) his order preliminarily blocking the exception for 7 days.  On March 11, the Biden Administration notified the Court that the CDC had decided to revoke the prior Title 42 expulsion orders to the extent that they applied to unaccompanied noncitizen children. On March 24, 2022, Judge Pittman stayed all pending deadlines in the case.

On April 1, 2022, the Biden Administration informed the Court that the CDC had decided that the last expulsion order would expire on May 23, 2022.  Texas then informed the Court that it would like to amend its complaint to challenge the end of the expulsion policy on procedural grounds. After holding a hearing on Texas’s request, on April 14 Judge Pittman denied Texas leave to amend its complaint to challenge the termination of Title 42 through this lawsuit.  (The next week, Texas filed a lawsuit to challenge the Title 42 termination in a different courthouse). Texas later voluntarily dismissed this case.

Technical Summary

Texas’s complaint challenges CDC orders issued in July and August 2021 under Title 42 of the U.S. Code; Texas alleges that their issuance violated the notice and comment requirement of the Administrative Procedure Act (APA), as well as its prohibition on arbitrary and capricious agency action.  The complaint requested an order compelling the federal government to detain all asylum seekers, including those migrants excepted from the CDC’s Title 42 orders, based on mandatory detention provisions in Title 8 and what Texas claims is an unlawful misuse of the statutory parole authority.

Judge Pittman’s March 4, 2022 preliminary injunction order held that Texas was likely to succeed on its arbitrary and capricious claim, on the grounds that the Biden Administration did not provide a sufficient explanation for exempting unaccompanied migrant children from summary expulsion, and that it did not sufficiently take into account Texas’s alleged “reliance interests.”  

A few months prior to granting Texas’s request for a preliminary injunction, Judge Pittman denied the federal government’s motion seeking to disqualify one of Texas’s attorneys (Gene Hamilton) from participation in this case, which was based on his role in creating the CDC expulsion orders issued under the Trump Administration, when Mr. Hamilton worked in the U.S. Department of Justice.


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