In February 2021, the ACLU of Massachusetts, together with Fish & Richardson P.C., filed a lawsuit to bring seven asylum-seekers—all of whom were subjected to an unlawful Trump-era rule—to safety.

The lawsuit challenges a Trump administration policy that expels asylum-seekers from the southern United States border under the pretext of a public health measure. The illegal policy restricts immigration at the border based on an unprecedented and unlawful invocation of the Public Health Service Act, located in Title 42 of the U.S. Code.

According to the complaint, seven asylum-seekers—including four children—were each unlawfully expelled by the Department of Homeland Security (DHS) in the fall of 2020 without the legally-required inquiry into whether they would face persecution. One plaintiff is an unaccompanied child who, facing persecution and violence, fled her home in Guatemala to seek safety with family in Massachusetts; instead of referring her to an immigration judge—consistent with protections in effect for unaccompanied minors—DHS simply put her on a plane back to Guatemala. Other plaintiffs are two Central American families that were expelled and left stranded in dangerous Mexican border cities, despite their pleas to U.S. officials for help.

Between April 1, 2020 and October 31, 2020, U.S. Border Patrol made nearly 308,000 expulsions under Title 42, despite the fact that Title 42 authorizes quarantines, not expulsions. Public health experts have also criticized the rule, noting that it singles out asylum seekers without any public health rationale.

The complaint alleges that the Title 42 rule exploits a public health crisis to further President Trump’s plan to destroy the asylum system, part of a broader anti-immigrant agenda fueled by Trump’s racial animus towards Central Americans and people of color. This animus is clear from the many documented instances in which Trump, while in office, openly wished for policies that would inflict harm upon people seeking asylum at the southern border of the United States.

The lawsuit argues that the rule in question violates immigration law, the Public Health Service Act, the Administrative Procedure Act, and the Equal Protection and Due Process Clauses of the U.S. Constitution. The plaintiffs ask that their asylum claims be processed in accordance with the law.

In November 2020, the ACLU won a preliminary injunction in a class action lawsuit challenging the Title 42 order on behalf of unaccompanied children fleeing danger and seeking protection in the U.S. On January 29, a federal appeals court stayed the injunction, permitting the expulsion of unaccompanied minors as the case is litigated. Despite the ruling, the Biden administration stated that its policy is not to expel unaccompanied children. In January 2021, the ACLU filed a class action suit seeking to stop the expulsion of migrant families under Title 42.
This case follows two ACLU of Massachusetts challenges to another Trump-era anti-immigration policy, the Migrant Protection Protocols, which has forced over 60,000 and asylum-seekers to wait for months in dangerous Mexican border towns before their court dates.

UPDATE: This case was resolved via a settlement in 2021.


Adriana Lafaille, Matthew R. Segal, Krista Oehlke, Rebecca R. Krumholz (ACLU of Massachusetts); Adam J Kessel, Eda Stark, Ricardo J. Bonilla (Fish & Richardson P.C.)

Date filed

February 8, 2021