D.C. District Judge Denies Motion to Dismiss Minor's Title 42 Expulsion Claim

But what exactly is Judge McFadden suggesting?

By Andrew R. Arthur on December 16, 2020

On Monday, Judge Trevor McFadden of the U.S. District Court for the District of Columbia issued a memorandum order in a case brought by a 13-year-old Salvadoran national, who asserts that she was unlawfully expelled under Title 42. The government had moved to dismiss on the grounds that Judge McFadden could not order the relief that the plaintiff (identified as "G.Y.J.P.") seeks. His order raises the question: What exactly is the judge suggesting G.Y.J.P. ultimately do?

Briefly, an immigration judge granted the plaintiff's mother (a former police officer — ostensibly in El Salvador — who fled gang violence) "withholding of removal" in 2018. It is unclear whether that was statutory withholding under section 241(b)(3)(A) of the Immigration and Nationality Act (INA), or withholding under the Convention Against Torture, but neither would allow the mother to petition for her daughter to come to the United States.

G.Y.J.P. was apprehended by CBP after coming to this country unaccompanied in April. It is similarly unclear whether she entered illegally and was apprehended by a Border Patrol agent, or if she sought entry at a port and was detained by a CBP officer. She purportedly told CBP about her mother's problems, and her own problems at home, but after she was detained by CBP for a week, she was flown by the U.S. government back to El Salvador.

The plaintiff contends that her Title 42 expulsion was ultra vires (that is, done by the government without authority), violated sections of the INA, and was issued in violation of the Administrative Procedure Act (APA). The validity of those claims is not at issue at this stage in the proceedings.

She asks for various forms of relief, including that Title 42 be declared unlawful as applied to her, vacation of her expulsion and injunction against the government from applying Title 42 to her, and an order that the government "return her for reprocessing of her application for admission" under "normal procedures and protections".

The government argued that her case should be dismissed because the court lacked the authority under the APA or its own equitable powers to order the government to return her for reprocessing, and also "that commanding it to 'engage a foreign government'" — in this case, El Salvador — "'to retrieve one of that country's citizens' would intrude upon the Executive's plenary power over diplomatic relations and violate separation-of-powers principles."

The judge appeared to accept these arguments. But he noted that the government did not argue that the court lacked authority to find that Title 42 was unlawful as applied to G.Y.J.P. and therefore he could issue an injunction preventing the government from applying it to her in the future.

If he were to do so, such action would — Judge McFadden speculated — "permit G.Y.J.P. to present herself to immigration authorities at a port of entry and seek processing under the normal framework of the immigration laws, while receiving the procedural protections that she alleges would normally apply."

In this regard, he noted that "this is not a situation where it is purely speculative that a plaintiff will come to this country absent Government facilitation; she has already come here once unassisted." In other words, even if the government did not bring her back, the 13-year-old could simply return on her own.

How exactly would this minor plaintiff be able to make it back here if the U.S. government did not help her return? Generally, you cannot get on an airliner to fly to a foreign country without some sort of entry document — the airline would not allow it for any number of reasons, not the least of which is that it would be on the hook to fly you back if your admission were denied.

That would appear to prevent her from flying directly to the United States, unless the government were forced to give her an entry document. But it is not clear from Judge McFadden's order that he believes he could do so. In fact, he noted that "expansive though they may be, judicial equitable powers are not limitless. Courts have long recognized that the Executive and Legislature generally manage the admission and exclusion of aliens."

It is possible, I guess, that she could fly to a Mexican airport near the border (Tijuana and the "Cross Border Xpress" is one option) and seek entry. But that would assume that G.Y.J.P. could get a visa to fly from El Salvador to Mexico — Salvadoran nationals, with limited and apparently inapplicable exceptions, need such a visa to enter Mexico. A visa to Mexico for a Salvadoran minor is hardly a given.

If she cannot, she will have to reenter the way she ostensibly came the first time — illegally, crossing through (at a minimum) Guatemala and then Mexico. I have written numerous times about the dangers of such a passage, and those dangers only are compounded by the plaintiff's age. These dangers are part of the reason that both the Obama and Trump administrations each attempted to dissuade migrants — and in particular alien minors — from illegal entry.

Is that the option that Judge McFadden is suggesting G.Y.J.P. utilize to take advantage of his order? It is tough to say, because it is early in the case, and the judge's order is brief. But, if it is, the otherwise reasonable-sounding jurist may want to think long and hard before he expresses it directly.