D.A.M. v. Barr ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
D.A.M, et al.,
Petitioners,
v. Case No. 20-cv-1321 (CRC)
WILLIAM BARR, in his official capacity as
Attorney General of the United States, et al.,
Respondents.
MEMORANDUM OPINION
Petitioners in this case are nearly 100 families from eleven countries who were denied
asylum after entering the United States without valid entry documents and, consequently, are
subject to orders of expedited removal from the country. Many of them are currently being
detained by Immigration and Customs Enforcement (“ICE”) at either the South Texas Family
Residential Facility in Dilley, Texas (“Dilley”) or the Berks County Residential Center in
Leesport, Pennsylvania (“Berks”). Others have been released for medical or other reasons. All
petitioners seek a writ of habeas corpus preventing ICE from deporting them during the COVID-
19 pandemic. Presently before the Court is a motion for a temporary restraining order, filed on
behalf of the detained petitioners only, seeking an emergency stay of their imminent removals.
They contend that if the removals were to go forward as planned, they would be exposed to
increased risk of contracting COVID-19 during the deportation process, and later in their home
countries, which would violate their due process rights and ICE’s internal regulations. Finding
that it likely has jurisdiction to review petitioners’ challenge to the conditions they would
experience during the deportation process but concluding that they have not satisfied the
requirements for preliminary injunctive relief, the Court will deny their TRO motion and lift the
administrative stay of removal that the Court put in place while it considered the motion.
I. Background
A. Deportation in the Time of COVID-19
It goes without saying that we are in the midst of a global pandemic. As of this writing,
there are over fourteen and a half million confirmed cases of COVID-19 worldwide with over
600,000 people dead. See WHO, Coronavirus Disease (COVID-19) Pandemic (updated July 21,
2020). 1 The United States remains a hotspot, with over three and a half million confirmed cases
and more than 140,000 deaths. CDC, Cases in the U.S. (updated July 21, 2020). 2
COVID-19 is highly contagious. It spreads primarily through close person-to-person
contact, because carriers of the virus produce airborne respiratory droplets when they cough,
sneeze, or talk that may be inhaled by others standing nearby. See CDC, How to Protect
Yourself & Others (Apr. 14, 2020). 3 Though less frequent, the virus can be also spread through
contact with contaminated surfaces. See CDC, Detailed Disinfection Guidance (updated July ,
2020). 4 Symptoms, such as fever, cough, and shortness of breath, typically appear two to
fourteen days after exposure, but even those who are asymptomatic may be capable of spreading
the disease. CDC, Clinical Questions about COVID-19: Questions and Answers – Transmission
1
https://www.who.int/emergencies/diseases/novel-coronavirus-2019.
2
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
3
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
4
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cleaning-
disinfection.html.
2
(July 21, 2020). 5 The most effective ways to prevent contracting the virus are to avoid being
within six feet of other people, to wash your hands frequently, to avoid crowded places and
gathering in groups, to cover your mouth and nose with a mask when around others, and to clean
and disinfect frequently touched surfaces. See CDC, How to Protect Yourself & Others (Apr.
24, 2020). In addition, the CDC discourages travel because it “increases your chances of getting
infected and spreading COVID-19” by making it difficult to follow the practices laid out in the
prevention guidelines. CDC, Travel in the US (June 28, 2020). 6 But, neither the CDC, nor any
other U.S. governmental body to the Court’s knowledge, has banned travel altogether. Id.
(providing tips on how to “protect yourself and others” if you travel). Indeed, commercial air
travel has continued throughout the duration of the pandemic, although at reduced levels and
with heightened safety precautions. See Dep’t of Transp., et al., Runway to Recovery (July
2020). 7 To date, there is no approved vaccine or cure for COVID-19. CDC, How to Protect
Yourself & Others (Apr. 24, 2020).
During the pandemic, ICE has continued to deport noncitizens subject to final removal
orders. At the heart of this case is whether appropriate safeguards are being taken during the
deportation process. ICE has submitted declarations from officials familiar with the process,
and, while not to be accepted blindly, these declarations are subject to a presumption of good
faith absent clearly contradictory evidence. C.G.B. v. Wolf, No. 20-cv-1072, 2020 WL 2935111,
at *6 (D.D.C. June 2, 2020) (Cooper, J.) (citing cases). According to ICE’s declarants, it has
5
https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission.
6
https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html.
7
https://www.transportation.gov/sites/dot.gov/files/2020-07/Runway_to_Recovery_
07022020.pdf.
3
implemented additional health screening, cleaning, and transportation protocols to help prevent
the spread of COVID-19 while executing final orders of removal. Harper Decl. ¶ 7. ICE attests
that a medical professional with its Health Service Corps completes a transfer summary
certifying that each detainee is medically cleared for travel after a review of their medical
records. Id. ¶ 10. ICE conducts COVID-19 testing prior to removal, but only for migrants being
returned to countries that require the United States to do so. Id. ¶ 11. ICE has also implemented
additional pre-removal screening procedures, which entail evaluations of all deportees by a
health professional to determine whether they are experiencing any symptoms that would
preclude their travel, including those associated with COVID-19. Id. ¶ 12. Prior to boarding any
transportation vehicle, ICE also questions each detainee to confirm whether she is experiencing
any COVID-19 symptoms. Id. ¶ 14. If the detainee clears this screening process, she is
scheduled for removal. Id. Prior to removal, ICE medical staff ensures that each deportee’s
temperature is below 99 degrees, well under the 100.4-degree threshold that the CDC has
identified as a symptom of COVID-19. Id. ¶ 15.
ICE further attests that it provides detainees with personal protective equipment (“PPE”),
including surgical-grade face masks, nitrile gloves on request, and hand sanitizer, throughout the
removal process. Id. ¶ 17. 8 The same is true for transportation personnel. Id. ¶ 22. ICE requires
masks to be worn at all times and performs temperature checks on detainees every hour. Id. ¶
26. It now uses ICE-operated aircraft and ground vehicles only, which it says comply with CDC
8
Petitioners present declarations from migrants deported earlier in the pandemic who say
they were not provided with the full range of PPE. See, e.g., T.A.L. Decl. ¶ 5 (no gloves);
M.D.R.F. Decl. ¶ 5 (no gloves); M.M.R. Decl. ¶ 4, 8 (no gloves); M.C.P. Decl. ¶ 8 (no mask);
A.C.L.T. Decl. ¶¶ 2–4 (no mask). ICE disputes some of these reports, but nonetheless responds
that PPE is fully available to all deportees now. Hunt Decl. ¶¶ 9–16.
4
and ICE detention standards. Id. ¶ 7. ICE explains that all vehicles used during the removal
process are thoroughly cleaned and disinfected by a contractor before and after transports. Id.
¶ 21.
Upon arrival at an intermediate destination within the U.S., transportation specialists once
again check all deportees’ temperatures. Id. ¶ 28. ICE permits deportees to keep any PPE on the
next mode of transportation or for use in their home countries. Id. ICE flights now have an extra
medical provider, and its medical staff conducts another round of temperature checks and visual
screenings at the airport. Cordero Decl. ¶ 11–12. Detainees who fail these screenings are denied
boarding. Id. ¶ 13. During the flights, families must sit in the front of the plane while
individuals are placed at the rear, and, if possible, ICE instructs that empty seats remain between
families and individuals to maintain physical distance. Id. ¶ 18. The ICE-chartered planes are
also cleaned and disinfected after every flight. Id. ¶ 19. As noted, ICE only tests deportees for
COVID-19 prior to removal to countries that “require testing prior to repatriation.” Id. ¶ 7. It
explains that it simply “does not have enough testing resources to test all” noncitizens
“scheduled for future removals.” Id. ¶ 8.
Petitioners insist that many of the precautions ICE describes are simply not being taken
and that others are woefully inadequate. For example, an attorney who works with clients
detained at the Berks family residential center in Pennsylvania declares that deportation from
that center requires the use of public transportation and entails comingling with detainees from
other detention centers. Cambria Decl. ¶ 10–14. ICE acknowledges that detainees are
comingled during the deportation process but adds that social distancing is practiced “to the
extent possible.” Cordero Decl. ¶ 18. Petitioners explain that, prior to the pandemic, deportees
often had layovers with commercial airlines. Cambria Decl. ¶ 12. As noted, however, ICE
5
represents that it is currently only using ICE-chartered flights and “has taken reasonable steps to
ensure that all Air Charter flights comply” with CDC and FAA regulations. Martinez Decl. ¶ 4.
Despite ICE’s precautions, petitioners report that some removal flights have included individuals
infected with COVID-19. Cambria Decl. ¶ 15.
In addition to the dangers they face during the deportation process, petitioners fear what
may await them when they reach their home countries. 9 Many of these countries’ medical
systems, they allege, are ill-equipped to handle an influx of cases. Am. Pet’n & Compl. ¶¶ 209–
32. In some countries, such as Guatemala, petitioners say that new arrivals from the United
States are persecuted because they are seen as bringing the virus with them. See, e.g., T.A.L.
Decl. ¶¶ 12–26 (prior deportee describing physical intimidation and verbal abuse upon arrival in
Guatemala). They claim further that many of the non-profits and government agencies that
typically provide services to arriving deportees have been shuttered due to COVID-19. Fluharty
Decl. ¶ 17. Thus, some petitioners fear that they will be unable to contact family members or
arrange transportation to their final destinations upon their arrival.
B. Procedural History
1. Expedited Removal and Applications for Asylum
Petitioners each sought admission to the United States without valid entry documents
and, as a result, were placed into expedited removal proceedings. Under the expedited removal
statute, immigration officers were required to remove petitioners “from the United States without
further hearing or review unless [they] indicate[d] either an intention to apply for asylum . . . or a
9
Petitioners hail from Guatemala (72), Honduras (57), El Salvador (39), Haiti (14),
Mexico (13), Ecuador (13), Brazil (6), Colombia (3), Chile (3), Nicaragua (2), and Peru (2). Am.
Pet’n & Compl. ¶¶ 36–121.
6
fear of persecution” supporting a claim of withholding of removal. 8 U.S.C. § (b)(1)(A)(i).
After petitioners so indicated, they were interviewed by asylum officers, who sought to ascertain
whether each petitioner possessed a credible “fear of persecution,” such that there was “a
significant possibility . . . that [they] could establish eligibility for asylum.” Id.
§ 1225(b)(1)(B)(v). The asylum officers determined that all the petitioners failed to show a
credible fear of persecution. Consequently, they were required by statute to be “removed from
the United States,” subject to review within seven days by an immigration judge upon
petitioners’ request. Id. § 1225(b)(1)(B)(iii)(I)–(III). Petitioners requested this “prompt review,”
id., but the immigration judges all concurred with the asylum officers’ negative credible fear
determinations. Petitioners therefore each have a final order of expedited removal pursuant to
§ 1225(b). As described in more detail below, the Immigration and Nationality Act (“INA”)
severely limits judicial review of any of these determinations so as to ensure that removal is
indeed expedited. Id. § 1252(a)(2)(A).
Many of the petitioners faced an additional hurdle to establishing a claim for admission in
the summary expedited removal process. Last year, the Department of Homeland Security and
the Department of Justice jointly issued an interim rule, known as the “Transit Ban,” that
rendered migrants seeking admission at the border with Mexico categorically ineligible for
asylum unless they first applied for and were denied similar protection in a third country through
which they traveled. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829,
33,835 (July 16, 2019). The Transit Ban, however, did not prevent petitioners from seeking
admission and a withholding of removal under either section 241(b)(3) of the INA (which
enables them to seek a withholding of removal after they have a final order) or the Convention
Against Torture (which provides separate protections from removal). The upshot of the rule was
7
that petitioners who did not apply for asylum in an interim country faced a more substantial
burden when they sought admission to the U.S.; under both section 241(b)(3) and the Convention
Against Torture, asylum seekers are required to show that “it is more likely than not” that they
would either be persecuted on a protected ground or would be tortured if removed to the
proposed country. See 8 C.F.R. § 1208.16(b)(2); id. § 1208.16(c)(2). If petitioners subject to the
Transit Ban could not show that there was a “significant possibility” that they were eligible for
relief under either of those standards, the asylum officer was required to make a negative
credible-fear determination. Id. § 208.30(e)(2)–(3), (g). While this motion was pending, Judge
Timothy J. Kelly found that the Transit Ban violated the APA and vacated the rule. Cap. Area
Immigrants’ Rts. Coal. v. Trump, No. 19-cv-2117, 2020 WL 3542481, at *21–23 (D.D.C. June
30, 2020). 10
2. Related Litigation
Petitioners are no strangers to this court. Last September, some of them challenged the
validity of their removal orders in an action before Judge Amy Berman Jackson. See M.M.V. v.
Barr, No. 19-cv-2773, 2020 WL 1984309 (D.D.C. Apr. 27, 2020). 11 They invoked the court’s
10
After Judge Kelly vacated the Transit Ban, petitioners here amended their habeas
petition and complaint to add a claim arguing that petitioners who were subject to the vacated
Transit Ban do not have lawful final orders of removal. Am. Pet’n & Compl. ¶¶ 299–310.
However, the currently detained petitioners have not moved to stay their removal on this ground.
The Court therefore has not considered Judge Kelly’s ruling in deciding the present TRO motion.
11
Many of the petitioners are also plaintiffs in another lawsuit in this court seeking
immediate release of all detainees in three family residential centers, including Dilley and Berks,
on the ground that ICE’s failure to protect them from COVID-19 at the facilities violates due
process. See Petition & Complaint at 38–42, O.M.G. v. Wolf, No. 20-cv-786 (JEB) (D.D.C.
Mar. 21, 2020); Motion for Preliminary Injunction at 25, O.M.G. v. Wolf, No. 20-cv-786 (JEB)
(D.D.C. July 2, 2020) (seeking a court order requiring DHS “to promptly release Petitioners and
all detained families at the FRCs”) (emphasis added).
8
jurisdiction under 8 U.S.C. § 1252(e)(3), which authorizes federal court challenges to “written”
policies “implementing” expedited removal orders under certain circumstances. Judge Jackson
dismissed the bulk of the claims, finding that the majority of the alleged policies that the
petitioners challenged were not written and that the INA clearly stripped the court of jurisdiction
to review unwritten policies. M.M.V., 2020 WL 1984309, at *10–19. She also denied several
motions to join the suit by many would-be plaintiffs (also petitioners here) because they either
were not subject to the one written (and thus reviewable) policy or failed to challenge it within
sixty days of its implementation, as required by the statute. Id. at *20–22. Upon making that
determination, Judge Jackson lifted an administrative stay of petitioners’ deportations. Id. at
*21. The government began removing individuals the next day, and petitioners sought to stay
their deportations pending appeal. M.M.V. v. Barr, No. 19-cv-2773, 2020 WL 2119744, at *1
(D.D.C. May 1, 2020) (order denying stay pending appeal). Judge Jackson had entered another
administrative stay while she considered the motion to stay pending appeal, but she ultimately
denied the motion because the INA barred her from entering any injunctive relief. Id. at *3–4.
The D.C. Circuit issued a third administrative stay in the case within an hour of Judge Jackson’s
denial of the stay motion but lifted it two weeks later when it denied petitioners’ emergency
motion for a stay pending appeal. Order, M.M.V. v. Barr, No. 20-5106 (D.C. Cir. May 1, 2020)
(per curiam) (administrative stay); Order, M.M.V. v. Barr, No. 20-5106 (D.C. Cir. May 15,
2020) (per curiam) (denying stay pending appeal). While petitioners in M.M.V. apparently did
not raise the argument that lifting of the stay would expose them to undue COVID-19 risks, both
Judge Jackson and the Circuit surely appreciated the fact that deportations were likely to resume
forthwith during the pandemic.
9
3. Proceedings in this Case
This petition for habeas corpus, complaint for injunctive relief, and motion for temporary
restraining order (“TRO”) followed the next business day after the Circuit lifted petitioners’ stay
of removal. That evening, Judge Carl J. Nichols, acting in his capacity as emergency motion
judge, administratively stayed the deportations of the detained petitioners until a judge could be
assigned the case. Order Granting Administrative Stay (May 18, 2020), ECF No. 8. Petitioners
had indicated that this case was related to M.M.V. because it involved the same petitioners
seeking similar relief. Notice of Related Case (May 18, 2020), ECF No. 12. But this case raises
different claims than those in M.M.V. There, petitioners challenged the legality of the process
and standards that ICE used to determine that they were not entitled to asylum in the first
instance. Here, petitioners seek to prevent the government from deporting them during a global
pandemic in violation of the Constitution and the APA. Based on these differences, Judge
Jackson determined the cases were not related and ordered this petition to be randomly
reassigned. Minute Order (May 19, 2020); Order (May 21, 2020), ECF No. 15. She also
extended Judge Nichols’ stay until the assignment was made. Id. Upon receiving the case, this
Court further extended the administrative stay while it considered the TRO motion and heard
oral argument two days later. The government filed an opposition prior to the hearing, and the
Court permitted petitioners to file a reply afterwards. The government has also sought leave to
file a surreply, which the Court has considered and grants leave file. 12 The TRO motion is now
ripe.
12
Petitioners ask the Court to take judicial notice of two extra-record pieces of evidence.
First, petitioners seek to introduce congressional testimony by ICE’s Executive Associate
Director of Enforcement and Removal Operations, who recently testified to Congress that not all
10
II. Legal Standards
“A TRO is an extraordinary remedy and should be granted sparingly.” Basel Action
Network v. Mar. Admin., 285 F. Supp. 2d 58, 60 (D.D.C. 2003). To obtain a TRO, the moving
party must show: (1) that he is likely to succeed on the merits of his claim; (2) that he is likely to
suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in
his favor; and (4) that an injunction is in the public interest. See Winter v. Nat’l Res. Def.
Council, 555 U.S. 7, 20 (2008); Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) (“The
same standard applies to both temporary restraining orders and to preliminary injunctions”). The
D.C. Circuit has suggested, without holding, that the failure to establish a likelihood of success
on the merits categorically forecloses preliminary relief. Sherley v. Sebelius, 644 F.3d 388, 393
(D.C. Cir. 2011). It has made clear, however, that an absence of irreparable injury is fatal to a
plaintiff’s motion. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.
Cir. 2006).
Before reaching the merits, the Court should ensure that it has jurisdiction to consider
petitioners’ claims. Courts evaluate whether they have jurisdiction through the lens of the
deportees are tested prior to removal. Pet’rs’ Mot. for Judicial Notice (June 8, 2020), ECF No.
25. The Court will take judicial notice of this sworn testimony because congressional testimony
“is not subject to reasonable dispute.” Fed. R. Evid. 201(b)(2); see also Didban v. Pompeo, 435
F. Supp. 3d 168, 177 n.5 (D.D.C. 2020) (this Court taking judicial notice of congressional
testimony). Second, petitioners seek to introduce two newspaper articles discussing deportees
who have tested positive for COVID-19 after removal. Pet’rs’ Mot. for Judicial Notice (June 26,
2020), ECF No. 29. The Court will take judicial notice of the “existence of these articles,” to
show that ICE is aware of the reports. Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 113
(D.D.C. 2015) (taking judicial notice of newspaper articles “not . . . for the truth of their
assertions,” but “for the fact that they . . . should have put plaintiff on notice of [their contents]”
(citing Washington Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991) (“[A] court may take
judicial notice of the existence of newspaper articles in the Washington, D.C., area that
publicized” certain facts.))).
11
standard applicable at each stage of litigation. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). For example, “a party who fails to show a ‘substantial likelihood’ of standing is not
entitled to a” temporary restraining order. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,
913 (D.C. Cir. 2015) (citation omitted). “That same reasoning . . . extends to other jurisdictional
prerequisites.” California Ass’n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158,
167 (D.D.C. 2018). Thus, “[a]s part of establishing a likelihood of success on the merits, the
[petitioners] must first demonstrate a likelihood of success in establishing jurisdiction.” Make
the Rd. New York v. Wolf, 962 F.3d 612, 623 (D.C. Cir. 2020).
III. Analysis
The petitioners who are currently detained at the Dilley and Berks facilities seek an
emergency stay of their removal orders during the pandemic. They in essence raise two sorts of
claims. First, they allege that the travel conditions they would experience during the deportation
process do not comport with ICE or CDC guidelines and are inherently unsafe. Thus, they
contend that requiring them to travel during the pandemic violates their substantive due process
rights and the Administrative Procedure Act (“APA”). Second, they allege that the conditions
they would encounter in their home countries after the deportation process are dangerous due to
both the prevalence of COVID-19 and the stigma of having traveled from the United States.
Consequently, they claim releasing them in those destinations during the pandemic would also
violate their due process rights.
A. Likelihood of Jurisdiction
As mentioned, petitioners “must first demonstrate a likelihood of success in establishing
jurisdiction.” Make the Rd., 962 F.3d at 623. ICE contends that the Court lacks the power to
review petitioners’ claims due to section 242 of the INA, 8 U.S.C. § 1252, which strips federal
12
courts of jurisdiction to hear a wide variety of claims made by noncitizens in connection with
their immigration proceedings. The Court interprets jurisdiction-stripping provisions like § 1252
“against the backdrop of ‘a familiar principle of statutory construction: the presumption favoring
judicial review of administrative action.’” Id. (quoting Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1069 (2020)) (applying the presumption in interpreting § 1252). This “‘strong
presumption’ in favor of judicial review is so embedded in the law that it applies even when
determining the scope of statutory provisions specifically designed to limit judicial review” and
“can be overcome only by clear and convincing evidence of congressional intent to preclude
judicial review” over petitioners’ claims. Id. at 624 (internal quotations omitted). That principle
in mind, the Court will “start with the text, and then read those words in light of the statutory
structure and context.” Id. The government argues that review of both sets of petitioners’ claims
are independently foreclosed by two subsections of § 1252, namely § 1252(a)(2)(A) and §
1252(g). The Court takes each in turn.
1. Section 1252(a)(2)(A)
Section 1252(a)(2)(A) limits judicial review of orders of expedited removal issued under
8 U.S.C. § 1225(b)(1). The relevant parts state:
(2) Matters not subject to judicial review.
(A) Review relating to section 1225(b)(1). Notwithstanding any other
provision of law (statutory or nonstatutory), including section 2241 of
title 28, or any other habeas corpus provision, and sections 1361 and
1651 of such title, no court shall have jurisdiction to review—
(i) except as provided in subsection (e), any individual
determination or to entertain any other cause or claim
arising from or relating to the implementation or operation
of an order of removal pursuant to section 1225(b)(1) of this
title.
13
8 U.S.C. § 1252(a)(2)(A)(i) (emphasis added). 13 The government contends that the prohibition
against judicial review of any claim “arising from or relating to the implementation . . . of an
order of [expedited] removal” bars review of all of petitioners’ claims here. Id. The Court does
not read that text so broadly. While the phrase “arising from or relating to” is expansive, it is not
limitless. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 476–87 (1999)
(narrowly construing the phrase “arising from” in § 1252(g)); Jennings v. Rodriguez, 138 S. Ct.
830, 839–41 (2018) (plurality) (narrowly construing the phrase “arising from” in § 1252(b)(9)
and emphasizing the Court’s long history of “eschew[ing] uncritical literalism” when
interpreting phrases like “arising from and relating to” when it would “lead[] to results that no
sensible person could have intended.” (internal quotation marks omitted)).
The Supreme Court’s ruling in Jennings v. Rodriquez highlights the point. Jennings
presented a claim by arriving noncitizens that their prolonged detention without a bond hearing
13
The government makes passing reference in its briefs to romanettes (ii)-(iv) of
§ 1252(a)(2)(A). To the extent the government contends that these provision bar petitioners’
claims, the Court finds them inapplicable. Petitioners do not challenge (ii) any “decision . . . to
invoke” § 1225(b)(1); (iii) “the application of” § 1225(b)(1) to them; or (iv) any “procedures and
policies adopted . . . to implement” § 1225(b)(1).
Subsection (e), the carve out to the jurisdictional bar in § 1252(a)(2)(A), is also
inapplicable. Subsection (e) permits judicial review over three specific factual questions in
habeas proceedings and over certain systemic challenges to the expedited removal process. With
respect to an individual habeas petition, the Court may only review (1) whether a petitioner is a
noncitizen, (2) whether they were in fact ordered removed, and (3) whether they have been
lawfully admitted for permanent residence, as a refugee, or been granted asylum. 8 U.S.C. §
1252(e)(2). As for systemic challenges, the suit must be “filed no later than 60 days after the
date the challenged section, regulation, directive, guideline, or procedure . . . is first
implemented.” Id. § 1252(e)(3). It is undisputed that these claims fall outside those parameters.
Thus, the only inquiry remaining is under romanette (i), which asks whether petitioners’
claims “aris[e] from or relat[e] to the implementation or operation of an order of removal
pursuant to section 1225(b)(1).”
14
violated due process. Jennings, 138 S. Ct. at 839. Section 1252(b)(9), another of the INA’s
jurisdiction-stripping provisions, requires all claims “arising from any action taken or proceeding
brought to remove an alien from the United States” to be brought together, at once, in a review of
a final order of removal before a federal circuit court. 8 U.S.C. § 1252(b)(9). 14 The claims in
Jennings, however, were brought separately from any review of a final order and in the district
court. The government thus argued that § 1252(b)(9) foreclosed the plaintiffs’ length-of-
detention challenge, at least until the review of a final order of removal, because the detention
itself arose from the removal proceedings.
A three-justice plurality of the Supreme Court rejected the government’s argument. 15
Writing for the plurality, Justice Alito explained that § 1252(b)(9) did not bar the claims
challenging prolonged detention because the plaintiffs did “not ask[] for review of an order of
removal; they [were] not challenging the decision to detain them in the first place or to seek
removal; and they [were] not even challenging any part of the process by which their
removability [would] be determined.” Jennings, 138 S. Ct. at 841 (plurality). The length-of-
detention constitutional claims were ancillary to the removal orders, the plurality explained,
14
Section 1252(b)(9) does not apply to the expedited removal process petitioners
underwent here. See 8 U.S.C. § 1252(a)(1) (exempting expedited orders of removal from the
judicial review provisions of subsection (b)). As discussed, the § 1252(a)(2)(A) jurisdiction-
stripping provisions govern the reviewability of claims by noncitizens with expedited removal
orders.
15
Although the bulk of the Jennings opinion garnered a majority vote, the jurisdiction
section interpreting the INA was only joined by three members of the Court. However, six
justices in total (the plurality plus a three-justice dissent) agreed that the INA did not bar review.
(The dissent would have read the INA jurisdiction-stripping provisions even more narrowly than
the plurality.) The two concurring justices, who joined the remainder of the Jennings opinion,
would have held that the INA barred the petitioners claims. (Attentive readers will have counted
only eight votes; Justice Kagan did not participate in the case.)
15
because “the legal questions” in the case were “too remote from” any “action taken to remove an
alien,” even if detention itself arises from such an action. Id. at 841 n.3. This was so even
though “it may be argued” that the length-of-detention claims arose from the actions taken to
order removal “in the sense that if those actions had never been taken, the aliens would not be in
custody at all.” Id. at 840. A contrary conclusion, in Justice Alito’s view, would have led to
“staggering results,” such as requiring Bivens claims based on inhumane conditions of
confinement or state-law tort claims to be reviewable only during judicial review of final
removal orders. Id.
Justice Thomas (along with Justice Gorsuch) rejected the plurality’s reasoning because,
to him, “detention is an ‘action taken . . . to remove’ an alien[.]” Id. at 855 (Thomas, J.,
concurring in part). As a result, he would have rejected the detainees’ challenge as they were
only contesting the fact of their detention. Id. He noted, however, that his interpretation of the
statute would still preclude the “staggering results” that the plurality feared. Id. He explained:
[M]y conclusion that § 1252(b)(9) covers an alien’s challenge to the fact of his
detention (an action taken in pursuit of the lawful objective of removal) says
nothing about whether it also covers claims about inhumane treatment, assaults, or
negligently inflicted injuries suffered during detention (actions that go beyond the
Government’s lawful pursuit of its removal objective).
Id. (citing Bell v. Wolfish, 441 U.S. 520, 536–39 (1979) (drawing a similar distinction)).
The three remaining justices would have read the language in § 1252(b)(9) even more
narrowly, such that it would only apply to challenges to the removal order itself. Id. at 876
(Breyer, J., dissenting). Thus, the Court unanimously agreed that ancillary challenges, such as
those to the conditions of confinement, were not channeled into the review of a final removal
order by § 1252(b)(9).
16
Jennings’ logic applies here. Recall that § 1252(a)(2)(A)(i) bars the Court from
reviewing “any individual determination or [from] entertain[ing] any other cause or claim arising
from or relating to the implementation or operation of an order of removal pursuant to section
1225(b)(1),” which governs expedited removals. Section 1252(b)(9), at issue in Jennings, is
similar. Although it does not bar review completely, it requires claims “arising from any action
taken or proceeding brought to remove an alien from the United States,” apart from expedited
removal orders, to be brought alongside the review of a final removal order before a federal
circuit court. 8 U.S.C. § 1252(b)(9). Justice Thomas’ distinction between challenging the fact of
detention and challenging circumstances that arise during detention perfectly encapsulates the
issues here, and all eight of the justices who participated in Jennings agreed that § 1252(b)(9) did
not apply to ancillary claims such as those that arise from conditions suffered during detention.
Petitioners’ first set of claims (i.e., those aimed at COVID-related travel risks) do not
challenge the fact of their removals; they challenge the conditions they would face during the
removal process. Those claims are not related to the executive’s discretionary decisions to
implement or execute a removal order. See Reno, 525 U.S. at 486 (recognizing that
§ 1252(a)(2)(A) is “aimed at protecting the Executive’s discretion from the courts”).
Furthermore, accepting the government’s expansive interpretation of § 1252(a)(2)(A) would lead
to even more absurd results than the Supreme Court contemplated in Jennings. There, the
plurality explained that interpreting § 1252(b)(9) to cover the plaintiffs’ length-of-detention
claims would have required claims based on inhumane conditions of confinement and state law
tort claims to be reviewed only during the review of final orders. Jennings, 138 S. Ct. at 840.
That delay could have prevented meaningful review for noncitizens detained at length before
they were able reach the courthouse doors. Here, because petitioners are subject to expedited
17
removal orders, the government’s interpretation would mean that alleged unconstitutional
conditions of confinement could not be challenged at all. See 8 U.S.C. § 1252(a)(2)(A).
In sum, the INA gives the government virtually unreviewable authority to decide whether
and when to implement the petitioners’ removal orders, but the Court retains jurisdiction to hear
claims challenging the constitutionality of the manner in which the government physically
carries out the removals during the deportation process. That conclusion comports with the text
and purpose of § 1252(a)(2)(A) and prevents the type of “staggering results” that the Supreme
Court sought to avoid in Jennings. 16
2. Section 1252(g)
Turning to § 1252(g), which the government contends independently strips the Court of
jurisdiction over all of petitioners’ claims, the Court likewise finds that petitioners’ conditions-
of-deportation claims likely are not barred by that provision. Section 1252(g) prohibits the
courts from hearing any claim “arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g)
(emphasis added). The Supreme Court has narrowly construed this subsection to preclude only
16
The Third Circuit’s decision in Castro v. DHS, 835 F.3d 422 (3d Cir. 2016), which the
government cites to support its claim of non-reviewability, is not to the contrary. There, habeas
petitioners claimed that “the asylum officer and [immigration judge] conducting their credible
fear interview and review violated their Fifth Amendment procedural due process rights,” as well
as other rights under statutes and treaties, by “fail[ing] to prepare a written record of their
negative credible fear determinations that included the officers’ analysis of why . . . the alien has
not established a credible fear of persecution,” and by “apply[ing] a higher standard for
evaluating the credibility of their fear of persecution than is called for in the statute.” Castro,
835 F.3d at 428 & n.8. Those claims were clearly barred by the INA because they related
directly to the agency’s process of determining whether the noncitizens should be removed.
Castro did not confront whether claims that are untethered to the process or decision to
implement a removal order, like those here challenging the manner of deportation, fall within the
ambit of the statute. As explained above, they do not.
18
challenges to the three enumerated actions listed in the statute: deciding to commence
proceedings, deciding to adjudicate cases, and deciding to execute removal orders. Reno, 525
U.S. at 482. These three actions, the Court has observed, “represent the initiation or prosecution
of various stages in the deportation process.” Id. at 483. “At each stage the Executive has
discretion to abandon the endeavor,” and Congress saw fit to insulate these discretionary
judgments from judicial review. Id. at 483–84 (observing that Congress sought to curtail the
ability of noncitizens to challenge discretionary decisions by the government not to defer
immigration actions “for humanitarian reasons or simply for its own convenience,” which had
become a regular practice); see also DHS v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907
(2020) (“Section 1252(g) is . . . narrow.”).
By contrast, nondiscretionary decisions, such as physically deporting noncitizens in an
unconstitutional manner, likely fall outside the statute’s jurisdictional bar. And petitioners’
challenge to the physical manner of their deportation does not implicate the agency’s
discretionary decision to execute their removal orders. The immigration authorities are
“empowered to remove Petitioner[s] at their discretion. But they cannot do so in any manner
they please.” You, Xiu Quing v. Nielsen, 321 F. Supp. 3d 451, 457 (S.D.N.Y. 2018). The
decisions challenged here regarding how to transport deportees during the ongoing pandemic are
more akin to the “other decisions or actions that may be part of the deportation process—such as
the decisions to open an investigation, to surveil the suspected violator, to reschedule the
deportation hearing, to include various provisions in the final order that is the product of the
adjudication, and to refuse reconsideration of that order”—that the Supreme Court in Reno found
not to be encompassed by § 1252(g). Reno, 525 U.S. at 482.
19
Petitioners’ second set of claims, which challenge their removal to countries they allege
are ill-equipped to receive them, do not fare as well under § 1252(g). Petitioners argue that it
would violate due process by releasing them into countries where COVID-19 is not controlled or
where they will face persecution due to fear on the part of their compatriots that they are carrying
the virus from the United States. Unlike the claims based on the conditions of deportation, this
challenge directly implicates the government’s discretionary authority to return noncitizens to
their native countries. See Reno, 525 U.S. at 483–84 (noting that the decision to execute a
removal order “represent[s] the initiation or prosecution of [a particular] stage[] in the
deportation process” and that the “the Executive has discretion to abandon the endeavor” at that
stage for “humanitarian reasons” or otherwise). In determining whether to implement
petitioners’ removal orders, the government necessarily must decide whether to return them to
their home countries. Petitioners’ contention that they would face danger in those same
countries unavoidably calls into question that judgment, which, for better or worse, Congress has
left to the exclusive province of the Executive branch. See generally 8 U.S.C. § 1231(c)(2)(A)(i)
(“The Attorney General may stay the removal of an alien under this subsection if the Attorney
General decides that immediate removal is not practicable or proper.”). 17
Permitting judicial review of due process challenges to the conditions in petitioners’
home countries could also open the door to impermissible relitigation of negative credible-fear
17
It also bears noting that the INA provides a separate procedure for petitioners to reopen
removal proceedings on the basis that changed country conditions warrant relief. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii) (permitting noncitizens to file a belated motion to open removal proceedings
“based on changed country conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and was not available and would
not have been discovered or presented at the previous proceeding”); 8 C.F.R.
§ 1208.4(a)(4)(i)(A)–(B).
20
determinations. Take, for example, a noncitizen with an expedited removal order who claims
that it would violate due process for ICE to release him into his home country because there is a
civil war raging there and he will be persecuted when he arrives. If the presence of the civil war
was the factual basis for his rejected asylum application, his claims clearly would be barred. In
ordering the noncitizen removed, the agency would necessarily have already rejected the
petitioner’s claim that the civil war warranted asylum, and one of the primary purposes of the
INA’s jurisdiction-stripping provisions is to prevent the relitigation of the agency’s initial asylum
determinations. See DHS v. Thuraissigiam, 140 S. Ct. 1959, 1966 (2020) (“A major objective of
[these provisions] was to ‘protec[t] the Executive’s discretion’ from undue interference by the
courts; indeed, ‘that can fairly be said to be the theme of the legislation.’” (quoting Reno, 525
U.S. at 486)). Granted, petitioners’ home-country claims here are not based on the same factual
predicate as their underlying asylum claims. But, even though petitioners “may not be directly
questioning the agency’s discretionary” decision to carry out their removal orders, the INA bars
review of claims that effectively do so. C.G.B., 2020 WL 2935111, at *30 (citing Giammarco v.
Kerlikowske, 665 F. App’x 24, 26 (2d Cir. 2016) (“[B]ecause [the] petition for a writ of habeas
corpus ad testificandum essentially seeks to void discretionary decisions denying [a detainee] the
same relief, his petition is inextricably linked to those decisions,” there is no “jurisdiction to
consider the merits of [the] habeas petition [under 8 U.S.C. § 1252(a)(2)(B)].” (citations
omitted))).
Because the decision to return petitioners to their home countries is part and parcel of
ICE’s discretionary, unreviewable decision to execute their expedited removal orders, the Court
21
finds that § 1252(g) likely divests it of jurisdiction to hear petitioners’ claims that exposing them
to dangerous conditions in those countries would violate due process. 18
3. The Suspension Clause
The final aspect of the Court’s jurisdictional inquiry involves the Suspension Clause of
the Constitution, which prohibits the political branches from “suspend[ing]” the writ of habeas
corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it,” U.S.
Const. Art. I, § IX, cl. 2. Petitioners contend that if the Court were to hold that the INA bars
jurisdiction over their claims, the statute would violate the Suspension Clause. After the briefing
on petitioners’ motion was completed, the Supreme Court clarified that the Suspension Clause
only protects “core” habeas claims, namely those that challenge present physical confinement.
Thuraissigiam, 140 S. Ct. at 1970–71. Here, petitioners seek a “non-core” application of the writ
in that they “challenge[] something other than [their] present physical confinement.” Rumsfeld
v. Padilla, 542 U.S. 426, 438 (2004). Indeed, they seek to stay their deportation and thereby
remain in custody. Accordingly, the INA’s bar to judicial review of the petitioner’s home-
country claims does not implicate the Suspension Clause.
***
Section 1252 is one of the most comprehensive jurisdiction-stripping statutes in the
United State Code, yet some claims manage to escape its clutches. Because the text of the INA
does not clearly prohibit the Court from reviewing the constitutionality of the physical manner in
18
Petitioners’ home-country claims are also likely barred by § 1252(a)(2)(A)(i) for
similar reasons. Because the government has discretion to begin or suspend the execution of
removal orders, these claims could be said to challenge the fact of deportation and therefore
“aris[e] from or relat[e] to the implementation or operation of an order of removal” within the
meaning of § 1252(a)(2)(A)(i). See Jennings, 138 S. Ct. at 855 (Thomas, J., concurring in part).
22
which petitioners would be deported, the Court likely has jurisdiction to decide those claims. On
the other hand, petitioners’ due-process claims based on conditions they might encounter in their
home countries directly implicate the government’s discretionary decision to carry out their
removal orders such that the Court likely lacks jurisdiction over those claims. The Court will
therefore only analyze petitioners’ likelihood of succeeding on the merits of their manner-of-
deportation claims.
B. Likelihood of Success on the Merits
Again, the petitioners claim that the manner of their contemplated deportations—
specifically, their exposure to the risks of contracting COVID-19 during the transportation
process—would violate both their Fifth Amendment due process rights and the APA. The Court
concludes that petitioners have not established a likelihood of success on the merits of their
claim on either ground.
1. Due Process
Taking due process first, the government argues out of the blocks that petitioners do not
have due process rights because they have not been lawfully admitted to the United States.
Gov’t’s Opp’n 21. Not so. The Supreme Court recently clarified that an asylum seeker with a
negative credible-fear determination “has only those rights regarding admission that Congress
has provided by statute.” Thuraissigiam, 140 S. Ct. at 1982–83 (emphasis added) (citing Landon
v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial
admission to the United States requests a privilege and has no constitutional rights regarding his
application.” (emphasis added)). Petitioners here do not seek to vindicate procedural due
process rights related to their asylum applications, which the Supreme Court has now expressly
limited to the process provided by statute. Rather, they are seeking to enforce substantive due
23
process rights based on what amounts to unconstitutional conditions of confinement during the
removal process. See id. at 2013 n.12 (Sotomayor, J., dissenting) (“Presumably a challenge to
the length or conditions of confinement pending a hearing before an immigration judge falls
outside of that class of cases. Because respondent only sought promised asylum procedures,
today’s decision can extend no further than these claims for relief.”). The Court therefore finds
that petitioners are entitled to due process in relation to the conditions attendant to their
deportations.
The question, then, is whether the deporting the currently detained petitioners during the
pandemic would likely offend due process. This Court recently laid out the constitutional
standards that apply to a conditions of confinement challenge brought by noncitizens in civil
immigration detention:
When the Government “takes a person into its custody and holds [her] there against
[her] will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for [her] safety and general well-being[.]” DeShaney v. Winnebago
Cnty. Dep't. of Social Serv., 489 U.S. 189, 199–200 (1989). Confinement of a
person in a way that “renders [her] unable to care for [her]self, and at the same time
fails to provide for [her] basic human needs—e.g., food, clothing, shelter, medical
care, and reasonable safety” violates the Eighth Amendment to the Constitution.
Id. Accordingly, the Eighth Amendment prohibits the Government from
“ignor[ing] a condition of confinement that is sure or very likely to cause serious
illness.” Helling v. McKinney, 509 U.S. 25, 33 (1993). While civil immigration
detainees are protected by the Fifth Amendment’s Due Process Clause, these Eighth
Amendment protections nevertheless apply to them “because a [civil] detainee’s
rights are ‘at least as great as the Eighth Amendment protections available to a
convicted prisoner.’” Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *3
(W.D.N.Y. Apr. 2, 2020) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S.
239, 244 (1983)).
To assess whether conditions of confinement violates due process, courts consider
whether the conditions “amount to punishment of the detainee.” Bell, 441 U.S. at
535. Because civil immigration detainees, like pretrial criminal detainees, have not
been convicted of any present crime, they “may not be subjected to punishment of
any description.” Hardy v. District of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C.
2009) (quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)).
24
In determining whether conditions of confinement amount to punishment, “[a]
court must decide whether the disability is imposed for the purpose of punishment
or whether it is but an incident of some other legitimate governmental purpose.”
Bell, 441 U.S. at 538.
C.G.B., 2020 WL 2935111, at *22. Because petitioners would remain in ICE’s custody during
the deportation process up to the point of their release into their home countries, the Court will
apply this standard to their challenge to the conditions attendant to that process. 19 The relevant
inquiry, therefore, is whether the manner in which their deportations would be carried out is
“rationally related to a legitimate nonpunitive governmental purpose or . . . appear[s] excessive
in relation to that purpose.” Kingsley, 135 S. Ct. at 2373–74 (quoting Bell, 441 U.S. at 538). 20
The government plainly has a legitimate interest in the enforcement of immigration laws,
and Congress has deemed that interest to be furthered by expeditiously removing asylum seekers
who have been found not to have a credible fear of persecution in their native countries. See,
e.g., Landon, 459 U.S. at 34 (“The government’s interest in efficient administration of the
immigration laws at the border . . . is weighty.”). In C.G.B., this Court considered whether the
conditions of detention experienced by certain noncitizens at five ICE facilities across the
country violated due process. Finding that the conditions likely violated the due process rights of
some, but not all, of the detainees, the Court explained that “the Constitution does not require
19
Petitioners frame their claims under the higher “deliberate indifference” and “shocks
the conscience” standards that apply in substantive due process cases where the government has
a “special-relationship” with the plaintiff or has exposed him to “state-created danger.” See, e.g.,
Harris v. District of Columbia, 932 F.2d 10, 14 (D.C. Cir. 1991); Butera v. District of Columbia,
235 F.3d 637, 649–51 (D.C. Cir. 2001). Because, as discussed, their claims are unlikely to
succeed under the lower standard set out in C.G.B., they are necessarily likely to fail under these
higher standards.
20
Petitioners do not allege “an expressed intent to punish on the part of [ICE] officials.”
Bell, 441 U.S. at 538 (internal quotation marks omitted).
25
ICE to reduce the risk of harm to zero.” C.G.B., 2020 WL 2935111, at *23 (quoting Benavides
v. Gartland, No. 20-cv-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020)). “If it did, then
any detention that does not allow detainees to perfectly practice social distancing would be per se
unconstitutional.” Id. The same reasoning applies to ICE’s detention of deportees during the
removal process. Due process only requires ICE to provide petitioners with “reasonable safety,”
not perfect safety. DeShaney, 489 U.S. at 200.
As noted previously, ICE has provided the Court sworn declarations, which carry a
presumption of good faith, indicating that it has taken a series of reasonable precautions to
mitigate the possibility that petitioners traveling from the Berks or Dilley facility will be exposed
to COVID-19 during their journey home. It will conduct verbal screenings and temperature
checks of all deportees at each leg of the trip and prohibit anyone exhibiting COVID-19
symptoms from traveling further. It will provide all travelers with hand sanitizer and masks,
which they will be required to wear. It has also arranged for dedicated charter flights and ground
transportation for all trips, so no petitioner will be forced to congregate in commercial airports or
travel in commercial vehicles or planes. Each flight will carry a healthcare provider proficient in
aviation medicine, who will conduct additional pre-removal visual screenings and distribute
additional PPE as needed. And ICE has committed to segregating families from individuals on
flights and limiting the number of passengers on any given flight to allow for physical distancing
“to the extent possible.”
Still, as ICE itself acknowledges, these preventative measures will not eliminate the risk
of exposure altogether. Petitioners correctly note that ICE’s inability to ensure complete
compliance with CDC’s social distancing guidelines will increase their risk of exposure to some
extent. They also stress that ICE’s failure to test every deportee (in lieu of symptom-based
26
screening) makes it possible that asymptomatic COVID carriers will be traveling alongside non-
infected petitioners. Again, however, due process does not demand zero risk. It only requires
ICE to ensure its detainees reasonably safe conditions. The Court is persuaded that with the
precautions it has adopted, ICE has met that standard. While the CDC has recommended against
all non-essential travel during the pandemic, it has not suggested that travel be banned entirely.
Consistent with that guidance, commercial airlines have continued to operate during the
pandemic. And the conditions that thousands of commercial air travelers currently experience
every day (albeit mostly voluntarily)—required masks but no guarantee of an unoccupied
adjacent seat or row and no COVID testing—are comparable to those that petitioners would face
on ICE charter flights. See Dep’t of Transp., et al., Runway to Recovery, at 29–30 (July 2020).
More importantly, the Court must assess the conditions that petitioners would experience
during the deportation process relative to those they would continue to face were the Court to
grant the requested stay. While the parties have not provided the Court with any information on
the prevalence of the virus or ICE’s prevention efforts at the Berks and Dilley facilities,
petitioners’ counsel are actively pursuing litigation against ICE elsewhere in this court on behalf
of detainees at both facilities over their alleged non-compliance with CDC’s COVID-19
guidelines. See Petition & Complaint at 3, O.M.G. v. Wolf, No. 20-cv-786 (JEB) (filed D.D.C.
Mar. 21, 2020) (alleging that ICE has “failed to provide education to Petitioners and individuals
employed at the [facilities], ensure that minimum basic necessities such as soap or hand sanitizer
are provided, and ensure that is possible to achieve the critical need for social distancing”).
Indeed, Judge Dolly Gee in the Central District of California recently found that detainees at
ICE’s family residential centers, including at Berks and Dilley, are at a high risk for COVID-19.
Flores v. Barr, No. 85-cv-4544, 2020 WL 3488040, at *1 (C.D. Cal. June 26, 2020). She
27
specifically found that that “individuals living in congregate settings are more vulnerable to the
virus,” that “four employees at Dilley already have tested positive,” that there have been “recent
increases in COVID-19 infection rates in the counties in which . . . Dilley [is] located,” and that
“six children were afflicted with viral stomatitis in or about April 2020, further demonstrating
the ease with which contagion can spread in congregate settings.” Id. Likewise, while
petitioners note the purported risk associated with comingling deportees from multiple facilities
during the deportation process, similar risk exists within the detention centers. The populations
of the centers are in flux, detainees are not tested on a routine basis, and staff come and go daily.
Petitioners therefore have not shown that commingling during the removal process would
increase their exposure to the virus beyond what it is now, let alone to such an extent that would
violate constitutional due process.
The bottom line is that the risks of the removal process cannot be assessed a vacuum.
Rather, the Court must ask whether it is reasonable for ICE to expose petitioners to the
temporary risks of traveling as compared to the indefinite risks of remaining in congregate
detention facilities with transient detainee populations who have not all been tested for the virus
and staff entering and leaving every day. Viewed from that perspective, the Court has little
difficulty concluding that petitioners are not likely to show that ICE will subject them to an
unreasonable health risk by carrying out their removals with the precautionary measures ICE has
committed to taking.
2. Administrative Procedure Act
Petitioners also contend that their removal during the pandemic would violate the APA.
They root their APA claim in United States ex rel. Accardi v. Shaughnessy (“Accardi”), where
the Supreme Court vacated a deportation order that was issued in a manner that did not comply
28
with “[r]egulations [that] prescribe[d] the procedure to be followed in processing an alien’s
application for suspension of deportation.” 347 U.S. 260, 265 (1954). “Accardi has come to
stand for the proposition that agencies may not violate their own rules and regulations to the
prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005). Rules that fall
within Accardi’s ambit include “internal agency guidance” that are “intended” to be “binding
norm[s].” Damus v. Nielsen, 313 F. Supp. 3d 317, 336 (quoting Padula v. Webster, 822 F.2d 97,
100 (D.C. Cir. 1987)). Petitioners contend that, under Accardi, ICE’s failure to follow CDC
guidance and its own policies in responding to the COVID-19 pandemic is arbitrary and
capricious. Am. Pet’n & Compl. ¶¶ 287–98. The government responds that petitioners do not
challenge the type of regulation encompassed by Accardi and that, regardless, they have not
shown that ICE is violating the guidelines. The Court agrees that petitioners’ claims fall outside
the Accardi doctrine.
As this Court recently explained, “agency regulations do not create substantive due
process rights.” C.G.B., 2020 WL 2935111, at *34 (emphasis in original). Accardi is instead
“rooted instead in notions of procedural due process.” Id. (emphasis in original) (citing Lopez v.
FAA, 318 F.3d 242, 246 (D.C. Cir. 2003); Thomas W. Merrill, The Accardi Principle, 74 Geo.
Wash. L. Rev. 569, 577 (2006) (noting that all post-1950s Supreme Court cases “that reference
the Accardi principle . . . involve procedural as opposed to substantive regulations.”)). In Damus
v. Neilson, for example, the court held that plaintiffs could challenge ICE’s failure to comply its
own Parole Directive, which imposed “a number of procedural requirements for assessing
asylum-seekers’ eligibility for release,” including “an opportunity to submit documentation, the
availability of an individualized parole interview, and an explanation of the reasons for a parole
denial.” 313 F. Supp. 3d at 324, 337; see also Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 151
29
(D.D.C. 2018) (recognizing an Accardi claim related to a policy that “establishe[d] procedural
rights for asylum seekers in connection with the parole process”). The guidelines involved here,
conversely, set out substantive standards for how to handle the COVID-19 crisis. But because
Accardi does not create substantive rights, petitioners cannot rely on the APA to enforce the
government’s adherence to CDC guidelines or its own internal guidance during their removals.
Petitioners therefore have not established likelihood of success on the merits of their APA claim.
C. Irreparable Injury
Moving to the irreparable injury prong of the TRO analysis, deportation pursuant to a
valid removal order is “not categorically irreparable.” Nken v. Holder, 556 U.S. 418, 435
(2009). That is, “the burden of removal alone cannot constitute the requisite irreparable
injury.” Id. (emphasis added). The Supreme Court explained that noncitizens were not
irreparably harmed when they could “continue to pursue their petitions for review” after removal
and, if they prevailed, could “be afforded effective relief by facilitation of their
return.” Id. Here, however, removal during the pandemic would effectively foreclose this
petition from review; petitioners obviously could not challenge the legality of the conditions of
their deportation during a pandemic after they have been removed. Even if they could, the Court
would not be able to afford them effective relief. Petitioners have, therefore, demonstrated
irreparable harm in that regard. 21
21
While the Court finds petitioners have shown irreparable harm insofar as they would be
unable to mount their challenge absent a stay, as discussed above in connection with the merits
prong of the TRO analysis, they have failed to show that the alleged harm associated with the
deportation process would be any greater than the present harm inside the Dilley and Berks
facilities. In fact, it may well be less.
30
D. Balance of the Equities and the Public Interest
When the movant seeks to enjoin the government, the final two TRO factors—balancing
the equities and the public interest—merge. See Pursuing Am.’s Greatness v. FEC, 831 F.3d
500, 511 (D.C. Cir. 2016). There are equities and public interests on both sides of the scale
here. As the Supreme Court has noted, “[t]here is always a public interest in prompt execution
of removal orders” because “[t]he continued presence of an alien lawfully deemed removable
undermines the streamlined removal proceedings [Congress] established, and ‘permit[s] and
prolong[s] a continuing violation of United States law.’” Nken, 556 U.S. at 436 (quoting Reno,
525 U.S. at 490). But that interest is not as strong where, as here, petitioners “are not being
removed because they violated the law.” M.M.V., 2020 WL 2119744, at *3. Nor is it as strong,
perhaps, where legitimate concerns have been raised over the circumstances surrounding the
denial of petitioners’ asylum petitions. Id. (referencing a number of “troubling” circumstances
surrounding petitioners’ applications—including the application of the Transit Ban, adversarial
interviews, negative social media posts by interviewing officers, and the failure to apply the most
favorable circuit precedent—that the court did not have jurisdiction to review); see also M.M.V.,
2020 WL 1984309, at *4–6, 12–16. The Supreme Court has also recognized that there is a
“public interest in preventing aliens from being wrongfully removed, particularly to countries
where they are likely to face substantial harm.” Nken, 556 U.S. at 436. Absent a TRO staying
their removal, petitioners will very likely be deported during a worldwide pandemic, exposing
them to at least some risk of contracting the virus along the way. It is in the public interest to
avoid or reduce that risk. As discussed above, however, petitioners’ deportation could
potentially reduce their overall COVID exposure by removing them from congregate detention
facilities that have been found not to comply with relevant CDC guidelines. Lowering the
31
capacity of those facilities would also curtail the remaining detainees’ exposure to the virus,
which is also in the public interest. Weighing these factors, the Court cannot say that balance
tips decidedly towards one party or the other.
***
While petitioners will suffer irreparable harm insofar as they will not be able to mount
this challenge after their deportation, because they are unlikely to succeed on the merits and the
other two factors do not “‘clearly favor[]’ granting the injunction,” Davis v. Pension Ben. Guar.
Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009), the Court must decline to enter a temporary
restraining order and will lift the administrative stay of removal.
IV. Venue
Finally, the government asks the Court to transfer venue after denying petitioners’ TRO
motion because the so-called immediate physical custody rule requires habeas petitions to be
heard in the district where the detainees are held. Opp’n 36. It also maintains that “this case
presents a local controversy related to ICE removal operations” and should be transferred “to a
district where one of the Family Residential Centers [at issue] are located (i.e., the Southern
District of Texas or Eastern District of Pennsylvania).” Id. Petitioners respond that the
immediate physical custody rule only applies to core habeas petitions challenging detention itself
as unlawful and seeking release. Reply 30 (citing Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004)). They say that non-core claims, like those here, need not follow that rule. Id.
Petitioners are generally correct. The Supreme Court has held that core habeas claims
must follow the physical custody rule but that the rule should not be so rigidly applied to non-
core claims. Padilla, 542 U.S. at 435. For non-core petitions, courts “have relied on traditional
venue considerations such as the location of material events, the location of records and
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witnesses pertinent to the claim, and the relative convenience of the forum for each party.”
S.N.C. v. Sessions, 325 F. Supp. 3d 401, 408 (S.D.N.Y. 2018) (internal quotation marks
omitted). At this juncture, however, the Court lacks sufficient information to decide whether the
District of Columbia is the most appropriate venue. The government has not formally moved for
transfer and the cursory discussion of the issue in its opposition brief does not confront all the
factors relevant to customary venue considerations under 28 U.S.C. § 1404(a). The Court
therefore will defer consideration of venue until such a motion is made.
V. Conclusion
While the Court concludes that petitioners have not satisfied the exacting standard
required for the issuance of a TRO, it will remind the government that, whatever circumstances
brought the petitioners to this country, they are now in our care and will remain so until they
reach their home countries. For that reason alone, the government has a duty to carry out their
lawful removal in as safe and humane a fashion as possible. The Court has accepted ICE’s
representations that is has implemented preventative measures to reduce the risk of COVID
exposure during petitioners’ journeys. It expects them to be followed. The Court also urges ICE
not to spare expense or cut corners in the transportation process, such as by unnecessarily filling
buses and planes to their full capacity. The law may require petitioners’ removal to be
“expedited,” but it does not demand that it be so hurried or incautious as to jeopardize their
wellbeing.
That said, and for the foregoing reasons, the Court must deny Petitioners’ Motion for a
Temporary Restraining Order and lift the administrative stay. A separate Order shall follow.
Date: July 23, 2020 ________________________
CHRISTOPHER R. COOPER
United States District Judge
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