Huisha-Huisha v. Gaynor

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NANCY GIMENA HUISHA-HUISHA, et
al.,
Plaintiffs,
v. Civ. Action No. 21-100(EGS)
ALEJANDRO MAYORKAS, in his
official capacity as Secretary
of Homeland Security, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs—a group of asylum-seeking families who fled to
the United States—bring this lawsuit against Alejandro Mayorkas, 1
in his official capacity as Secretary of Homeland Security, and
various other federal government officials (“Defendants” or the
“government”) for violations of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq.; the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101, et seq.; the Foreign
Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C.
§ 1231 note; and the Public Health Service Act of 1944, 42 U.S.C
§ 201, et seq. Pending before the Court are Plaintiffs’ Motion
for Class Certification and Motion for Classwide Preliminary
1 Alejandro Mayorkas is substituted pursuant to Federal Rule of
Civil Procedure 25(d).
1
Injunction. See Pls.’ Mot. Class Cert., ECF No. 23-1; Mem. Supp.
Pls.’ Mot. Classwide Prelim. Inj. (“Pls.’ Mot. Prelim. Inj.”),
ECF No. 57-1. 2 Upon careful consideration of the motions, the
responses, and replies thereto, the applicable law, and the
entire record, the Court GRANTS Plaintiffs’ Motion for Class
Certification and GRANTS Plaintiffs’ Motion for Classwide
Preliminary Injunction. 3
I. Background
A. Factual Background
1. The U.S. Asylum Process
“For almost a century, Congress has recognized that
citizens of foreign states are sometimes forced to flee from
persecution in their home countries, and it has been the policy
of the United States government that this country ought to serve
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF page number, not the page
number of the filed document.
3 On August 11, 2021, Defendants filed a motion for oral argument
on Plaintiffs’ motion for preliminary injunction. See Mot. Oral
Argument, ECF No. 117. Pursuant to Local Civil Rule 65(d), “[o]n
request of the moving party together with a statement of the
facts which make expedition essential, a hearing on an
application for preliminary injunction shall be set by the Court
no later than 21 days after its filing, unless the Court earlier
decides the motion on the papers or makes a finding that a later
hearing date will not prejudice the parties.” Here, while
Plaintiffs filed their motion on February 5, 2021, briefing on
the motion was stayed until August 5, 2021. See Min. Order (Aug.
5, 2021). Thus, the Court finds that there is no prejudice to
the parties in declining to hold a hearing on Plaintiffs’ motion
and shall instead decide the motion on the papers. Defendants’
motion for oral argument is therefore denied.
2
as a place of refuge for persons who are in such distress.”
Kiakombua v. Wolf, 498 F. Supp. 3d 1, 11-12 (D.D.C. 2020). In
keeping with this policy, Congress has codified various
procedures governing how the United States evaluates and
processes the admission requests of refugees. As relevant here,
there are three primary protections for asylum seekers in place
under current immigration laws.
First, in 1980, Congress passed the Refugee Act, Pub. L.
No. 96-212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-
414, 66 Stat. 163 (1952) (codified as amended in sections of 8
U.S.C.). The Refugee Act created a statutory procedure for
refugees seeking asylum and established the standards for
granting such requests. The INA currently governs this
procedure, and it provides that “[a]ny alien who is physically
present in the United States or who arrives in the United States
(whether or not at a designated port of arrival . . . ),
irrespective of such alien’s status, may apply for asylum.” 8
U.S.C. § 1158(a)(1). The Attorney General is granted the
discretion to grant asylum. Id. § 1158 (b)(1)(A). However, that
relief can only be granted if the alien is a “refugee,” as
defined by federal law. Id. Pursuant to the INA, a “refugee” is
“any person who is outside any country of such person’s
nationality” and who is “unable or unwilling to return to . . .
that country because of persecution or a well-founded fear of
3
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
Id. § 1101(a)(42)(A). “Thus, the ‘persecution or well-founded
fear of persecution’ standard governs the Attorney General’s
determination [of] whether an alien is eligible for asylum.” INS
v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987). Furthermore, even
when a noncitizen is subject to a rapid expulsion process known
as “expedited removal” because they fit within an established
category of persons who can be summarily removed without full
hearings or other process, such noncitizen can only be so
removed if she does not have “an intention to apply for asylum
under [8 U.S.C. § 1158] or a fear of persecution.” 8 U.S.C. §
1225(b)(1)(A)(i).
Second, at the same time the Refugee Act of 1980
established the asylum process, it amended the statutory scheme
governing a related form of relief—“withholding of deportation”—
to remove the Attorney General’s discretion to decide whether to
grant that form of relief. Cardoza-Fonseca, 480 U.S. at 428–29.
As amended by the 1980 Act, the INA “requires the Attorney
General to withhold deportation of an alien who demonstrates
that his ‘life or freedom would be threatened’ on account of one
of [a list of factors] if he is deported.” Id. at 423. A grant
of withholding is mandatory if the individual meets the
4
statutory criteria. INS v. Aguirre-Aguirre, 526 U.S. 415, 420
(1999).
Third, Article 3 of the Convention Against Torture (“CAT”)
provides that “[n]o State Party shall expel, return (‘refouler’)
or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.” Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Art.
3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1456
U.N.T.S. 114. Congress has implemented Article 3 of CAT as part
of the Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”). Omar v. McHugh, 646 F.3d 13, 17 (D.C. Cir. 2011).
FARRA further declares it “the policy of the United States not
to expel, extradite, or otherwise effect the involuntary return
of any person to a country in which there are substantial
grounds for believing the person would be in danger of being
subjected to torture.” Id. (quoting Pub.L. No. 105–277, § 2242,
112 Stat. 2681–761, 822 (1998) (codified at 8 U.S.C. § 1231
note).
2. COVID-19 Pandemic and the CDC Orders
Since 1893, federal law has provided federal officials with
the authority to stem the spread of contagious diseases from
foreign countries by prohibiting, “in whole or in part, the
introduction of persons and property from such countries.” Act
5
of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452 (“1893
Act”). Under current law:
Whenever the Surgeon General determines that
by reason of the existence of any communicable
disease in a foreign country there is serious
danger of the introduction of such disease
into the United States, and that this danger
is so increased by the introduction of persons
or property from such country that a
suspension of the right to introduce such
persons and property is required in the
interest of the public health, the Surgeon
General, in accordance with regulations
approved by the President, shall have the
power to prohibit, in whole or in part, the
introduction of persons and property from such
countries or places as he shall designate in
order to avert such danger, and for such
period of time as he may deem necessary for
such purpose.
42 U.S.C. § 265 (“Section 265”). In 1966, the Surgeon General’s
Section 265 authority was transferred to the Department of
Health and Human Services (“HHS”), which in turn delegated this
authority to the Centers for Disease Control and Prevention
(“CDC”) Director. See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 503
(D.D.C. 2020); 31 Fed. Reg. 8855 (June 25, 1966), 80 Stat. 1610
(1966).
On March 20, 2020, as the COVID-19 virus spread globally,
HHS issued an interim final rule pursuant to Section 265 that
aimed to “provide[] a procedure for CDC to suspend the
introduction of persons from designated countries or places, if
required, in the interest of public health.” Interim Final Rule,
6
Control of Communicable Diseases; Foreign Quarantine: Suspension
of Introduction of Persons Into United States From Designated
Foreign Countries or Places for Public Health Purposes, 85 Fed.
Reg. 16559-01, 2020 WL 1330968, (March 24, 2020) (“Interim Final
Rule”). Pursuant to the Interim Final Rule, the CDC Director
could “suspend the introduction of persons into the United
States.” Id. at 16563. The Interim Final Rule stated, in
relevant part:
(1) Introduction into the United States of
persons from a foreign country (or one or more
political subdivisions or regions thereof) or
place means the movement of a person from a
foreign country (or one or more political
subdivisions or regions thereof) or place, or
series of foreign countries or places, into
the United States so as to bring the person
into contact with persons in the United
States, or so as to cause the contamination of
property in the United States, in a manner
that the Director determines to present a risk
of transmission of a communicable disease to
persons or property, even if the communicable
disease has already been introduced,
transmitted, or is spreading within the United
States;
(2) Serious danger of the introduction of such
communicable disease into the United States
means the potential for introduction of
vectors of the communicable disease into the
United States, even if persons or property in
the United States are already infected or
contaminated with the communicable disease;
and
(3) The term “Place” includes any location
specified by the Director, including any
7
carrier, as that term is defined in 42 CFR
71.1, whatever the carrier’s nationality.
Id. at 16566-67.
The CDC’s Interim Rule went into effect immediately. Id. at
16565. The CDC explained that, pursuant to 5 U.S.C. 553(b)(3)(B)
of the APA, HHS had concluded that there was “good cause” to
dispense with prior notice and comment. Id. Specifically, the
CDC stated that “[g]iven the national emergency caused by COVID-
19, it would be impracticable and contrary to the public health—
and, by extension, the public interest—to delay these
implementing regulations until a full public notice-and-comment
process is completed.” Id.Pursuant to the Interim Final Rule, the CDC Director issued
an order suspending for 30 days the introduction of “covered
aliens,” which he defined as “persons traveling from Canada or
Mexico (regardless of their country of origin) who would
otherwise be introduced into a congregate setting in a land Port
of Entry [(“POE”)] or Border Patrol station at or near the
United States borders with Canada and Mexico.” Notice of Order
Under Sections 362 and 365 of the Public Health Service Act
Suspending Introduction of Certain Persons From Countries Where
a Communicable Disease Exists, 85 Fed. Reg. 17060-02, 17061,
2020 WL 1445906 (March 26, 2020) (“March 2020 Order”). The March
2020 Order declared that “[i]t is necessary for the public
8
health to immediately suspend the introduction of covered
aliens” and “require[d] the movement of all such aliens to the
country from which they entered the United States, or their
country of origin, or another location as practicable, as
rapidly as possible.” Id. at 17067. The CDC Director then
“requested that [the Department of Homeland Security (“DHS”)]
implement th[e] [March 2020 Order] because CDC does not have the
capability, resources, or personnel needed to do so.” Id. The
CDC Director also noted that U.S. Customs and Border Protection
(“CBP”), a federal law enforcement agency of DHS, had already
“developed an operational plan for implementing the order.” Id.Soon thereafter, the CBP issued a memorandum on April 2,
2020 establishing its procedures for implementing the March 2020
Order. See Ex. E to Cheung Decl. (“CAPIO Memo”), ECF No. 57-5 at
15; see also Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 14-15. The
CAPIO Memo instructed that agents may determine whether
individuals are subject to the CDC’s order “[b]ased on training,
experience, physical observation, technology, questioning and
other considerations.” CAPIO Memo, ECF No. 57-5 at 15. If an
individual was determined to be subject to the order, they were
to be “transported to the nearest POE and immediately returned
to Mexico or Canada, depending on their point of transit.” Id.
at 17. Those who are “not amenable to immediate expulsion to
Mexico or Canada, will be transported to a dedicated facility
9
for limited holding prior to expulsion” to their home country.
Id. The CAPIO Memo “provide[d] no instructions on medical
screenings or other procedures for determining whether a covered
noncitizen may have COVID-19.” Am. Compl., ECF No. 22 ¶ 60.
On April 22, 2020, the March 2020 Order was extended for an
additional 30 days. See Extension of Order Under Sections 362
and 365 of the Public Health Service Act; Order Suspending
Introduction of Certain Persons From Countries Where a
Communicable Disease Exists, 85 Fed. Reg. 22424-01, 2020 WL
1923282 (April 22, 2020) (“April 2020 Order”). The order was
then extended again on May 20, 2020 until such time that the CDC
Director “determine[s] that the danger of further introduction
of COVID-19 into the United States has ceased to be a serious
danger to the public health.” Amendment and Extension of Order
Under Sections 362 and 365 of the Public Health Service Act;
Order Suspending Introduction of Certain Persons From Countries
Where a Communicable Disease Exists, 85 Fed. Reg. 31503-02,
31504, 2020 WL 2619696 (May 26, 2020) (“May 2020 Order”).
On September 11, 2020, the CDC published its final rule.
See Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of
Introduction of Persons Into United States From Designated
Foreign Countries or Places for Public Health Purposes, 85 Fed.
Reg. 56424-01, 2020 WL 5439721, (Sept. 11, 2020) (Effective
10
October 13, 2020) (“Final Rule”). The Final Rule “defin[ed] the
phrase to ‘[p]rohibit, in whole or in part, the introduction
into the United States of persons’ to mean ‘to prevent the
introduction of persons into the United States by suspending any
right to introduce into the United States, physically stopping
or restricting movement into the United States, or physically
expelling from the United States some or all of the persons.’”
Id. at 56445. The CDC Director then replaced the March, April,
and May 2020 Orders with a new order on October 13, 2020. Order
Suspending the Right To Introduce Certain Persons From Countries
Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg.
65806, 65808 (Oct. 16, 2020) (“October 2020 Order”).
On August 2, 2021, the CDC issued its most recent order,
“Public Health Assessment and Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists,” which replaced and superseded the
October 2020 Order. See Public Health Assessment and Order
Suspending the Right to Introduce Certain Persons from Countries
Where a Quarantinable Communicable Disease Exists (Aug. 2,
2021), Attach. A to Notice CDC Public Health Order (“August 2021
Order”), ECF No. 114. The August 2021 Order states that “CDC has
determined that an Order under 42 U.S.C. § 265 remains necessary
to protect U.S. citizens, U.S. nationals, lawful permanent
residents, personnel and noncitizens at the ports of entry (POE)
11
and U.S. Border Patrol stations, and destination communities in
the United States during the COVID-19 public health emergency.”
Id. at 5. Thus, the August 2021 Order continues to prohibit the
introduction of “covered noncitizens”—which is defined to
include “family units”—into the United States along the U.S.
land and adjacent coastal borders. Id. at 7. The Court will
refer to the process developed by the CDC and implemented by the
August 2021 Order as the “CDC Order” or the “Title 42 Process.”
3. CDC Order’s Effect on Asylum Seekers
Plaintiffs and the proposed class member are families from
countries “that are among the most dangerous in the world due to
gang, gender, family membership, and other identity-based
violence.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 31.
Plaintiffs are currently detained and in the custody of DHS. Am.
Compl., ECF No. 22 ¶¶ 14-19. As such, they are subject to
expulsion from the United States pursuant to the CDC Order.
Plaintiffs assert that prior to the Title 42 Process, and
“pursuant to longstanding immigration statutes protecting asylum
seekers, Plaintiffs were entitled to assert claims for asylum
and related forms of humanitarian protection, and to procedures
Congress established to ensure the fair determination of their
right to remain in the United States.” Id. ¶ 4. Plaintiffs claim
that if they and others like them are expelled pursuant to the
CDC Order, they “would face grave danger in their home
12
countries.” Id. ¶ 10. According to Plaintiffs, “Defendants
subjected approximately 21,500 members of families to the Title
42 Process between March and December 2020.” Pls.’ Mot. Class
Cert., ECF No. 23-1 at 10.
B. Procedural History
1. Related Litigation
On November 18, 2020, this Court adopted Magistrate Judge
Harvey’s Report and Recommendation, provisionally granted the
plaintiff’s motion to certify class, and issued a preliminary
injunction barring enforcement of the Title 42 Process as to
unaccompanied minors in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492,
520-22 (D.D.C. 2020). The Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) later stayed the preliminary
injunction pending appeal. Order, P.J.E.S. v. Mayorkas, No. 20-
5357 (D.C. Cir. Jan. 29, 2021).
In February 2021, the CDC issued a notice “temporarily
except[ing] . . . unaccompanied noncitizen children” from
expulsion under the Title 42 Process. CDC, Notice of Temporary
Exception from Expulsion of Unaccompanied Noncitizen Children
Encountered in the United States Pending Forthcoming Public
Health Determination, 86 Fed. Reg. 9942-01, 2021 WL 600683 (Feb.
11, 2021). The notice stated that CDC was “in the process of
reassessing” the Title 42 Order and that the temporary exception
for unaccompanied minors would “remain in effect until CDC has
13
completed its public health assessment and published any notice
or modified Order.” Id. Magistrate Judge Harvey and the D.C.
Circuit granted the parties’ motion to hold the case in abeyance
on February 24, 2021. See Min. Order (Feb. 24, 2021); Order,
P.J.E.S. v. Mayorkas, No. 20-5357 (D.C. Cir. Mar. 2, 2021).
In July 2021, the CDC issued an order “except[ing]
unaccompanied noncitizen children . . . from the [CDC’s] October
[13, 2020] Order.” See Order Under Sections 362 & 365 of the
Public Health Service Act (42 U.S.C. 265, 268) and 42 CFR 71.40;
Public Health Determination Regarding an Exception for
Unaccompanied Noncitizen Children From the Order Suspending the
right to Introduce Certain Persons From Countries Where a
Quarantinable Communicable Disease Exists, 86 Fed. Reg. 38717,
38718 (July 22, 2021). The CDC explained that the July 16 Order
“supersede[s]” the notice issued on February 11, 2021. Id. at
38720. On August 2, 2021 the CDC issued another order that
superseded the October 2020 Order. Public Health Reassessment
and Order Suspending the Right To Introduce Certain Persons From
Countries Where a Quarantinable Communicable Disease Exists, 86
Fed. Reg. 42828-02 (Aug. 5, 2021). The July 16 Order was “made a
part of [the August 2021 Order] and incorporated by reference as
if fully set forth” in the August 2021 Order. Id. at 42829 n.5.
14
2. Proceedings in this Case
Plaintiffs filed this action on January 12, 2021. See
Compl., ECF No. 1. The same day, Plaintiffs filed an emergency
motion to stay their removal from the United States, and
Defendants orally objected to Plaintiffs’ request during the
hearing on the motion. See Pls.’ Emergency Mot. Stay Removal,
ECF No. 5. The Court entered a Minute Order granting Plaintiffs’
emergency motion over objection “[i]n view of the arguments
presented by Plaintiffs in their motion, the representations
made by the Government, and for the reasons stated on the record
at the January 12, 2021 Status Conference.” Min. Order (Jan. 12,
2021). The Court also granted thirteen subsequent emergency
motions to stay the removal of other families on January 19,
2021; January 27, 2021; January 29, 2021; February 1, 2021;
February 4, 2021; February 5, 2021; February 6, 2021; February
9, 2021; February 18, 2021; February 19, 2021; and February 22,
2021. See Min. Orders (Jan. 19, 2021; Jan. 27, 2021; Jan. 29,
2021; Feb. 1, 2021; Feb. 4, 2021; Feb. 5, 2021; Feb. 6, 2021;
Feb. 9, 2021; Feb. 18, 2021; Feb. 19, 2021; Feb. 22, 2021).
Plaintiffs filed a motion for class certification on
January 28, 2021, see Mot. Certify Class, ECF No. 23; and they
filed a motion for preliminary injunction on February 5, 2021,
see Mot. Prelim. Inj., ECF No. 57. Defendants filed a combined
opposition to both motions on February 17, 2021. See Defs.’
15
Opp’n, ECF No. 76. On February 23, 2021, the Court granted the
parties’ joint motion to hold in abeyance Plaintiffs’ motions
for class certification and classwide preliminary injunction.
Min. Order (Feb. 23, 2021). The motions were held in abeyance
until August 5, 2021, when the Court granted the parties’ motion
for a briefing schedule on Plaintiffs’ motions. Min. Order (Aug.
5, 2021). On August 6, 2021, Defendants filed a supplemental
declaration in support of their combined opposition. See
Shahoulian Decl., ECF No. 116. Plaintiffs filed their combined
reply brief on August 11, 2021. See Pls.’ Reply, ECF No. 118.
The motions are now ripe for the Court’s adjudication.
II. Legal Standard
“A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [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.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration
in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011)). Where the federal government is the opposing
party, the balance of equities and public interest factors
merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A
preliminary injunction is an “extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled
16
to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008) (citation omitted). “The purpose of a
preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be
held.” Univ. of Tex. V. Camenisch, 451 U.S. 390, 395 (1981). In
this Circuit, the four factors have typically been evaluated on
a “sliding scale,” such that if “the movant makes an unusually
strong showing on one of the factors, then it does not
necessarily have to make as strong a showing on another factor.”
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92
(D.C. Cir. 2009).
In the wake of the Supreme Court’s decision in Winter v.
Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C.
Circuit has suggested that a positive showing on all four
preliminary injunction factors may be required.” Holmes v. FEC,
71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644
F.3d at 393 (“[W]e read Winter at least to suggest if not to
hold that a likelihood of success is an independent,
freestanding requirement for a preliminary injunction.”)
(citation and quotation marks omitted)). Nonetheless, “the
Circuit has had no occasion to decide this question because it
has not yet encountered a post-Winter case where a preliminary
injunction motion survived the less rigorous sliding-scale
17
analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C.
2014).
III. Analysis
A. Plaintiffs’ Motion for Class Certification
“The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
(quotation marks omitted). Rule 23(a) establishes four
requirements for class certification: (1) that “the class is so
numerous that joinder of all members is impracticable”; (2) that
“there are questions of law or fact common to the class”; (3)
that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class”; and (4) that
“the representative parties will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a). In addition
to satisfying Rule 23(a), a putative class must also meet one of
the Rule 23(b) requirements. Here, Plaintiffs seek certification
under Rule 23(b)(2), claiming that Defendants have “acted or
refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.” Pls.’ Mot.
Class Cert., ECF No. 23-1 at 8 (quoting Fed. R. Civ. P.
23(b)(2)).
18
“The party seeking certification bears the burden of
persuasion, and must show that the putative class[] meet[s] the
requirements of Rule 23 by a preponderance of the evidence.”
Garnett v. Zeilinger, 301 F. Supp. 3d 199, 204 (D.D.C. 2018)
(citing Hoyte v. District of Columbia, 325 F.R.D. 485, 491
(D.D.C. 2017)). To carry that burden, Plaintiffs must
“affirmatively demonstrate . . . compliance with the Rule—that
is, [they] must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact,
etc.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
The Court must undertake a “rigorous analysis” to confirm that
the requirements of Rule 23 have been satisfied. Gen. Tel. Co.
of S.W. v. Falcon, 457 U.S. 147, 161 (1982).
Pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(2), Plaintiffs have sought certification of the following
class: “All noncitizens who (1) are or will be in the United
States; (2) come to the United States as a family unit composed
of at least one child under 18 years old and that child’s parent
or legal guardian; and (3) are or will be subjected to the Title
42 Process.” Pls.’ Mot. Class Cert., ECF No. 23-1 at 7. For the
reasons discussed below, the Court finds that Plaintiffs meet
all of Rule 23(a) and Rule 23(b)(2)’s requirements. As
Defendants’ sole challenge to Plaintiffs’ class certification
motion is that the term “Title 42 Process” is not adequately
19
defined, Defs.’ Opp’n, ECF No. 76 at 16; the Court shall first
address the sufficiency of the class definition before briefly
analyzing the remaining Rule 23(a) and Rule 23(b)(2)
requirements.
1. Class Definition
“[I]t is far from clear that there exists in this
[D]istrict a requirement that a class . . . must demonstrate
ascertainability to merit certification.” Ramirez v. USCIS, 338
F. Supp. 3d 1, 48 (D.D.C. 2018); see also Hoyte v. District of
Columbia, 325 F.R.D. 485, 489 n.3 (D.D.C. 2017) (noting that
“[t]he ascertainability requirement, while adopted by some
courts in this district, has been recently disavowed by four
federal appellate courts” and explaining that “the D.C. Circuit
has not opined on the requirement”). However, the requirement of
“definiteness” has been imposed by some courts as an “implied
requirement” for class certification, in addition to the express
requirements in Rule 23. See DL v. District of Columbia, 302
F.R.D. 1, 17 (D.D.C. 2013). This “common-sense requirement,”
Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998); is
designed primarily to ensure the proposed class is
administratively manageable, see Hartman v. Duffey, 19 F.3d
1459, 1471 (D.C. Cir. 1994). “It is not designed to be a
particularly stringent test, but plaintiffs must at least be
able to establish that ‘the general outlines of the membership
20
of the class are determinable at the outset of the litigation.’”
Pigford, 182 F.R.D. at 346 (quoting 7A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1760 at 118).
“[W]here the plaintiff seeks certification of an injunctive
class pursuant to Rule 23(b)(2), ‘actual membership of the class
need not . . . be precisely delimited’ because such cases will
not require individualized notice, opt-out rights, or individual
damage assessments, and the defendant will be required to comply
with the relief ordered no matter who is in the class.’” Brewer
v. Lynch, No. 08-1747, 2015 WL 13604257, at *6 (D.D.C. Sept. 30,
2015). In those cases, the definiteness requirement is satisfied
as long as plaintiffs can establish the “existence of a class”
and propose a class definition that “accurately articulates ‘the
general demarcations’ of the class of individuals who are being
harmed by the alleged deficiencies.” See, e.g., Kenneth R. v.
Hassan, 293 F.R.D. 254, 264 (D.N.H. 2013); see also DL, 302
F.R.D. at 17 (“Because the rationale for precise
ascertainability is inapposite in the 23(b)(2) context, . . . it
is not required in cases such as this where only injunctive
relief is sought and notice is not required.”).
Defendants contend that Plaintiffs have failed to establish
that the proposed class satisfies the requirements of Rule 23(a)
and Rule 23(b)(2) because the phrase “Title 42 Process” is not
21
defined within the class definition. Defs.’ Opp’n, ECF No. 76 at
16. They argue that, due to the lack of a definition,
“Plaintiffs have not established that the conduct they seek to
enjoin or declare unlawful will be ‘as to all of the class
members or as to none of them.’” Id. (quoting Fed. R. Civ. P.
23(b)(2)). While Defendants concede that “it is no secret that
Plaintiffs challenge the ‘practice of summary expulsion under
the Title 42 Process’ and the alleged lack of access to asylum,”
they argue that the Amended Complaint and Class Certification
Motion include statements that suggest that the “class
definition might include practices that Plaintiffs do not
challenge as unlawful.” Id. at 17. Specifically, Defendants note
that Plaintiffs refer to the “Title 42 Process” as a “system
established in a set of agency documents—a new regulation,
several orders, and an implementation memo,” and that the
Amended Complaint states that, “[a]mong other things, the Title
42 Process authorizes the summary expulsion of noncitizens,
including vulnerable families seeking asylum in this country,
without any of the procedural protections guaranteed by
Congress.” Id. (quoting Am. Compl., ECF No. 22 ¶¶ 1, 3) (cleaned
up).
The Court disagrees. As an initial matter, the Court notes
that a “vague and ambiguous class definition” is not
automatically “fatal[]” to a motion for class certification.
22
Defs.’ Opp’n, ECF No. 76 at 15-17. The case law is clear that
the mere existence of a problematic class definition does not
automatically mandate denial of class certification. See Brewer,
2015 WL 13604257, at *7. Rather, “[w]hen appropriate, district
courts may redefine classes . . . sua sponte prior to
certification.” Borum v. Brentwood Village, LLC, 324 F.R.D. 1, 8
(D.D.C. 2018); see also Wagner v. Taylor, 836 F.2d 578, 589-90
(D.C. Cir. 1987) (stating that district courts may “exercise . .
. broad discretion to redefine and reshape the proposed class to
the point that it qualifies for certification under Rule 23”).
Here, however, the proposed class is not so poorly defined
as to require sua sponte redefinition by the Court. First,
Plaintiffs’ amended complaint, motions, and reply brief each set
forth a fairly descriptive definition of the Title 42 Process as
referring to the practice of summarily expelling asylum-seeking
families since late March 2020. See Pls.’ Mot. Class Cert., ECF
No. 23-1 at 7 (“A class action lawsuit is appropriate to
challenge Defendants’ unlawful practice of summarily expelling
vulnerable families with minor children under their shadow
deportation system, referred to here as the ‘Title 42 Process’
or ‘Title 42 Policy.’”); Pls.’ Mot. Prelim. Inj., ECF No. 57-1
at 9 (“Defendants moved to summarily deport [Plaintiffs] based
on an unprecedented and unlawful expulsion process, invoking the
public health powers of the Centers for Disease Control and
23
Prevention (‘CDC’), specifically 42 U.S.C. § 265 (the ‘Title 42
Process’).”); Pls.’ Reply, ECF No. 118 at 29 (“Plaintiffs have
identified and challenged ‘a uniform policy or practice’ of
‘expulsion,’ and sought relief enjoining application of the
challenged CDC orders to the class.”); Am. Compl., ECF No. 22 ¶
3 (“Among other things, the Title 42 Process authorizes the
summary expulsion of noncitizens, including vulnerable families
seeking asylum in this country, without any of the procedural
protections guaranteed by Congress—even if the families show no
signs of having COVID-19.”).
Second, although Plaintiffs do use the phrase “among other
things” in one sentence within their Amended Complaint,
Defendants’ argument is weakened by their own acknowledgment
that the focus of this litigation is the “‘practice of summary
expulsion under the Title 42 Process’ and the alleged lack of
access to asylum.” Defs.’ Opp’n, ECF No. 76 at 16.
And third, Defendants’ reliance on the Seventh Circuit case
Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008), is misplaced.
In Rahman, the plaintiffs sought to certify a class of citizens
defined as “[a]ll United States citizens who now are and/or in
the future will be subjected to detentions upon reentry to the
United States as a result of defendants’ contested policies,
practices and customs.” Id. at 625. However, the class
definition did not specify what “defendants’ contested policies,
24
practices and customs” were. Id. The Seventh Circuit therefore
denied the plaintiffs’ motion to certify, explaining that “[a]
class of all persons now or in the future subject to unspecified
practices may have nothing to do with the named representatives’
injuries, or what caused them.” Id. at 626. The court also noted
that the undefined class was “hard to evaluate” and
“incompatible” with the “typicality” requirement. Id. at 627.
Here, Defendants argue that Plaintiffs’ class definition
“suffers from similar infirmities.” Defs.’ Opp’n, ECF No. 76 at
16. But not only is Rahman non-binding on this Court, it is also
distinguishable on the facts. Significantly, though Plaintiffs
refer to the “Title 42 Process” generally as a “system
established in a set of agency documents—a new regulation,
several orders, and an implementation memo,” id. at 17;
Plaintiffs’ Amended Complaint and motions briefing also
separately identify and describe each regulation, order, and
memo. See, e.g., Am. Compl., ECF No. 22 ¶¶ 41-66. Thus, unlike
in Rahman, the Court is able to easily evaluate the application
of specific policies and procedures on the proposed class
members, and any “administrative feasibility requirement” is
satisfied because identifying the class members under this
definition would not require much, if any, individual factual
inquiry. See Brewer, 2015 WL 13604257, at *6.
25
2. Rule 23(a) Requirements
a. Numerosity
Because of the general rule in favor of confining
litigation to the named parties only, a class action is
appropriate only when “the class is so numerous that joinder of
all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
Although Plaintiffs need not clear any “specific threshold,” as
a general benchmark, “courts in this jurisdiction have observed
that a class of at least forty members is sufficiently large to
meet this requirement.” Taylor v. D.C. Water & Sewer Auth., 241
F.R.D. 33, 37 (D.D.C. 2007). Plaintiffs may satisfy the
requirement by supplying estimates of putative class members,
see Pigford, 182 F.R.D. at 347–48; “[s]o long as there is a
reasonable basis for the estimate provided,” Kifafi v. Hilton
Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999).
Here, Defendants do not dispute that the proposed class
satisfies the numerosity requirement. Plaintiffs have provided
evidence that, between March 2020 and December 2020,
approximately 21,515 members of family units 4 were subject to the
CDC Order and its previous iterations, see Kang Decl., ECF No.
23-2 ¶ 4; and that, between April 2020 and December 2020,
4 The CBP defines a “family unit” as “the number of individuals
(either a child under 18 years old, parent or legal guardian)
apprehended with a family member.” See Kang Decl., ECF No. 23-2
¶ 3.
26
“approximately 21,018 members of family units (81%) were
expelled under Title 42,” id. ¶ 6. Accordingly, the Court finds
that the numerosity requirement is met. See O.A. v. Trump, 404
F. Supp. 3d 109, 155 (D.D.C. 2019) (finding numerosity
established by evidence in the administrative record estimating
that the class consisted of “thousands of migrants who have
crossed and will cross the United States’ southern border
outside ports of entry”).
b. Commonality
A plaintiff seeking class certification must also establish
that “there are questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). This requires more than the
identification of the purported violation of the same provision
of law. See DL v. District of Columbia, 713 F.3d 120, 127–30
(D.C. Cir. 2013) (vacating an order certifying a class composed
of students who were purportedly each denied a free appropriate
public education on the ground that plaintiffs had identified
only sufferers of a violation of the same provision of law and
had not met the commonality requirement). Instead, the claims
must depend on “a common contention [that] is capable of
classwide resolution—which means that determination of its truth
or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.” Wal–Mart Stores, 564
27
U.S. at 350. “Even a single common question will do.” Id. at 359
(cleaned up).
As the D.C. Circuit has explained, commonality is satisfied
where there is “a uniform policy or practice that affects all
class members.” DL, 713 F.3d at 128; see also O.A., 404 F. Supp.
3d at 156 (finding commonality satisfied where “[a]ll members of
the proposed class, and all of the proposed class
representatives, face the same threat of injury” and where
“[a]ll challenge the same Rule on the same grounds, and all seek
the same remedy—invalidation of the Rule”). Here, Plaintiffs are
challenging the lawfulness of the Title 42 Process, which is a
uniform policy that applies to each Plaintiff and all members of
the proposed class. Moreover, “[n]ot only do all class members
present the same challenge to the policy, but there also is no
evident variation among them concerning their ultimate
entitlement to relief: if any person in the class has a
meritorious claim, they all do.” J.D. v. Azar, 925 F.3d 1291,
1321 (D.C. Cir. 2019). The Court can, therefore, conclude that
“common questions of law and fact” unite the class members’
claims. Damus v. Nielsen, 313 F. Supp. 3d 317, 332 (D.D.C. 2018)
(finding that “the allegation that the five ICE Field Officers
are no longer providing the ‘individualized determinations’ of
parole eligibility and procedural protections required by the
Parole Directive” satisfied the commonality requirement).
28
c. Typicality
A class representative satisfies the typicality requirement
if the representative’s “claims are based on the same legal
theory as the claims of the other class members” and her
“injuries arise from the same course of conduct that gives rise
to the other class members’ claims.” Bynum, 214 F.R.D. at 35.
Put another way, a representative’s claims are typical of those
of the class when “[t]he plaintiffs allege that their injuries
derive from a unitary course of conduct by a single system.”
Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Here,
Plaintiffs and all members of the proposed class face the same
injury: the threat of expulsion pursuant to the Title 42
Process. All challenge the same policy on the same grounds, and
all seek the same remedy—invalidation of the Title 42 Process.
Thus, the typicality requirement is met.
d. Adequacy
“The adequacy requirement aims to ensure that absent class
members will not be bound by the outcome of a suit in which they
were not competently and fairly represented.” J.D., 925 F.3d at
1312. “Adequacy embraces two components: the class
representative (i) ‘must not have antagonistic or conflicting
interests with the unnamed members of the class’ and (ii) ‘must
appear able to vigorously prosecute the interests of the class
29
through qualified counsel.’” Id. (quoting Twelve John Does v.
District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)).
Defendants also do not dispute that Plaintiffs have
satisfied the adequacy requirement. First, Defendants have not
identified—and the Court is unaware of—any interest Plaintiffs
have that is antagonistic to or conflicts with the putative
class members. Rather, courts have found that where, as here,
the plaintiffs “seek identical relief for all class members, . .
. there are no conflicting interests that might derail
certification on this prong.” Coleman ex rel. Bunn v. District
of Columbia, 306 F.R.D. 68, 84 (D.D.C. 2015). Second, the Court
concludes that Plaintiffs’ current counsel are “willing and have
the ability vigorously to litigate this case and to protect the
interests of absent class members.” O.A., 404 F. Supp. 3d at
157.
3. Rule 23(b)(2) Requirement
Having determined that Plaintiffs meet the requirements of
Rule 23(a), the Court must next determine whether they meet the
requirements of Rule 23(b)(2). Rule 23(b)(2) applies if “the
party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The
key to the (b)(2) class is the indivisible nature of the
30
injunctive or declaratory remedy warranted—the notion that the
conduct is such that it can be enjoined or declared unlawful
only as to all of the class members or as to none of them.” Wal-
Mart, 564 U.S. at 360 (internal quotation marks and citations
omitted). Rule 23(b)(2) imposes “two requirements: (1) that
defendant’s actions or refusal to act are ‘generally applicable
to the class’ and (2) that plaintiffs seek final injunctive
relief or corresponding declaratory relief on behalf of the
class.” Bynum, 214 F.R.D. at 37.
Plaintiffs have satisfied both requirements here. The
relief Plaintiffs seek—among other things, a declaration that
the Title 42 Process is unlawful and an injunction prohibiting
Defendants from applying the Title 42 Process to Plaintiffs and
proposed class members—is “generally applicable to the class”
and is indivisible. See Damus, 313 F. Supp. 3d at 334–35
(finding Rule 23(b)(2) satisfied where plaintiffs were not
asking the court “to remedy discrete errors in their parole
determinations,” but rather “only . . . address an alleged
systematic harm”); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 182
(D.D.C. 2015) (finding Rule 23(b)(2) satisfied where plaintiffs
sought to enjoin ICE from consideration of particular factor in
making detention determination). Plaintiffs also do not seek
individualized relief, and thus this is not a case where “each
individual class member would be entitled to a different
31
injunction or declaratory judgment against the defendant.” Wal–
Mart, 564 U.S. at 360; see also Ramirez, 338 F. Supp. 3d at 48
(finding Rule 23(b) satisfied where plaintiffs “d[id] not seek a
court order mandating any particular outcome with respect to any
particular [individual plaintiff]”).
For all these reasons, the Court grants Plaintiffs’ motion
for class certification.
B. Plaintiffs’ Motion for Preliminary Injunction
1. Plaintiffs Are Likely to Succeed on the
Merits
Plaintiffs argue that the CDC Orders instituting the Title
42 Process exceed the authority granted by Congress pursuant to
Section 265 because “[n]othing in [Section] 265, or Title 42
more generally, purports to authorize any deportations, much
less deportations in violation of” statutory procedures and
humanitarian protections, including the right to seek asylum.
Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 17-18. The Court agrees
and finds that Plaintiffs have shown that they are likely to
succeed on the merits of their claim.
Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984), provides the framework for reviewing an
agency’s interpretation of a statute that the agency is charged
with administering. See 467 U.S. at 837. The first step in this
review process is for the court to determine “whether Congress
32
has directly spoken to the precise question at issue.” Id. at
842. “If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Id. at 842–
43. In determining whether the statute unambiguously expresses
the intent of Congress, the court should use all the
“traditional tools of statutory construction,” including looking
to the text and structure of the statute, as well as its
legislative history, if appropriate. See id. at 843 n.9; see
also Bell Atlantic Tel. Co. v. FCC, 131 F.3d 1044, 1047 (D.C.
Cir. 1997). If the court concludes that the statute is either
silent or ambiguous with respect to the precise question at
issue, the second step of the court’s review process is to
determine whether the interpretation proffered by the agency is
“based on a permissible construction of the statute.” Chevron,
467 U.S. at 843. The court must defer to agency interpretations
that are not “arbitrary, capricious, or manifestly contrary to
the statute.” Id. at 844.
The Court’s analysis begins with the statutory text. See S.
Cal. Edison Co. v. FERC, 195 F.3d 17, 22-23 (D.C. Cir. 1999).
Here, Section 265 states in full:
Whenever the Surgeon General determines that
by reason of the existence of any communicable
disease in a foreign country there is serious
danger of the introduction of such disease
into the United States, and that this danger
33
is so increased by the introduction of persons
or property from such country that a
suspension of the right to introduce such
persons and property is required in the
interest of the public health, the Surgeon
General, in accordance with regulations
approved by the President, shall have the
power to prohibit, in whole or in part, the
introduction of persons and property from such
countries or places as he shall designate in
order to avert such danger, and for such
period of time as he may deem necessary for
such purpose.
42 U.S.C. § 265.
As Plaintiffs point out, Section 265 simply contains no
mention of the word “expel”—or any synonyms thereof—within its
text. See Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 18. The lack
of express terms within the statute is significant: even “broad
rulemaking power must be exercised within the bounds set by
Congress,” Merck & Co. v. U.S. Dep’t of Health & Human Servs.,
385 F. Supp. 3d 81, 92, 94 (D.D.C. 2019), aff’d, 962 F.3d 531(D.C. Cir. 2020) (stating that “agencies are ‘bound, not only by
the ultimate purposes Congress has selected, but by the means it
has deemed appropriate, and prescribed, for the pursuit of those
purposes’”); and the CDC “does not [have the] power to revise
clear statutory terms,” Util. Air Reg. Grp. v. EPA, 573 U.S.
302, 327 (2014).
Indeed, particularly where the statute in question regards
such a “severe ‘penalty’” as deportation, Padilla v. Kentucky,
559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United
34
States, 149 U.S. 698, 740 (1893)); the Court is loathe to
recognize an implied power of forced removal from the country,
see Util. Air Reg. Grp., 573 U.S. at 324 (“We expect Congress to
speak clearly if it wishes to assign to an agency decisions of
vast ‘economic and political significance.’”). Rather, as this
Court explained in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 512
(D.D.C. 2020), “when Congress wants to grant the power to expel
individuals out of the United States, it does so plainly.”
P.J.E.S., 502 F. Supp. 3d at 512; see, e.g., 8 U.S.C. §
1225(b)(2)(A), (C) (allowing an alien who has arrived on land
from a contiguous country and who is “not clearly and beyond a
doubt entitled to be admitted” to be “return[ed] . . . to that
territory pending a proceeding”); id. § 1231(a)(1)(A) (“Except
as otherwise provided in this section, when an alien is ordered
removed, the Attorney General shall remove the alien from the
United States within a period of 90 days . . . .”); 18 U.S.C. §
3186 (authorizing a fugitive from another country found in the
United States to be “take[n] . . . to the territory of such
foreign government” by an agent of that government). Moreover,
“Congress has made clear when public health concerns merit
disallowing a non-citizen to remain in the United States.”
P.J.E.S., 502 F. Supp. 3d at 539; see 8 U.S.C. § 1182(a)(1)
(providing that “aliens who are inadmissible” are those
determined “to have a communicable disease of public health
35
significance”); id. § 1222 (providing for medical detention and
examination as part of immigration processing). As the Supreme
Court “ha[s] stated time and again[,] . . . courts must presume
that a legislature says in a statute what it means and means in
a statute what it says there.” Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253–54 (1992) (citations omitted); see also FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (“The
classic judicial task of reconciling many laws enacted over
time, and getting them to make sense in combination, necessarily
assumes that the implications of a statute may be altered by the
implications of a later statute.” (internal quotation marks
omitted)). And here, the plain language of Section 265,
particularly when read in conjunction with the above statutes
governing immigration under Title 8 of the U.S. Code, evinces no
intention to grant the Executive the authority to expel or
remove persons from the United States.
The Court also finds that the plain text of Section 265 is
supported by the statutory context. See Brown & Williamson
Tobacco Corp., 529 U.S. at 132-33 (2000) (“It is a ‘fundamental
canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the
overall statutory scheme.’” (quoting Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989))). For example, in Section
271, Congress provided for specific “penalties” for those
36
persons who or vessels that violated public health regulations
prescribed under the relevant sections, including Section 265.
42 U.S.C. § 271. For individuals, Section 271 states that any
violation “shall be punished by a fine of not more than $1,000
or by imprisonment for not more than one year, or both.” Id. §
271(a). Removal from the United States, however, is not included
as a penalty. Moreover, Section 271 refers to the regulations
prescribed under Section 265 and others as “quarantine laws,”
further suggesting that the CDC’s powers were limited to
quarantine and containment. Id. § 271 (emphasis added).
Neither does neighboring Section 264 contemplate the
removal of persons from the United States. Section 264
authorizes the Secretary to use various public health measures
to “prevent the introduction, transmission, or spread of
communicable diseases.” 42 U.S.C. § 264. Although Defendants
rely on Section 264 as evidence of the Secretary’s “sweeping
authority to protect the country from potentially devastating
communicable diseases,” Defs.’ Opp’n, ECF No. 76 at 23; the
provision only mentions regulations that provide for the
“apprehension, detention, examination, or conditional release of
individuals” if the individual is “coming into a State or
possession from a foreign country or possession.” 42 U.S.C. §
264(c). Again, the authority to remove is not mentioned. “That
is, in a section where one would expect the term to appear—where
37
Congress has delineated the government’s power to prevent the
spread of contagious disease from individuals coming into the
United States from a foreign country—it does not.” P.J.E.S., 502
F. Supp. 3d at 537-38.
Furthermore, even beyond Sections 264 and 271, the statute
as a whole does not contain “a word about the power of the [CDC]
to expel anyone who has come into the country.” Id. at 513-14
(citing 42 U.S.C., Chap. 6A, Subchap. II, Part G (entitled
“Quarantine and Inspection”)); 42 U.S.C. § 267 (entitled
“Quarantine stations, grounds, and anchorages”); id. § 268
(entitled “Quarantine duties of consular and other officers”);
id. § 270 (entitled “Quarantine regulations governing civil air
navigation and civil aircraft”); id. § 271 (entitled “Penalties
for violation of quarantine laws”); id. § 272 (entitled
“Administration of oaths by quarantine officers”). Rather, the
statutory scheme reflects Congress’s focus on the public’s
health, authorizing the CDC to create regulations that allow for
the “apprehension, detention, examination, or conditional
release of individuals” entering from foreign countries to stop
the spread of communicable diseases from those countries, id. §
264; and then in times of serious danger, to halt the
“introduction of persons” from designated foreign countries, id.
§ 265.
38
Defendants argue, however, that the findings above
“ignore[] the purely public health purpose of the statute,”
because “[t]he absence of the terms ‘expel’ or ‘removal’ has no
special significance in the public health context even if its
absence might be meaningful in the immigration context.” Defs.’
Opp’n, ECF No. 76 at 19-20. They further contend that Section
265’s phrase “prohibit[ing] . . . the introduction” does not
demonstrate that Congress intended to limit the Executive’s
authority at “stopping a person precisely at the Nation’s
borders.” Id. at 18. Instead, “the term ‘introduction’ refers to
a continuing process and is most naturally read to extend beyond
a person’s immediate physical crossing of the border,” and “to
‘prohibit . . . the introduction’ naturally means to intercept
or prevent such a process.” Id. at 18-19. Thus, in Defendants’
view, “the Section 265 authority includes intercepting and
halting persons who have already crossed the border—but who are
in the process of being introduced—into the United States.” Id.
at 19.
Defendants arguments are unpersuasive. First, regardless of
whether the words “expel” or “remove” are specific to the
immigration context, Defendants do not explain the lack of
synonyms of either word within the statute. Moreover, “[i]t is a
fundamental principle of statutory interpretation that absent
provision[s] cannot be supplied by the courts.” Rotkiske v.
39
Klemm, 140 S. Ct. 355, 360–61 (2019) (internal citations and
quotation marks omitted) (alteration in original). “[W]hen
Congress wants to mandate [certain] procedures[,] it knows
exactly how to do so.” Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1626 (2018). In view of current immigration laws, which
speak to deportation by using words such as “remove” and
“return,” see 8 U.S.C. § 1182(d)(3)(A) (“The Attorney General
shall prescribe conditions . . . to . . . return . . .
inadmissible aliens . . . .” (emphasis added)); id. § 1182(h)(2)
(“No waiver shall be granted . . . for a period of not less than
7 years immediately preceding the date of initiation of
proceedings to remove the alien from the United States.”
(emphasis added)); this Court recognizes, as have other courts
in this District, that “[t]here’s a serious question about
whether [Section 265’s] power includes the power . . . to remove
or exclude persons who are already present in the United
States,” Hr’g Tr., J.B.B.C. v. Wolf, No. 20-cv-1509, ECF No. 39
at 50 (June 26, 2020). Put simply, the “fact that Congress did
not use [words such as ‘return’ or ‘remove’] . . . suggests at a
minimum that the power to remove is not granted by [S]ection
265.” Id. 5
5 Citing to dicta in Russello v. United States, 464 U.S. 16, 25
(1983), the government argues that “language in one statute
usually sheds little light upon the meaning of different
language in another statute.” Defs.’ Opp’n, ECF No. 76 at 19-20.
40
Second, even accepting the government’s position that the
phrase “prohibit . . . the introduction of” means “to intercept
or prevent” the “process” of introduction, Defs.’ Opp’n, ECF No.
76 at 18-19; this phrase also does not encompass expulsion from
the United States, nor do any of the definitions provided by the
Government contain the word “expel” or synonyms thereof. Rather,
to “prohibit . . . the introduction of” merely means that the
process of introduction can be halted. And “[e]xpelling persons,
as a matter of ordinary language, is entirely different from
interrupting, intercepting, or halting the process of
introduction.” P.J.E.S., 502 F. Supp. at 512; see also id. at
536 (finding that the Merriam-Webster Dictionary definitions of
“prohibit,” “intercept,” and “prevent” each “connote stopping
something before it begins, rather than remedying it
afterwards”). In other words, “interrupting, intercepting, or
halting the process of introduction does [not] inexorably lead
to expulsion.” Id. at 512.
However, the Supreme Court routinely points to other statutes as
evidence that Congress knows how to legislate in particular
ways. See Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“A
textual judicial supplementation is particularly inappropriate
when, as here, Congress has shown that it knows how to adopt the
omitted language or provision. Congress has enacted statutes
that expressly include the language [the petitioner] asks us to
read in . . . .”); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1626 (2018) (explaining that “when Congress wants to mandate
[certain] procedures[,] it knows exactly how to do so,” and
“Congress has spoken often and clearly” to the issue in other
statutes).
41
The Government next contends that, “rather than specifying
that the power to prohibit the introduction of persons is
limited to the Nation’s borders,” Congress expressly delegated
the power to issue regulations that accomplish Section 265’s
purpose. Defs.’ Opp’n, ECF No. 76 at 20. But the government's
argument is beside the point; if Section 265 does not provide
the authority to expel persons, then it does not delegate the
authority to issue regulations to expel persons. In addition,
the Court also notes that the legislative history cited by the
government—that Section 265’s predecessor statute would have
given the President the power to suspend “immigration,” see
Defs.’ Opp’n, ECF No. 76 at 22—does not provide support for its
position that Section 265 authorizes it to expel persons.
Finally, in view of the above discussion and finding that
Section 265 is not ambiguous, the Court need not reach step two
of the Chevron analysis. However, even if the statute was
ambiguous, deference would not be justified. First, “the
‘reconciliation’ of distinct statutory regimes ‘is a matter for
the courts,’ not agencies,” Epic Sys., 138 S. Ct. at 1629(quoting Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659, 685-86
(1975)); and here, “[t]he question for this claim is purely
legal: does Section 265 authorize expulsions from the United
States, or does it not?” P.J.E.S., 502 F. Supp. 3d at 544 n.15.
And while the government contends that the interpretation of
42
“introduction” is within the Secretary’s expertise, see Defs.’
Opp’n, ECF No. 76 at 33-34; the Court disagrees. “The CDC’s
‘scientific and technical knowledge’ . . . has no bearing on
that question of statutory interpretation.” P.J.E.S., 502 F.
Supp. 3d at 544 n.15. Moreover, government has not explained how
its scientific and technical expertise would lead it to
interpret “introduction” to encompass “expulsion.” Cf. Kisor v.
Wilkie, 139 S. Ct. 2400, 2416 (2019) (noting that “[a] court
must make an independent inquiry into whether the character and
context of the agency interpretation entitled it to controlling
weight”); see also NRDC v. Daley, 209 F.3d 747, 755-56 (D.C.
Cir. 2000) (“The Service cannot rely on ‘reminders that its
scientific determinations are entitled to deference’ in the
absence of reasoned analysis ‘to cogently explain’ why its
additional recommended measures satisfied the Fishery Act’s
requirements.”). Accordingly, the CDC is not entitled to
deference with respect to its interpretation. 6
2. Plaintiffs Face Irreparable Injury
“The failure to demonstrate irreparable harm is ‘grounds
for refusing to issue a preliminary injunction, even if the
6 Because the Court finds that Title 42 does not authorize
expulsion, the Court need not address Plaintiffs’ additional
arguments that Section 265 was designed to regulation
transportation or that, even if Section 265 authorized
expulsions, the Title 42 Process would violate the immigration
statutes. See Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 21, 27.
43
other three factors . . . merit such relief.’” Nat’l Mining
Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (RBW)
(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d
290, 297 (D.C. Cir. 2006)). “In this Circuit, a litigant seeking
a preliminary injunction must satisfy ‘a high standard’ for
irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting
Chaplaincy of Full Gospel Churches, 454 F.3d at 297). The movant
must demonstrate that it faces an injury that is “both certain
and great; it must be actual and not theoretical,” and of a
nature “of such imminence that there is a clear and present need
for equitable relief to prevent irreparable harm.” Wis. Gas Co.
v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and
emphasis omitted).
Plaintiffs contend that they are likely to suffer
irreparable harm if they are expelled without the opportunity to
seek humanitarian relief pursuant to the Title 42 Process. Pls.’
Mot. Prelim. Inj., ECF No. 57-1 at 31. Plaintiffs have presented
as evidence United States Department of State reports and
multiple declarations asserting that the home countries of the
proposed class members “are among the most dangerous in the
world due to gang, gender, family membership, and other
identity-based violence.” Id. at 32. The declarations submitted
to the Court specify in detail Plaintiffs’ fear of violence,
persecution, and other victimization if they are removed, yet
44
they remain subject to the Title 42 Process and face the threat
of removal prior to receiving any of the protections the
immigration laws provide. See, e.g., Sealed Decl., ECF No. 9;
Sealed Decl., ECF No. 17; Sealed Decl., ECF No. 27; Sealed
Decl., ECF No. 32; Sealed Decls., ECF Nos. 63-67; Sealed Decl.,
ECF No. 70; Sealed Decls., ECF Nos. 84; Sealed Decls., ECF No.
88-89. Plaintiffs further assert that many of the families “are
expelled to Mexico, where they are often victimized by criminal
cartels and gang members and face numerous barriers to finding
safe places to shelter.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1
at 33. Defendants do not dispute the potential harms that
Plaintiffs could face if removed from the United States.
The Court finds that Plaintiffs have sufficiently shown
they will likely suffer irreparable harm absent a preliminary
injunction. Plaintiffs’ alleged injuries would likely be “beyond
remediation.” Chaplaincy of Full Gospel Churches, 454 F.3d at
297. First, pursuant to the Title 42 Process, Plaintiffs and the
proposed class members face the prospect of expulsion without
any opportunity to apply for asylum or withholding of removal.
And once expelled from the United States and outside the
jurisdiction of the Court, a judicial remedy may be unavailable.
See Doe v. Mattis, 928 F.3d 1, 22 (D.C. Cir. 2019) (finding
irreparable harm likely to flow from the transfer of a dual
citizen detained in Iraq to an unidentified third country
45
because he would then be in the custody of that third country
“without any continuing oversight by—or recourse to—the United
States”); P.J.E.S., 502 F. Supp. 3d at 545; Tefel v. Reno, 972
F. Supp. 608, 619–20 (S.D. Fla. 1997) (“[T]he Court finds . . .
that Plaintiffs and class members would suffer irreparable harm
if they are deported to their native countries after having been
denied an opportunity to have a hearing on their claims for
suspension of deportation.”); Velasquez v. Velasquez, No. 14-cv-
1688, 2014 WL 7272934, at *5 (E.D. Va. Dec. 15, 2014) (finding
irreparable harm where children could be removed from
jurisdiction because that would “frustrate the effort of th[e]
Court in resolving the [dispute]”). Second, members of the
proposed class also do not seek monetary compensation for their
injuries; instead, they seek injunctive and declaratory relief
invalidating the Title 42 Process. Unlike economic harm, the
harm resulting from expulsion from the United States pursuant to
an unlawful policy likely cannot be remediated after the fact.
Cf. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295
(D.C. Cir. 2009) (explaining that economic losses are typically
not irreparable because compensation can be awarded after a
merits determination).
In addition, “[i]t is well-established that acts by
[g]overnment agencies in derogation of statutory rights of the
public or certain individual members of the public can
46
constitute irreparable injury.” Kirwa v. U.S. Dep’t of Def., 285
F. Supp. 3d 21, 42 n.22 (D.D.C. 2017) (quoting Gates v.
Schlesinger, 366 F. Supp. 797, 800 (D.D.C. 1973)). Here, the
Court has explained that Section 265 likely does not authorize
expulsion, thereby denying the proposed class members’ the
opportunity to seek humanitarian benefits pursuant to the
immigration statutes.
Defendants argue, however, that the “inherently
individualized nature” of Plaintiffs’ potential harms does not
demonstrate that the harms are “likely” to occur in the absence
of a preliminary injunction. Defs.’ Opp’n, ECF No. 76 at 35. But
while the decision whether to eventually grant asylum to
individuals is undoubtedly fact-intensive, as explained above,
Plaintiffs have provided ample unrebutted evidence demonstrating
that they are collectively deprived of certain statutory
procedures to seek protection under the Title 42 Process, and
they face real threats of violence and persecution if they were
to be removed from the United States. See, e.g., Neusner Decl.,
ECF No. 118-4 ¶ 8; Harbury Decl., ECF No. 118-5 ¶¶ 1, 10; Arvey
Decl, ECF No. 118-7 ¶ 16; Pinheiro Decl., ECF No. 118-7 ¶ 37;
Suppl. Levy Decl., ECF No. 118-3 ¶ 16; Rivas Decl., ECF No. 118-
11 ¶ 16. In addition, as Plaintiffs point out, “Defendants offer
no evidence that class members face materially disparate dangers
once expelled.” Pls.’ Reply, ECF No. 118 at 20. As other courts
47
have noted, “similar showings” of “bona fide clams for
humanitarian relief, including fear of persecution on the basis
of protected characteristics,” have been found to be “sufficient
to demonstrate irreparable injury.” P.J.E.S., 502 F. Supp. 3d at
544 (citing cases); see also J.B.B.C. v. Wolf, No. 20-cv-1509,
2020 WL 6041870, at *2 (D.D.C. June 26, 2020) (stating that
sealed “declaration describing the possible harms that would
result from plaintiff’s return to Honduras” was sufficient);
Devitri v. Cronen, 289 F. Supp. 3d 287, 296-97 (D. Mass. 2018)
(finding unrebutted evidence showing threat of persecution or
torture if deported established likely irreparable harm, despite
“no individualized evidence concerning the specific threats each
Petitioner faces in Indonesia”); Grace v. Whitaker, 344 F. Supp.
3d 96, 146 (D.D.C. 2018), aff’d in part, rev’d in part on other
grounds sub nom., Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020)
(“[P]laintiffs credibly alleged at their credible fear
determinations that they feared rape, pervasive domestic
violence, beatings, shootings, and death in their countries of
origin. Based on plaintiffs’ declarations attesting to such
harms, they have demonstrated that they have suffered
irreparable injuries.”); Orantes-Hernandez v. Meese, 685 F.
Supp. 1488, 1504–05 (C.D. Cal. 1988) (finding that plaintiffs
would suffer irreparable harm if they were summarily removed
48
without being afforded the opportunity to exercise their right
to apply for asylum).
Defendants also contend that “the [g]overnment’s
implementation of the Order provides a process for determining a
covered alien’s claim for protection under the Convention
Against Torture. Thus, Plaintiffs would not be expelled without
some opportunity to seek humanitarian relief.” Defs.’ Opp’n, ECF
No. 76 at 35. However, Defendants do not dispute that Plaintiffs
and proposed class members would still be deprived of the
protections and procedures provided for under the immigration
statutes. See id.Plaintiffs have thus shown a likelihood of suffering
irreparable harm.
3. The Balance of the Equities and Public
Interest Favors an Injunction
The balance-of-equities factor directs the Court to
“balance the competing claims of injury and . . . consider the
effect on each party of the granting or withholding of the
requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting
Winter, 555 U.S. at 24). “When the issuance of a preliminary
injunction, while preventing harm to one party, causes injury to
the other, this factor does not weigh in favor of granting
preliminary injunctive relief.” Id.; see also Serono Labs., Inc.
v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast,
49
the balance of equities may favor a preliminary injunction that
serves only “to preserve the relative positions of the parties
until a trial on the merits can be held.” Rufer v. FEC, 64 F.
Supp. 3d 195, 206 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at
395). “The purpose of . . . interim relief is not to
conclusively determine the rights of the parties, . . . but to
balance the equities as the litigation moves forward. In
awarding a preliminary injunction a court must also ‘conside[r]
. . . the overall public interest’. . . .” Trump v. Int’l
Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (second
alteration in original) (citations omitted).
Plaintiffs contend that issuing a preliminary injunction
“would not substantially injure the government and would be
consistent with public health” because (1) “families who come to
the border . . . can be processed quickly by Border Patrol
agents and released to sponsors in the interior,” where they can
quarantine and be subject to local health restrictions; (2)
“insofar as Defendants choose to detain families upon their
apprehension at the border, Defendants operate family detention
facilities where the family can be housed together,” as well as
tested and quarantined; and (3) “Defendants keep many families
in custody for weeks before expulsion,” where the families are
tested for COVID-19. Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at
34-35. Defendants, in opposition, argue that “an injunction will
50
increase the risk of COVID-19 transmission, which for some could
have deadly consequences, and undoing the mitigation measures
put in place by the Order is not in the public interest.” Defs.’
Opp’n, ECF No. 76 at 36.
Here, the Court ultimately finds that the balance of the
equities and the public interest weigh in favor of an
injunction.
First, “[t]here is generally no public interest in the
perpetuation of unlawful agency action.” League of Women Voters
of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016); see also
Ramirez v. ICE, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (“The public
interest surely does not cut in favor of permitting an agency to
fail to comply with a statutory mandate.”); R.I.L-R, 80 F. Supp.
3d at 191 (“The Government ‘cannot suffer harm from an
injunction that merely ends an unlawful practice or reads a
statute as required to avoid constitutional concerns.’”). As
explained above, the Court has determined that Plaintiffs are
likely to succeed on their claim that the Title 42 Process is
unlawful. Accordingly, because “there is an overriding public
interest . . . in the general importance of an agency’s faithful
adherence to its statutory mandate,” Jacksonville Port Auth. v.
Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court finds that
Plaintiffs likelihood of success “is a strong indicator that a
preliminary injunction would serve the public interest,” Newby,
51
838 F.3d at 12; see also A.B.-B. v. Morgan, No. 20-cv-846, 2020
WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and
public can have little interest in executing removal orders that
are based on statutory violations . . . .”).
Second, “the public has an interest in ‘ensuring that we do
not deliver aliens into the hands of their persecutors,’ Leiva-
Perez [v. Holder], 640 F.3d [962,] 971 [(9th Cir. 2011)], and
‘preventing aliens from being wrongfully removed, particularly
to countries where they are likely to face substantial harm,’
Nken, 556 U.S. at 436.” East Bay Sanctuary Covenant v. Biden,
993 F.3d 640, 678 (9th Cir. 2021). Here, the Title 42 Process
deprives Plaintiffs and the proposed class members of an
opportunity to seek humanitarian protections under the asylum
and withholding of removal statutes. Proceeding to the merits of
this litigation without preliminary injunctive relief thus
“risks [P]laintiffs being returned to home countries where they
face significant risk of physical harm.” A.B.-B., 2020 WL
5107548, at *9. Defendants do not question that Plaintiffs face
substantial harm if returned to their countries of origin.
Accordingly, “[t]hese life-or-death consequences weigh heavily
in favor of preliminary injunctive relief.” Id.; see also
Devitri, 289 F. Supp. 3d at 297 (D. Mass. 2018) (“The public’s
interest in providing due process for non-citizens to ensure
that they are not removed to a country where they will be
52
persecuted is an extremely weighty one.”); Chaudhry v. Barr, No.
19-cv-00682, 2019 WL 2009307, at *4 (E.D. Cal. May 7, 2019)
(“[T]here is . . . ‘a public interest in preventing aliens from
being wrongfully removed, particularly to countries where they
are likely to face substantial harm.’” (quoting Sied v. Nielsen,
No. 17-cv-06785, 2018 WL 1142202, at *27 (N.D. Cal. Mar. 2,
2018))).
Defendants argue, however, that “an injunction will
increase the risk of COVID-19 transmission, which for some could
have deadly consequences, and undoing the mitigation measures
put in place by the Order is not in the public interest.” Defs.’
Opp’n, ECF No. 76 at 36. According to Defendants, (1) “CBP
facilities ‘are not structured or equipped for quarantine or
isolation for COVID-19’”; (2) “[t]he numbers of aliens and the
size and capacity of the congregate holding areas are not at all
conducive to effective social distancing”; and (3) “CBP is not
equipped to provide on-site care to infected persons.” Id.(quoting March Order at 14; Final Rule, 85 Fed Reg. at 56,433).
Due to these constraints, Defendants fear that U.S. Border
Patrol’s facilities “may rapidly become overcrowded” if the
Title 42 Process is rescinded. Id. But despite the government’s
warnings regarding the capacity of its facilities and staff, the
fact remains that “86% of families arriving at the southwest
border are already allowed into the United States and processed
53
for regular removal proceedings.” Pls.’ Reply, ECF No. 118 at
22. Moreover, although Defendants have expressed concerns
regarding its inability to provide for quarantine space or
“effective social distancing” if the Title 42 Process were not
in effect, expulsion pursuant to the CDC Orders still results in
“plac[ing] families on crowded planes and buses from the Rio
Grande Valley,” without first testing the individuals and
isolating those who test positive, and transporting them “to
other locations in Texas, or places as far away as Arizona and
San Diego,” before expelling them or releasing them into the
United States. Pls.’ Reply, ECF No. 118 at 25.
Citing an increased number of “enforcement encounters” from
April 2020 to January 2021, Defendants further contend that an
injunction in this case could “create a ‘pull factor’ leading to
additional attempts to enter the United States and in turn more
apprehensions.” Defs.’ Opp’n, ECF No. 76 at 37 (citing Miller
Decl., ECF No. 76-2 ¶ 16). However, as Plaintiffs point out,
Defendants’ only evidence in support of their prediction is “a
16% increase in encounters of unaccompanied children in the
weeks after entry of this Court’s injunction in P.J.E.S. in
November 2020,” which was actually “part of a larger upward
trend that predated the injunction by many months—and it was
smaller than the percentage increase for each month from April
to October 2020, when Title 42 was being enforced against
54
unaccompanied children.” Pls.’ Reply, ECF No. 118 at 26 (citing
Menjívar Decl., ECF No. 118-23 ¶ 15). Moreover, though
Defendants contend that there has been a “historic” level of
enforcement encounters at the border, the statistics Defendants
cite “overstate the number of unique individuals arriving at the
border.” Reichlin-Melnick Decl., ECF No. 118-18 ¶¶ 15-16. For
example, Plaintiffs have provided evidence that, after the
implementation of the Title 42 Process, the recidivism rate of
individuals crossing the border increased from less than 7% to
40%. Id. ¶ 11. In other words, under the Title 42 regime,
individuals seeking an asylum hearing have attempted to cross
the border multiple times, “sometimes 10 times or more, and each
attempt is counted as a new ‘encounter.’” Pls.’ Reply, ECF No.
118 at 22. Such evidence casts doubt on Defendants’ claims that
an injunction in this matter would create a “pull factor.” See
Flores v. Sessions, No. 85-cv-4544, 2018 WL 4945000, at *2 (C.D.
Cal. July 9, 2018) (finding argument that border crossings would
surge due to court order lacked merit).
Defendants also note that “the pandemic has taken a toll on
the CBP workforce,” with many CBP employees contracting COVID-19
and several others dying from the virus. Defs.’ Opp’n, ECF No.
76 at 37 (citing Miller Decl., ECF No. 76-2 ¶ 18). Defendants
assert that “[w]ith personnel on sick leave or quarantining, the
ability of CBP to perform its functions is diminished.” Id.
55(citing Miller Decl., ECF No. 76-2 ¶ 14). The loss of life
resulting from COVID-19 contraction is undeniably tragic, and
the Court agrees that “promoting public health—especially during
a pandemic—is in the public interest.” Nat’l Immigration Project
of Nat’l Lawyers Guild v. Exec. Off. of Immigration Review, 456
F. Supp. 3d 16, 34 (D.D.C. 2020). However, Defendants provide no
evidence that the CBP employees who tested positive for COVID-19
contracted the virus from any of the asylum seekers crossing the
border into the United States. And, significantly, since
Defendants filed its opposition brief in this matter, vaccines
protecting against the risk of serious disease and
hospitalization have become widely available in the United
States. See Pls.’ Reply, ECF No. 118 at 25. The Court does not
doubt that a preliminary injunction issued in this matter would
force the government “to make difficult decisions about
allocation of resources to mitigate the risks caused by COVID-
19.” P.J.E.S., 502 F. Supp. 3d at 549. But in view of the wide
availability of testing, vaccines, and other minimization
measures, the Court is not convinced that the transmission of
COVID-19 during border processing cannot be significantly
mitigated. Indeed, the government has successfully implemented
mitigation measures with regard to processing unaccompanied
minors in order to minimize risk of COVID-19 transmission. See
Pls.’ Reply, ECF No. 118 at 21-22.
56
Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.
4. The Court Will Not Require Plaintiffs to
Post a Bond
Federal Rule of Civil Procedure 65(c) provides that “[t]he
court may issue a preliminary injunction . . . only if the
movant gives security in an amount that the court considers
proper to pay the costs and damages sustained by any party found
to have been wrongfully enjoined.” Fed. R. Civ. P. 65(c).
“Courts in this Circuit have found the Rule ‘vest[s] broad
discretion in the district court to determine the appropriate
amount of an injunction bond,’ including the discretion to
require no bond at all.” Simms v. District of Columbia, 872 F.
Supp. 2d 90, 107 (D.D.C. 2012) (quoting DSE, Inc. v. United
States, 169 F.3d 21, 33 (D.C. Cir. 1999)) (internal citation
omitted). Here, Plaintiffs are families allegedly fleeing
persecution in their home country and do not have the ability to
post a bond. Additionally, they are seeking to vindicate
57
important procedures and protections under the immigration laws.
Accordingly, the Court will waive the requirement for an
injunction bond. See id.
5. The Court Shall Stay the Preliminary
Injunction
Defendants request that the Court stay its Order enjoining
the Title 42 Process for 14 days “to give Defendants sufficient
time to explore their appellate options.” Defs.’ Opp’n, ECF No.
76 at 39. Plaintiffs do not oppose Defendants’ request. Pls.’
Reply, ECF No. 118 at 30. Accordingly, the Court shall stay its
Order for 14 days from the date of its entry. However, the Court
declines to stay this decision pending appeal for substantially
the same reasons as those articulated in this Opinion.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Plaintiffs’
Motion for Class Certification, ECF No. 23, and GRANTS
Plaintiffs’ Motion for Preliminary Injunction, ECF No. 57. The
preliminary injunction shall be stayed for 14 days. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 16, 2021
58