U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02245-EGS-GMH

P.J.E.S. v. WOLF et al Assigned to: Judge Emmet G. Sullivan Referred to: Magistrate Judge G. Michael Harvey Case: 1:21-cv-00100-EGS
Case in other court: USCA, 20-05357 Cause: 8:1101 Immigration and Nationality Act

Date Filed: 08/14/2020 Jury Demand: None Nature of Suit: 360 P.I.: Other Jurisdiction: U.S. Government Defendant

Plaintiff
P.J.E.S. a minor child, by and through his father and next friend, Mario Escobar Francisco, on behalf of himself and others similarly situated

represented by Adrienne Pon Harrold AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-490-5695 Email: Aharrold@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street NW Ste 2nd Floor Washington, DC 20005 202-601-4266 Fax: 202-457-0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

Cody H. Wofsy AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0785 Email: cwofsy@aclu.org PRO HAC VICE

ATTORNEY TO BE NOTICED
Daniel Antonio Galindo AMERICAN CIVIL LIBERTIES UNION FOUNDATION New York 125 Broad Street Suite 18th Floor New York New York, NY 10004 646-905-8907 Email: dgalindo@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie L. Crook CENTER FOR GENDER AND REFUGEE STUDIES 200 McAllister Street San Francisco, CA 94102 (415) 565-4877 Fax: (415) 581-8824 Email: crookjamie@uchastings.edu ATTORNEY TO BE NOTICED
Karla Vargas TEXAS CIVIL RIGHTS PROJECT 1017 W. Hackberry Avenue Alamo, TX 78516 512-731-2576 Email: kvargas@texascivilrightsproject.org PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2616 Fax: (212) 549-2654 Email: lgelernt@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Ming Cheung AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 646-610-9943 Fax: 212-549-2654 Email: MCheung@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Morgan Russell AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 415-343-0776 Email: irp_mr@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Michelman AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457-0800 Fax: (202) 457-0805 Email: smichelman@acludc.org ATTORNEY TO BE NOTICED
Stephen Bonggyun Kang AMERICAN CIVIL LIBERTIES UNION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0783 Fax: 415-395-0950 Email: skang@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
CHAD F. WOLF Acting Secretary of Homeland Security, in his official capacity TERMINATED: 01/14/2021

Celso Perez ACLU IMMIGRANTS' RIGHTS PROJECT 125 Broad Street 18th Floor New York, NY 10004 646-905-8953 Email: cperez@aclu.org ATTORNEY TO BE NOTICED
represented by Jean Lin U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Room 11532 Washington, DC 20005 (202) 514-3716 Fax: (202) 616-8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 305-0924 Fax: (202) 616-8460 Email: kevin.snell@usdoj.gov ATTORNEY TO BE NOTICED
Tanya D. Senanayake U.S. DEPARTMENT OF JUSTICE Civil Division 1100 L Street, NW Washington, DC 20005 202-305-1953 Email:

Defendant MARK A. MORGAN Acting Commissioner of U.S. Customs and Border Protection, in his official capacity
Defendant TODD C. OWEN Executive Assistant Commissioner, CBP Office of Field Operations, in his official capacity
Defendant RODNEY S. SCOTT Chief of U.S. Border Patrol, in his official capacity

Tanya.Senanayake@usdoj.gov TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake (See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake (See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake

Defendant MATTHEW T. ALBENCE Deputy Director of U.S. Immigration and Customs Enforcement, in his official capacity
Defendant ALEX M. AZAR, II Secretary of Health and Human Services, in his official capacity
Defendant ROBERT R. REDFIELD Dr., Director of the Centers for Disease Control and Prevention, in his official capacity

(See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake (See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake (See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake

Defendant HEIDI STIRRUP Acting Director of the Office of Refugee Resettlement, in his official capacity
Defendant PETER GAYNOR Acting Secretary of Homeland Security, in his official capacity
Movant SCHOLARS OF REFUGEE AND IMMIGRATION LAW

(See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake (See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
Tanya D. Senanayake (See above for address) TERMINATED: 03/26/2021 ATTORNEY TO BE NOTICED
represented by Noah A. Levine WILMER CUTLER PICKERING HALE & DORR LLP 7 World Trade Center 250 Greenwhich Street New York, NY 10007 (212) 230-8800 Fax: (212) 230-8888 Email: noah.levine@wilmerhale.com

Movant INTERNATIONAL REFUGEE ASSISTANCE PROJECT
Amicus IMMIGRATION REFORM LAW INSTITUTE

PRO HAC VICE ATTORNEY TO BE NOTICED
Paul R.Q. Wolfson WILMER CUTLER PICKERING HALE & DORR LLP 1875 Pennsylvania Ave., NW Suite 400E Washington, DC 20006 (202) 663-6000 Fax: (202) 663-6363 Email: paul.wolfson@wilmerhale.com ATTORNEY TO BE NOTICED
represented by Kathryn S. Austin INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza 4th Floor New York, NY 10004 516-296-0688 Email: kaustin@refugeerights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mariko Hirose INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza 4th Floor New York, NY 10006 (516) 701-4620 Fax: (212) 549-2651 Email: mhirose@refugeerights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Michael Miano IMMIGRATION REFORM LAW INSTITUTE 25 Massachusetts Avenue, NW Suite 335

Washington, DC 20001 (908) 273-9207 Email: miano@colosseumbuilders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/14/2020
08/14/2020
08/14/2020 08/17/2020 08/17/2020
08/19/2020 08/19/2020

# Docket Text

COMPLAINT against MATTHEW T. ALBENCE, ALEX M.

1

AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R.

REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F.

WOLF ( Filing fee $ 400 receipt number CDCDC-7467238) filed

by P.J.E.S.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for

All Defendants, U.S. Attorney, and U.S. Attorney General)(Perez,

Celso) (Entered: 08/14/2020)

2 MOTION to Certify Class by P.J.E.S. (Attachments: # 1

Memorandum in Support, # 2 Declaration of Stephen B. Kang with Exhibits, # 3 Declaration of Scott Michelman, # 4 Declaration of Nicholas Stefaniak)(Perez, Celso) (Entered: 08/14/2020)

3 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 08/14/2020)

Case assigned to Judge Emmet G. Sullivan. (zmc) (Entered: 08/17/2020)

4 SUMMONS (10) Issued Electronically as to MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 08/17/2020)

5 MOTION for Leave to Appear Pro Hac Vice :Attorney NameStephen B. Kang, Filing fee $ 100, receipt number ADCDC7483309. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/19/2020)

6 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAdrienne Harrold, Filing fee $ 100, receipt number ADCDC7483388. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/19/2020)

08/19/2020 08/19/2020 08/19/2020 08/19/2020 08/19/2020
08/19/2020
08/19/2020

7 MOTION for Leave to Appear Pro Hac Vice :Attorney NameDaniel Galindo, Filing fee $ 100, receipt number ADCDC7483442. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/19/2020)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lee Gelernt, Filing fee $ 100, receipt number ADCDC-7483556. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/19/2020)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney NameMorgan Russell, Filing fee $ 100, receipt number ADCDC7483673. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/19/2020)
10 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 08/19/20. (Attachment: # 1 Exhibit 1) (mac) (Entered: 08/19/2020)
MINUTE ORDER granting 5 motion for leave to appear pro hac vice. Stephen B. Kang is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Kang's fifth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions Signed by Judge Emmet G. S ullivan on 8/19/2020. (lcegs2) (Entered: 08/19/2020)
MINUTE ORDER granting 6 motion for leave to appear pro hac vice. Adrienne Harrold is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Harrold's fourth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions Signed by Judge Emm et G. Sullivan on 8/19/2020. (lcegs2) (Entered: 08/19/2020)
MINUTE ORDER granting 7 motion for leave to appear pro hac vice. Daniel Galindo is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Galindo's fifth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Emmet G. Sullivan on 8/19/2020. (lcegs2) (Entered: 08/19/2020)

08/19/2020
08/19/2020
08/20/2020 08/20/2020 08/20/2020 08/20/2020 08/20/2020

MINUTE ORDER granting 8 motion for leave to appear pro hac vice. Lee Gelernt is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Gelernt's sixth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions Signed by Judge Emmet G. Sul livan on 8/19/2020. (lcegs2) (Entered: 08/19/2020)
MINUTE ORDER granting 9 motion for leave to appear pro hac vice. Morgan Russell is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Russell's fifth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Emmet G. Sullivan on 8/19/2020. (lcegs2) (Entered: 08/19/2020)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney NameCody Wofsy, Filing fee $ 100, receipt number ADCDC-7488178. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/20/2020)
12 NOTICE of Appearance by Lee Gelernt on behalf of P.J.E.S. (Gelernt, Lee) (Entered: 08/20/2020)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney NameOmar Jadwat, Filing fee $ 100, receipt number ADCDC-7489893. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 08/20/2020)
14 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by P.J.E.S. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Mario Francisco Escobar)(Gelernt, Lee) (Entered: 08/20/2020)
MOTION for Preliminary Injunction by P.J.E.S. (Attachments: # 1 15
Memorandum in Support of Preliminary Injunction, # 2 Text
of Proposed Order, # 3 Index of Exhibits in Support of Motion for Preliminary Injunction, # 4 Declaration of Adrienne Harrold, # 5 Exhibit A-H of Adrienne Harrold Declaration, # 6 Declaration of Chris Palusky, # 7 Declaration of Les Roberts and Stephen Patrick Kachur, # 8 Exhibit CV of Les Roberts, # 9 Exhibit CV of Stephen Patrick Kachur, # 10 Declaration of

08/21/2020 08/21/2020 08/21/2020
08/21/2020 08/21/2020 08/21/2020

Linda Corchado, # 11 Declaration of Taylor Levy, # 12

Declaration of Lisa Frydman)(Gelernt, Lee) (Entered: 08/20/2020)

16 ERRATA Concerning Motion for Class Certification by P.J.E.S. 2 MOTION to Certify Class filed by P.J.E.S.. (Attachments: # 1 Text of Proposed Order of Motion for Class Certification)(Gelernt, Lee) (Entered: 08/21/2020)

Unopposed MOTION for Leave to File Amicus Curiae Brief by

17

Scholars of Refugee and Immigration Law (Attachments:

# 1 Amicus Brief, # 2 Text of Proposed Order)(Wolfson, Paul)

(Entered: 08/21/2020)

MINUTE ORDER. In view of 15 plaintiffs' motion for classwide preliminary injunction, plaintiffs are HEREBY DIRECTED to contact forthwith the United States Attorney's Office for the District of Columbia and/or the Department of Justice as appropriate to identify government counsel. The parties shall thereafter file a joint status report by no later than 12:00 pm on August 27, 2020 with recommendations for further proceedings, including, inter alia, (1) proposed briefing schedule for 2 Motion to Certify Class; (2) whether plaintiffs' motion for classwide preliminary injunction should be consolidated with the merits under Federal Rule of Civil Procedure 65; and (3) recommendations for further proceedings including, if necessary, a briefing schedule for plaintiffs' motion for classwide preliminary injunction. Signed by Judge Emmet G. Sullivan on 8/21/2020. (lcegs1) (Entered: 08/21/2020)
18 NOTICE of Appearance by Paul R.Q. Wolfson on behalf of Scholars of Refugee and Immigration Law (Wolfson, Paul) (Entered: 08/21/2020)
19 MOTION for Leave to Appear Pro Hac Vice :Attorney NameNoah A. Levine, Filing fee $ 100, receipt number ADCDC7494939. Fee Status: Fee Paid. by Scholars of Refugee and Immigration Law (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Wolfson, Paul) (Entered: 08/21/2020)
Set/Reset Deadlines: Joint Status Report due no later than 12:00PM on 8/27/2020 (mac) (Entered: 08/21/2020)

08/21/2020 08/21/2020 08/21/2020 08/21/2020 08/22/2020
08/24/2020
08/24/2020
08/25/2020 08/27/2020

20 NOTICE of Appearance by Stephen Bonggyun Kang on behalf of P.J.E.S. (Kang, Stephen) (Entered: 08/21/2020)

21 NOTICE of Appearance by Morgan Russell on behalf of P.J.E.S. (Russell, Morgan) (Entered: 08/21/2020)

22 NOTICE of Appearance by Adrienne Pon Harrold on behalf of P.J.E.S. (Harrold, Adrienne) (Entered: 08/21/2020)

23 NOTICE of Appearance by Daniel Antonio Galindo on behalf of P.J.E.S. (Galindo, Daniel) (Entered: 08/21/2020)

MINUTE ORDER granting 11 motion for leave to appear pro hac vice. Cody Wofsy is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Wofsy's fifth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions Signed by Judge Emmet G. Sull ivan on 8/22/2020. (lcegs2) (Entered: 08/22/2020)

MINUTE ORDER granting 13 motion for leave to appear pro hac vice. Omar Jadwat is hereby admitted pro hac vice in this action. However, the Court notes that this is Attorney Jadwat's fifth time being admitted pro hac vice in this court in two years. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Emmet G. Su llivan on 8/24/2020. (lcegs2) (Entered: 08/24/2020)

MINUTE ORDER granting 19 motion for leave to appear pro hac vice. Noah A. Levine is hereby admitted pro hac vice in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Emmet G. Sullivan on 8/24/2020. (lcegs2) (Entered: 08/24/2020)

24 NOTICE of Appearance by Noah A. Levine on behalf of SCHOLARS OF REFUGEE AND IMMIGRATION LAW (Levine, Noah) (Entered: 08/25/2020)

Joint STATUS REPORT by MATTHEW T. ALBENCE, ALEX

25

M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT

R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD

F. WOLF. (Lin, Jean) (Entered: 08/27/2020)

08/27/2020 08/28/2020
08/28/2020 08/29/2020 08/31/2020 08/31/2020 08/31/2020 09/03/2020 09/03/2020

26 NOTICE of Appearance by Cody H. Wofsy on behalf of P.J.E.S. (Wofsy, Cody) (Entered: 08/27/2020)
MINUTE ORDER. In view of 25 joint status report, in which parties indicate that the Centers for Disease Control and Prevention ("CDC") expects to issue a Final Rule, as well as an amended CDC Order, the parties SHALL limit their briefs to arguments concerning Plaintiff's motions for preliminary injunction and class certification. Parties SHALL adhere to the following briefing schedule: Defendant's Opposition to Plaintiffs motions for preliminary injunction and class certification shall be filed by no later than September 8, 2020, and Plaintiff's Reply shall be filed by no later than September 15, 2020. Signed by Judge Emmet G. Sullivan on 8/28/2020. (lcegs2) (Entered: 08/28/2020)
Set/Reset Deadlines: Defendant's Opposition To Plaintiffs Motions For Preliminary Injunction And Class Certification due by 9/8/2020. Plaintiff's Reply due by 9/15/2020. (mac) (Entered: 08/28/2020)
27 NOTICE of Appearance by Jean Lin on behalf of All Defendants (Lin, Jean) (Entered: 08/29/2020)
28 NOTICE of Appearance by Kevin Matthew Snell on behalf of All Defendants (Snell, Kevin) (Entered: 08/31/2020)
29 NOTICE of Appearance by Jamie L. Crook on behalf of All Plaintiffs (Crook, Jamie) (Entered: 08/31/2020)
30 MOTION for Leave to File Amicus Curiae Brief by INTERNATIONAL REFUGEE ASSISTANCE PROJECT
(Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order)(Austin, Kathryn) (Entered: 08/31/2020)
31 MOTION for Leave to Appear Pro Hac Vice :Attorney NameKarla M. Vargas, Filing fee $ 100, receipt number ADCDC7546995. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 09/03/2020)
32 MOTION for Leave to Appear Pro Hac Vice :Attorney NameEfren C. Olivares, Filing fee $ 100, receipt number ADCDC7547014. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 09/03/2020)

09/03/2020
09/03/2020 09/03/2020 09/03/2020 09/03/2020 09/03/2020

MINUTE ORDER granting 14 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL. Plaintiff may file his document under seal. However, given the strong presumption in favor of public access to judicial records, see, e.g., Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978) ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."), and the ease with which confidential and proprietary information may be redacted from documents before they are filed publicly, Plaintiffs are directed to file a redacted version of their sealed document on the public record within five business days of this Order. Plaintiffs are cautioned that redactions shall be made solely to the extent necessary to preserve the confidential or proprietary nature of the relevant information. Further, the Court

GRANTS 17 Unopposed MOTION for Leave to File Amicus Curiae Brief by Scholars of Refugee and Immigration Law and 30 MOTION for Leave to File Amicus Curiae Brief by INTERNATIONAL REFUGEE ASSISTANCE PROJECT. Signed by Judge Emmet G. Sullivan on 9/3/2020. (lcegs2) (Entered: 09/03/2020)

MINUTE ORDER granting 31 motion for leave to appear pro hac vice. Karla M. Vargas is hereby admitted pro hac vice in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions Signed by Judge Emmet G. Sullivan on 9/3/2020. (lcegs2) (Entered: 09/03/2020)

MINUTE ORDER granting 32 motion for leave to appear pro hac vice. Efren C. Olivares is hereby admitted pro hac vice in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions Signed by Judge Emmet G. Sullivan on 9/3/2020. (lcegs2) (Entered: 09/03/2020)

33 NOTICE of Appearance by Kathryn S. Austin on behalf of INTERNATIONAL REFUGEE ASSISTANCE PROJECT (Austin, Kathryn) (Entered: 09/03/2020)

AMICUS BRIEF by SCHOLARS OF REFUGEE AND

36

IMMIGRATION LAW. (zjf) (Entered: 09/08/2020)

37 AMICUS BRIEF by INTERNATIONAL REFUGEE ASSISTANCE PROJECT. (zjf) (Entered: 09/08/2020)

09/04/2020 09/04/2020 09/04/2020 09/06/2020
09/06/2020
09/08/2020 09/08/2020 09/08/2020 09/08/2020

Set/Reset Deadlines: Plaintiff Redacted Document due by 9/8/2020. (mac) (Entered: 09/04/2020)

34 NOTICE of Appearance by Mariko Hirose on behalf of INTERNATIONAL REFUGEE ASSISTANCE PROJECT (Hirose, Mariko) (Entered: 09/04/2020)

NOTICE of Appearance by Karla Vargas on behalf of P.J.E.S.

35

(Vargas, Karla) (Entered: 09/04/2020)

MINUTE ORDER referring case to Magistrate Judge Harvey for full case management pursuant to Local Civil Rule 72.2, including, pursuant to Local Civil Rule 72.3(a)(2), the preparation of a report and recommendation on the motion for classwide preliminary injunction and, pursuant to Local Civil Rule 72.3(a)(3), the motion to certify class; as well as, pursuant to Local Civil Rule 72.3(a)(3), any subsequent cross motion for summary judgment. Signed by Judge Emmet G. Sullivan on 9/6/2020. (lcegs1) (Entered: 09/06/2020)

MINUTE ORDER. In view of the referral of this case to Magistrate Judge Harvey for full case management pursuant to Local Civil Rule 72.2, the parties shall adhere to the following expedited briefing schedule should there be objections to the recommendations of the Magistrate Judge. Objections shall be due no later than 7 after being served with a copy thereof; oppositions shall be due no later than 7 days after being served with a copy of the objections; and replies shall be due no later than 5 days after being served with a copy of the opposition. Signed by Judge Emmet G. Sullivan on 9/6/2020. (lcegs1) (Entered: 09/06/2020)

38 NOTICE of Appearance by Tanya D. Senanayake on behalf of All Defendants (Senanayake, Tanya) (Entered: 09/08/2020)

39 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/21/2020. Answer due for ALL FEDERAL DEFENDANTS by 10/20/2020. (Perez, Celso) (Entered: 09/08/2020)

40 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/21/2020. (Perez, Celso) (Entered: 09/08/2020)

41 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on

09/08/2020 09/08/2020 09/08/2020
09/09/2020 09/09/2020 09/10/2020

8/21/2020; ALEX M. AZAR, II served on 8/21/2020; MARK A. MORGAN served on 8/21/2020; TODD C. OWEN served on 8/21/2020; ROBERT R. REDFIELD served on 8/20/2020; RODNEY S. SCOTT served on 8/21/2020; HEIDI STIRRUP served on 8/21/2020; CHAD F. WOLF served on 8/21/2020 (Perez, Celso) (Entered: 09/08/2020)

42

RESPONSE re 15 MOTION for Preliminary Injunction filed

by MATTHEW T. ALBENCE, MARK A. MORGAN, TODD C.

OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI

STIRRUP, CHAD F. WOLF. (Attachments: # 1 Exhibit A,

# 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text

of Proposed Order)(Lin, Jean) (Entered: 09/08/2020)

43 RESPONSE re 2 MOTION to Certify Class filed by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Lin, Jean) (Entered: 09/08/2020)

44 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order, # 5 Certificate of Service)(Lin, Jean) (Entered: 09/08/2020)

CASE REFERRED to Magistrate Judge G. Michael Harvey for full case management pursuant to Local Civil Rule 72.2 (zmd) (Entered: 09/09/2020)

45 ORDER granting 44 Sealed Motion for Leave to File Document Under Seal. Signed by Magistrate Judge G. Michael Harvey on 9/9/20. (MFB) (Entered: 09/09/2020)

46 REDACTED DOCUMENT- Redacted Declaration to 15

MOTION for Preliminary Injunction by P.J.E.S..

(Attachments: # 1 Declaration of Mario Escobar Francisco)(Gelernt, Lee) (Entered: 09/10/2020)

09/13/2020 09/14/2020 09/14/2020 09/14/2020 09/15/2020
09/15/2020
09/16/2020 09/16/2020 09/16/2020

47 NOTICE of Appearance by John Michael Miano on behalf of IMMIGRATION REFORM LAW INSTITUTE (Miano, John) (Main Document 47 replaced on 9/14/2020) (zjf). (Entered: 09/13/2020)

48 MOTION for Leave to File by IMMIGRATION REFORM LAW INSTITUTE (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order, # 3 Certificate of Service)(Miano, John) (Entered: 09/14/2020)

SCHEDULING ORDER: See Order for details. Responses due by

49

9/16/2020. Signed by Magistrate Judge G. Michael Harvey on

9/14/20. (MFB) (Entered: 09/14/2020)

50 CERTIFICATE OF SERVICE by IMMIGRATION REFORM LAW INSTITUTE re 48 MOTION for Leave to File Corrected. (Miano, John) (Entered: 09/14/2020)

51 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by P.J.E.S. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support of Motions for Classwide Preliminary Injunction and Class Certification)(Gelernt, Lee) (Entered: 09/15/2020)

52

REPLY to opposition to motion re 15 MOTION for

Preliminary Injunction , 2 MOTION to Certify Class filed by

P.J.E.S.. (Attachments: # 1 Declaration of P.J.E.S., # 2 Declaration

of Stephen B. Kang (Second), # 3 Exhibit in Support of Stephen B.

Kang's Second Declaration, # 4 Declaration of Mark Greenberg

with Exhibit)(Gelernt, Lee) (Entered: 09/15/2020)

53 ORDER granting 51 Sealed Motion for Leave to File Document Under Seal. Signed by Magistrate Judge G. Michael Harvey on 9/16/20. (MFB) (Entered: 09/16/2020)

54 NOTICE by P.J.E.S. re 49 (Entered: 09/16/2020)

Scheduling Order (Gelernt, Lee)

56 SEALED MEMORANDUM re 15 MOTION for Preliminary Injunction and, 2 MOTION to Certify Class filed by P.J.E.S. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 09/22/2020)

09/17/2020 09/17/2020 09/22/2020
09/22/2020
09/23/2020 09/24/2020 09/24/2020

55 ORDER granting 48 Motion for Leave to File. Signed by Magistrate Judge G. Michael Harvey on 9/17/20. (MFB) (Entered: 09/17/2020)

AMICUS BRIEF by IMMIGRATION REFORM LAW

57

INSTITUTE. (zjf) (Entered: 09/22/2020)

58 MOTION to Strike 52 Reply to opposition to Motion, ECF No. 52-4 (Declaration of Mark Greenberg), MOTION for Leave to File September 17, 2020 Declaration of Jallyn Sualog by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1 Exhibit Declaration of Jallyn Sualog, # 2 Text of Proposed Order Proposed Order)(Senanayake, Tanya) (Entered: 09/22/2020)

59 ENTERED IN ERROR..... MOTION for Leave to File (same filing as ECF No. 58) by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1 Exhibit Declaration of Jallyn Sualog, # 2 Text of Proposed Order Proposed Order)(Senanayake, Tanya) Modified on 9/24/2020 (znmw). (Entered: 09/22/2020)

60 SCHEDULING ORDER: Responses due by 5:00 p.m. EDT 9/24/2020 Replies due by 3:00 p.m. EDT 9/25/2020. See Order for further details. Signed by Magistrate Judge G. Michael Harvey on 9/23/20. (MFB) (Entered: 09/23/2020)

NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 59 MOTION for Leave to File (same filing as ECF No. 58) was entered in error (duplicate); Docket Entry 58 is correct as filed as to both reliefs requested. (znmw) (Entered: 09/24/2020)

61 RESPONSE re 58 MOTION to Strike 52 Reply to opposition to Motion, ECF No. 52-4 (Declaration of Mark Greenberg) MOTION for Leave to File September 17, 2020 Declaration of Jallyn Sualog and Notice Regarding Impact of Order in Flores v. Barr filed by P.J.E.S.. (Attachments: # 1 Text of Proposed Order)(Gelernt, Lee) (Entered: 09/24/2020)

09/24/2020 09/25/2020
09/25/2020 09/25/2020 09/25/2020
09/28/2020 09/29/2020

62 NOTICE TO COURT CORRECTING PLAINTIFF'S AGE by

P.J.E.S. re 52 Reply to opposition to Motion, (Gelernt, Lee) (Entered: 09/24/2020)

REPLY to opposition to motion re 58 MOTION to Strike 52 63
Reply to opposition to Motion, ECF No. 52-4 (Declaration of Mark Greenberg) MOTION for Leave to File September 17, 2020 Declaration of Jallyn Sualog filed by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Senanayake, Tanya) (Entered: 09/25/2020)

ORDER denying 58 Motion to Strike ; granting 58 Motion for

64

Leave to File. Signed by Magistrate Judge G. Michael Harvey on

9/25/20. (MFB) (Entered: 09/25/2020)

65

REPORT AND RECOMMENDATION re 15 MOTION for

Preliminary Injunction filed by P.J.E.S., 2 MOTION to Certify

Class filed by P.J.E.S.. Signed by Magistrate Judge G. Michael

Harvey on 9/25/20. (MFB) (Entered: 09/25/2020)

SUPPLEMENTARY DECLARATION OF JALLYN SUALOG,

68

DEPUTY DIRECTOR, OFFICE OF REFUGEE

RESETTLEMENT re 42 RESPONSE re 15 MOTION for Preliminary Injunction by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP. (zjf) (Entered: 10/02/2020)

66 MOTION for Leave to Appear Pro Hac Vice :Attorney NameMing Cheung, Filing fee $ 100, receipt number ADCDC-7648323. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 09/28/2020)

67 ORDER granting 66 Motion for Leave to Appear Pro Hac Vice Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for in structions. Signed by Magistrate Judge G. Michael Harvey on 9/29/20. (MFB) (Entered: 09/29/2020)

10/02/2020
10/04/2020 10/06/2020 10/09/2020 10/13/2020
10/14/2020 10/14/2020
10/21/2020 10/21/2020

69

OBJECTION to 65 Report and Recommendations filed by

MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A.

MORGAN, TODD C. OWEN, ROBERT R. REDFIELD,

RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Lin,

Jean) (Entered: 10/02/2020)

70 NOTICE of Appearance by Scott Michelman on behalf of All Plaintiffs (Michelman, Scott) (Entered: 10/04/2020)

71 NOTICE of Appearance by Ming Cheung on behalf of P.J.E.S. (Cheung, Ming) (Entered: 10/06/2020)

72

RESPONSE re 69 Objection to Report and

Recommendations filed by P.J.E.S.. (Gelernt, Lee) (Entered:

10/09/2020)

73 Unopposed MOTION to Vacate deadline for Defendants to answer or otherwise respond to Complaint, Unopposed MOTION for Scheduling Order for Joint Status Report by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1 Text of Proposed Order)(Senanayake, Tanya) (Entered: 10/13/2020)

ORDER granting 73 Motion to Vacate ; granting 73 Motion for

74

Scheduling Order. See Order for details. Signed by Magistrate

Judge G. Michael Harvey on 10/14/20. (MFB) (Entered:

10/14/2020)

75

REPLY re 69 Report and Recommendations (REPLY IN

SUPPORT OF OJBECTION) filed by MATTHEW T. ALBENCE,

ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN,

ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI

STIRRUP, CHAD F. WOLF. (Lin, Jean) Modified on 10/15/2020

to add docket link (zjf). (Entered: 10/14/2020)

76 MOTION for Leave to Appear Pro Hac Vice :Attorney NameRobert Silverman, Filing fee $ 100, receipt number ADCDC7739760. Fee Status: Fee Paid. by P.J.E.S. (Perez, Celso) (Entered: 10/21/2020)

ORDER granting 76 Motion for Leave to Appear Pro Hac

77

Vice Counsel should register for e-filing via PACER and file a

notice of appearance pursuant to LCvR 83.6(a). Click for in

11/17/2020 11/18/2020 11/18/2020 11/25/2020
11/25/2020

structions. Signed by Magistrate Judge G. Michael Harvey on 10/21/20. (MFB) (Entered: 10/21/2020)
78 NOTICE REGARDING PENDING MOTION FOR
PRELIMINARY INJUNCTION by P.J.E.S. re 15 MOTION for Preliminary Injunction (Gelernt, Lee) (Entered: 11/17/2020)

79

ORDER adopting 65 REPORT AND

RECOMMENDATION; provisionally granting 2 MOTION to

Certify Class; and granting 15 MOTION for Preliminary Injunction. Signed by Judge Emmet G. Sullivan on 11/18/2020. (lcegs2) (Entered: 11/18/2020)

MEMORANDUM OPINION Signed by Judge Emmet G. Sullivan

80

on 11/18/2020. (lcegs2) (Entered: 11/18/2020)

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 80 81
Memorandum & Opinion, 79 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction by ALEX M. AZAR, II, TODD C. OWEN, ROBERT R. REDFIELD, MARK A. MORGAN, HEIDI STIRRUP, CHAD F. WOLF, RODNEY S. SCOTT, MATTHEW T. ALBENCE. Fee Status: No Fee Paid. Parties have been notified. (Attachments: # 1 Exhibit (District Court Order granting preliminary injunction), # 2 Exhibit (District Court Memorandum Opinion))(Lin, Jean) (Entered: 11/25/2020)

82

MOTION for Reconsideration re 80 Memorandum &

Opinion, 79 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction Motion to Reconsider Denial of Stay of Preliminary Injunction Pending Appeal by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1

Declaration Ex. A - Declaration of Robert Kadlec, M.D., # 2

Declaration Ex. B - Declaration of Mark Morgan, # 3

Declaration Ex. C - Declaration of Russell Hott, # 4

11/27/2020 11/29/2020 11/30/2020 12/01/2020
12/01/2020 12/02/2020

Declaration Ex. D - Declaration of Nicole Cubbage, # 5
Text of Proposed Order)(Lin, Jean) (Entered: 11/25/2020)
MINUTE ORDER. In view of the Government's 82
MOTION for Reconsideration, Plaintiff shall file his response by no later than December 1, 2020 at 12:00 PM, and the Government shall file its reply by no later than December 2, 2020 at 12:00 PM. Signed by Judge Emmet G. Sullivan on 11/27/2020. (lcegs2) (Entered: 11/27/2020)
83 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because
the appeal was filed by the government re 81 Notice of Appeal to DC Circuit Court. (zjf) (Entered: 11/29/2020)
Set/Reset Deadlines: Plaintiff Responses due no later than 12:00PM on 12/1/2020. Government Reply due no later than 12:00PM on 12/2/2020. (mac) (Entered: 11/30/2020)

84

Memorandum in opposition to re 82 MOTION for

Reconsideration re 80 Memorandum & Opinion, 79

Order on Motion to Certify Class, Order on Motion for Preliminary Injunction Motion to Reconsider Denial of Stay of Preliminary Injunction Pending Appeal filed by P.J.E.S.. (Attachments: # 1 Declaration of Cecilia Menjivar, # 2 Declaration of Jennifer Podkul, # 3 Declaration of Gil Kerlikowske, # 4 Declaration of Public Health Experts, # 5 Declaration of Leah Chavla, # 6 Text of Proposed Order)(Gelernt, Lee) (Entered: 12/01/2020)

USCA Case Number 20-5357 for 81 Notice of Appeal to DC Circuit Court, filed by CHAD F. WOLF, RODNEY S. SCOTT, ROBERT R. REDFIELD, HEIDI STIRRUP, MATTHEW T. ALBENCE, MARK A. MORGAN, TODD C. OWEN, ALEX M. AZAR, II. (zrdj) (Entered: 12/02/2020)
85 MOTION for Leave to File Supplemental Declaration by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A.

12/02/2020
12/02/2020 12/02/2020 12/02/2020 12/03/2020 12/03/2020

MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1 Declaration Ex. A Supplemental Declaration of Nicole Cubbage, # 2 Text of Proposed Order)(Lin, Jean) (Entered: 12/02/2020)

86

REPLY to opposition to motion re 82 MOTION for

Reconsideration re 80 Memorandum & Opinion, 79

Order on Motion to Certify Class, Order on Motion for Preliminary Injunction Motion to Reconsider Denial of Stay of Preliminary Injunction Pending Appeal filed by MATTHEW T. ALBENCE, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Lin, Jean) (Entered: 12/02/2020)

87 Joint MOTION for Extension of Time to Submit Joint Status Report by P.J.E.S. (Attachments: # 1 Text of Proposed Order)(Gelernt, Lee) (Entered: 12/02/2020)

ORDER granting 87 Motion for Extension of Time to; Set/Reset

88

Deadlines: Status Report due by 12/14/2020. Signed by Magistrate

Judge G. Michael Harvey on 12/2/20. (MFB) (Entered:

12/02/2020)

89 NOTICE to the Court by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F.

WOLF (Attachments: # 1 Declaration of Jeffrey D. Lynch)(Lin, Jean) (Entered: 12/02/2020)

90 NOTICE TO FILE SUPPLEMENTAL DECLARATION by P.J.E.S.

re 84 Memorandum in Opposition,, (Attachments: # 1 Declaration of Leah Chavla (Supplemental))(Gelernt, Lee) (Entered: 12/03/2020)

MINUTE ORDER denying the Government's 82 MOTION for Reconsideration and finding as moot the Government's 85 MOTION for Leave to File Supplemental Declaration. The Government renews its request that the Court stay its preliminary injunction issued on November 18, 2020, contending that, inter alia, (1) given the rise in COVID-19

infections in States along the southern border, "enjoining the CDC Order [that allows for the expulsion of class members pursuant to 42 U.S.C. § 265] at this juncture would create or exacerbate conditions conducive to further COVID-19 outbreaks," Gov't's Mot., ECF No. 82 at 9-10; (2) the increase in the number of unaccompanied minors, could lead to "hospital systems in some localities " to be overwhelmed; id. at 11; and (3) the "recent increases in the number of referrals to" the Office of Refugee Resettlement ("ORR"), during the pandemic, could lead to "greater challenges in accommodating the expected increases in referrals of covered minors," and potentially force ORR transport class members further inland, id. at 12-15. The Government states that it is "not seeking reconsideration of this Court's order granting Plaintiff's motion for a preliminary injunction, ECF No. 15, or provisionally granting Plaintiff's motion to certify a class, ECF No. 2." Gov't's Mot., ECF No. 82 at 4 n.2. In opposition, the Plaintiff argues that "[the Government's] failure to contest the Court's merits ruling is an arguably fatal flaw for a stay application and should be determinative here... particularly given [the Government's] additional failure to contest the irreparable harm to the children." Pl.'s Opp'n, ECF No. 84 at 5 (internal citations and quotation marks omitted). Plaintiff also contends that (1) no class member in ORR custody has required hospitalization due to COVID-19, see id. at 5; (2) the Government's speculation that there will be an increase in the number of unaccompanied children entering the country "is riddled with inconsistencies and misdirection," id. at 7; and (3) the Government has "not demonstrated that [U.S. Customs & Border Protection] or ORR facilities lack additional capacity to hold children even if the numbers substantially increase," id. at 9. In this Court, motions for reconsideration pursuant to Rule 54(b) of the Federal Rules of Civil Procedure are examined under the "standard set forth in Federal Rule of Civil Procedure 59(e)". United States v. Fareri, No. CR 09-54 (EGS), 2018 WL 8754169, at *2 (D.D.C. Oct. 19, 2018) (Sullivan, J.). Under that standard, a Rule 59(e) motion-and in this case a 54(b) motion-"need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Id. As the Government is requesting that the Court reconsider its denial of a stay of its November 18, 2020 preliminary injunction, the Court will review the Government's motion using the factors governing the granting of a stay pending an appeal. A "stay pending [an] appeal is always an extraordinary remedy," United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 988, 990 (D.D.C. 2006) (internal citation and quotation marks omitted); and the "party requesting a stay bears

12/12/2020 12/14/2020

the burden of showing that the circumstances justify an exercise of that discretion," Nken v. Holder, 556 U.S. 418, 43334 (2009). In determining whether to grant a stay pending an appeal, a Court must consider "(1) whether the applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken, 556 U.S. at 34. Of these, the "first two factors of the traditional standard are the most critical." Id. Here, the Government clearly has not met its burden. Even though the "first two factors of the traditional [stay] standard are the most critical," id.; the Government does not even consider the first stay factorlikelihood of success on the merits, see generally, Gov't's Mot., ECF No. 82-nor does it sufficiently explain how it will be "irreparably injured absent a stay," see id. (stating only "any increase in the transfer of class members into [border] States' health care systems is likely to cause irreparable harm to the public"). The Government also fails to address the final two factors- whether issuance of the stay will substantially injure the other parties interested in the proceeding, and where the public interest lies. See generally, Gov't's Mot., ECF No. 82. Because the Court finds that the Government did not note any intervening change of controlling law, provide sufficient new evidence concerning the stay factors, or point out any clear error or manifest injustice, see Fareri, 2018 WL 8754169, at *2, it is ORDERED that the Government's motion for reconsideration, ECF No. 82, is DENIED. Signed by Judge Emmet G. Sullivan on 12/3/2020. (lcegs2) (Entered: 12/03/2020)

NOTICE to the Court Regarding Compliance with Preliminary

91

Injunction by MATTHEW T. ALBENCE, MARK A. MORGAN,

TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S.

SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1

Declaration of Rodney Scott, # 2 Declaration of William Ferrara)(Lin, Jean) (Entered: 12/12/2020)

92 Joint MOTION for Extension of Time to Submit Joint Status Report by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1 Text of Proposed Order)(Snell, Kevin) (Entered: 12/14/2020)

12/14/2020 93
12/18/2020 94
12/18/2020 95
01/13/2021 96
01/19/2021 97
01/22/2021

ORDER granting 92 Motion for Extension of Time to Submit Joint Status Report. Signed by Magistrate Judge G. Michael Harvey on 12/14/20. (MFB) (Entered: 12/14/2020)
Unopposed MOTION for Protective Order by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT,
HEIDI STIRRUP, CHAD F. WOLF (Attachments: # 1 Text of Proposed Order Proposed Protective Order and Acknowledgment Form)(Senanayake, Tanya) (Entered: 12/18/2020)
ORDER granting 94 Motion for Protective Order. Signed by Magistrate Judge G. Michael Harvey on 12/18/20. (MFB) (Entered: 12/18/2020)
NOTICE to the Court Regarding Compliance with Preliminary Injunction by MATTHEW T. ALBENCE, ALEX M. AZAR, II, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF (Lin, Jean) (Entered: 01/13/2021)
NOTICE to the Court Regarding Compliance with Preliminary Injunction by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP (Attachments: # 1 Exhibit 1- Ombudsman's Report
(Spanish), # 2 Exhibit 2-Ombudsman's Report (English), # 3
Declaration of Evan C. Katz)(Lin, Jean) (Entered: 01/19/2021)
MINUTE ORDER. In light of the representations made in a series of status reports on the government's compliance with the injunction entered in this case (see ECF Nos. 89, 91, 96, 97), it is hereby ORDERED that the parties shall submit a joint status report addressing the government's compliance with the injunction in general and, more specifically, updating the Court on the situation regarding the 32 minors returned to Guatemala in apparent contravention of that injunction (see ECF Nos. 89, 97) on or before February 19, 2021. Status Report due by 2/19/2021. SO ORDERED. Signed by Magistrate Judge G. Michael Harvey on 12/22/21. (MFB) (Entered: 01/22/2021)

02/05/2021

98 Joint MOTION for Extension of Time to File Joint Status Report by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Attachments: # 1 Text of Proposed Order Proposed Order)(Senanayake, Tanya) (Entered: 02/05/2021)

02/05/2021 99

ORDER granting 98 Motion for Extension of Time to File; Set/Reset Deadlines: Status Report due by 2/12/2021. Signed by Magistrate Judge G. Michael Harvey on 2/5/12. (MFB) (Entered: 02/05/2021)

02/12/2021 100

Joint MOTION for Extension of Time to File Joint Status Report by P.J.E.S.. (Attachments: # 1 Text of Proposed Order)(Gelernt, Lee) (Entered: 02/12/2021)

02/12/2021

101 ORDER granting 100 Motion for Extension of Time to File; Set/Reset Deadlines: Status Report due by 2/19/2021. Signed by Magistrate Judge G. Michael Harvey on 2/12/21. (MFB) (Entered: 02/12/2021)

02/19/2021

102 Joint MOTION for Extension of Time to Submit Joint Status Report by P.J.E.S.. (Attachments: # 1 Text of Proposed Order)(Gelernt, Lee) (Entered: 02/19/2021)

02/19/2021

103 ORDER granting 102 Motion for Extension of Time to Submit Status Report; Set/Reset Deadlines: Status Report due by 2/26/2021. Signed by Magistrate Judge G. Michael Harvey on 2/19/21. (MFB) (Entered: 02/19/2021)

02/19/2021 104

Joint STATUS REPORT Regarding Compliance with Preliminary Injunction by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP. (Lin, Jean) (Entered: 02/19/2021)

02/24/2021 105

Joint STATUS REPORT and Joint Motion to Hold in Abeyance by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI

STIRRUP. (Attachments: # 1 Text of Proposed Order Proposed Order)(Senanayake, Tanya) (Entered: 02/24/2021)

02/24/2021

106 Joint MOTION to Hold in Abeyance (same filing as ECF No. 105) by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER

02/24/2021 02/25/2021 03/22/2021 03/22/2021
03/24/2021 03/26/2021

GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Attachments: # 1 Text of Proposed Order Proposed Order)(Senanayake, Tanya) (Entered: 02/24/2021)
MINUTE ORDER granting 106 joint motion to hold in abeyance. It is hereby ORDERED that the parties shall file a joint status report with a recommendation for further proceedings by no later than March 23, 2021. Signed by Judge Emmet G. Sullivan on 2/24/2021. (lcegs3) (Entered: 02/24/2021)
Set/Reset Deadlines: Joint Status Report due by 3/23/2021. (mac) (Entered: 02/25/2021)
107 Joint STATUS REPORT by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP. (Attachments: # 1 Text of Proposed Order Proposed Order)(Senanayake, Tanya) (Entered: 03/22/2021)
108 Joint MOTION to Hold in Abeyance (same filing as ECF No. 107) by MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP, CHAD F. WOLF. (Attachments: # 1 Text of Proposed Order Proposed Order)(Senanayake, Tanya) (Entered: 03/22/2021)
109 ORDER granting 108 Order on Motion to Hold in Abeyance; Set/Reset Deadlines: Status Report due by 4/22/2021. Signed by Magistrate Judge G. Michael Harvey on 3/24/21. (MFB) (Entered: 03/24/2021)
110 NOTICE OF WITHDRAWAL OF APPEARANCE as to MATTHEW T. ALBENCE, ALEX M. AZAR, II, PETER GAYNOR, MARK A. MORGAN, TODD C. OWEN, ROBERT R. REDFIELD, RODNEY S. SCOTT, HEIDI STIRRUP. Attorney Tanya D. Senanayake terminated. (Senanayake, Tanya) (Entered: 03/26/2021)

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 Case 1:20-cv-02245 Document 1 Filed 08/14/20 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

P.J.E.S.,* A MINOR CHILD, by and through his

)

father and NEXT FRIEND, Mario Escobar Francisco, )

on behalf of himself and others similarly situated,

)

c/o American Civil Liberties Union

)

125 Broad Street, 18th Floor

)

New York, NY 10004;

)

) No. 20-cv-______

Plaintiff,

)

)

v.

)

)

CHAD F. WOLF, ACTING SECRETARY OF

)

HOMELAND SECURITY, in his official capacity, )

Department of Homeland Security

)

245 Murray Lane SW

)

Washington, DC 20528;

)

)

MARK A. MORGAN, ACTING COMMISSIONER )

OF U.S. CUSTOMS AND BORDER PROTECTION )

(“CBP”), in his official capacity,

)

U.S. Customs and Border Protection

)

1300 Pennsylvania Ave. NW

)

Washington, DC 20229;

)

)

TODD C. OWEN, EXECUTIVE ASSISTANT

)

COMMISSIONER, CBP OFFICE OF FIELD

)

OPERATIONS, in his official capacity,

)

CBP Office of Field Operations

)

1300 Pennsylvania Ave. NW

)

Washington, DC 20229;

)

)

RODNEY S. SCOTT, CHIEF OF U.S. BORDER

)

PATROL, in his official capacity,

)

U.S. Border Patrol

)

1300 Pennsylvania Ave. NW

)

Washington, DC 20229;

)

)

MATTHEW T. ALBENCE, DEPUTY DIRECTOR )

OF U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT, in his official capacity,

)

U.S. Immigration and Customs Enforcement,

)

500 12th Street SW

)

Washington, DC 20536;

)

)

ALEX M. AZAR II, SECRETARY OF HEALTH )

AND HUMAN SERVICES, in his official capacity, )

U.S. Department of Health and Human Services

)

Hubert H. Humphrey Building

)

200 Independence Ave. SW

)

Case 1:20-cv-02245 Document 1 Filed 08/14/20 Page 2 of 31

Washington, DC 20201;

)

)

DR. ROBERT R. REDFIELD, DIRECTOR OF THE )

CENTERS FOR DISEASE CONTROL

)

AND PREVENTION, in his official capacity,

)

Centers for Disease Control and Prevention

)

1600 Clifton Road

)

Atlanta, GA 30329;

)

)

HEIDI STIRRUP, ACTING DIRECTOR OF THE )

OFFICE OF REFUGEE RESETTLEMENT, in her )

official capacity,

)

Office of Refugee Resettlement,

)

330 C Street SW, 5th Floor

)

Washington, D.C. 20201;

)

)

Defendants.

)

)

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(Violations of Trafficking Victims Protection Reauthorization Act of 2008, Public Health Service Act, Refugee Act, Foreign Affairs Reform and Restructuring Act of 1998, Immigration
and Nationality Act, and Administrative Procedure Act)
*Proceeding under pseudonym pursuant to Federal Rule of Civil Procedure 5.2(a).

Case 1:20-cv-02245 Document 1 Filed 08/14/20 Page 3 of 31
INTRODUCTION 1. This case challenges the government’s unprecedented new system for restricting immigration along the Canadian and Mexican borders in the name of public health and under the purported authority of 42 U.S.C. § 265. This system is established in a set of agency documents— a new regulation, several orders, and an implementation memo—which Plaintiff collectively refers to as the “Title 42 Process.” 2. Among other things, the Title 42 Process authorizes the summary expulsion of unaccompanied minors without any procedural protections—even if the children show no signs of having COVID-19, and even if the children are fleeing danger and seeking protection in the United States. 3. Plaintiff P.J.E.S. is a 16-year-old boy from Guatemala who came to the United States unaccompanied. P.J.E.S. was forced to flee to the United States to escape severe persecution in Guatemala. His father currently lives in the United States and is awaiting immigration proceedings. After P.J.E.S. came to the United States, CBP apprehended him and subjected him to the Title 42 Process. He is currently in CBP custody in the McAllen, Texas, area 4. Prior to the Title 42 Process, and pursuant to longstanding immigration statutes protecting children and those seeking protection, Plaintiff should have been given shelter in a children’s facility until he could be released to his father or another suitable sponsor in the United States, and is entitled to a full hearing, and appeals, to determine his right to remain in the United States with his father. 5. Through the Title 42 Process, the Administration has sought to usurp Congress’s role and bypass the entire immigration statutory scheme. Specifically, the Administration contends that public health provisions in Title 42 of the U.S. Code—provisions that have rarely been used and
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never in this way—entitle it to set aside the immigration laws. 6. But those public health provisions do not authorize this unprecedented Title 42 Process. Title 42 authorizes various powers, such as testing and quarantines, but has never been interpreted to authorize the broad powers the government is claiming here. The statutes protecting children and those seeking protection were enacted after the Title 42 provisions and contain no exception for individuals with communicable diseases. 7. In fact, Congress has a long history of squarely addressing communicable diseases in the immigration laws. Under the specific immigration provisions enacted by Congress, if a border official suspects that an arriving noncitizen has a communicable disease deemed serious by the government, the official has numerous options, including testing and even quarantine. But unaccompanied children may under no circumstances be deported without a proper opportunity to determine their right to remain in the United States. The Administration’s use of Title 42 is a transparent end-run around Congress’s considered decision to provide protection to children and others fleeing danger even where communicable disease is a concern—and to address that concern through testing and quarantines, not deportations. 8. Not only does the Title 42 Process violate the immigration statutes, but its application to unaccompanied children is patently arbitrary and capricious from a public health standpoint. 9. The principal stated justifications for the Title 42 Process are that it is necessary to protect border officers and that the introduction of persons into congregate settings poses a danger to public health. Specifically, the government asserts that when a person arrives at the border seeking protection and lacks a visa, border agents from the Department of Homeland Security (“DHS”) will be forced to spend additional time screening the individual under the immigration laws, thereby exposing the officers to great danger. But as public health experts have uniformly
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explained, numerous safety measures are available, including social distancing, face masks, and gloves. 10. Moreover, under the regular operation of the immigration laws, unaccompanied children, like the named Plaintiff here, are transferred to the custody of the Office of Refugee Resettlement (“ORR”), part of the Department of Health and Human Services (“HHS”), within 72 hours of the child’s apprehension. 11. Instead, under the Title 42 Process, unaccompanied minors are regularly being held at hotels for multiple days—and frequently for more than 72 hours—as Defendants arrange for their deportation. 12. Whatever the Administration’s motivation for applying the Title 42 Process to unaccompanied children, the Process is unlawful. Plaintiff would face grave danger in his home country and must be given the opportunity to remain to the United States to receive the statutory protections to which he is entitled under the laws passed by Congress.
JURISDICTION AND VENUE 13. This case arises under 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. and its implementing regulations; the Convention Against Torture (“CAT”), see Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231); and the Public Health Service Act of 1944, 42 U.S.C § 201, et seq. 14. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. See also 5 U.S.C. § 702 (waiver of sovereign immunity).
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15. Venue is proper under 28 U.S.C. § 1391(e)(1) because Defendants are agencies of the United States and officers of the United States acting in their official capacity, Defendants reside in this District, and a substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES Plaintiff 16. Plaintiff P.J.E.S. is a 16-year-old boy from Guatemala. He fled to seek protection in the United States. After he came to the United States, CBP apprehended him and subjected him to the Title 42 Process. He sues by and through his father and Next Friend, Mario Escobar Francisco. Defendants 17. Defendant Chad Wolf is the Acting Secretary of Homeland Security, which is a cabinetlevel department of the U.S. government. He is sued in his official capacity. In that capacity, Defendant Wolf is responsible for the administration of the immigration laws pursuant to 8 U.S.C. § 1103. DHS’s components include CBP and U.S. Immigration and Customs Enforcement (“ICE”). 18. Defendant Mark A. Morgan is the Acting Commissioner of CBP. He is sued in his official capacity. In that capacity, he directed the issuance of the CBP’s memorandum implementing expulsions under the Title 42 Process, and is a supervisory official responsible for implementing the Title 42 Process. CBP is the sub-agency of DHS that is responsible for the initial processing and detention of noncitizens who are apprehended at or between U.S. ports of entry. CBP is responsible for implementing the Title 42 Process and conducts expulsions pursuant to its terms. 19. Defendant Todd C. Owen is the Executive Assistant Commissioner of CBP’s Office of Field Operations (“OFO”). He is sued in his official capacity. OFO is the largest component of
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CBP and is responsible for border security, including immigration and travel through U.S. ports of entry. Defendant Owen is a supervisory official responsible for implementing the Title 42 Process at ports of entry. 20. Defendant Rodney S. Scott is the Chief of U.S. Border Patrol. He is sued in his official capacity. Border Patrol is responsible for border security between ports of entry. Defendant Scott is a supervisory official responsible for implementing the Title 42 Process between ports of entry. 21. Defendant Matthew T. Albence is the Deputy Director of ICE, and is the Senior Official Performing the Duties of the Director. ICE is the sub-agency of DHS that is responsible for carrying out removal orders and overseeing immigration detention. Defendant Albence is sued in his official capacity. 22. Defendant Alex M. Azar II is the Secretary of Health and Human Services (“HHS”), which is a cabinet-level department of the U.S. government. He is sued in his official capacity. In that capacity, Defendant Azar is responsible for the oversight of both the Centers for Disease Control (“CDC”) and the Office of Refugee Resettlement (“ORR”), which are components of HHS. 23. Defendant Dr. Robert R. Redfield, M.D., is the Director of the CDC. He is sued in his official capacity. In that capacity, he authorized the Title 42 Process at issue in this case. 24. Defendant Heidi Stirrup is the Acting Director of ORR. She is sued in her official capacity. ORR is statutorily responsible for the care and custody of unaccompanied children in federal immigration custody. The agency oversees a network of shelters and facilities that house unaccompanied children; evaluates potential sponsors for the children; and operates various programs designed to ensure that unaccompanied children access certain procedural protections in their removal proceedings. The agency is a component of HHS. In that role, Defendant Stirrup oversees the care and custody of unaccompanied children in immigration custody.
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FACTS Unaccompanied Children in the Immigration System 25. Every day, unaccompanied children flee persecution and danger in their home countries and journey to the United States seeking safety. Many of them come from El Salvador, Honduras, Guatemala, and Mexico because of the escalating influence of powerful gangs that control large swaths of these countries and frequently target children. Many unaccompanied children from these countries are also fleeing gender-based, family-based, and other types of violence. 26. In recognition of the unique vulnerabilities of unaccompanied children and their critical need for protection, Congress has passed two laws to guarantee their proper care and facilitate their efforts to seek humanitarian relief. 27. In 2002, Congress included provisions in the Homeland Security Act that transferred responsibility for the care and custody of unaccompanied children from the former Immigration and Naturalization Service to ORR, which is part of HHS. 6 U.S.C. § 279(a). Congress enacted this provision because it saw that immigration enforcement-oriented agencies were ill-equipped to care for unaccompanied children. Congress therefore vested responsibility for the care of unaccompanied children, including the provision of housing and access to legal services to pursue claims for immigration relief, in an agency—ORR—that had demonstrated experience working with vulnerable immigrants and refugees. 28. In 2008, Congress enacted the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 8 U.S.C. § 1232, which established even stronger protections for unaccompanied children. The TVPRA created a number of significant safeguards concerning the care, custody, and removal proceedings of unaccompanied children, and confirmed ORR’s responsibility to
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ensure their care.1 29. Under the TVPRA, unaccompanied children from “noncontiguous countries”—i.e., countries other than Canada and Mexico—must be transferred to ORR custody within 72 hours after their apprehension, absent exceptional circumstances. 8 U.S.C. § 1232(b)(3). Children from Canada and Mexico may be subject to an initial screening for trafficking fear of persecution, and decision-making capacity before they are transferred to ORR. 8 U.S.C. § 1232(a)(2)(A)(i)-(iii), (a)(3). 30. After referral from CBP, ORR is responsible under the statute for housing and caring for unaccompanied children. 8 U.S.C. § 1232(c). The statute requires ORR to “promptly” place the child “in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). Such placements can include referral to shelters or care facilities operated by entities that contract with ORR. 31. ORR does not operate its own housing facilities for unaccompanied children. Instead, ORR contracts with providers throughout the country who operate shelters, group homes, foster care programs, and other living situations for the children. The shelter providers take care of the children’s day-to-day needs, such as food, housing, education, and medical treatment. The providers operate under ORR’s direction and supervision, and must comply with federal standards and ORR guidelines governing the care of unaccompanied children. 32. ORR is also statutorily required to evaluate options for the child’s release from federal custody to a family member or other adult who can care for the child. 8 U.S.C. § 1232(c)(3)(A). Often, unaccompanied children traveling to the United States can reunite with parents or family members already here, which enables ORR to facilitate swift releases.
1 Although the TVPRA refers to HHS, ORR (as an HHS subagency) carries out these statutory functions.
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33. The TVPRA also includes safeguards concerning the removal proceedings of unaccompanied children. Most importantly, if DHS seeks to remove a child who wishes to remain in the United States, the child must be put into full removal proceedings before an immigration judge, with the opportunity for an administrative appeal and review in the court of appeals. Such children cannot be removed via fast-track removal processes applicable to others. 8 U.S.C. § 1232(a)(5)(D)(i). 34. Unaccompanied children are also entitled to other statutory procedural protections, including access to counsel, 8 U.S.C. § 1232(a)(5)(D)(iii), and eligibility for the appointment of a child advocate to look out for their interests, 8 U.S.C. § 1232(c)(6). Through these provisions, Congress recognized that unaccompanied children require special safeguards to ensure their full access to humanitarian relief from removal. 35. In short, unaccompanied children are entitled to specific procedures before they can be expelled from the country, and must be provided critical safeguards to facilitate their ability to seek humanitarian relief. 36. Even apart from the TVPRA, unaccompanied children, like other noncitizens, have statutory rights to seek relief in the United States from persecution and torture. Three forms of relief are possible: asylum, withholding of removal, and protection from torture. 37. The Immigration and Nationality Act (“INA”) provides, with certain enumerated exceptions—that do not include public health concerns—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). To qualify for asylum, a noncitizen must show a “well-founded fear of persecution” on account of a protected ground. 8 U.S.C. § 1101(a)(42)(A). Congress has expanded asylum eligibility for
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unaccompanied children, by exempting them from various requirements applicable to adults, including the one-year deadline for filing an application. 8 U.S.C. § 1158(a)(2)(E). 38. Second, in keeping with this country’s obligations under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees, Congress has barred the removal of an individual to a country where it is more likely than not that he would face persecution on a protected ground. 8 U.S.C. § 1231(b)(3). This form of relief, known as “withholding of removal,” requires the applicant to meet a higher burden with respect to the likelihood of harm but is mandatory if the standard is met. 39. Third, the Convention Against Torture (“CAT”), implemented by FARRA, prohibits the government from returning a noncitizen to a country where it is more likely than not that he would face torture. See 8 U.S.C. § 1231 note. The Treatment of Communicable Diseases Under the Immigration Laws 40. The immigration system has long had to deal with communicable diseases. Congress has thus enacted specific immigration provisions to address them, dating back to the late 1800s when Congress first began regulating immigration. 41. 8 U.S.C. § 1182(a)(1) contains various “health-related” grounds of inadmissibility. The statute applies to noncitizens who present specified public health concerns, such as noncitizens who have “communicable disease[s] of public health significance,” id. § 1182(a)(1)(A)(i); who have not been vaccinated against certain widespread infectious diseases (e.g., mumps, measles, rubella), id. § 1182(a)(1)(A)(ii); who have “physical or mental disorder[s]” that may present “threat[s] to the property, safety, or welfare” of themselves or others, id. § 1182(a)(1)(A)(iii); or who are “drug abuser[s] or addict[s],” id. § 1182(a)(1)(A)(iv). But these statutes do not permit the deportation of individuals without a screening for persecution or torture, and do not permit the
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summary deportation of children in violation of the TVPRA. 42. The immigration statute also contains a detention provision that applies to certain noncitizens “arriving at ports of the United States” who may be inadmissible on the health-related grounds, or who come “from a country or have embarked at a place where any of such diseases are prevalent or epidemic.” 8 U.S.C. § 1222(a). Such noncitizens may only be detained “for a sufficient time to . . . subject [them] to observation and an examination,” id., but may not be deported without a screening for persecution or torture as the immigration statutes require. The Administration’s Efforts to Bar Immigrants and the New Title 42 Process 43. The current Administration has repeatedly and publicly stated that restricting access to asylum, as well as eliminating the TVPRA, are among its key immigration objectives. The President, his close advisors, and a succession of agency officers have repeatedly stated that the TVPRA creates a “loophole” in the border that they seek to close. They have characterized unaccompanied children as dangerous gang members seeking to exploit the immigration laws. 44. The Administration has also sought to use numerous regulatory and policy mechanisms to prevent noncitizens from seeking protection in this country, but the Title 42 Process at issue here goes further than any of those efforts because it leaves almost no avenue open to seek protection. 45. Before COVID-19, Administration officials discussed using public health powers to restrict immigration and circumvent the protections in the immigration laws. White House advisors repeatedly proposed invoking the government’s public health powers to impose immigration restrictions, and justifying those restrictions by pointing to diseases like influenza and mumps. 46. Notwithstanding the clear statutory framework that requires the United States to allow people arriving at the border (with or without valid travel documents) to apply for asylum,
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withholding of removal, and CAT relief, and to provide special protections to unaccompanied children, the President announced on March 20, 2020, that the CDC would issue an order pursuant to the public health provisions of Title 42 of the U.S. Code “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. The President stated that the order would be executed by “immediately returning” such individuals “without delay.” 47. The specific provision of Title 42 invoked by the Administration was § 265. That provision dates to 1893 and was later reenacted in substantially the same language in the Public Health Service Act of 1944. Section 265 provides in relevant part: The Surgeon General may “prohibit . . . the introduction of persons or property” from designated places where “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.”2 48. Deportation has never been an available penalty under § 265, and in fact, § 265 applies to both noncitizens and citizens. Rather, the Public Health Service Act prescribes certain civil and criminal penalties for violations of § 265, including “a fine of not more than $1,000 or . . . imprisonment for not more than one year, or both.” 42 U.S.C. § 271(a). 49. Although § 265 and its predecessors have existed since 1893, no regulation implementing that statute has ever authorized the broad immigration powers Defendants are claiming here. 50. To exercise this new immigration power, the CDC thus issued a new regulation, without advance notice and comment, on the same day as the President’s announcement. See Control of Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Persons Into United
2 In 1966, the Surgeon General’s § 265 authority was transferred to what is now HHS. In 2001, HHS delegated this authority to the CDC. The President’s functions under § 265 were assigned to the Secretary of HHS in a 2003 executive order.
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States From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg. 16559-01 (Mar. 24, 2020) (effective date Mar. 20, 2020). 51. Specifically, the regulation added a new provision, 42 C.F.R. § 71.40, which provides that the CDC may prohibit the “introduction into the United States of persons” from foreign countries. 85 Fed. Reg. at 16,563; see 42 C.F.R. § 71.40(a). The public notice of the regulation describes the “introduction of persons” in 42 U.S.C. § 265 to “encompass those who have physically crossed a border of the United States and are in the process of moving into the interior in a manner the [CDC] Director determines to present a risk of transmission of a communicable disease.” 85 Fed. Reg. at 16,563; see 42 C.F.R. § 71.40(b)(1). And it describes “serious danger of the introduction of [a particular communicable] disease into the United States” in § 265 as meaning “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 [same] communicable disease.” 85 Fed. Reg. at 16,563; see 42 C.F.R. § 71.40(b)(2). 52. The regulation exempted U.S. citizens, lawful permanent residents (“LPRs”), and members of the armed forces, stating that the “CDC believes that, at present, quarantine, isolation, and conditional release, in combination with other authorities, while not perfect solutions, can mitigate” the spread of COVID-19 by such individuals. 85 Fed. Reg. at 16,564; see 42 C.F.R. § 71.40(e), (f). 53. The regulation also provides that, if an order suspending the introduction of persons “will be implemented in whole or in part” by CBP, “then the [CDC] Director shall, in coordination with the Secretary of Homeland Security or other applicable Federal department or agency head, explain in the order the procedures and standards by which any authorities or officers or agents are expected to aid in the enforcement of the order.” 85 Fed. Reg. at 16,564; see 42 C.F.R.
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§ 71.40(d)(2). 54. Pursuant to its new regulatory authority, the CDC issued a 30-day “Order Under Sections 362 and 365 of the Public Health Service Act [42 U.S.C. §§ 265, 268] Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists.” 85 Fed. Reg. 17,06017088 (Mar. 26, 2020) (effective date Mar. 20, 2020). The Order directed the “immediate suspension of the introduction” of certain persons, referred to as “covered aliens.” 85 Fed. Reg. at 17,067. “Covered aliens” are those seeking to enter the United States through Canada or Mexico who “seek[] to enter . . . at POEs [ports of entry] who do not have proper travel documents, aliens whose entry is otherwise contrary to law, and aliens who are apprehended near the border seeking to unlawfully enter the United States between POEs.” 85 Fed. Reg. at 17,061. Section 365 of the Act, codified at 42 U.S.C. § 268, provides that “[i]t shall be the duty of the customs officers and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations.” 42 U.S.C. § 268(b). 55. A principal justification for these restrictions was that “[t]he introduction into congregate settings in land POEs and Border Patrol stations” of such individuals risks “transmission and spread of COVID-19 to CBP personnel” and others. 85 Fed. Reg. at 17,061. 56. The Order contemplates the forcible return of individuals back to the country from which they entered (Canada or Mexico), their home country, or another location. 85 Fed. Reg. at 17,067. 57. Although the Order is issued by the CDC, and the regulation provides that the CDC and DHS must coordinate in developing corresponding procedures and standards, 42 C.F.R. § 71.40(d)(2), the Order states that CBP “developed an operational plan for implementing the order.” 85 Fed. Reg. at 17,067. 58. In addition to repeating the regulatory exceptions for U.S. citizens and LPRs, the Order
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exempts from the ban the spouses and children of citizens and LPRs (whether or not they have valid documents); persons from foreign countries with valid travel documents; and persons from countries in the visa waiver program who present at ports of entry. 85 Fed. Reg. at 17,061. The visa waiver program applies to nationals of 39 countries. 59. The Order also states that DHS customs officers could, in their discretion, determine that a noncitizen “should be excepted [from the Order] based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” 85 Fed. Reg. at 17,061. Other than stating that a supervisor must approve such exceptions, the Order contains no standards or further procedures for exercising that discretion. See id. 60. The Order and regulation are silent on their application to individuals seeking asylum, withholding of removal, or CAT protection, and are likewise silent regarding their application to unaccompanied children. 61. The March 20 Order was extended for an additional 30 days on April 20, 2020. See Extension of Order Under Sections 362 and 365 of the Public Health Service Act, 85 Fed. Reg. 22,424 (Apr. 22, 2020) (effective date Apr. 20, 2020). 62. On May 20, 2020, the CDC extended the Order indefinitely, and amended it to cover both land and coastal ports of entry and Border Patrol stations. See Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act, 85 Fed. Reg. 31,503 (May 26, 2020) (effective date May 21, 2020). 63. The May 20 amended Order acknowledges that “certain areas of the country are beginning a phased reopening of their communities,” but states that “[a]t this critical juncture, it would be counterproductive to . . . relax[] restrictions” on the immigration of persons “who pose a risk of
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further introducing COVID-19 into the United States.” 85 Fed. Reg. at 31,505. As with the prior two 30-day Orders, a principal justification articulated for the indefinite Order was the danger to border agents who would have to inspect persons who come without documents. 64. The CDC acknowledged that there were alternatives to expulsion but concluded that it was not worth the resources for those who lacked documents. The CDC also presumed, without evidence, that those without documents covered by the Order would lack a means of selfquarantining. DHS’s Implementation of the Title 42 Process 65. On April 2, 2020, CBP issued a memorandum (“CBP Memo”) describing the agency’s implementation of the Title 42 Process, an effort it calls “Operation Capio.” CBP Memo 2. 66. To determine whether a noncitizen is “subject to the CDC Order,” the CBP Memo instructs officers to use “experience” and “physical observation” to determine whether they “believe[] that it is more likely than not” that the person whom they encounter in “[e]nforcement efforts on the SWB [southwestern border] and NB [northern border],” anywhere “within the area of operation of a Border Patrol station or POE operated by CBP,” is “seeking to enter” without proper travel documents at or between POEs. CBP Memo 1. 67. Covered noncitizens “will be transported to the nearest POE and immediately returned to Mexico or Canada, depending on their point of transit.” CBP Memo 3. Those who are “not amenable to immediate expulsion to Mexico or Canada, will be transported to a dedicated facility for limited holding prior to expulsion” to their home country. Id. Such facilities can be “a tent, soft-sided facility or predesignated CBP/USBP facility with dedicated space.” Id. 68. The CBP Memo provides no instructions on medical screenings or other procedures for determining whether a covered noncitizen may have COVID-19.
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69. The CBP Memo does not exempt minors from forcible expulsion. 70. CBP deported nearly 1,000 unaccompanied children in March and April. In May, over 1,000 unaccompanied children were taken into CBP custody, and only 39 of these children were transferred to ORR shelters rather than being summarily expelled. In June, CBP apprehended over 1,600 unaccompanied children, and only 61 (less than four percent) were transferred to ORR custody. On June 25, 2020, Defendant Mark Morgan, Acting Commissioner of CBP, testified before Congress that over 2,000 unaccompanied children had been deported under the Title 42 Process as of that date. 71. In addition to deporting children to their home countries, CBP has turned back multiple children to Mexico in the middle of the night. 72. CBP also temporarily houses unaccompanied children in hotels as they await deportation flights. Unaccompanied children subject to the Title 42 Process are often in the hotels for multiple days, and often longer than 72 hours. 73. The number of referrals of unaccompanied children to ORR has thus plummeted. Before the Title 42 Process, ORR shelters received as many as 77 children daily. But in April, daily referrals dropped to the single digits, and ORR stated it received only 58 children from CBP that month. That same month, CBP apprehended over 700 unaccompanied children at the southwest border. In May 2020, the total number of children in ORR custody was reportedly about 1,600, down from approximately 12,500 children in April 2019. As of mid-June, ORR had less than 975 children, a 72% decline from the number of children in custody in late March. 74. Before expelling children to their home countries under the Title 42 Process, the government tests children to ensure they do not have COVID-19. 75. CDC suggested in the May 20 Order that there has been a reduced rate of transmission and
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that this is due to reduced number of “covered aliens” at ports of entry and border patrol stations. CDC offered no evidence for this claim. 76. The use of the term “Title 42 Process” throughout this complaint refers collectively to the new regulation, all three of the CDC Orders—the original March 20 order, the April 20 extension, and the May 20 indefinite extension and amendment—and the CBP Memo. Defendants Seek to Expel Plaintiff Under the Title 42 Process 77. Plaintiff P.J.E.S. is a 16-year-old boy from Guatemala. He is one of the many unaccompanied children subject to summary expulsions by CBP pursuant to the Title 42 Process. 78. Plaintiff’s father, Mario Escobar Francisco, lives in the United States. His father has a pending immigration case. 79. Plaintiff experienced severe persecution in Guatemala. Plaintiff is from an indigenous Mayan family. Plaintiff fled Guatemala after he and his other family members were threatened with death due to his father’s political opinions. In addition, gang members threatened to kill Plaintiff when he refused to join them 80. Plaintiff fled Guatemala because he was afraid for his life and journeyed the United States to seek safety and reunite with his father. 81. On or around August 11, 2020, Plaintiff entered the United States, and CBP apprehended him. CBP subjected him to the Title 42 Process, and he faces imminent deportation back to Guatemala. He is currently in CBP custody in the McAllen, Texas area. 82. The threat of persecution and torture to Plaintiff is imminent and real. Many unaccompanied children, like Plaintiff, are from Central America’s Northern Triangle (Honduras, Guatemala, and El Salvador), one of the most violent regions in the world with high rates of murder. And children are not exempt from this widespread danger. Indeed, many children are
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targeted specifically by gang members for recruitment or experience gender-related violence. 83. Many children are also eligible for other forms of humanitarian relief Congress has provided, including visas for young people who have been abused, abandoned, or neglected by their parents or guardians; or relief for victims of trafficking or crime. 84. If Plaintiff is allowed to remain in the United States, he could live with his father, who currently resides in the United States and is waiting for him, or another suitable sponsor. 85. Even if Plaintiff was required to first reside for a short time in a ORR children shelter, he could do so safely. There are ORR facilities that have experience with communicable diseases. Moreover, because ORR facilities are currently well under capacity, social distancing and quarantine would be possible. 86. Even before the Title 42 Process took effect, the ORR-contracted shelter network was operating significantly below capacity. The system can house approximately 14,000 children. News reports stated that in the first two months of 2020, ORR was housing only about 2,000 to 3,000 children nationwide. 87. After the Title 42 Process went into place, the numbers dropped even more precipitously. As of July 17, 2020, the number of children detained in ORR custody was reportedly at about 820—approximately 6 percent of total capacity. 88. Because Plaintiff could have been transferred directly to his father or another sponsor or to an ORR shelter, he would pose minimal, if any, additional risk to border agents. 89. Children have been required to remain in DHS custody longer than the time it would have taken to transfer them to their family members or to an ORR facility. 90. The Title 42 Process is not justified by public health concerns. A principal justification is that border agents will have greater exposure if they are required to process individuals who lack
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documents and that it is therefore necessary to deport such individuals to reduce the risk to agents. But, as Plaintiff’s facts illustrate, arranging for air transport to deport individuals will generally take longer than time in which DHS must transfer children to ORR or family members. In addition, where the individual shows no signs of COVID-19, as is likely true for many of the unaccompanied children at issue here, the risk is even less. 91. Defendants do not publicly disclose the locations where they are holding unaccompanied children subject to the Title 42 Process. News reports, confirmed by the experiences of numerous unaccompanied children, state that children are held for days or weeks in hotels while they await flights back to their home countries. Others are detained in CBP facilities near the border, reportedly held in cage-like settings with other children. 92. Public reports show that unaccompanied children subject to the Title 42 Process are regularly housed in hotels, for an average of four to five days while waiting for deportation flights. A 5-year-old was recently detained for 19 days at in a hotel. 93. Unaccompanied children subject to the Title 42 Process face numerous problems accessing legal representation. Because children can be expelled under Title 42 in a matter of days, the child or any family member who obtains information about the child has only a limited amount of time in which to advocate for the child. And because the Title 42 Process has operated largely in secret, its rules and procedures have remained opaque to children, their parents, and any lawyers and advocates who seek to help them. Unaccompanied children are also unable, by reason of their youth, to advocate effectively for themselves, especially when detained in custodial settings by government officers. Many do not speak English, and lack even a basic comprehension of the U.S. legal system. Their relatives are similarly not well-situated to help navigate this process, especially given the time constraints; many children are from families in which few members have
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had significant formal schooling, much less any fluency in English. The Title 42 Process Is An Extreme Outlier 94. The Title 42 Process at issue here follows other invocations of COVID-19 by the Administration to ban immigration, but it is far more extreme in seeking to eliminate statutory protections for vulnerable noncitizens and children. And it is not only a ban on entry, but provides for summary expulsion for those who entered the country. 95. For example, in February and March of 2020, the President issued a series of Proclamations under 8 U.S.C. § 1182(f) to prohibit the entry of certain persons traveling from China, Iran, and certain European countries where COVID-19 was prevalent. However, unlike the Title 42 Process, those Proclamations expressly stated that they did not restrict “any individual’s eligibility for asylum, withholding of removal, or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture.” 96. At the same time, the government continues to permit large numbers of people to enter the United States. In addition to the Title 42 Process at issue here, DHS issued two other orders on March 20, 2020, which temporarily suspended “non-essential” travel from Canada and Mexico. Under these orders, permitted “essential travel” broadly includes citizens, returning LPRs, individuals traveling for medical purposes, individuals traveling to attend education institutions, individuals traveling to work in the United States (e.g., agricultural workers), truck drivers moving cargo between the United States and Canada, emergency responders, and those engaged in military travel and operations. 97. On May 22, 2020, Defendant Wolf issued an “exemption” from the President’s Proclamations under 8 U.S.C. § 1182(f), which additionally permitted certain professional athletes, their staff, and their dependents to enter the country. Defendant Wolf determined that it served
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“the national interest” to permit noncitizens who compete in, inter alia, the National Basketball Association, the Professional Golfers’ Association Tour, and the National Hockey League, to enter the country and participate in sporting events. 98. Hundreds of thousands of individuals continue to move back and forth across the U.S.Mexico border every day. Since March 20, 2020, when the Title 42 Process first went into effect, numerous individuals exempted from the ban have come into the United States. 99. The Title 42 Process is inconsistent with how other countries have handled migration in the time of COVID-19, particularly with respect to asylum seekers and other vulnerable populations. Numerous countries in Western Europe, such as France, Italy, and Spain, have exempted asylum seekers from their immigration prohibitions, and permitted them to seek relief from persecution from inside their countries. And while Canada has imposed certain restrictions on the migration of adults without documentation if they do not enter at official ports of entry, it expressly exempts unaccompanied children from those restrictions. Class Action Allegations 100. Plaintiff brings this action under Federal Civil Rules of Civil Procedure 23(a) and 23(b)(2) on behalf of himself and a class of all other persons similarly situated. 101. Plaintiff seeks to represent the following Proposed Class: All unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process. 102. The proposed class satisfies the requirements of Rule 23(a)(1) because the class is so numerous that joinder of all members is impracticable. According to Defendants’ own public reports, confirmed by numerous news articles and other sources, there are hundreds of unaccompanied children that fit in the class definition, including numerous future unaccompanied
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children. 103. The class meets the commonality requirements of Rule 23(a)(2). The members of the class are subject to a common practice: subjection to the Title 42 Process, despite the numerous statutory protections Congress has enacted, including for unaccompanied children. By definition, all class members are or will be subject to that practice. The lawsuit raises numerous questions of law common to members of the proposed class, including: whether § 265 authorizes expulsions; whether the Title 42 Process violates the immigration statutes; and whether the promulgation of the Title 42 Process satisfied the APA’s requirements. Plaintiff and proposed class members also share a common core of facts: all are minors who came (or will come) to the United States unaccompanied and were (or will be) subsequently taken into DHS custody; all have been (or will be) subjected to the Title 42 Process; and none have been afforded the protections provided under the immigration laws, including the requirement that unaccompanied children be transferred to ORR custody. 104. The proposed class meets the typicality requirements of Rule 23(a)(3), because the claims of the representative Plaintiff are typical of the claims of the class. Plaintiff is an unaccompanied child who came to the border and was subjected to the Title 42 Process and threatened with swift expulsion, without being afforded any of the statutory protections he should have received. 105. The proposed class meets the adequacy requirements of Rule 23(a)(4). The representative Plaintiff seeks the same relief as the other members of the class—among other things, an order declaring the Title 42 Process unlawful as applied to unaccompanied children, and an injunction against the application of the Title 42 Process. In defending their rights, Plaintiff will defend the rights of all proposed class members fairly and adequately. 106. The proposed class is represented by counsel from the American Civil Liberties Union
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Foundation Immigrants’ Rights Project and other experienced attorneys. Proposed Class Counsel have extensive experience litigating class action lawsuits and other complex systemic cases in federal court on behalf of unaccompanied migrant children and other noncitizens facing deportation. 107. The proposed class also satisfies Rule 23(b)(2). Defendants have acted (or will act) on grounds generally applicable to the class by subjecting them to the Title 42 Process rather than affording them the protections of the immigration laws. Injunctive and declaratory relief is therefore appropriate with respect to the class as a whole.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF (VIOLATION OF TVPRA, 8 U.S.C. § 1232, AND ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §§ 706(1), 706(2)(A)) 108. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 109. The APA provides that courts “shall . . . hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA also provides relief for a failure to act: “The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). 110. The TVPRA, 8 U.S.C. § 1232, includes mandatory requirements for the processing, custody, release, and removal of unaccompanied children. Defendants’ subjection of Plaintiff to the Title 42 Process violates the statute in numerous ways, including that he has been deprived of certain procedural safeguards concerning his right to remain in the United States; and that he has been deprived of numerous safeguards designed to ensure his safety and proper care. 111. Defendants’ subjection of Plaintiff to the Title 42 Process violates the TVPRA. 112. As a result, Defendants’ application of the Title 42 Process and regulation to Plaintiff is
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contrary to law. See 5 U.S.C. § 706(2)(A). 113. Moreover, by refusing to grant Plaintiff the statutory protections to which the TVPRA entitles him, Defendants have withheld and unreasonably delayed actions mandated by the statute. 5 U.S.C. § 706(1).
SECOND CLAIM FOR RELIEF (ULTRA VIRES, VIOLATION OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C.
265, AND THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706(2)(A)) 114. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 115. Title 42 of the U.S. Code does not authorize the expulsion of noncitizens from the United States. 116. Title 42 of the U.S. Code also does not authorize the expulsion of children from the United States without affording them the protections of the TVPRA or other statutory protections afforded under the INA. As a result, the application of the Title 42 Process to Plaintiff, which will result in his expulsion from the United States, is contrary to law. See 5 U.S.C. § 706(2)(A). 117. The Title 42 Process which was purportedly established pursuant to the authority of 42 U.S.C. § 265, was not authorized by that provision and is ultra vires. 118. The application of the Title 42 Process to Plaintiff is contrary to law. See 5 U.S.C. § 706(2)(A).
THIRD CLAIM FOR RELIEF (VIOLATION OF 8 U.S.C. § 1231(b)(3), WITHHOLDING OF REMOVAL,
AND ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §§ 706(1), 706(2)(A))
119. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 120. The “withholding of removal” statute, INA § 241(b)(3), codified at 8 U.S.C. § 1231(b)(3), bars the removal of an individual to a country where it is more likely than not that he would face
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persecution. 121. Only an immigration judge can determine whether a minor faces a risk of persecution and is entitled to withholding of removal after full removal proceedings in immigration court. 8 C.F.R. § 1208.16(a). 122. Defendants applied the Title 42 Process and regulation to Plaintiff without any of these required safeguards. 123. Application of the Title 42 Process and regulation to Plaintiff therefore violated 8 U.S.C. § 1231(b)(3), and its implementing regulations. 124. As a result, Defendants’ actions against Plaintiff are contrary to law. See 5 U.S.C. § 706(2)(A). 125. In addition, by refusing to grant Plaintiff the procedures mandated by 8 U.S.C. § 1231(b)(3), and its implementing regulations, Defendants have withheld and unreasonably delayed actions mandated by the statute. 5 U.S.C. § 706(1).
FOURTH CLAIM FOR RELIEF (ASYLUM: VIOLATION OF 8 U.S.C. § 1108(a), AND ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. §§ 706(1), 706(2)(A)) 126. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 127. The INA provides, with certain exceptions, 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 and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section . . . .” 8 U.S.C. § 1158(a)(1). 128. Defendants’ application of the Title 42 Process to Plaintiff has prevented him from applying for asylum in accordance with 8 U.S.C. § 1158(a)(1), and was therefore contrary to law.
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See 5 U.S.C. § 706(2)(A). 129. In addition, by refusing to grant Plaintiff the meaningful opportunity to apply for asylum to which his is entitled, Defendants have withheld and unreasonably delayed actions mandated by the statute. 5 U.S.C. § 706(1).
FIFTH CLAIM FOR RELIEF (VIOLATION OF THE FOREIGN AFFAIRS REFORM AND RESTRUCTURING ACT
OF 1998, CODIFIED AT 8 U.S.C. § 1231 NOTE, AND ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §§ 706(1), 706(2)(A))
130. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 131. FARRA prohibits the government from returning a noncitizen to a country where it is more likely than not that he would face torture. 132. Pursuant to regulation, only an immigration judge, after full removal proceedings in immigration court, can determine whether a minor faces a risk of torture if removed from the United States. 8 C.F.R. § 1208.16(a). 133. Defendants applied the Title 42 Process and regulation to Plaintiff, to provide for his summary expulsion without placing them into full removal proceedings. 134. The application of the Title 42 Process to Plaintiff therefore violated § 1231(b)(3), FARRA, and their implementing regulations. 135. Defendants’ actions were contrary to law. See 5 U.S.C. § 706(2)(A). 136. In addition, by refusing to grant Plaintiff access to full removal proceedings, Defendants have withheld and unreasonably delayed actions mandated by the statute. 5 U.S.C. § 706(1).
SIXTH CLAIM FOR RELIEF (VIOLATION OF 8 U.S.C. § 1101, ET SEQ., AND ADMINISTRATIVE PROCEDURE
ACT, 5 U.S.C. §§ 706(1), 706(2)(A)) 137. All of the foregoing allegations are repeated and realleged as if fully set forth herein.
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138. The INA, 8 U.S.C. § 1101, et seq., sets out the sole mechanisms established by Congress for the removal of noncitizens. 139. The INA provides that removal proceedings before an immigration judge under 8 U.S.C. § 1229a is “the sole and exclusive procedure” by which the government may determine whether to remove an individual, “[u]nless otherwise specified” in the INA. 8 U.S.C. § 1229a(a)(3). 140. The Title 42 Process creates an alternative removal mechanism. The Title 42 Process purports to operate outside of the immigration laws set forth by Congress in Title 8. 141. Because the Title 42 Process provides for the expulsion of Plaintiff without the procedures specified in the INA, it violates 8 U.S.C. § 1229a and the INA. 142. As a result, Defendants’ actions against Plaintiff were contrary to law. See 5 U.S.C. § 706(2)(A). 143. In addition, by refusing to grant Plaintiff access to the procedures specified in the INA, Defendants have withheld and unreasonably delayed actions mandated by the statute. 5 U.S.C. § 706(1).
SEVENTH CLAIM FOR RELIEF (VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706(2)(A)) 144. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 145. Defendants’ actions are arbitrary, capricious, and contrary to law. Defendants have not articulated a reasoned explanation for their decision to apply the Title 42 Process to unaccompanied children; failed to consider relevant factors in applying the Title 42 process to them, including their statutory protections as unaccompanied children and their fear of persecution and torture in their home countries; relied on factors Congress did not intend to be considered; failed to consider reasonable alternatives that were less restrictive; and offered no sufficient explanation for their decision to expel them from the country.
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146. Plaintiff’s subjection to the Title 42 Process is arbitrary, capricious, and contrary to law because it also departs from the agency’s existing policies for the processing, care, custody, and removal of unaccompanied children, including unaccompanied minors with contagious diseases, as well as prior policies prohibiting the return of individuals who fear persecution or torture, without providing a reasoned explanation for departing from these policies.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays this Court to: a. Certify a Class of: All unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process; b. Appoint the undersigned as Class Counsel; c. Declare unlawful the Title 42 Process as applied to Plaintiff and Class Members; d. Enter an order enjoining Defendants from applying the Title 42 Process to Plaintiff and Class Members; e. Enter an order providing relief for Plaintiff and Class Members by ordering that Defendants stay their expulsion, remove them from the Title 42 Process, and to afford them the TVPRA’s statutory requirements and protections, as well as the procedures guaranteed by the INA including access to asylum, withholding of removal, CAT relief, and all other forms of relief to which they are eligible; f. Award Plaintiff’s counsel reasonable attorneys’ fees under the Equal Access to Justice Act, and any other applicable statute or regulation; and g. Grant such further relief as the Court deems just, equitable, and appropriate.
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Dated: August 14, 2020

Respectfully submitted,

Stephen B. Kang* Cody Wofsy* Morgan Russell* Adrienne Harrold* American Civil Liberties Union Foundation, Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770
Andre Segura Kathryn Huddleston Rochelle Garza Brantley Shaw Drake American Civil Liberties Union Foundation of Texas, Inc. 5225 Katy Freeway, Suite 350 Houston, Texas 77007 Tel. (713) 942-8146

/s/ Celso J. Perez_____________________ Lee Gelernt* Daniel A. Galindo* Celso J. Perez (D.C. Bar No. 1034959) American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600
Karla M. Vargas* Efren C. Olivares* Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 Tel: (956) 787-8171
Robert Silverman* Oxfam America 226 Causeway Street, Suite 500 Boston, MA 02114 Tel: (617) 482-1211

*Pro hac vice application forthcoming

Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel: (202) 457-0800
Attorneys for Plaintiff

29

 
 Case 1:20-cv-02245-EGS Document 15 Filed 08/20/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.J.E.S., A MINOR CHILD, by and through his father and Next Friend, Mario Escobar Francisco, on behalf of himself and others similarly situated,
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 20-cv-02245-EGS ) ) ) ) ) )

PLAINTIFF’S MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1, Plaintiff

hereby moves the Court to issue a classwide preliminary injunction enjoining the application of

the Title 42 Process to Plaintiff and Class Members. Pursuant to Local Civil Rule 7(m), Plaintiff

contacted counsel for the government for their position on this Motion. Government counsel

stated that Defendants oppose this Motion.

In support of this motion, Plaintiff and Class Members rely upon the attached

memorandum of points and authorities, the accompanying declarations, and the filings in this

case. A proposed order is attached.

Pursuant to Local Civil Rule 65.1(d), Plaintiff respectfully requests oral argument on this

Motion no later than 21 days after the date of this filing. As set forth in Plaintiff’s Motions for

Preliminary Injunction and for Class Certification, and the accompanying declarations, this case

involves unaccompanied children who are subject to swift expulsion pursuant to a novel

invocation of the public health provisions of Title 42 of the U.S. Code. The scheme challenged

in this case is called the “Title 42 Process.” Defendants stated in June 2020 that, as of that time,

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they had expelled approximately 2,000 unaccompanied children pursuant to the Title 42 Process. Recent reports show that more such children are expelled every day. Due to the irreparable harm faced by the children subject to the Title 42 Process, Plaintiff believes expedited consideration is warranted.

Dated: August 20, 2020

Respectfully submitted,

Stephen B. Kang* Cody Wofsy** Morgan Russell* Adrienne Harrold* American Civil Liberties Union Foundation, Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770

/s/Lee Gelernt_____________________ Lee Gelernt* Daniel A. Galindo* Omar Jadwat** Celso J. Perez (D.C. Bar No. 1034959) American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600

Andre Segura Kathryn Huddleston Rochelle Garza Brantley Shaw Drake American Civil Liberties Union Foundation of Texas, Inc. 5225 Katy Freeway, Suite 350 Houston, Texas 77007 Tel. (713) 942-8146
Karla M. Vargas*** Efren C. Olivares*** Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 Tel: (956) 787-8171

Robert Silverman*** Oxfam America Boston, MA 02115, Suite 500 Tel: (617) 482-1211
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel: (202) 457-0800
Attorneys for Plaintiff

*Admitted pro hac vice **Pro hac vice application pending ***Pro hac vice application forthcoming

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CERTIFICATE OF SERVICE Upon filing, I will cause a copy of this Motion, the supporting Memorandum of Law, and all accompanying declarations and exhibits, to be served on Defendants in this case via mail. I will also email copies of all the foregoing documents to counsel at the U.S. Department of Justice, specifically Jean Lin, Special Litigation Counsel at Jean.Lin@usdoj.gov, Bradley Craigmyle, Trial Attorney, at Bradley.T.Craigmyle@usdoj.gov, and Kevin Snell, Trial Attorney, at Kevin.Snell@usdoj.gov.
By: /s/ Lee Gelernt LEE GELERNT

Case 1:20-cv-02245-EGS Document 15-1 Filed 08/20/20 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.J.E.S., A MINOR CHILD, by and through his father and NEXT FRIEND, Mario Escobar Francisco, on behalf of himself and others similarly situated,
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 20-cv-02245-EGS ) ) ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

Case 1:20-cv-02245-EGS Document 15-1 Filed 08/20/20 Page 2 of 44
TABLE OF CONTENTS TABLE OF AUTHORITY ............................................................................................................ iii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3
A. Immigration Laws’ Protections for Unaccompanied Children ............................................ 3 B. The Immigration Laws’ Protections for Asylum Seekers .................................................... 4 C. Immigration Laws’ Treatment of Communicable Diseases................................................. 6 D. The Title 42 Process............................................................................................................. 7 E. The Proposed Class ............................................................................................................ 10 LEGAL STANDARD................................................................................................................... 11 ARGUMENT ................................................................................................................................ 12 I. THE CLASS IS LIKELY TO SUCCEED ON THE MERITS ........................................... 12
A. Section 265 Does Not Authorize Deportations At All .................................................. 13 1. The text, context, and structure of § 265 demonstrate that it does not authorize deportations.................................................................................................................... 13 2. Section 265 Was Designed To Regulate Transportation ........................................... 16
B. Section 265 Does Not Override the Immigration Laws’ Protections for Unaccompanied Children .............................................................................................................................. 22 C. Defendants’ Actions Are Arbitrary and Capricious ...................................................... 27 II. SUBJECTING UNACCOMPANIED CHILDREN TO THE TITLE 42 PROCESS HAS CAUSED AND WILL CONTINUE TO CAUSE THEM IRREPARABLE HARM ............ 29 III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST BOTH WEIGH DECIDEDLY IN FAVOR INJUNCTIVE RELIEF FOR CLASS MEMBERS .................... 32
i

Case 1:20-cv-02245-EGS Document 15-1 Filed 08/20/20 Page 3 of 44 CONCLUSION............................................................................................................................. 34
ii

Case 1:20-cv-02245-EGS Document 15-1 Filed 08/20/20 Page 4 of 44
TABLE OF AUTHORITY
Cases Air All. Houston v. EPA,
906 F.3d 1049 (D.C. Cir. 2018) ................................................................................................ 26 Brown v. GSA,
425 U.S. 820 (1976) .................................................................................................................. 26 Clark v. Martinez,
543 U.S. 371 (2005) .................................................................................................................. 15 Clinton v. City of New York,
524 U.S. 417 (1998) .................................................................................................................. 26 Damus v. Nielsen,
313 F. Supp. 3d 317 (D.D.C. 2018) ...................................................................................... 1, 11 Demjanjuk v. Holder,
563 F.3d 565 (6th Cir. 2009)..................................................................................................... 32 Dep’t of Homeland Sec. v. Regents of the Univ. of California,
140 S. Ct. 1891 (2020) .............................................................................................................. 27 Devitri v. Cronen,
289 F. Supp. 3d 287 (D. Mass. 2018) ....................................................................................... 32 Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry
Dock Co., 514 U.S. 122 (1995) .................................................................................................................. 22 East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) ........................................................................................................ 25
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .................................................................................................................. 28
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ...................................................................................................... 25, 26, 27
Fong Yue Ting v. United States, 149 U.S. 698 (1893) .................................................................................................................. 14
Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020) ............................................................................................ 28, 31
Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) ............................................................................................ 31
Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638 (D.C. Cir. 2000) .................................................................................................. 26
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Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020)..................................................................................................... 5
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) .................................................................................................................... 5
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .................................................................................................................... 5
INS v. Stevic, 467 U.S. 407 (1984) .................................................................................................................... 5
J.B.B.C. v. Wolf, No. 20-cv-1509, (D.D.C. June 24, 2020) .................................................................................... 2
J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019) ........................................................................................ 1, 3, 11
League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ...................................................................................................... 31
Merck & Co. v. U.S. Dep’t of Health & Human Servs., 962 F.3d 531 (D.C. Cir. 2020) ...................................................................................... 15, 16, 22
Michigan v. EPA, 576 U.S. 743 (2015) .................................................................................................................. 27
Mori v. Dep’t of the Navy, 917 F. Supp. 2d 60 (D.D.C. 2013) ...................................................................................... 27, 28
Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Insc. Co., 463 U.S. 29 (1983) .............................................................................................................. 28, 29
Nasrallah v. Barr, 140 S. Ct. 1683 (2020) .............................................................................................................. 18
Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102 (D.C. Cir. 2019) .......................................................................................... 28, 29
Negusie v. Holder, 555 U.S. 511 (2009) .................................................................................................................... 6
Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................................ 11, 32
Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988).......................................................................................... 32
Padilla v. Kentucky, 559 U.S. 356 (2010) .................................................................................................................. 14
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) ................................................................................................................. 26
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Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010) .................................................................................................. 11
Trump v. Hawaii, 138 S. Ct. 2392 (2018) .............................................................................................................. 25
United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012)............................................................................................... 26, 27
Util. Air Reg. Grp v. EPA, 573 U.S. 302 (2014) ............................................................................................................ 13, 14
Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936) ...................................................................................................................... 14
Walsh v. Preston, 109 U.S. 297 (1883) .................................................................................................................. 17
Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018) .............................................................................................................. 15
Statutes and Legislative History 6 U.S.C. § 279(a) .......................................................................................................................... 23 6 U.S.C. § 279(b)(1)(B) ............................................................................................................ 3, 23 8 U.S.C. § 1158............................................................................................................................... 4 8 U.S.C. § 1158(a)(1)................................................................................................................ 4, 24 8 U.S.C. § 1158(a)(2)(C) ................................................................................................................ 4 8 U.S.C. § 1158(a)(2)(E)....................................................................................................... 4, 5, 24 8 U.S.C. § 1158(b)(2)(A)(i) ............................................................................................................ 4 8 U.S.C. § 1158(b)(2)(A)(ii) ........................................................................................................... 4 8 U.S.C. § 1158(b)(2)(A)(iii) .......................................................................................................... 4 8 U.S.C. § 1158(b)(2)(A)(iv) .......................................................................................................... 4 8 U.S.C. § 1158(b)(2)(A)(v) ........................................................................................................... 4 8 U.S.C. § 1158(b)(2)(A)(vi) .......................................................................................................... 4 8 U.S.C. § 1158(b)(3)(C) .......................................................................................................... 5, 24 8 U.S.C. § 1182(a)(1)................................................................................................................ 6, 15 8 U.S.C. § 1182(a)(1)(i) .................................................................................................................. 6 8 U.S.C. § 1182(f)......................................................................................................................... 25 8 U.S.C. § 1222............................................................................................................................. 15
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8 U.S.C. § 1222(a) .......................................................................................................................... 6 8 U.S.C. § 1222(b) .......................................................................................................................... 7 8 U.S.C. § 1225(b)(2)(c) ............................................................................................................... 14 8 U.S.C. § 1229a ........................................................................................................................... 28 8 U.S.C. § 1231................................................................................................................... 6, 14, 24 8 U.S.C. § 1231(b)(3) ............................................................................................................... 5, 24 8 U.S.C. § 1231(b)(3)(B) ................................................................................................................ 5 8 U.S.C. § 1231(b)(3)(B)(i) ............................................................................................................ 5 8 U.S.C. § 1231(b)(3)(B)(ii) ........................................................................................................... 5 8 U.S.C. § 1231(b)(3)(B)(iii) .......................................................................................................... 5 8 U.S.C. § 1231(b)(3)(B)(iv) .......................................................................................................... 5 8 U.S.C. § 1232(a)(2)-(4)................................................................................................................ 4 8 U.S.C. § 1232(a)(2)(A) .......................................................................................................... 4, 23 8 U.S.C. § 1232(a)(2)(C) ................................................................................................................ 4 8 U.S.C. § 1232(a)(4).................................................................................................................... 23 8 U.S.C. § 1232(a)(5)...................................................................................................................... 4 8 U.S.C. § 1232(a)(5)(D)(ii) ......................................................................................................... 23 8 U.S.C. § 1232(a)(5)(D)(iii) .......................................................................................................... 4 8 U.S.C. § 1232(b)(3) ......................................................................................................... 4, 23, 33 8 U.S.C. § 1232(c)(2)-(3).......................................................................................................... 4, 23 8 U.S.C. § 1232(c)(5).................................................................................................................... 23 18 U.S.C. § 3185........................................................................................................................... 14 18 U.S.C. § 3186........................................................................................................................... 14 18 U.S.C. § 3196........................................................................................................................... 14 24 Cong. Rec. 359 (1893) ............................................................................................................. 19 24 Cong. Rec. 378 (1893) ............................................................................................................. 17 42 U.S.C. § 271............................................................................................................................. 13 42 U.S.C. § 271(a) ...................................................................................................................... 7, 8 42 U.S.C. § 265...................................................................................................................... passim 153 Cong. Rec. H14098-01, H14118 (Dec. 4, 2007) ............................................................. 23, 24
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154 Cong. Rec. S10886-01, S1086, 2008 WL 5169970 (Dec. 10, 2008)..................................... 23 Act of Feb. 15, 1893, ch. 114........................................................................................................ 17 Act of February 15, 1893, ch. 114, 27 Stat. 449, 452 ............................................................... 7, 16 Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084........................................................................ 6, 15, 18 Act of March 3, 1903, chap. 1012, §§ 8, 9, 19, 20, 21, 32 Stat. 1213 .......................................... 18 Chinese Exclusion Act of May 6, 1882, ch. 126, §§ 2, 12, 22 Stat. 58, 59, 61 ............................ 18 Foreign Affairs Reform and Restructuring Act of 1998 § 2242(a), Pub. L. No. 105-207, Div. G.
Title XXI, 112 Stat. 2681 ............................................................................................................ 6 Public Health Service Act, Pub. L. 78-410, § 362, 58 Stat. 682, 704 (1944). .......................... 7, 16 William Wilberforce, Trafficking Victims Protection Reauthorization Act of 2008,
Pub L. No. 110-457, 122 Stat. 5044 (2008), 8 U.S.C. § 1232 .................................................... 3 Other Authorities A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) ................... 22 Camilo Montoya-Galvez, As Trump pushes to reopen, U.S. continues expelling migrants at
border, citing pandemic, CBS News (June 1, 2020), https://www.cbsnews.com/news/astrump-pushes-to-reopen-u-s-officials-continue-border-expulsion-policy-citing-pandemic. .... 25 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988) ........................................................... 6 Hearing on CBP Oversight Before the U.S. Senate Committee on Homeland Security and Government Affairs (June 25, 2020), available at https://www.hsgac.senate.gov/cbp-oversightexamining-the-evolving-challenges-facing-the-agency .......................................................... 8, 9 Introduce, Webster’s Collegiate Dictionary 453 (1st ed. 1898) ................................................... 17 Letter to HHS Secretary Azar and CDC Director Redfield Signed by Leaders of Public Health Schools, Medical Schools, Hospitals, and Other U.S. Institutions, Columbia Mailman School of Public Health (May 18, 2020), https://tinyurl.com/y8q3asun............................................... 33 Twenty Days Quarantine, N.Y Times, (Sept. 2, 1892), https://www.nytimes.com/1892/09/02/archives/twenty-days-quarantine-the-government-takesdecisive-action-a.html ............................................................................................................... 21 Universal English Dictionary 1067 (John Craig ed. 1861) .......................................................... 17 U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: Guatemala, available at https://www.state.gov/wp-content/uploads/2020/02/GUATEMALA-2019-HUMAN-RIGHTSREPORT.pdf ............................................................................................................................. 31
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U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: Honduras, available at https://www.state.gov/wp-content/uploads/2020/02/ HONDURAS-2019-HUMAN-RIGHTSREPORT.pdf ............................................................................................................................. 31
U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: El Salvador, available at https://www.state.gov/wp-content/uploads/2020/02/EL-SALVADOR-2019-HUMANRIGHTS-REPORT.pdf ............................................................................................................. 31
Regulations and Orders 42 C.F.R. § 71.40(a)........................................................................................................................ 8 8 C.F.R. § 1208.16(a).................................................................................................................. 5, 6 8 C.F.R. § 1208.16-.18.................................................................................................................... 6 70 Fed. Reg. 71,891 (Nov. 30, 2005)............................................................................................ 20 80 Fed. Reg. 16,400 (Mar. 27, 2015)............................................................................................ 20 85 Fed. Reg. 7874 (Feb. 12, 2020) ............................................................................................... 20 85 Fed. Reg. 17067 (Mar. 26, 2020)............................................................................................. 33 Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service
Act, 85 Fed. Reg. 31,503 (May 26, 2020) ...................................................................................... 7, 8 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. 16,559 (Mar. 24, 2020) ...................................................................................... 7, 8 Control of Communicable Diseases, Fed. Reg. 54230 (Aug. 15, 2016) .............................................................................................. 20 Extension of Order Under Sections 362 and 365 of the Public Health Service Act, 85 Fed. Reg. 22,424 (Apr. 22, 2020) ...................................................................................... 7, 8 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. 17,060 (Mar. 26, 2020) ...................................................................................... 7, 8 Security Bars and Processing, 85 Fed. Reg. 41,201 (July 9, 2020) ............................................................................................. 5
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INTRODUCTION Plaintiff P.J.E.S. is a 16-year-old boy from Guatemala who fled to the United States by himself (and so is deemed by statute an “unaccompanied minor”) and was apprehended by U.S. Customs and Border Protection (“CBP”). Under longstanding safeguards in the immigration statutes for unaccompanied children and asylum seekers, P.J.E.S. was entitled to various protections—including expeditious transfer from CBP to the care of the Office of Refugee and Resettlement (“ORR”), release to his father in the United States as soon as possible, and a full hearing before an immigration judge on his asylum claim. Instead, Defendants moved to summarily deport him based on an unprecedented and unlawful Order issued by the Centers for Disease Control and Prevention (“CDC”) authorizing the expulsion of unaccompanied minors without any hearing, even where, as here, the minor has no symptoms of COVID-19. While Defendants have now agreed not to expel P.J.E.S., they have already expelled at least 2,000 unaccompanied children pursuant to the CDC Order, which is based on the government’s supposed expulsion powers under the public health provisions of Title 42. And more children face the same fate every day. Plaintiff therefore respectfully moves this Court, in conjunction with his previously filed motion for class certification, for a preliminary injunction barring the expulsion of any unaccompanied child under this new, unlawful deportation system. 1
1 Because the Named Plaintiff was subjected to the Title 42 Process when the class complaint and class certification motion were filed, the Court can certify the class and issue class relief. See J.D. v. Azar, 925 F.3d 1291, 1311 (D.C. Cir. 2019). Plaintiff respectfully requests the Court to resolve both the pending Motion for Class Certification and this Motion together. See ECF No. 2 (Motion for Class Certification); see also Damus v. Nielsen, 313 F. Supp. 3d 317, 328-35 (D.D.C. 2018) (explaining that plaintiffs “need only provisional class certification in order for the Court to grant their preliminary injunction,” and describing standards that govern provisional class certification).
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The government’s new Title 42 expulsion process, based on a new regulation, several iterations of the CDC Order, and an implementation memo (hereafter collectively the “Title 42 Process”), is patently unlawful. Judge Nichols in this District has already found the Process likely is unlawful in the only ruling thus far on the issue. See Kang Decl., ECF No. 2-2, Ex. D, (Transcript of June 24, 2020 Preliminary Injunction Hearing and Oral Ruling) (hereinafter “J.B.B.C. PI Ruling”); Order, J.B.B.C. v. Wolf, No. 20-cv-1509, (D.D.C. June 24, 2020), ECF No. 38.
Judge Nichols’s decision is correct, for at least two reasons. First, Title 42 does not authorize deportations at all. Rather, it authorizes testing, and in extreme cases, detention and quarantine. In short, Title 42 provides for public health measures. It is not a deportation statute. Second, even assuming that Title 42 somehow could be construed to authorize deportations of some noncitizens, it does not override later-enacted statutes protecting children and those seeking protection. Indeed, Congress specifically addressed communicable diseases in the immigration laws. Those laws allow the government to bar entry of some individuals with communicable diseases, but it is well established that unaccompanied children and those seeking protection must be provided the protections to which they are entitled, and may not be automatically expelled even if they actually have a communicable disease.
At bottom, this is a separation of powers case. The Administration has circumvented the process created by Congress to deal with unaccompanied minors, those seeking protection and those with communicable diseases. And, because of the government’s unlawful actions, unaccompanied children are suffering and will continue to suffer irreparable harm. The Court should therefore grant provisional class certification and a preliminary injunction prohibiting Defendants from subjecting unaccompanied children to the Title 42 Process.
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BACKGROUND A. Immigration Laws’ Protections for Unaccompanied Children
Congress has carefully and repeatedly worked to ensure that unaccompanied children are afforded unique, mandatory, and protective procedures when they face deportation.
Specifically, two laws guarantee the children’s proper care and facilitate their efforts to seek humanitarian protection. First, in 2002, Congress included provisions in the Homeland Security Act (“HSA”) to “ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.” 6 U.S.C. § 279(b)(1)(B). Through the HSA, Congress vested responsibility for the care of unaccompanied children, including the provision of housing and access to legal services to pursue claims for immigration relief, in the Office of Refugee Resettlement (“ORR”), a component of the Department of Health and Human Services (“HHS”). ORR had demonstrated experience working with vulnerable immigrants and refugees, and thus more suitable to oversee the care of unaccompanied children than immigration enforcement authorities.
Second, in 2008, Congress enacted the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which strengthened those protections by creating specific mechanisms for processing the claims of unaccompanied children who had claims for relief from removal. Among those protections was that certain unaccompanied children, like Plaintiff here, should be swiftly referred to ORR, which would then take responsibility for their care, and release them to family members or other suitable sponsors in the United States. See J.D. v. Azar, 925 F.3d 1291, 1301-02 (D.C. Cir. 2019) (describing TVPRA statutory scheme and ORR shelter system).
Thus, Congress has prescribed a careful and comprehensive set of directions to federal agencies for how unaccompanied children should be processed and cared for upon their
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apprehension. See, e.g., 8 U.S.C. § 1232(a)(2)(C), (a)(5), (c)(2)-(3). Congress has also set forth specific instructions concerning the procedures Defendants must follow before removing unaccompanied children.2 See, e.g., 8 U.S.C. § 1232(a)(2)(A), (a)(5).
B. The Immigration Laws’ Protections for Asylum Seekers More generally, Congress also has proscribed longstanding protections for noncitizens,
including children, seeking protection from persecution and torture. First, the asylum statute, 8 U.S.C. § 1158, provides that any noncitizen in the United States has a right to apply for asylum, regardless of their status. See 8 U.S.C. § 1158(a)(1) (providing 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”). The asylum statute provides a narrow list of bars to asylum., none of which apply here.3 Moreover, Congress expressed a special concern with expanding access to asylum for unaccompanied children by, e.g., exempting them from the one-year deadline that ordinarily applies to asylum applications and preventing their removal to a “safe third country,” id. 8 U.S.C. § 1158(a)(2)(E),
2 For children from “noncontiguous” countries, like Plaintiff P.J.E.S., Congress directed that such children be expeditiously transferred to ORR custody within 72 hours. 8 U.S.C. § 1232(b)(3). For children from contiguous countries, i.e. Canada and Mexico, Defendants may conduct a screening for them prior to transfer to ORR. Id. § 1232(a)(2)-(4). Children in ORR care cannot be deported via fast-track proceedings, and instead must receive full removal proceedings before an immigration judge, along with other statutory protections. Id. § 1232(a)(5)(D)(iii). The Title 42 process does not comply with the TVPRA’s mandates. 3 The statute makes asylum unavailable to an applicant who, inter alia, previously applied for and was denied asylum, id. § 1158(a)(2)(C) (previous denial bar); engaged in persecution or terrorist activities, id. § 1158(b)(2)(A)(i) (persecution of others bar); id. at § 1158(b)(2)(A)(v) (terrorist bar); id. § 1158(b)(2)(A)(iv) (national security bar); has committed certain crimes, id. §§ 1158(b)(2)(A)(ii) (particularly serious crime bar), 1158(b)(2)(A)(iii) (serious non-political crime bar); and who “was firmly resettled in another country prior to arriving in the United States,” id. § 1158(b)(2)(A)(vi) (firm settlement bar).
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and providing them the opportunity to apply for asylum in the first instance before an asylum officer in a non-adversarial setting, id. § 1158(b)(3)(C).
Second, the withholding of removal statute, 8 U.S.C. § 1231(b)(3), provides that a noncitizen “may not” be removed to a country where their “life or freedom” would be threatened based on a protected ground. A grant of withholding is mandatory if the individual meets the statutory criteria. INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999). Congress enacted this statute to “conform[] it to the language of Article 33 [of the 1951 U.N. Convention of Refugees],” INS v. Stevic, 467 U.S. 407, 421 (1984), in several respects, including by making withholding “mandatory” where the eligibility criteria are satisfied, INS v. Cardoza-Fonseca, 480 U.S. 421, 440 n.25 (1987), and by giving it broad application where the government seeks to return a noncitizen to a country where he fears persecution, see Innovation Law Lab v. Wolf, 951 F.3d 1073, 1089 (9th Cir. 2020). Congress again outlined specific and narrow bars to withholding of removal; none apply here.4 Notably, moreover, only an immigration judge can determine whether a minor faces a risk of persecution and is entitled to withholding of removal after full removal proceedings in immigration court. 8 C.F.R. § 1208.16(a).
Third, protections under Convention Against Torture (“CAT”) prohibit returning a noncitizen to a country where it is more likely than not that he would face torture. Article 3 of
4 A withholding applicant who assisted in Nazi persecution is barred from withholding. 8 U.S.C. § 1231(b)(3)(B). The other bars address persecutors, id. § 1231(b)(3)(B)(i); particularly serious crimes, id. § 1231(b)(3)(B)(ii); serious non-political crimes, id. § 1231(b)(3)(B)(iii); and security and terrorism, id. § 1231(b)(3)(B)(iv).
The Department of Homeland Security recently issued a notice of proposed rulemaking for a rule providing, among other things, that the national security bars to asylum and withholding of removal would “apply in the context of public health emergencies related to the possible threat of introduction or further spread of international pandemics into the United States.” Security Bars and Processing, 85 Fed. Reg. 41,201 (July 9, 2020). This proposed rule has not gone into effect and is not at issue in this case.
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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, at 20 (1988). Congress subsequently implemented Article 3 of CAT. See Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”) § 2242(a), Pub. L. No. 105-207, Div. G. Title XXI, 112 Stat. 2681 (codified at 8 U.S.C. § 1231 note); 8 C.F.R. § 1208.16-.18 (implementing regulations). There are no bars to eligibility for CAT protection. See, e.g., Negusie v. Holder, 555 U.S. 511, 514 (2009). As with withholding, only an immigration judge, after full removal proceedings in immigration court, can determine whether a minor faces a risk of torture if removed from the United States. 8 C.F.R. § 1208.16(a).
C. Immigration Laws’ Treatment of Communicable Diseases Congress has specially addressed communicable diseases in the immigration laws. From
the earliest days of immigration regulation, Congress has explicitly authorized the deportation of individuals based on public health concerns. See Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084, 1085. Similar statutes exist today. There are several “[h]ealth-related grounds” of inadmissibility that authorize the deportation of noncitizens based on specified public health concerns, 8 U.S.C. § 1182(a)(1), including if a noncitizen is determined to have “a communicable disease of public health significance,” id. § 1182(a)(1)(i). Immigration statutes also provide for medical examination and detention as part of immigration processing. See id. § 1222(a) (authorizing detention of arriving noncitizens who might have a communicable disease or is “coming from a country or have embarked at a place where any of such diseases are prevalent or epidemic,” but only “for a sufficient time to . . . subject [them] to observation and an
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examination”); id. § 1222(b) (authorizing physical and mental examination of arriving
noncitizens). But these statutes do not permit the summary deportation of children in violation
of the TVPRA, or deportation without a screening for persecution or torture.
D. The Title 42 Process
Announced by the President on March 20, 2020, the Title 42 Process is a new shadow
immigration system purportedly established under the government’s public health powers
codified in Title 42 of the U.S. Code. Specifically, in a series of agency documents, the CDC
has invoked 42 U.S.C. § 265 to bar and expel noncitizens who arrive at the border or enter the country without documents.5
Section 265 of Title 42 was first enacted in 1893 and was later reenacted in substantially
the same language in the Public Health Service Act of 1944. Act of February 15, 1893, § 7, ch.
114, 27 Stat. 449, 452; Public Health Service Act, Pub. L. 78-410, § 362, 58 Stat. 682, 704
(1944). It provides in relevant part that the Surgeon General may “prohibit . . . the introduction
of persons or property” from designated places where “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.”6 42 U.S.C. § 265. The penalties for violating § 265 include “a
5 See 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. 16,559 (Mar. 24, 2020) (effective date Mar. 20, 2020); 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. 17,060 (Mar. 26, 2020) (effective date Mar. 20, 2020); Extension of Order Under Sections 362 and 365 of the Public Health Service Act, 85 Fed. Reg. 22,424 (Apr. 22, 2020) (effective date Apr. 20, 2020); Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act, 85 Fed. Reg. 31,503 (May 26, 2020) (effective date May 21, 2020); U.S. Customs and Border Protection and U.S. Border Patrol “Operation Capio” Memo [hereinafter “CBP Memo”], see Decl. of Adrienne Harrold (“Harrold Decl.”), Ex. E. 6 This authority of the Surgeon General has been transferred to HHS and delegated to the CDC. See 85 Fed. Reg. 16,559, 16,560 n.1 (explaining reorganizations and transfers of authority).
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fine of not more than $1,000 or . . . imprisonment for not more than one year, or both.” Id. § 271(a). Deportation is not an available penalty. See id.
Shortly after the President’s announcement, the CDC published an interim final rule providing that the CDC may prohibit the “introduction into the United States of persons” from foreign countries. 85 Fed. Reg. 16,559, 16,563; see 42 C.F.R. § 71.40(a). Pursuant to this new regulation, the CDC issued an Order to forcibly return asylum seekers back to the country from which they entered, their home country, or another location. See 85 Fed. Reg. 17,060, 17,067. The initial March 20 Order, which was set to expire in 30 days, was extended for an additional 30 days on April 20, 85 Fed. Reg. 22,424, and then extended indefinitely on May 20, 85 Fed. Reg. 31,503.
On April 2, 2020, CBP issued a memorandum describing the agency’s implementation of the Title 42 Process, an effort it calls “Operation Capio.” See CBP Memo, Harrold Decl., Ex. E. The CBP Memo clarifies that the only humanitarian protection provided under the Title 42 Process is limited to an inadequate CAT screening, and does not include screenings for persecution. CBP Memo at 4. The CAT screenings, moreover, are not conducted by immigration judges, and lawyers report that even these limited CAT screenings are not uniformly undertaken, and when they are, they lack the most rudimentary procedural safeguards. See Declaration of Linda Corchado (“Corchado Decl.”), ¶¶ 13-14; Declaration of Lisa Frydman (“Frydman Decl.”), ¶¶ 32; Declaration of Taylor Levy (“Levy Decl.”), ¶ 6
CBP Chief Operating Officer Mark Morgan testified on June 25, 2020, that over two thousand unaccompanied children had been summarily deported under the Title 42 as of that date. See Hearing on CBP Oversight Before the U.S. Senate Committee on Homeland Security and Government Affairs 1:10:09 (June 25, 2020), https://www.hsgac.senate.gov/cbp-oversight-
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examining-the-evolving-challenges-facing-the-agency. Unaccompanied children subject to the Title 42 Process regularly spend multiple days in hotels or CBP facilities while waiting for deportation flights. See Interim Report on the Use of Temporary Housing for Minors and Families Under Title 42 by Independent Monitor, ECF No. 873 at 8, Flores v. Barr, No. 85-cv04544 (C.D. Cal July 22, 2020) [hereinafter “Monitor Report”], Harrold Decl., Ex. H; see id. at 11 (describing an average of 4 to 5 days, and one child held in a hotel for 11 days). These detention locations are not made public. Frydman Decl., ¶ 31; Corchado Decl., ¶¶ 5-8; Levy Decl., ¶ 5. While children are sometimes allowed to call parents or other relatives, DHS officers are usually on the line during those calls, and often prevent the children from disclosing any information concerning their locations. Levy Decl., ¶ 5; Corchado Decl., ¶¶ 7, 10.
Defendants’ court filings, news reports, and Congressional testimony state that Defendants test all or “virtually all” children in its care for COVID-19 before expulsion, often as a condition of their expulsion agreements with the receiving countries. See Dara Lind & Lomi Kriel, ICE Is Making Sure Migrant Kids Don’t Have COVID-19—Then Expelling Them to ‘Prevent the Spread’ of COVID-19, ProPublica (Aug. 10, 2020), Harrold Decl., Ex. G.7 If the child tests positive for COVID-19, the child is quarantined in the United States; only if the child tests negative is he or she expelled under Title 42. Id.
In short, the government has implemented this Title 42 process as an alternative immigration system, ignoring the various protections for vulnerable noncitizens, including unaccompanied minors, and deporting people with no hearings, purportedly under its Title 42 authority rather than the immigration system established under Title 8 of the U.S. Code.
7 Available at https://www.propublica.org/article/ice-is-making-sure-migrant-kids-dont-havecovid-19-then-expelling-them-to-prevent-the-spread-of-covid-19
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E. The Proposed Class Plaintiff P.J.E.S. seeks provisional class certification and a preliminary injunction on
behalf of a proposed class of unaccompanied children subjected to the unlawful Title 42 Process, defined as:
All unaccompanied immigrant children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process. See ECF No. 2-1 (Plaintiff’s Memorandum in Support of Class Certification). There are hundreds of unaccompanied children subjected to the Title 42 Process every month. See id. Plaintiff’s counsel here, and immigration lawyers who work with unaccompanied children, have collectively advocated for dozens of unaccompanied children facing expulsion under Title 42, but those dozens comprise only a small fraction of the total number of unaccompanied children expelled every month without contacting any lawyers or advocates. See Kang Decl., ECF No. 22, ¶¶ 2-12 & Exs. A-C. P.J.E.S.’s story is emblematic of other proposed class members’ experiences. P.J.E.S. is a 16-year-old boy from Guatemala. He comes from an indigenous Mayan family. He and his family members faced death threats for his father’s political opinions. P.J.E.S. also was threatened by gang members after he refused to join them. He was ultimately forced to flee persecution and possibly death. P.J.E.S. journeyed to the United States to seek safety and to reunite with his father, who previously fled Guatemala and currently resides in the United States. See Complaint, ECF No. 1, ¶¶ 77-81; Declaration of Mario Escobar Francisco (“Escobar Francisco Decl.”), ¶¶ 2-11. On or around August 11, 2020, P.J.E.S entered the United States. CBP apprehended him and took him to a CBP facility in McAllen, Texas. At the time the Complaint and Class
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Certification Motion were filed in this case, P.J.E.S. was subject to the Title 42 Process and faced imminent expulsion back to Guatemala. Stefaniak Decl., ECF No. 2-4, ¶¶ 1-3; Escobar Francisco Decl., ¶¶ 10-11. After Plaintiff filed this lawsuit and his counsel met and conferred with government counsel, Defendants voluntarily agreed to take him out of the Title 42 Process and transfer him to ORR custody. Escobar Francisco Decl., ¶ 11.
The Proposed Class Members are often fleeing circumstances of extreme danger and harm in their home countries. Many unaccompanied children come from El Salvador, Guatemala, and Honduras, where the danger to children is well-documented. Frydman Decl., ¶¶ 5-20. Many are also eligible for various forms of humanitarian relief in the United States, which the Title 42 Process stops them from seeking.
LEGAL STANDARD On a motion for a preliminary injunction, a court must consider “whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest.” Sottera, Inc. v. FDA, 627 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks and citation omitted). The first two prongs of the inquiry (likelihood of success and irreparable harm) are the “most critical.” Nken v. Holder, 556 U.S. 418, 434 (2009). Where, as here, a plaintiff seeks preliminary relief on behalf of a proposed class, the Court may grant provisional certification of the class and issue classwide relief. See, e.g., J.D., 925 F.3d at 1305-06 (observing that district court had resolved pending motions for class certification and classwide preliminary injunction in tandem); Damus, 313 F. Supp. 3d at 328-35 (certifying class of detained asylum seekers for purpose of granting preliminary injunction).
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ARGUMENT
I. THE CLASS IS LIKELY TO SUCCEED ON THE MERITS.
The proposed class of unaccompanied children are likely to succeed on the merits of their
challenge to the government’s unprecedented process of subjecting them to rapid expulsion
under the supposed authority of 42 U.S.C. § 265. As explained below, § 265 does not authorize
deportation at all. But even if such deportations were permitted, unaccompanied children are
entitled to explicit statutory procedures and protections. Those specific, later-enacted statutes
control over whatever § 265 may authorize in general. Moreover, subjecting Class Members to
the Title 42 Process is arbitrary and capricious in violation of the Administrative Procedure Act
(“APA”).
The only court to have considered these claims thus far recently held the plaintiff in that
case had demonstrated likelihood of success on the merits. Specifically, Judge Nichols held in
an oral ruling that:
In my view, the plaintiff is likely to succeed on the question of whether 42 U.S.C. 265 grants the director of the CDC the power the government articulates here for three related reasons. The first is that the statute authorizes the director of the CDC to prohibit the introduction of persons and property by its plain terms. There’s a serious question about whether that power includes the power also to remove or exclude persons who are already present in the United States. There are other provisions, obviously, in the immigration statutes that reference the power to return or to remove. The fact that Congress did not use those terms here, I think, is – suggests at a minimum that the power to remove is not granted by section 265.
Even if the power to remove were read [into] section 265, the plaintiff has likelihood of success because the provision, in the Court’s view, should be harmonized, to the maximum extent possible, with immigration statutes, including those already referenced that grant special protections to minors and also those immigration statutes that deal with communicable diseases and quarantines.
. . . The Court, in addition, does not believe that the CDC director is likely entitled to Chevron deference; whereas, here the provision at issue, 42 U.S. Code 265, needs to also be read in light of statutes that the CDC director quite plainly has no special expertise regarding, and also whereas, here the order does very little by way of an
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analysis of what exactly the power to prohibit the introduction of persons and property means. J.B.B.C. PI Ruling, Kang Decl., ECF No. 2-2, Ex. D at 49-51. A. Section 265 Does Not Authorize Deportations At All. The Title 42 Process has been created under the purported authority of 42 U.S.C. § 265, a provision that has lain dormant and largely forgotten in the U.S. Code for over a hundred years. Defendants claim to have discovered in this statute a source of unlimited authority to execute summary deportations as they see fit, without regard for the carefully crafted policy judgments of the Nation’s immigration laws. But when an agency claims to discover “an unheralded power” lying dormant “in a long-extant statute,” courts “typically greet its announcement with a measure of skepticism.” Util. Air Reg. Grp v. EPA, 573 U.S. 302, 324 (2014). And, indeed, this novel, sweeping assertion of Executive dominance in the realm of immigration exceeds the power granted by § 265. Nothing in § 265, or Title 42 more generally, purports to authorize any deportations (much less deportations in violation of the specific protections described below, infra Section I.B).
1. The text, context, and structure of § 265 demonstrate that it does not authorize deportations.
Section 265 authorizes the CDC to prohibit the “introduction of persons” under certain circumstances. It says nothing about any power to physically remove people from the United States. Nor does a neighboring provision laying out the “penalties” for violation of “any regulation prescribed” under § 265 make any mention of such expulsion authority. See 42 U.S.C. § 271. Instead, § 271 provides for fines and imprisonment of individuals for violation of public health regulations. Nowhere in Title 42 does any statute mention the newly asserted
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power to deport, in the name of public health, independent of Congress’s carefully reticulated immigration scheme.
That silence speaks volumes. The Supreme Court has “long recognized that deportation is a particularly severe ‘penalty.’” Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)). Thus, the extreme exercise of governmental power involved in physically removing a person from the country is one that must be granted by Congress, as “the Constitution creates no executive prerogative to dispose of the liberty of the individual.” Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 9 (1936) (holding that extradition power “does not exist save as it is given by act of Congress” or a treaty).
Such powers of physical removal from the country—whether called deportation, removal, extradition, or expulsion—“must be affirmatively granted” by Congress. Id. at 12 (emphasis added) (rejecting argument that power to extradite U.S. citizens could be implied from provision stating that United States was not bound to extradite them). Accordingly, where Congress seeks to authorize that extraordinary physical control, it does so in explicit terms. See, e.g., 8 U.S.C. § 1231 (immigration removals); id. § 1225(b)(2)(c) (“may return the alien” to contiguous country); 18 U.S.C. §§ 3185, 3186, 3196 (extradition authority). Courts do not—and, given the gravity of the asserted power, must not—lightly read an expulsion power into statutes that do not explicitly grant it. Valentine, 299 U.S. at 12; cf. 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.”) (internal quotation marks omitted). Nowhere in Title 42 has Congress granted that power.
That is not to say that Congress has ignored public health considerations in crafting immigration policy. To the contrary, from the earliest days of immigration regulation—
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predating the 1893 enactment of the predecessor to § 265—Congress has explicitly authorized the deportation of individuals based on public health concerns. See Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084, 1085. And similar statutes exist today. See 8 U.S.C. § 1182(a)(1) (“[h]ealthrelated grounds” of inadmissibility, including communicable diseases); 8 U.S.C. § 1222 (medical detention and examination as part of immigration processing). Because courts “presume differences in language like this convey differences in meaning[,]” particularly where contemporaneous statutes address related issues, Congress’s decision to grant deportation power in the immigration statutes but not in Title 42 is conclusive. See Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2071-72 (2018) (internal quotation marks omitted).
Critically, § 265, the provision on which Defendants rely for their new power, could not be read to authorize expulsions because that section refers only to “persons,” and in no way differentiates between citizens and noncitizens. If the government is correct that § 265 authorizes expulsions, it would therefore mean that Congress gave the executive branch the power to expel U.S. citizens as well as noncitizens. See Clark v. Martinez, 543 U.S. 371, 386 (2005) (rejecting “the dangerous principle that judges can give the same statutory text different meanings in different cases” even if only some applications raise constitutional concerns). It is inconceivable that Congress would seek to give the executive branch that (plainly unconstitutional) power, must less that it would do so without any explicit statutory language.8
8 Moreover, nothing in the text of § 265 would limit Defendants’ claim of an implied enforcement regime to deportation. In theory, the government could assert an implied power for even more extreme measures. See Merck & Co. v. U.S. Dep’t of Health & Human Servs., 962 F.3d 531, 540 (D.C. Cir. 2020) (rejecting agency’s “construction of the statute [which] would seem to give it unbridled power”).
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2. Section 265 Was Designed To Regulate Transportation. The omission of deportation authority from § 265 was no mistake. To the contrary, it reflects Congress’s design of that statute—as a means to stop travel from countries experiencing an outbreak of disease by regulating the transportation companies that bring people to the United States. Section 7 of the Act of February 15, 1893, ch. 114, 27 Stat. 449, 452, which became § 265 without material change in the Public Health Service Act, Pub. L. 78-410, § 362, 58 Stat. 682, 704 (1944), was designed to regulate transportation entities that brought persons and goods to the United States, and it imposed fines and imprisonment on such transportation entities if they violated a public health order. See also Harrold Decl., Ex. A (copy of 1893 Act). If an individual’s entry or presence was unlawful, the immigration system provided the sole mechanism for returning the individual to his home country. Past practice bears out this design: When § 265 was used in 1929 to combat meningitis, another deadly disease transmitted by asymptomatic carriers via airborne respiratory droplets, deportation was not authorized. It therefore makes sense that § 265 does not silently authorize a whole new deportation process, devoid of the procedural protections Congress created for noncitizens, including for those with communicable diseases. Defendants cannot now create such an unauthorized system out of whole cloth. See Merck, 962 F.3d at 536 (agencies are “bound” by Congress’s choice of “means”). a. The text of the 1893 provision demonstrates that the “means” Congress chose was the regulation of transportation, not of individual travelers, and underscores that Congress never authorized deportations. Section 7 of the 1893 Act granted the “power to prohibit, in whole or in part, the introduction of persons and property” into the country. 27 Stat. 452 (emphasis added). That term—“introduction”—meant then, as now, “‘the act of bringing into a country.’”
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Introduce, Universal English Dictionary 1067 (John Craig ed. 1861)); see also Introduce, Webster’s Collegiate Dictionary 453 (1st ed. 1898) (“[t]o lead, bring, or usher in”). As a matter of ordinary language and usage, introducing a person into a country or place is an action taken by a third party—here, the shipping company. See, e.g., Walsh v. Preston, 109 U.S. 297, 298, 314, 315 (1883) (“colonization” contract requiring party to “introduce” immigrant families into Texas was unsatisfied, where there was no evidence individuals who came “were brought to Texas by [the party];” rather, “they came and settled of their own accord”). The plain text of § 265 is thus directed not at individuals seeking to come to the United States, but rather those proposing to bring such individuals here.
b. The statutory context reinforces the plain text. The 1893 Act was shot through with provisions specifically directed at the regulation of ships. See Act of Feb. 15, 1893, ch. 114, § 1 (unlawful for ships to enter U.S. ports from abroad except in accordance with public health regulations); § 2 (requiring ships abroad to obtain a bill of health); § 3 (authorizing, inter alia, regulation of “vessels sail[ing] from any foreign port or place”); § 4 (charging the Surgeon General with, inter alia, obtaining sanitary information about foreign ports); § 5 (issuance of regulations for, inter alia, “vessels in foreign ports,” and prohibition on vessels arriving without a bill of health); § 6 (providing for “an infected vessel” to be “remand[ed]” to quarantine station).
Critically, the 1893 Act imposed penalties only against ships—and set them high enough to deter those vessels from sailing to this country in violation of the Act. See id. § 1 ($5000.00 fine for “vessel” violating the Act); id. § 2 (same for “vessel” entering United States without bill of health); see also id. § 3 (conditioning penalties on “any vessel or owner or officer thereof” on posting of regulations in consular offices abroad); 24 Cong. Rec. 378 (raising penalties).
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Furthermore, an examination of immigration statutes in force in 1893 makes plain that Congress knew exactly how to provide for the removal of individuals. Those statutes covered those coming by ship and individually by land, and explicitly authorized deportations, separate and apart from regulations they imposed on ships involved in transporting immigrants. See, e.g., Chinese Exclusion Act of May 6, 1882, ch. 126, §§ 2, 12, 22 Stat. 58, 59, 61 (establishing penalties for vessels, and separately providing for unauthorized immigrants “to be removed . . . to the country whence [they] came”); Act of Mar. 3, 1891, ch. 551, §§ 10, 11, 26 Stat. 1084, 1086 (establishing penalties for “master, agent, consignee, or owner of” a “vessel” who violates the Act’s provisions, and separately providing for unauthorized immigrants to “be immediately sent back on the vessel by which they were brought in” and that “any alien who shall come into the United States in violation of law may be returned”); id. § 8 (providing “the Secretary of the Treasury may prescribe rules for inspection along the borders of Canada, British Columbia, and Mexico”); Act of Mar. 3, 1903, ch. 1012, §§ 8, 9, 19, 20, 21, 32 Stat. 1213 1215-16, 1218-19, 1221 (providing for noncitizens to “be immediately sent back . . . on the vessels bringing them,” “deported,” or “taken into custody and returned to the country whence he came”).
It would have been “easy enough for Congress” to include the same kind of provisions in the 1893 Act. Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). Instead, Congress imposed penalties only on those involved in transportation, and used the term “introduction” to refer to the penalty-triggering conduct of such third parties. But Congress said nothing about any power to deport individuals who came to our shores. The government nevertheless now seeks to read into the statute’s silence and implicit power to expel; but “it is not the proper role of the courts to rewrite [a law] passed by Congress and signed by the President.” Id.
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c. The legislative history of the 1893 Act further confirms what is demonstrated by the text, context, and structure: Section 7 was a regulation of transportation entities.
The 1893 Act responded to a specific public health threat—a cholera epidemic in Europe. See, e.g., 24 Cong. Rec. 359 (1893) (letter from physician explaining the “considerable” danger of an imminent cholera outbreak from Europe). A principal proponent of the 1893 Act, Senator Chandler, explained that “90 or 95 percent of the immigration into the United States comes into the city of New York, and that the most danger of cholera is to be apprehended from vessels arriving at that port.” Id. at 360. He expressed confidence that controlling travel by ship would effectively protect the country. Id. at 363 (“there will be no great danger of the introduction of cholera this year unless it comes in the steerages,” a class of ship travel).
As one of the 1893 Act’s sponsors, Senator Harris, further explained, Section 7 therefore allowed the President “to prevent the coming at all” of “vessels, passengers, crews, and cargo, which are sailing to this country.” Id. at 392. Congress expected that an invocation of Section 7 would cause shipping companies to refuse boarding, halting travel from designated locations at the source, thereby addressing the public health risk.
Indeed, when Senator Harris was asked about individuals crossing at land borders, he explained that an earlier Act providing general authority to quarantine and inspect individuals— not the new 1893 legislation—“clothes the Marine Hospital Service with ample power to protect the Mexican and Canadian borders.” Id. at 370. The new authority to regulate transportation entities was simply part of the larger framework already in place that included not just the immigration laws but also the public health quarantine powers.
d. The use of the statute since its enactment in 1893 reinforces the absence of any deportation power. To Plaintiff’s knowledge, the only time the statute has been invoked to
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prohibit the introduction of persons was in 1929, and it did not authorize deportations.9
President Hoover issued an Executive Order invoking Section 7 of the 1893 Act to restrict the
“Transportation of Passengers” from China and the Philippines because of a meningitis outbreak.
Exec. Order No. 5143 (June 21, 1929), Harrold Decl., Ex. B. The Order provided that “no
persons may be introduced directly or indirectly, by transshipment or otherwise into the United
States” except as permitted by the Treasury Secretary. The use of passive voice—“may be
introduced”—makes clear that the Order was directed to third parties, namely transportation
companies. The Treasury Department also issued associated regulations “governing the
embarkation of passengers and crew” at ports in those countries “and their transportation to United States ports.”10 The regulations further addressed how to handle vessels which arrived in
the United States when a meningitis case had occurred during the voyage, but, notably, only
authorized detention, quarantine, and testing—not deportation.
e. Finally, any suggestion that the correct interpretation of § 265 renders that statute
ineffective would be seriously mistaken. Congress vested the government with a significant
power totally separate from any need to deport individuals from the country: shutting down all
9 Most invocations of § 265 have involved regulation of goods or delegation of authority to particular officers or agencies. In addition to the 1929 use of § 265, the provision has been invoked, with additional statutory authorities, four other times to address persons. None of the four purported to authorize deportations. One addressed the Do Not Board list, a mechanism to control transportation access, and the Public Health Lookout, a means to refer individuals at ports to CDC for isolation. Criteria for Requesting Federal Travel Restrictions for Public Health Purposes, 80 Fed. Reg. 16,400 (Mar. 27, 2015). Another proposed, but unadopted, regulation repeated the language of § 265 without elaboration. Control of Communicable Diseases, 70 Fed. Reg. 71,891, 71,910 (Nov. 30, 2005). The two others addressed quarantine and information gathering. Control of Communicable Diseases, 81 Fed. Reg. 54230 (Aug. 15, 2016); Control of Communicable Diseases; Foreign Quarantine, 85 Fed. Reg. 7874 (Feb. 12, 2020). 10 Regulations Governing the Embarkation of Passengers and Crew at Ports in China and the Philippine Islands and Their Transportation to the United States Ports Prescribed in Accordance with Executive Order Approved June 21, 1929, Harrold Decl., Ex. C.
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international transportation from a particular country by regulating those who made such travel possible, the transportation companies. And, despite the age of the statute, that tool remains powerful today: § 265 permits the government to halt the vast majority of international travel by barring ships, planes, trains, and other modes of transportation from bringing people from designated places to this country.
The efficacy of that approach was clear from the beginning. The statute was passed against the backdrop of an extraordinary Executive action taken just months before, in September 1892. See U.S. Dep’t of Treasury, Quarantine Restrictions Upon Immigration to Aid in the Prevention of the Introduction of Cholera into the United States (Sept. 1, 1892), Harrold Decl., Ex. D. The Surgeon General explained that “vessels conveying” immigrants from certain countries experiencing cholera outbreaks were a “direct menace to the public health,” and ordered that “no vessel from any foreign port carrying immigrants shall be admitted” to any U.S. port “until said vessel shall have undergone” 20 days of quarantine. Id. Contemporaneous media coverage explained this step would “practically put a stop to immigration, for no steamship company will continue to transport people to this country” given the costs of quarantine. Twenty Days Quarantine, N.Y Times (Sept. 2, 1892).11 The crisis triggered significant debate among the Cabinet as to the President’s authority to take such a drastic step without clear statutory authority. See id. Shortly afterward, Congress enacted the 1893 Act granting the authority to regulate vessels to prevent the spread of disease.
Thus, while Congress’s goal was to keep out disease, the means it authorized was regulation of transportation entities, not the deportation of individuals outside of the extensive
11 https://www.nytimes.com/1892/09/02/archives/twenty-days-quarantine-the-government-takesdecisive-action-a.html
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immigration system Congress has enacted and refined over the decades. Merck, 962 F.3d at 536 (“[A]gencies 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.”) (internal quotation marks omitted). “The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the two.” Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 136 (1995); see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012) (“[A]n absent provision cannot be supplied by the courts.”).
* * * In sum, § 265 authorizes no deportations at all. Rather, it provides authority to halt transportation companies from introducing people from countries suffering an epidemic to the United States, by, for example, ship, train, and, in modern times, aircraft.
B. Section 265 Does Not Override the Immigration Laws’ Protections for Unaccompanied Children.
Even if § 265 did authorize deportation in general, the specific protections Congress enacted for unaccompanied children and those fleeing persecution prohibit the deportation of members of the putative class. Congress has carefully and repeatedly enacted special safeguards for unaccompanied children and persons fleeing persecution. These statutes contain specific exceptions from their coverage, but no exception for communicable diseases or public health crises. Section 265 must be read in conjunction with the specific protections for those groups.
1. Congress has carefully and repeatedly worked to ensure that unaccompanied children like the Class Members are afforded unique, mandatory, and protective procedures when they face deportation. See Background, Part I. Defendants have jettisoned that entire statutory scheme.
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Congress included provisions in the HSA to “ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” 6 U.S.C. § 279(b)(1)(B), vesting responsibility for the care of unaccompanied children, including the provision of housing and access to legal services to pursue claims for immigration relief, in an agency—ORR—that had demonstrated experience working with vulnerable immigrants and refugees, id. § 279(a). Congress subsequently strengthened those protections in the TVPRA by providing for important procedural safeguards before they could be removed. See Background, Part A.
Thus, Congress prescribed a careful and comprehensive set of directions to federal agencies for how unaccompanied children should be processed and cared for upon their apprehension. Among other protections, Congress required federal agencies to expeditiously transfer children from noncontiguous countries, and children from contiguous countries after an initial screening, to ORR custody. 8 U.S.C. § 1232(a)(4), 1232(b)(3). It then required ORR to provide safe and secure placements for all children in its care, and to facilitate their release to sponsors. 8 U.S.C. § 1232(c)(2)-(3). It prevented DHS from removing such children through fast-track processes applicable to adults, 8 U.S.C. § 1232(a)(2)(A), id. § 1232(a)(5)(D)(ii), and guaranteed their access to counsel, id. § 1232(c)(5). Through these provisions, Congress sought to satisfy its domestic and international obligations to protect a uniquely vulnerable set of children, who have claims for various forms of humanitarian protection. Indeed, the legislative history of the TVPRA is replete with statements describing this country’s “special obligation to ensure that [unaccompanied] children are treated humanely and fairly.” 154 Cong. Rec. S1088601, S1086, 2008 WL 5169970 (Dec. 10, 2008); see also 153 Cong. Rec. H14098-01, H14118 (Dec. 4, 2007) (discussing statute’s purpose of “provid[ing] critical immigration mechanisms to
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protect children”). Through their creation of an alternative immigration system, Defendants have circumvented the carefully-drawn scheme Congress set forth for the treatment and care of unaccompanied children.
Unaccompanied children also have a right to seek protection from persecution and torture, as Congress has long prescribed. As explained above, children—like others seeking protection—are entitled to seek asylum, withholding, and CAT protection. See 8 U.S.C. §§ 1158(a)(1), 1231(b)(3), 1231 Note. And Congress has taken steps to specially safeguard unaccompanied children’s access to humanitarian protection, exempting them from various limitations on asylum and providing them with access to a special non-adversarial proceeding. See 8 U.S.C. §§ 1158(a)(2)(E), 1158(b)(3)(C).
In short, Congress carefully crafted the statutory provisions governing asylum, withholding, and CAT protection to ensure that noncitizens within our country or at the border could seek relief from persecution. In so doing, Congress sought to satisfy its domestic and international obligations to protect those fleeing persecution and torture. And, critically, Congress enshrined procedural access to these forms of protection before a person—particularly an unaccompanied child—can be deported from the country. The Title 42 Process jettisons all those protections and safeguards, subjecting these children to summary deportation back to persecution and torture.12
12 The only humanitarian protection provided under the Title 42 Process is limited to CAT, and is totally inadequate—especially for unrepresented unaccompanied children. Noncitizens are only referred for a CAT screening if they “make an affirmative, spontaneous and reasonably believable claim that they fear being tortured in the country they are being sent back to.” CBP Memo 4 (emphasis added). This means that children must know precisely what to say when they arrive in the U.S., and may be summarily returned to the countries they fled without the government ever even asking whether they would face torture in that country.
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2. The government has refused to provide these statutory protections to unaccompanied children subject to the Title 42 Process because, in its view, the powers granted by § 265 render the entire set of legislation regarding immigration irrelevant. But whatever Title 42 authorizes in general, it cannot override the provisions of the immigration laws designed to ensure protection for unaccompanied minors and those seeking protection, even where such individuals are suspected of having a communicable disease.
Such an interpretation would violate numerous canons of statutory construction. As with all potential conflicts, the Court must read § 265 and the child protection and refugee statutes together, to make sense of all Congress’s work without discarding any of it. See 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). Thus, as Judge Bybee explained in another asylum case, “the President may not ‘override particular provisions of the INA’ through the power granted him in” 8 U.S.C. § 1182(f), despite the breadth of language in that emergency provision. East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 760 (9th Cir. 2018) (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2411 (2018)).
Unsurprisingly, this screening offers essentially no protection: As of May 27, 2020, out of thousands of expulsions under Title 42, Defendants reportedly conducted a mere 85 screening interviews for CAT, of which only four applicants passed the screening stage. Camilo MontoyaGalvez, As Trump pushes to reopen, U.S. continues expelling migrants at border, citing pandemic, CBS News (June 1, 2020), https://www.cbsnews.com/news/as-trump-pushes-toreopen-u-s-officials-continue-border-expulsion-policy-citing-pandemic. Advocates working with unaccompanied children report that children typically do not receive CAT assessments until a lawyer intervenes; until then, the child may not even be aware that such an assessment is available. See Corchado Decl., ¶¶ 13-14; Frydman Decl., ¶ 32; Levy Decl., ¶ 6.
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So too with § 265. As Judge Nichols explained in finding a likelihood of success on the merits of this claim, § 265 “should be harmonized, to the maximum extent possible, with immigration statutes, including those . . . that grant special protections to minors and also those immigration statutes that deal with communicable diseases and quarantines.” J.B.B.C. PI Ruling, Kang Decl., Ex. D at 50. Even if § 265 could be read to authorize some summary deportations (which it cannot), it must be read to accommodate Congress’s subsequent specific legislative commands. See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C. Cir. 2000) (“A broad statute when passed ‘may have a range of plausible meanings,’ but subsequent acts can narrow those meanings . . . .”) (quoting Brown & Williamson, 529 U.S. at 143).
Moreover, the specific should be read to control over the general. See, e.g., Air All. Houston v. EPA, 906 F.3d 1049, 1061 (D.C. Cir. 2018) (“[A]n agency may not circumvent specific statutory limits on its actions by relying on separate, general rulemaking authority.”). The TVPRA embodies Congress’s focus on a particularly vulnerable group of noncitizens seeking safety in this country. It is “a precisely drawn, detailed statute,” Brown v. GSA, 425 U.S. 820, 834 (1976), that comprehensively delineates what the government must do before it seeks to remove an unaccompanied child. By contrast, § 265 says nothing at all about removal; or children; or steps the government must take or may skip. The general terms of § 265 cannot be construed to bypass the specific provisions of the TVPRA. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 159 n.2 (1976) (explaining that “the more specific legislation will usually take precedence over the more general”); cf. Clinton v. City of New York, 524 U.S. 417, 443 (1998) (holding Congress may not give the President “the power to cancel portions of a duly enacted statute”). This interpretive principle has particular force where the more specific statute is the later-enacted one; that is the case here, as all the child protective and refugee statutes postdate § 265. See
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United States v. Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012) (explaining that “[w]here two statutes conflict, the later-enacted, more specific provision generally governs”). Recent Congresses have spoken clearly and explicitly regarding the required treatment of unaccompanied minors; the Executive is not at liberty to ignore those commands.
* * * For decades, Congress—fully aware that exigent circumstances might emerge—has enacted and reinforced unique protections for vulnerable children and asylum seekers, including those with communicable diseases, subject to narrow exceptions not applicable here. Congress has, moreover, specifically chosen not to erase those protections even for those with diseases, relying instead on quarantine as the proper way to balance health concerns and the safety of children and those fleeing danger. To permit Defendants to obliterate those protections would “contradict Congress’ clear intent as expressed in its more recent, [child and asylum seeker] specific legislation.” Brown & Williamson, 529 U.S. at 143. If there is to be a public health exception to those critical protections, Congress must be the Branch to enact it. C. Defendants’ Actions Are Arbitrary and Capricious. Defendants’ application of the Title 42 Process to unaccompanied children is also arbitrary and capricious for failure to “engage in ‘reasoned decisionmaking’” as the APA requires. Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1905 (2020) (quoting Michigan v. EPA, 576 U.S. 743, 750 (2015)). Specifically, Defendants have provided no reasoned explanation for their actions. Nowhere do any of the documents setting forth the Title 42 Process offer any reasoned explanation for applying the Process to unaccompanied children, including those fleeing abuse, persecution, and torture. “An agency
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action that lacks explanation is a textbook example of arbitrary and capricious action.” Mori v. Dep’t of the Navy, 917 F. Supp. 2d 60, 64 (D.D.C. 2013).
This new deportation system represents an extraordinary break from prior agency policy and practice with regard to unaccompanied children. Defendants have long recognized their mandatory obligations under the TVPRA to transfer unaccompanied minors into ORR custody and refer them to full removal proceedings under 8 U.S.C. § 1229a. As the D.C. Circuit recently reiterated, “reasoned decision-making requires that when departing from precedents or practices, an agency must offer a reason to distinguish them or explain its apparent rejection of their approach.” Grace v. Barr, 965 F.3d 883, 900 (D.C. Cir. 2020) (internal quotation marks and alterations omitted). But the CDC Orders and the promulgated regulations do not even acknowledge that the Process will be applied to unaccompanied children, much less justify the decision to begin summarily removing such children. Nor do the Orders or regulations anywhere “grapple with how the new policy affected . . . [Defendants’] statutory mandate” to protect unaccompanied children. Id. at 901 (internal quotation marks and alterations omitted). “An agency may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
Relatedly, Defendants have “entirely failed to consider . . . important aspect[s] of the problem.” Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In the Orders and regulations, Defendants are silent on the Process’s impact on unaccompanied children and those seeking protection. CDC’s reasoning does not address that it is keeping children from seeking protection and is returning them to danger, contrary to the TVPRA and protection statutes. Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1112-13 (D.C. Cir.
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2019) (finding action arbitrary and capricious where it “failed to address the problem that would be created as a result” of its conduct).
Publicly-available information concerning Defendants’ implementation of the Title 42 Process underscores its irrationality. For one, DHS selectively exempts certain noncitizens from the Title 42 Process when it chooses, without any public health-related justification for those exemptions. CBP’s Implementation Memo states that individuals with certain criminal histories must be removed from the Title 42 Process and placed into the ordinary immigration and criminal system. See CBP Memo at 3 (exempting those with certain criminal convictions as “[s]ubjects not amenable to being expelled”). Defendants cannot claim that having a prior conviction makes one less likely to transmit COVID-19, yet they choose to detain such individuals in ICE custody (presumably for lengthy periods), rather than expel them. Yet they refuse to exempt unaccompanied children. Moreover, public reports show that Defendants are testing every unaccompanied child for COVID-19 prior to expulsion, because their deportation agreements with receiving countries forbid them from expelling children who are positive for COVID-19. Harrold Decl., Ex. G (ProPublica article). It is irrational to ban children from this country because of COVID-19, but expel only those children who are free of infection.13 II. SUBJECTING UNACCOMPANIED CHILDREN TO THE TITLE 42 PROCESS
HAS CAUSED AND WILL CONTINUE TO CAUSE THEM IRREPARABLE HARM. Plaintiff P.J.E.S.’s experiences are emblematic of the experiences of the children in the Proposed Class. He is a sixteen-year-old boy of indigenous Mayan ancestry. His father was
13 The Title 42 Process is arbitrary and capricious for other reasons as well, including that it “runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43. In the interest of obtaining interim relief, Plaintiff does not rely on those other reasons in this Motion, but will do at later stages of this case, once the administrative record has been produced.
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targeted because of his political views, and had to flee Guatemala to escape threats on his life. Escobar Francisco Decl., ¶¶ 2-7. P.J.E.S. has similarly been targeted for numerous reasons. Id., ¶¶ 8-9. Once he came to the United States, he was detained for several days and was facing imminent deportation, before his immigration lawyers and undersigned counsel learned of him. See Stefaniak Decl., ECF No. 2-4, ¶ 3; Escobar Francisco Decl., ¶ 10. Only after counsel’s intervention did Defendants voluntarily take him out of the Title 42 Process and transfer him to ORR; he has since begun the process of reunifying with his father in this country. Otherwise, he would have been sent summarily back to Guatemala without any meaningful opportunity to assert his claims for relief, and where he would have faced grave harm from those he sought to escape.
The experiences of other immigration lawyers and advocates, confirmed by news reports and other public sources, demonstrate that P.J.E.S.’s story is typical. See Frydman Decl., ¶¶ 2632; Corchado Decl., ¶¶ 5-14; Levy Decl., ¶¶ 3-6; see also Kang Decl., ECF No. 2-2, ¶¶ 2-11 & Exs. A-C. Their clients are other unaccompanied children who come to the United States seeking protection. Most, if not all, of them have bona fide claims for humanitarian relief, including asylum, trafficking-related relief, or visas available to young people who have experienced abuse, abandonment, or neglect at the hands of their parents. See Frydman Decl., ¶¶ 5-20; Corchado Decl., ¶¶ 6-13; Levy Decl., ¶ 6; see also Declaration of Chris Palusky (“Palusky Decl.”), ¶ 4. When they come to this country seeking help, children are housed in unknown hotels or CBP locations, with strict limits on their access to relatives or counsel. They are then deported in a matter of days or weeks. See Monitor Report at 12, Harrold Decl., Ex. H (describing lengths of custody for children subject to Title 42); Kang Decl., ECF No. 2-2, ¶¶ 211 & Exs. A-C.
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Lawyers in the United States sometimes hear of unaccompanied children’s cases only after the child has already been expelled back to danger. They have been returned to dangerous circumstances, often with limited resources and family support, where they may be unable to avoid serious harm or even death. Frydman Decl., ¶¶ 21-25.
Moreover, many unaccompanied children in the Title 42 Process come from El Salvador, Guatemala, and Honduras, which are widely recognized as being among the most dangerous countries in the world, particularly for children. Frydman Decl., ¶¶ 5-20. The U.S. Department of State has itself acknowledged that extreme gang violence is prevalent in these countries, including homicide, torture, kidnapping, extortion, or other forms of persecution. See, e.g., U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: Guatemala at 18, 28, https://www.state.gov/wp-content/uploads/2020/02/GUATEMALA-2019-HUMAN-RIGHTSREPORT.pdf (describing that gangs coerce vulnerable children to joining them and exploit children in sex trafficking).14
These facts more than satisfy the preliminary injunction standard, which requires “only a likelihood of irreparable injury.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 8-9 (D.C. Cir. 2016) (preliminary injunction request). Numerous courts have held that similar showings suffice to show irreparable injury. See, e.g., 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) (finding fear of “domestic violence, beatings, shootings, and death in
14 See also U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: Honduras at 1-2, https://www.state.gov/wp-content/uploads/2020/02/ HONDURAS-2019-HUMANRIGHTS-REPORT.pdf (describing extreme gang violence directed at vulnerable populations, including “acts of homicide, torture, kidnapping, extortion, human trafficking, intimidation, and other threats”); U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: El Salvador at 1, https://www.state.gov/wp-content/uploads/2020/02/EL-SALVADOR-2019HUMAN-RIGHTS-REPORT.pdf (similar).
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their countries of origin” constitute irreparable injury); Demjanjuk v. Holder, 563 F.3d 565, 565 (6th Cir. 2009) (granting stay for noncitizen who asserted removal would violate CAT); Devitri v. Cronen, 289 F. Supp. 3d 287, 296–97 (D. Mass. 2018) (risk of persecution if removed is irreparable harm); Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1504–05 (C.D. Cal. 1988) (plaintiffs would suffer irreparable harm if they were summarily removed without being afforded opportunity to exercise their right to apply for asylum); see also J.B.B.C. PI Ruling, Kang Decl., ECF No. 2-2, Ex. D at 51 (Judge Nichols finding that unaccompanied child had shown “he is likely to suffer irreparable harm in the absence of an order” staying his expulsion under Title 42); And there is “a public interest in preventing aliens from being wrongfully removed . . . to countries where they are likely to face substantial harm.” Nken v. Holder, 556 U.S. 418, 436 (2009). III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST BOTH WEIGH
DECIDEDLY IN FAVOR INJUNCTIVE RELIEF FOR CLASS MEMBERS. Preventing Defendants from removing unaccompanied children until final disposition of this case would not substantially injure the government for several reasons. First, unaccompanied children referred to ORR care are typically released to sponsors under the TVPRA, which in most cases will be a parent or close relative who can ensure the child will self-quarantine as needed and will be subject to local health restrictions. Insofar as children must spend short periods in ORR’s juvenile facilities before release, that network can deal with communicable diseases. See Palusky Decl., ¶¶ 5-7; Monitor Report at 19 n.12, Harrold Decl., Ex. H. Moreover, the ORR shelter network is currently operating at a very small fraction of its total capacity, meaning that quarantine and social distancing measures are feasible in those facilities. See Kang Decl., ECF No. 2-2, Ex. B; see also Palusky Decl., ¶¶ 3-5. And again, Defendants apparently have the capacity to test all unaccompanied children in their care prior to
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expulsion. See Harrold Decl., Ex. G (ProPublica article). If so, there is no reason why they cannot do so before sending them to ORR custody, to further minimize the risk of infection in ORR facilities.
Second, contrary to the CDC Orders’ stated justifications, the Title 42 Process does not make DHS officers safer, and in fact, likely increases any potential exposure. Under the TVPRA, juveniles like Plaintiff must be transferred to ORR or a sponsor within 72 hours, see 8 U.S.C. § 1232(b)(3)—and can often be transferred much faster. Yet deporting children under Title 42 generally takes DHS longer than that, due to the need to make travel arrangements and obtain any necessary travel permissions. Monitor Report at 8, Harrold Decl., Ex. H (explaining that, under Title 42 Process, unaccompanied children “routinely spend multiple days temporarily housed in hotels”); id. at 11 (describing “[o]ne unaccompanied minor had been held in a hotel for 11 days”).
Third, public health officials have overwhelmingly noted there are numerous safety measures that can be taken to avoid the spread of COVID-19, including quarantines.15 See Declaration of Les Roberts & Stephen P. Kachur, ¶¶ 10-16. The CDC Orders do not reach a different conclusion, but note only that in the government’s view it is not worth the resources or not worth trying to safely process asylum seekers. See, e.g., 85 Fed. Reg. at 17067 (speculating that brief detention of noncitizens in Border Patrol stations would “divert [healthcare] resources away from the domestic population”). Thus, the Administration has chosen to de-prioritize those fleeing danger, even as it permits or even encourages large recreational activities (such as beach outings), air travel by tens of thousands of foreign visitors, and other events and activities.
15 Letter to HHS Secretary Azar and CDC Director Redfield Signed by Leaders of Public Health Schools, Medical Schools, Hospitals, and Other U.S. Institutions, Columbia Mailman School of Public Health (May 18, 2020), https://tinyurl.com/y8q3asun.
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CONCLUSION For these reasons, the Court should provisionally certify the proposed Class, issue a classwide preliminary injunction, and enjoin Defendants from applying the Title 42 Process to the Class.

Dated: August 20, 2020

Respectfully submitted,

Stephen B. Kang* Cody Wofsy** Morgan Russell* Adrienne Harrold* American Civil Liberties Union Foundation, Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770

/s/Lee Gelernt_____________________ Lee Gelernt* Daniel A. Galindo* Celso J. Perez (D.C. Bar No. 1034959) Omar Jadwat** American Civil Liberties Union Foundation, Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600

Andre Segura Kathryn Huddleston Rochelle Garza Brantley Shaw Drake American Civil Liberties Union Foundation of Texas, Inc. 5225 Katy Freeway, Suite 350 Houston, Texas 77007 Tel. (713) 942-8146
Karla M. Vargas*** Efren C. Olivares*** Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, Texas 78516 Tel: (956) 787-8171

Robert Silverman*** Oxfam America Boston, MA 02115, Suite 500 Tel: (617) 482-1211
Scott Michelman (D.C. Bar No. 1006945) Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel: (202) 457-0800
Attorneys for Plaintiff
*Admitted pro hac vice **Pro hac vice application pending ***Pro hac vice application forthcoming

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Case 1:20-cv-02245-EGS Document 15-1 Filed 08/20/20 Page 44 of 44 CERTIFICATE OF SERVICE
I hereby certify that on August 20, 2020, I electronically filed the foregoing document with the Clerk of the Court for the United States District Court for the District of Columbia by using the CM/ECF system. Counsel for Defendants in this case are registered CM/ECF users and service will be accomplished by the CM/ECF system.
By: /s/ Lee Gelernt__ LEE GELERNT
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 Case 1:20-cv-02245-EGS Document 30-1 Filed 08/31/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.J.E.S., A MINOR CHILD, by and through his father and NEXT FRIEND, Mario Escobar Francisco, on behalf of himself and others similarly situated,

Civil Action No. 1:20-cv-02245-EGS

Plaintiff, v.

CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,

Defendants.

BRIEF OF AMICUS CURIAE THE INTERNATIONAL REFUGEE ASSISTANCE PROJECT, INC. IN SUPPORT OF PLAINTIFF’S
MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

Dated: August 31, 2020

Kathryn Austin (D.D.C. Bar No. NY0331) Mariko Hirose (D.D.C. Bar No. NY0262) Geroline Castillo (N.Y. Bar No. 5784434)* INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza, 4th Floor New York, N.Y. 10004 Tel: (516) 296-0688
Counsel for Amicus Curiae
* Application for admission pending

Case 1:20-cv-02245-EGS Document 30-1 Filed 08/31/20 Page 2 of 21 CORPORATE DISCLOSURE STATEMENT
Pursuant to Local Civil Rule 7(o)(5) and Federal Rules of Appellate Procedure 29(a)(4)(A) and 26.1, amicus curiae submits the following corporate disclosure statement:
The International Refugee Assistance Project, Inc. is a private, non-profit organization. It has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
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TABLE OF CONTENTS INTEREST OF AMICUS CURIAE................................................................................................. 1 INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 3
I. DEFENDANTS’ EXPULSION POLICY CONTRAVENES THE TEXT OF THE REFUGEE ACT AND RELATED HUMANITARIAN PROTECTION LAWS .............. 3 A. Congress requires the Executive to follow specific procedures to identify and evaluate humanitarian protection claims ................................................................ 3 B. Congress has prohibited the Executive from blocking access to the humanitarian protection system on health-related grounds .......................................................... 5
II. DEFENDANTS’ EXPULSION POLICY CONTRAVENES CONGRESS’S INTENT ... 8 A. Congress understood our obligations to asylum seekers in stark moral terms ....... 9 B. Congress required the Executive to follow specific procedures so that the Executive would not undercut the rights of asylum seekers................................. 12
CONCLUSION............................................................................................................................. 14
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Cases

TABLE OF AUTHORITIES

Page(s)

Grace v. Barr, 965 F. 3d 883 (D.C. Cir. 2020)…………………………………………………………….....11

Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) ............................................................................................ 11

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).................................................................................................................. 10

Statutes 8 U.S.C. § 1101............................................................................................................................... 4 * 8 U.S.C. § 1158................................................................................................................ 3, 4, 6, 7 8 U.S.C. § 1159............................................................................................................................... 4 * 8 U.S.C. § 1182.................................................................................................................... 6, 7, 8 8 U.S.C. § 1222............................................................................................................................... 8 * 8 U.S.C. § 1225...................................................................................................................... 5, 14 * 8 U.S.C. § 1229a .......................................................................................................................... 4 * 8 U.S.C. § 1231.................................................................................................................... 3, 4, 6 8 U.S.C. § 1232............................................................................................................................... 5 8 U.S.C. § 1252......................................................................................................................... 4, 14 8 U.S.C. § 1427............................................................................................................................... 4 * Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a),
112 Stat. 2681 ..................................................................................................................... 11, 14 Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102................................................ 10

Regulations 8 C.F.R. § 34.5 ................................................................................................................................ 8 8 C.F.R. § 108.1 ............................................................................................................................ 12 8 C.F.R. § 208.16 ............................................................................................................................ 3
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8 C.F.R. § 208.17 ........................................................................................................................ 3, 6 8 C.F.R. § 208.30 ............................................................................................................................ 5 8 C.F.R. § 1208.16 .......................................................................................................................... 4 8 C.F.R. § 1208.17 .......................................................................................................................... 4 42 C.F.R. § 34.3 .............................................................................................................................. 8 42 C.F.R. § 71.1 .............................................................................................................................. 7 42 C.F.R. § 71.20 ............................................................................................................................ 7 42 C.F.R. § 71.36 ............................................................................................................................ 7
Rules Local Civil Rule 7 ........................................................................................................................... 1 Federal Rule of Appellate Procedure 29 ......................................................................................... 1
Agency Materials Amendment and Extension of Order Suspending Introduction of Certain Persons from Countries
Where a Communicable Disease Exists, 85 Fed. Reg. 31,503 (May 26, 2020) ......................... 5 Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999)... 12 Security Bars and Processing, 85 Fed. Reg. 41,201 (July 9, 2020)……………………………….6 USCIS Policy Manual Vol. 7, Part M, Ch. 3 (2020), available at https://www.uscis.gov/policy-
manual/volume-7-part-m-chapter-3 ............................................................................................ 7 USCIS Policy Manual Vol. 8, Part B, Ch. 3 (2020), available at https://www.uscis.gov/policy-
manual/volume-8-part-b-chapter-3 ............................................................................................. 7 U.S. Customs and Border Protection, “Nationwide Enforcement Encounters: Title 8
Enforcement Actions and Title 42 Expulsions,” https://www.cbp.gov/newsroom/stats/cbpenforcement-statistics/title-8-and-title-42-statistics (last visited Aug. 31, 2020) ....................... 2 U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak, PM 20-10, at 1 n.1 (Mar. 18, 2020), available at https://www.justice.gov/eoir/file/1259226/download ........ 7
Legislative History 114 Cong. Rec. 27,758-59 (1968)................................................................................................. 10
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114 Cong. Rec. 29,391 (1968) ........................................................................................................ 9 114 Cong. Rec. 29,607-08 (1968)................................................................................................... 9 125 Cong. Rec. 11,973 (1979) ...................................................................................................... 11 126 Cong. Rec. 4507 (1980) ......................................................................................................... 13 142 Cong. Rec. 11,491 (1996) ................................................................................................ 11, 14 H.R. Rep. No. 96-608 (1979)........................................................................................ 9, 10, 12, 13 H.R. Rep. No. 104-469 (1996)...................................................................................................... 11 S. Rep. No. 96-256 (1979) ............................................................................................................ 13 Admission of Refugees into the United States, Hearings before the Subcomm. on Immigration,
Citizenship, and Int’l Law, H. Comm. on the Judiciary, 95th Cong. 126 (1977) ............... 12, 13 The Refugee Act of 1979, S. 643: Hearing Before the S. Comm. on the Judiciary, 96th Cong. 36
(1979). ....................................................................................................................................... 11
Periodicals Brendan Cole, Jehovah’s Witness in Russia Convicted of Extremism, Concern Over Crackdown,
Newsweek, July 28, 2020, https://www.newsweek.com/jehovahs-witnesses-russiapersecution-1521023................................................................................................................... 2 Jen Kirby, Concentration camps and forced labor: China’s repression of the Uighurs, explained, Vox, July 28, 2020, https://www.vox.com/2020/7/28/21333345/uighurs-china-internmentcamps-forced-labor-xinjiang....................................................................................................... 2 Sofia Menchu, Families in rural Guatemala flee after armed groups sets homes on fire, Reuters, Aug. 16, 2020, https://www.reuters.com/article/us-guatemala-indigenous/families-in-ruralguatemala-flee-after-armed-group-sets-homes-on-fire-idUSKCN25C0TN ............................... 2 Poland: Crackdown On LGBT Activists, Human Rights Watch, Aug. 7, 2020, https://www.hrw. org/news/2020/08/07/poland-crackdown-lgbt-activists.............................................................. 2 Publicly reported cases of violent attacks on individuals returned to Mexico under the “Migrant Protection Protocols,” as compiled by Human Rights First, Human Rights First, May 13, 2020, https://www.humanrightsfirst.org/sites/default/files/PubliclyReportedMPPAttacks5.13. 2020.pdf ...................................................................................................................................... 2 UN News, Coronavirus lockdowns in Central America, exploited by criminal gangs, May 15, 2020, https://news.un.org/en/story/2020/05/1064172................................................................. 2
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Case 1:20-cv-02245-EGS Document 30-1 Filed 08/31/20 Page 7 of 21 Other Authorities Affidavit of Louis Henkin, Resp’ts’ Br., McNary v. Haitian Centers Council, Inc.,
1992 WL 541267 (U.S. Dec. 21, 1992) ...................................................................................... 9 Exec. Comm. of the High Commissioner’s Programme, Note on International Protection, U.N.
Doc. A/AC.96/815 (1993), available at https://www.refworld.org/docid/3ae68d5d10.html..... 9 The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr
Paul Weis 235, available at https://www.unhcr.org/en-us/protection/travaux/4ca34be29/ refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html......... 9, 10 Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. E/CN.4/L.1470, at ¶ 44 (Mar. 12, 1979), available at http://hr-travaux.law.virginia.edu/document/catcidtp/ecn4l1470/nid-159 ........... 12
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INTEREST OF AMICUS CURIAE Amicus curiae the International Refugee Assistance Project, Inc. (“IRAP”) is a nonprofit organization dedicated to advancing and defending the rights of refugees and other displaced people through systemic litigation, direct representation, and policy and media advocacy. As counsel to hundreds of refugees and asylum seekers before administrative agencies and in the federal courts since its founding in 2008, IRAP has direct insight into the worldwide refugee crisis and a strong interest in ensuring that the Refugee Act and related laws are enforced in a manner that is consistent with Congress’s humanitarian objectives. IRAP files this brief pursuant to Local Civil Rule 7(o)(1). No counsel for a party authored this brief in whole or in part; no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief; and no person other than amicus curiae, its members, or its counsel made such a monetary contribution. See LCvR 7(o)(5); Fed. R. App. P. 29(a)(4)(E).
INTRODUCTION Since March 2020, officers of U.S. Customs and Border Protection have been expelling people from the United States on asserted public health grounds without regard for the system Congress created to ensure protection for those fleeing persecution and torture. Congress’s system requires the executive branch to follow specific procedures to identify and evaluate humanitarian protection claims whenever it seeks to expel, turn away, or otherwise remove someone from the United States. And it bars the executive branch from discounting the rights of people at or within our borders who seek humanitarian protection (or “asylum seekers”) when providing for the public health. Yet even as acts of persecution and torture continue to be documented in the Northern
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Triangle, Mexico, and many other places worldwide,1 our government has returned over one
hundred thousand people to Mexico or their countries of origin without respecting the safeguards
Congress created.2
Defendants purport to have authority under the Public Health Service Act to expel asylum
seekers like Plaintiff and the proposed class members—children who have fled their home
countries and entered the United States alone—without these safeguards. Plaintiff and the
proposed class members are likely to succeed on the merits of their claims that Defendants’
expulsion policy is in fact unlawful because, among other things, the U.S. humanitarian protection
system that Defendants ignore is comprehensive, and its procedures are mandatory.3 IRAP agrees
with Plaintiff that the Court should grant his motion for classwide preliminary injunction for all
1 See, e.g., UN News, Coronavirus lockdowns in Central America, exploited by criminal gangs, May 15, 2020, https://news.un.org/en/story/2020/05/1064172; Sofia Menchu, Families in rural Guatemala flee after armed groups sets homes on fire, Reuters, Aug. 16, 2020, https://www.reuters.com/article/us-guatemala-indigenous/families-in-rural-guatemala-flee-afterarmed-group-sets-homes-on-fire-idUSKCN25C0TN; Publicly reported cases of violent attacks on individuals returned to Mexico under the “Migrant Protection Protocols,” as compiled by Human Rights First, Human Rights First, May 13, 2020, https://www.humanrightsfirst.org/sites/default/ files/PubliclyReportedMPPAttacks5.13.2020.pdf; Poland: Crackdown On LGBT Activists, Human Rights Watch, Aug. 7, 2020, https://www.hrw.org/news/2020/08/07/poland-crackdownlgbt-activists; Jen Kirby, Concentration camps and forced labor: China’s repression of the Uighurs, explained, Vox, July 28, 2020, https://www.vox.com/2020/7/28/21333345/uighurschina-internment-camps-forced-labor-xinjiang; Brendan Cole, Jehovah’s Witness in Russia Convicted of Extremism, Concern Over Crackdown, Newsweek, July 28, 2020, https://www.newsweek.com/jehovahs-witnesses-russia-persecution-1521023. 2 U.S. Customs and Border Protection, “Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions,” https://www.cbp.gov/newsroom/stats/cbpenforcement-statistics/title-8-and-title-42-statistics (last visited Aug. 31, 2020). 3 In J.B.B.C. v. Wolf, Judge Nichols held in an oral ruling that the plaintiff—an unaccompanied minor similar to the Plaintiff and the proposed class members here—had demonstrated likelihood of success on the merits of his claim that 42 U.S.C. § 265 does not grant the director of the CDC the expulsion power the director asserts because, among other things, the statute does not override immigration laws. See Kang Decl., ECF No. 2-2, Ex. D, at 49-51 (“[I]n the Court’s view, [section 265] should be harmonized, to the maximum extent possible, with immigration statutes, including those already referenced that grant special protections to minors and also those immigration statutes that deal with communicable diseases and quarantines.”).
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the reasons set out in Plaintiff’s brief. It submits this brief to further detail how the expulsion policy is contrary to the laws Congress enacted to protect asylum seekers, even setting aside the special and critical protections to which Plaintiff is entitled under the Homeland Security Act and Trafficking Victims Protection Reauthorization Act. IRAP urges the Court to grant Plaintiff’s motion for classwide preliminary injunction.
ARGUMENT I. DEFENDANTS’ EXPULSION POLICY CONTRAVENES THE TEXT OF
THE REFUGEE ACT AND RELATED HUMANITARIAN PROTECTION LAWS Under U.S. law, the federal government is prohibited from returning people to places where they will be persecuted or tortured and is required to give people who reach our borders an opportunity to seek asylum. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. §§ 208.16, 208.17; 8 U.S.C. § 1158(a)(1). To ensure that the Executive does not run afoul of these mandates, Congress requires it to follow specific procedures to identify and adjudicate humanitarian protection claims whenever it seeks to remove a person from the United States. This system is comprehensive, and there is no legal basis for the Executive to circumvent it on public health grounds. A. Congress requires the Executive to follow specific procedures to identify and
evaluate humanitarian protection claims Congress requires the Executive to follow specific procedures to protect the rights of asylum seekers at or within U.S. borders. As Plaintiff explains, unaccompanied children like him and the proposed class members are entitled to special protections under the Homeland Security Act and the Trafficking Victims Protection Reauthorization Act. See Pl.’s Br. at 3-4. Even in the ordinary course, however, the protections to which asylum seekers are entitled are robust. See id. at 4-6.
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Ordinarily, when the government seeks to remove a person from the United States, it must provide a removal hearing with many procedural safeguards—including access to counsel (at no government expense) and opportunities to present evidence and cross-examine government witnesses—to afford that person, among other things, a fair opportunity to present claims for humanitarian protection. See 8 U.S.C. § 1229a. To demonstrate that the government must protect them from persecution, a person may apply for withholding of removal under 8 U.S.C. § 1231(b)(3), which, with limited exceptions, bars the government from removing someone to a place where their “life or freedom would be threatened . . . because of [their] race, religion, nationality, membership in a particular social group, or political opinion.” To demonstrate that the government must protect them from torture, the person may apply for deferral or withholding of removal under law implementing the U.N. Convention Against Torture, which bars the government from removing anyone to any place where it is “more likely than not” that he or she would be tortured. 8 C.F.R. §§ 1208.16(c), 1208.17(a). In removal proceedings, a person may also apply for asylum status, which confers additional rights beyond protection from removal. A person is generally eligible for asylum if they are a “refugee”—that is, they cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. § 1101(a)(42). Asylum status, unlike withholding or deferral of removal, provides a pathway to lawful permanent resident status, see 8 U.S.C. § 1159(b), and, ultimately, U.S. citizenship, see 8 U.S.C. § 1427(a). A person who does not prevail in the administrative removal hearing has the right to an appeal, see 8 U.S.C. § 1229a(c)(5), and ultimately has access to federal judicial review, see 8 U.S.C. § 1252(b).
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Congress has also created an expedited removal process to permit quick removals of certain narrowly delineated classes of recent arrivals. See 8 U.S.C. § 1225(b)(1)(A) (applying to people arriving in the United States who are determined to lack valid entry documents or to be seeking admission through material misrepresentation, subject to limited expansion by the Attorney General); 8 U.S.C. § 1232(a)(5)(D) (exempting certain unaccompanied children). Yet even as to those people who are subject to expedited removal, Congress took care to ensure that any who might be eligible for asylum or entitled to withholding or deferral of removal would not be removed unlawfully: In the expedited removal system, a person who expresses a fear of persecution or torture is referred for a “credible fear” screening, see 8 U.S.C. § 1225(b)(1)(A), (b)(1)(B)(ii), where they are given an opportunity to consult with a person of their choosing, see 8 U.S.C. § 1225(b)(1)(B)(iv); to be interviewed by an asylum officer with specialized training and under proper supervision, see 8 U.S.C. § 1225(b)(1)(B), (E); 8 C.F.R. § 208.30(d); and, so long as their fear is deemed credible, to be placed in full removal proceedings, see 8 C.F.R. § 208.30(f). This initial screening process sets a low evidentiary threshold so that anyone who might possibly have a claim for humanitarian protection can present it in full removal proceedings with proper procedural protections.
B. Congress has prohibited the Executive from blocking access to the humanitarian protection system on health-related grounds
Congress further requires the Executive to make public health decisions in a manner that respects the rights of people seeking humanitarian protection. Defendants suggest that guarding the public health requires them to overlook the specific rights of asylum seekers. See, e.g., supra n.2; Amendment and Extension of Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31,503, 31,508 (May 26, 2020).
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But Congress was clear that potential health concerns are not grounds for preventing asylum seekers from accessing humanitarian protection.
First, Congress drafted the humanitarian protection laws such that a person’s health would be irrelevant to whether they could be granted asylum status, withholding of removal, or protection under the Convention Against Torture. Under the Convention Against Torture, the government is prohibited from returning a person to their torturers without exception. See 8 C.F.R. § 208.17(a). With respect to withholding of removal under 8 U.S.C. § 1231(b)(3), a person facing persecution is ineligible for protection only if they have persecuted others; participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing; or pose a serious threat to the security of the United States. See 8 U.S.C. § 1231(b)(3)(B). A person is barred from asylum only for the narrow set of reasons set out in 8 U.S.C. § 1158(a)(2), (b)(2), which overlap in part with the exceptions for withholding of removal under 8 U.S.C. § 1231(b)(3) and similarly have nothing to do with health. See also Pl.’s Br. at 4-6 & nn.3-4.4
Second, even though Congress created a mechanism in the immigration laws for the government to remove a person from the country on health-related grounds, it specifically declined to make such health-related grounds barriers to applying for and being granted humanitarian protection from removal. Ordinarily, a person who seeks to enter the country or to be granted certain immigration statuses must be “admissible.” This means that they must not fall within any of the grounds of exclusion specified in 8 U.S.C. § 1182(a), such as lacking valid entry documents,
4 The Department of Homeland Security and the Department of Justice recently issued a notice of proposed rulemaking that purports to construe the national security bar to asylum and withholding of removal to allow agencies to consider “emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics.” Security Bars and Processing, 85 Fed. Reg. 41,201 (July 9, 2020). The proposed rule is not in effect, nor is it at issue in this case.
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8 U.S.C. § 1182(a)(7)(A)(i), having crossed the border without inspection, 8 U.S.C. § 1182(a)(6)(A)(i), or having been convicted of certain crimes, 8 U.S.C. § 1182(a)(2)(A), (B). A person may also be inadmissible on “health-related grounds,” including being “determined . . . to have a communicable disease of public health significance,” 8 U.S.C. § 1182(a)(1)(A)(i); according to the government, COVID-19 is one such disease.5 Yet Congress was clear that a person may apply for and be granted humanitarian relief regardless of whether there might be grounds, including a health-related inadmissibility ground, to remove them: A person may apply for and be granted asylum “irrespective” of whether they are admissible. 8 U.S.C. § 1158(a)(1). As the government itself has acknowledged: an individual seeking asylum is simply “not subject to inadmissibility grounds at the time of [an] asylum grant.” USCIS Policy Manual Vol. 7, Part M, Ch. 3 (2020), available at https://www.uscis.gov/policy-manual/volume-7-part-m-chapter-3; see also USCIS Policy Manual Vol. 8, Part B, Ch. 3 (2020), available at https://www.uscis.gov/policy-manual/volume-8-part-b-chapter-3 (no specific medical examination or vaccination required for granting asylum). Withholding and deferral of removal, for their part, by definition are available when a person could otherwise be removed.
Third, though it rejected the notion that asylum seekers might be barred from humanitarian protection on health-related grounds, Congress accounted for the public health by permitting the Executive to screen asylum seekers on arrival. Asylum seekers may be screened under the federal laws relating to quarantine, isolation, and contact-tracing that apply to citizens and noncitizens alike. See 42 C.F.R. §§ 71.1, 71.20, 71.36. And under the immigration laws, asylum seekers, like other noncitizens, may be screened for inadmissibility grounds, including “communicable diseases
5 U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak, PM 20-10, at 1 n.1 (Mar. 18, 2020), available at https://www.justice.gov/eoir/file/1259226/download.
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of public health significance,” according to procedures specified by Congress and the Department of Health and Human Services. See 8 U.S.C. § 1182(a)(1)(A)(i). These procedures permit the government to conduct medical exams and to detain for medical screening certain individuals arriving at ports of entry or from places “where any [relevant] diseases are prevalent or epidemic.” See, e.g., 8 U.S.C. § 1222; 42 C.F.R. § 34.3 (describing the scope of medical exams). And they specify that when a medical examiner cannot make a diagnosis, the government must postpone the medical examination until a diagnosis can be made and, in the meantime, refer the noncitizen for any medical care that might be necessary. See 8 C.F.R. § 34.5. The medical screening and its result may lead the government to charge an asylum seeker with a health-related inadmissibility ground in removal proceedings and, ultimately, to remove them—but only if they are not granted asylum or withholding or deferral of removal. Whatever the result of the screening, what the government may not do is bypass credible fear interviews or removal proceedings, deprive asylum seekers of the opportunity to apply for humanitarian protection from removal, or prevent asylum seekers from being granted such protection on health grounds.
In adopting the challenged policy, the Executive has upended Congress’s carefully delineated system. Congress has accounted for the public health and taken care to ensure that health considerations will not prevent a person from applying for or being granted protection.
II. DEFENDANTS’ EXPULSION POLICY CONTRAVENES CONGRESS’S INTENT
That Congress did not give the Executive discretion to expel asylum seekers as Defendants are doing is also evident from the legislative history of the Refugee Act, the laws implementing the U.N. Convention Against Torture, and procedural reforms enacted in 1996. This legislative history shows that Congress recognized an urgent, morally grounded need for strong protections for asylum seekers. And it shows that Congress anticipated that the executive branch might
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attempt to circumvent its laws and specifically aimed to prevent the executive branch from doing so.
A. Congress understood our obligations to asylum seekers in stark moral terms Congress was mindful of the dangers of returning people to their abusers and understood our obligation to protect asylum seekers in stark moral terms. The laws Congress enacted originated in the non-refoulement provision of the 1951 U.N. Convention Relating to the Status of Refugees, which had urgent moral underpinnings.6 As Louis Henkin, an American framer of the treaty, explained: In the years following the Second World War, “there had been stories, and some evidence, that police of some countries had pushed refugees back into the hands of the pursuing Nazis.” “[G]overnments,” therefore, “were asked to commit themselves not to prevent a person from escaping oppression and not to become an accomplice to their oppression.” Henkin Aff. ¶¶ 4, 6, Resp’ts’ Br., McNary v. Haitian Centers Council, Inc., 1992 WL 541267 (U.S. Dec. 21, 1992). Universal recognition of the non-refoulement principle was considered essential to an effective refugee protection system. See The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr Paul Weis 235, available at https://www.unhcr.org/en-us/protection/travaux/4ca34be29/refugee-convention-1951-travauxpreparatoires-analysed-commentary-dr-paul.html [hereinafter “Travaux”] (“The Chairman felt that if the work of the Committee resulted in the ratification of [the non-refoulement provision] alone, it would have been worth while.”); see also Exec. Comm. of the High Commissioner’s Programme, Note on International Protection ¶ 10, U.N. Doc. A/AC.96/815 (1993), available at
6 Though the United States did not ultimately ratify the Convention, the Convention’s provisions were carried through in relevant part to the U.N. Protocol Relating to the Status of Refugees, which the United States did ratify. 114 Cong. Rec. 29,391 (1968); 114 Cong. Rec. 29,607-08 (1968); see also H.R. Rep. No. 96-608, at 17 (1979) (noting that the enactment of asylum and non-refoulement provisions “conforms United States statutory law to our [Protocol] obligations”).
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https://www.refworld.org/docid/3ae68d5d10.html (“It would be patently impossible to provide international protection to refugees if States failed to respect this paramount principle of refugee law and human solidarity.”). See generally I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436-39 (1987) (treating negotiating history and UNHCR material as persuasive authority).
Because of the strong interests at stake, the framers of the Refugee Convention specifically rejected the notion that people seeking humanitarian protection might be expelled on health-related grounds. The U.S. delegate maintained that “refugees should not be expelled . . . because they had been sick or indigent,” and the treaty’s Committee Notes reflect consensus around this position: the treaty “would not,” the Committee explained, “permit the deportation of [refugees] on ‘social grounds,’ such as indigence or illness.” Travaux 222, 225. When transmitting the U.N. Protocol Relating to the Status of Refugees—which incorporated the protections of the Refugee Convention—to President Johnson for ratification, Secretary of State Rusk echoed these sentiments: Since “refugees by definition are without a homeland, deportation of a refugee is a particularly serious measure, and it would not be humanitarian to deport a refugee for reasons of health or economic dependence.” 114 Cong. Rec. 27,758-59 (1968).
When Congress codified the protections of the Refugee Convention and Protocol in the 1980 Refugee Act, Congress remained all too aware of the grave dangers asylum seekers would face were the United States to turn its back on them, and thus sought to conform statutory protections to the non-refoulement mandate. See, e.g., H.R. Rep. No. 96-608, at 17 (1979) (noting that the asylum and non-refoulement provisions are designed to “conform[] United States statutory law to our obligations under [the Convention and Protocol]”); Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102, 102 (“declar[ing] that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands”). Senator
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Kennedy pointed to the “tragic results” of the country’s lack, at the time, of a consistent asylum policy, including “instances where people came up to our embassies[,] were rejected, and were later shot.” The Refugee Act of 1979, S. 643: Hearing Before the S. Comm. on the Judiciary, 96th Cong. 36 (1979). In the House debates, Representative Chisholm held up the “tragic plight” of thousands of Haitians who had sought asylum in Florida, citing evidence of “the arrest and indeed execution of Haitians deported by the Immigration and Naturalization Service.” 125 Cong. Rec. 11,973 (1979).
When Congress enacted an expedited removal process in 1996, it remained attentive to the risks of removal. Even as it recognized some utility in permitting the Executive to remove certain people more quickly, Congress deliberately made the central, credible fear standard for avoiding expedited removal “a low screening standard for admission into the usual full asylum process,” 142 Cong. Rec. 11,491 (1996) (statement of Sen. Hatch), to avoid the “danger that an alien with a genuine asylum claim w[ould] be returned to persecution,” H.R. Rep. No. 104-469, at 158 (1996). See also Grace v. Whitaker, 344 F. Supp. 3d 96, 107 (D.D.C. 2018), aff’d sub nom. Grace v. Barr, 965 F. 3d 883, 902 (D.C. Cir. 2020) (acknowledging that Congress’s purpose to ensure that “individuals with valid asylum claims are not returned to countries where they could face persecution” is evident in both the asylum system’s design and legislative history).
When implementing the non-refoulement provision from the U.N. Convention Against Torture, Congress similarly recognized the dangers many asylum seekers faced outside the United States, announcing that it would be 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.” Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681, 2681-822.
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At the direction of Congress, the Department of Justice promulgated regulations making protection mandatory, with no exceptions. See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8481 (Feb. 19, 1999). This was in keeping with the aim of the framers of the Convention Against Torture, who desired “to afford the greatest possible protection against torture.” See Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. E/CN.4/L.1470, at ¶ 44 (Mar. 12, 1979), available at http://hr-travaux.law.virginia.edu/document/catcidtp/ecn4l1470/nid-159.
B. Congress required the Executive to follow specific procedures so that the Executive would not undercut the rights of asylum seekers
In creating the modern asylum system Congress mandated specific procedures for identifying and evaluating protection claims, see supra Part I.A., to prevent the Executive from undercutting asylum seekers’ rights. Under the previous system, claims for asylum domestically were left completely to the discretion of the executive branch and did not require any particular procedure. See 8 C.F.R. § 108.1 (1979). Congress considered this system to be unfair and inadequate, and too susceptible to the whims of political climate and world events. See, e.g., H.R. Rep. No. 96-608, at 1, 17-18 (1979) (seeking “to eliminate current discrimination on the basis of outmoded geographical and ideological considerations” and deeming domestic asylum provision “necessary and desirable” for a “fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law”). Representative Holtzman, a House sponsor of the Refugee Act, explained the problem: “One of the matters that has concerned me greatly about the admission of . . . persons who seek asylum is the fact that there really are no specific procedures that would assure that due process is granted when such persons are questioned in order [to] determine[] whether or not they meet the present statutory standards.” Admission of Refugees into the United States, Hearings
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before the Subcomm. on Immigration, Citizenship, and Int’l Law, H. Comm. on the Judiciary, 95th Cong. 126 (1977). “[W]hen Congress creates a statutory scheme and does not really specify how that scheme is to be implemented,” she continued, “it can be thwarted by the executive branch.” Id. at 127; see also id. (statement of John E. McCarthy, Chairman, Comm. on Migration and Refugee Affairs, Am. Council of Voluntary Agencies for Foreign Serv.) (“You’re treading on very dangerous ground when you’re examining these people because if you’re wrong and the person is forced to return you have got a terrible problem. . . . We don’t have the standards here which are so necessary.”); id. (pointing to politicized denials of protection to Chilean refugees).
With the 1980 Refugee Act, which was designed to be comprehensive, Congress sought to remedy this problem. See, e.g., H.R. Rep. No. 96-608, at 1 (1979) (“The purpose of the bill is to establish a coherent and comprehensive U.S. refugee policy. This objective is accomplished by creating a systematic and flexible procedure for the admission and resettlement of refugees.”); S. Rep. No. 96-256, at 1 (1979) (proposed bill would “establish[] for the first time a comprehensive United States refugee resettlement and assistance policy”). It created a new, “specific statutory basis for United States asylum policy,” and directed the Attorney General to establish uniform procedures that would bind the executive branch. H.R. Rep. No. 96-608, at 17-18 (1979); see also 126 Cong. Rec. 4507 (1980) (statement of Rep. Holtzman) (the bill “mandates a procedure for the consideration of asylum claims by people who are here on our shores”). And it amended the terms of the then-existing statutory withholding of removal provision to use mandatory language, to avoid any suggestion that whether to grant withholding might be within the Executive’s discretion. See H.R. Rep. No. 96-608, at 18 (1979). When Congress created a threshold asylum screening process in 1996, it again set limits on the Executive by, among other things, taking care to specify the training, supervision, and review to which the immigration officers conducting screenings
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would be required to be subjected. See 8 U.S.C. § 1225(b)(1)(B)(iii)(III), (b)(1)(E); 8 U.S.C. § 1252(e)(3); see also 142 Cong. Rec. 11,491 (1996) (statement of Sen. Hatch) (“I feel very strongly that the appropriate, fully trained asylum officers conduct the screening in the summary exclusion process”). And Congress similarly cabined the Executive’s discretion in implementing the Convention Against Torture, making clear that its prohibitions applied notwithstanding any other government policy. See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681, 2681-822.
In short, understanding our humanitarian responsibilities to be urgent moral obligations, Congress acted deliberately to prevent them from being circumvented by the executive branch. Defendants’ expulsion policy contravenes Congress’s clear aim.
CONCLUSION Because Defendants are expelling people from our country without regard to Congress’s carefully crafted system for identifying and protecting those who fear persecution and torture, IRAP urges the Court to grant Plaintiff’s motion for classwide preliminary injunction.

Dated: August 31, 2020 New York, N.Y.

Respectfully submitted,
/s/ Kathryn Austin Kathryn Austin (D.D.C. Bar No. NY0331) Mariko Hirose (D.D.C. Bar No. NY0262) Geroline Castillo (N.Y. Bar No. 5784434)* INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza, 4th Floor New York, N.Y. 10004 Tel: (516) 296-0688
Counsel for Amicus Curiae
* Application for admission pending
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 Case 1:20-cv-02245-EGS-GMH Document 65 Filed 09/25/20 Page 1 of 50

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.J.E.S., a minor child by and through his father and next friend, Mario Escobar Francisco, on behalf of himself and others similarly situated,
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

Case No. 1:20-cv-2245 (EGS/GMH)

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Plaintiff is a 15-year-old minor from Guatemala who crossed into the United States from Mexico in August 2020 unaccompanied by a responsible adult and was apprehended by Customs and Border Patrol shortly thereafter. Recent agency action in response to the COVID-19 pandemic—specifically, an interim final rule promulgated by the Department of Health and Human Services and a series of orders issued by Defendant Robert R. Redfield, Director of the Centers for Disease Control and Prevention (“CDC”), pursuant to Section 362 of the Public Health Service Act, 42 U.S.C. § 265 (“Section 265”)—allowed the government to detain Plaintiff pending expulsion from the United States without many of the legal protections that he would otherwise have enjoyed under various immigration laws. In his present action against various federal officials (“Defendants” or the “government”), Plaintiff seeks an injunction prohibiting enforcement of those procedures, which Plaintiff collectively calls the “Title 42 Process,” against those situated similarly to Plaintiff—that is, unaccompanied non-citizen children detained in the United States by the

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government after entering the country. He argues that the Title 42 Process violates the Administrative Procedure Act, 5 U.S.C. §§ 706(1), 706(2)(A), because the expulsion of non-citizens from the United States in the manner contemplated and practiced exceeds the authority granted by Section 265; conflicts with certain immigration laws—specifically, the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), 8 U.S.C. § 1232, various provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C. § 1231 Note; and constitutes arbitrary and capricious agency action because the agency did not offer a reasoned explanation for applying the Title 42 Process to unaccompanied children.
Currently before the Court are (1) Plaintiff’s request for provisional certification of a class defined as all unaccompanied non-citizen children who are or will be detained in U.S. government custody in the United States and who are or will be subjected to the Title 42 Process and (2) his request for a preliminary injunction prohibiting enforcement of that process against members of the putative class.1 For the reasons that follow, Plaintiff’s motion for class certification should be provisionally granted and his motion for a preliminary injunction should be granted.
1 Judge Sullivan referred this case to the undersigned for full case management. The docket entries relevant to this Report and Recommendation are (1) Plaintiff’s Complaint (ECF No. 1), (2) his motion for class certification and its exhibits (ECF Nos. 2 through 2-4), (3) his motion for preliminary injunction and its exhibits (ECF No. 14-1 (sealed exhibit); ECF Nos. 15 through 15-12 (redacted opening brief and non-sealed exhibits)), (4) the government’s combined opposition to both motions and its exhibits (ECF Nos. 42 through 42-5 (redacted opposition brief and non-sealed exhibits); ECF Nos. 44-2, 44-3 (sealed, unredacted brief and sealed exhibit)), (5) Plaintiff’s combined reply and its exhibits (ECF No. 51-1 (sealed, unredacted reply); ECF Nos. 52 through 52-4 (redacted reply and non-sealed exhibits)), (6) the government’s motion to strike or, in the alternative, motion for leave to file an additional declaration and its exhibits (ECF No. 58), (7) Plaintiff’s response to the government’s motion to strike/motion for leave to file (ECF No. 61), and (8) the government’s reply in further support of its motion to strike/motion for leave to file (ECF No. 63). In addition, the undersigned has considered the briefs of amici curiae Scholars of Refugee and Immigration Law (ECF No. 36), the International Refugee Assistance Project (ECF No. 37), and the Immigration Reform Law Institute (“IRLI”) (ECF No.57). Page numbers cited herein are those assigned by the Court’s CM/ECF system.
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I. BACKGROUND Because resolution of Plaintiff’s preliminary injunction motion hinges, at least in part, on the legal question of whether the agency regulations, orders, and guidance implementing the Title 42 Process conflict with various federal statutes, this section begins with an outline of the statutory and regulatory enactments comprising the Title 42 Process, then discusses a similar prior case in this District brought by an unaccompanied minor who had been subjected to the Title 42 Process, and concludes with Plaintiff’s participation in that process. A. Statutory and Regulatory Background Section 265 states: 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. The parties agree that this provision passed in 1944 as part of the Public Health Service Act, Pub. L. 78-410, § 362, 58 Stat. 682, 704 (1944), is based on and substantially similar to a provision in a statute enacted in 1893 (the “1893 Act”) that gave the President “the power to prohibit, in whole or in part, the introduction of persons or property” from foreign countries that, “by reason of the existence of cholera or contagious diseases” in those countries, “posed a serious danger of introduction of the same into the United States.” ECF No. 5-5 at 5 (attaching Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452). Since the enactment of Section 265, the authority of the Surgeon General passed to the Secretary of the Department of Health and Human
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Services, who then delegated it to the Director of the CDC. See Control of Communicable Dis-
eases; Foreign Quarantine: Suspension of Introduction of Persons into United States from Desig-
nated Foreign Countries or Places for Public Health Purposes [hereinafter, “Interim Final Rule”],
85 Fed. Reg. 16,559-01, 16560 & n.1 (Mar. 24, 2020) (effective Mar. 20, 2020) (codified at 42
C.F.R. § 71.40).
Relying on that authority, and in light of the COVID-19 pandemic, on March 24, 2020, the
CDC published the Interim Final Rule to implement Section 265 “and other applicable provisions
of the [Public Health Service] Act” to provide a “robust, efficient mechanism for exercising the
authority . . . to suspend the introduction of persons into the United States, should the public health
require it.” Interim Final Rule, 85 Fed. Reg. 16,559-01, 16,562. The rule enabled the CDC Di-
rector to
prohibit the introduction into the United States of persons from designated foreign countries (or one or more political subdivisions and regions thereof) or places . . . by issuing an order in which the Director determines that:
(1) By reason of the existence of any communicable disease in a foreign country (or one or more political subdivisions or regions thereof) or place, there is serious danger of the introduction of such communicable disease into the United States, and
(2) This danger is so increased by the introduction of persons from such country (or one or more political subdivisions or regions thereof) or place that a suspension of the introduction of such persons into the United States is required in the interest of the public health.
Interim Final Rule, 85 Fed. Reg. 16,559-01, 16,563. It further defined
“introduction into the United States of persons” from a foreign country . . . to clarify that “introduction” can encompass those who have physically crossed a border of the United States and are in the process of moving into the interior in a manner the Director determines to present a risk of transmission of a communicable disease. This additional mechanism to halt the travel of such persons and rapidly moving them outside the United States constitutes preventing their “introduction” into the United States.
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Interim Final Rule, 85 Fed. Reg. 16,559-01, 16,563. Two days later, the CDC Director issued the first of a series of three orders (the “CDC
Orders”) directed to preventing the “introduction” of certain persons into the United States in the interest of public health. The order asserts that
a serious danger of the introduction of COVID-19 into the land [ports of entry] and Border Patrol stations at or near the United States borders with Canada and Mexico, and into the interior of the country as a whole, because COVID-19 exists in Canada, Mexico, and the other countries of origin of persons who migrate to the United States across the land borders with Canada and Mexico. Notice of Order Under Sections 362 and 365[2] of the Public Health Service Act Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists [hereinafter, “March 20 Order”], 85 Fed. Reg. 17,060-02, 17,061 (Mar. 26, 2020) (effective Mar. 20, 2020). The CDC Director found that “persons travelling from Canada or Mexico (regardless of their country of origin)” who must be held for significant periods of time in “congregate settings” at land ports of entry and Border Patrol stations as they undergo immigration processing “would typically be aliens seeking to enter the United States at [ports of entry] who do not have proper travel documents, aliens whose entry is otherwise contrary to law, and aliens who are apprehended near the border seeking to unlawfully enter the United States.” March 20 Order, 85 Fed. Reg. at 17,061. The order further states that land Ports of Entry and Border Patrol stations “are not equipped to[ ] quarantine, isolate, or enable social distancing by persons who are or may be infected with COVID-19” and that the “public health tool called conditional release, which involves the release of potentially infected individuals from federal custody subject to conditions calculated to mitigate the risk of disease transmission, such as mandatory self-isolation and CDC monitoring at home”
2 Section 365 of the Public Health Act, codified at 42 U.S.C. § 268, assigns to customs and Coast Guard officers the “duty . . . to aid in the enforcement of quarantine rules and regulations.”
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is “not a viable solution” because many such aliens “may lack homes or other places in the United States where they can self-isolate, and CDC lacks the resources and personnel necessary to effectively monitor such a large number of persons.” March 20 Order, 85 Fed. Reg. at 17,061, 17,067. Therefore, as “[t]he introduction into [those] congregate settings” of these “covered aliens”—defined as “persons travelling 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 or Border patrol station at or near the United States border with Canada and Mexico”—increased the public health risk posed by the pandemic, the CDC Director “suspend[ed] the introduction of all covered aliens into the United States for a period of 30 days,” noting that “[t]he faster a covered alien is returned to the country from which they entered the United States, to their country of origin, or another location as practicable, the lower the risk the alien poses of introducing, transmitting, or spreading COVID-19” in the United States.3 March 20 Order, 85 Fed. Reg. at 17,061, 17,067.
The duration of the March 20 Order was extended for another 30 days on April 22, 2020. 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. 22,424-01 (Apr. 22, 2020) (effective date Apr. 20, 2020). And, in an order known as the “May 20 Order,” the CDC Director amended the March 20 Order (as extended) to “clarify that it applies to land and coastal Ports of Entry and Border Patrol stations that would otherwise hold aliens in a congregate setting”4 and extended its duration “until he determines the risk of further
3 The March 20 Order exempts from its coverage U.S. citizens, lawful permanent residents, and military personnel; the spouses and children of those individuals; individuals from foreign countries who hold valid travel documents; and individuals from foreign countries in the visa waiver program not otherwise subject to travel restrictions. March 20 Order, 85 Fed. Reg. at 17,061. It also allows customs officers to make individualized exceptions on a case-by-case basis under a totality of the circumstances, “including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” March 20 Order, 85 Fed. Reg. at 17,061. 4 The May 20 Order “recognizes that in certain limited instances, a fact-based inquiry may be required to determine whether individuals are covered aliens within the meaning of the [May 20 Order]. For example, it may be unclear
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COVID-19 into the United States from covered aliens 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 [hereinafter, “May 20 Order”], 85 Fed. Reg. 31,503-02, 31,504 (May 26, 2020) (effective May 21, 2020).
On September 11, 2020, the CDC published a final rule with an effective date of October 13, 2020, unless the Interim Final Rule “is vacated or enjoined by a court, in which case the Secretary [of Health and Human Services] will publish a document in the Federal Register announcing an updated effective date for th[e] [final] rule.” 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 [hereinafter, “Final Rule”], 85 Fed. Reg. 56,424-01, 56,424 (Sept. 11, 2020) (effective Oct. 13, 2020) (to be codified at 42 C.F.R. 71.40). The Final Rule makes some changes to the Interim Final Rule: the title is changed to replace the term “communicable disease” with the term “quarantinable communicable disease,” it adds a requirement that the CDC Director include in any order issued under the regulation a statement about the danger of introduction of the disease in the places from which people are being prohibited, and it no longer uses the word “vector” to refer to humans. Final Rule, 85 Fed. Reg. at 56,443–56,444. However, the material provisions remain the same and are “clarified” by explanations of the agency’s interpretations of the language of Section 265. For example, the Final Rule states that the term “introduction” includes the situation “when a person on U.S. soil moves further into the United States”; that the phrase “prohibit, in whole or in part, the introduction
whether individuals who arrive at a coastal border by boat departed from Mexico, or another country, such as Haiti.” May 20 Order, 85 Fed. Reg. at 31,507 n.28. The CDC “defer[red]” to the Department of Homeland Security “regarding the operational considerations necessary to address such scenarios.” May 20 Order, 85 Fed. Reg. at 31,507 n.28.
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into the United States of persons” includes the power of “physically expelling from the United States some or all of the persons”; and that the phrase “suspension of the right to introduce” means “to cause the temporary cessation of the effect of any law, rule, decree, or order pursuant to which a person might otherwise have the right to be introduced or seek introduction into the United States.” Final Rule, 85 Fed. Reg. at 56,425–56,426. Further, the Final Rule declares that “[n]o action can or will be taken under this final rule absent an administrative Order issued by the [CDC] Director.”5 Final Rule, 85 Fed. Reg. at 56,425.

5 Pursuant to the Final Rule, 42 C.F.R. § 71.40 will read:

Suspension of the right to introduce and prohibition of the introduction of persons into the United States from designated foreign countries or places for public health purposes.

(a) The Director may prohibit, in whole or in part, the introduction into the United States of persons from desig-

nated foreign countries (or one or more political subdivisions or regions thereof) or places, only for such

period of time that the Director deems necessary to avert the serious danger of the introduction of a quaran-

tinable communicable disease, by issuing an order in which the Director determines that:

(1)

By reason of the existence of any quarantinable communicable disease in a foreign country (or one

or more political subdivisions or regions thereof) or place there is serious danger of the introduction

of such quarantinable communicable disease into the United States; and

(2) This danger is so increased by the introduction of persons from such country (or one or more polit-

ical subdivisions or regions thereof) or place that a suspension of the right to introduce such persons

into the United States is required in the interest of public health.

(b)

For purposes of this section:

(1) Introduction into the United States 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 or property in the United

States, in a manner that the Director determines to present a risk of transmission of a quarantinable

communicable disease to persons, or a risk of contamination of property with a quarantinable com-

municable disease, even if the quarantinable communicable disease has already been introduced,

transmitted, or is spreading within the United States;

(2) Prohibit, in whole or in part, the introduction into the United States of persons means 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;

(3) Serious danger of the introduction of such quarantinable communicable disease into the United

States means the probable introduction of one or more persons capable of transmitting the quaran-

tinable communicable disease into the United States, even if persons or property in the United States

are already infected or contaminated with the quarantinable communicable disease;

(4) The term Place includes any location specified by the Director, including any carrier, as that term is

defined in 42 C.F.R. 71.1, whatever the carrier's flag, registry, or country of origin; and

(5) Suspension of the right to introduce means to cause the temporary cessation of the effect of any law,

rule, decree, or order pursuant to which a person might otherwise have the right to be introduced or

seek introduction into the United States.

(c) Any order issued by the Director under this section shall include a statement of the following:

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Meanwhile, on April 2, 2020, Customs and Border Protection issued a memorandum regarding its implementation of the Title 42 Process. ECF No. 15-4, ¶ 6; ECF No. 15-5 at 15–18.

(1) The foreign countries (or one or more political subdivisions or regions thereof) or places from which

the introduction of persons shall be prohibited;

(2) The period of time or circumstances under which the introduction of any persons or class of persons

into the United States shall be prohibited;

(3) The conditions under which that prohibition on introduction shall be effective in whole or in part,

including any relevant exceptions that the Director determines are appropriate;

(4) The means by which the prohibition shall be implemented; and

(5) The serious danger posed by the introduction of the quarantinable communicable disease in the

foreign country or countries (or one or more political subdivisions or regions thereof) or places from

which the introduction of persons is being prohibited.

(d) When issuing any order under this section, the Director shall, as practicable under the circumstances, consult

with all Federal departments or agencies whose interests would be impacted by the order. The Director shall,

as practicable under the circumstances, provide the Federal departments or agencies with a copy of the order

before issuing it. In circumstances when it is impracticable to engage in such consultation before taking action

to protect the public health, the Director shall consult with the Federal departments or agencies as soon as

practicable after issuing his or her order, and may then modify the order as he or she determines appropriate.

In addition, the Director may, as practicable under the circumstances, consult with any State or local author-

ities that he or she deems appropriate in his or her discretion.

(1) If the order will be implemented in whole or in part by State and local authorities who have agreed

to do so under 42 U.S.C. 243(a), then the Director shall explain in the order the procedures and

standards by which those authorities are expected to aid in the enforcement of the order.

(2) If the order will be implemented in whole or in part by designated customs officers (including any

individual designated by the Department of Homeland Security to perform the duties of a customs

officer) or Coast Guard officers under 42 U.S.C. 268(b), or another Federal department or agency,

then the Director shall, in coordination with the Secretary of Homeland Security or other applicable

Federal department or agency head, explain in the order the procedures and standards by which any

authorities or officers or agents are expected to aid in the enforcement of the order, to the extent that

they are permitted to do so under their existing legal authorities.

(e) This section does not apply to:

(1)

Members of the armed forces of the United States and associated personnel if the Secretary of

Defense provides assurance to the Director that the Secretary of Defense has taken or will take

measures such as quarantine or isolation, or other measures maintaining control over such individ-

uals, to prevent the risk of transmission of the quarantinable communicable disease into the United

States; or

(2) Other United States government employees or contractors on orders abroad, or their accompanying

family members who are on their orders or are members of their household, if the Director receives

assurances from the relevant head of agency and determines that the head of the agency or depart-

ment has taken or will take, measures such as quarantine or isolation, to prevent the risk of trans-

mission of a quarantinable communicable disease into the United States.

(f)

This section shall not apply to U.S. citizens, U.S. nationals, and lawful permanent residents.

(g) Any provision of this section held to be invalid or unenforceable by its terms, or as applied to any person or

circumstance, shall be construed so as to continue to give the maximum effect to the provision permitted by

law, unless such holding shall be one of utter invalidity or unenforceability, in which event the provision

shall be severable from this section and shall not affect the remainder thereof or the application of the provi-

sion to persons not similarly situated or to dissimilar circumstances.

85 Fed. Reg. at 56,459–56,460.

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The memorandum directs agents to determine whether a non-citizen who has been intercepted near the border is a “covered alien” as defined in the CDC Orders “[b]ased on training, experience, physical observation, technology, questioning[,] and other considerations.” ECF No. 15-5 at 15. If an individual is determined to be a “covered alien” and therefore “amenable to expulsion under [the CDC Orders],” the individual is to be “transported to the nearest [port of entry] and immediately returned to Mexico or Canada, depending on their point of transit”; those who “are not amenable to immediate expulsion to Mexico or Canada” are to be “transported to a dedicated facility”—“a tent, soft-sided facility[,] or predesignated [Customs and Border Protection/Border Patrol] facility with dedicated space”—“for limited holding prior to expulsions to the alien’s country of citizenship.” Id. at 16–17. “Covered aliens” who make “an affirmative, spontaneous[,] and reasonably believable claim that they fear being tortured in the country they are being sent back to” are to be referred to Citizenship and Immigration Services to determine if they should be provided an asylum hearing. Id. at 18. Those who are not “covered aliens” are to be “process[ed] under existing statutory authorities found in Title 8 of the U.S. Code,” which includes the TVPRA, the INA, and the FARRA, among other immigration statutes. ECF No. 15-5 at 16.
B. JBBC v. Wolf In an action filed on June 9, 2020, a minor from Honduras proceeding pseudonymously as J.B.B.C, who was apprehended by Customs and Border patrol agents after he crossed unaccompanied into the United States from Mexico, challenged the Title 42 Process, making substantially similar allegations as those made by Plaintiff here, with the exception of the class allegations. Compare ECF No. 1, with Complaint, JBBC v. Wolf, No. 20-cv-1509 (D.D.C. June 9, 2020), ECF No. 1. J.B.B.C. also filed a motion for a temporary restraining order seeking to enjoin his expulsion from the United States, arguing, as Plaintiff does here, that Section 265 does not authorize
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expulsion of non-citizens; that the Title 42 Process violates mandatory protections for unaccompanied non-citizen children included in the TVPRA as well as rights under the asylum and withholding of removal provisions of the INA; and that the Title 42 Process constitutes arbitrary and capricious agency action because it lacks a reasoned explanation as to why the agency failed to exempt unaccompanied children from its purview. Memorandum of Law in Support of Emergency Motion for Temporary Restraining Order at 8–16, JBBC, No. 20-cv-1509 (D.D.C. June 9, 2020), ECF No. 2-1. The government agreed not to return J.B.B.C. to Honduras pending resolution of that motion, and Judge Nichols entered an order temporarily staying his removal. Scheduling Order, JBBC, No. 20-cv-1509 (D.D.C. June 11, 2020), ECF No. 9; Hearing Transcript at 47, JBBC, No. 20-cv-1509 (D.D.C. June 26, 2020), ECF No. 39 [hereinafter, “JBBC Transcript”].
Judge Nichols held a hearing on June 24, 2020, on Plaintiff’s motion for a temporary restraining order and announced his ruling from the bench. He found that J.B.B.C. was likely to succeed on the merits of his claim. He stated, first, that there was a “serious question” about whether Section 265’s grant of the power “to prohibit the introduction of persons and property” could be read to “include[ ] the power also to remove or exclude persons who are already present in the United States,” noting that, while immigration statutes “reference the power to return or to remove,” Section 265 dies not include those terms. JBBC Transcript at 50. Second, he found that, even if Section 265 were read to include the power to remove, it would still have to be harmonized with immigration statutes, including those that “grant special protection to minors” and that “deal with communicable diseases and quarantines.” JBBC Transcript at 50. He further found that the CDC Director’s definition of “introduction” to include the power to expel from the United States was likely not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), because Section 265 “needs to be read in light of [immigration]
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statutes that the CDC director quite plainly has no special expertise reading” and because the CDC Director provided “little by way of analysis of what the power to prohibit the introduction of persons and property means.” JBBC Transcript at 50–51. Judge Nichols did not reach the question of whether the Title 42 Process is arbitrary and capricious, but indicated that he would “likely conclude that [it] . . . was not” because the steps the government has taken were “appropriate to ensure . . . the reduced communication of the disease.” Id. at 51. In addition, Judge Nichols ruled that J.B.B.C. had established that he was likely to suffer irreparable harm in the absence of a temporary restraining order and that the balance of harms and public interest weighed in favor of granting the motion in light of the fact that only a single individual was at issue and he had no symptoms of COVID-19. Id. at 51–52.
Although at the hearing, the parties in JBBC anticipated an expedited schedule for summary judgment briefing (id. at 53–54 (“I will stress that I would like the merits briefing to move quickly.”); Order, JBBC, No. 20-cv-1509 (D.D.C. June 24, 2020), ECF No. 38 (giving the parties five days to propose a summary judgment briefing schedule)), such briefing was ultimately unnecessary. On June 29, 2020, the parties filed a document stating that the government had “transferred the custody of [J.B.B.C.] to the Office of Refugee Resettlement”—presumably pursuant to the TVPRA, which directs that “unaccompanied alien child[ren]” from non-contiguous countries who are in the custody of the federal government must be transferred to the custody of that office “not later than 72 hours after determining that such child is an unaccompanied alien child,” 8 U.S.C. § 1232(b)(3); see also 6 U.S.C. § 279(b)(1)(A) (describing the functions of the Office of Refugee Resettlement)—“for immigration processing under Title 8 of the U.S. Code.” Notice to the Court at 1, JBBC, No. 20-cv-1509 (D.D.C. June 29, 2020). The government therefore planned to file a motion to dismiss the case as moot. Id. On July 2, 2020, an amended complaint was filed, adding
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E.Y., an unaccompanied non-citizen minor from Guatemala, as a plaintiff. Amended Complaint, JBBC, No. 20-cv-1509 (D.D.C. July 2, 2020), ECF No. 42. Declarations filed in connection with the government’s motion to dismiss the amended complaint represented that both J.B.B.C. and E.Y. had been excepted from the Title 42 Process and transferred to the custody of the Office of Refugee Resettlement in order that their cases could proceed in immigration court. Second Declaration of Robert Danley, ¶ 4, JBBC, No. 20-cv-1509 (D.D.C. July 23, 2020), ECF No. 47-1; Second Declaration of Danielle Hernandez, ¶ 4, JBBC, No. 20-cv-1509 (D.D.C. July 23, 2020), ECF No. 47-2. Thereafter, the plaintiffs filed a notice of voluntary dismissal on August 6, 2020. Plaintiffs’ Notice of Voluntary Dismissal Without Prejudice, JBBC, No. 20-cv-1509 (D.D.C. Aug. 6, 2020), ECF No. 48.
C. Plaintiff’s Complaint and Subsequent Developments According to the Complaint, Plaintiff is a 15-year-old boy from an indigenous Mayan family in Guatemala. ECF No. 1, ¶¶ 77, 79. His father resides in the United States and has a pending immigration case. Id., ¶ 78. Plaintiff alleges that he fled Guatemala after being threatened with death due to his father’s political opinions and also because he refused to join a gang. Id., ¶ 79. He entered the United States from Mexico and was apprehended by Border Patrol agents on or around August 11, 2020. Id. He was placed in custody in McAllen, Texas, and subjected to the Title 42 Process. Id. The Complaint further alleges that, according to Congressional testimony by the Acting Commissioner of Customs and Border Protection, as of June 25, 2020, “over 2,000 unaccompanied children had been deported under the Title 42 Process.” Id., ¶ 70. Correspondingly, the total number of children in the custody of the Office of Refugee Resettlement has plummeted: whereas
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in April, the office had 12,500 children in its custody, in May it had approximately 1,600 and in
June, approximately 975. Id., ¶ 73.
The Complaint pleads seven causes of action:
(1) The Title 42 Process violates mandatory provisions in the TVPRA relating to the processing, custody, release, and removal of unaccompanied children;
(2) The Title 42 Process was not authorized by Section 265, the provision under which it was purportedly established;
(3) The Title 42 Process violates provisions in the INA governing the processes by which a non-citizen can be granted withholding of removal;
(4) The Title 42 Process violates provisions in the INA governing the granting of asylum;
(5) The Title 42 Process violates the provision in the FARRA governing the determination of whether a non-citizen minor can be returned to a country where he is likely to face torture;
(6) The Title 42 Process violates provisions in the INA establishing the procedure by which the government may determine whether a non-citizen minor should be removed; and
(7) Applying the Title 42 Process to unaccompanied minors constitutes arbitrary and capricious agency action because the government failed to articulate a reasoned explanation and to consider relevant factors in making the decision to do so.
ECF No. 1, ¶¶ 108–146. In the Complaint and in his simultaneously-filed motion for class certi-
fication, Plaintiff seeks certification of a class comprising “[a]ll unaccompanied noncitizen chil-
dren who (1) are or will be detained in U.S. government custody in the United States, and (2) are
or will be subjected to the Title 42 Process”; he also requests appointment of class counsel. Id. at
30; see generally ECF No. 2-1. He further seeks a declaration that the Title 42 Process is unlawful
as applied to Plaintiff and the putative class and an order requiring Defendants to stay their expul-
sion from the United States under the Title 42 Process and afford the protections of the TVPRA,
INA, and FARRA. ECF No. 1 at 30.
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On August 14, 2020, after Plaintiff filed this action and his counsel met and conferred with counsel for the government, Defendants agreed not to subject Plaintiff to the Title 42 Process and to transfer him to the custody of the Office of Refugee Resettlement—a program of the Department of Health and Human Services responsible for the care of unaccompanied non-citizen children in the United States—to be processed pursuant to normal immigration procedures under Title 8 of the U.S. Code. ECF No. 15-1 at 20; ECF No. 44-2 at 28; see also ECF No. 14-1, ¶ 11. Plaintiff is currently residing in a shelter run by the Office of Refugee Resettlement. ECF No. 52-1, ¶ 3. Thereafter, on August 20, 2020, Plaintiff filed a motion for a preliminary injunction seeking an order enjoining Defendants from applying the Title 42 Process to the putative class members. ECF No. 15-2 at 1.
II. DISCUSSION A. Motion for Class Certification A party seeking class certification must show that it meets the “four threshold requirements” of Rule 23(a) of the Federal Rules of Civil Procedure: “(1) numerosity (a ‘class [so large] that joinder of all members is impracticable’); (2) commonality (‘questions of law or fact common to the class’); (3) typicality (named parties' claims or defenses ‘are typical . . . of the class’); and (4) adequacy of representation (representatives ‘will fairly and adequately protect the interests of the class’).” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (alterations in original) (quoting Fed. R. Civ. P. 23(a)). Where, as here, the plaintiff seeks certification of a class under Rule 23(b)(2), he must also show that “the party opposing the class has acted or refused to act on grounds generally applicable 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).
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Plaintiff has clarified that, at this point, he seeks only provisional class certification. ECF No. 15-1 at 2, 10 n.1. Although a plaintiff requesting provisional certification must still demonstrate that Rule 23’s requirements are met, the court’s normally “rigorous analysis” is “tempered [ ] by the understanding that such certifications ‘may be altered or amended before the decision on the merits.’” Damus v. Nielsen, 313 F. Supp. 3d 317, 329 (D.D.C. 2018) (first quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982), then quoting Bame v. Dillard, No. 05-cv-1833, 2008 WL 2168393, at *5 (D.D.C. May 22, 2008)); accord Kirwa v. Dep’t of Def., 285 F. Supp. 3d 21, 44 (D.D.C. 2017); see also, e.g., Afghan and Iraqi Allies Under Serious Threat Because of their Faithful Service to the U.S. v. Pompeo, No. 18-cv-1388 (TSC), 2019 WL 367841, at *1 n.1 (D.D.C. Jan. 30, 2019) (granting provisional class certification “for the sole purpose of resolving” a motion for preliminary injunction, a motion for partial dismissal, and a motion for expedited discovery).
As noted, Plaintiff seeks to certify a class of “[a]ll unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process.” ECF No. 1 at 30; ECF No. 2-1 at 7. Defendants do not address whether Plaintiff has made the required showing as to the first three Rule 23(a) requirements— numerosity, commonality, and typicality—or the Rule 23(b) cohesiveness requirement, that the government has acted or refused to act on grounds generally applicable to the class. Rather, the government argues only that Plaintiff is not an adequate class representative because he has “already effectively received the individual relief he sought in this lawsuit: to be processed pursuant to Title 8’s immigration procedures as opposed to being expelled under the CDC Order[s].” ECF
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No. 44-2 at 28. Nevertheless, the discussion below addresses each of the pertinent Rule 23 requirements. See, e.g., Damus, 313 F. Supp. 3d at 329 (addressing each of the Rule 23 requirements but only “briefly analyz[ing]” those that were uncontested).
1. Numerosity A putative class is sufficiently numerous to justify class action treatment when there are enough members that joinder would be impractical. See, e.g., Amchem, 521 U.S. at 613. “Generally speaking, courts have found that a proposed class of at least forty members will satisfy” this requirement. Bynum v. District of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003) (collecting cases). Moreover, “classes including future claimants generally meet the numerosity requirement due to the ‘impracticality of counting such class members, much less joining them.’” JD v. Azar, 925 F.3d 1291, 1322 (D.C. Cir. 2019) (per curiam) (quoting 1 Rubenstein, Newberg on Class Actions § 3.15). “[P]recise quantification of the class members is not necessary because the court may make common sense assumptions to support a finding of numerosity.” Bynum, 214 F.R.D. at 32 (quoting Civic Ass’n of Deaf of N.Y.C. v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996)). Thus, the plaintiff must only provide a “reasonable basis for the estimate provided.” Damus, 313 F. Supp. 3d at 330 (quoting Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999)). Here, Plaintiff has provided evidence, including government and news reports, that in the period between April and July 2020, almost 6,000 unaccompanied non-citizen children were apprehended at the southwest border; that more than 2,000 unaccompanied non-citizen children had been expelled from the United States pursuant to the Title 42 Process as of late June 2020; and that, between June 24, 2020 (when Judge Nichols issued his ruling in JBBC) and August 14, 2020 (when the motion for class certification in this case was filed) counsel for Plaintiff have themselves
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identified dozens of unaccompanied non-citizen children subject to the Title 42 Process. ECF No. 2-2 at 1–2, 11–29. The undersigned thus finds that the numerosity requirement is met.
2. Commonality “The commonality requirement asks whether ‘there are questions of law or fact common to the class.’” JD, 925 F.3d at 1321. A class’ claims depend on a “common contention” such that this requirement is met where “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.” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). “[E]ven a single common question will do.” Wal-Mart, 564 U.S. at 359. This case challenges expulsion under the Title 42 Process, which is “a uniform policy or practice that affects all class members.” RIL-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015) (quoting DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013)). Determination that the Title 42 Process is not permitted by existing law because Section 265 does not provide authority for expulsion of unaccompanied non-citizen children from the United States will resolve the core issue in this action “in one stroke.” JD, 925 F.3d at 1321. And “there [ ] is no evident variation among [the putative class members] concerning their ultimate entitlement to relief: if any person in the class has a meritorious claim, they all do.” Id. Therefore, the commonality requirement is met.
3. Typicality “[T]ypicality concerns the relationship between the representative’s individual claims and the class’ claims rather than the relatedness of the entire class’ claims.” Id. at 1322. That is, “the typicality requirement focuses on whether the representatives of the class suffered a similar injury from the same course of conduct” that injured the putative class members. Bynum, 214 F.R.D. at
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34. Where “the claims or defenses of the representatives and the members of the class stem from a single event or unitary course of conduct, or if they are based on the same legal or remedial theory,” typicality is satisfied. JD, 925 F.3d at 1322 (quoting 7A Mary Kay Kane, Federal Practice and Procedure § 1764). The claim Plaintiff has pleaded in the Complaint is on all fours with the claims of the putative class. They stem from a unitary course of conduct—expulsion of unaccompanied non-citizen children from the United States under the Title 42 Process—and are based on the same legal theories. Hence, this requirement is also met.
4. Adequacy “Adequacy of representation imposes two criteria on plaintiffs seeking to represent a class: ‘(1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.’” Ramirez v. ICE, 338 F. Supp. 3d 1, 47 (quoting Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)). Defendants have not identified any interest that Plaintiff has that is antagonistic to or conflicts with the putative class members and none are apparent. Indeed, courts have found that where, as here, the plaintiff “seek[s] 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) (Sullivan, J.). The government instead argues that, it having voluntarily excepted Plaintiff from expulsion under the Title 42 Process—as the government has apparently done with all other unaccompanied non-citizen minors that Plaintiff’s counsel has brought to its attention, including the two plaintiffs in JBBC (ECF No. 2-2 at 2–3)—Plaintiff is no longer motivated to prosecute the interests of the class. For that reason, the government contends
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that “[t]here is no evidence that Plaintiff would vigorously pursue class claims, and his interest is presumably now focused on his own Title 8 immigration proceeding.” ECF No. 44-2 at 28–29.
First, as Defendants recognize, “the D.C. Circuit has held that the fact that a putative class representative’s case is moot at the time of certification does not alone moot the case or otherwise render the putative class representative inadequate.” Id. at 29 (citing JD, 925 F.3d at 1313). Indeed, “the Supreme Court has specifically recognized that a plaintiff with a moot claim may serve as a class representative.” JD, 925 F.3d at 1313 (citing U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980), and Sosna v. Iowa, 419 U.S. 393, 402–03 (1980)). As Plaintiff points out, the “short-lived duration” of a putative class representative’s claim “only reinforces [the claim’s] inherently transitory nature,” and makes certifying a class more appropriate, not less. JD, 925 F.3d at 1313 (noting further that “the ephemerality of individual claims makes class-action treatment ‘particularly important’ so as to ‘ensur[e] that a justiciable claim is before the Court.’” (alteration in original) (quoting Gratz v. Bollinger, 539 U.S. 244, 268 (2003))). That is precisely what happened in JD—the D.C. Circuit allowed two named plaintiffs to serve as class representatives notwithstanding the fact that their claims were moot.6 JD, 925 F.3d at 1313. And, in a declaration filed with his Reply, Plaintiff has reaffirmed his willingness to act as class representative and to “vigorously pursue this case.” ECF No. 52-1 at 1 (Declaration of P.J.E.S.). Defendants’ speculation that Plaintiff’s attention is “presumably” focused elsewhere does not undermine that evidence. See, e.g., JD, 925 F.3d at 1313 (rejecting the government’s objection that the named plaintiffs with moot claims were inadequate to represent the class where “beyond noting the mootness of [their] claims, [it] identifie[d] no reason to doubt their ability to vigorously press the action”); Ramirez,
6 Defendants do not claim that the entire action is moot because Plaintiff’s claim is moot. Therefore, there is no need to address whether the exceptions to mootness for practices that are capable of repetition yet evading review or those that the defendant has voluntarily ceased to engage in apply here.
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338 F. Supp. 3d at 47 (finding that the plaintiffs had met their burden to show that the proposed class representatives were adequate based on “declarations attesting their willingness and abilities to take an active role in th[e] litigation and to protect the interests of absent plaintiffs”).
Finally, the government has not suggested that counsel here is unqualified to act as class counsel. See, e.g., In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d 14, 94–95 (D.D.C. 2017) (noting that a proposed representative is adequate if his interests do not conflict with the interests of other class members and “he will vigorously prosecute the interests of the class through qualified counsel” (quoting Lindsay v. Gov’t Emps. Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008)). Plaintiff is represented by attorneys from the American Civil Liberties Union and the American Civil Liberties Union of the District of Columbia, who have submitted declarations detailing their extensive experience in complex class actions, including class actions involving immigration rights. ECF No. 2-2, ¶¶ 13–33; ECF No. 2-3, ¶¶ 2–4. The undersigned thus finds that Plaintiff is an adequate class representative who, with his counsel, will vigorously pursue the claims of the putative class. See, e.g., Damus, 313 F. Supp. 3d at 331 (finding the adequacy requirement met where “[n]o trace of a conflict exist[ed] [ ], and Plaintiffs [were] represented by very capable counsel from the American Civil Liberties Union . . . .”).
5. Cohesiveness Plaintiff seeks certification under Rule 23(b)(2), which, as noted, requires that (1) “the party opposing the class has acted or refused to act on grounds that apply generally to the class,” and (2) “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “A principal purpose of Rule 23(b)(2) class actions is to enable class resolution of civil-rights claims alleging classwide deprivations of protected
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rights.” JD, 925 F.3d at 1314. Both of the Rule’s requirements are met here—a conclusion that the government again does not contest.
First, the Complaint alleges that the government “has acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2); see ECF No. 1 at 25. The gravamen of the claims here is that the government applied the allegedly illegal Title 42 Process to the putative class members—indeed, the class definition makes clear that the class includes only unaccompanied non-citizen minors who are or will be “subjected” to that process. ECF No. 1 at 25, 30; ECF No. 2-1 at 7. That is sufficient. See, e.g., Nio v. Dep’t of Homeland Sec., 323 F.R.D. 28, 34– 35 (D.D.C. 2017) (finding that Rule 23(b)(2)’s requirements were satisfied where the plaintiffs “challeng[ed] the application of standardized [immigration] policies that generally appl[ied] to the class”). Second, the Complaint seeks the same injunctive and declaratory relief for the entire class—i.e., an injunction enjoining enforcement of the Title 42 Process against Plaintiff and the putative class members, an order requiring the government to remove Plaintiff and the putative class members from that process, and a declaration that the Title 42 Process is unlawful as applied to Plaintiff and the putative class members. ECF No. 1 at 30. That, too, is sufficient. See, e.g., Ramirez, 338 F. Supp. 3d at 48 (finding that Rule 23(b)(2)’s requirements were met where the plaintiffs sought “injunctive relief requiring only [ ] compliance” with the TVPRA and not “a court order mandating any particular outcome with respect to any particular former unaccompanied minor” under the statute).
For these reasons, Plaintiff’s motion for class certification should be provisionally granted.
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B. Preliminary Injunction A preliminary injunction is an “extraordinary remedy” that “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To be entitled to a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “The first two factors of the [ ] standard are the most critical.” Nken v. Holder, 556 U.S. 418, 434 (2009). The last two factors—the balance of hardships and public interest—merge when the government is the party opposing the preliminary injunction. Ctr. for Pub. Integrity v. Dep’t of Def., 411 F. Supp. 3d 5, 14 (D.D.C. 2019) (citing Nken, 556 U.S. at 435).
1. Likelihood of Success on the Merits Plaintiff contends that Section 265, the provision upon which the CDC primarily relied to promulgate the Interim Final Rule and, by extension, the CDC Orders, does not authorize the government to expel him or the putative class members from the United States outside of the removal process of the INA and without other safeguards included in Title 8 of the U.S. Code, including special protection for unaccompanied minors mandated in the TVPRA and the ability to make an asylum claim.7 ECF No. 15-1 at 10–11; ECF No. 55-1 at 9. He relies on interpretations of the vocabulary of Section 265, its context within the subsection of the Public Health Service Act it occupies, its relationship to other relevant statutes, and its legislative and enforcement history.
7 Plaintiff has requested that the Court defer ruling on its claim that the Interim Final Rule and the CDC Orders constitute arbitrary and capricious agency action in light of the promulgation of the Final Rule, which will shortly become effective, and also because the Court does not have a full administrative record. ECF No. 51-1 at 25. Because the undersigned finds that Plaintiff has demonstrated that he is likely to succeed on the merits of his claims that the statute at issue—Section 265—did not authorize expulsion from the United States under the Title 42 Process, the undersigned will not address that claim, consideration of which will benefit from access to the administrative record.
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Application of these traditional tools of statutory interpretation establish that Plaintiff is likely to prevail in his argument that the CDC Orders instituting the Title 42 Process exceed the authority granted by Congress pursuant to Section 265. See Chevron, 467 U.S. at 842–43 & n.9 (stating that, when a court “employing traditional tools of statutory construction” determines that a statute is unambiguous, it must “give effect to the unambiguously expressed intent of Congress” and “reject administrative constructions which are contrary” to that intent).
The “interpretation of [Section 265] ‘begins where all such inquiries must begin: with the language of the statute.’” U.S. Ass’n of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)). The provision states that, when the CDC Director determines that a serious danger of the introduction of a communicable disease that exists in a foreign country into the United States 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 public health,” then the CDC Director shall, in accordance with valid regulations, “have the power to prohibit, in whole or in part, the introduction of persons and property” from such countries for the amount of time he deems necessary to protect the public health. 42 U.S.C. § 265.
The government has made clear, both in its briefing here and in the Final Rule, that it interprets the word “introduction” to “suggest[ ] a continuing process that is most naturally read to extend beyond a person’s immediate physical crossing of the border” and that “to ‘prohibit . . . the introduction’ naturally means to intercept or prevent such a process.” ECF No. 44-2 at 31; see also Final Rule, 85 Fed. Reg. at 56,425–56,426 (stating that the term “introduction” includes the situation “when a person on U.S. soil moves further into the United States”).
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Assuming without deciding that the government’s interpretations of the word “introduction” and the phrase “prohibit . . . the introduction” are legally sound,8 Defendants parsing of the
plain text of the statute makes an unsupported (and unwarranted) logical leap at that point by as-
serting that “[t]he statute’s reference to prohibiting the introduction ‘in whole or in part’ supports
the interpretation that a person may be intercepted and then quarantined in the United States or
intercepted and then expelled.” ECF No. 44-2 at 31(emphasis added); see also Final Rule, 85 Fed.
Reg. at 56,425–56,426 (stating that the phrase “prohibit, in whole or in part, the introduction into
the United States of persons” includes the power of “physically expelling from the United States
some or all of the persons”). Put simply, accepting that “to ‘prohibit . . . the introduction’” means
“to intercept or prevent such a process” does not lead to the conclusion that “prohibition,” “inter-
ception,” or “prevention” includes “expulsion.” Indeed, the primary definition of “prohibit” is “to
forbid by authority or command,” to “enjoin” or “interdict,” Prohibit, Merriam-Webster Una-
bridged Dictionary; of “intercept” is “to take, seize, or stop by the way or before arrival at the
destined place: stop or interrupt the progress or course of,” Intercept, Merriam-Webster Una-
bridged Dictionary; of “prevent” is “to deprive of power or hope of acting, operating, or succeeding
in a purpose,” Prevent, Merriam-Webster Unabridged Dictionary. These each connote stopping
8 Plaintiff has not conceded that they are so. Rather, he has constructed an intricate argument contending that, because “[a]s a matter of ordinary language and usage,” relying on dictionary definitions of the word, “introducing a person into a country or place is an action taken by a third party,” the use of the word “introduction” in the statute must be “directed not at individuals seeking to come to the United States, but rather those proposing to bring such individuals here.” ECF No. 15-1 at 25–26. That interpretation is, according to Plaintiff, reinforced by the statutory context of the 1893 Act, which was “shot through with provisions specifically directed at the regulation of ships”—that is, vessels that were bringing “persons and property” into the country—whereas statutes authorizing deportations of people at the time explicitly authorized the removal or return of the person. Id. at 27. Moreover, examining the remarks of proponents of the 1893 Act in the Senate, Plaintiff finds evidence that they, too, were focused on the ships arriving in the United States, rather than those arriving on their own steam at land borders. Id. at 28. Finally, Plaintiff notes that, “to [his] knowledge, the only time the [1893 Act] has been invoked to prohibit the introduction of persons was in 1929, and it did not authorize deportations.” Id. at 28–29 & n.10. Thus, Plaintiff argues, Section 265 reflects that Congress designed the statute “as a means to stop travel from countries experiencing an outbreak of disease by regulating the transportation companies that bring people to the United States.” Id. at 25. The undersigned does not pass on the soundness of that argument because there is a more direct route to determine the statute’s meaning, which is discussed below.
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something before it begins, rather than remedying it afterwards. That is reinforced by the title of the Section 265: “Suspension of entries and imports from designated places to prevent spread of communicable diseases.” 42 U.S.C. § 265 (emphasis added); see Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528–29 (1947))).
The government purports to find support for its interpretation that the statute encompasses the authority to expel individuals from the United States in the phrase “in whole or in part”: “[t]he statute’s reference to prohibiting the introduction ‘in whole or in part’ supports the interpretation that a person may be intercepted and then quarantined in the United States or intercepted and then expelled.” ECF No. 44-2 at 31. The government stretches the syntax of that clause well past its breaking point. Its argument works only if one believes that Congress, through the statutory language, intended “prohibit[ion] . . . in part” to mean “apprehension and quarantine” and “prohibit[ion][ ] in whole” to mean “apprehension and expulsion.” But regular English usage does not consider “prohibition”—or “introduction,” for that matter—to be a quantity that can be divided into pieces. There is a far more natural reading of the clause in its context: that the CDC Director “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,” 42 U.S.C. § 265, means that he may prohibit the introduction of some persons or property from those places or all persons or property from them. That is, “in whole or in part” relates to the proportion of persons or property from designated places to be intercepted and denied entry; it does not purport to define the type of actions that the CDC Director may take in order to intercept and deny entry. Surely, then, the most natural reading
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of the provision is that it contemplates interception to prevent an individual from arriving in the United States, rather than to expel him once he has arrived.
Indeed, that interpretation is further supported by the statutory context. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 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))). Adjacent to Section 265 of the Public Health Service Act, 42 U.S.C. § 264 (“Section 264”), entitled “Regulations to control communicable diseases,” is one of the provisions on which the CDC relied in promulgating both the Interim Final Rule and the Final Rule. See Interim Final Rule, 85 Fed. Reg. at 16,563 (“In addition to section 362”—that is, 42 U.S.C. § 265—“other sections of the [Public Health Service] Act are relevant to this rulemaking, including . . . 42 U.S.C. section 264 . . . .”); Final Rule, 85 Fed. Reg. at 56,443 (same). That provision addresses regulations that the government is “authorized to make and enforce . . . to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States or possessions,” 42 U.S.C. § 264(a), that is, regulations governing situations similar to those addressed by Section 265. Tellingly, Section 264 does not contemplate regulations that authorize expulsion from the United States. Rather, the provision mentions only regulations that “provide for the apprehension, detention, or conditional release of individuals.”9 42 U.S.C. § 264(b). More, those regulations allow for the “apprehension, detention, examination, or conditional release of individuals” but only if the individual is “coming into a State or possession from a foreign country or
9 As noted, conditional release is a public health tool that “involves the release of potentially infected individuals from federal custody subject to conditions calculated to mitigate the risk of disease transmission, such as mandatory selfisolation and CDC monitoring at home.” March 20 Order, 85 Fed. Reg. at 17,061.
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possession.”10 42 U.S.C. § 264(c). Importantly, the power to expel such individuals from the United States is not mentioned. That is, in a section where one would expect the term to appear— where 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.
Indeed, expulsion from the United States is nowhere mentioned in the statute. The statute is shot through with references to quarantine—unsurprising given the provisions at issue are part of the Public Health Act and address the power of the Surgeon General to mitigate the risk of contagious disease—but it contains not a word about the power of the Surgeon General to expel anyone who has come into the country. See, e.g., 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”); 42 U.S.C. § 268 (entitled “Quarantine duties of consular and other officers”); 42 U.S.C. § 270 (entitled “Quarantine regulations governing civil air navigation and civil aircraft”); 42 U.S.C. § 271 (entitled “Penalties for violation of quarantine laws”); 42 U.S.C. § 272 (entitled “Administration of oaths by quarantine officers”). Even the provision governing “[s]pecial quarantine powers in time of war” provides for only examination and detention—arguably the opposite of expulsion. 42 U.S.C. § 266. The statute also prescribes the penalty for violating “any regulation prescribed under section 264 to 266” as punishment by fine or imprisonment of up to one year. 28 U.S.C. § 271(a). Again, there is no mention of expulsion.
It is unlikely then that, having repeatedly identified the tools the government can use to prevent the introduction and spread of communicable diseases—none of which expressly include
10 There is an exception allowing apprehension and examination of individuals already in the country but only if they are “reasonably believed” to be (1) “infected with a communicable disease in a qualifying stage” and either (2) “moving or about to move from a State to another State” or (3) “a probable source of infection to individuals who . . . will be moving from a State to another State.” 42 U.S.C. § 264(d)(1). Upon a finding that such an individual is infected, regulations may also provide for detention “for such time and in such manner as may be reasonably necessary.” 42 U.S.C. § 264(d)(1).
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expulsion of individuals from the United States—Congress intended by that silence, and the language it chose for Section 265, to give the government that power. A power which, as the Plaintiff points out without contradiction from the Defendant, the government has not claimed in the more than 75 years Section 265 was enacted. ECF No. 15-1 at 28–29 & n.10. “When an agency claims to discover in a long-extant statute an unheralded power,” courts should “greet its announcement with a measure of skepticism.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) (rejecting an agency’s interpretation of its governing statute when it claimed a significant expansion of regulatory authority “without clear congressional authorization”).
That interpretation is buttressed by the fact that, as Plaintiff points out, when Congress wants to grant the power to expel individuals out of the United States, it does so plainly. Plaintiff cites statutes from as early as 1882 that explicitly authorize removal of individuals from the country. The statute known as the Chinese Exclusion Act stated that “any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came” after a court had found that the individual was “not lawfully entitled to be or remain in the United States.” An Act to Execute Certain Treaty Stipulations Relating to the Chinese, ch. 126, § 12, 22 Stat. 58, 61 (May 6, 1882). A 1891 statute concerning the importation of aliens under contract to perform labor provided that “all aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in” and that “any alien who shall come into the United States in violation of law may be returned as by law provided.” An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor, ch.551, §§ 10–11, 26 Stat. 1084, 1086 (Mar. 3, 1891). The same is true of modern statutes. 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
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is “not clearly and beyond a doubt entitled to be admitted” to be “return[ed] . . . to that territory pending a proceeding”); 8 U.S.C. § 1231(a)(1)(A) (“Except as otherwise provide 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 . . . .”); 8 U.S.C. § 1232(a)(2)(B) (allowing “an immigration officer who finds an unaccompanied alien child” who is a national or habitual resident of a contiguous country “at a land border or port of entry of the United States and determines that such child is inadmissible” to “return such child to the child’s country of nationality or country of last habitual residence”); 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, as Plaintiff emphasizes, Congress has made clear when public health concerns merit disallowing a non-citizen to remain in the United States. Section 1182 of Title 8 makes inadmissible “[a]ny alien . . . who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance.” 8 U.S.C. § 1182(a)(1)(A)(i). But Section 265 contains no such clear language, which indicates that Congress did not intend to grant that power.11 See JBBC Transcript at 49–50 (finding that Section 265 does not “permit[ ] the return of individuals” to their home countries in part because Congress did not use terms like “return” or “remove,” which are used in immigration statutes); cf. Epic Sys., __ U.S. at __, 138 S. Ct. at 1626 (noting other statutes in which Congress had
11 Relying on a single statement in dicta from a 1983 Supreme Court case, the government argues that an “interpretative approach” that looks to the language used in one statute to interpret the meaning of another has been “rejected.” ECF No. 44-2 at 15 (citing Russello v. United States, 464 U.S. 16, 25 (1983)). Not so. As Plaintiff points out, the Supreme Court regularly uses that “interpretive approach.” ECF No. 51-1 at 15 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020) (“History shows that Congress knows how to withdraw a reservation . . . .”); Rotkiske v. Klemm, __ U.S. __, __, 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, __ U.S. __, __,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)).
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mandated particular dispute resolution procedures to find that Section 7 of the National Labor Relations Act does not confer a right to class or collective actions because “[w]hen Congress wants to mandate particular dispute resolution procedures it knows exactly how to do so”); Merck & Co. v. Dep’t of Health and Human Servs., 385 F. Supp. 3d 81, 96 (D.D.C. 2019) (stating that the fact that Congress “precisely legislated” in an area in one statute indicates that such power was not granted by a different statute because “Congress knows how to speak on that subject when it wants to”), aff’d, 962 F.3d 531 (D.C. Cir. 2020).
Indeed, the power the government claims under Section 265 is breathtakingly broad. The Interim Final Rule notes that, by speaking of “persons,” rather than “non-citizens” or “aliens,” Section 265 also applies to citizens. Interim Final Rule, 85 Fed. Reg. at 16,564. The Final Rule also indicates that Section 265 covers citizens. Final Rule, 85 Fed. Reg. at 56,448. The government consequently admitted before Judge Nichols that the section authorizes the government to expel even U.S. citizens who arrive from a foreign country during a pandemic. JBBC Transcript at 26–27. Yet, it is unlikely that Congress would grant the CDC Director the power to expel citizens from the United States without making a clear statement to that effect. Indeed, as Plaintiff points out (ECF No. 15-1 at 23; ECF No. 51-1 at 12), the Supreme Court has stated that the power to remove a citizen from the country “must be affirmatively granted” in order to exist. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 12 (1936). Section 265 includes no such affirmative grant. And if Section 265 were read to include that power, it would raise serious constitutional issues. See, e.g., Doe v. Mattis, 928 F.3d 1, 8 (D.C. Cir. 2019) (“A fundamental attribute of United States citizenship is a ‘right to . . . remain in this country’ . . . .”) (first alteration in original) (quoting Mandoli v. Acheson, 344 U.S. 133, 139 (1952))); Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 967 (3d Cir. 2019) (“The Executive cannot deport a citizen.”). The government has acknowledged
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the “complex and important legal and policy questions presented by the potential application of [Section 265] to U.S. citizens, U.S. nationals, and [legal permanent residents].” Final Rule, 85 Fed. Reg. 56,424-01, 56,448; see also Interim Final Rule 85 Fed. Reg. 16,559-01, 16,564 (“Determining the appropriate protections for U.S. citizens and lawful permanent aliens requires complex balancing of numerous interests and would benefit from additional consideration and public comment.”). As the Supreme Court has instructed, “[i]f one [proposed statutory construction] would raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the Court.” Clark v. Suarez Martinez, 543 U.S. 371, 380-81 (2005).
Furthermore, as Judge Nichols also found, Section 265 must be read in conjunction with statutes governing immigration under Title 8 of the U.S. Code. JBBC Transcript at 50 (“Even if the power to remove were read [into] [S]ection 265, the plaintiff has [a] likelihood of success because the provision . . . should be harmonized, to the maximum extent possible, with immigration statutes, including those . . . that grant special protections to minors and also those . . . that deal with communicable diseases and quarantines.”). The Supreme Court has recently reaffirmed that “[i]t is [a] [c]ourt’s duty to interpret Congress’ statutes as a harmonious whole rather than at war with one another.” Epic Sys., __ U.S. at __, 138 S. Ct. at 1619. Here, if Section 265 is read to allow expulsion from the United States of unaccompanied minors like Plaintiff and the putative class members, it conflicts with various rights granted in the TVPRA and the INA.12
12 The Complaint also claims that the Title 42 Process conflicts with provisions in FARRA, which implements Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). ECF No. 1, ¶¶ 130–136 (citing the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (codified at 8 U.S.C. § 1231 note)). Defendants point out that the implementation of the CDC Orders allows CAT screenings and, moreover, that because the CAT is not self-executing, domestic statutes implementing the obligations under the treaty are controlling. ECF No. 44-2 at 43 n.15 (citing Medellin v. Texas, 552 U.S. 491, 504–05 & n.2 (2008), and Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (en banc)). In its Reply, Plaintiff focuses on asylum screenings under the TVPRA rather than the CAT or FARRA. ECF No. 55-1 at
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First, the TVPRA. The statute was passed “to enhance the efforts of the United States to prevent trafficking in persons,” specifically unaccompanied alien children in the United States. 8 U.S.C. § 1232(a)(1). It imposes certain mandatory obligations on the government and provides certain rights to unaccompanied alien minors, including that an unaccompanied alien child (other than one from a contiguous country, to whom special rules apply) must be placed in removal proceedings under the INA and must be provided access to counsel. 8 U.S.C. § 1232(a)(5)(D). They must also be transferred into the custody of the Office of Refugee Resettlement within 72 hours after it has been determined that the individual is an unaccompanied alien child. 8 U.S.C. § 1232(b)(3); 6 U.S.C. § 279(a), (b)(1)(A); see also JD, 925 F.3d at 1300–02 (describing the TVPRA’s statutory scheme). Second, the INA provides additional protections for non-citizens, including unaccompanied children. Section 1231(b)(3) prohibits the removal of a non-citizen to a country where he is likely to face persecution because of his race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). The decision regarding whether “the exclusion, deportation, or removal of an alien” to such country shall be withheld must be made by an immigration judge. 8 C.F.R. § 1208.16(a). Similarly, the INA provides that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . may apply for asylum,” 8 U.S.C. § 1158(a)(1), with certain exceptions not relevant here. Unaccompanied alien children are excepted from the one-year deadline that normally applies to asylum applications and from the option to be removed to a third country where the asylee would not be subject to persecution and would have access to a fair asylum procedure. 8 U.S.C. § 1158(a)(2)(A), (B), (E). It is undisputed that the summary expulsions of the Title 42 Process render these protections and procedures unavailable. ECF No. 44-2 at 41–48.
25. Because the question of whether the Title 42 Process likely violates FARRA is unnecessary to the determination here, the undersigned does not address it.
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The government contends that Section 265 “takes precedence over the identified immigration provisions.” ECF No. 44-2 at 41. But “[a] party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing ‘a clearly expressed congressional intention’ that such a result should follow.” Epic Sys., __ U.S. at __, 138 S. Ct. at 1624 (some internal quotation marks omitted) (quoting Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)). The conventional way to signal that one statutory provision is intended to override conflicting provisions is the construction, “Notwithstanding any other provision of law.” See, e.g., Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) (“As we have noted previously in construing statutes, the use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section. Likewise, the Courts of Appeal generally have ‘interpreted similar “notwithstanding” language . . . to supersede all other laws, stating that “[a] clearer statement is difficult to imagine.”’” (alterations in original) (internal citation omitted) (some internal quotation marks omitted) (quoting Liberty Mar. Corp. v. United States, 928 F.2d 413, 416 (D.C. Cir. 1991))); see also, e.g., Epic Sys., __ U.S. at __, 138 S. Ct. at 1626 (“Congress has [ ] shown that it knows how to override the Arbitration Act when it wishes—by explaining, for example, that, ‘[n]otwithstanding any other provision of law, . . . arbitration may be used . . . only if’ certain conditions are met . . . .” (some alterations in original) (quoting 15 U.S.C. § 1226(a)(2))).
Here, the government attempts to find such a clear statement of congressional intent to override the provisions of Title 8 of the U.S. Code in the statement Section 265’s language referring to a “suspension of the right to introduce such persons and property,” asserting that “[t]he phrase ‘suspension of the right to introduce’ [ ] naturally means the temporary cessation of the
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effect of any laws, including immigration laws, pursuant to which a person might otherwise claim a right to be introduced into the United States.” ECF No. 44-2 at 42.
Defendants’ argument is not likely to succeed. The phrase in Section 265 is not “a clearly expressed congressional intention,” Epic Sys., __ U.S. at __, 138 S. Ct. at 1624, that an order promulgated under that section can override conflicting provisions of Title 8 of the U.S. Code. Unlike the “notwithstanding” clause that the Supreme Court has approved as sufficiently clear, the phrase contains no reference to the suspension of laws or specific rights. Indeed, the examples the government provides to support its notion that the term “suspension” overrides the operation of conflicting laws help to prove the opposite. For example, Defendants cite 10 U.S.C. § 123(a), which allows—during wartime or national emergency—the President to “suspend the operation of any provision of law relating to the promotion, involuntary retirement, or separation of commissioner officers.” ECF No. 44-2 at 42. But that statute explicitly suspends the “operation of any provision of law,” much like a “notwithstanding” clause explicitly identifies “any other provision of law.” Similarly, the Suspension Clause of the Constitution specifically identifies the right suspended by stating that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art I, § 9, cl. 2, quoted in ECF No. 44-2 at 42. In short, Defendants have not shown that the vague language of Section 265 evinces congressional intention to allow an order by the CDC Director to suspend the operation of all immigration laws.
Defendants’ remaining contentions are no more successful. They cite the canon of statutory construction that a more specific provision targeting a particular issue will generally trump a provision more generally covering the issue, arguing that Section 265 is more specific than the immigration laws Plaintiff cites “because it applies only in a rare and specific circumstance.” ECF
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No. 44-2 at 46. That canon is most often applied when the two provisions “are interrelated and closely positioned, both in fact being parts of [the same statutory scheme].” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (alterations in original) (quoting HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (per curiam)). That is not the case here. Moreover, the immigration laws cited are clearly part of a “comprehensive scheme [that] has deliberately targeted specific problems with specific solutions.” RadLAX, 566 U.S. at 645 (quoting Varity Corp. v. Howe, 516 U.S. 489, 519 (1996) (Thomas, J., dissenting)). It is not clear how Section 265–which Defendants suggest is a broad grant of discretion to the CDC Director to regulate the introduction of communicable diseases into the United States (see, e.g., ECF No. 44-2 at 14–15 (describing the “broad power” granted by Section 265))—could be considered more specifically targeted to matters of immigration or as providing more specific solutions.
Finally, Defendants suggest that a reading of Section 265 that does not authorize the CDC Director to issue orders allowing expulsion from the United States of unaccompanied non-citizen children outside the processes mandated by Title 8 of the U.S. Code renders the statute a nullity. That point requires little discussion. Plaintiff’s concede that the CDC Director has authority to bar entry into the country, at least through the regulation of vessels (including airplanes) arriving in the United States. ECF No. 15-1 at 28–30 & n.9 (citing Criteria for Requesting Federal Travel Restrictions for Public Health Purposes, 80 Fed. Reg. 16,400 (Mar. 27, 2015), which addresses the “Do Not Board” list, “enabling domestic and international public health officials to request that individuals with communicable diseases who meet specific criteria . . . be restricted form boarding commercial aircraft arriving into, departing from, or traveling within the United States.”); ECF No. 51-1 at 16; ECF No. 15-5 at 7 (attaching Executive Order No. 5143, which reads, “[I]n order to prevent the further introduction of epidemic cerebrospinal meningitis form foreign ports into
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the United States, by virtue of the authority vested in me by Section 7 of the Act of Congress approved February 15, 1893 [now 42 U.S.C. § 265] . . . it is ordered that no persons may be introduced directly or indirectly by transshipment or otherwise into the United States or any of its possessions or dependencies from any port in China (including Hong Kong) or the Philippine Islands . . . .”). Again, those violating a barring order may be prosecuted and face up to one year of imprisonment. 42 U.S.C. § 271(a). The CDC Director can also, pursuant to valid regulations, apprehend, examine, quarantine, or conditionally release persons traveling into the United States from a foreign country.13 42 U.S.C. § 264(a), (c). What the statute has not authorized him to do, however, is to summarily expel members of the class from the United States in derogation of its immigration laws. But as Plaintiff points out, that Section 265 “does not authorize this particular invocation—an order singling out particular noncitizens, including unaccompanied children, and overriding protections for those individuals—does not [ ] make the statute meaningless.”14 ECF No. 51-1 at 23.
The fact that the government may believe that, without the power to summarily expel unaccompanied non-citizen children, Section 265 is not up to the task of preventing the introduction or spread of a communicable disease in the United States does not change the legal question of what the statute allows. “[A]gencies are ‘bound, not only by the ultimate purposes Congress has
13 And presumably, while quarantined, the immigration process can go forward, including medical examination under 8 U.S.C. § 1222(a) (authorizing examination and detention of aliens to determine whether they have a communicable disease) and application of 8 U.S.C § 1182(a)(1)(i) (making inadmissible any alien who is determined to have a communicable disease of public health significance). 14 For this reason, IRLI’s amicus brief misses the mark. The organization argues that immigration statutes governing asylum, removal of non-citizens, and the trafficking of children in the INA and TVPRA do not implicitly repeal Section 265. See generally ECF No. 48-1. But there is no question of implicit repeal here because neither is Section 265 “in irreconcilable conflict” with those immigration provisions—they can co-exist—nor were those immigration provisions “clearly intended as a substitute” for Section 265. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976) (identifying the “two well-settled categories of repeals by implication—(1) where provisions in the two acts are in irreconcilable conflict . . . ; and (2) [where] the later act covers the whole subject of the earlier one and is clearly intended as a substitute” (quoting Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503 (1936)).
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selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those pur-
poses.’” Merck, 962 F.3d at 536 (quoting Colo. River Indian Tribes v. Nat’l Indian Gaming
Comm’n, 466 F.3d 134, 139–40 (D.C. Cir. 2006)). To the extent those means seem insufficient,
“the proper approach under our system of separation of powers is for Congress to amend the stat-
ute, not for the Executive Branch and the courts to rewrite the statute beyond what the statute’s
terms can reasonably bear.” District of Columbia v. Dep’t of Labor, 819 F.3d 444, 450 (D.C. Cir.
2016). For these reasons, Plaintiff is likely to succeed on the merits of his claim.15
2. Irreparable Injury
To show irreparable injury sufficient to merit a preliminary injunction, the plaintiff must
establish that the injury is “certain and great” and “of such imminence that there is a ‘clear and
present need for equitable relief.’” Chaplaincy of Full Gospel Churches v. England, 454 F. 3d
290, 297 (D.C. Cir. 2006) (emphasis omitted) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674
(D.C. Cir. 1985)). That said, “a preliminary injunction requires only a likelihood of irreparable
injury[;] Damocles’ sword does not have to actually fall on all [plaintiffs] before the court will
issue an injunction.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 8–9 (D.C. Cir. 2016)
(internal citation omitted). Plaintiff has met his burden on this requirement.
15 Because the undersigned finds, “using the traditional tools of statutory construction,” that the statute is not ambiguous, “that is the end of the matter” and there is no need to determine whether it is appropriate to defer to the agency’s interpretation. Chevron, 467 U.S. at 842–43 & n.9. However, even if there were ambiguity, the undersigned would find, as did Judge Nichols, that deference to the government’s interpretation of the statute would not be justified. JBBC Transcript at 50–51. The question for this claim is purely legal: does Section 265 authorize expulsions from the United States, or does it not? The CDC’s “scientific and technical knowledge” (ECF No. 33 & n.14) has no bearing on that question of statutory interpretation. Cf. FedEx Home Delivery v. NLRB, 849 F.3d 1123, 1128 (D.C. Cir. 2017) (no deference where agency has “no special administrative expertise that a court does not possess” (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 260 (1968))); Kisor v. Wilkie, __ U.S. __, __, 139 S. Ct. 2400, 2417 (2019) (“When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.”). “[T]he ‘reconciliation’ of distinct statutory regimes ‘is a matter for the courts,’ not agencies.” Epic Sys., __ U.S. at __, 138 S. Ct. at 1629 (quoting Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659, 68586 (1975)).
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Plaintiff has presented declarations from attorneys representing numerous unaccompanied children who have crossed the border and have bona fide clams for humanitarian relief, including fear of persecution on the basis of protected characteristics, but have been subjected to the Title 42 Process and threatened with deportation prior to receiving any of the protections the immigration laws provide. See, e.g., ECF No. 15-10, ¶¶ 5–14 (declaration of attorney Linda Corchado); ECF No. 15-11, ¶¶ 3–6 (declaration of attorney Taylor Levy); see also, e.g., ECF No. 15-12, ¶¶ 26–32 (declaration of Lisa Frydman, Vice President of International Programs at Kids in Need of Defense, an advocacy and legal services organization). Many come from El Salvador, Guatemala, and Honduras, dangerous countries in which children are often targeted for sexual and other violence and face the possibility of torture and death. ECF No. 15-12, ¶¶ 5–11. Similar showings have been held sufficient to demonstrate irreparable injury. See, e.g., Grace v. Whitaker, 344 F. Supp. 3d 96, 146 (D.D.C. 2018) (finding that declarations asserting fear of “rape, domestic violence, beating, shootings, and death” in the plaintiffs’ countries of origin sufficed to establish likelihood of irreparable injury), aff’d in part, rev’d in part on other grounds sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020); Devitri v. Cronen, 289 F. Supp. 3d 287, 296–97 (D. Mass. 2018) (declaration asserting likelihood of persecution if removed sufficient); 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 without being afforded the opportunity to exercise their right to apply for asylum). Indeed, Judge Nichols found a likelihood that a plaintiff similarlysituated to Plaintiff here would likely suffer irreparable harm in the absence of injunctive relief. JBBC Transcript at 51 (“It is certainly the case that plaintiff has not established that those harms are certain to occur, but there is at a minimum the risk that those harms, which are specified in
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some detail, could occur. And so the Court concludes that the plaintiff has established . . . that he is likely to suffer irreparable harm in the absence of an order here.”).
There is the additional risk that, once expelled from the United States, Plaintiff’s harm will no longer be remediable. In other contexts, courts have found that the movement of a minor beyond the jurisdiction of the court can constitute irreparable harm when it interferes with the ability of the court to provide relief. See, e.g., Mendoza v. Pascual, No. CV 615-40, 2015 WL 1880309, at *5 (S.D. Ga. Apr. 24, 2015) (applying the Hague Convention on the Civil Aspects of International Child Abduction); Velasquez v. Velasquez, No. 14-cv-1688, 2014 WL 7272934, at *5 (E.D. Va. Dec. 15, 2014) (finding that petitioner had shown irreparable harm from the possibility that his children would be removed from the jurisdiction because that would “frustrate the effort of th[e] Court in resolving the [dispute]”). To be sure, in Nken, the Supreme Court held that “the burden of removal alone cannot constitute the requisite irreparable injury.” 556 U.S. at 435. But that holding rested on the ability of a removed alien to “continue to pursue [a] petition[ ] for review [of the removal order],” which afforded the opportunity to return to the United States “with a restoration of the immigration status” the alien had enjoyed upon removal. Id. Here, however, the putative class members are being returned without any opportunity to apply for asylum or withholding of removal. Once expelled from the United States and outside the jurisdiction of the Court, it is not clear that a remedy can be provided.16 Cf. Doe, 928 F.3d at 22 (finding irreparable harm likely to flow from the transfer of a dual citizen detained in Iraq to an unidentified third
16 That is precisely the argument the government has made in a different case in this jurisdiction challenging the Title 42 Process. In GYJP v. Wolf, the plaintiff, an unaccompanied 13-year-old girl from El Salvador, crossed into the United States and was apprehended by Customs and Border Patrol officers. Complaint, ¶¶ 76–80, GYJP, No. 20cv-1511 (TNM) (D.D.C. June 9, 2020), ECF No. 3. Approximately six days later, she was expelled from the United States pursuant to the Title 42 Process and flown back to El Salvador. Id., ¶¶ 80–85. In that litigation, the government has taken the position that the court is without jurisdiction to hear the case because the plaintiff lacks constitutional standing. See generally Motion to Dismiss, GYJP, No. 20-cv-1511 (TNM) (D.D.C. Aug. 17, 2020), ECF No. 38.
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country because he would then be in the custody of that third country “without continuing oversight by—or recourse to—the United States”).
Lastly, “[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 constitute irreparable injury.” Kirwa, 285 F. Supp. 3d at 42 n.22 (quoting Gates v. Schlesinger, 366 F. Supp. 797, 800 (D.D.C. 1973)); see also JL v. Cissna, 341 F. Supp. 3d 1048, 1068 (N.D. Cal. 2018) (identifying multiple common harms resulting from deprivation of right to seek humanitarian benefits for abused, abandoned, and neglected juveniles); 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.”). In light of the finding above in Section II.B.1 that the claim that expulsion under the Title 42 Process exceeds the authority granted by Section 265 is likely to succeed, this is a clear harm that each member of the putative class has suffered or will suffer. Therefore, the undersigned finds that Plaintiff has adequately established a likelihood of irreparable injury should a preliminary injunction not issue.
3. Balance of the Equities and Public Interest Beyond the irreparable harm that Plaintiff and members of the putative class will suffer without an injunction, the balance of the equities also favors Plaintiff. See Costa v. Bazron, No. 19-3185 (RDM), 2020 WL 2025701, at *8 (D.D.C. Apr. 25, 2020) (“[W]here the government is a party to the suit, the harm to defendants and the public interest merge and ‘are one and the same, because the government’s interest is the public interest.” (quoting Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016))). Public interest in enjoining unlawful government action, protecting non-citizen children from being wrongfully removed, and preventing risks to
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public health caused by the Title 42 Process weigh in Plaintiff’s favor; while a preliminary injunction will impose some hardships on Defendants, the public interest and immitigable hardships to Plaintiff outweigh the mitigable hardships to Defendants.
As discussed above, Defendants’ actions are likely to be found unlawful, and “[t]here is generally no public interest in the perpetuation of an unlawful agency action.” League of Women Voters, 838 F.3d at 12; see also Banks v. Booth, No. 20-849 (CKK), 2020 WL 1914896, at *12 (D.D.C. Apr. 19, 2020) (Kollar-Kotelly, J.) (“There is no harm to the [g]overnment when a court prevents unlawful practices.”). Rather, “the public interest is harmed when the [g]overnment hamhandedly exercises its responsibilities.” Minney v. U.S. Off. of Pers. Mgmt., 130 F. Supp. 3d 225, 236 (D.D.C. 2015) (Leon, J.). Conversely, “there is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’” League of Women Voters, 838 F.3d at 12 (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994); see also Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977) (“[T]here is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate.”); Louis v. Meissner, 530 F. Supp. 924, 929 (S.D. Fla. 1981) (“The public’s interest is not served by continued acts violative of the law.”).
Plaintiff’s position is supported not only by the somewhat abstract public interest in faithful execution of federal law but also by more concrete public interests in preventing aliens from wrongful removal from the United States to countries where they are likely to be persecuted. “[T]he public has an interest in ‘ensuring that we do not deliver aliens into the hands of their persecutors’ and ‘preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.’” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1281 (9th Cir. 2020) (citations omitted) (first quoting Leiva-Perez v. Holder, 640 F.3d 962,
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971 (9th Cir. 2011), then quoting Nken, 556 U.S. at 436); see also, e.g., AB-B v. Morgan, No. 20cv-846 (RJL), 2020 WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[P]roceeding to the merits of this litigation without preliminary injunctive relief risks plaintiffs being returned to home countries where they face significant risk of physical harm. These life-or-death consequences weigh heavily in favor of preliminary injunctive relief.”); Chaudhry v. Barr, No. 2:19-cv-00682-TLN-DMC, 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-LB, 2018 WL 1142202, at *27 (N.D. Cal. Mar. 2, 2018))). It is also, of course, in “the interests of society to protect the welfare of children.” Prince v. Massachusetts, 321 U.S. 158, 165 (1944).
Additionally, the government has failed to take into account the harm to the public interest in continuing its current practice of housing unaccompanied non-citizen minors in hotels while they await expulsion from the United States under the Title 42 Process—a practice that would end if an injunction issued requiring Plaintiff and the putative class to be excepted from expulsion from the United States under the Title 42 Process. In a case in the U.S. District Court for the Central District of California concerning the government’s practice of placing such children in hotels rather than transferring them to the custody of the Office of Refugee Resettlement, see Flores v. Barr, __ F. Supp. 3d __, __, 2020 WL 5491445, at *1, 3 (C.D. Cal. 2020) (noting that the question before that court is the practice of holding minors detained pursuant to the Title 42 Process in hotels prior to expulsion and “not . . . the validity of Title 42 expulsions”), appeal docketed, No. 20-55951 (9th Cir. Sept. 10, 2020), the court found that the government had “failed to demonstrate how hotels, which are otherwise open to the public and have unlicensed staff coming in and out, located in areas with high incidence of COVID-19, are any better for protecting public health than
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licensed facilities would be” and that “[e]ven if the infection control protocols at [the Office of Refugee Resettlement] come under some stress, or are forced to make some adjustments,” the program’s facilities are likely to “remain far safer than unregulated hotel stays for both detained minors and the general public,” In Chambers Order at 4, Flores, No. CV 85-4544 DMG (AGRx) (C.D. Cal Sept. 21, 2020), ECF No. 990 (quoting Flores, __ F. Supp. 3d at __, 2020 WL 5491445, at *6).
Against these arguments, Defendants first assert that an injunction against the Title 42 Process would make officers at the border less safe, noting that many such officers have contracted COVID-19 and several have died. To be sure, “[i]t goes almost without saying . . . that promoting public health—especially during a pandemic—is in the public interest,” and the premature loss of any life is tragic. Nat’l Immigr. Project of Nat’l Lawyers Guild v. Exec. Off. of Immigr. Rev., No. 1:20-cv-00852 (CJN), __ F. Supp. 3d __, __, 2020 WL 2026971, at *12 (D.D.C. 2020). But the government’s proof that the preliminary injunction Plaintiff seeks would endanger Customs and Border Patrol officers more than the Title 42 Process is, ultimately, unavailing. The measure of the public interest and hardship to the government depends on the injunction proposed. Here, denying the government the power to expel unaccompanied minors does not leave the government powerless to address the pandemic. As discussed above in Section II.B.1, the government has many options available to it. It has tools at its disposal to limit entry into the country and can apprehend, examine, quarantine, or conditionally release unaccompanied minors. The real issues are potential exposure to the virus at congregation points and operational costs—as the government admits—of mitigating that risk through effective quarantine and/or conditional release and monitoring of putative class members who enter the country unlawfully. See, e.g., ECF No. 44-2 at 24, 57; March 20 Order, 85 Fed. Reg. at 17,066–17,067; May 20 Order, 85 Fed. Reg. at 31,508, n.32.
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But the government’s argument is suspect given that the alternative to quarantine that they propose—expulsion pursuant to the Title 42 Process—results in unaccompanied minors often being detained longer while awaiting expulsion than they would otherwise be, and the concomitant lengthened exposure of class members to other non-citizens, Customs and Border Patrol officers, and local medical personnel. Plaintiff has provided a report from an independent monitor filed in the Flores litigation that found expelling children from the United States under the Title 42 Process takes an average of five days, “with a substantial number of children experiencing extended stays of more than 10 days,” (ECF No. 52-3 at 30), as opposed to the 72 hours mandated under the TVPRA for transfer to the Office of Refugee Resettlement, see 8 U.S.C. § 1232(b)(3) (under normal process, Homeland Security must transfer children within 72 hours to the custody of the Office of Refugee Resettlement). This longer period would appear to subject Customs and Border Patrol officers to greater risk from unaccompanied non-citizen children—and, indeed, vice-versa—than the prior process.
Next, Defendants rely on a declaration from Jallyn Sualog, the Deputy Director of the Office of Refugee Resettlement, submitted with the government’s opposition to the current motions. Ms. Sualog attests to particular concern about the number of unaccompanied non-citizen children that the Office of Refugee Resettlement “can safely absorb into the system at one time,” asserting that the program “would likely come under significant stress if [it] were to begin to receive on a regular basis approximately 75 to 100 referrals of [unaccompanied minor children] per week, with approximately 30% of [them] having tested positive or been exposed to COVID-19.” ECF No. 42-5 at 4; ECF No. 44-2 at 56. In Flores, Judge Gee recently addressed whether the very same assertions by the very same declarant made out a likelihood of harm to the government and found
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them wanting. She found that the underlying factual contentions—that there would be an additional 75 to 100 referrals per week, of whom 30 percent would need to be isolated or quarantined— were “highly speculative,” noting that the government failed to support its assumptions with a declaration from a public health official providing “scientific or empirical analysis” to support the statements. In Chambers Order at 3, Flores, No. CV 85-4544 DMG (AGRx) (C.D. Cal Sept. 21, 2020), ECF No. 990. In a supplemental declaration, Ms. Sualog asserts that between September 1, 2020, and September 16, 2020, the Office of Refugee Resettlement received 568 referrals of unaccompanied non-citizen children, 2 of whom were COVID-19 positive and 170 of whom were COVID-19 exposed, which works out to 30 percent.17 ECF No. 58-1 at 6. It is not disputed, however, that, at the present time, the Office of Refugee Resettlement’s care-provider facilities are operating at well below capacity and they have thousands of beds available. ECF No. 42-5, ¶ 31– 32. Judge Gee specifically found that “there are sufficient numbers of currently under-utilized [Office of Refugee Resettlement] facilities such that transfers can be allocated among facilities to avoid over-concentration or bottlenecking.” In Chambers Order at 4, Flores, No. CV 85-4544 DMG (AGRx) (C.D. Cal Sept. 21, 2020), ECF No. 990.
The undersigned appreciates that, in light of the pandemic, a preliminary injunction will impose hardships on the government and may force it, as it has all Americans, to make difficult decisions about allocation of resources to mitigate the risks caused by COVID-19. Federal courts are not empowered to reorganize agencies’ priorities when those agencies are acting within the bounds prescribed by Congress. Here, however, the public’s interest in ensuring that those bounds are honored—the “overriding public interest” in the “importance of an agency’s faithful adherence to its statutory mandate,” Jacksonville Port Auth., 556 F.2d at 59—coupled with its interest in
17 Ms. Sualog indicates that the government measures “exposure” based on the unaccompanied minors’ self-report concerning their travel history. ECF No. 42-5, ¶ 20; ECF No. 58-1 at 21.
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protecting children from being “deliver[ed] [ ] into the hands of their persecutors,” E. Bay Sanctuary Covenant, 950 F.3d at 1281, weigh in favor of issuing a preliminary injunction in this case.
4. Breadth of Injunction and Bond The undersigned has found that all four factors to be considered when deciding a motion for a preliminary injunction weigh in favor of granting the motion. The question then becomes the breadth of that preliminary injunction. In his Reply, Plaintiff notes that the Interim Final Rule, under which the CDC Orders here were issued, will be superseded by the Final Rule on the earlier of two dates: October 11, 2013, or the date that the Interim Final Rule “ceases to be in effect,” because it has been “vacated or enjoined by a court.” ECF No. 51-1 at 32 (citing 85 Fed. Reg. at 56,424). He therefore asks that, if the Court issues a preliminary injunction, it “specify that [the injunction] encompass the Final Rule and any substantially similar CDC Order granted under its terms.” ECF No. 51-1 at 32. As should be clear from the discussion above, there is no relevant material difference between the CDC Director’s authority under the Final Rule and the authority that the government has here argued he enjoys under the Interim Final Rule. The Final Rule interprets “‘[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.’” 85 Fed. Reg. at 56,425 (alteration in original) (emphasis added). That is precisely the interpretation the government urged here in connection with the Interim Final Rule and the CDC Orders. ECF No. 44-2 at 14–15 (“The statute grants the Executive Branch ‘the power to prohibit, in whole or in part, the introduction of persons’ into the United States during an outbreak of a communicable disease in order to avert the danger of the
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disease spreading into the United States. By granting that broad power, Congress necessarily gave the Executive Branch the authority to take actions needed to exercise that power. That includes . . . the power to promptly expel persons who managed to surreptitiously cross over the U.S. border from a designated foreign country in violation of a Section 265 order and then are halted while in the process of moving into the interior.” (internal citation omitted) (quoting 42 U.S.C. § 265) (emphasis added). The undersigned agrees with Plaintiff that the preliminary injunction should be crafted to make clear that it prohibits expulsion from the United States under the Title 42 Process whether that conduct has been permitted in orders issued by the CDC Director pursuant to the authority of the Interim Final Rule or the Final Rule.
Plaintiff also asks the Court not to require him to post a bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure. That rule states 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) (Sullivan, J.) (internal citation omitted) (quoting DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999)); see also Council on Am.-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67, 81 (D.D.C. 2009) (same). In determining the appropriateness or amount of a bond, courts take into account the financial wherewithal of the party seeking the preliminary injunction and whether the action seeks to enforce important federal rights or public interests. See, e.g., Carranza v. Reams, No. 20CV-00977, 2020 WL 2320174, at *14 (D. Colo. May 11, 2020); Booth v. Galveston Cty., No. 3:18CV-00104, 2019 WL 4305457, at *2 (S.D. Tex. Sept. 11, 2019); Flack v. Wis. Dep’t of Health
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Servs., 328 F. Supp. 3d 931, 955 (W.D. Wis. 2018); Simms, 872 F. Supp. 2d at 107. Here, Plaintiff, a 15-year-old boy from Guatemala allegedly fleeing persecution in his home country and seeking to represent a class including similarly-situated children, does not have the ability to post a bond. Additionally, this action seeks to vindicate important rights granted under immigration laws. The undersigned therefore recommends that the Court waive the requirement for an injunction bond or require a nominal amount. See, e.g., Page Commc’ns Eng’rs, Inc. v. Froehlke, 475 F.2d 994, 997 (D.C. Cir. 1973) (recognizing the court’s “discretion to fix bond in a nominal amount”); cf. Laster v. District of Columbia, 439 F. Supp. 2d 93, 99 (D.D.C. 2006) (suggesting that where, as here, the defendant did not request a bond, none is required).
III. CONCLUSION For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff’s Motion for Class Certification (ECF No. 2) be PROVISIONALLY GRANTED and the Court provisionally certify a class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure consisting of all unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to expulsion from the United States under the Title 42 Process, whether pursuant to an Order issued by the Director of the Centers for Disease Control and Prevention under the authority granted by the Interim Final Rule, 85 Fed. Reg. 16559-01, or the Final Rule, 85 Fed. Reg. 56,424-01. The undersigned FURTHER RECOMMENDS that Plaintiff be appointed as Class Representative and that Plaintiff’s counsel from the ACLU Immigrants’ Rights Project be appointed as Lead Class Counsel and his other counsel be appointed as Class Counsel. The undersigned FURTHER RECOMMENDS that Plaintiff’s motion for a preliminary injunction (ECF No. 15-2) be GRANTED and that the Court order that Defendants, their agents,
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and any person acting in concert with them are enjoined from expelling the Class Members from the United States under the Title 42 Process, whether pursuant to an Order issued by the Director of the Centers for Disease Control and Prevention under the authority granted by the Interim Final Rule, 85 Fed. Reg. 16559-01, or the Final Rule, 85 Fed. Reg. 56,424-01.
* * * * * The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia and the Minute Order of Judge Sullivan entered in this case on September 6, 2020, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 7 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. Any oppositions shall be due no later than 7 days after being served with a copy of the objections; and replies shall be due no later than 5 days after being served with a copy of the opposition. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).

Date: September 25, 2020

Digitally signed by G. Michael Harvey Date: 2020.09.25 ___________________2_0_:0_5__:1_7__-0_4_'_0_0_' ___ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.J.E.S., a minor child, by and through his father and next friend, Mario Escobar Francisco, on behalf of himself and others similarly situated,
Plaintiffs,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, et al.,
Defendant.

Civ. Action No. 20-2245 (EGS)

MEMORANDUM OPINION Plaintiff P.J.E.S., a 15-year-old minor from Guatemala who entered the United States as an unaccompanied minor in August 2020, brings this action against Chad F. Wolf in his official capacity as Acting 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 Trafficking Victims Protection Reauthorization Act (“TVPRA”), 8 U.S.C. § 1232; the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.; and the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C. § 1231 NOTE. Pending before the Court are Plaintiff’s motion for class

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certification (“Pl.’s Cert. Mot.”), ECF No. 21, and motion for a classwide preliminary injunction (“Pl.’s Prelim. Inj. Mot.”), ECF No. 15. Magistrate Judge Harvey’s Report and Recommendation (“R. & R.”) recommends that this Court provisionally grant the motion for class certification and grant the motion for preliminary injunction and . See R. & R., ECF No. 65 at 2.
The Government has objected to several of Magistrate Judge Harvey’s recommendations. See Gov’t’s Objs., ECF No. 69. Raising no objections to the R. & R., Plaintiff asks this Court to adopt Magistrate Judge Harvey’s recommendations to grant both motions. See Pl.’s Resp. to Pl.’s Objs. (“Pl.’s Resp.”), ECF No. 72 at 7. Upon careful consideration of the R. & R., the Government’s objections, Plaintiff’s response, and the relevant law, the Court hereby ADOPTS the R. & R., ECF No. 65, PROVISIONALLY GRANTS Plaintiff’s (1) Motion to Certify Class, ECF No. 2, and GRANTS Plaintiff’s (2) Motion for Preliminary Injunction, ECF No. 15. I. Background
The factual background and procedural history in this case are set forth in the R. & R. See R. & R., ECF No. 65 at 3-15.2
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF header page number, not the page number of the filed document. 2 The Court accepts as true the allegations in the operative complaint for purposes of deciding this motion, and construes them in Plaintiff’s favor. See Baird v. Gotbaum, 792 F.3d 166,
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A. Factual Background 1. Pre-COVID-19 Pandemic
Prior to the current COVID-19 pandemic and pursuant to the TVPRA, unaccompanied children who entered the United States and were nationals of countries that do not share a border with the United States were required to be transferred to the care and custody of the Department of Health and Human Services’ (“DHH”) Office of Refugee Resettlement (“ORR”), within 72 hours of their detainment, for placement in the “least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(b). Unaccompanied children from countries that share borders with the United States were initially screened to determine that the unaccompanied child: (1) was not a victim of trafficking; (2) did not have “a credible fear of persecution”; and (3) was “able to make an independent decision” about their admission into the United States. Id. § 1232(a)(2)(A). Absent these determinations, the unaccompanied child was also transferred to the care and custody of ORR. Id. § 1232(a)(3). These unaccompanied children also had access to “counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking,” id. § 1232(c)(5); and some were
169 n.2 (D.C. Cir. 2015). The Government does not object to Magistrate Judge Harvey’s recitation of the alleged facts. See generally, Gov’t’s Objs., ECF No. 69.
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provided “independent child advocates . . . to effectively advocate for the[ir] best interest.” Id. § 1232(c)(6).
In addition, all unaccompanied children retained their rights under the INA to (1) apply for asylum, id. § 1158(a)(1); contest their removal to a country where their “life or freedom would be threatened . . . because of [their] race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1231(b)(3) (“withholding of removal”); or, pursuant to FARRA, (3) make a case that “he or she would be tortured if removed to the proposed country of removal.” Id. § 1231 Note.
2. COVID-19 Pandemic and 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 of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452, ECF No. 15-5 at 5 (“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
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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 § 265 authority was transferred” to HHS, which in turn “delegated this authority to the [Centers for Disease Control (“CDC”)] in 2001 and [t]he President’s functions under § 265 were assigned to the Secretary of HHS in a 2003 executive order.” Compl., ECF No. 1 at 13 n.2. On March 24, 2020, as the COVID-19 virus spread throughout the country, the CDC issued a new regulation, pursuant to Section 265, aiming 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.” 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 Rule”). The Interim Rule created Section 71.40 to “enable the CDC Director to suspend the introduction of persons into the United States” and stated, in relevant part, (b) For purposes of this section:
(1) Introduction into the United States
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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 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 was made effective
immediately, “without advance notice and comment,” Compl., ECF
No. 1 at 13 ¶ 50; though the CDC explained that “[p]ursuant to 5
U.S.C. 553(b)(3)(B),” of the APA, HHS “conclude[d] that there
[was] good cause to dispense with prior public notice and the
opportunity to comment on this rule before finalizing this
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rule.” Interim Rule at 16564. 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. at 16565. Finally, noting that Section 265 applied to “persons” in general, the CDC declared that the “interim final rule [would] not apply to U.S. citizens or lawful permanent residents . . . [because the] CDC believes that, at present, quarantine, isolation, and conditional release, in combination with other authorities, while not perfect solutions, can mitigate any transmission or spread of COVID-19 caused by the introduction of U.S. citizens or lawful permanent residents into the United States.” Id. at 16564.
Pursuant to the Interim Rule, the CDC Director issued an order suspending 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” for a period of 30 days. 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, 2020 WL
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1445906 (March 26, 2020) (“March Order”). The CDC Director found the March Order necessary because the public health risks
include[d] transmission and spread of COVID19 to [U.S. Customs and Border Protection (“CBP”)] personnel, U.S. citizens, lawful permanent residents, and other persons in the POEs and Border Patrol stations; further transmission and spread of COVID-19 in the interior; and the increased strain that further transmission and spread of COVID-19 would put on the United States healthcare system and supply chain during the current public health emergency. Id. at 17061. In a section titled “Determination and Implementation,” the March Order declared that “[i]t is necessary for the public 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 DHS implement th[e] [March Order] because CDC does not have the capability, resources, or personnel needed to do so” and then notes that “CBP [had already] developed an operational plan for implementing the order.” Id. In April, the March Order was extended another 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)
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(“April Order”). The March Order was extended again on May 20, 2020 and amended to “clarify that it applies to all land and coastal [POEs] and Border Patrol stations at or near the United States' border with Canada or Mexico that would otherwise hold covered aliens in a congregate setting.” 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 Order”). The May Order also extended the duration of the order until 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,” though the CDC would still conduct a recurring 30-day review. Id. Finding that: (1) the CDC Order had “significantly mitigated the specific public health risk identified in the initial Order by significantly reducing the population of covered aliens held in congregate settings in POEs and Border Patrol stations,” id. at 31505; and (2) “due to their lack of legal immigration status, there is significant uncertainty that covered aliens would be able to effectively self-quarantine, self-isolate, or otherwise comply with existing social distancing guidelines, if they were conditionally released,” id. at 31508; the CDC Director requested that DHS “continue to implement the operational plan
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developed to carry out the” March and April Orders, id. The Court will refer to the process developed by the CDC and implemented by the March, April, and May Orders as the “CDC Orders.”3
As noted above, the CBP had already developed its plan to implement the March Order and issued a memorandum on April 2, 2020 establishing its procedures for implementing the order. See Compl., ECF No. 1 at 17 ¶ 65; see also COVID-I9 CAPIO, ECF No. 15-5 at 15 (“CAPIO Memo”). Specifically, the CAPIO Memo instructed that when implementing the CDC Orders, agents may determine whether individuals are subject to the CDC Orders “Based on training, experience, physical observation, technology, questioning and other considerations.” CAPIO Memo, ECF No. 15-5 at 15. If an individual was determined to be subject to the CDC Orders, 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. The CAPIO Memo, “provide[d] no instructions on medical screenings or other procedures for determining whether a covered noncitizen may have COVID-19,” Compl., ECF No. 1 at 17 ¶ 68; and did “not exempt minors from forcible expulsion,” id. at 18 ¶ 69.
3 Plaintiff refers to the process under 42 U.S.C. § 265 as the “Title 42 Process,” see Pl.’s Prelim. Inj. Mot., ECF No. 15; while the Government refers to it as the “CDC Order.” See Gov’t’s Combined Opp’n, ECF No. 42 at 12.
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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 October 13, 2020) (“Final Rule”). The Final Rule, which references this case but makes no changes to its determinations and findings as relevant for this action, see id. at 56437, states “[i]t has long been recognized that ‘where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the other, is also conferred.’” Id. at 56445. It further states that “HHS/CDC identifies particular powers that it may exercise under [Section 265] by defining 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.
3. CDC Orders’ Effect on Plaintiff Plaintiff is a 16-year-old boy from Guatemala, who entered the United States in August 2020, was apprehended by CBP and
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initially held in CBP custody in McAllen, Texas, before he was made subject to expulsion pursuant to the CDC Orders and CAPIO Memo. See id. at 19 ¶¶ 77, 81. His father lives in the United States and has a pending immigration case. See id. ¶ 78. Plaintiff is from “an indigenous Mayan family” and alleges to have (1) “experienced severe persecution in Guatemala” due to his father’s political opinions; and (2) had his life threatened due to his refusal to join a gang. Id. ¶ 79. He states that, if he is “allowed to remain in the United States, he could live with his father . . . or another suitable sponsor.” Id. ¶ 84. Further, Plaintiff asserts that, “even if [he is] required to first reside for a short time in a[n] ORR children[’s] shelter, he could do so safely . . . [because] ORR facilities [] have experience with communicable diseases . . . [and] are currently well under capacity, [which would allow for] social distancing and quarantine[ing].” Id. at 20 ¶ 85. Plaintiff alleges that, instead of remaining in CBP custody, he “could have been transferred directly to his father or another sponsor or to an ORR shelter, [and] he would [have] pose[d] minimal, if any, additional risk to border agents.” Id. ¶ 88. On August 14, 2020, after Plaintiff filed this action and a motion for class certification, the Government exempted him from the CDC Orders. See Escobar Francisco Decl., ECF No. 14-1 at 2 ¶ 11.
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4. CDC Orders’ General Effect on Unaccompanied Children
Plaintiff alleges that unaccompanied children have “been
required to remain in DHS custody longer than the time it would
have taken to transfer them to their family members or to an ORR
facility,” Compl., ECF No. 1 at 20 ¶ 89; and that “arranging for
air transport to deport individuals will generally take longer
than time in which DHS must transfer children to ORR or family
members.” Id. at 21 ¶ 90. He further alleges that some
unaccompanied “children are held for days or weeks in hotels
[as] they await flights back to their home countries, [while]
[o]thers are detained in CBP facilities near the border,
reportedly held in cage-like settings with other children.” Id.
¶ 91. Finally, Plaintiff states,
Unaccompanied children subject to the [CDC Orders] face numerous problems accessing legal representation. Because children can be expelled under Title 42 in a matter of days, the child or any family member who obtains information about the child has only a limited amount of time in which to advocate for the child. And because the [] Process [pursuant to the CDC Orders] has operated largely in secret, its rules and procedures have remained opaque to children, their parents, and any lawyers and advocates who seek to help them. Unaccompanied children are also unable, by reason of their youth, to advocate effectively for themselves, especially when detained in custodial settings by government officers. Many do not speak English, and lack even a basic comprehension of the U.S. legal system. Their relatives are similarly not wellsituated to help navigate this process, especially given the time constraints; many
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children are from families in which few members have had significant formal schooling, much less any fluency in English. Id. at 21-22 ¶ 93. At the time he filed his motion for preliminary injunction, Plaintiff alleged that the DHS had “already expelled at least 2,000 unaccompanied children pursuant to the CDC Order[s],” Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at 10; but Plaintiff now alleges that the number of expelled unaccompanied children had “exceeded 13,000 by the end of October.” Pl.’s Notice of November 17, 2020, ECF No. 78.4 B. Procedural Background Plaintiff filed this action on August 14, 2020, see Compl., ECF No. 1; and a motion for class certification, see Pl.’s Cert. Mot., ECF No. 2, that same day. On August 20, 2020, Plaintiff filed a motion for a classwide preliminary injunction. See Pl.’s Prelim. Inj. Mot., ECF No. 15. The Government filed its Combined Opposition to Plaintiff’s Motions for Class Certification and for Classwide Preliminary Injunction (“Gov’t’s Combined Opp’n”) on September 8, 2020, see Gov’t’s Combined Opp’n, ECF No. 42; and Plaintiff filed his Combined Reply Memorandum in Support of Motions for Classwide Preliminary Injunction and Class
4 Citing to Hamed Aleaziz, Border Officials Turned Away Unaccompanied Immigrant Children More Than 13,000 Times Under Trump’s Pandemic Policy, BuzzFeed News (Oct. 28, 2020), https://www.buzzfeednews.com/article/hamedaleaziz/borderofficials-turned-away-unaccompanied-immigrants.
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Certification (“Pl.’s Combined Reply”) on September 15, 2020. Pl.’s Combined Reply, ECF No. 52.
Magistrate Judge Harvey, having been referred Plaintiff’s motions and this case for full case management, issued his R. & R. on September 25, 2020. See R. & R., ECF No. 65; see also Sept. 6, 2020 Min. Order. The Government submitted objections to the R. & R. on October 2, 2020, see Gov’t’s Objs., ECF No. 69; Plaintiff filed his Response to the Government’s Objections on October 9, 2020, see Pl.’s Resp., ECF No. 72; and the Government filed its Reply to Plaintiff’s Response to the Government’s Objections (“Gov’t’s Objs. Reply”) on October 14, 2020, see Gov’t’s Objs. Reply, ECF No. 75. The objections are ripe and ready for the Court’s adjudication. II. Legal Standards
A. Objections to a Magistrate Judge’s Report and Recommendation Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2). A district court “may accept, reject or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”). A district court “must determine de novo
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any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).“If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the [R. & R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly erroneous standard, the magistrate judge’s decision is entitled to great deference” and “is clearly erroneous only if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed.” Buie v. D.C., No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019) (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009)) (internal quotation marks omitted).
Objections must “specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for objection.” LCvR 72.3(b).“[O]bjections which merely rehash an argument presented to and considered by the magistrate judge are not ‘properly objected to’ and are therefore not entitled to de novo review.” Shurtleff v. EPA, 991 F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No. 08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30,2009)).
B. Preliminary Injunction “A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [2]
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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 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
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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 analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C. 2014). III. Analysis
Before proceeding to its analysis, the Court observes that another court in this District recently examined CBP’s new process pursuant to the CDC Orders, in a case with facts similar to those before this Court. In J. B. B. C. v. WOLF, et al., Docket No. 20-cv-1509 (D.D.C. filed June 9, 2020), the plaintiff, a 16-year-old boy from Honduras, whose father also lives in the United States and had a pending asylum case, was apprehended by CBP when he entered the country near El Paso, Texas and made subject to expulsion pursuant to the CDC Orders and CAPIO Memo. J. B. B. C. Compl., Dkt No. 20-cv-1509, ECF No. 1 at 19-20 ¶¶ 76-80. At the time he filed his complaint, the plaintiff in J. B. B. C., had been in a hotel for five days as
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CBP moved under the new process to place him on a flight to Honduras. Id. ¶¶ 83-84. Since his expulsion was imminent, he filed a motion for temporary restraining order (“T.R.O.”) that same day, presenting many of the same arguments as presented in this case. See generally, J. B. B. C. Emergency Mot. for T.R.O., ECF No. 2. At a June 24, 2020 hearing, Judge Nichols granted the TRO, finding that the J. B. B. C. plaintiff was likely to succeed on the merits. J. B. B. C. Hr’g Tr., Dkt No. 20-cv-1509, ECF No. 39 at 49-50.
Specifically, Judge Nichols found that: (1) Section 265 does not grant the CDC Director the power to return or remove, in light of the fact that immigration statutes directly “reference the power to return or to remove,” id. at 50; (2) Section 265 “should be harmonized, to the maximum extent possible, with immigration statutes,” id.; and (3) the CDC Director is not entitled to deference under Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984), because Section 265 must be “read in light of statutes that the CDC Director quite plainly has no special expertise regarding and . . . the order does very little by way of an analysis of what exactly the power to prohibit the introduction of persons and property means,” id. at 51-50. Notably, after Judge Nichols’s ruling, the Government transferred the J. B. B. C. plaintiff to ORR, noting that he would “no longer be subject to the challenged CDC Order” and
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claimed that the case was moot. J. B. B. C. Notice to Ct., Dkt No. 20-cv-1509, ECF No. 41 at 1. When the J. B. B. C. plaintiff filed an amended complaint, adding another plaintiff, E.Y.E., a 15-year-old boy from Guatemala, who claimed to be escaping an abusive grandfather and aunt, and who had siblings in the United States who had been granted asylum the previous year based on similar claims, the Government excepted him from the CDC Orders as well. See J. B. B. C. Mot. to Dismiss, Dkt No. 20-cv-1509, ECF No. 47 at 9. The J. B. B. C. plaintiffs then voluntarily dismissed the case. See J. B. B. C. Notice of Voluntary Dismissal, Dkt No. 20-cv-1509, ECF No. 48.
A. Plaintiff’s Motion for Class Certification Pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(2), Plaintiff has sought certification of the following class: All unaccompanied noncitizen children who (1) are or will be detained in U.S. government custody in the United States, and (2) are or will be subjected to the Title 42 Process (“Subject Class”). Pl.’s Cert. Mot., ECF No. 2 at 1.
Magistrate Judge Harvey found that Plaintiff’s motion for class certification should be provisionally granted because Plaintiff met the: (1) numerosity requirement by providing evidence that almost 6,000 unaccompanied non-citizen children were apprehended at the southwest border between April and July 2020, [and] more than 2,000 unaccompanied non-citizen children
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had been expelled, R. & R., ECF No. 65 at 17; (2) commonality requirement because the challenged CDC Orders are a “a uniform policy or practice that affects all class members,” id. at 18; (3) typicality requirement since Plaintiff’s claims and the claims of the putative class “stem from a unitary course of conduct—expulsion of unaccompanied non-citizen children” under the CDC Orders and “are based on the same legal theories,” id. at 19; (4) adequacy requirement because, citing to JD v. Azar, 925 F.3d 1291, 1322 (D.C. Cir. 2019) (per curiam), the “Plaintiff is an adequate class representative who, with his counsel, will vigorously pursue the claims of the putative class,” id. at 21; and the cohesiveness requirement because the Government allegedly applied the same illegal CDC Orders to the Plaintiff and Subject Class, and the Plaintiff and Subject Class seek the same relief, see id. at 22.
The Government’s only objection to Magistrate Judge Harvey’s recommendation is that the case upon which he relied— J.D. v. Azar-was wrongly decided because allowing a Plaintiff whose claims are moot to serve as a class representative “is an improper relaxation of Article III’s strict requirement of a case or controversy.” Gov’t’s Objs., ECF No. 69 at 38.
However, J.D. v. Azar is binding precedent on this Court. See Hopkins v. Price Waterhouse, 920 F.2d 967, 975 (D.C. Cir. 1990)(“[T]he trial court . . . [is] nonetheless bound by the law
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of the circuit.”). Furthermore, the actions the Government has taken to avoid judicial scrutiny by mooting the claims of the unaccompanied children, Plaintiff’s counsel bring to their attention, arguably reveals an intent to make Plaintiff’s claim “so inherently transitory that the [Court] will not have [] enough time to rule on [the] motion for class certification before the proposed representative's individual interest expires.” J.D., 925 F.3d at 1309. However, the “relation back” doctrine, which allows a “motion for certification [to] ‘relate back’ to the filing of the complaint,” id. at 1308; was created so that a class would not be deprived of its day in court by a defendant simply exempting the class representatives in order to moot the class’ claims, see Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991); see also Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978) (holding that the State’s action of excepting some of the named plaintiffs “did not deprive the District Court of the power to certify the class action”). Having addressed the Government’s sole objection to this recommendation, and finding no clear error in this portion of the R. & R., the Court ADOPTS Magistrate Judge Harvey’s recommendation, and PROVISIONALLY GRANTS Plaintiff’s motion for class certification. Pl.’s Cert. Mot., ECF No. 2.
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B. Plaintiff’s Motion for Preliminary Injunction 1. Plaintiff is likely to Succeed on the Merits Pursuant to Federal Rule of Civil Procedure 65 and Local
Civil Rule 65.1, Plaintiff seeks a “classwide preliminary injunction enjoining the application of the [CDC Orders] to Plaintiff and Class Members.” Pl.’s Prelim. Inj. Mot., ECF No. 15 at 1. Specifically, Plaintiff argues that he is likely to succeed on the merits because (1) Section 265 “does not authorize deportation”; (2) “unaccompanied children are entitled to explicit statutory procedures and protections [and those] later-enacted statutes control over whatever [Section] 265 may authorize in general”; and (3) “subjecting Class Members to the CDC Orders is arbitrary and capricious in violation of the” APA. Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at 21.
Magistrate Judge Harvey found “that Plaintiff is likely to prevail in his argument that the CDC Orders instituting the Title 42 Process exceed the authority granted by Congress pursuant to Section 265,” R. & R., ECF No. 65 at 24; noting that the Government’s “parsing of the plain text of the statute makes an unsupported (and unwarranted) logical leap . . . by asserting that ‘[t]he statute’s reference to prohibiting the introduction ‘in whole or in part’ supports the interpretation that a person may be intercepted and then quarantined in the United States or intercepted and then expelled,’” id. at 25 (emphasis in
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original); see also Final Rule at 56425–26. The Government makes a number of objections, which the Court addresses below.
Chevron 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 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.
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a. Section 265 Likely Does Not Authorize Expulsions
The Court first reviews “the language of the statute itself.” United States Ass'n of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017). Both Plaintiff and the Government provide various definitions for the word “introduction” and the phrase “prohibit . . . the introduction of.” See Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at 25-26 (citing Introduce, Universal English Dictionary 1067 (John Craig ed. 1861) (the “term—'introduction’—meant then, as now, ‘the act of bringing into a country.’”); Gov’t’s Combined Opp’n, ECF No. 42 at 29-30 (citing Universal English Dictionary 458 (John Craig ed. 1869) (“to ‘prohibit . . . the introduction’ naturally means to intercept or prevent such a process.”). The Government further states the meaning of the word “prohibit” is “to forbid; to interdict by authority; to hinder; to debar; to prevent; [or] to preclude.” Gov’t’s Combined Opp’n, ECF No. 42 at 30 (citing Prohibit, Oxford English Dictionary 1441 (1933)). Based on these definitions, the Government argues that Section 265 “clearly includes the authority to intercept persons who have already crossed the border and are in the process of being introduced into the United States.” Gov’t’s Objs., ECF No. 69 at 16.
Magistrate Judge Harvey assumed without deciding that the Government’s interpretation—intercepting or preventing a process
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was legally sound, finding that even if the court “accept[s] that ‘to ‘prohibit . . . the introduction’ means ‘to intercept or prevent such a process’, [it] does not lead to the conclusion that ‘prohibition,’ ‘interception,’ or ‘prevention’ includes ‘expulsion.’” R. & R., ECF No. 65 at 25. Magistrate Judge Harvey reasoned that to “prohibit” “connotes stopping something before it begins, rather than remedying it afterwards.” Id. at 25-26.
The Government argues that Magistrate Judge Harvey’s reasoning—that “the Government’s interpretation is wrong because the definition of ‘prohibit’ connote[s] stopping something before it begins, rather than remedying it afterwards,” R. & R., ECF No. 65 at 25-26;—“makes no sense” because he “[a]ssumed without deciding that the government’s interpretation of the ‘introduction’ and the phrase ‘prohibit . . . the introduction’ of are legally sound,” id. at 25; and since the CDC Order only applies to persons who are in the process of being introduced rather than already introduced, expelling them does not remedy something afterwards because they have not been introduced, see Gov’t’s Objs., ECF No. 69 at 17. The Court disagrees. Even accepting that the phrase, “prohibit[ing] . . . the introduction of,” means “intercepting” or “preventing”; the phrase does not encompass expulsion; but merely means that the process of introduction can be halted. Expelling persons, as a matter of ordinary language, is entirely different from interrupting,
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intercepting, or halting the process of introduction.5 Put another way, interrupting, intercepting, or halting the process of introduction does inexorably lead to expulsion.
Neither Section 265 nor any of the definitions provided by the Government contain the word “expel.” They do not even contain synonyms of the word expel, such as “eject” or “evict.” See Synonyms for Expel, Merriam-Webster.com Dictionary, MerriamWebster, https://www.merriam-webster.com/dictionary/expel (last visited Oct. 27, 2020). The Court finds this to be significant, because even “broad rulemaking power must be exercised within the bounds set by Congress,” Merck & Co. v. United States Dep't of Health & Human Servs., 385 F. Supp. 3d 81, 92 (D.D.C. 2019), aff'd, 962 F.3d 531 (D.C. Cir. 2020); and the CDC “does not [have the] power to revise clear statutory terms,” Util. Air Reg. Grp., 573 U.S. at 327. To be sure, as Plaintiff and Magistrate Judge Harvey point out, “when Congress wants to grant the power to expel individuals out of the United States, it does so plainly.” R. & R., ECF No. 65 at 29. For example, in the Chinese Exclusion Act of 1882, enacted only eleven years before the 1893 Act, Congress was very explicit in its deportation
5 With regard to the Government’s objection to Magistrate Judge Harvey finding support for this interpretation in the title of Section 265: “Suspension of entries and imports from designated places to prevent spread of communicable diseases,” 42 U.S.C. § 265; his point was that Section 265 does not address expulsion, not the meaning of entry as a matter of immigration law.
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requirements, declaring “it shall not be lawful for any Chinese laborer to come, or, having so come . . . ninety days [after the Act], to remain within the United States.” Chinese Exclusion Act of May 6, 1882, ch. 126, § 1 (emphasis added).
Finally, the Government objects on the grounds that Magistrate Judge Harvey’s interpretation leads to an absurd, unworkable result because it results in Section 265 being without effect at land borders. Gov’t’s Opp’n, ECF No. 69 at 1819. However, Magistrate Judge Harvey persuasively explained why his interpretation does not result in Section 265 being without effect at land borders. R. & R., ECF No. 65 at 36-38.
b. The Statutory Context Provides Support for Interpreting Section 265 to Likely Not Authorize Expulsions
Since “statutory language cannot be construed in a vacuum, . . . [i]t 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.” Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989) (citing United States v. Morton, 467 U.S. 822, 828 (1984)); see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”). Plaintiff argues that neither Section 265 nor “a neighboring provision
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laying out the ‘penalties’ for violation of ‘any regulation prescribed’ under § 265 make any mention of such expulsion authority.” Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at 22 (citing 42 U.S.C. § 271). The Government contends that “the explicit language in Section 265 authorizing the prohibition of persons (or property) from ‘a foreign country’ to protect against ‘the introduction of such disease into the United States’. . . [in] context . . . clearly includes expulsion.” Gov’t’s Combined Opp’n, ECF No. 42 at 31. Citing the CDC’s additional reliance on “42 U.S.C. § 264 (‘Section 264’), entitled ‘Regulations to control communicable diseases’” which authorizes the CDC “to make and enforce such regulations . . . to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions,” Magistrate Judge Harvey looked to that adjacent Section and found that it “does not contemplate regulations that authorize expulsion from the United States. . . . [but] only regulations that ‘provide for the apprehension, detention, or conditional release of individuals.’” R. & R., ECF No. 65 at 27. Magistrate Judge Harvey observed that “in a section where one would expect the term to appear—where 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.” Id. at 27-28.
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The Government points to the rule of statutory construction that requires a statute to be construed in a manner such that particular construction does not render another provision superfluous to argue that Magistrate Judge Harvey’s reasoning was flawed because if Section 264 authorized expulsion, Section 265 would be superfluous. Gov’t’s Opp’n, ECF No. 69 at 20. The Court disagrees. That “Section 264 does not contemplate regulations that authorize expulsion from the United States,” R. & R., ECF No. 65 at 27; provides contextual support for interpreting Section 265 to not provide authority to expel persons. Plaintiffs have conceded that Section 265 vests the government with significant “authority to bar entry into the country, at least through the regulation of vessels (including airplanes) arriving in the United States.” R. & R., ECF No. 65 at 36. Accordingly, interpreting Section 265 to not authorize expulsions does not render the provision superfluous.
In addition, the Government also argues that Magistrate Judge Harvey erred when he concluded that Congress could not have delegated the authority by silence by not expressly providing for expulsion authority in Section 265 because that section expressly delegated the power to issue regulations that accomplish its purpose. Gov’t’s Obj., ECF No. 69 at 20. The Government’s argument is beside the point; if Section 265 does not provide the authority to expel persons; then it does not
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delegate the authority to issue regulations to expel persons. The Government further argues that just because this is the
first time it has claimed that Section 265 provides it with the authority to expel persons since the provision was enacted 75 years ago does not mean that it does not have such authority. Id. The Government cites the historic and unprecedented nature of the pandemic and the legislative history of the Section 265 to argue that if “Section 265 authority is sparingly used only tracks the extraordinary nature of the authority and the fact that it is very rarely needed.” Id. at 22. The Court agrees that the undisputed authority granted in Section 265 is extraordinary and that the COVID-19 pandemic is unprecedented. But that is entirely distinguishable from whether or not Section 265 authorizes the Government to expel persons. The Court also notes that the legislative history cited by the Government provides not support for its position that Section 265 authorizes it to expel persons.6
Beyond Section 264, Magistrate Judge Harvey noted that the “statute is shot through with references to quarantine . . . but
6 The Government also argues that the situation here is distinguishable from the newly discovered power at issue in Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014). Gov’t’s Objs., ECF No. 69 at 21-22. Magistrate Judge Harvey’s invocation of this authority, however, is only one of the multitude of reasons why plaintiff is likely to succeed on the merits of his claim.
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it contains not a word about the power of the [CDC] to expel anyone who has come into the country.” R. & R., ECF No. 65 28 (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”); 42 U.S.C. § 268 (entitled “Quarantine duties of consular and other officers”); 42 U.S.C. § 270 (entitled “Quarantine regulations governing civil air navigation and civil aircraft”); 42 U.S.C. § 271 (entitled “Penalties for violation of quarantine laws”); 42 U.S.C. § 272 (entitled “Administration of oaths by quarantine officers”)). 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, 42 U.S.C. § 264; and then in times of serious danger, to halt the “introduction of persons” from designated foreign countries. 42 U.S.C. § 265. Notably, Congress established specific penalties for violations of any of the CDC’s regulations pursuant to Sections 264, 265, 266 (entitled “Special Quarantine Powers in Time of War”), and 269 (entitled “Bills of health”). 42 U.S.C. § 271. However, not only is expulsion not mentioned in the statute, but all of these sections, including Section 265, are referred to as “quarantine
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laws,” suggesting that the CDC’s powers were limited to quarantine and containment. Id.
c. Harmonizing Section 265 With Relevant Immigration Statutes Provides Support for Interpreting Section 265 to Likely Not Authorize Expulsions
In conducting his contextual analysis and in harmonizing Section 265 with immigration statutes, Magistrate Judge Harvey: (1) notes that several immigration statutes under Title 8 use words such as “remove” or “return,” whereas none of these words are found in Section 265, see R. & R., ECF No. 65 at 30; and (2) finds the Government’s reading of Section 265 to include the power to expel “unaccompanied minors like Plaintiff and the putative class members, . . . conflicts with various rights granted in the TVPRA and the INA,” id. at 32. Citing to dicta Russello v. United States, 464 U.S. 16, 25 (1983), the Government objects to this by arguing that “‘language in one statute usually sheds little light upon the meaning of different language in another statute.’” Gov’t’s Objs., ECF No. 69 at 22 (internal brackets omitted). In that vein, the Government argues that (1) statutes such as Section 265 which is “designed to prohibit the introduction of persons into the United States to avoid the spread of a communicable disease into the country” should not be compared to immigration statutes which are “designed to confer immigration benefits based on an alien’s
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individual circumstances” because the statutes have different aims, id. at 22-23; and (2) “statutes are already in harmony—the immigration provisions are of general applicability, and Section 265 temporarily suspends their effects in limited circumstances” such as a national emergency, id. at 24-25. The Government’s arguments are unpersuasive.
“It is a fundamental principle of statutory interpretation that absent provision[s] cannot be supplied by the courts.” Rotkiske v. Klemm, 140 S. Ct. 355, 360–61 (2019) (internal citations and quotation marks omitted). First, as Plaintiff points out and Magistrate Judge Harvey agrees, “the Supreme Court routinely points to other statutes as evidence that Congress knows how to legislate in particular ways.” Pl.’s Combined Reply, ECF No. 52 at 15 (collecting cases); see also R. & R., ECF No. 65 at 30 n.11. 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)(3A) (“[t]he Attorney General shall prescribe conditions . . . to . . . return . . . inadmissible aliens”); § 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); the Court recognizes, as did Judge Nichols, that “[t]here's a serious question about whether [Section 265’s] power includes the power
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. . . to remove or exclude persons who are already present in the United States” and 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,” J. B. B. C. Hr’g Tr., Dkt No. 20-cv-1509, ECF No. 39 at 50.
The Government contends that Section 265 contains a “clearly expressed congressional intention” to suspend the effect of Title 8 because Section 265 authorizes the suspension of other laws that provide for the right to introduce persons into the country. Gov’t’s Objs., ECF No. 69 at 25. The Government argues that Magistrate Judge Harvey was wrong to rely on the absence of the phrase “[n]otwithstanding any other provision of law” in Section 265 for the proposition that it was not meant to suspend the effect of relevant Title 8 provisions because that phrase would logically appear in a subsequently enacted statute, but the relevant Title 8 provisions were enacted subsequent to Section 265. Id. However, the phrase “[n]otwithstanding any other provision of law” is not used to supersede only earlier-enacted statutes, but is properly read as “Congress’s indication that the statute containing that language is intended to take precedence over any pre-existing or subsequently-enacted legislation on the same subject.” U.S. v. Puentes, 803 F.3d 597, 606 (11th Cir. 2015)(internal citation
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omitted). Further, the Government’s contention that Section 265 and the relevant provisions of Title 8 are not on the “same subject” is unavailing since the Government intends to use Section 265 to expel persons from the United States just as Title 8 provides for the removal of persons.
The Government also argues that Magistrate Judge Harvey had no “sound reason” to conclude that the phrase “suspension of the right to introduce” in Section 265 is not a “clearly expressed congressional intention” to suspend the effect of Title 8 provisions. Gov’t’s Objs., ECF No. 69 at 26. Rather, according to the Government, the legislative history of the predecessor statute shows that Congress intended to authorize the temporary suspension of the immigration laws. Id. at 26-27. However, the language of Section 265 contains no “clear intention” to authorize the suspension of the relevant provisions of Title 8. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1632 (2018).
The Government further argues that Magistrate Judge Harvey improperly invoked the canon of “the specific governs the general” to find that the relevant provisions of Title 8 take precedence over Section 265 because his reasoning—that “[i]t is not clear how Section 265 . . . could be considered more specifically targeted to matters of immigration or as providing more specific solutions,” R. & R., ECF No. 65 at 36;—is flawed because “Section 265 is not designed to target immigration at
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all . . . it is a public health provision designed only to address the specific and rare instance of a public health crisis presented by the outbreak of a communicable disease.” Gov’t’s Objs., ECF No. 69 at 28. Since the Government concedes that “Section 265 is not designed to target immigration at all” it clearly cannot be the more specific statute when it is being relied upon to expel unaccompanied children who are entitled to protections under the relevant provisions of Title 8. Id.
Finally, the Government argues that Magistrate Judge Harvey erred in dismissing its “argument that Section 265 would be rendered a nullity if it must be applied in conjunction with immigration provisions.” Id. at 28-29. However, as explained supra, Magistrate Judge Harvey persuasively explained why his interpretation does not result in Section 265 rendered a nullity. R. & R., ECF No. 65 at 36-38.
d. The Government’s Interpretation of Section 265 is Likely Not Entitled to Chevron Deference
Magistrate Judge Harvey found that because the statute is not ambiguous using traditional tools of statutory interpretation, there was no need to reach step two of the Chevron analysis.7 R. & R., ECF No. 65 at 38 n.15. He stated,
7 Because he found the statute to be unambiguous, Magistrate Judge Harvey improperly invoked the constitutional avoidance doctrine. See McFadden v. United States, 576 U.S. 186, 197 (2015) (noting that the “canon of constitutional avoidance . . .
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however, that even if there were ambiguity, he would find, as did Judge Nichols, that deference would not be justified because the question for the claim is purely legal and does not depend upon the CDC’s scientific and technical expertise. See id.
The Government argues that, pursuant to Chevron, “simply because a question is purely legal says nothing about whether the Court should defer to an agency’s reasonable interpretation of the statute it administers.” Gov’t’s Objs., ECF No. 69 at 30. The Government contends that it is within CDC’s delegated authority and expertise to interpret the word “introduction” because in interpreting the word, the CDC “utilized [its] scientific and technical knowledge and experience regarding communicable diseases generally and applied it to the specific public health threat here.” Id. at 31. Assuming for the purpose of responding to the Government’s objections that the term is ambiguous, the Court disagrees that the CDC’s interpretation implicates its scientific and technical expertise because the Government has not explained how that scientific and technical expertise lead it to interpreting “introduction” to encompass “expulsion.” Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019)
has no application in the interpretation of an unambiguous statute . . .”) (internal quotation marks omitted). Magistrate Judge Harvey’s invocation of this canon, however, is only one of the multitude of reasons why plaintiff is likely to succeed on the merits of his claim.
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(noting that “[a] court must make an independent inquiry into whether the character and context of the agency interpretation entitled it to controlling weight”). Accordingly, CDC is not entitled to deference with respect to its interpretation.
For the reasons above, the Court ADOPTS Magistrate Judge Harvey’s finding that Plaintiff is likely to succeed on the merits of his claim.
2. Irreparable Injury Plaintiff contends that, at the time he filed his complaint, he was likely to suffer an irreparable injury if he was expelled under Section 265 because he would have been “sent summarily back to Guatemala without any meaningful opportunity to assert his claims for relief, and where he would have faced grave harm from those he sought to escape.” Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at 39. Further, Plaintiff provided declarations demonstrating that returned children are “frequently trafficked from rural to urban areas and across borders or to border areas, where they are often sexually exploited or subject to exploitative labor.” Lisa Frydman Decl., ECF No. 15-12 ¶ 6. Magistrate Judge Harvey found that Plaintiff “adequately established a likelihood of irreparable injury should a preliminary injunction not issue,” R. & R., ECF No. 65 at 41; because “Plaintiff has presented declarations from attorneys
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representing numerous unaccompanied children who have crossed the border and have bona fide claims for humanitarian relief, including fear of persecution on the basis of protected characteristics, but have been subjected to the [CDC Orders] and threatened with deportation prior to receiving any of the protections the immigration laws provide,” id. at 39.
The Government’s sole objection is that Magistrate Judge Harvey “improperly collapse[d] independent requirements such that Plaintiff’s purported likelihood of success on the merits apparently establishes irreparable harm.” Gov’t’s Objs., ECF No. 69 at 32.
Magistrate Judge Harvey was persuaded that Plaintiff and members of the Provisional Class demonstrated that in the absence of injunctive relief they were likely to suffer irreparable harm because they could be subject to “sexual and other violence and face the possibility of torture and death.” R. & R., ECF No. 65 at 39; see also Lisa Frydman Decl., ECF No. 15-12 ¶ 6. (averring that returned children are “frequently trafficked from rural to urban areas and across borders or to border areas, where they are often sexually exploited or subject to exploitative labor.”). Furthermore, Magistrate Judge Harvey recognized that “the burden of removal alone cannot constitute the requisite irreparable injury.” R. & R., ECF No. 65 at 40 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). Magistrate
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Judge Harvey appropriately distinguished the facts upon which that holding rested from this situation because here, “the putative class members are being returned without any opportunity to apply for asylum or withholding of removal. Once expelled from the United States and outside the jurisdiction of the Court, it is not clear that a remedy can be provided.” R. & R., ECF No. 65 at 40. The Government’s objections do not address Magistrate Judge Harvey’s reasoning on this point. See generally, Gov’t’s Objs., ECF No. 69; Reply, ECF No. 75.
For the reasons above, the Court ADOPTS Magistrate Judge Harvey’s finding that Plaintiff adequately established a likelihood of irreparable injury should a preliminary injunction not issue.
3. Balance of the Equities and Public Interest Plaintiff contends that “[p]reventing [the Government] from removing unaccompanied children until final disposition of this case would not substantially injure the government” because: (1) “unaccompanied children referred to ORR care are typically released to sponsors under the TVPRA, which in most cases will be a parent or close relative who can ensure the child will self-quarantine,” Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at 41; (2) the CDC Orders do “not make DHS officers safer, and in fact, likely increases any potential exposure” because expelling unaccompanied children takes longer than transferring them to
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the ORR, id. at 42; and (3) “public health officials have overwhelmingly noted there are numerous safety measures that can be taken to avoid the spread of COVID-19, including quarantines,” id.
Magistrate Judge Harvey found that the [p]ublic interest in enjoining unlawful government action, protecting non-citizen children from being wrongfully removed, and preventing risks to “public health caused by the [CDC Orders] weighed in Plaintiff’s favor,” R. & R., ECF No. 65 at 41-42; and while “a preliminary injunction will impose some hardships on [the Government], the public interest and immitigable hardships to Plaintiff outweigh the mitigable hardships to [the Government],” id. at 42.
The Government objects on two grounds. First, that Magistrate Judge Harvey erred in his evaluation of the public interest because the children would be held in “congregate settings in border settings ill-equipped” to deal with the public health issues posed by the pandemic, resulting in an increased risk of COVD-19 transmission and infection among the children, others being held, DHS personnel, and the United States population at large.8 Gov’t’s Objs., ECF No. 69 at 33.
8 The Government makes similar objections by arguing that Magistrate Judge Harvey “erred in disregarding the ways in which the CDC Order and its enforcement” protect persons other than DHS personnel at the border; specifically “aliens, DHS personnel and the American public, as well as the vital healthcare resources of this Nation,” Gov’t’s Objs., ECF No. 69 at 34; and
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However, Magistrate Judge Harvey did consider but ultimately rejected the Government’s position, noting that the Government’s “argument is suspect given that the alternative to quarantine that they propose—expulsion pursuant to the [CDC Order]—results in unaccompanied minors often being detained longer while awaiting expulsion than they would otherwise be, and the concomitant lengthened exposure of class members to other noncitizens, Customs and Border Patrol officers, and local medical personnel.” R. & R., ECF No. 65 at 45.
Second, the Government objects on the grounds that Magistrate Judge Harvey failed to consider Deputy Director Jallyn Sualog’s declaration as to why the use of hotels are justified—specifically that the children can be placed in individual rooms with doors that close and private facilities for sleeping, eating and bathing. Gov’t’s Objs., ECF No. 69 at 34. Although Magistrate Judge Harvey did not specifically reference Ms. Sualog’s declaration on this specific point, he rejected the justification she provided, relying on persuasive authority for the proposition that the Government “had failed to
that he “failed to consider the CDC Director’s conclusion that conditional release is not a viable option here due to significant uncertainty that covered aliens could effectively self-quarantine, self-isolate, or otherwise comply with social distancing guidelines, particularly in light of the CDC’s inability to effectively monitor such a large number of people so released,” id. at 34-35.
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demonstrate how hotels, which are otherwise open to the public and have unlicensed staff coming in and out, located in areas with high incidence of CIVD-19, are any better for protecting public health than licensed facilities would be” and that “[e]ven if the infection control protocols at [the Office of Refugee Resettlement] come under stress, or are forced to make some adjustments,” the program’s facilities are likely to “remain far safer than unregulated hotel stays for both detained minors and the general public.” R. & R., ECF No. 65 at 44 (quoting In Chambers Order at 4, Flores v. Barr, CV 85-4544 (DMG) (AGRx) (C.D. Cal. Sept. 21, 2020), ECF No. 990 (“In Chambers Flores Order”) (quoting Flores, 2020 WL 5491445, at *6).
Next, the Government argues that Magistrate Judge Harvey’s “conclusion regarding the public health implications of transferring putative class members to the [ORR] is . . . fraught with errors” for three reasons. Gov’t’s Objs., ECF No. 69 at 35. First, the Government argues that he erred by focusing on the number of available beds rather than the rationale articulated by Deputy Director Sualog—specifically that “the increased rate of referrals to ORR of minors with higher rates of exposure would create operational difficulties and make it more difficult to implement sufficient containment protocols.” Gov’t’s Objs., ECF No 69 at 35. Second, he “failed to take into
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account the judgment of Deputy Director Sualog that ORR had already reached the threshold that puts ORR in significant stress.” Id. Third, he was wrong to give weight to the rationale articulated in Flores—specifically that Deputy Director Sualog’s declaration lacked support from a “public health official” because she attested that the COVD-19 infection control measures were developed in consultation with the CDC. Id. at 36. Along these lines, the Government contends that it was error for Magistrate Judge Harvey to give no weight to Deputy Director Sualog’s opinion given that she oversees the operations of the agency. Id.
The Court is not persuaded by the Government’s objections. Magistrate Judge Harvey directly addressed Deputy Director Sualog’s rationale, but rejected it on the same grounds as did the court in Flores—specifically noting that “there are sufficient numbers of currently under-utilized [ORR] facilities such that transfers can be allocated among facilities to avoid over-concentration or bottlenecking,” R. & R., ECF No. 65 at 46 (citing In Chambers Order at 4, Flores, No. CV 85-4544 DMG, ECF No. 990, (AGRx) (C.D. Cal Sept. 21, 2020)). Magistrate Judge Harvey also correctly pointed out that there was good reason to not credit Deputy Director Sualog’s assertions because they were “highly speculative” and not supported by “scientific or empirical analysis.” R. & R., ECF No. 65at 46 (quoting In
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Chambers Flores Order at 3). The Court also finds it persuasive
that following the issuance of Magistrate Judge Harvey’s R. &
R., the United States Court of Appeals for the Ninth Circuit
agreed with the court’s relevant determination in Flores:
[T]he government has not established that the additional referrals would actually overwhelm the ORR system. The same ORR official determined in March 2020, when the system was operating at 30 percent capacity overall, that the population of minors was sufficiently low to allow ORR to implement COVID-19 safety protocols effectively. She now urges us not to rely on that determination and points out that the population was “practically static” at that time, so the system's intake capacity was not burdened. Since March, however, the population of minors in ORR care has dropped tenfold; as of August 24, 2020, the system was operating at 3 percent capacity, with 10,000 vacant beds. See Sept. 4 Order, 2020 WL 5491445, at *8. The government has not satisfactorily explained why ORR's largely empty shelters are not capable of absorbing even as many as 140 additional minors a week for short-term stays before those minors are expelled under Title 42. Nor has the government offered testimony from any public health official explaining why holding minors in hotels, which are open to the public, presents less risk of COVID-19 exposure and spread, both to the minors and to the public, than holding them in licensed facilities.
Flores v. Barr, No. 20-55951, 2020 WL 5883905, *5-*6 (9th Cir.
Oct. 4, 2020).
The Government concludes that Magistrate Judge Harvey
“erroneously minimized the public health exigency posed by the
pandemic, which requires the Government to utilize its broad
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powers under Section 265 to effectively address the public health dangers to aliens, DHS personnel and the American public” noting that the Court should not “substitute its judgment for that of Government officials tasked with ensuring the public health and safety of our Nation.” Gov’t’s Objs., ECF No. 69 at 36-37. Magistrate Judge Harvey recognized that “a preliminary injunction will impose hardships on the government and may force it . . . to make difficult decisions about allocation of resources to mitigate the risks caused by COVID-19.” R. & R., ECF No. 65 at 46. Rather than this being a situation where the Court is substituting its judgment for that of government officials; however, here the government officials are not acting within the bounds set by Congress. Accordingly, the Court finds that Magistrate Judge Harvey correctly weighed the public interest in favor of “the general importance of [the CDC and DHS’s] faithful adherence to its statutory mandate,” which does not permit expulsion. Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977).
For the reasons above, the Court therefore ADOPTS Magistrate Judge Harvey’s finding that Plaintiff adequately established that the public interest and immitigable hardships to Plaintiff outweigh the mitigable hardships to the Government.
Having found no clear error in this portion of the R. & R., the Court therefore ADOPTS Magistrate Judge Harvey’s
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recommendation, and GRANTS Plaintiff’s motion for preliminary injunction. Mot., ECF No. 15.
4. The Injunction Applies to the Final Rule Magistrate Judge Harvey recommends that “the preliminary injunction . . . be crafted to . . . prohibit[] expulsion from the United States under the Title 42 process whether that conduct has been permitted in orders issued by the CDC Director pursuant to the authority of the Interim Final Rule or the Final Rule” because “there is no relevant material difference between the CDC Director’s authority under the Final Rule and the authority that the government here has argued he enjoys under the Interim Final Rule.” R. & R., ECF No. 65 at 47-48. The Government objects to this relief but has not identified any meaningful way in which the Final Rule differs from the Interim Final Rule. See Gov’t’s Objs., ECF No. 69 at 37. Accordingly, the Court will enjoin expulsion from the United States under Title 42 for CDC Orders issued pursuant to the Interim Final Rule or the Final Rule. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. V. City of Jacksonville, 508 U.S. 656, 662 (1993). 5. The Court Will Not Require Plaintiff 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
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proper to pay the costs and damages sustained by any party found to have been wrongly 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) (Sullivan, J.) (quoting DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999) (internal citation omitted). Here, Plaintiff is a child allegedly fleeing prosecution in his home country and does not have the ability to post a bond. Additionally, he is seeking to vindicate important rights under the immigration laws. Accordingly, the Court will waive the requirement for an injunction bond. See id. IV. Conclusion
For the foregoing reasons the court ADOPTS the Report and Recommendation, ECF No. 65 and PROVISIONALLY GRANTS Plaintiff’s Motion to Certify Class, ECF No. 2, and GRANTS Plaintiff’s Motion for Preliminary Injunction, ECF No. 15. The Government’s request to stay the Court’s Order while it decides whether to appeal and/or pending appeal is DENIED for substantially the same reasons as those articulated in this Opinion. An appropriate Order accompanies this Memorandum Opinion.
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SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge November 18, 2020

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 Case 1:20-cv-02245-EGS-GMH Document 57 Filed 09/17/20 Page 1 of 13

In the
United States Court
for the
District of Columbia

P.J.E.S., v.
Chad Wolf, et al.

Plaintiff, Civil Action 1:20-cv-02245 (EGS)
Defendants.

BRIEF AMICUS CURIAE OF THE
IMMIGRATION REFORM LAW INSTITUTE

Case 1:20-cv-02245-EGS-GMH Document 57 Filed 09/17/20 Page 2 of 13
TABLE OF CONTENTS Table of Authorities ....................................................................................... ii Interest of Amicus Curiae...............................................................................1 Statement ........................................................................................................1 Legal Standard................................................................................................3 Argument ........................................................................................................3
I. Repeals by implication are disfavored. ...................................................4 II. Section 245 is neither a substitute for nor in irreconcilable
conflict with the Immigration and Nationality Act ................................5 III. Congress’s subsequent amendments to the immigration-
related provisions of the Health Service Act show a lack of implicit repeal...........................................................................................7 Conclusion .......................................................................................................8
i

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TABLE OF AUTHORITIES
Case Law:
Branch v. Smith, 538 U.S. 254 (2003) .................................................. 4 Defs. of Wildlife v. United States EPA,
420 F.3d 946 (9th Cir. 2005) .......................................................... 6–7 Defs. of Wildlife v. United States EPA,
450 F.3d 394 (9th Cir. 2006) .............................................................. 7 Hunter v. FERC, 711 F.3d 155 (D.C. Cir. 2013)................................... 4 Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982)........................... 4 Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) ........................................................................ 6–7 Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ............ 3 Morton v. Mancari, 417 U.S. 535 (1974)............................................... 4 RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639 (2012) ............................................................................ 6 Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) ..................... 4 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ............................. 4 United States v. Borden Co., 308 U.S. 188 (1939)................................ 4 United States v. United Cont’l Tuna Corp.,
425 U.S. 164 (1976) ............................................................................ 4
Statutes:
Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 (1944) ................................ 2–3, 5, 7
Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 ................................................ 3, 6–8
Hawaii Omnibus Act, Pub. L. 86–624, 74 Stat. 419 (1960) ........................................................... 8
ii

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National Consumer Health Information and Health Promotion Act of 1976, Pub. L. 94–317, 90 Stat. 695 ......................................... 8
Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. 107–188, 116 Stat. 594..................... 8
William Wilburforce Trafficking Victims Protection Act of 2008, Pub. L. No. 110-457, 122 Stat, 5044 .................................... 3
8 U.S.C. § 1158 ....................................................................................... 3, 6 8 U.S.C. § 1231................................................................................... 3, 6 8 U.S.C. § 1232................................................................................... 3, 6 42 U.S.C. § 264................................................................................... 2–3 42 U.S.C. § 265............................................................................... 2–3, 5 Regulations: 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. 16,559–67 (Mar. 24, 2020) .............. 2 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. 17,060–88 (Mar. 26, 2020) ............................... 2
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INTEREST OF AMICUS CURIAE The Immigration Reform Law Institute (“IRLI”) is a not for profit 501(c)(3) public interest law firm incorporated in the District of Columbia. IRLI is dedicated to litigating immigration-related cases on behalf of United States citizens. IRLI has litigated or filed amicus curiae briefs in many immigration-related cases before federal courts and administrative bodies, including Trump v. Hawaii, 138 S. Ct. 2392 (2018); United States v. Texas, 136 S. Ct. 2271 (2016); Arizona Dream Act Coal. v. Brewer, 818 F.3d 101 (9th Cir. 2016); Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 74 F. Supp. 3d 247 (D.D.C. 2014); Save Jobs USA v. United States Dep’t of Homeland Sec., 942 F.3d 504 (D.C. Cir. 2019); Matter of Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016); and Matter of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010). IRLI has represented a wide variety of plaintiffs in immigration matters, ranging from American workers who have been displaced by foreign workers to foreign workers who have not been paid by their employers. Consequently, IRLI is dedicated to assisting the courts in maintaining a rational immigration system for the benefit of its clients.
STATEMENT This case raises the question of whether statutory provisions governing the public health system that authorize the executive branch to ban the introduction of aliens into the United States from countries when there is a danger of introducing disease have been implicitly repealed by subsequent enactments in immigration provisions governing asylum, removal of aliens, and trafficking of children. E.g., 8 U.S.C.
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§§ 1158, 1231, 1232. The Public Health Service Act contains immigration-related provi-
sions that address the introduction of diseases from foreign countries. Pub. L. No. 78-410, §§ 361–62, 58 Stat. 682, 703–04 (1944). Section 361 of the Act (codified at 42 U.S.C. § 264) authorizes the executive branch to make and enforce regulations “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries” and for the “apprehension, detention, or conditional release of individuals” who are “coming into a State or possession from a foreign country” for the “purpose of preventing the introduction, transmission, or spread of such communicable diseases.” Section 362 (codified at 42 U.S.C. §265) of the act authorizes the executive branch to promulgate regulations that “prohibit, in whole or in part, the introduction of persons and property from such countries or places . . . in order to avert such danger, and for such period of time . . . necessary for such purpose.”
In response to the COVID-19 pandemic, the Department of Health and Human Services (HHS) issued an Interim Final Rule to allow the Centers for Disease Control and Prevention (CDC) Director to invoke his authority under Section 265. 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. 16,559–67 (Mar. 24, 2020). Subsequently, the CDC issued an order in response limiting travel to the United States. 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. 17,060–88 (Mar.
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26, 2020). The order enlisted the assistance of U.S. Customs and Border Protection (CPB) for implementation. Id. Plaintiff filed this lawsuit alleging the government’s actions under 42 U.S.C. § 265 violate the Administrative Procedure Act. Compl. ¶¶ 108–146. Plaintiff now seeks a preliminary injunction. Mot. ECF 15.
LEGAL STANDARD To prevail in a motion for a preliminary injunction a plaintiff
must demonstrate 1) a substantial likelihood of success on the merits, 2) that they would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction. A district court must balance the strength of a plaintiff’s arguments in each of the four elements when deciding whether to grant a preliminary injunction. Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009) (internal quotations and citations omitted).
ARGUMENT The provisions of 42 U.S.C. §§ 264–65 authorize the executive branch to prohibit the introduction of people or property from countries where the CDC has determined there exists a communicable disease. These provisions were enacted in the Public Health Service Act, Pub. L. No. 78-410, §§ 361–62, 58 Stat. 682 (1944). Subsequent enactments of immigration provisions address the removal of aliens, 8 U.S.C. § 1231, and efforts to combat the trafficking of children, 8 U.S.C. § 1232. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 214, 66 Stat. 163, 202; William Wilburforce Trafficking Victims Protection Act of 2008, Pub. L. No. 110-457, § 235, 122 Stat. 5044, 5073. This case presents the question of whether later enacted immigration provisions have implicitly repealed the earlier public health provisions.
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I. Repeals by implication are disfavored. “It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored.” United States v. United Cont’l Tuna Corp., 425 U.S. 164, 168 (1976). “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. ‘When there are two acts upon the same subject, the rule is to give effect to both if possible.’” Morton v. Mancari, 417 U.S. 535, 551 (1974) (quoting United States v. Borden Co., 308 U.S. 188, 198 (1939)). Furthermore, the courts treat allegations of partial repeal by implication in the same manner as allegations of total repeal by implication. E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984); Hunter v. FERC, 711 F.3d 155, 159 (D.C. Cir. 2013). Under the general rule of statutory construction, the provisions of Title 42 have not been repealed by subsequent enactments in Title 8. There are two situations, however, where courts find repeals by implication: “(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468 (1982) (quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976)). Such a finding is rare. See Branch v. Smith, 538 U.S. 254, 293 (2003) (O’Connor, J., concurring in part and dissenting in part) (observing the Court had not found an implied repeal outside the anti-trust context
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since 1917, or any implied repeal since 1975).
II. Section 245 is neither a substitute for nor in irreconcilable conflict with the Immigration and Nationality Act. The first circumstance for finding a repeal by implication is not present. The executive’s powers to restrict immigration under 42 U.S.C. § 265 are not boundless. That provision can only be invoked when four prerequisites are satisfied: the CDC must (1) determine the existence of a communicable disease in a foreign country; (2) that there is serious danger of the introduction of the disease into the United States; (3) that the danger from the disease is increased by the introduction of persons or property from that country; and (4) that the suspension of the introduction of such persons or property is required in the interest of public health. Id. Therefore, 42 U.S.C. § 265 is not a provision of general application. Furthermore, it is notable that neither the complaint, ECF 1, nor Plaintiff’s memorandum in support of their motion, ECF 15-1, dispute whether the CDC has satisfied the prerequisites of section 265. Because section 265 is one of limited application, it is not difficult to give effect to both it and the statutory provisions of Title 8. The provisions of the Immigration and Nationality Act (e.g., 8 U.S.C. §§ 1158, 1231, 1232) are of general application and normally apply. In contrast, section 265 only applies in limited circumstances and over limited periods of time. Such an interpretation flows naturally from the generalia specialibus non derogant (general/specific) canon of statutory construction. “[W]here general and specific authorizations exist side-by-side, the general/specific canon avoids rendering superfluous a specific provision that is swallowed by the general one.” RadLAX Gateway Hotel,
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LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). The provisions of Title 42 can, and should be, given full effect.
The second circumstance for finding repeal by implication here can be dispensed with quickly. The public health provisions and immigration provisions at issue are in different titles of the U.S. Code (8: Aliens and Nationality; 42: The Public Health and Welfare). Section 265 of Title 42 was created in an act that consolidated the laws relating to the Public Health Service. Public Health Service Act, § 362, 58 Stat. at 704. Clearly, the Immigration and Nationality Act of 1952 as amended does not cover the whole subject of public health. There is some overlap in subject matter, but the Public Health Service Act is not a subset of the Immigration and Nationality Act. For example, the former’s creation of a National Health Service Corps does not exist anywhere in the Immigration and Nationality Act. Public Health Service Act, § 203, 58 Stat. at 683. Therefore, neither circumstance for finding a repeal by implication exists here.
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, is instructive on this point. 551 U.S. 644 (2007). The Clean Water Act (1972) gave the Environmental Protection Agency authority to issue permits for the discharge of pollutants into navigable waters. Defs. of Wildlife v. United States EPA, 420 F.3d 946, 950 (9th Cir. 2005). The same Act permitted states to apply to the EPA to administer the permit program within their borders. Id. Furthermore, the Clean Water Act mandated that the Environmental Protection Agency approve such applications if nine conditions were met. Id. Subsequently, in 1973 Congress enacted the Endangered Species Act. Id. The Endangered Species Act required that agencies must ensure that their actions would not adversely affect
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threatened species. Id. at 950–51. The Defs. of Wildlife plaintiff challenged the transfer of a permit process to Arizona under the Clean Water Act on the grounds that the transfer did not conform to the requirements of the Endangered Species Act. Id. at 955.
The Ninth Circuit vacated the permit process transfer, even though the nine requirements of the Clean Water Act had been satisfied. Id. at 978. The Ninth Circuit held that the requirements of the Endangered Species Act also applied, effectively creating a tenth requirement for the application process. Id. at 975; Defs. of Wildlife v. United States EPA, 450 F.3d 394, 404 n.2 (9th Cir. 2006) (“[T]he very definite, unqualified language of the after-enacted Endangered Species Act must still prevail.”) (Berzon, J., concurring in denial of rehearing en banc).
On writ of certiorari, the Supreme Court reversed. 551 U.S. at 673. The Supreme Court noted that the Ninth Circuit’s grafting of a tenth requirement from the Endangered Species Act into the permit application process impermissibly created an implicit repeal of the mandate of the Clean Water Act. Nat’l Ass’n of Home Builders, 551 U.S. at 663. Similarly here, the provisions of Title 42 cannot be wiped out implicitly by the later enactments to Title 8 when there has been no specific repeal.
III. Congress’s subsequent amendments to the immigration-related provisions of the Health Service Act show a lack of implicit repeal. Section 361 of the Public Health Service Act, authorizing regulations to prevent the introduction of disease from foreign countries and allowing the apprehension of aliens coming from a foreign country, has been amended three times after the enactment of the Immigration and Na-
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tionality Act of 1952. The Hawaii Omnibus Act (1960) removed references to the Territory of Hawaii. Pub. L. 86–624, § 29, 74 Stat. 419, 624. The National Consumer Health Information and Health Promotion Act of 1976 redefined state to include the District of Columbia. Pub. L. 94–317, § 301, 90 Stat. 695, 707. The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 modified the regulatory requirements governing the apprehension of aliens. Pub. L. No. 107–188, § 142, 116 Stat. 594, 626–27. Congress’s repeated amendments to the provision authorizing regulations to restrict the introduction of aliens to prevent the spread of communicable diseases shows that Congress has not intended an implicit repeal of the executive’s authority in this area.
CONCLUSION For the reasons stated above, the motion for preliminary injunction should be denied.
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Respectfully submitted,
/s/ John M. Miano John M. Miano D.C. Bar No. 1003068 Christopher J. Hajec D.C. Bar No. 492551 Immigration Reform Law Institute 25 Massachusetts Ave., N.W. Suite 335 Washington, D.C. 20001 (908) 273-9207 miano@colosseumbuilders.com
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 Case 1:20-cv-02245-EGS-GMH Document 36 Filed 09/03/20 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

P.J.E.S., a MINOR CHILD, by and through his father and Next Friend, Mario Escobar Francisco,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants,

Civil Action No. 1:20-cv-02245 (EGS)

BRIEF FOR SCHOLARS OF REFUGEE AND IMMIGRATION LAW AS AMICI CURIAE IN SUPPORT OF PLAINTIFF’S
MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

Case 1:20-cv-02245-EGS-GMH Document 36 Filed 09/03/20 Page 2 of 16

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTEREST OF AMICI ...................................................................................................................1

STATEMENT ..................................................................................................................................2

ARGUMENT ...................................................................................................................................5

I.

THE CDC ORDERS VIOLATE STATUTES PROVIDING FOR ASYLUM, WITHHOLDING OF

REMOVAL, PROTECTION AGAINST TORTURE, AND PROTECTION OF UNACCOMPANIED

CHILDREN .............................................................................................................................5

A. United States Statutes Protect From Removal Noncitizens Facing Persecution Or Torture In Their Home Countries, And Extend Special Protections To Unaccompanied Children.........................................................................................5

B. Section 362 Of The 1944 Public Health Service Act Does Not Override The Specific Protections From Removal That Congress Has Enacted In The Intervening Decades.................................................................................................7

CONCLUSION ..............................................................................................................................11

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TABLE OF AUTHORITIES

CASES

Page(s)

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ............................................................................8

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .............................................10

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)..................................................................................6

United States v. Fausto, 484 U.S. 439 (1988) ...............................................................................10

STATUTES, RULES, AND REGULATIONS

8 C.F.R. § 208.16................................................................................................................................7 § 208.17................................................................................................................................7 § 235.3..................................................................................................................................9

42 C.F.R. § 71.40..................................................................................................................................2 Part 71 ................................................................................................................................11

85 Fed. Reg. 16,559 (Mar. 24, 2020) ........................................................................................................2 17,061 (Mar. 26, 2020) ....................................................................................................3, 4 31,503 (May 26, 2020).........................................................................................................3 41,201 (July 9, 2020) ...........................................................................................................6

8 U.S.C. § 1101...................................................................................................................................5 § 1158...................................................................................................................................6 § 1182...................................................................................................................................8 § 1225...........................................................................................................................3, 4, 9 § 1229a.........................................................................................................................6, 8, 9 § 1231...............................................................................................................................6, 7 § 1232...................................................................................................................................7

42 U.S.C. § 265.............................................................................................................2, 7, 8, 9, 10, 11 Part G .................................................................................................................................11

Act of Mar. 3, 1891, 26 Stat. 1084...................................................................................................8

Act of Feb. 15, 1893, 27 Stat. 449 ...................................................................................................2

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Pub. L. No. 105-277, 112 Stat. 2681 ...................................................................................6 Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. No. 110-457, 122 Stat. 5044 ...................................................................................7 OTHER AUTHORITIES
COVID-19 Capio Memorandum, https://www.documentcloud.org/documents/ 6824221-COVID-19-CAPIO.html (visited August 21, 2020).............................................4
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INTEREST OF AMICI1 Amici curiae are scholars with expertise in United States and international law governing

refugees and United States immigration law.

• T. Alexander Aleinikoff is University Professor at The New School and Director of the

Zolberg Institute on Migration and Mobility; from 2010 to 2015, served as United

Nations Deputy High Commissioner for Refugees; and is co-author of a leading textbook,

Immigration and Citizenship: Process and Policy.

• Deborah Anker is Clinical Professor of Law at Harvard Law School; Founder, Harvard

Immigration and Refugee Clinic; and author of a leading treatise, Law of Asylum in the

United States.

• James C. Hathaway is the James E. and Sarah A. Degan Professor of Law at Michigan

Law, University of Michigan; founding director of Michigan Law’s Program in Refugee

and Asylum Law; and the author of The Rights of Refugees under International Law.

•

Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and

Comparative Law at Harvard Law School; a Co-Director of the Human Rights Program

at Harvard Law School; and the author of Strangers to the Constitution: Immigrants,

Borders and Fundamental Law.

Amici have collectively spent decades researching and writing about refugee and immigration

law. This brief is submitted to provide an overview of the protections that Congress has enacted

into United States law for refugees and minors, often to effectuate principles of international law

and United States treaty obligations.

1

No counsel for a party authored this brief in whole or in part, and no entity or person

other than amici and its counsel made a monetary contribution intended to fund the preparation

or submission of this brief.

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STATEMENT This case concerns an attempt by the Executive Branch to circumvent statutory protections against removal by creating a surrogate system of removal, assertedly in reliance on public health considerations arising from COVID-19. The Executive Branch has carried this out through a two-step process. First, the Centers for Disease Control and Prevention (“CDC”) issued an interim final rule amending its Foreign Quarantine Regulations to authorize the CDC Director to issue orders suspending “the introduction into the United States of persons from designated foreign countries … or places” if necessary to address a “serious danger of the introduction of … communicable disease into the United States.” 85 Fed. Reg. 16,559, 16,566 (Mar. 24, 2020) (42 C.F.R. § 71.40(a)). The CDC rule purports to rest not on any authority granted by the Immigration and Nationality Act (“INA”), which Congress enacted in 1952 and has amended multiple times since then, but rather on a public health provision originally enacted in 1893 and later re-enacted as section 362 of the 1944 Public Health Service Act. See 85 Fed. Reg. at 16,563; see also Act of Feb. 15, 1893, ch. 114, § 7, 27 Stat. 449, 452. Now codified at 42 U.S.C. § 265, the public health provision authorizes the Director of the CDC to address “a serious danger of the introduction of” a “communicable disease” from a foreign country “into the United States” by “prohibit[ing], 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.” While the CDC interprets this authority expansively, the CDC Rule does not apply to all persons entering the United States. Rather, United States citizens, lawful permanent residents, and certain members of the U.S. military are excluded entirely from the scope of the authority that the rule creates. See 85 Fed. Reg. at 16,567 (42 C.F.R. § 71.40(f)).
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Second, exercising his new authority under the interim final rule, the CDC Director issued an order suspending for 30 days the introduction of persons traveling across the land borders with Mexico or Canada who would otherwise enter a “congregate setting” in a land port of entry or Border Patrol station. 85 Fed. Reg. 17,061, 17,067 (Mar. 26, 2020) (“CDC Order” or “Order”). The Order does not apply to (1) United States citizens, lawful permanent residents, and their spouses or children; (2) members of the United States military, and their spouses or children; or (3) persons who arrive at a port of entry who either have valid travel documents or are in the visa waiver program and not otherwise subject to travel restrictions. See id. at 17,061. Those persons who remain covered after application of these exceptions are denominated “covered aliens.” Id. The CDC Order requests that the Department of Homeland Security return such “covered aliens” immediately or as rapidly as possible “to the country from which they entered the United States, to their country of origin, or another location as practicable.” Id. at 17,067. The CDC Director has twice extended his suspension order (collectively, “CDC Orders”), most recently doing so for an indefinite period of time. See 85 Fed. Reg. 31,503, 31,504 (May 26, 2020). In the same order, the Director also extended its scope to cover coastal ports of entry and border patrol stations. Id. Airports remain uncovered. Id. at 31,504 n.1.
Even before the CDC issued its interim final rule and the Director issued the CDC Orders, the INA already authorized expedited removal of noncitizens without valid entry documents who arrive at the United States border, or who are apprehended in the United States after having entered the country without inspection and who are unable to prove that they have been physically present in the country for two years. See 8 U.S.C. § 1225(b)(1)(A)(i), (iii). Immigration officers may proceed immediately to remove such noncitizens unless they indicate an intention to apply for asylum, in which case asylum officers evaluate whether the noncitizens
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have a credible fear of persecution, subject to additional review. See id. § 1225(b)(1)(B). In light of this existing authority, the actual scope of new authority granted by the CDC Orders is effectively targeted to a particular group—namely, those “covered aliens,” and particularly unaccompanied minors, who would seek asylum or withholding of removal based on persecution or torture they would face if returned to their country of origin. And, as the CDC Orders themselves state, the Orders’ intent includes return of these very persons to those very countries of origin where they face persecution.
The CDC Orders purport to provide an exception for persons who “should be excepted based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests,” 85 Fed. Reg. at 17,061. But nothing in the Orders indicates how this exception is to be applied or whether it will accommodate applications for asylum or withholding of deportation on the grounds of persecution or torture in the noncitizen’s home country. A subsequently leaked April 2020 Customs and Border Protection memorandum refers only to treatment of a “Convention Against Torture Claim,” but even as to that, the protection described by the memo is sparse: “Aliens that make an affirmative, spontaneous and reasonably believable claim that they fear being tortured in the country they are being sent back to, will be taken to the designated station and referred to USCIS.”2 There is no mention of asylum or other grounds for withholding of deportation.

2

COVID-19 Capio Memorandum, at 4, https://www.documentcloud.org/

documents/6824221-COVID-19-CAPIO.html (visited August 21, 2020).

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ARGUMENT I. THE CDC ORDERS VIOLATE STATUTES PROVIDING FOR ASYLUM,
WITHHOLDING OF REMOVAL, PROTECTION AGAINST TORTURE, AND PROTECTION OF UNACCOMPANIED CHILDREN A. United States Statutes Protect From Removal Noncitizens Facing Persecution
Or Torture In Their Home Countries, And Extend Special Protections To Unaccompanied Children Since 1980, and continuing through 2008, Congress has enacted a series of protections for noncitizens arriving in, or physically present in, the United States who face persecution or torture in their home countries, including special procedural protections for unaccompanied noncitizen children before they may be removed from the United States. These statutes seek to effectuate fundamental principles of international law and international treaty obligations of the United States, including those enshrined in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The first of these protections is asylum. Congress established the asylum process in the Refugee Act of 1980. In that Act, Congress largely adopted the definition of refugee in the 1951 Convention and 1967 Protocol, the latter of which the United States had ratified in 1968. As relevant to the “covered aliens” at issue in this case, United States law defines a “refugee” as “any person who is outside any country of such person’s nationality … and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); compare 1951 Convention art. 1(A)(2); 1967 Protocol art. 1(2). With certain exceptions not relevant here, none of which concerns public health, the INA guarantees to “[a]ny alien who is physically present in the United States”—like Plaintiff here—the right to apply for
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asylum protection as a refugee. Id. § 1158(a)(1), (b)(1)(A). While the determination of whether to grant such a person asylum is discretionary, the right to apply for asylum is not.
A second protection is withholding of removal on the basis of persecution. While the INA authorizes removal of noncitizens from the United States for specified reasons, see, e.g., 8 U.S.C. § 1229a(a)(2), the INA prohibits such removal (again, with certain exceptions not relevant here that do not concern public health) to a country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1231(b)(3)(A). In contrast with asylum, if the requirements for withholding of removal are satisfied, then withholding is mandatory. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 419-20 (1999). This prohibition on forcible return to a country where a person’s life or freedom would be threatened derives from the international law principle of non-refoulement, which is set forth in, among other sources, the 1951 Convention. See 1951 Convention, Art. 33(1) (“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”).3
Yet a third protection provided to noncitizens is protection from torture, derived from the United States’ implementation of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). See Foreign Affairs Reform and Restructuring Act of 1998. Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (codified

3

Earlier this summer, the Department of Homeland Security and Executive Office for

Immigration Review issued a notice of proposed rulemaking, seeking to amend their regulations

to provide that international pandemic threats may be considered for purposes of applying the

“danger to the security of the United States” exception to asylum and withholding of deportation.

See 85 Fed. Reg. 41,201 (July 9, 2020).

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at 8 U.S.C. § 1231 note). Under the regulations implementing that statute, withholding or deferral of removal is mandatory if the applicant shows that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §§ 208.16(c)(2), 208.17(a). In contrast to asylum and withholding of deportation, the torture need not be on the grounds of the person’s race, religion, nationality, membership in a particular social group, or political opinion.
Finally, in addition to these protections available to noncitizens facing persecution or torture in their countries of origin, Congress legislated special protections for unaccompanied noncitizen children in the Trafficking Victims Protection Reauthorization Act of 2008. See Pub. L. No. 110-457, 122 Stat. 5044 (Dec. 23, 2008). In addition to provisions regarding custody, the TVPRA requires the government to adhere to specific procedures before removing unaccompanied children from the United States, including opportunities for such children to invoke protections based on a fear of persecution. See 8 U.S.C. § 1232(a).
B. Section 362 Of The 1944 Public Health Service Act Does Not Override The Specific Protections From Removal That Congress Has Enacted In The Intervening Decades
The CDC Orders’ instruction that “covered aliens” be immediately or rapidly removed from the United States with no opportunity to invoke asylum, withholding of removal, or the TVPRA—and with no provision for the processing of CAT claims other than “affirmative, spontaneous” statements by the noncitizen—appears to rest on the proposition that an authority granted by section 362 of the Public Health Service Act, 42 U.S.C. § 265, overrides the statutory protections from removal described above. But there is no reason why section 265 need be, or should be, read to conflict with (or override) those statutes, for several reasons.
First, it is a longstanding rule of statutory construction that “[w]hen confronted with two Acts of Congress allegedly touching on the same topic, [a] Court is not at liberty to pick and
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choose among congressional enactments and must instead strive to give effect to both.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (internal quotation marks and citation omitted). That is not only possible here, but doing so would give effect to the most natural construction of the text of the public health statute. Section 265 is about the prohibition of “the introduction of persons and property” into the United States. It is not about removal (or expulsion) of persons from the United States. Nor, importantly, does section 265 address in any way the myriad protections against the forcible return of persons to countries where they face persecution or torture, or protections for unaccompanied children. For these reasons, there is no reason why section 265 must, or should, be read to address a subject about which it says nothing—removal or expulsion of persons from the United States—or to negate fundamental, internationally recognized, and congressionally legislated protections that section 265 never mentions.
Second, congressional action in the more-than-half century since the Public Health Service Act was enacted further confirms that Congress would not have understood that public health authority to have overridden the statutory protections described in Part I.A of this brief. To start, Congress has addressed communicable diseases in the immigration laws since 1891. See Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084, 1084 (excluding from admission “persons suffering from a loathsome or a dangerous contagious disease”). The current INA states that a noncitizen is inadmissible if he or she has “a communicable disease of public health significance,” which determination is to be made “in accordance with regulations prescribed by the Secretary of Health and Human Services.” 8 U.S.C. § 1182(a(1)(A)(i). In making this an inadmissibility ground, Congress also made it a ground for removal of persons who have arrived at a port of entry or entered the country without inspection. See id. § 1229a(a)(2) (authorizing
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charging of “alien” in removal proceedings “with any applicable ground of inadmissibility under section 1182(a)”). Yet, having provided for removal on this communicable disease ground, Congress also subjected that removal power to the normal defenses to removal, see id. § 1229a(c)(4)—which include the protections of asylum, withholding of removal, and CAT. Given what Congress actually did do when it turned its attention to the issue of “communicable diseases” in the INA, it would be unreasonable to read section 265—a provision from an earlier public health law—to free the Executive Branch from the restrictions against removal in those later-enacted laws.
Congress also has specifically addressed the authority of the Executive Branch to conduct expedited removal of persons who arrive at the country’s land borders or cross them without inspection. It did so in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). And while those provisions purport to grant broad authority to the Attorney General and immigration officers, the provisions nevertheless require that noncitizens subject to expedited removal be given an opportunity to present any grounds they may have for asylum, withholding of deportation, or CAT protection. See 8 U.S.C. § 1225(b)(1) (authorizing removal without substantial hearing “unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution”); 8 C.F.R. § 235.3(b)(4) (providing for interview “[i]f an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country”). The CDC Orders deny these protections to the same persons covered by the INA’s expedited removal procedures—the persons denominated “covered aliens” by those Orders. But Congress already considered the circumstances in which inadmissible noncitizens could be removed expeditiously, and it made clear that even in those circumstances, the noncitizen is
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entitled to a substantial hearing (at minimum, an asylum officer interview, subject to further review) on claims of persecution or torture giving rise to protection from removal. Again, given what Congress actually did do when it turned its attention to the issue of expedited removal in IIRIRA, it would be unreasonable to read section 265—a public health provision addressing the prohibition of introduction of persons into the United States—to free the Executive Branch from the restrictions enacted in expedited removal provisions themselves.
In sum, in the many decades after Congress enacted section 265, it developed, enacted, and repeatedly modified a comprehensive set of immigration laws that both address the issues at the heart of the CDC Orders—communicable diseases and expedited removal—and impose specific restrictions on the authority of the Executive Branch to remove noncitizens from the United States in service of important broadly-recognized principles, including non-refoulement and protection of minors. That history is significant because, as courts recognize, “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). Given the substantial history of legislative action since Congress enacted section 265, that public health provision cannot be read as broadly as the CDC Director does in his Orders to simply negate the myriad statutory protections from removal that Congress subsequently enacted. As the Supreme Court has explained, 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.” United States v. Fausto, 484 U.S. 439, 453 (1988). That is, at minimum, the case here.
There is no reason why section 265 should be read, or needs to be read, to authorize the Executive Branch to remove persons seeking protection from persecution and torture without
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granting those persons the hearings to which Congress said they are entitled on such claims. Nor is there any need or reason for section 265 to be read to authorize the Executive Branch to expel unaccompanied minors from the United States without first requiring the procedures that Congress mandated take place.
The current legal structure provides the government with various public health tools to address communicable diseases without sacrificing the right of noncitizens to seek protection established by this Nation’s laws. Testing and quarantine of noncitizens, including those seeking our protection, can be implemented in a manner consistent with our treaty obligations; indeed, Congress has provided for that power, see 42 U.S.C. Part G (Quarantine and Inspection), and the CDC has issued Foreign Quarantine Regulations pursuant to that authority, see 42 C.F.R. Part 71 (Foreign Quarantine).
CONCLUSION For the foregoing reasons, the Court should hold that section 265 is part of the larger legal landscape and cannot be read to free the Executive Branch from the asylum, withholding of removal, CAT, and TVPRA protections mandated by Congress.

Dated: August 21, 2020

Respectfully submitted,
/s/ Paul R.Q. Wolfson PAUL R.Q. WOLFSON (#414759) WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue N.W. Washington, D.C. 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363
NOAH A. LEVINE (pro hac vice forthcoming) WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center
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