Case 1:20-cv-01509-CJN Document 1 Filed 06/09/20 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C.,* A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez, c/o American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
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

) ) ) ) ) ) ) ) No. 2020-cv-___________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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Washington, D.C. 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.

)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(Violation of Trafficking Victims Protection Reauthorization Act of 2008, 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).

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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 Immigration Process” or “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 child shows no signs of having COVID-19, and even if the child is fleeing danger and seeking protection in the United States. 3. Plaintiff J.B.B.C. is a 16-year-old boy from Honduras. His father suffered persecution in Honduras and was forced to flee to the United States. His father now lives in the United States and is awaiting his immigration proceedings. Recently, Plaintiff was also forced to escape severe persecution in Honduras and sought to join his father in the United States. 4. CBP apprehended J.B.B.C. on or about June 4, 2020, after he came to the United States unaccompanied. He is currently in CBP custody in the El Paso, Texas, area. 5. Prior to the Title 42 Process, and pursuant to longstanding immigration statutes protecting children and those seeking protection, J.B.B.C. should have been given shelter in a children’s facility until he could be released to his father, and he would have been entitled to a full hearing, and appeals, to determine his right to seek safety in the United States with his father. 6. 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
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public health provisions in Title 42 of the U.S. Code—provisions that have rarely been used and never in this way—entitle it to set aside the immigration laws. 7. But those public health provisions do not authorize this unprecedented Title 42 Immigration 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. And even if Title 42 permits the expulsion of some individuals, that power would not apply to children or those seeking protection from persecution or torture. The statutes protecting children and those seeking protection were enacted after the Title 42 provisions and contain no exception for individuals with communicable diseases. 8. In fact, communicable diseases have a long history in immigration law, and Congress has squarely addressed how to handle them. 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 children and others seeking protection may under no circumstances be deported without a hearing to determine their right to remain in the United States (even if that means a period of quarantine is required). 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 the use of testing and quarantines, not deportations. 9. Not only does the Title 42 Process violate the immigration statutes, but its application to Plaintiff J.B.B.C. is patently arbitrary and capricious from a public health standpoint. 10. The principal stated justifications for the Title 42 Process is that it is necessary to protect border officers and that the introduction of persons into congregate settings poses a danger to
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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 explained, numerous safety measures are available, including social distancing, face masks, and gloves. Under the normal operation of the immigration laws, Plaintiff would have been promptly sent to a shelter where trained workers would have cared for him, or to the custody of his father, who would have ensured he stayed safe. 11. Moreover, under the regular operation of immigration laws governing children, an unaccompanied child who arrives from Central America, like Plaintiff, is transferred to the custody of ORR within 72 hours of the child’s apprehension. 12. Instead, Plaintiff has remained in immigration custody for more than five days in order for Defendants to arrange for his return to Honduras, increasing the risk of exposure to COVID19 for Plaintiff and border enforcement agents. Thus, the Title 42 Process increases the amount of time children spend with border agents, because it takes time to find air transportation to deport them. 13. Whatever the Administration’s motivation for applying the Title 42 Process to children and adults seeking protection, the Process is unlawful. Plaintiff would face grave danger in Honduras 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 14. 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
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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 Services Act of 1944, 42 U.S.C § 264, et seq. 15. 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). 16. 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, and Defendants reside in this District.
PARTIES Plaintiff 17. Plaintiff J.B.B.C. is a 16-year-old boy from Honduras, who fled to seek protection in the United States. After he entered the United States, he was apprehended by CBP. He seeks to remain in the United States to seek protection from persecution and torture. He sues by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez. Defendants 18. Defendant Chad Wolf is the Acting Secretary of Homeland Security, which is a cabinetlevel department of the U.S. government. 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 U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”).
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19. 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. 20. 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 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. 21. 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. 22. 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. 23. 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
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Control (“CDC”) and the Office of Refugee Resettlement (“ORR”), which are components of HHS. 24. Defendant Dr. Robert R. Redfield, M.D., is the Director of the CDC. He is sued in his official capacity. In that role, he authorized the Title 42 Process at issue in this case. 25. 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.
FACTS Unaccompanied Children in the Immigration System 26. 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, and Guatemala because of the escalating influence of powerful gangs that control large swaths of these countries and frequently target children. Many unaccompanied children from these Central American countries are also fleeing gender-based, family-based, and other types of violence. 27. 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.
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28. 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. 29. In 2008, Congress then 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 ensure their care.1 30. 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 are subject to an initial screening to determine whether they must be referred to ORR custody. 8 U.S.C. § 1232(a)(2)(A)(i)-(iii), (a)(3). 31. 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.
1 Although the TVPRA refers to HHS, ORR (as an HHS subagency) carries out these statutory functions.
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§ 1232(c)(2)(A). Such placements can include referral to shelters or care facilities operated by entities that contract with ORR. 32. 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. 33. 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. 34. The TVPRA also includes safeguards concerning the removal proceedings of unaccompanied children from noncontiguous countries, and those children from contiguous countries who pass the screening. Most importantly, if DHS seeks to remove a child, 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. Children cannot be removed via fast-track removal processes applicable to others. 8 U.S.C. § 1232(a)(5)(D)(i). 35. 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.
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36. In short, an unaccompanied child from a country like Honduras must automatically be allowed to remain in the country, transferred within 72 hours to ORR custody, and placed in full immigration proceedings, where he can apply for asylum and other protections under which he may ultimately receive permission to remain in the United States. There is no screening before the child is transferred to ORR and placed in immigration proceedings, other than checking that he is unaccompanied and from a non-contiguous country. 37. 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. 38. 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 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). 39. 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
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removal,” requires the applicant to meet a higher burden with respect to the likelihood of harm but is mandatory if the standard is met. 40. 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 41. 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. 42. 8 U.S.C. § 1182(a)(1) contains various “health-related” grounds of inadmissibility. The statute applies to various 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 self or others, id. § 1182(a)(1)(A)(iii); or “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 summary deportation of children in violation of the TVPRA. 43. 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 healthrelated 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
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“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 44. 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. 45. 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. 46. Before COVID-19, Administration officials discussed using public health powers to restrict immigration and circumvent the protections in the immigration laws. 47. 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, 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.” 48. 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 modern
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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 49. 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). 50. 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. 51. 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. 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 (Mar. 24, 2020) (effective date Mar. 20, 2020). 52. 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 FR at 16,563; see 42 C.F.R. § 71.40(a). The public notice of the regulation interpreted 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
2 In 1966, the Surgeon General transferred its § 265 authority 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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disease.” 85 FR at 16,563; see 42 C.F.R. § 71.40(b)(1). And it interpreted “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 FR at 16,563; see 42 C.F.R. § 71.40(b)(2). 53. 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 FR at 16,564; see 42 C.F.R. § 71.40(e), (f). 54. 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.” 42 C.F.R. § 71.40(d)(2); see 85 FR at 16,564. 55. 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. 17,060-17088 (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 FR 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
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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 FR 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). 56. 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 FR at 17,061. 57. The Order directs the forcible return of individuals back to the country from which they entered (Canada or Mexico), their home country, or another location. 85 FR at 17,067. 58. 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 FR at 17,067. 59. In addition to repeating the regulatory exceptions for U.S. citizens and LPRs, the Order 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 FR at 17,061. The visa waiver program applies to nationals of 39 countries. 60. 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 FR at 17,061. Other than stating that a supervisor must approve
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such exceptions, the Order contains no standards or further procedures for exercising that discretion. See id. 61. 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. 62. The March 20 Order was extended for an additional 30 days on April 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). 63. 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. 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). 64. 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 further introducing COVID-19 into the United States.” 85 FR 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. 65. The CDC acknowledged that there were alternatives to expulsion but concluded that it was not worth the resources for those, like children and asylum seekers, who lacked documents. The CDC also presumed, without evidence, that those without documents covered by the Order would lack a means of self-quarantining.
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CBP’s Implementation of the Title 42 Process 66. 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. 67. 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. 68. Covered noncitizens “will be transported to the nearest POE and immediately returned to Mexico or Canada, depending on their point of transit.” CBP Memo at 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. 69. The CBP Memo provides no instructions on medical screenings or other procedures for determining whether a covered noncitizen may have COVID-19. 70. The CBP Memo does not exempt minors from forcible expulsion. 71. CBP deported nearly 1,000 unaccompanied children in March and April. 72. CBP has turned back multiple children to Mexico in the middle of the night. 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
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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. 74. CDC suggested in the May 20 Order that there has been a reduced rate of transmission and that this is due to reduced number of “covered aliens” at ports of entry and border patrol stations. CDC, however, offered no evidence of this causal link. 75. This complaint refers 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 collectively as the “Title 42 Immigration Process” or “Title 42 Process.” Defendants Will Imminently Expel Plaintiff to Honduras Under the Title 42 Process 76. Plaintiff J.B.B.C. is a 16-year-old boy from Honduras. He is one of the many unaccompanied children subject to summary expulsions by CBP pursuant to the Title 42 Process. He faces imminent deportation back to Honduras. 77. J.B.B.C.’s father, Mr. Barrera Rodriguez, lives in the United States. His father is now living in the United States and has a pending asylum case. 78. J.B.B.C. experienced persecution in Honduras. He witnessed a gang member murder a young man. Gang members then came to the store where his aunt worked, and where J.B.B.C. also helped, threatening him and ordering that the store had to close. Another relative was also beaten by gang members near where J.B.B.C. lived. J.B.B.C was terrified to leave the house after these events, even to go to school. 79. J.B.B.C. fled Honduras because he was afraid for his life and journeyed to the United States to seek safety and reunite with his father.
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80. On or around June 4, 2020, J.B.B.C. entered the United States near El Paso, Texas, where CBP apprehended him. CBP officials did not give him any opportunity to raise his fear of return to Honduras. 81. His father received a call the afternoon of June 4 asking for his name, address, and to confirm that he was J.B.B.C.’s father. The official on the phone said that they would call the father again with more information. 82. On June 5, the father received a call from the same phone number and was able to speak with J.B.B.C. but was unable to speak with officials again to get further information about what would happen to his son. 83. J.B.B.C. was moved to a hotel before or on June 6. He has remained in the hotel since then, as officials wait to place him on a flight to Honduras. 84. J.B.B.C. has spent at least five days in CBP custody. 85. J.B.B.C. and his father do not have access any U.S. government paperwork regarding J.B.B.C. 86. J.B.B.C. has not exhibited any symptoms of COVID-19 and is in good health. 87. J.B.B.C.’s removal to Honduras is imminent. J.B.B.C.’s counsel and father have attempted to obtain information from CBP about his whereabouts and whether Defendants plan to deport him to Honduras. On June 9, 2020, at 8:20 am MST, a DHS official confirmed via email to J.B.B.C.’s counsel that J.B.B.C. “is pending expulsion under Title 42” and that, “[a]t this time, there is no legal impediment to the imminent expulsion of [J.B.B.C.].” 88. Later on June 9, at 11:17 am MST, a DHS official further stated in email to J.B.B.C.’s counsel that J.B.B.C. is “scheduled to depart via an ICE Air flight within the next few days” and that the Honduran consulate “has been advised.”
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89. In a subsequent conversation with a DHS official on the evening of June 9, counsel for J.B.B.C. learned that J.B.B.C. is scheduled to be flown to Honduras tomorrow, June 10. 90. Both J.B.B.C.’s counsel and his father have sought to communicate to the government officers holding J.B.B.C. in custody that the boy is afraid return to Honduras because he fears persecution and torture there. 91. The threat of persecution and torture to J.B.B.C. is imminent and real. Honduras is one of the most violent countries in the world. And children are not exempt from this widespread danger. Indeed, many children are targeted specifically by gang members for recruitment. Children have experienced extreme harms ranging from threats against their lives and physical abuse to rape, kidnapping, and murder. 92. If J.B.B.C. is allowed to remain the United States, he could live with his father, who currently resides in the United States, and is waiting for J.B.B.C. 93. Even if Plaintiff were required to first reside for a short time in an ORR children’s 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. 94. 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. 95. After the Title 42 Process went into place, the numbers dropped even more precipitously. As of May 2020, the number of children detained in ORR custody was reportedly at about 1,600—approximately 11 percent of total capacity.
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96. Because Plaintiff could have been transferred directly to his father or to an ORR shelter, he would pose minimal, if any, additional risk to border agents. 97. J.B.B.C. has been required to remain in DHS custody far longer than the time it would have taken to transfer him to his father or to an ORR facility. 98. 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 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 take longer than the 72 hours in which DHS must transfer children to ORR or family members. In addition, where the individual shows no signs of COVID-19 or is tested, as Plaintiff was, the risk is even less. The Title 42 Process Is An Extreme Outlier 99. 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. 100. 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.”
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101. 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. 102. 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 “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. 103. 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. 104. 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 Denmark, France, and Germany, 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
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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. 105. Despite Defendants’ claimed fear of “introducing” infected individuals into the country, the United States is experiencing an outbreak of COVID-19 that is substantially more serious than most of its neighbors. This country has the highest COVID-19 death toll and one of the highest infection rates in the entire world. As of June 7, 2020, the United States had over 1.94 million confirmed cases of COVID-19, a rate of 5.91 people per thousand.
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)) 106. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 107. 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). 108. The TVPRA, 8 U.S.C. § 1232, includes mandatory requirements for the processing, custody, release, and removal of unaccompanied children. Defendants’ imminent forcible expulsion of J.B.B.C. violates the statute in numerous ways, including that he should have been referred to the custody of HHS or his father (rather than be facing expulsion to Honduras); that he should have been placed in full removal proceedings before an immigration judge, where he would have a full and fair opportunity to litigate his claims for relief; and that he has been deprived of numerous statutory safeguards designed to facilitate his safe release into the United States and ensure the fairness of his removal proceedings.
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109. Defendants’ imminent expulsion of J.B.B.C. pursuant to the Title 42 Process violates the TVPRA. 110. As a result, Defendants’ application of the Title 42 Process and regulation to J.B.B.C. is contrary to law. See 5 U.S.C. § 706(2)(A). 111. Moreover, by refusing to grant J.B.B.C. the statutory protections to which the TVPRA entitles him, and instead plans to expel him to Honduras where his faces threat of persecution and torture, 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)) 112. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 113. Title 42 of the U.S. Code does not authorize the expulsion of noncitizens who are inside the United States. 114. 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 J.B.B.C., which will result in his expulsion from the United States and return to Honduras, is contrary to law. See 5 U.S.C. § 706(2)(A). 115. 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. 116. The application of the Title 42 Process to J.B.B.C. is contrary to law. See 5 U.S.C. § 706(2)(A).
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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))
117. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 118. 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 persecution. 119. 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). 120. Defendants applied the Title 42 Process and regulation to J.B.B.C. without any of these required safeguards. 121. Application of the Title 42 Process and regulation to J.B.B.C., resulting in his imminent expulsion to Honduras where he faces threat of persecution and torture, therefore violated 8 U.S.C. § 1231(b)(3), and its implementing regulations. 122. As a result, Defendants’ actions against J.B.B.C. are contrary to law. See 5 U.S.C. § 706(2)(A). 123. In addition, by refusing to grant J.B.B.C. 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)) 124. All of the foregoing allegations are repeated and realleged as if fully set forth herein.
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125. 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). 126. Defendants’ application of the Title 42 Process to J.B.B.C. has prevented him from applying for asylum in accordance with 8 U.S.C. § 1158(a)(1), and was therefore contrary to law, see 5 U.S.C. § 706(2)(A). 127. In addition, by refusing to grant J.B.B.C. the meaningful opportunity to apply for asylum to which he 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))
128. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 129. FARRA prohibits the government from returning a noncitizen to a country where it is more likely than not that he would face torture. 130. It is more likely than not that J.B.B.C. will face torture if he is returned to Honduras. 131. 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).
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132. Defendants applied the Title 42 Process and regulation to J.B.B.C., and will soon summarily expelled him from the United States without placing him into full removal proceedings. 133. The application of the Title 42 Process to J.B.B.C., resulting in his imminent expulsion to Honduras where he faces threat of torture, therefore violated § 1231(b)(3), FARRA, and their implementing regulations. 134. Defendants’ actions were contrary to law. See 5 U.S.C. § 706(2)(A). 135. In addition, by refusing to grant J.B.B.C. 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)) 136. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 137. The INA, 8 U.S.C. § 1101, et seq., sets out the sole mechanisms established by Congress for the removal of noncitizens. 138. 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, “except otherwise specified” in the INA. 8 U.S.C. § 1229a(a)(3). 139. 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. 140. Because the Title 42 Process provides for the expulsion of J.B.B.C. without the procedures specified in the INA, it violates 8 U.S.C. § 1229a and the INA. 141. As a result, Defendants’ actions against J.B.B.C. were contrary to law. See 5 U.S.C. § 706(2)(A).
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142. In addition, by refusing to grant J.B.B.C. 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)) 143. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 144. 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 J.B.B.C.; failed to consider relevant factors in applying them to him, including his statutory protections as an unaccompanied child and his fear of persecution and torture in Honduras; relied on factors Congress did not intend to be considered; failed to consider reasonable alternatives that were less restrictive; and offered no explanation for their decision to expel him from the country. 145. J.B.B.C.’s imminent expulsion 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 J.B.B.C. respectfully prays this Court to: a. Declare unlawful the Title 42 Process as applied to J.B.B.C.; b. Enter an order enjoining Defendants from applying the Title 42 Process to J.B.B.C.; c. Enter an order providing relief for J.B.B.C. by ordering that Defendants stay his expulsion, remove him from the Title 42 Process, and to afford him the TVPRA’s statutory
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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 he is

eligible;

d. Award Plaintiff’s counsel reasonable attorneys’ fees under the Equal Access to Justice

Act, and any other applicable statute or regulation; and,

e. Grant such further relief as the Court deems just, equitable, and appropriate.

Dated: June 9, 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/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

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
Jamie Crook (D.C. Bar No. 1002504) Blaine Bookey Karen Musalo Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 Tel: (415) 565-4877

Robert Silverman* Oxfam America 226 Causeway Street, Sute 500 Boston, MA 02114 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

*Pro hac vice application forthcoming

Attorneys for Plaintiff

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U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-01509-CJN

CLOSED,TYPE-D

J. B. B. C. v. WOLF et al Assigned to: Judge Carl J. Nichols Case: 1:20-cv-01511-TNM Cause: 8:1101 Immigration and Nationality Act Plaintiff J. B. B. C. A minor child, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?84992801016074-L_1_0-1

Date Filed: 06/09/2020 Date Terminated: 08/06/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Celso Perez ACLU IMMIGRANTS' RIGHTS PROJECT 125 Broad Street 18th Floor New York, NY 10004 646-905-8953 Email: cperez@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
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
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Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0785 Fax: (415) 395-0950 Email: cwofsy@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Antonio Galindo ACLU FOUNDATION IMMIGRANTS' RIGHTS PROJECT New York 125 Broad Street 125 Broad Street 18th Floor 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
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
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

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?84992801016074-L_1_0-1

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Plaintiff E.Y. a minor child, by and through his brother and next friend, Fernando Barrios.

District of Columbia live database
Stephen Bonggyun Kang AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0774 Fax: (415) 395-0950 Email: skang@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Celso Perez (See above for address) ATTORNEY TO BE NOTICED

V. Defendant CHAD F. WOLF Acting Secretary of Homeland Security, in his ofﬁcial capacity
Defendant
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?84992801016074-L_1_0-1

represented by Bradley Thomas Craigmyle U.S. DEPARTMENT OF JUSTICE 1100 L St, NW Washington, DC 20005 (202) 616-8101 Fax: (202) 616-8460 Email: Bradley.T.Craigmyle@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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
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MARK A. MORGAN Acting Commissioner of Customs and Border Protection (CBP), 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
Defendant MATTHEW T. ALBENCE Deputy Director of U.S. Immigration and Customs Enforcement, in his ofﬁcial capacity

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represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Lin (See above for address) LEAD ATTORNEY

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?84992801016074-L_1_0-1

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ATTORNEY TO BE NOTICED

Defendant
ALEX M. AZAR, II Secretary of Health and Human Services, in his ofﬁcial capacity

Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ROBERT R. REDFIELD Dr., Director of the Centers for Disease Control and Prevention, in his ofﬁcial capacity

Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
HEIDI STIRRUP Acting Director of the Ofﬁce of Refugee Resettlement, in her ofﬁcial capacity

Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Thomas Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant SCHOLARS OF REFUGEE AND

Kevin Matthew Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Noah A. Levine

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?84992801016074-L_1_0-1

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IMMIGRATION LAW
Amicus INTERNATIONAL REFUGEE ASSISTANCE PROJECT

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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 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 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

Date Filed 06/09/2020 06/09/2020
06/09/2020
06/10/2020 06/10/2020

# Docket Text
1 COMPLAINT against All Defendants ﬁled by J. B. B. C.. (Attachment: # 1 Civil Cover Sheet)(zsb) (Entered: 06/10/2020)
2 EMERGENCY MOTION for Temporary Restraining Order by J. B. B. C. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Stephen Kang, # 3 Declaration of Linda Corchado, # 4 Text of Proposed Order)(zsb) (Entered: 06/10/2020)
3 ORDERED that the parties have agreed that the government will not remove the minor child, J.B.B.C., from the United States prior to 11:59 PM on June 10, 2020, based on the representations from the attorney for Defendants. Signed by Judge Emmet G. Sullivan on 06/09/2020. (zsb) (Entered: 06/10/2020)
SUMMONS Not Issued as to All Defendants (zsb) (Entered: 06/10/2020)
Payment for 1 Complaint. ($400; Receipt number ADCDC-7214851). (Perez, Celso) (Entered: 06/10/2020)

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4 REQUEST FOR SUMMONS TO ISSUE AS TO ACTING SECRETARY OF HOMELAND SECURITY; ACTING COMMISSIONER OF U.S. CUSTOMS AND BORDER PROTECTION; EXECUTIVE ASSISTANT COMMISSIONER, CBP OFFICE OF FIELD OPERATIONS; CHIEF OF U.S. BORDER PATROL; DEPUTY DIRECTOR OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; SECRETARY OF HEALTH AND HUMAN SERVICES; DIRECTOR OF THE CENTERS FOR DISEASE CONTROL AND PREVENTION; ACTING DIRECTOR OF THE OFFICE OF REFUGEE RESETTLEMENT; ATTORNEY GENERAL; U.S. ATTORNEY ﬁled by J. B. B. C.. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons)(Perez, Celso) (Entered: 06/10/2020)
Set/Reset Hearings: Hearing re 2 Emergency Motion for Temporary Restraining Order set for 6/10/2020 at 4:00 PM in Telephonic/VTC before Judge Carl J. Nichols. (zcdw) (Entered: 06/10/2020)
5 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)(adh, ) (Entered: 06/10/2020)
6 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 06/10/2020)
Minute Entry for proceedings held before Judge Carl J. Nichols: Hearing re 2 Emergency Motion for Temporary Restraining Order held on 6/10/2020. Defense counsel is directed to email the Court's Deputy Clerk by 12:00 PM on 6/11/2020, to inform the Court whether they're authorized to accept the Court's proposal for next steps in this matter. If the next steps proposal is accepted and agreed upon, the Court will issue a scheduling order. (Court Reporter: Janice Dickman) (zcdw) (Entered: 06/10/2020)
MINUTE ORDER. In light of the telephonic status conference held on this date, it is hereby ORDERED that before 12:00 PM on June 11, 2020, Defendants shall inform the Court whether they consent to the proposal and brieﬁng schedule for Plaintiff's 2 Emergency Motion for Temporary Restraining Order discussed between the Court and the Parties. It is further ORDERED that the Court's 3 Order is extended until 12:00 PM on June 11, 2020. Signed by Judge Carl J. Nichols on June 10, 2020. (lccjn3) (Entered: 06/10/2020)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Stephen B. Kang, Filing fee $ 100, receipt number ADCDC-7216747. Fee Status: Fee Paid. by J. B. B. C. (Perez, Celso) (Entered: 06/10/2020)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Adrienne Harrold, Filing fee $ 100, receipt number ADCDC-7216749. Fee Status: Fee Paid. by J. B. B. C. (Perez, Celso) (Entered: 06/10/2020)
9 SCHEDULING ORDER. Signed by Judge Carl J. Nichols on June 11, 2020. (lccjn3) (Entered: 06/11/2020)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Morgan Russell, Filing fee $ 100, receipt number ADCDC-7220284. Fee Status: Fee Paid. by J. B. B. C. (Perez, Celso) (Entered: 06/11/2020)
11 NOTICE of Appearance by Jamie L. Crook on behalf of All Plaintiffs (Crook, Jamie) (Entered: 06/11/2020)

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12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Daniel Galindo, Filing fee $ 100, receipt number ADCDC-7220431. Fee Status: Fee Paid. by J. B. B. C. (Perez, Celso) (Entered: 06/11/2020)

06/11/2020

13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lee Gelernt, Filing fee $ 100, receipt number ADCDC-7220672. Fee Status: Fee Paid. by J. B. B. C. (Perez, Celso) (Entered: 06/11/2020)

06/11/2020

14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Cody Wofsy, Filing fee $ 100, receipt number ADCDC-7220741. Fee Status: Fee Paid. by J. B. B. C. (Perez, Celso) (Entered: 06/11/2020)

06/11/2020

Set/Reset Deadlines/Hearings: Motion Hearing set for 6/24/2020 at 10:00 AM before Judge Carl J. Nichols. (zcdw) (Entered: 06/17/2020)

06/12/2020 06/12/2020 06/12/2020
06/12/2020

15 NOTICE of Appearance by Jean Lin on behalf of All Defendants (Lin, Jean) (Entered: 06/12/2020)
16 NOTICE of Appearance by Kevin Matthew Snell on behalf of All Defendants (Snell, Kevin) (Entered: 06/12/2020)
17 MOTION for Leave to File Amicus Curiae Brief by INTERNATIONAL REFUGEE ASSISTANCE PROJECT (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order)(Hirose, Mariko) (Entered: 06/12/2020)
18 AFFIDAVIT re 2 MOTION for Temporary Restraining Order by J. B. B. C.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Perez, Celso) (Entered: 06/12/2020)

06/12/2020 19 ENTERED IN ERROR.....MEMORANDUM by SCHOLARS OF REFUGEE AND IMMIGRATION LAW. (Wolfson, Paul) Modiﬁed on 6/14/2020 (zjf). (Entered: 06/12/2020)

06/13/2020

20 NOTICE of Appearance by Bradley Thomas Craigmyle on behalf of All Defendants (Craigmyle, Bradley) (Entered: 06/13/2020)

06/14/2020

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 19 Memorandum was entered in error and counsel was instructed to reﬁle said pleading with a Motion for Leave to Appear Amicus. (zjf) (Entered: 06/14/2020)

06/15/2020

21 NOTICE OF RELATED CASE by J. B. B. C.. Case related to Case No. 20-cv-01511. (Perez, Celso) (Entered: 06/15/2020)

06/15/2020

MINUTE ORDER. The Court having considered Plaintiff's 7 Motion for Admission Pro Hac Vice of Stephen B. Kang, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Stephen B. Kang is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

06/15/2020

MINUTE ORDER. The Court having considered Plaintiff's 8 Motion for Admission Pro Hac Vice of Adrienne Harold, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Adrienne Harold is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

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MINUTE ORDER. The Court having considered Plaintiff's 10 Motion for Admission Pro Hac Vice of Morgan Russell, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Morgan Russell is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

06/15/2020

MINUTE ORDER. The Court having considered Plaintiff's 12 Motion for Admission Pro Hac Vice of Daniel Galindo, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Daniel Galindo is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

06/15/2020

MINUTE ORDER. The Court having considered Plaintiff's 13 Motion for Admission Pro Hac Vice of Lee Gelernt, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Lee Gelernt is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

06/15/2020

MINUTE ORDER. The Court having considered Plaintiff's 14 Motion for Admission Pro Hac Vice of Cody Wofsy, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Cody Wofsy is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

06/15/2020

MINUTE ORDER. Upon review of the International Refugee Assistance Project, Inc.'s 17 Unopposed Motion for Leave to ﬁle an Amicus Curiae Brief in Support of Plaintiff's Emergency Motion for Temporary Restraining Order, it is hereby ORDERED that the Motion is GRANTED and that the [17-1] Brief shall be deemed ﬁled. Signed by Judge Carl J. Nichols on June 15, 2020. (lccjn3) (Entered: 06/15/2020)

06/15/2020

22 NOTICE of Appearance by Stephen Bonggyun Kang on behalf of All Plaintiffs (Kang, Stephen) (Entered: 06/15/2020)

06/15/2020

23 NOTICE of Appearance by Cody H. Wofsy on behalf of All Plaintiffs (Wofsy, Cody) (Entered: 06/15/2020)

06/15/2020

24 NOTICE of Appearance by Daniel Antonio Galindo on behalf of All Plaintiffs (Galindo, Daniel) (Entered: 06/15/2020)

06/15/2020

25 NOTICE of Appearance by Lee Gelernt on behalf of All Plaintiffs (Gelernt, Lee) (Entered: 06/15/2020)

06/15/2020

26 NOTICE of Appearance by Morgan Russell on behalf of All Plaintiffs (Russell, Morgan) (Entered: 06/15/2020)

06/15/2020 27 AMICUS BRIEF by INTERNATIONAL REFUGEE ASSISTANCE PROJECT. (eg)

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Modiﬁed ﬁled date on 6/18/2020 (znmw). (Entered: 06/16/2020)

06/17/2020 28

Memorandum in opposition re 2 MOTION for Temporary Restraining Order 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
Afﬁdavit (Declaration of Robert Danley), # 6 Afﬁdavit (Declaration of Danielle Hernandez), # 7 Text of Proposed Order)(Lin, Jean) Modiﬁed docket event/text on 6/18/2020 (eg). (Entered: 06/17/2020)

06/18/2020

29 NOTICE of Appearance by Adrienne Pon Harrold on behalf of All Plaintiffs (Harrold, Adrienne) (Entered: 06/18/2020)

06/18/2020

30 Unopposed MOTION for Leave to File Amicus Curiae Brief by SCHOLARS OF REFUGEE AND IMMIGRATION LAW (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order)(Wolfson, Paul) (Entered: 06/18/2020)

06/18/2020

31 NOTICE of Appearance by Paul R.Q. Wolfson on behalf of SCHOLARS OF REFUGEE AND IMMIGRATION LAW (Wolfson, Paul) (Entered: 06/18/2020)

06/18/2020

32 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Noah A. Levine, Filing fee $ 100, receipt number ADCDC-7245657. Fee Status: Fee Paid. by SCHOLARS OF REFUGEE AND IMMIGRATION LAW (Attachments: # 1 Declaration of Noah A. Levine, # 2 Text of Proposed Order)(Wolfson, Paul) (Entered: 06/18/2020)

06/22/2020

MINUTE ORDER. Upon review of the 30 Unopposed Motion for Leave to File a Brief for Scholars of Refugee and Immigration Law as Amici Curiae in Support of Plaintiff's Emergency Motion for Temporary Restraining Order, it is hereby ORDERED that the Motion is GRANTED and that the [30-1] Brief shall be deemed ﬁled. Signed by Judge Carl J. Nichols on June 22, 2020. (lccjn3) (Entered: 06/22/2020)

06/22/2020

MINUTE ORDER. The Court having considered Plaintiff's 32 Motion for Admission Pro Hac Vice of Noah A. Levine, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Noah A. Levine is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on June 22, 2020. (lccjn3) (Entered: 06/22/2020)

06/22/2020

33 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL ﬁled by J. B. B. C. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Carlos Emilio Barrera Rodriguez)(Gelernt, Lee) (Entered: 06/22/2020)

06/22/2020 34 REPLY to opposition to motion re 2 MOTION for Temporary Restraining Order ﬁled by J. B. B. C.. (Attachments: # 1 Declaration of Adrienne Harrold, # 2 Exhibit A-E to Adrienne Harrold Declaration, # 3 Declaration of Linda Corchado)(Gelernt, Lee) (Entered: 06/22/2020)

06/23/2020

35 NOTICE of Appearance by Mariko Hirose on behalf of INTERNATIONAL REFUGEE ASSISTANCE PROJECT (Hirose, Mariko) (Entered: 06/23/2020)

06/24/2020

Minute Order and Entry for Proceedings held before Judge Carl J. Nichols: Motion Hearing held on 6/24/2020 re 2 MOTION for Temporary Restraining Order ﬁled by J. B. B. C.. 2 Motion for TRO; GRANTED. Further Order to be issued by the Court. Court Reporter: Nancy Meyer. (zcal) (Entered: 06/24/2020)

06/24/2020

ENTERED IN ERROR.....MINUTE ORDER. In light of Plaintiffs' 22 Motion for a

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Preliminary Injunction or 5 U.S.C. § 705 Stay Pending Judicial Review, it is hereby ORDERED that on or before June 29, 2020, the Parties shall meet, confer, and ﬁle a Joint Status Report that includes: (1) a proposed brieﬁng schedule for Plaintiffs' Motion and (2) a statement addressing whether a hearing on Plaintiffs' Motion is necessary, and if so, a date for such a hearing. The Parties may also address any other issues that they believe will be helpful to the Court. Any disagreements should be noted in the Joint Status Report. Signed by Judge Carl J. Nichols on June 24, 2020. (lccjn3) Modiﬁed on 6/24/2020. Order entered in incorrect case (zcal). (Entered: 06/24/2020)
36 NOTICE of Appearance by Noah A. Levine on behalf of SCHOLARS OF REFUGEE AND IMMIGRATION LAW (Levine, Noah) (Entered: 06/24/2020)
NOTICE OF CORRECTED DOCKET ENTRY: Minute Order ﬁled 6/24/2020 was entered in error and on the incorrect case docket. (zcal) (Entered: 06/24/2020)
37 SEALED DOCUMENT ﬁled by J. B. B. C.. re 33 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL ﬁled by J. B. B. C. (This document is SEALED and only available to authorized persons.) ﬁled by J. B. B. C.. (This document is SEALED and only available to authorized persons.)(zeg) (Entered: 06/24/2020)
Set/Reset Deadlines: Joint Status Report due by 6/29/2020. (zcal) (Entered: 06/24/2020)
38 ORDER. Signed by Judge Carl J. Nichols on June 24, 2020. (lccjn3) (Entered: 06/24/2020)
39 TRANSCRIPT OF PROCEEDINGS before Judge Carl J. Nichols held on 06/24/2020; Page Numbers: 1-55. Date of Issuance:06/24/2020. Court Reporter: Nancy J. Meyer, Telephone number (202) 354-3118, Tape Number: N/A. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter refe renced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

06/29/2020 06/29/2020 07/02/2020 07/07/2020

Redaction Request due 7/17/2020. Redacted Transcript Deadline set for 7/27/2020. Release of Transcript Restriction set for 9/24/2020.(Meyer, Nancy) (Entered: 06/26/2020)
40 Supplemental NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 1:20-cv-01511. (Perez, Celso) Modiﬁed event title on 7/1/2020 (znmw). (Entered: 06/29/2020)
41 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 (Lin, Jean) (Entered: 06/29/2020)
42 AMENDED COMPLAINT against All Defendants ﬁled by J. B. B. C.. (Attachments: # 1 Exhibit to Amended Complaint)(Gelernt, Lee) (Entered: 07/02/2020)
43 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United

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States Attorney General. Date of Service Upon United States Attorney General 06/29/2020. (Gelernt, Lee) (Entered: 07/07/2020)
44 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/29/2020. Answer due for ALL FEDERAL DEFENDANTS by 8/28/2020. (Gelernt, Lee) (Entered: 07/07/2020)
45 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on 6/29/2020; ALEX M. AZAR, II served on 6/29/2020; MARK A. MORGAN served on 6/29/2020; TODD C. OWEN served on 6/29/2020; ROBERT R. REDFIELD served on 6/30/2020; RODNEY S. SCOTT served on 6/29/2020; HEIDI STIRRUP served on 6/29/2020; CHAD F. WOLF served on 6/29/2020 (Gelernt, Lee) (Entered: 07/08/2020)
46 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Robert Silverman, Filing fee $ 100, receipt number ADCDC-7349027. Fee Status: Fee Paid. by J. B. B. C., E.Y. (Perez, Celso) (Entered: 07/16/2020)
MINUTE ORDER. The Court having considered Plaintiffs' 46 Motion for Admission Pro Hac Vice of Robert K. Silverman, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under Local Civil Rule 83.2(d), it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Robert K. Silverman is ADMITTED to practice before the Court 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 instructions. Signed by Judge Carl J. Nichols on July 20, 2020. (lccjn3) (Entered: 07/20/2020)
47 MOTION to Dismiss for Lack of Jurisdiction 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 2nd Decl. of Robert Danley, # 2 Declaration 2d Decl. of Danielle Fernandez, # 3 Text of Proposed Order)(Lin, Jean) (Entered: 07/23/2020)
48 NOTICE of Voluntary Dismissal by J. B. B. C., E.Y. (Gelernt, Lee) (Entered: 08/06/2020)

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01/14/2021 10:45:04

PACER Login: CRClearinghouse Client Code: Ruchita Coomar

Description: Docket Report Search Criteria: 1:20-cv-01509-CJN

Billable Pages: 11

Cost:

1.10

Exempt ﬂag: Not Exempt

Exempt reason: Not Exempt

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 Case 1:20-cv-01509-CJN Document 2 Filed 06/09/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 2020-cv-___________ ) ) ) ) ) )

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiff J.B.B.C. is a sixteen-year-old boy from Honduras, who fled that country to escape persecution. Plaintiff is scheduled for deportation on Wednesday, June 10, 2020, and could be removed within the next 12 hours, or sooner. Plaintiff respectfully moves, based on this Motion and the attached memorandum of law and declaration, for a temporary restraining order (“TRO”) pending briefing and decision on his request for a further TRO or preliminary injunction. Counsel for Plaintiff has consulted with counsel at the U.S. Attorney’s Office in Washington, DC, and requested that Defendants stay Plaintiff’s deportation. As of the filing of this Motion, counsel for the government had verified that Plaintiff was scheduled for deportation on Wednesday, June 10 but was unwilling to offer any assurances that Plaintiff’s deportation would be stayed. Plaintiff therefore seeks this Court’s intervention. In addition to the grave harm Plaintiff would face if removed, the case involves a challenge to the government’s

1

Case 1:20-cv-01509-CJN Document 2 Filed 06/09/20 Page 2 of 4

unprecedented policy of expelling unaccompanied minors without any hearing based on the supposed authority in the public health laws of Title 42, a policy no court has yet ruled on.

Dated: June 9, 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
Jamie Crook (D.C. Bar No. 1002504) Blaine Bookey Karen Musalo Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 Tel: (415) 565-4877

/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
Robert Silverman* Oxfam America 226 Causeway Street, Suite 500 Boston, MA 02114 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

*Pro hac vice application forthcoming

2

Case 1:20-cv-01509-CJN Document 2 Filed 06/09/20 Page 3 of 4
CERTIFICATE OF SERVICE
I hereby certify on or after June 9, 2020, I will cause a copy of this motion, supporting
exhibits (under seal) and proposed order to be served on the following, together with the
summons and complaint:
Chad F. Wolf Acting Secretary of the Department of Homeland Security 245 Murray Lane, SW, Washington, DC 20528;
Mark A. Morgan Acting Commissioner of U.S. Customs and Border Protection 1300 Pennsylvania Ave, NW Washington, DC 20229;
Todd C. Owen Executive Assistant Commissioner, CBP Office of Field Operations 1300 Pennsylvania Ave. NW Washington, DC 20229;
Rodney S. Scott Chief of U.S. Border Patrol U.S. Border Patrol 1300 Pennsylvania Ave, NW Washington, DC 20229;
Matthew T. Albence Deputy Director of U.S. Immigration and Customs Enforcement, 500 12th Street, SW Washington, DC 20536;
Alex M. Azar II Secretary of the U.S. Department of Health and Human Services Hubert H. Humphrey Building 200 Independence Avenue, S.W. Washington, D.C. 20201;
Dr. Robert R. Redfield Director of the Centers for Disease Control and Prevention 1600 Clifton Road, Atlanta, GA 30329 USA;

Case 1:20-cv-01509-CJN Document 2 Filed 06/09/20 Page 4 of 4
Heidi Stirrup Acting Director of the Office of Refugee Resettlement, 330 C Street SW 5th Floor Washington, D.C. 20201
William Barr Attorney General of the United States 950 Pennsylvania Avenue, NW Washington, DC 20530
Michael R. Sherwin Acting U.S. Attorney for the District of Columbia United States Attorney’s Office 555 4th Street, NW Washington, DC 2001
/s/ Celso J. Perez Celso J. Perez

Case 1:20-cv-01509-CJN Document 2-1 Filed 06/09/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

J.B.B.C., A MINOR CHILD, by and through his

)

father and Next Friend, Carlos Emilio Barrera

)

Rodriguez,

)

)

Plaintiff,

)

)

v.

) No. 2020-cv-___________

)

CHAD F. WOLF, Acting Secretary of Homeland

)

Security, in his official capacity, et al.,

)

)

Defendants.

)

INTRODUCTION

(TRO TO STAY REMOVAL SCHEDULED FOR TOMORROW, JUNE 10)

Plaintiff respectfully requests an immediate TRO tonight to stay his removal until the

Court can set this matter down for briefing.

Plaintiff J.B.B.C. is a sixteen-year-old boy from Honduras who fled that country to

escape persecution and possibly death. He entered the United States by himself (and so is

deemed by statute an unaccompanied minor). He is subject to deportation back to Honduras,

tomorrow based on an unprecedented and unlawful CDC Order authorizing the expulsion of

unaccompanied minors without any hearing, even where, as here, the minor has no symptoms of

COVID-19. The Order, which has never been tested in the courts, is based on the government’s

supposed expulsion powers under the public health provisions of Title 42.

The government’s new Title 42 expulsion process (hereafter the “Title 42 process”) is

patently unlawful for two basic reasons. First, Title 42 does not authorize deportations of

individuals, like Plaintiff, who entered the country. Rather, it authorizes testing, and in extreme

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cases, detention and quarantine. Title 42 provides, in short, 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 the later-enacted statutes protecting children and those seeking protection. Indeed, Congress specially 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 deported even if they actually have a communicable disease (which Plaintiff does not have). Specifically, for unaccompanied minors from non-contiguous countries like Honduras, that means that the child must be transferred within 72 hours of his apprehension to the care of the Office of Refugee Resettlement (ORR), placed in a children’s facility, and provided a full hearing on their asylum claims. They must also be released to a close relative or sponsor as soon as possible; Plaintiff’s father lives in the United States.
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.J.B.B.C. respectfully requests a temporary stay of deportation (whether denominated expulsion, removal, or any other term). The balance of harms strongly supports a temporary stay of deportation while this Court decides the merits of the case.
Counsel for Plaintiffs have communicated with government counsel regarding this request. As of this filing, government counsel informed Plaintiff’s counsel that the relevant agency actors had not offered any assurances that Plaintiff’s deportation would not occur as scheduled on June 10 as scheduled. Plaintiff is therefore submitting this emergency request.
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BACKGROUND The following facts are set forth in the declaration accompanying this motion. Plaintiff J.B.B.C. is a 16-year-old boy from Honduras. He faced severe persecution in Honduras. He witnessed killings and other violence in his neighborhood by gang members, and gang members threatened him after he witnessed one of them kill a person in his neighborhood. As someone who witnessed gang murders and has been targeted by those gangs, the danger of persecution and torture to J.B.B.C. is extreme and well-documented in numerous public reports about gangs in Honduras. Honduras has one of the highest murder rates in the world and children are not exempt from this widespread violence. Indeed, many children are targeted specifically by gang members for recruitment, or retaliated against and threatened because of their family connections or what they know about the gangs as witnesses. Children have experienced extreme harms ranging from threats against their lives and physical abuse to rape, kidnapping, and murder. J.B.B.C. fled Honduras because he was afraid for his life and journeyed to the United States to seek safety and reunite with his father, who lives in the United States and can safely take care of him. On or around June 4, 2020, J.B.B.C. entered the United States in the El Paso, Texas area, where CBP apprehended him. CBP officials did not give him any opportunity to raise his fear of return to Honduras. On the afternoon of June 4, J.B.B.C.’s father received a call from a government official asking for his name, address, and to confirm that he was J.B.B.C.’s father. The official on the phone said that they would call the father again with more information. The next day, the father received a call from the same phone number and was able to speak with J.B.B.C. briefly.
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On or about June 6, J.B.B.C. was moved from a CBP detention facility to a hotel. He has remained in the hotel while government officers seek to put him on a flight back to Honduras.
When J.B.B.C. and his father spoke on the phone, his father also sought to tell the officers that his son was fleeing danger in Honduras but there was no action taken by the government.
As of Tuesday, June 9, 2020, J.B.B.C. has spent at least five days in government custody, while he awaits deportation. J.B.B.C. has not exhibited any symptoms of COVID-19 and is in good health.
J.B.B.C.’s removal to Honduras is imminent. J.B.B.C.’s counsel and father have attempted to obtain information from CBP about his whereabouts and whether Defendants plan to deport him to Honduras. On June 9, 2020, at 8:20 am CST, a DHS official confirmed via email to J.B.B.C.’s counsel that the boy “is pending expulsion under Title 42” and that, “[a]t this time, there is no legal impediment to the imminent expulsion of [J.B.B.C.].” Later on June 9, at 11:17 am CST, a DHS official further stated in email to J.B.B.C.’s counsel that J.B.B.C. is “scheduled to depart via an ICE Air flight within the next few days” and that the Honduran consulate “has been advised.” At 6:00 pm EDT, DHS stated that his removal would occur on June 10.
If J.B.B.C. is allowed to remain the United States, he could live with his father, who has a home waiting for J.B.B.C. in Texas.
As explained more fully in Plaintiffs’ Complaint, the Title 42 Process is a new immigration system 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 Centers for Disease
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Control and U.S. Customs and Border Protection (“CBP”) have invoked 42 U.S.C. § 265 to bar and expel noncitizens who arrive at the border or enter the country without documents.1
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. Public reporting indicates that deportations (or “expulsions”) pursuant to Title 42 take place within a matter of days after apprehension, including for unaccompanied children. The government has largely carried out this new expulsion process in secret.
LEGAL STANDARD The general four-factor test for injunctive relief applies to applications for stays of removal from noncitizens. See Nken v. Holder, 556 U.S. 418, 434 (2009). Courts deciding whether to grant a stay of removal weigh: “(1) whether the stay applicant has made a strong showing that he 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.” Id. The first two prongs of the stay inquiry (likelihood of success and irreparable harm) are the “most critical.” Id.; see also
1 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. 16559-01 (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. 17,060-17088 (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, available at https://www.documentcloud.org/documents/6824221-COVID-19-CAPIO.html.
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Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011); Sofinet v. INS, 188 F.3d 703, 707 (7th Cir. 1999). This Court should grant a stay of deportation, especially given that the balance of harms tips so decidedly in Plaintiff’s favor. A stay will allow the Court to fully consider the novel questions raised by this case.
ARGUMENT I. Plaintiff is Facing Irreparable Injury
Plaintiff—a seven-year-old boy fleeing abuse and violence in his home country, and who seeks to reunite with his father in this country—would suffer grave harm absent a stay of deportation. As the declaration of Plaintiff’s lawyer explains, Plaintiff has experienced and witnessed violence and threats in Honduras, and will be subject to harm or even death at the hands of gangs if he is deported. Deportation would also deprive him of the statutorily guaranteed opportunity to seek bona fide claims for asylum, withholding, and relief under CAT.
Moreover, Honduras is one of the most violent countries in the world. See Bureau of Democracy, Human Rights, and Labor, U.S. Dept’ of State, 2019 Country Reports on Human Rights Practices: Honduras at 1-2, https://www.state.gov/wpcontent/uploads/2020/02/HONDURAS-2019-HUMAN-RIGHTS-REPORT.pdf (describing extreme gang violence directed at vulnerable populations, including “acts of homicide, torture, kidnapping, extortion, human trafficking, intimidation, and other threats”). The State Department reports that “child abuse remain[s] a serious problem” in the country, and that youth are particularly vulnerable to forced displacement, targeting by gangs, domestic violence, and other forms of discrimination and oppression. See id. at 17.
These facts more than satisfy the stay 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)
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(preliminary injunction request) (emphasis added). Nor is there any doubt that the harms Plaintiff faces are irreparable; indeed, they would be “beyond remediation.” Damus v. Nielsen, 313 F. Supp. 3d 317, 342 (D.D.C. 2018); see, e.g., Devitri v. Cronen, 289 F. Supp. 3d 287, 296– 97 (D. Mass. 2018) (significant risk of persecution if removed is irreparable harm); OrantesHernandez 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 the opportunity to exercise their right to apply for asylum); Nunez v. Boldin, 537 F. Supp. 578, 586–87 (S.D. Tex. 1982) (“Deportation to a country where one’s life would be threatened obviously would result in irreparable injury.”); cf. R.I.L-R v. Johnson, 80 F.Supp. 3d 164, 191 (D.D.C. 2015) (granting preliminary injunction because harm from detention pursuant to an unlawful policy is beyond remediation). II. Plaintiff Is Likely to Succeed on the Merits of His Claims.
Plaintiff is likely to succeed on the merits of his challenge to the government’s novel efforts to deport him 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, Plaintiff is entitled to explicit statutory procedures and protections as an unaccompanied child seeking humanitarian protection in this country. Those specific, later-enacted statutes control over whatever § 265 may authorize in general.
A. Title 42 Does Not Authorize Deportation. The CDC Immigration Orders were issued under the purported authority of 42 U.S.C.
§ 265, a provision that has laid 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
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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. Group 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.
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 deportation or 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 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 by the terms of a treaty”).
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Such powers of physical removal from the country—whether called deportation, removal, extradition, or expulsion—“in order to exist 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 expulsion powers into statutes that do not explicitly grant it. Valentine, 299 U.S. at 12; cf. Util. Air Regulatory 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— 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).
Title 42 authorizes testing and quarantines, not expulsions. Indeed, § 265, the provision on which the Administration relies for its new power, could not be read to authorize expulsions because that section applies without differentiation to citizens and noncitizens alike. If the government is correct that § 265 authorizes expulsions, it would therefore mean that Congress
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gave the executive branch the power to expel citizens as well as noncitizens. It is inconceivable that Congress would seek to give the executive branch that (plainly unconstitutional) power.
Had Congress sought to authorize the mass deportations on health-related grounds which are now underway, and particularly had it authorized the removal of vulnerable unaccompanied children like Plaintiff who are entitled to unique statutory safeguards, it would have needed to clearly say so.
B. Plaintiff’s Deportation Violates The Specific Protections Established By Congress. 1. Plaintiff’s Deportation Violates Mandatory Duties Imposed by the TVPRA Congress has carefully and repeatedly worked to ensure that unaccompanied children like
Plaintiff are afforded unique, mandatory, and protective procedures when they face deportation. Defendants have jettisoned that entire statutory scheme.
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 an agency— ORR—that had demonstrated experience working with vulnerable immigrants and refugees. 6 U.S.C. § 279(a). In 2008, Congress enacted the Trafficking Victims Protection Reauthorization Act “TVPRA,” which strengthened those protections by providing for the swift referral of unaccompanied children to ORR custody, who would then take responsibility for their safety and release to community members 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).
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Thus, Congress prescribed a careful and comprehensive set of directions to federal agencies—including some Defendants here—for how unaccompanied children should be processed and cared for upon their apprehension. Among other protections, Congress required agencies, including CBP, to expeditiously transfer children like Plaintiff to ORR custody. 8 U.S.C. § 1232(b)(3). It 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). And it prevented DHS from removing such children absent placement in full removal proceedings before an immigration judge. 8 U.S.C. § 1232(a)(5)(D)(ii). Through these provisions, Congress sought to satisfy its domestic and international obligations to protect a uniquely vulnerable set of children, most (if not all) of whom likely qualify 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. S10886-01, S1088–S10887, 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 protect children”).
Through its creation of an alternative immigration system for unaccompanied children, Defendants have circumvented the reticulated scheme Congress set forth for their treatment and care.
Whatever Title 42 authorizes in general, it cannot override the provisions of the immigration laws providing protection to unaccompanied minors and those seeking protection, see infra – even where such individuals are suspected of having a communicable disease. Such an interpretation would violate numerous canons of statutory construction, including that the specific should be read to control over the general. See, e.g., Air All. Houston v. EPA, 906 F.3d
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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. The general terms of § 265, which do not refer to the treatment of minors, should not be construed to bypass the specific provisions of the TVPRA. See Radzanower v. Touche Ross & Co., 426 U.S. 148, n.2 (1976) (“[T]he 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 § 265 was originally enacted in 1893 and last amended in 1944. See 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.
2. Plaintiff’s Deportation Violates the Asylum and Withholding Statutes, and FARRA. Plaintiff also has a right to seek protection from persecution and torture, as Congress has long prescribed. But the Title 42 Process unlawfully sidesteps these safeguards. First, the asylum statute, 8 U.S.C. § 1158, provides that any noncitizen physically in the United States has a right to apply for asylum, regardless of their status. Specifically, the statute provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . .), irrespective of such alien’s status, may apply for asylum . . .” 8 U.S.C. § 1158(a)(1).
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The asylum statute provides a narrow list of bars to asylum, none of which apply to Plaintiff.2 Moreover, Congress expressed a special concern with expanding access to asylum for unaccompanied children like Plaintiff, by exempting them from the one-year deadline that ordinarily applies to asylum applications, 8 U.S.C. 1158(a)(2)(B), preventing their removal to a “safe third country,” id. 1158(a)(2)(A), and by 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 a noncitizen fears return, see Innovation Law Lab v. Wolf, 951 F.3d 1073, 1088 (9th Cir. 2020). Congress again outlined specific and narrow bars to withholding of removal, none of which apply to Plaintiff.3
2 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, see 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); id. § 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). 3 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).
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Third, protections under Convention Against Torture (“CAT”) prohibit returning a
noncitizen to a country where it is more likely than not that she would face torture. Article 3 of 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 § 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 Negusie v. Holder, 555 U.S. 511, 514 (2009).
In short, Congress carefully crafted the statutory provisions governing asylum,
withholding, and CAT 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 can be deported from the country.
The Title 42 Process jettisons all those protections and safeguards, subjecting Plaintiff to summary deportation back to persecution and torture.4
4 The only humanitarian protection provided under the Title 42 Process is limited to CAT, and is totally inadequate—especially for an unaccompanied child like Plaintiff. Noncitizens are only be 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.
Unsurprisingly, this screening offers essentially no protection: As of May 13, 2020, out of thousands of expulsions under Title 42, Defendants reportedly conducted a mere 59 screening interviews for CAT, of which only two applicants passed the screening stage. Nick Miroff, Under Trump Border Rules, U.S. Has Granted Refuge to Just Two People Since Late March, Records Show, Wash. Post (May 13, 2020),
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C. The Removal of Plaintiff is Arbitrary and Capricious Defendants’ application of the Title 42 Process to Plaintiff also violates the APA in
several respects. First, Defendants have provided no reasoned explanation for their actions. “An agency 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). Nowhere do any of the documents setting forth the Title 42 Process offer any reasoned explanation for their failure generally to exempt unaccompanied children, including unaccompanied children fleeing abuse, persecution, and torture. Nor have Defendants offered any explanation for their decision specifically to apply the Title 42 Process to J.B.B.C., despite his fears of persecution—and the ready availability of a parent in the United States to whom he can be released.
Second, in applying the Title 42 Process to Plaintiff, Defendants “entirely failed to consider [multiple] important aspect[s] of the problem,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), because they did not “adequately analyze the . . . consequences” of their actions on an unaccompanied child and asylum seeker like Plaintiff, Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 932 (D.C. Cir. 2017). The APA requires the agency to “analyze the impact” of its actions on affected individuals. Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1105-06 (D.C. Cir. 2019). As demonstrated above, Congress through the TVPRA clearly expressed a paramount concern for the protection and well-being of unaccompanied children who arrive at ports of entry or are apprehended near the border. See, e.g., Flores v. Sessions, 862 F.3d 863, 880-81 (9th Cir. 2017) (“The overarching
https://www.washingtonpost.com/immigration/border-refuge-trumprecords/2020/05/13/93ea9ed6-951c-11ea-8107-acde2f7a8d6e_story.html; Camilo MontoyaGalvez, Only 2 Migrants Allowed to Seek Humanitarian Protection Under Trump’s Coronavirus Border Order, CBS News (May 13, 2020), https://www.cbsnews.com/news/only-2-migrantsallowed-to-seek-humanitarian-protection-under-trumps-coronavirus-border-order/.
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purpose of the HSA and TVPRA was quite clearly to give unaccompanied minors more protection, not less.”). Defendants were required to consider and address this clear and weighty concern, and how their adoption of the Title 42 Process would impact unaccompanied children like Plaintiff, who Congress has sought to protect. See Nat’l Lifeline Ass’n, 921 F.3d at 1113 (holding action was arbitrary and capricious for failing to consider that eliminating a subsidy would cause “many low-income consumers on Tribal lands [to] lose access to affordable telecommunications service”). Defendants’ failure to consider or address how their new process would impact unaccompanied children renders the process arbitrary and capricious.
Defendants also failed to consider and address the need to protect individuals fleeing persecution. Removing asylum seekers is “replete with danger.” Cardoza-Fonseca, 480 U.S. at 449. None of the documents comprising the Title 42 Process addresses the obvious dangers of returning asylum seekers—let alone unaccompanied child asylum seekers like Plaintiffs here—to the countries they fled.
Third, the Title 42 process exempts numerous categories of individuals, such as students and commercial truck drivers, who carry at least as great a risk of COVID-19 as asylum seekers unaccompanied minors. Public health experts have overwhelmingly concluded that the Title 42 process cannot be justified on public health grounds, especially as applied to children. IV. The Remaining Injunction Factors Weigh Heavily in Favor of a
Because of the severity of injury that Plaintiff faces, the balance of harms weighs strongly in favor of a stay. Preventing Defendants from removing one young boy until the Court can address these novel issues would not substantially injure the government.
The public interest also weighs strongly in favor of granting a stay here. First, the Supreme Court has recognized that the public interest lies “in preventing aliens from being
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wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436. Treating asylum seekers with basic fairness and dignity is among our nation’s best traditions. See, e.g., Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102 (“[I]t is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including . . . admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States.”).
Second, the TVPRA embodies this nation’s commitment to vulnerable children seeking humanitarian relief. The public interest is also served when the government complies with its obligations under U.S. law, including the Administrative Procedure Act. See O’Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992); Damus, 313 F. Supp. 3d at 342; R.I.L-R, 80 F. Supp. 3d at 191. The public also “has an interest in ensuring that its government respects the rights of immigrants[.]” M.G.U. v. Nielsen, 325 F. Supp. 3d 111, 124 (D.D.C. 2018) (enjoining immigration authorities from removing Plaintiffs pursuant to expedited removal orders).
In short, the balance of harms and the public interest decisively favor affording Plaintiff the statutory safeguards to which he is entitled, and affording him a meaningful opportunity to seek relief in full removal proceedings
CONCLUSION This Court should stay Plaintiff’s deportation (whether denominated expulsion, removal, or any other term) and set a briefing schedule for Plaintiff’s motion for a TRO or preliminary injunction.
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Dated: June 9, 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/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

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
Jamie Crook (D.C. Bar No. 1002504) Blaine Bookey Karen Musalo Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 Tel: (415) 565-4877

Robert Silverman* Oxfam America 226 Causeway Street, Suite 500 Boston, MA 02114 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

*Pro hac vice application forthcoming

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CERTIFICATE OF SERVICE
I hereby certify on or after June 9, 2020, I will cause a copy of this motion, supporting
exhibits and proposed order to be served on the following, together with the summons and
complaint:
Chad F. Wolf Acting Secretary of the Department of Homeland Security 245 Murray Lane, SW, Washington, DC 20528;
Mark A. Morgan Acting Commissioner of U.S. Customs and Border Protection 1300 Pennsylvania Ave, NW Washington, DC 20229;
Todd C. Owen Executive Assistant Commissioner, CBP Office of Field Operations 1300 Pennsylvania Ave. NW Washington, DC 20229;
Rodney S. Scott Chief of U.S. Border Patrol U.S. Border Patrol 1300 Pennsylvania Ave, NW Washington, DC 20229;
Matthew T. Albence Deputy Director of U.S. Immigration and Customs Enforcement, 500 12th Street, SW Washington, DC 20536;
Alex M. Azar II Secretary of the U.S. Department of Health and Human Services Hubert H. Humphrey Building 200 Independence Avenue, S.W. Washington, D.C. 20201;
Dr. Robert R. Redfield Director of the Centers for Disease Control and Prevention 1600 Clifton Road, Atlanta, GA 30329 USA;

Case 1:20-cv-01509-CJN Document 2-1 Filed 06/09/20 Page 20 of 20
Heidi Stirrup Acting Director of the Office of Refugee Resettlement, 330 C Street SW 5th Floor Washington, D.C. 20201
William Barr Attorney General of the United States 950 Pennsylvania Avenue, NW Washington, DC 20530
Michael R. Sherwin Acting U.S. Attorney for the District of Columbia United States Attorney’s Office 555 4th Street, NW Washington, DC 2001
/s/ Celso J. Perez Celso J. Perez

Case 1:20-cv-01509-CJN Document 2-2 Filed 06/09/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD F. WOLF, ACTING SECRETARY OF HOMELAND SECURITY, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 2020-cv-___________ ) ) ) ) ) ) ) ) )

DECLARATION OF STEPHEN B. KANG I, Stephen B. Kang, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge: 1. I am an attorney licensed to practice law in California. I am one of the attorneys for Plaintiff J.B.B.C. in this matter. 2. Pursuant to LCvR 65.1(b), I submit this declaration with Plaintiff’s Motion for a Temporary Restraining Order to state why notice was not given to the Clerk during regular business hours that the Motion was forthcoming. Plaintiff’s counsel was informed after business hours EST today, June 9, 2020, that the deportation of Plaintiff was likely imminent. He is currently in the custody of the Department of Homeland Security (“DHS”), and is scheduled for deportation on Wednesday, June 10, 2020. 3. On or about 12 PM EST today, Plaintiff’s counsel learned from Plaintiff’s immigration lawyer Linda Corchado that Plaintiff was in a hotel in El Paso, Texas, awaiting expulsion back to Honduras. Plaintiff’s counsel in this case, along with Plaintiff’s immigration

1

Case 1:20-cv-01509-CJN Document 2-2 Filed 06/09/20 Page 2 of 2 lawyer, sought to confirm with Defendants whether Plaintiff’s deportation was imminent, and learned during the evening hours EST today that Plaintiff was scheduled for deportation on Wednesday, June 10, tomorrow.
4. Plaintiff’s counsel in this case also contacted the U.S. Attorney’s Office in Washington, DC, to seek agreement from Defendants that they would stay Plaintiff’s deportation pending briefing on a TRO or request for preliminary injunction. As of approximately 9 PM EST, counsel from the U.S. Attorney’s office could not offer assurance that they would stay deportation. I, Stephen B. Kang, declare under penalty of perjury of the laws of the State of California and the United States of America that the foregoing is true and correct to the best of my knowledge. Executed on June 9, 2020, in Oakland, California. /s/Stephen B. Kang_________ STEPHEN B. KANG
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DECLARATION OF LINDA CORCHADO I, Linda Corchado, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge 1. I am an attorney licensed to practice law in New York. Since May 2019, I have been the Legal Director at Las Americas Immigrant Advocacy Center (“Las Americas”). I engage in direct representation of noncitizen clients and also supervise attorneys and other staff at Las Americas who represent individuals detained during immigration proceedings. 2. I have been practicing law since 2015. Prior to joining Las Americas, I worked as a private immigration attorney for four years. 3. I base the information in this declaration on my conversations with my client’s father, and facts I have learned from my investigation. 4. I represent J.B.B.C. (or “J.”), the Plaintiff in this case, in administrative immigration matters. J.B.B.C. is 16 years old. J.B.B.C. is seeking asylum, withholding of removal, and CAT protection against dangers he faces if he is returned to Honduras. On or about June 4, J crossed the U.S.-Mexico border near El Paso, Texas and was apprehended by government officers. The officers were likely Border Patrol agents, because they were wearing green uniforms. 5. J.B.B.C. faces persecution and torture if he is returned to Honduras. Before fleeing for his life, he lived in San Pedro Sula, Honduras, with an aunt, in one of the most dangerous neighborhoods of one of the most dangerous cities in Honduras, and where he and his family were targeted by gangs. These gangs have targeted him and his family members; his father is currently in the United States, pursuing asylum. 6. About three months ago, one of J.’s relatives was beaten in the neighborhood where he lives; two months ago, while he was helping his aunt at her store in the neighborhood, he saw
1

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a gang member follow a young man and shoot that man, killing him. After he witnessed the murder, gang members began coming to the store threatening him and telling his aunt that she must close the store and pay the gang. J. believes this was in response to the murder taking place near by and him witnessing the murder by the gang members. Following the shooting, J. was too afraid to go to school or back to the store. J. fled because he had no other option for safety.
7. I learned on June 8, 2020, that J. was at a hotel in El Paso awaiting deportation to Honduras, after our office received a phone call from his father seeking assistance in stopping his son’s deportation.
8. I contacted local ICE and CBP officials via e-mail at 5:21 p.m. on Monday, June 8, 2020, to raise my concern that J. was being summarily expelled. I provided a G-28, Notice of Entry of Appearance, for J., and specifically asked officials to confirm whether J. was given a fear screening, as I am concerned he faces persecution or torture if he is returned to Honduras
9. I received a response email on Tuesday, June 9, 2020, at 8:20 a.m. from Danielle Hernandez, an assistant field office director for ICE in El Paso. In her response, Ms. Hernandez told me only that she had received my inquiry, that J. “is pending expulsion under Title 42” and that “[a]t this time, there is no legal impediment to the imminent expulsion of your client.” Ms. Hernandez did not say whether J. was given any kind of fear screening.
10. I understand J. has been screened for any symptoms of COVID-19 and has not shown any symptoms.
11. I learned at 6pm EDT from a DHS official that J. is scheduled to be taken from the hotel and removed on a flight tomorrow, June 10, 2020.
12. If J. is returned to Honduras, he faces dire harm and high risk that he will be persecuted and tortured. His only family with whom he could live is the same aunt with whom he
2

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lived before; it is this same aunt whose store has been targeted by gangs, and J.’s persecutors would thus easily know how to find and harm him. He would not be safe in Honduras.
13. J.’s father currently lives in the United States and has a pending asylum case before U.S. immigration court. He would be able to receive J. and provide a safe home if J. were to be released to him, including for any necessary period of quarantine.

I declare under penalty of perjury, under the laws of the United States of America and Texas, that the foregoing is true and correct.

Executed and dated: June 9, 2020 in El Paso, Texas

Signature:

___________________ Linda Corchado

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Case 1:20-cv-01509-CJN Document 2-4 Filed 06/09/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C.,* A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez, c/o American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, et al,
Defendants.

) ) ) ) ) ) ) ) No. 2020-cv-___________ ) ) ) ) ) ) ) ) )

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

Upon consideration of Plaintiff’s Motion for a Temporary Restraining Order, along with

all exhibits thereto, and for good cause shown, the motion is GRANTED. It is hereby

ORDERED that:

1. Defendants are prohibited from removing J.B.B.C. from the United States pending

further decision by this Court.

Dated:

United States District Judge

 
 Case 1:20-cv-01509-CJN Document 27 Filed 06/15/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff, v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

Civil Action No. 1:20-cv-01509 (CJN)

BRIEF OF AMICUS CURIAE THE INTERNATIONAL REFUGEE ASSISTANCE PROJECT, INC. IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Dated: June 12, 2020

Mariko Hirose (D.C. Bar No. NY0262) Kathryn Austin (N.Y. Bar No. 5251178)* Geroline Castillo (N.Y. Bar No. 5784434)* INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza, 4th Floor New York, N.Y. 10004 Tel: (516) 701-4620
Counsel for Amicus Curiae
* Non-members of the bar of this Court appearing under LCvR 83.2(c)(1)

Case 1:20-cv-01509-CJN Document 27 Filed 06/15/20 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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Case 1:20-cv-01509-CJN Document 27 Filed 06/15/20 Page 3 of 21
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 ....................8 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. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) ............................................................................................ 11

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).................................................................................................................... 9

Statutes 8 U.S.C. § 1101............................................................................................................................... 4 * 8 U.S.C. § 1158................................................................................................................... passim 8 U.S.C. § 1159............................................................................................................................... 4 * 8 U.S.C. § 1182........................................................................................................................ 6, 7 8 U.S.C. § 1222............................................................................................................................... 7 * 8 U.S.C. § 1225.................................................................................................................. 4, 5, 13 * 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, 13 8 U.S.C. § 1427............................................................................................................................... 4 * Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112
Stat. 2681, 2681-822 ........................................................................................................... 11, 14 Refugee Act of 1980, Pub. L. No. 96-212, § 101(a), 94 Stat. 102, 102........................................ 10

Regulations 8 C.F.R. § 34.5 ................................................................................................................................ 7 8 C.F.R. § 108.1 ............................................................................................................................ 12 8 C.F.R. § 208.16 ............................................................................................................................ 3 8 C.F.R. § 208.17 ........................................................................................................................ 3, 6 8 C.F.R. § 208.30 ............................................................................................................................ 5
iii

Case 1:20-cv-01509-CJN Document 27 Filed 06/15/20 Page 5 of 21
8 C.F.R. § 1208.16 .......................................................................................................................... 4 8 C.F.R. § 1208.17 .......................................................................................................................... 4 42 C.F.R. § 34.3 .............................................................................................................................. 7 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, 31,508 (May 26, 2020) ............ 5 Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8481 (Feb. 19,
1999) ......................................................................................................................................... 11 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 June 12, 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 ........ 6
Legislative History 114 Cong. Rec. 27,758-59 (1968)................................................................................................. 10 114 Cong. Rec. 29,391 (1968) ........................................................................................................ 9 114 Cong. Rec. 29,607-08 (1968)................................................................................................... 9
iv

Case 1:20-cv-01509-CJN Document 27 Filed 06/15/20 Page 6 of 21
125 Cong. Rec. 11,973 (1979) ...................................................................................................... 11 126 Cong. Rec. 4507 (1980) ......................................................................................................... 13 142 Cong. Rec. 11,491 (1996) ................................................................................................ 11, 13 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 The Refugee Act of 1979, S. 643: Hearing Before the S. Comm. on the Judiciary, 96th Cong. 36
(1979). ....................................................................................................................................... 10
Periodicals Jeff Abbott, Outrage as Guatemalan Maya spiritual guide is tortured and burned alive,
Guardian, June 10, 2020, https://www.theguardian.com/world/2020/jun/10/guatemalan-mayaspiritual-guide-tortured-burned-alive.......................................................................................... 2 Deadly blast hits Kabul Mosque during Friday prayers, Al Jazeera, June 12, 2020, https://www.aljazeera.com/news/2020/06/deadly-blast-hits-kabul-mosque-friday-prayers200612092826021.html .............................................................................................................. 2 Nathan Hodge & Mary Ilyushina, Anti-gay viral video stirs outrage ahead of Russian referendum, CNN, June 3, 2020, https://www.cnn.com/2020/06/03/europe/anti-lgbtq-videorussia-referendum-intl/index.html .............................................................................................. 2 Ruth Ingram, CCP Stepping Up the Pace of Uyghur Forced Labor into Inner China, Bitter Winter, May 23, 2020, https://bitterwinter.org/ccp-stepping-up-the-pace-of-uyghur-forcedlabor-into-inner-china/ ................................................................................................................ 2 Jared Olson, Pandemic response a partisan war on the people in Honduras, Toward Freedom, May 26, 2020, https://towardfreedom.org/story/pandemic-response-a-partisan-war-on-thepeople-in-honduras/ .................................................................................................................... 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 Hector Silva Avalos, Inside an MS13 Clique’s Campaign of Terror at the Honduras-El Salvador Border, InSight Crime, June 5, 2020, https://www.insightcrime.org/news/analysis/ms13clique-honduras-el-salvador/....................................................................................................... 2
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Gilad Thaler & Kate Smith, “They don’t know our reality”: Lives impacted by El Salvador’s abortion ban, CBS News, June 3, 2020, https://www.cbsnews.com/news/abortion-ban-elsalvador-lives-affected/............................................................................................................... 2
Jose Miguel Vivanco, Mexican Journalism in Mourning, Human Rights Watch, June 11, 2020, https://www.hrw.org/news/2020/06/11/mexican-journalism-mourning..................................... 2
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 ........... 11
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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) and the Court’s Scheduling Order dated June 11, 2020, ECF No. 9. 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
1

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Triangle, Mexico, and many other places worldwide,1 our government has returned tens of
thousands of 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—a child who fled Honduras and entered the United States alone—without
these safeguards. Plaintiff is likely to succeed on the merits of his 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. IRAP agrees
with Plaintiff that the Court should grant his motion for a temporary restraining order for all the
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; Jared Olson, Pandemic response a partisan war on the people in Honduras, Toward Freedom, May 26, 2020, https://toward freedom.org/story/pandemic-response-a-partisan-war-on-the-people-in-honduras/; Jeff Abbott, Outrage as Guatemalan Maya spiritual guide is tortured and burned alive, June 10, 2020, Guardian, https://www.theguardian.com/world/2020/jun/10/guatemalan-maya-spiritual-guidetortured-burned-alive; Gilad Thaler & Kate Smith, “They don’t know our reality”: Lives impacted by El Salvador’s abortion ban, CBS News, June 3, 2020, https://www.cbsnews.com/ news/abortion-ban-el-salvador-lives-affected/; Hector Silva Avalos, Inside an MS13 Clique’s Campaign of Terror at the Honduras-El Salvador Border, InSight Crime, June 5, 2020, https://www.insightcrime.org/news/analysis/ms13-clique-honduras-el-salvador/; 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; Jose Miguel Vivanco, Mexican Journalism in Mourning, Human Rights Watch, June 11, 2020, https://www.hrw.org/news/2020/06/11/mexican-journalism-mourning; Deadly blast hits Kabul Mosque during Friday prayers, Al Jazeera, June 12, 2020, https://www.aljazeera.com/news/ 2020/06/deadly-blast-hits-kabul-mosque-friday-prayers-200612092826021.html; Nathan Hodge & Mary Ilyushina, Anti-gay viral video stirs outrage ahead of Russian referendum, CNN, June 3, 2020, https://www.cnn.com/2020/06/03/europe/anti-lgbtq-video-russia-referendumintl/index.html; Ruth Ingram, CCP Stepping Up the Pace of Uyghur Forced Labor into Inner China, Bitter Winter, May 23, 2020, https://bitterwinter.org/ccp-stepping-up-the-pace-of-uyghurforced-labor-into-inner-china/.
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 June 12, 2020).
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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 Trafficking Victims Protection Reauthorization Act. IRAP urges the Court to grant Plaintiff’s motion for a temporary restraining order.
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 are entitled to special protections under the Trafficking Victims Protection Reauthorization Act. See Pl.’s Br. at 10-11. Even in the ordinary course, however, the protections to which asylum seekers are entitled are robust. 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
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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).
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
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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). 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
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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 12-14 & nn.2-3.
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, 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.3 Yet Congress was clear that a person may apply for and be granted humanitarian relief regardless of whether there might be
3 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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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 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
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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 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
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Refugees, which had urgent moral underpinnings.4 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 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).
4 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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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 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
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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).
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. 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.
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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 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
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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 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
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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 a temporary restraining order.

Dated: June 12, 2020 New York, N.Y.

Respectfully submitted,
/s/ Mariko Hirose Mariko Hirose (D.C. Bar No. NY0262) Kathryn Austin (N.Y. Bar No. 5251178)* Geroline Castillo (N.Y. Bar No. 5784434)* INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza, 4th Floor New York, N.Y. 10004 Tel: (516) 701-4620
Counsel for Amicus Curiae
* Non-members of the bar of this Court appearing under LCvR 83.2(c)(1)

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 Case 1:20-cv-01509-CJN Document 28 Filed 06/17/20 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 1:20-cv-01509-CJN Document 28 Filed 06/17/20 Page 2 of 54
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 I. FACTUAL BACKGROUND ............................................................................................. 3
A. The COVID-19 Pandemic....................................................................................... 3 B. COVID-19 in Canada and Mexico ......................................................................... 5 C. CBP’s Operations at or Near the U.S.-Canada and U.S.-Mexico Borders ............. 6 II. STATUTORY AND REGULATORY BACKGROUND.................................................. 7 A. The Public Health Service Act................................................................................ 7 B. The Interim Final Rule............................................................................................ 8 C. The CDC’s Section 265 Order ................................................................................ 9 D. The Immigration Processing of Aliens at the Border ........................................... 13
1. Asylum, Withholding of Removal, and the CAT ..................................................13 2. The Processing of Unaccompanied Alien Children...............................................14 III. The Plaintiff and His Request for Emergency Relief ....................................................... 15 STANDARD OF REVIEW .......................................................................................................... 16 ARGUMENT…………….. .......................................................................................................... 16 I. PLAINTIFF IS UNLIKELY TO SUCCEED ON THE MERITS .................................... 16 A. Plaintiff Is Unlikely to Succeed in Showing that the CDC Order Is
Unauthorized by Section 265................................................................................ 16 B. Plaintiff Is Unlikely to Succeed in Showing that the CDC Order Violates
the CAT, the TVPRA, and the Asylum and Withholding of Removal Statutes .................................................................................................................. 21 1. The Government’s plan to return Plaintiff to Honduras does not violate its obligations under the CAT.....................................................................................21 2. Congress intended the Public Health Service Act provisions to temporarily take precedence over the procedures afforded under the immigration laws. ................23 3. The CDC’s interpretation of the public health provisions is entitled to deference. ...............................................................................................................31

Case 1:20-cv-01509-CJN Document 28 Filed 06/17/20 Page 3 of 54 C. Plaintiff Is Unlikely to Succeed on His Arbitrary and Capricious
Challenge .............................................................................................................. 33 1. The CDC Order sufficiently explained its necessity..............................................34 2. The CDC’s well-reasoned orders appropriately considered the problem. .............36 3. Public health concerns justify the CDC Order.......................................................37 II. THE BALANCE OF HARMS WEIGHS AGAINST ENTRY OF A TEMPORARY RESTRAINING ORDER ................................................................................................. 39 A. Plaintiff Cannot Show That He Will Suffer Irreparable Harm. ............................ 39 B. The Balance of Harms and the Public Interest Weigh Against an
Injunction .............................................................................................................. 40 CONCLUSION............................................................................................................................. 41
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TABLE OF AUTHORITIES
CASES
Am. Civil Liberties Union Found. v. Wash. Metro. Area Transit Auth., 303 F. Supp. 3d 11 (D.D.C. 2018) ........................................................................................... 40
Am. Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914 (D.C. Cir. 2017) ................................................................................................. 36
Arriva Med. LLC v. Dep’t of Health & Human Servs., 239 F. Supp. 3d 266 (D.D.C. 2017) ......................................................................................... 40
Aurelius Inv., LLC v. Puerto Rico, 915 F.3d 838 (1st Cir.), rev’d on other grounds sub nom. Fin. Oversight Bd. for P.R. v. Aurelius Inv., LLC, -- S. Ct. --, 2020 WL 2814298 (S. Ct. June 1, 2019) ............................... 24
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) ............................................................................................................. 34, 35
Bragdon v. Abbott, 524 U.S. 624 (1998) ................................................................................................................. 41
Brown v. United States, 327 F.3d 1198 (D.C. Cir. 2003) ............................................................................................... 31
Bulova Watch Co. v. United States, 365 U.S. 753 (1961) ................................................................................................................. 24
Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203 (D.D.C. 2012) ......................................................................................... 37
Career Coll. Ass’n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996) ........................................................................................... 23, 32
Castro v. United States Dep’t of Homeland Sec., 835 F.3d 422 (3d Cir. 2016)..................................................................................................... 17
Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000)....................................................................................................... 36
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ................................................................................................. 39
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ........................................................................................................... 18, 23
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Coal. for Common Sense in Gov’t Procurement v. United States, 576 F. Supp. 2d 162 (D.D.C. 2008) ......................................................................................... 39
Coal. for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 6 (D.D.C. 2010) ............................................................................................. 16
Cruz v. Dep’t of Homeland Sec., No. 19-CV-2727, 2019 WL 8139805 (D.D.C. Nov. 21, 2019)................................................ 17
Davis v. Mich. Dep’t of Treasury, 489 U.S. 803 (1989) ................................................................................................................. 29
Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 (1995) ................................................................................................................. 27
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ............................................................................................................. 30
Epsilon Elecs., Inc. v. U.S. Dep’t of Treasury, 857 F.3d 913 (D.C. Cir. 2017) ................................................................................................. 33
FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) ......................................................................................................... 33, 37
Fiallo v. Bell, 430 U.S. 787 (1977) ................................................................................................................. 28
Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957) ................................................................................................................. 23
Freeman v. Quicken Loans, Inc., 566 U.S. 624 (2012) ................................................................................................................. 27
Friends of Animals v. U.S. Bureau of Land Mgmt., 232 F. Supp. 3d 53 (D.D.C. 2017) ........................................................................................... 40
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ................................................................................................................... 3
Guttenberg v. Emery, 26 F. Supp. 3d 88 (D.D.C. 2014) ............................................................................................. 39
Inv. Co. Inst. v. Commodity Futures Trading Comm’n, 720 F.3d 370 (D.C. Cir. 2013) ................................................................................................. 38
iv

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Jacobson v. Massachusetts, 197 U.S. 11 (1905) .............................................................................................................. 3, 37
Kaplan v. Tod, 267 U.S. 228 (1925) ................................................................................................................. 26
Keppel v. Tiffin Sav. Bank, 197 U.S. 356 (1905) ................................................................................................................. 26
Landon v. Plasencia, 459 U.S. 21, (1982) .................................................................................................................. 17
League of Women Voters of United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ..................................................................................................... 39
Leng May Ma v. Barber, 357 U.S. 185 (1958) ................................................................................................................. 17
Lewinsohn v. United States, 278 F. 421 (7th Cir. 1921)........................................................................................................ 24
Louisiana v. Mathews, 427 F. Supp. 174 (E.D. La. 1977) ............................................................................................ 29
Luis v. United States, 136 S. Ct. 1083 (2016) ............................................................................................................. 17
Marshall v. United States, 414 U.S. 417 (1974) ................................................................................................................... 3
Maryland v. King, 133 S. Ct. 1 (2012) ................................................................................................................... 41
Mathews v. Diaz, 426 U.S. 67 (1976) ................................................................................................................... 28
Mayo v. Reynolds, 875 F.3d 11 (D.C. Cir. 2017) ................................................................................................... 33
Mazurek v. Armstrong, 520 U.S. 968 (1997) ................................................................................................................. 16
Morton v. Mancari, 417 U.S. 535 (1974) ................................................................................................................. 30
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Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................................................................... 33, 34, 37
Munaf v. Geren, 553 U.S. 674 (2008) ................................................................................................................. 16
Mylan Labs., Inc. v. Thompson, 389 F.3d 1272 (D.C. Cir. 2004) ............................................................................................... 32
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) ........................................................................................................... 23, 31
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................................................................................................................. 31
Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office [for] Immigration Review, --- F. Supp. 3d ----, No. 1:20-CV-00852 (CJN), 2020 WL 2026971 (D.D.C. Apr. 28, 2020)................................................................................................. 38, 40, 41
Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102 (D.C. Cir. 2019) ............................................................................................... 36
Nat’l Propane Gas Ass’n v. U.S. Dep’t of Homeland Sec., 534 F. Supp. 2d 16 (D.D.C. 2008) ........................................................................................... 41
Nitro-Lift Techs., LLC v. Howard, 568 U.S. 17 (2012) ................................................................................................................... 23
Nken v. Holder, 556 U.S. 418 (2009) ..................................................................................................... 39, 40, 41
Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011) ................................................................................................... 22
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) ........................................................................................................... 29, 30
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) ................................................................................................................. 23
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) ........................................................................................................... 24, 26
Randall v. Loftsgaarden, 478 U.S. 647 (1986) ................................................................................................................. 27
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Rural Cellular Ass’n v. FCC, 588 F.3d 1095 (D.C. Cir. 2009) ............................................................................................... 37
S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056 (S. Ct. May 29, 2020).................................................... 3, 37
Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987) ................................................................................................................. 41
Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014) ................................................................................................................... 31
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ................................................................................................. 39
Shirk v. United States ex rel. Dep’t of the Interior, 773 F.3d 999 (9th Cir. 2014).................................................................................................... 29
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ................................................................................................................. 31
Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982) ................................................................................................. 23
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) ................................................................................................................. 27
Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012).................................................................................................... 22
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ....................................................................................................... 26, 28
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) ................................................................................................................. 28
United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193 (1979) ................................................................................................................. 27
Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) ................................................................................................................. 33
W. Coal Traffic League v. Surface Transp. Bd., 216 F.3d 1168 (D.C. Cir. 2000) ............................................................................................... 31
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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ......................................................................................................... 16, 39, 40
Wisc. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ................................................................................................. 39
STATUTES 5 U.S.C. § 553................................................................................................................................. 8 6 U.S.C. § 279......................................................................................................................... 14, 15 8 U.S.C. § 1101............................................................................................................................. 13 8 U.S.C. § 1158....................................................................................................................... 13, 14 8 U.S.C. § 1182....................................................................................................................... 14, 25 8 U.S.C. § 1222............................................................................................................................. 25 8 U.S.C. § 1225....................................................................................................................... 13, 14 8 U.S.C. § 1226............................................................................................................................. 14 8 U.S.C. § 1229............................................................................................................................. 13 8 U.S.C. § 1229a ............................................................................................................... 13, 14, 15 8 U.S.C. § 1231................................................................................................................. 13, 14, 21 8 U.S.C. § 1232................................................................................................................. 14, 15, 23 19 U.S.C. § 1401............................................................................................................................. 8 20 U.S.C. § 3508............................................................................................................................. 7 42 U.S.C. § 264................................................................................................................. 19, 29, 30 *42 U.S.C. § 265.................................................................................................................... passim 42 U.S.C. § 268............................................................................................................... 2, 7, 11, 21 42 U.S.C. § 271............................................................................................................................. 19 Pub. L. No. 96-88, 93 Stat. 668 (1979), codified at 20 U.S.C. § 3508 ........................................... 7 The Act of February 15, 1893, 27 Stat. 449........................................................................ 7, 20, 24
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The Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-207, Div. G. Title XXI, 112 Stat. 2681, codified at 8 U.S.C. § 1231 note ...................................... 21
The Public Health Service Act of 1944, Pub. L. No. 78-410, 58 Stat. 682 .................................... 7 The Trafficking Victims Protection and Reauthorization Act of 2008,
Pub. L. No. 110-457 ................................................................................................................. 14 REGULATIONS 8 C.F.R. § 208.16 .................................................................................................................... 14, 22 8 C.F.R. § 208.17 .................................................................................................................... 14, 22 8 C.F.R. § 208.18 .................................................................................................................... 14, 22 8 C.F.R. § 208.30 .......................................................................................................................... 14 8 C.F.R. § 1003.1 .......................................................................................................................... 13 8 C.F.R. § 1208.16 ............................................................................................................ 13, 14, 22 8 C.F.R. § 1208.17 .................................................................................................................. 14, 22 8 C.F.R. § 1208.18 .................................................................................................................. 14, 22 31 Fed. Reg. 8855, 80 Stat. 1610 (June 25, 1966).......................................................................... 7 42 C.F.R. § 70.1 ............................................................................................................................ 30 85 Fed. Reg. 16559-01 (Mar. 24, 2020) ................................................................................ passim *85 Fed. Reg. 17060-02 (Mar. 26, 2020) .............................................................................. passim 85 Fed. Reg. 22424 (Apr. 20, 2020) ................................................................................... 5, 10, 12 85 Fed. Reg. 31503-02 (May 21, 2020)................................................................................. passim
OTHER AUTHORITIES 1 American Dictionary of the English Language 113 (Noah Webster ed., 1st ed. 1828)............. 17 1 J. Kent, Commentaries on American Law (13th ed. 1884)........................................................ 17 24 Cong. Record 470 (Jan. 10, 1893) ............................................................................... 20, 24, 25
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CDC, Corona Virus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html. ................................................................................... 5, 40
Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. 19 (1988), 1465 U.N.T.S. 85 .................................................................................................................... 13
Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus, https://www.dhs.gov/sites/default/files/publications/20_0519_as1_frn_ us-canada-border.pdf................................................................................................................. 4
H.R. 9757, 52nd Cong., 2d Sess., Report No. 2210 (Jan. 9, 1893) ........................................ 20, 24 Noah Webster, American Dictionary of the English Language: Intended to Exhibit (1828)....... 17 Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional
Persons Who Pose a Risk of Transmitting Novel Coronavirus, https://www.whitehouse.gov/presidential-actions/proclamation-suspensionentry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novelcoronavirus/ ................................................................................................................................ 4 Thomas Cooley, Constitutional Limitations 63 (1868) ................................................................ 17 Universal English Dictionary 1067 (John Craig ed. 1861) .......................................................... 17 World Health Organization, Coronavirus Disease (COVID-19), Situation Report 148, at 8, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200616-covid-19sitrep-148-draft.pdf?sfvrsn=9b2015e9_2............................................................................... 4, 6
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INTRODUCTION This Court should deny Plaintiff’s request for extraordinary injunctive relief. The world is facing a historic, unprecedented outbreak of the Coronavirus Disease 2019 (COVID-19). The virus that causes COVID-19, known as SARS-CoV-2, spreads easily and quickly across national borders. At this time, COVID-19 has no widely available therapeutics or vaccine, and it can have a high mortality rate for some of the most vulnerable members of society. The World Health Organization has classified the outbreak as a pandemic. Across the world, countries are implementing emergency measures to help curb the spread of this highly contagious disease. Nations have closed their borders and imposed severe travel restrictions. In the United States, the President has declared a National Emergency, and the Secretary of Health and Human Services similarly declared a public health emergency. The Department of State has issued a global Level 4 “do not travel” advisory—the highest level it can issue. And the United States and its two neighboring countries, Mexico and Canada, have closed their shared borders to nonessential travel. To help avert the serious danger of COVID-19 further spreading into the United States, the Director of the U.S. Centers for Disease Control (“CDC”) invoked, for the first time in the Nation’s history, his authority under section 362 of the Public Health Service Act, 42 U.S.C. § 265 (“Section 265”), to temporarily suspend the movement of certain aliens who are without valid travel documents into the United States from Canada and Mexico. In an order issued in March 2020, the Director found that that suspension is necessary because aliens covered by the Order potentially are vectors of COVID-19, and they are typically held in congregate settings for immigration processing at ports of entry and Border Patrol stations. Those facilities are not equipped to quarantine, isolate, or enable social distancing for large populations, and the use of their congregate holding areas for quarantine or isolation would present a significant risk of transmitting COVID19. Nor are they designed to provide the level of medical care that vulnerable populations with COVID-19 may require. Therefore, allowing the introduction of aliens subject to the Order into the United States, the Director found, would put the American public, U.S. Customs and Border
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Protection (“CBP”) personnel, and other travelers at risk and potentially strain the American healthcare system. Given such public health risks, the Director determined that it is imperative to return covered aliens to the country from which they entered the United States or to their home country as quickly as possible. The Director requested the assistance of the Department of Homeland Security (“DHS”) with implementing his Order pursuant to section 365(b) of the Public Health Service Act, 42 U.S.C. § 268(b), which provides that it shall be the duty of customs officers to aide in the enforcement of such orders.
Plaintiff is a 16-year-old Honduran citizen who was apprehended approximately one mile from the U.S.-Mexico border after illegally entering the United States near El Paso, Texas. He was determined to be subject to the CDC Order and was scheduled to be returned to his home country pursuant to the Order. He seeks to enjoin his return, contending that (1) Section 265 does not authorize the return of individuals to their home countries after they have already crossed the U.S. border; (2) his return would violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and the procedures afforded under certain immigrations laws; and (3) the CDC Order is arbitrary and capricious.
Plaintiff is unlikely to succeed on these arguments. First, Section 265 plainly authorizes his return. In adopting Section 265, Congress gave the Executive Branch the power to prohibit the introduction of persons into the United States during an outbreak of a communicable disease. By granting that broad power, Congress necessarily gave the Executive Branch the authority to take actions needed to exercise that power. That includes, in the circumstances here, the prompt return of covered aliens who have crossed the U.S. border and would otherwise be introduced into congregate settings. Second, the Government has complied with its obligations under the CAT. It has conducted a screening interview to assess whether he meets the threshold screening standard required to place Plaintiff in removal proceedings in order to seek protection under the CAT, and has determined that he does not. In any event, this Court does not have jurisdiction to review that determination. Moreover, the statute’s text and structure evince Congress’s intent that the emergency public health provisions would take precedence over the procedures afforded under the
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immigration laws in times of a public health crisis, such as the current global pandemic. Were it otherwise, the public health provisions—intended to curb the potentially irreversible and devastating spread of a communicable disease from the mass migration at the Nation’s borders during an outbreak—would be rendered a nullity. Even if Congress’s intent were not clear, the agency’s interpretation of Sections 265 and 268(b) as operating without regard to the immigration laws is reasonable and entitled to deference. Third, the CDC fully explained the necessity of the Order, and its action is not arbitrary or capricious.
The equities also weigh decidedly against granting the requested emergency relief here. As Chief Justice Roberts recently observed, “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the [government] ‘to guard and protect,’” and “[w]hen those officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056, at *1–2 (S. Ct. May 29, 2020) (Roberts, C.J., concurring in denial of application for injunctive relief) (first quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905), and then quoting Marshall v. United States, 414 U.S. 417, 427 (1974)). “Where those broad limits are not exceeded, they should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Id. at *1 (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 545 (1985)). “That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while [government] officials are actively shaping their response to changing facts on the ground.” Id. at *2. The Court thus should deny Plaintiff’s motion.
BACKGROUND I. FACTUAL BACKGROUND
A. The COVID-19 Pandemic COVID-19 is a communicable disease that primarily transfers from person to person through respiratory droplets from an infected person. Notice of Order Under Sections 362 & 365
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of the Public Health Service Act Suspending Introduction of Persons From Countries Where Communicable Diseases Exist, 85 Fed. Reg. 17060-02 (Mar. 26, 2020) [“Order”] at 3 (attached hereto as Exhibit B). The disease can also be transmitted through asymptomatic persons, and it spreads easily and rapidly. Id. Today, there are more than 7.6 million confirmed cases and 426,000 deaths globally.1
To curb the spread of COVID-19, countries have imposed sweeping travel restrictions. Id. at 5; see also Interim Final Rule, Control of Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Persons Into The United States From Designated Foreign Countries of Places for Public Health Purposes, 85 Fed. Reg. 16559-01 (Mar. 24, 2020) [“IFR”] at 10-11 (attached hereto as Exhibit A). The United States, Mexico, and Canada have closed their shared borders to non-essential travel.2 Beginning in March, the President also suspended the entry of most aliens who were present in countries with substantial outbreaks within 14 days of the aliens’ entry or attempted entry into the United States, including the People’s Republic of China, the Islamic Republic of Iran, the Schengen Area of Europe, the United Kingdom, and the Republic of Ireland. Id. at 10. On May 24, 2020, the President further suspended the entry of most aliens from Brazil.3 The CDC has issued various guidelines to help slow the spread of the disease, while states and localities have shut down businesses or otherwise issued shelter-in-place orders. Order at 6.
As of May 9, 2020, the United States reported 1,274,036 confirmed cases of COVID-19 and 77,034 deaths. See Amendment and Extension of Order Suspending Introduction of Certain
1 See World Health Organization, Coronavirus 2019, Situation Report 148, at 1, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200616-covid-19sitrep-148-draft.pdf?sfvrsn=9b2015e9_2.
2 Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus, https://www.dhs.gov/sites/default/files/publications/20_0519_as1_frn_us-canada-border.pdf.
3 Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus, https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrantsnonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/.
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Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31503-02 (May 21, 2020) [“May Order”] at 6 (attached hereto as Exhibit D). By June 16, 2020, there were more than 2.1 million confirmed cases and the death toll reached 116,000.4 Although certain early hotspots have shown signs of improvement, and certain areas of the country are beginning a phased reopening of their communities, many cities and states, including several located at or near U.S. borders, continue to experience widespread, sustained community transmission. Id. at 3, 6.
B. COVID-19 in Canada and Mexico The pandemic has severely impacted Canada and Mexico. By May 9, 2020, Canada reported 66,780 confirmed cases of COVID-19 and a total of 4,628 deaths. May Order at 4. Canada’s public health agency expects that the number of confirmed COVID-19 cases will continue to increase. Id. Canadian modeling indicates that Canada could see 940,000 people with infections, 73,000 hospitalizations, and 23,000 people requiring intensive care over the course of the pandemic. Id. Mexico declared a state of health emergency on March 30, 2020, and temporarily suspended all non-essential activities. See Extension of Order Suspending Introduction of Certain Persons From Countries Where A Communicable Disease Exists, 85 Fed. Reg. 22424 (Apr. 20, 2020) [“April Order”] at 4 (attached hereto as Exhibit C). On April 20, 2020, the country announced its highest level of public health emergency, and, as of May 9, 2020, Mexico had reported 29,616 confirmed cases of COVID-19 and 2,961 deaths. May Order at 5. The Mexican Health Ministry believes that there are approximately eight additional cases for each confirmed case, and the Mexican government’s modeling indicates that 250,656 people could be infected during the acceleration phase of the pandemic, with 70 percent of them expected to seek medical care. Id. Non-governmental models and estimates indicate that there may be between 620,000 and 730,000 symptomatic cases. Id. Medical experts also believe that the virus will inevitably
4 See CDC, Corona Virus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html.
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spread at migrant camps and shelters along the U.S. border. Order at 9. Indeed, the disease has spiked in Mexico. The World Health Organization reported that as of June 16, 2020, Mexico has 146,837 confirmed cases and 17,141 deaths.5
C. CBP’s Operations at or Near the U.S.-Canada and U.S.-Mexico Borders The U.S.-Canada border spans nearly 4,000 miles, and the U.S.-Mexico border runs approximately 2,000 miles. Id. at 7, 10. There are 328 land ports of entry along the borders, where CBP processes aliens to determine their admissibility. CBP also operates 136 Border Patrol stations to apprehend, process, and temporarily hold aliens who seek to unlawfully enter the country between ports of entry. Id. at 12. Through February of Fiscal Year (“FY”) 2020, CBP processed more than 20,000 inadmissible aliens at ports of entry along the U.S.-Canada border and apprehended an additional 1,200 inadmissible aliens. Id. at 7. These aliens included nationals of countries with significant COVID-19 outbreaks. Id. The number of inadmissible aliens CBP processed along the U.S.Mexico border is much higher; as of March, CBP processed more than 34,000 inadmissible aliens at ports of entry and apprehended an additional 117,000 inadmissible aliens in FY 2020. Id. at 10. Over 15,000 of the apprehended individuals were nationals of countries other than Mexico that have been experiencing sustained human-to-human COVID-19 transmission. Id. Aliens who lack proper travel documents would typically be deemed inadmissible and take much longer to screen than U.S. citizens and those with valid travel documents. Id. at 11. During the extended processing time for those aliens—which may run from several hours to several days—they typically remain in close proximity to CBP personnel and other travelers. Id. As for aliens apprehended between ports of entry and taken to a Border Patrol station, they too are held in close proximity to others in the ordinary course of the administration of U.S. immigration laws. Although Border Patrol stations vary significantly in size and layout, they generally have
5 See WHO Coronavirus 2019, Situation Report 138, at 8, https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200616-covid-19-sitrep-148draft.pdf?sfvrsn=9b2015e9_2.
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congregate holding areas that can temporarily hold only 150 to 300 people standing shoulder-toshoulder. Id. at 12. A typical station also has only two to five separate holding areas. Id. If not released by CBP, an alien subject to the Order would spend an average of roughly 78 hours in a Border Patrol station before being transferred to U.S. Immigration and Customs Enforcement (“ICE”). Id. Only 46 of CBP’s 136 Border Patrol stations offer any medical services at all, and those services are limited to basic emergency care, as well as testing for glucose, pregnancy, and influenza. Id.
II. STATUTORY AND REGULATORY BACKGROUND A. The Public Health Service Act As previously noted, the CDC Order was issued under the authority found in 42 U.S.C.
§ 265, which provides:
Whenever [the Secretary] 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 [Secretary], 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. The provision is substantively identical to its predecessor statute, the Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452, which initially vested the authority in the President. That authority was later vested in the Surgeon General by the Public Health Service Act of 1944, Pub. L. No. 78410, 58 Stat. 682, and then in the Secretary of Health and Human Services in 1966.6
6 Reorganization Plan No. 3 of 1966 abolished the Office of the Surgeon General and transferred the Surgeon General’s statutory powers and functions to the Secretary of Health, Education and Welfare, now the Secretary of Health and Human Services, 31 Fed. Reg. 8855, 80 Stat. 1610 (June 25, 1966); see also Pub. L. No. 96-88, § 509(b), 93 Stat. 668, 695 (1979) (codified at 20 U.S.C. § 3508(b)). Although the Office of the Surgeon General was re-established in 1987, the Secretary of Health and Human Services has retained the authorities previously held by the Surgeon General.
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A separate provision of the Public Health Service Act, section 365(b), authorizes “customs officers” to assist in the implementation of any Section 265 order. See 42 U.S.C. § 268(b) (“It shall be the duty of the customs officers . . . to aid in the enforcement of quarantine rules and regulations . . . .”). Pursuant to 19 U.S.C. § 1401(i), U.S. Border Patrol agents have been designated as “customs officers.” See Declaration of Robert Danley, ¶ 2, dated June 17, 2020. Similarly, officers in Enforcement and Removal Operations at the U.S. Immigration and Customs Enforcement (“ICE”) have been delegated the authority of “customs officers” identified in the CDC Order. See Declaration of Danielle Hernandez, ¶ 3, dated June 17, 2020.
B. The Interim Final Rule The COVID-19 pandemic highlighted the need for an efficient regulatory mechanism to suspend the introduction of persons who would otherwise increase the serious danger of introducing a communicable disease into the United States. See IFR at 11. As the CDC found, “[i]nternational travel and migration play a significant role in the global transmission of infectious biological agents or their toxic products,” as travelers can serve as unwitting vectors of disease— i.e. carriers of a pathogenic agent and potential sources of infection for others—and thus increase the risk of introducing the disease into the United States. Id. at 5. That risk increases when travelers are in “congregate settings,” such as ships or planes, as well as terminals with shared sitting, sleeping, eating, or recreational areas. Id. at 6. Accordingly, on March 20, 2020, HHS issued an interim final rule to allow the CDC Director to invoke the authority in Section 265. The IFR took effect immediately due to the national emergency, see 5 U.S.C. § 553(b)(3)(B) and (d), and defines “introduction into the United States of persons from a foreign country” or place to mean “the movement of a person from a foreign country” or place into the United States (1) “so as to bring the person into contact with persons” in the United States or (2) 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.” IFR at 27. Further, it defines “[s]erious danger of the
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introduction of such communicable disease into the United States” to mean “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.” Id. at 28. Finally, the IFR excludes U.S. citizens and lawful permanent residents, among others, from the scope of any Section 265 order. Id. at 18-19.
The comment period for the IFR has since closed. The CDC is currently considering the public comments it received and expects to issue a final rule in due course. Id. at 13.
C. The CDC’s Section 265 Order The same day the Interim Final Rule took effect the CDC Director issued an order temporarily suspending the introduction of certain aliens from Canada and Mexico into the United States. The Director found a serious danger that COVID-19 will be introduced into ports of entry and Border Patrol stations, as well as the interior of the country, because the disease exists in Canada, Mexico, and the countries or places of origins of the aliens who travel to the United States by crossing our northern and southern borders. Order at 15–16. Based on information provided by DHS and a U.S. Public Health Service Scientist Officer’s visit to the El Paso del Norte Port of Entry, Paso del Norte Border Crossing, id. at 13; Ex. 1 to Order, the CDC Director determined that ports of entry and Border Patrol stations at or near the northern and southern borders are not structured or equipped to effectively mitigate the risks presented by COVID-19—i.e., to implement quarantine, isolation, or social distancing protocols—even for small numbers of aliens. Order at 14. Rather, these facilities were designed for short-term holding in a congregate setting. Id. And many aliens (typically those who lack valid travel documents and would therefore be found inadmissible during immigration processing) are held in the common areas of these facilities, in close proximity to one another, for hours or days, as they undergo immigration processing. Id. at 1; see also id. at 12 (noting that, on average, an alien subject to the Order apprehended between ports of entry would otherwise spend approximately 78 hours in a Border Patrol station before being transferred to ICE).
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The CDC Director also found CBP’s then-existing screening protocol for COVID-19 unworkable for large numbers of individuals. An influx of infected, asymptomatic aliens would present significant infection control challenges for CBP because the screening of such aliens may not trigger testing (to the extent that testing resources are available). Id. at 12. The aliens would remain in congregate areas while CBP finishes the screening and processing. Id. During that time, the alien could infect CBP personnel or other aliens with COVID-19. Id. If CBP determined that an alien may be exposed to or infected with COVID-19, it would notify the local health department and the CDC personnel, if available, to determine whether the individual should be tested for COVID-19 and where that testing should occur. Id. If testing was to occur, CBP followed guidance from CDC and local health officials regarding transport to the testing site, including disinfecting the vehicles used for such transport. Id.
As of March 20, 2020, testing required analyzing collected specimens in a laboratory setting with results available only after three to four days.7 Id. at 4. And for those aliens who test positive for COVID-19 as a result of following the above protocol, the ports of entry and Border Patrol stations lack the capacity to provide the necessary medical care. Id. at 15. Only a handful of facilities offer medical services directly, and those services are relatively limited. Id. Thus, DHS must rely on local and regional hospitals (which sometimes can be far away) and emergency medical resources. Id. But states along the southern border have some of the lowest numbers of hospital beds per 1,000 inhabitants in the United States. Id. Moreover, Arizona, California, and Texas also have some of the largest numbers of residents living in primary care shortage areas. Id. Shifting resources to large numbers of infected aliens, the CDC Director found, would divert the
7 Although rapid testing for COVID-19 has since been developed, such testing is not yet widely available. April Order at 5–6. The CDC Director also determined that rapid testing should be prioritized at places such as hospitals so as to increase the availability of care providers by eliminating the need for such individuals to self-isolate while awaiting results. Id.
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limited resources away from the domestic population, while increasing the risk of exposure to the virus for healthcare workers.8 Id.
To mitigate the risks presented by COVID-19, the CDC Order requires returning all “covered aliens” as rapidly as possible and with as little time spent in congregate setting as is feasible, to the country from which they entered the United States, their country of origin, or to another location as practicable and appropriate. Id. at 16. “Covered aliens” are those 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 or Border Patrol station at or near the U.S. borders with Canada and Mexico.9 Id. at 2. Excluded from the scope of the Order are, among others, U.S. citizens and aliens who arrive at a point of entry with valid travel documents or are in the visa waiver program and are not otherwise subject to travel restrictions.10 Id. The Director explained that the sooner a covered alien is returned, the lower the risk that alien spreads COVID19 into ports of entry, Border Patrol stations, and the interior of the country. Id.
The Director also found that conditional release is not a viable option because there is significant uncertainty that covered aliens would be able to effectively self-quarantine, self-isolate, or otherwise comply with existing social distancing guidelines, not to mention that the CDC lacks the resources and personnel necessary to effectively monitor a large number of people so released. Id. at 15; May Order at 11. Finally, the Order requested DHS’s assistance in its implementation because the CDC lacks the capability and resources to do so. Id. at 16. Such assistance is expected
8 The CDC Director later also determined that, while it is theoretically possible—although not immediately feasible—to structurally expand and retrofit ports of entry and Border Patrol stations, and to equip and train DHS personnel, in order to contain COVID-19, such an endeavor would be ill-advised because it would consume a significant amount of scarce medical resources that could otherwise be used to meet the needs of domestic population. May Order at 7.
9 The Director has expanded the scope of the Order to apply it to coastal points of entries and Border Patrol stations at or near the U.S.-Canada and U.S.-Mexico borders. May Order at 6.
10 In addition, customs officers may, with supervisor approval, except otherwise covered aliens from the Order based on the totality of the circumstances, including considerations of significant law enforcement, officer and public safety, humanitarian, and public health interests. Order at 2.
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within the Title 42 scheme, which imposes a duty on customs officers to help implement any section 265 orders. 42 U.S.C. § 268(b).
The Order was initially effective for 30 days, but the CDC Director has extended it twice. The Order will now remain in effect—subject to periodic review every 30 days—until the CDC Director determines that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, and continuation of the Order is no longer necessary to protect the public health. May Order at 1. In extending the Order, the Director found that the public health risks sought to be mitigated by the Order remain and are unlikely to abate in the near term. See id. at 10; April Order at 2. In the Director’s view, limiting the spread of COVID19 to unaffected or less-affected areas of the United States and slowing the spread of COVID-19 in highly impacted areas are critical as individual states begin to ease public health restrictions on businesses and public activities (in an effort to mitigate the economic and other costs of the COVID-19 pandemic). May Order at 6. This requires limiting the number of infected individuals who may enter these areas. Id.; April Order at 5. And it would be counterproductive to relax restrictions on the introduction of covered aliens who risk transmitting COVID-19 within DHS facilities and the country’s interior and crippling DHS’s workforce and local and regional healthcare systems. May Order at 4; April Order at 2. This is particularly the case given the lack of vaccines or approved and widely available therapeutics for COVID-19. May Order at 10.
Indeed, the Government has a particularly significant interest in ensuring the protection of DHS personnel, who in addition to performing various immigration functions, also perform important law enforcement functions and work to ensure the smooth flow of goods and essential personnel across the U.S. borders with Canada and Mexico. Significant outbreaks of COVID-19 among DHS personnel could, for example, have significant adverse impacts on the country’s food and manufacturing supply chains. Finally, in extending the Order in May 2020, the Director also found that the Order has significantly mitigated the specific public health risk identified in the initial issuance of the Order by significantly reducing—by 88 percent—the population of covered
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aliens held in congregate settings in ports of entry and Border Patrol stations, thereby reducing the risk of COVID-19 infection among DHS personnel and others within these facilities. Id. at 3.
D. The Immigration Processing of Aliens at the Border 1. Asylum, Withholding of Removal, and the CAT
DHS’s infection control challenges must be assessed against the backdrop of immigration processes occurring at ports of entry and Border Patrol stations that otherwise allow aliens to apply for protection from removal from this country. One such process is an application for asylum, which is a form of discretionary relief. See 8 U.S.C. § 1158(a)(1). An alien may be eligible for asylum if he demonstrates, inter alia, that he is “unable or unwilling to return to” his 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.” Id. § 1101(a)(42)(A); see id. § 1158(a)(1) and (b)(1)(B)(i). In addition, an alien may be entitled to withholding of removal if he establishes the likelihood that his life or freedom would be threatened in the country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1231(b)(3). And an alien may be entitled to protection under Article 3 of the CAT, if he demonstrates that there are “substantial grounds for believing that he would be in danger of being subjected to torture.” Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. 19 (1988), 1465 U.N.T.S. 85, 114; see also 8 C.F.R. § 1208.16(c)(2)(providing for statutory protection of withholding under CAT if it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.”).
The Immigration and Nationality Act (“INA”) establishes general procedures for DHS to process aliens who are “applicant[s] for admission” to the United States, whether they arrive at a port of entry or cross the border unlawfully. 8 U.S.C. § 1225(a)(1), (3). Under the INA, all such aliens must be inspected by immigration officers concerning their right to enter the United States. Id. § 1225(b)(1), (b)(2)(A). A full removal proceeding is authorized for any “applicant for admission” whom an immigration officer determines is “not clearly and beyond a doubt entitled to be admitted.” Id. § 1225(b)(2)(A); see also id. § 1229; § 1229a; 8 C.F.R. § 1003.1. An
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immigration officer, however, may elect to place certain aliens in an expedited removal proceeding described in 8 U.S.C. § 1225(b)(1), in which the alien will be “removed from the United States without further hearing or review,” unless he claims a fear of persecution or torture, or expresses an intent to apply for asylum. Id. § 1225(b)(1)(A)(i). An alien is detained during inspection or an asylum interview, id. § 1225(b)(1)(B)(ii), (iii)(IV), (iv), and may request to be paroled into the United States under § 1182(d)(5), or, in certain cases, under § 1226, pending resolution of his or her immigration proceedings.
The credible fear interview by an asylum officer assesses whether there is a significant possibility that the alien could establish eligibility for asylum, withholding of removal or protection under the CAT. See id. §§ 1225(b)(1)(B)(v), 1158, 1231(b)(3); 8 C.F.R. §§ 208.16-.18, 1208.16-.18, 208.30(e). If the officer finds that the individual does not have a credible fear, that finding shall not become final until reviewed by a supervisory asylum officer. 8 C.F.R. § 208.30(e)(8). If the supervisory asylum officer agrees that there is no credible fear, the asylum officer shall provide the alien with a written notice of that decision. Id. § 208.30(g). The alien may request review of a negative credible fear determination by an immigration judge. Id. § 1225(b)(1)(B)(iii)(III); see also 8 C.F.R. § 235.3(b)(4)(i)(C). If the asylum officer or immigration judge determines that the alien has established a credible fear of persecution or torture, the alien is referred for removal proceedings under 8 U.S.C. § 1229a to challenge his or her removability. 8 C.F.R. §§ 1225(b)(1)(B)(ii), 208.30, 1208.30.
All of these procedures affect an alien’s length of stay at a port of entry or Border Patrol station and in the United States, and potentially present the public health concerns of further spread of COVID-19 into the United States. Even expedited removal proceedings require examination by immigration officials that could put both aliens held together in congregate setting and DHS personnel at risk of contracting COVID-19.
2. The Processing of Unaccompanied Alien Children Section 235 of the William Wilberforce Trafficking Victims Protection and Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457 (codified in principal part at 8
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U.S.C. § 1232), provides certain additional protections to unaccompanied alien minors subject to the removal scheme under the immigration provisions of Title 8 of the U.S. Code, as defined in 6 U.S.C. § 279(g)(2). For example, an unaccompanied minor from a non-contiguous country sought to be removed generally must be placed in full removal proceedings under 8 U.S.C. § 1229a, in lieu of expedited removal proceedings. See 8 U.S.C. § 1232(a)(5)(D)(i). And unaccompanied minors who remain in the country, subject to Title 8 immigration provisions, must be placed in the custody of the Office of Refugee Resettlement (“ORR”) of the Department of Health and Human Services (“HHS”), which must place the child with a care provider in the “least restrictive setting that is in the best interest of the child,” subject to considerations of danger to self, danger to others, and risk of flight. See id. § 1232(c)(2)(A). ORR also conducts ongoing assessments as to whether a proposed custodian is capable of providing for the child’s physical and mental well-being. See id. § 1232(c)(3)(A).
In addition, in the ordinary course, any federal department or agency that has custody of an unaccompanied minor must transfer custody of the minor to ORR within 72 hours of determining that the child is unaccompanied, as defined by 6 U.S.C. § 279(g)(2). See id. § 1232(b)(3). This requirement does not apply “in the case of exceptional circumstances.” Id.
III. Plaintiff and His Request for Emergency Relief Plaintiff is a 16-year-old from Honduras. Compl. ¶ 3, ECF No. 1. On June 4, 2020, he
was apprehended approximately one mile from the border after illegally entering the United States near El Paso, Texas. Id. ¶¶ 17, 80; Danley Decl., ¶ 3. He asserts that he was afraid for his life in Honduras and journeyed to the United States to join his father, who lives in Texas and is awaiting his own immigration proceedings. Pl.’s TRO Motion & Br. in Supp. [“Mot.”] at 3, 4, ECF No. 21; Compl., ¶ 3. On or about June 4, U.S. Border Patrol determined that he is a “covered alien” under the CDC Order. Danley Decl., ¶ 4. Accordingly, he was scheduled to be returned to Honduras and was moved to a hotel to await the next available flight to Honduras, which was scheduled for June 10, 2020. Hernandez Decl., ¶¶ 4, 5. In moving him to a hotel, DHS ensured that Plaintiff is provided basic necessities, including daily medical visits, room cleaning, and
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telephone (or video) calls with family. Id. ¶ 7. On June 10, 2020, the U.S. Citizenship and Immigration Services (“USCIS”) provided a screening interview. Id. ¶ 6. Based on that interview, USCIS issued a decision finding that Plaintiff did not meet his burden of establishing that it is more likely than not that he would be subjected to torture if returned to Honduras. Id. In other words, USCIS determined that Plaintiff does not meet the threshold screening required to place Plaintiff in removal proceedings in order to seek protection under the CAT.
STANDARD OF REVIEW “The standard for obtaining injunctive relief through either a temporary restraining order or a preliminary injunction is well established.” Coal. for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 6, 7–8 (D.D.C. 2010). The movant must satisfy a four-prong test, establishing “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). A TRO or a preliminary injunction “is an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation omitted). It is “never awarded as of right,” id. at 690, and “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Here, Plaintiff fails to meet his burden.
ARGUMENT I. PLAINTIFF IS UNLIKELY TO SUCCEED ON THE MERITS
In challenging the Government’s plan to return him to his home country, Plaintiff argues that the CDC Order is contrary to law and is otherwise arbitrary and capricious. He is not likely to succeed on either of those theories.
A. Plaintiff Is Unlikely to Succeed in Showing that the CDC Order Is Unauthorized by Section 265
Plaintiff argues that Title 42 does not allow the Government to return aliens like him— who have physically crossed the border into the United States but are apprehended at or near the border—to their home countries. See Mot. at 8. But Section 265 gives the CDC Director the
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“power to prohibit . . . the introduction of persons” from a foreign country to prevent a communicable disease from spreading to the United States. 42 U.S.C. § 265. To effectuate Section 265’s purpose of preventing the transmission of a communicable disease, the power to “prohibit” a person’s “introduction” necessarily includes the power to physically remove the person even after he has unlawfully crossed the border into the United States and is apprehended near the border. Indeed, it 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.” Luis v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Thomas Cooley, Constitutional Limitations 63 (1868)); see also 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) (“whenever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied”). Congress’s use of the term “introduction”11 also signals that the Executive’s authority under Section 265 is not limited to the Nation’s borders.12 As the current pandemic illustrates, the insidious nature of communicable diseases does not lend itself to limitation by geographic boundaries. Congress clearly intended public health experts to be able to flexibly respond to the exigency posed by the spread a contagious disease, including by suspending the introduction of vectors from abroad.
11 See Universal English Dictionary 1067 (John Craig ed. 1861) (defining “introduction” to include, inter alia, “the act of bringing into a country” as well as “the ushering of a person into presence”); 1 American Dictionary of the English Language 113 (Noah Webster ed.,1st ed. 1828) (similar definitions).
12 Moreover, even those aliens who are “apprehended within hours of surreptitiously entering the United States” are still treated as ‘“alien[s] seeking initial admission to the United States.’” Castro v. U.S. Dep’t of Homeland Sec., 835 F.3d 422, 445 (3d Cir. 2016) (quoting Landon v. Plasencia, 459 U.S. 21, 32, (1982)); see also Cruz v. Dep’t of Homeland Sec., No. 19-CV-2727, 2019 WL 8139805, at *5 (D.D.C. Nov. 21, 2019) (fact that plaintiff was apprehended within the territorial bounds of the United States after crossing the U.S.-Mexico border does not overcome the fact that he has not “effected entry into this country”); cf. Leng May Ma v. Barber, 357 U.S. 185, 188–190 (1958) (alien “paroled” into the United States pending admissibility determination had not effected an “entry”).
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To the extent the statute leaves any ambiguity, the agency has reasonably interpreted “the introduction of persons” 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 Director determines to present a risk of transmission of a communicable disease.” IFR at 16. That interpretation is reasonable and entitled to Chevron deference because, again, the public health concerns that Section 265 is designed to address do not evaporate the minute an alien crosses the border into the United States, nor do they depend on how quickly Border Patrol agents are able to apprehend the alien near the border. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984).
As the CDC Director found, the risk of transmission of COVID-19 into the United States by aliens who have illegally crossed the border is no less than that posed by aliens seeking to enter the United States through a port of entry. See Order at 11–13. In both situations, the aliens would be processed or otherwise held in congregate settings if found inadmissible during immigration processing. Id. Indeed, “covered aliens” are not likely to present themselves at ports of entry or Border Patrol stations. CBP can apprehend them only after they have crossed into the United States. The border itself is an invisible line defined in cartographic terms, and given these practicalities, Congress surely would not have intended to exempt aliens once they cross into the United States, since that is the only place CBP can apprehend them.
It would be incongruous to say that section 265 orders could be legally applied to aliens seeking to lawfully enter the country at a port of entry but not to aliens who sought to circumvent the law by surreptitiously crossing the border between points of entry. The legality of the Section 265 authority cannot turn on whether an alien happened to be caught before successfully slipping across the border. Otherwise the proper applicability, and lawfulness, of Section 265 would perversely turn on whether an alien had attempted to evade the law. Likewise, it makes no difference whether the alien is captured one foot or, here, approximately one mile from the border. Congress enacted a statute that aims to mitigate the introduction of such aliens altogether; Congress did not limit that aim to the border line alone. For this reason, “covered aliens” under
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the CDC Order include aliens who unlawfully enter the United States between ports of entry and are apprehended at or near the U.S.-Canada or U.S.-Mexico borders.
Plaintiff makes several arguments, none of which has merit. First, he argues that Title 42 of the U.S. Code, which governs public health, authorizes only “testing, and in extreme cases, detention and quarantine,” not “the removal of people from the United States.” Mot. at 1–2, 9. This is clearly belied by the relevant statutory text. Section 264 of Title 42 does authorize those public health measures. See 42 U.S.C. § 264(b), (d)(1). But as discussed above, Section 265 separately authorizes the Secretary to prohibit the introduction of persons from a designated country or place. The power to return individuals such as Plaintiff to their home countries is necessary for the Secretary to stop the introduction of those persons into the United States. Second, Plaintiff contends that returning him to his home country would be an unauthorized penalty under 42 U.S.C. § 271(a). Mot. at 8. That provision prescribes “[p]enalties for violation of quarantine laws,” and as Plaintiff says, it does not mention “removal” from the United States, id. at 8. But halting the introduction of the person by returning him to his home country is not a criminal punishment like that specified in section 271(a). It is a measure designed to protect the public health and mitigate the spread of a communicable disease into the interior of the United States. Moreover, section 271(a) has no bearing on the scope of Section 265. By its plain terms, section 271 imposes fines and imprisonment for violations of regulations promulgated under Section 265 and other Public Health Service Act provisions related to quarantine. See 42 U.S.C. § 271(a). Plaintiff’s return, in contrast, occurs under Section 265 itself pursuant to the Interim Final Rule and the CDC Order. Third, Plaintiff argues that Congress could not possibly have intended to authorize “expulsion” because Section 265 applies to citizens and non-citizens alike. Mot. at 9. “It is inconceivable,” Plaintiff asserts, “that Congress would seek to give the executive branch that (plainly unconstitutional) power.” Id. at 10. Plaintiff is wrong. As an initial matter, the Interim Final Rule explicitly excludes U.S. citizens from the scope of any section 265 order. See IFR at
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18-19. It is an academic question whether Section 265 could constitutionally be applied to U.S. citizens to temporarily delay their entry into the United States; Plaintiff is not a U.S. citizen and again, the IFR excludes U.S. citizens from any section 265 order. As relevant here, however, U.S. citizens entering the United States are not similarly situated to persons within the scope of the Order because they would not typically be held in congregate settings at ports of entry or Border Patrol stations.
In any event, Plaintiff’s interpretation finds no support in the statute’s text or legislative history, which evince Congress’s intent to grant the Executive Branch very broad powers to prevent the spread of communicable diseases into the United States. Section 265 has its origin in the Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452. As initially proposed, the 1893 Act would have given the President the power to suspend “immigration” from such foreign countries or places that he shall designate. See H.R. 9757, 52nd Cong., 2d Sess., Report No. 2210 (Jan. 9, 1893); see also 24 Cong. Record 470 (Jan. 10, 1893) (Senator George Gray explaining that the exigency posed by “invasion of contagious disease[] is sufficient . . . to justify this extraordinary power of the entire suspension of immigration”). But ultimately, the specific reference to immigration was removed, not to circumscribe the Executive’s authority but rather, to give the President even broader authority. As enacted, the Executive had the power to “prohibit, in whole or in part, the introduction of” all “persons.” Id. 471; see id. (Senator William Chandler: “A discretion to do an act of this kind in a great emergency certainly ought to have the authority coupled with it to act either in whole or in part according to the exigency.”). That is, the inclusion of U.S. citizens within the scope of Section 265 in no way indicates the limitation Plaintiff proposes. Id.
Finally, contrary to Plaintiff’s argument, his planned return is not a “deportation,” “expulsion,” or “removal” within the meaning of the INA. See Mot. at 7. Rather, his planned return is for the express purpose of halting his “introduction” into the United States and thereby protecting the public health, as Section 265 permits. Indeed, CBP’s apprehension of Plaintiff was pursuant to the Public Health Service Act, which provides that “it shall be the duty of customs
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officers . . . to aid in the enforcement” of the CDC Order, see 42 U.S.C. § 268(b), not as part of CBP’s statutory authorities under the immigration laws. And as the CDC Director found, “[i]t is necessary for the public health to immediately suspend the introduction of covered aliens,” and such suspension “requires the movement of all such aliens to the country from which they entered the United States, [ ] their country of origin, or another location as practicable, as rapidly as possible, with as little time spent in congregate settings as practicable under the circumstances.” Order at 16.
In sum, Section 265 authorizes the Government to return Plaintiff to his home country and Plaintiff’s contrary arguments are unlikely to succeed.
B. Plaintiff Is Unlikely to Succeed in Showing that the CDC Order Violates the CAT, the TVPRA, and the Asylum and Withholding of Removal Statutes
Plaintiff contends that whatever Title 42 authorizes, “it cannot override the provisions of the immigration laws providing protection to unaccompanied alien children and those seeking protection.” Mot. at 11. This is so, according to Plaintiff, because such immigration laws—i.e., the CAT, the TVPRA, and the asylum and withholding of removal statutes—are more specific than Section 265 and were enacted later in time. Plaintiff is unlikely to succeed on this argument.
1. The Government’s plan to return Plaintiff to Honduras does not violate its obligations under the CAT.
As an initial matter, the Government has complied with its obligations under the CAT in this case. The United States’ obligations under Article 3 of the CAT were implemented through the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-207, Div. G. Title XXI, 112 Stat. 2681 (codified at 8 U.S.C. § 1231 note). FARRA provides that “[i]t shall 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, regardless of whether the person is physically present in the United States.” FARRA § 2242(a). FARRA further specifies that except as provided by regulation, no court shall have jurisdiction to review any claim or determination raised under the
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CAT “except as part of the review of a final order of removal pursuant to section 242 of the [INA].” Id. § 2242(d); see also Omar v. McHugh, 646 F.3d 13, 18 (D.C. Cir. 2011) (Kavanaugh, J.) (“It is true that § 2242(a) of the FARR Act states a broad ‘policy’ that the Executive Branch presumably has a responsibility to follow with respect to all transfers, at least absent any claim of unconstitutionality under Article II of the Constitution. The Act also plainly says, however, that only immigration transferees may obtain judicial review of conditions in the receiving country before they are transferred.”). DHS and DOJ regulations promulgated under FARRA prohibit the “removal” of an alien if it is more likely than not that the alien would be tortured in the country of removal either by or with the acquiescence of a public official. 8 C.F.R. §§ 208.16(c)(2), 1208.16(c)(2); see also id. §§ 208.16(c)-.18, 1208.16(c)-.18; FARRA § 2242(b).
Here, Plaintiff’s planned return is not pursuant to “a final order of removal” under the INA. Moreover, as Plaintiff concedes, even when implementing the CDC Order, DHS will refer an alien for a CAT interview if the alien claims a fear. See Mot. at 14 n.4; see also Hernandez Decl., ¶ 6. The screening interview is conducted by an USCIS asylum officer who assesses whether it is more likely than not that the alien would be tortured, as that term is defined by the CAT, in the country to which he or she would be sent. Hernandez Decl., ¶ 6. Here, Plaintiff was given a screening interview on June 10, 2020. Id. ¶ 6. Based on that interview, USCIS determined that he does not meet the threshold screening standard required to place Plaintiff in removal proceedings in order to seek protection under the CAT. Id. And in any event, the FARRA is clear that this Court has no jurisdiction to review that determination. FARRA § 2242(d); cf. Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (en banc) (if process to determine whether alien will not be subject to torture under FARRA has been applied, “the court’s inquiry shall have reached its end”). Plaintiff, therefore, is unlikely to be able to show that his planned return to his home country violates the United States’ obligations under Article 3 of the CAT.
As discussed below, Plaintiff also is not likely to succeed in showing a violation of the other immigration laws he identified.
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2. Congress intended the Public Health Service Act provisions to temporarily take precedence over the procedures afforded under the immigration laws.
Using traditional tools of statutory construction, it is evident that Congress did not intend Section 265 to operate alongside the procedures afforded under the immigration laws in times of a public health crisis governed by Section 265—namely when there is a serious danger of a communicable disease spreading into the United States through the introduction of persons.13 This Court should give effect to the intent embodied in the Public Health Service Act provisions, Sections 265 and 268(b). See Chevron, 467 U.S. at 843 n.9 (“If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”); see, e.g., Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (analyzing two statutory provisions to see if they could coexist); Career Coll. Ass’n v. Riley, 74 F.3d 1265, 1272 (D.C. Cir. 1996) (analyzing statute to see if Congress resolved a situation where “two statutory provisions are . . . in considerable tension”).
At least three canons of statutory construction supports the reading that the immigration laws must temporarily give way.
First, the canon of “the specific governs the general” supports the Government’s interpretation. This canon applies to disentangle the interplay between “laws of equivalent dignity,” Nitro-Lift Techs., LLC v. Howard, 568 U.S. 17, 21 (2012), and resolves the perceived conflict by “carving out an exception from the more general enactment for the more specific
13 Even aside from the congressional intent that immigration laws, including the TVPRA, must give way in times of a public health crisis, the Government did not violate the TVPRA’s provision concerning the transfer of an unaccompanied alien child to HHS custody within 72 hours. See Mot. at 11. By its plain terms, the TVPRA does not require such transfer of custody in “exceptional circumstances,” 8 U.S.C. § 1232(b)(3), which plainly are present here, given the current pandemic and the CDC Order requiring the return of covered aliens like Plaintiff as soon as practicable. As noted before, although Plaintiff could not be immediately repatriated to his home country due to the flight schedule, he was moved to a hotel where his basic necessities are being met. Hernandez Decl., ¶¶ 4, 7.
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statute.” Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982) (citing Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-29 (1957)); see also RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). Courts have used this rule of construction to interpret provisions in different titles of the U.S. Code, see, e.g., Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976); Lewinsohn v. United States, 278 F. 421, 429 (7th Cir. 1921), and clauses in different articles of the Constitution, see, e.g., Aurelius Inv., LLC v. Puerto Rico, 915 F.3d 838, 851 (1st Cir.), rev’d on other grounds sub nom. Fin. Oversight Bd. for P.R. v. Aurelius Inv., LLC, -- S. Ct. --, 2020 WL 2814298 (S. Ct. June 1, 2019); Albright v. Oliver, 510 U.S. 266, 273–74 (1994) (plurality opinion) It does not matter that the specific statute was enacted earlier than the more general statute. See Radzanower, 426 U.S. at 153 (“It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.”); Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961) (same).
Here, contrary to Plaintiff’s argument, the public health provisions are more specific than the immigration laws, as made clear by the scope of their application. They apply only in a rare and specific circumstance—when the CDC Director determines that there is a serious danger of a communicable disease spreading into the United States from a foreign country and, consequently, a temporary suspension of introduction of persons from that country is necessary for the public health. The immigration laws, by contrast, apply across the board whenever an alien seeks to enter the United States without regard to the existence of a public health emergency.
Beyond the plain language of Section 265, which evinces the narrowness of its scope, the legislative history confirms that Congress intended to confer a specific, targeted power that would supersede the immigration laws for the duration of a public health emergency. As discussed above, the provision’s predecessor is the Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452. As initially proposed, the 1893 Act would have provided the President the “power to suspend immigration” from specified foreign countries or places. See H.R. 9757, 52nd Cong., 2d Sess., Report No. 2210 at 3 (Jan. 9, 1893); see also id. at 4 (noting that “[t]housands of immigrants may
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pass through inspection at a port of entry, and still upon arriving at their destination . . . may disseminate the poison that has been slumbering in their midst and imperil the lives of any community in which they happen to locate”); 24 Cong. Record 470 (Jan. 10, 1893) (statement of Senator George Gray explaining that the exigency posed by “invasion of contagious disease[] is sufficient . . . to justify this extraordinary power of the entire suspension of immigration”). Ultimately, the specific reference to immigration was removed and replaced with the power to prohibit the introduction of all persons. Importantly, Congress did so not to circumscribe the President’s authority, but rather to give the President even broader power to respond to a public health crisis. See 24 Cong. Record 472. That this is the first time the Government has invoked Section 265 in 127 years—and did so only in the face of the World Health Organization’s declaration of an unprecedented global pandemic—underscores the specific, targeted nature of the provision.14
Plaintiff and amici argue that Congress has already accounted for public health concerns about communicable diseases in the immigration laws. See Mot. at 9 (citing 8 U.S.C. § 1182(a)(1) (“[h]ealth-related grounds” of inadmissibility, including communicable diseases); 8 U.S.C. § 1222 (“[d]etention of aliens for physical and mental examination”)); Br. for Scholars of Refugee & Immigration Law as Amici Curiae at 9, ECF No. 19 (no motion for leave filed). In amici’s view, the purportedly “earlier enacted” Section 265 does not “free the Executive Branch from the restrictions against removal in those later-enacted laws.” Id.
But Congress clearly did not intend for the cited immigration law provisions to address the type of national public health emergency the country currently faces. Those provisions are focused on individual aliens’ circumstances, whereas Section 265 is specifically designed to address the public health consequences of allowing persons from other countries to enter the United States
14 Of course, this is not the only travel-related public health measure that the Government is taking to combat the pandemic. As discussed above, the President has suspended the entry of most aliens from the People’s Republic of China, the Islamic Republic of Iran, the Schengen Area of Europe, the United Kingdom, the Republic of Ireland, and Brazil.
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during an outbreak of a communicable disease when doing so would risk spreading the disease into the United States. Moreover, Plaintiff himself concedes that the health-related grounds of inadmissibility have been in existence since “the earliest days of [the Nation’s] immigration regulation—predating the 1893 enactment of the predecessor to § 265.” Mot. at 9 (citing Act of Mar. 3, 1891, ch. 551, 26 Stat. 1085, 1085); see, e.g., Kaplan v. Tod, 267 U.S. 228, 229 (1925) (alien minor, who was brought to this country in 1914, was “certified to be feeble minded” and “upon examination” was ordered to be excluded). There is no reasonable basis then to construe those provisions as narrowing Section 265. Not only did Congress see fit to enact the 1893 Act, but it re-codified the Act in the Public Health Service Act of 1944, fully aware of the existence of these health-related immigration law provisions.
Thus, the cited immigration provisions cannot fairly be read to constrain Section 265. See Radzanower, 426 U.S. at 153 (explaining that the “reason and philosophy of the [specific-overgeneral] rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions” (citation omitted)); cf. Trump v. Hawaii, 138 S. Ct. 2392 (2018) (refusing to interpret anti-discrimination provision applicable to issuance of immigrant visas to constrain separate provision authorizing the President to suspend entry of classes of aliens because the two provisions “operate in two different spheres”; observing that if the interpretation were correct, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, among other possible actions, which is an illogical result).
Second, the canon that a court should not interpret a statute in a way that frustrates the purpose evident from its text and structure also supports the Government’s interpretation. Nothing suggests that Congress intended for the public health provisions to be applied in tandem with the immigration laws in a way that would undermine the efficacy of the public health provisions during a global pandemic. See Keppel v. Tiffin Sav. Bank, 197 U.S. 356, 361 (1905) (noting the “cardinal
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rule” that a statute “should, if possible, be given a meaning in accord with the general purpose which the statute was intended to accomplish”). When the Director invokes Section 265, by definition, he has determined that there is a “serious danger” that a communicable disease in a foreign country would be spread into the United States by persons arriving from that foreign country, and, as such, it is necessary to suspend their introduction to avoid the spread of the disease. See 42 U.S.C. § 265. As the preamble to the Interim Final Rule recognizes, the danger of transmitting a communicable disease through international travel can be significant, and the Government must “respond promptly and effectively” to halt the potential transmission. See IFR at 4; see also id. at 5–6 (“travelers can serve as unwitting vectors of disease, and . . . the risk increases when travelers are in congregate settings”).
To interpret the emergency public health provisions as operating in tandem with the routine procedures afforded under the immigration laws would mean that Congress intended to allow potential vectors of a communicable disease to be introduced into the United States, notwithstanding the dangerous consequences for the public health. Such an interpretation would ‘“bring about an end completely at variance with the purpose of [the public health provisions]’ and must be rejected.” United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 201–02 (1979) (collecting cases); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985) (declining to interpret a statutory provision “in a manner that frustrates [the legislative] intent”); Freeman v. Quicken Loans, Inc., 566 U.S. 624, 632 (2012) (rejecting interpretation that would undermine the purpose of statute). It would also directly contradict the means by which Section 265 is designed to achieve its purpose—i.e., by prohibiting the introduction of persons who would otherwise increase the serious danger of spreading a communicable disease into the United States. See Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 136 (1995) (“Every statute proposes, not only to achieve certain ends, but also to achieve them by particular means.”).
And, it would render Section 265 a nullity. Randall v. Loftsgaarden, 478 U.S. 647, 661 (1986) (repeal by implication “is not favored”). If, in suspending the introduction of an alien in
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order to avert danger to the public health, the Government must concurrently provide the panoply of procedures to that alien, thereby creating the very public health dangers that the suspension seeks to avoid, then Section 265 would have no effect, defeating the Government’s compelling interest in preventing a public health threat to the life and safety of its citizenry.
Temporarily suspending certain procedures afforded under the immigration laws, on the other hand, would not frustrate those provisions’ general purpose of providing immigration benefits outside the context of a global pandemic (or other threat to public health of comparable magnitude). Such an interpretation would also be consistent with established principles governing the admission and exclusion of aliens: (1) that aliens have no “claim of right” to enter the United States, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542–543 (1950), as “the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments,’” Trump, 138 S. Ct. at 2418 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)); and (2) that in reviewing immigration-related decisions, courts must exercise the “greatest caution” to avoid inhibiting the political branches’ “flexibility . . . to respond to changing world conditions,” Mathews v. Diaz, 426 U.S. 67, 81 (1976); cf. Knauff, 338 U.S. at 543 (“because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power . . . for the best interests of the country during a time of national emergency”).
For all these reasons, this Court should reject the interpretation offered by the amici—that “Section 265 is about the prohibition of ‘the introduction of persons and property’ into the United States” and “is not about removal (or expulsion) of persons from the United States.” Br. for Scholars of Refugee & Immigration Law as Amici Curiae at 8. They essentially proffer that Section 265 should be interpreted to authorize only the turning away of covered aliens who present themselves at ports of entry but not the physical removal of aliens who have illegally crossed the border between ports of entry and are apprehended near the border. But as already explained, Congress chose the terms “prohibit” and “introduction” for a reason. And the amici’s interpretation would defeat the purpose of Section 265, as both aliens who present themselves at
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ports of entry and aliens who have illegally crossed the border can transmit and spread COVID19 into the United States. It is telling that the amici do not suggest how the Government might go about offsetting the public health concerns that would flow from their reading, especially considering the fact that few aliens subject to the Order will present themselves at ports of entry (or Border Patrol stations) and, as a practical matter, the amici’s interpretation would prevent the CDC from protecting the public health. In fact, the CDC Director has already determined that the Government cannot do so given the current practical constraints related to the physical structure and operation of CBP facilities, the way in which COVID-19 is transmitted, and prioritization of healthcare resources.
Third, the canon “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. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989), similarly supports the interpretation that the public health provisions take precedence. The interpretation is consistent with Congress’s broad grant of powers in the context of the federal quarantine laws, which generally defer to the expertise of the public health officials to determine how best to protect the country from the dangers of a communicable disease.
Several subsections in the adjacent provision, section 264, highlight the Secretary’s broad powers in this area. The first is section 264(a), which empowers the Secretary to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States.” 42 U.S.C. § 264(a) (emphasis added); compare with id. § 265 (“[w]henever the [Secretary] determines . . . [he] shall have the power to prohibit, in whole or in part, the introduction of persons . . . from such countries or places as he shall designate . . . and for such period of time as he may deem necessary”). This similarly phrased section is broad, deferring entirely to the Secretary’s “judgment.” In interpreting the provision, at least one court has observed that “Congress has granted broad, flexible powers to federal health authorities who must use their judgment in attempting to protect the public against the spread of communicable disease.” Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977). Because “[a] basic principle of interpretation is that courts ought to interpret similar
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language in the same way, unless context indicates that they should do otherwise,” Shirk v. United States ex rel. Dep’t of the Interior, 773 F.3d 999, 1004 (9th Cir. 2014) (citing Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)), this Court should interpret the similar language in Section 265 to grant the Secretary broad powers to act in the face of an epidemic.
Next, subsections 264(b) through (d) indicate that the Secretary’s powers in this area are especially broad with respect to foreign travelers. As discussed above, those provisions authorize the Secretary to use various public health measures—apprehension, detention, conditional release, and examination—to prevent the introduction, transmission, or spread of communicable diseases. 42 U.S.C. § 264(b). They treat foreign and domestic travelers differently; with respect to the latter, the Secretary’s authority is limited: he may (1) apprehend them only if they are “reasonably believed to be infected with a communicable disease in a qualifying stage,” and (2) detain them only if they are determined to be infected. Id. § 264(d)(1). But even in limiting the Secretary’s apprehension and detention authority for individuals in the United States, the subsection sweeps broadly in that an individual “reasonably believed to be infected” need only be “in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.” Id. § 264(d)(2). And as interpreted by regulation, the “precommunicable stage” begins “upon an individual’s earliest opportunity for exposure to an infectious agent.” 42 C.F.R. § 70.1.
These provisions show that through the federal quarantine laws, Congress gave the Secretary sweeping authority to protect the country from potentially devastating communicable diseases. Interpreting the public health provisions to supersede temporarily the immigration provisions for the duration of an outbreak would give effect to this clear intent.
In sum, traditional canons of statutory construction demonstrate that the public health and immigration provisions can be harmonized by interpreting the immigration provisions to give way temporarily in a public health emergency. This interpretation honors both sets of provisions and gives effect to clearly expressed congressional intent, consistent with the Supreme Court’s admonition that “[w]hen confronted with two Acts of Congress allegedly touching on the same
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topic,” the Court “must strive ‘to give effect to both.”’ Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)).
3. The CDC’s interpretation of the public health provisions is entitled to deference.
Although this Court need not proceed further on Plaintiff’s statutory challenge, the CDC’s interpretation of the public health provisions as operating without regard to the immigration laws is permissible and entitled to deference under Chevron. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (“Chevron requires a federal court to accept the agency’s [permissible] construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”). At a minimum, it is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See Brown v. United States, 327 F.3d 1198, 1205 (D.C. Cir. 2003) (“Under Skidmore, the court grants an agency’s interpretation only as much deference as its persuasiveness warrants.”), as amended (May 6, 2003).
In analogous contexts, court have upheld agencies’ reasonable interpretations in the face of perceived statutory conflicts. In National Ass’n of Home Builders v. Defenders of Wildlife, the Supreme Court examined “the interplay between two federal environmental statutes” that imposed “seemingly categorical—and, at first glance, irreconcilable—legislative commands.” 551 U.S. 644, 649, 661 (2007). After analyzing the provisions using the traditional tools of statutory construction, the Court was “left with a fundamental ambiguity that [wa]s not resolved by the statutory text.” Id. at 666. Recognizing that one of the “differing mandates . . . must give way,” the Court looked to the agency’s interpretation to determine which one must give. Id. The Court ultimately found the agency’s interpretation “reasonable in light of the statute’s text and the overall statutory scheme.” Id.; see also Scialabba v. Cuellar de Osorio, 573 U.S. 41, 64 (2014) (plurality) (“When an agency thus resolves statutory tension, ordinary principles of administrative deference require us to defer.”).
The D.C. Circuit similarly has held that where two unambiguous statutes are in apparent conflict and neither indicates how Congress intended to resolve that conflict, the ambiguity created
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by such a conflict may be resolved by the agency’s reasonable interpretation. See W. Coal Traffic League v. Surface Transp. Bd., 216 F.3d 1168, 1173 (D.C. Cir. 2000) (“The statute does not address the unanticipated conflict this case presents . . . . Because the Congress has not ‘directly spoken to the precise question at issue,’ . . . we review the [agency’s] resolution of that conflict under Chevron step two.”); Career Coll. Ass’n, 74 F.3d at 1271-72 (noting that “the Secretary has some discretion to resolve the apparent conflict between the two [statutory] provisions because “it appears that the draftsmen did not contemplate this scenario”); Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1281 (D.C. Cir. 2004) (explaining that “the FDA was called upon to construe the statutes so as to resolve these two conflicts” and concluding that the FDA’s construction satisfied Chevron).
Here, the CDC reasonably interpreted Sections 265 and 268 to operate without regard to the immigration laws. The Interim Final Rule reasonably interprets “introduction of persons” from foreign countries to mean movements that bring persons from foreign countries into contact with others in the United States in a manner that the Director determines to present a risk of transmission of the communicable disease to persons in the United States. IFR at 16-17. Specifically, the term “encompass those who have physically crossed a border of the United States and are in the process of moving into the interior.” Id. at 16. The CDC Order then directs CBP to move covered aliens out of the country, with as little time spent in congregate settings as possible. In the CDC’s expert judgment, it is imperative “to halt the travel of such persons and rapidly mov[e] them outside the United States” to “prevent[] their ‘introduction’” because they otherwise would be held for extended periods of time in congregate settings during immigration processing, which would be conducive to the transmission of COVID-19. Order at 11; id. at 12
As discussed before, the limited size and capacity of the congregate holding areas at ports of entry and Border Patrol stations—and the sheer number of covered aliens seeking to enter the United States—would present a serious public health risk during the COVID-19 outbreak. Moreover, an alien exposed to or infected with COVID-19 would most likely go to healthcare facilities for testing or medical care, increasing the risk of introducing COVID-19 to domestic
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healthcare workers as well as burdening the limited domestic healthcare resources. Id. at 13. Thus, “the faster a covered alien is returned to the country from which [he] entered the United States, to [his] country of origin, or another location as practicable, the lower the risk the alien poses of introducing, transmitting, or spreading COVID-19 into [ports of entry], Border Patrol stations, other congregate settings, and the interior.” Id. at 16.
The CDC did not contemplate that CBP would implement the immigration laws concurrently with the CDC Order. Indeed, such concurrent implementation would defeat the main purpose of the CDC Order by keeping covered aliens in congregate settings for material amounts of time, and then allowing covered aliens to fan out into the interior, where they may act as vectors for spreading COVID-19. The CDC’s interpretation is reasonable because it averts danger to the public health without permanently affecting the application of the immigration laws. Cf. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 332 (2014) (upholding agency interpretation under Chevron step two: “[o]ur narrow holding is that nothing in the statute categorically prohibits EPA from interpreting the BACT provision to apply to greenhouse gases emitted by ‘anyway’ sources” (emphasis added)). Accordingly, the agency’s interpretation is entitled Chevron to deference, or at a minimum to Skidmore deference, and should be upheld.
For all these reasons, the CDC Order is not contrary to law, and Plaintiff is unlikely to succeed in showing otherwise.
C. Plaintiff Is Unlikely to Succeed on His Arbitrary and Capricious Challenge Finally, Plaintiff also argues that the CDC Order is arbitrary and capricious because the CDC (1) did not adequately explain its actions, (2) did not consider important aspects of the problem, and (3) cannot justify the Order on public health grounds. See Mot. at 15–16. These arguments have no merit. The scope of review under the “arbitrary and capricious” standard is “narrow,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and “highly deferential,” Epsilon Elecs., Inc. v. U.S. Dep’t of Treasury, 857 F.3d 913, 918 (D.C. Cir.
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2017). “A court is not to ask whether [an agency’s] decision is the best one possible or even whether it is better than the alternatives.” FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016). Nor is the court to “substitute its own judgment for that of the agency.” Mayo v. Reynolds, 875 F.3d 11, 19–20 (D.C. Cir. 2017) (citation and alteration omitted). Rather, the court’s “only task is to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made,” and to ensure that the agency remained “within the bounds of reasoned decisionmaking.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983). Even if the agency decision is “of less than ideal clarity,” it must be upheld “if the agency’s path may reasonably be discerned.” State Farm, 463 U.S. at 43. The court only considers “whether there has been a clear error of judgment.” Id. (citation omitted). Here, the agency’s action easily satisfies this highly deferential review.
1. The CDC Order sufficiently explained its necessity. First, the agency’s path is clear and there is no clear error of judgment, which is all the APA requires. The CDC acted in the midst of a historic pandemic with COVID-19 spreading rapidly. With international travel and migration playing a significant role in spreading the highly contagious disease, IFR 5–6, countries around the globe responded with sweeping travel restrictions, and the United States, Mexico, and Canada closed their shared borders to non-essential travel. Order at 5, 8. As already discussed above, the CDC Director fully explained why he chose to focus on CBP’s operations at or near those borders. There are significant practical and operational constraints on CBP’s ability to implement effective infection control measures in congregate settings at ports of entry and Border Patrol stations at or near the borders. Allowing aliens to spend hours or days in those congregate settings during the COVID-19 pandemic “would be fraught with public health risks for not only the aliens but also the DHS personnel nearby.” Order at 11–14. Second, Plaintiff is mistaken that the CDC Director should have explained why he did not “exempt unaccompanied children, including unaccompanied children fleeing abuse, persecution, and torture” from the scope of the Order. See Mot. at 15. The APA requires only that an agency
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explain its action well enough for a court to discern the path of the agency’s decision-making; it does not require an agency to address every imaginable scenario. See Balt. Gas & Elec. Co., 462 U.S. 87, at 105 (the court’s “only task is to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made”). In fact, it is Plaintiff’s burden to show why the absence of an exception for children renders the Order arbitrary despite the public health objective of the Order and the fact that children are not immune from this disease. In any event, the CDC Director explicitly recognized that it may be appropriate to exempt certain otherwise covered aliens from the scope of the Order based on humanitarian grounds, and he specifically granted CBP agents and officers the discretion to do so on a case-by-case basis, based on the alien’s individual circumstances. See Order at 2.
Third, contrary to Plaintiff’s argument, Defendants are not required, in this instance, to explain their “decision specifically to apply the Title 42 Process to [Plaintiff].” Mot. at 15. Plaintiff clearly is a “covered alien” under the CDC Order. He crossed the border illegally and was taken into custody approximately one mile from the U.S.-Mexico border. Danley Decl., ¶ 3. As an alien who illegally crossed the U.S.-Mexico border between ports of entry who would have otherwise been held in congregate settings in a Border Patrol station to facilitate immigration processing, CBP determined that he is a “covered alien” under the Order. Id., ¶ 4. He was later moved to a hotel to await his flight back to his home country in order to implement the CDC’s directive that any “covered alien” be returned as soon as practicable. See Hernandez Decl., ¶¶ 4, 5; Order at 16.
It is immaterial to the analysis that Plaintiff does not exhibit any symptoms of COVID-19, Compl. ¶ 86, or, as amici assert, that “children at Plaintiff’s age have a lower ‘attack rate’ of COVID-19.” See Declaration of Les Roberts, MPH, PHD, and Stephen Patrick Kachur, MD. MPH, in Support of Plaintiff’s Motion for Stay of Removal, ¶ 13, ECF No. 18-1 (“Public Health Amici’s Declaration”) (no motion for leave filed). Even if one is asymptomatic or a minor, and the risk of COVID-19 transmission might be lower, there is still some risk. The purpose of the CDC Order is to avert the danger of spreading COVID-19. The presence of covered aliens in
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congregate settings—even covered aliens with “a lower ‘attack rate’ of COVID-19”—would defeat that purpose and undermine the public health. Plaintiff is therefore unlikely to succeed on any as-applied challenge to the CDC Order.
2. The CDC’s well-reasoned Order appropriately considered the problem. Plaintiff next accuses Defendants of “failing to consider or address how their new process would impact unaccompanied children” or “the need to protect individuals fleeing from persecution.” Mot. at 16. But the CDC properly promulgated the Order under Section 265, and Congress did not limit the Section 265 authority by requiring the agency to consider statutes administered by other agencies that may be impacted by a section 265 order. Indeed, this case bears no resemblance to the cases Plaintiff cites, which involve statutory directives that the agency failed to consider. See Mot. at 15; Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1111 (D.C. Cir. 2019) (agency action was arbitrary and capricious because agency failed to consider changes on affordability and access, even though “availability and affordability” were “long-stated primary tenets for the program,” and the statutory principles underlying the program required making “‘[q]uality services’ . . . ‘available at just, reasonable, and affordable rates’” (first alteration in original) (citation omitted)); Am. Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914, 931 (D.C. Cir. 2017) (statute requires “that an agency’s environmental analysis candidly confront the relevant environmental concerns”). But even if the Court concludes that the Director had an obligation to consider the Order’s impact on the immigration scheme that the CDC itself is not responsible for administering, the Director satisfied that obligation by consulting with DHS and by relying on that agency’s expertise. See Order at 16; cf. Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000) (promulgation of standards “not arbitrary and capricious” because “[a]ll of the expert agencies consulted . . . found the FCC’s approach to be satisfactory”). Again, Plaintiff’s argument ignores that the CDC Order allows for case-by-case exceptions based on the totality of the circumstances. The Director’s decision to rely on customs officers to make the totality-of-circumstances
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determinations is reasonable because DHS has the most expertise with the array of migration and public safety issues that arise at the borders. Plaintiff has not shown that the CDC failed to consider important aspects of the problem when issuing the Order.
3. Public health concerns justify the CDC Order. Plaintiff argues that the CDC Order cannot be justified on public health grounds because “the Title 42 process exempts numerous categories of individuals, such as students and commercial truck drivers, who carry at least as great a risk of COVID-19 as asylum seekers [and] unaccompanied minors.” Mot. at 16. But Plaintiff cannot show that the CDC acted arbitrarily and capriciously by not addressing in a single order all problems created by travel in a global pandemic. The CDC’s measured approach is grounded in its finding that covered aliens without travel documents—in contrast to students and truck drivers who typically arrive at a border with readily verifiable travel authorization—would be held in congregate settings for materially longer periods than other travelers, thus increasing the public health risks for travelers and DHS personnel alike. This Court should dismiss out of hand Plaintiff’s blanket assertion that “public health experts” disagree with the public health rationale of the CDC Order. See id. As discussed above, in APA review, the Court “is not to substitute its judgment for that of the agency,” State Farm, 463 U.S. at 43, 52, nor does the Court ask “whether [an agency’s] decision is the best one possible or even whether it is better than the alternatives,” Elec. Power Supply Ass’n, 136 S. Ct. at 782. Deference to the agency is at its height where, as here, the Court is reviewing the CDC’s expert, science-based predictive public health judgment during a global pandemic. See Jacobson, 197 U.S. at 30 (explaining that “[i]t is no part of the function of a court or a jury to determine” how best to protect the public from a disease); S. Bay United Pentecostal Church, 2020 WL 2813056, at *1 (S. Ct. 2020) (Roberts, C.J., concurring) (explaining that the latitude “to guard and protect” “[t]he safety and the health of the people” “must be especially broad” when acting “in areas fraught with medical and scientific uncertainties”); Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009); Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203, 225 (D.D.C. 2012).
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Plaintiff’s mere policy disagreements with the CDC’s public health determinations do not render the CDC Order arbitrary and capricious. See Inv. Co. Inst. v. Commodity Futures Trading Comm’n, 720 F.3d 370, 380 (D.C. Cir. 2013) (“This argument amounts to nothing more than another policy disagreement with [the agency], so we must reject it.”). Nor does the declaration of amici lend any support to Plaintiff’s argument. The amici suggest that CBP can greatly reduce the risk of transmission if they process Plaintiff in accordance with the CDC’s public health guidance issued for the domestic population, including conducting “appropriate symptoms screening,” “appropriate use of masks, hygiene practices, and social distancing.” Health Expert Amici’s Declaration, ¶ 14. The CDC Director, of course, has stressed the importance of those public health measures. He issued the Order precisely because he concluded that such public health measures are not feasible to implement at ports of entry or in Border Patrol stations. Order at 14 (“Because [ports of entry] and Border Patrol stations are not structured or equipped for quarantine or isolation for COVID-19, DHS’s alternative would be to try to conduct some type of social distancing in congregate holding areas. The numbers of aliens and the size and capacity of the congregate holding areas are not at all conducive to effective social distancing . . . .”). The amici’s suggestion ignores the hard, factual realities of ports of entry and Border Patrol stations and should be rejected out of hand.
In sum, the CDC Order is not arbitrary or capricious. Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office [for] Immigration Review, --- F. Supp. 3d ----, No. 1:20-CV-00852 (CJN), 2020 WL 2026971, at *11 (D.D.C. Apr. 28, 2020) (“In the wake of the first pandemic the United States has faced since the early twentieth century and the rapidly changing facts and circumstances relating to it, the Court cannot say that Defendants’ policies and practices are arbitrary and capricious or otherwise reviewable.”).
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II. THE BALANCE OF HARMS WEIGHS AGAINST ENTRY OF A TEMPORARY RESTRAINING ORDER A. Plaintiff Cannot Show that He Will Suffer Irreparable Harm
Because Plaintiff has failed to establish a likelihood of success on the merits, this Court need not consider the remaining factors for emergency injunctive relief. See Winter, 555 U.S. at 20; Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (“we read Winter at least to suggest if not to hold that a likelihood of success is an independent, free-standing requirement for a preliminary injunction” (internal quotation marks and citation omitted)); see also Nken v. Holder, 556 U.S. 418, 438 (2009) (Kennedy, J., concurring) (“When considering success on the merits and irreparable harm, courts cannot dispense with the required showing of one simply because there is a strong likelihood of the other.”); Guttenberg v. Emery, 26 F. Supp. 3d 88, 100 n.5 (D.D.C. 2014) (“Even a narrow reading of the Court’s holding in Winter supports the view that sliding-scale analysis is obsolete.”). But even if the Court does, the remaining factors support the denial of Plaintiff’s request for emergency relief.
Plaintiff has not shown that “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. That requirement “erects a very high bar for a movant,” Coal. for Common Sense in Gov’t Procurement v. United States, 576 F. Supp. 2d 162, 168 (D.D.C. 2008), and it is a “well known and indisputable principle[]” that an “unsubstantiated and speculative” harm is not an irreparable injury for purposes of injunctive relief, Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). Rather, the harm must be “‘certain and great,’ ‘actual and not theoretical,’ and so ‘[i]mminent that there is a clear and present need for equitable relief to prevent irreparable harm.’” League of Women Voters of United States v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (alteration in original) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
Here, Plaintiff asserts that he will be harmed or even killed by gangs if he is returned to his home country. Mot. at 6. Specifically, he alleges that one of his relatives was beaten in his neighborhood, and that a gang threatened him and told his aunt she must close her store and pay
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the gang after he witnessed a gang murder while helping at that store. Corchado Decl. ¶ 6, ECF No. 2-3. These allegations, however, show only that harm is a “possibility,” when he “must, at minimum, ‘demonstrate that irreparable injury is likely,’” Arriva Med. LLC v. Dep’t of Health & Human Servs., 239 F. Supp. 3d 266, 277 (D.D.C. 2017) (quoting Winter, 555 U.S. at 21). Moreover, contrary to Plaintiff’s belief, the alleged “depriv[ation] . . . of the statutorily guaranteed opportunity to seek bona fide claims,” such as asylum and withholding, Mot. at 6, is not irreparable. That argument “link[s] [his] claim of irreparable harm to [his] showing of a likelihood of success on the merits,” and thus his “failure to establish the latter is fatal to the former.” Am. Civil Liberties Union Found. v. Wash. Metro. Area Transit Auth., 303 F. Supp. 3d 11, 28 (D.D.C. 2018). Finally, the Supreme Court has said in the immigration context that removal “is not categorically irreparable.” Nken, 556 U.S. at 435.
B. The Balance of Harms and the Public Interest Weigh Against an Injunction As for the remaining factors, the balance of harms and the public interest “merge when the Government is the opposing party.” Nken, 556 U.S. at 435. Plaintiff largely justifies his request by assuming that he will succeed on the merits of his claims, see Mot. at 16-17, but as explained above, he is unlikely to do so, “meaning that a preliminary injunction would likely have no effect on public officials’ compliance with the law,” Friends of Animals v. U.S. Bureau of Land Mgmt., 232 F. Supp. 3d 53, 68 (D.D.C. 2017). On the other hand, the harm to the Government and the public’s interest strongly weigh against injunctive relief. “It goes almost without saying, of course, that promoting public health—especially during a pandemic—is in the public interest.” Nat’l Immigration Project of Nat’l Lawyers Guild, 2020 WL 2026971, at *12. Here, the Government has taken action that is necessary to protect public health during the worst pandemic since 1918. At least 116,000 people have died of COVID-19 in the United States, and the death toll continues to rise.15 The public health official charged with
15 See CDC, Corona Virus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html.
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implementing the laws that protect the public health concluded that the CDC Order is in the public interest. See Order at 2, 3, 14. Plaintiff’s requested relief, however, would tie the Government’s hands and prevent it from taking action that, in the opinion of the Nation’s designated medical expert, is necessary to protect the country from the further spread of a highly contagious virus. Cf. Bragdon v. Abbott, 524 U.S. 624, 650 (1998) (“the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority”); see also Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288 (1987). “[W]here[, as here,] the Court is . . . certainly not well-positioned to second-guess those health and safety determinations, the public interest does not point in favor of granting injunctive relief.” Nat’l Immigration Project of Nat’l Lawyers Guild, 2020 WL 2026971, at *12.
On top of putting the American public, DHS personnel, and other travelers, including even unaccompanied minors, at risk and potentially straining the American healthcare system, an injunction would cause additional harm because “[a]ny time [the government] is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury,” Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (citation omitted); see also Nat’l Propane Gas Ass’n v. U.S. Dep’t of Homeland Sec., 534 F. Supp. 2d 16, 20 (D.D.C. 2008). And, as the Supreme Court has recognized, “[t]here is always a public interest in prompt execution of removal orders.” Nken, 556 U.S. at 435.
For all these reasons, the balance of equities tip against granting injunctive relief. CONCLUSION
For the foregoing reasons, this Court should deny Plaintiff’s motion for a temporary restraining order. Dated: June 17, 2019
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Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General
/s/ Jean Lin JEAN LIN (NY Bar 4074530) Special Litigation Counsel KEVIN SNELL BRADLEY CRAIGMYLE Trial Attorneys Civil Division Federal Programs Branch Civil Division, Department of Justice 1100 L Street, N.W. Washington, D.C. 20005 (202) 514-3716 Jean.Lin@usdoj.gov Attorneys for Defendants

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Case 1:20-cv-01509-CJN Document 28 Filed 06/17/20 Page 54 of 54 CERTIFICATE OF SERVICE
I hereby certify that June 17, 2020, I electronically filed a copy of the foregoing. Notice of this filing will be sent via email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Jean Lin JEAN LIN
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

EXHIBIT A

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Federal Register on 03/24/2020 and available online at federalregister.gov/d/2020-06238, and on govinfo.gov

DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 71 [Docket No. CDC-2020-0033] RIN 0920-AA76

Billing Code: 4163-18-P

Control of Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Persons into United States from Designated Foreign Countries or Places for Public Health Purposes AGENCY: Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS). ACTION: Interim final rule with request for comments. SUMMARY: The Centers for Disease Control and Prevention (CDC) within the U.S. Department of Health and Human Services (HHS) issues this interim final rule with request for comments to amend its Foreign Quarantine Regulations. This interim final rule provides a procedure for CDC to suspend the introduction of persons from designated countries or places, if required, in the interest of public health. DATES: Effective date: This interim final rule is effective on 11:59PM EDT on March 20th, 2020.
Comment date: Written comments are invited and must be submitted on or before 30 days from the date of publication of this interim final rule in the Federal Register.
Expiration Date: Unless extended after consideration of submitted comments, this interim final rule will cease to be in effect on the earlier of (1) one year from the publication of this interim final rule, or (2) when the HHS Secretary determines there is no longer a need for

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this interim final rule. The Secretary will publish a document in the Federal Register announcing the expiration date. ADDRESSES: You may submit comments, identified by Docket No. CDC-2020-0033, by the following method:
 Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://regulations.gov, including any personal information provided. For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Any comment that is submitted will be shared with the Department of Homeland Security and the Department of State, and will also be made available to the public. Comments must be identified by RIN 0920-AA76. Because of staff and resource limitations, all comments must be submitted electronically to www.regulations.gov. Follow the “Submit a comment” instructions. Warning: Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines. No deletions, modifications, or redactions will be made to comments received.
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Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including personally identifiable or confidential business information that is included in a comment.
FOR FURTHER INFORMATION CONTACT: Kyle McGowan, Office of the Chief of Staff, Centers for Disease Control and Prevention, 1600 Clifton Road, N.E., MS H21-10, Atlanta, GA 30329. Telephone: 404-498-7000; email: cdcregulations@cdc.gov. SUPPLEMENTARY INFORMATION: The IFR is organized as follows:
Table of Contents I. Background II. Statutory Authority III. Provisions of New § 71.40 IV. Request for Comment V. Rationale for Issuance of an Interim Final Rule with Immediate Effectiveness VI. Regulatory Impact Analysis I. Background
The Centers for Disease Control and Prevention (CDC), a component of the U.S. Department of Health and Human Services (HHS), is amending the regulations that implement section 362 of the Public Health Service (PHS) Act, 42 U.S.C. 265, as part of its response to Coronavirus Disease 2019 (COVID-19). Section 362 provides that if the Secretary1 “determines
1 The statute assigns this authority to the Surgeon General of the Public Health Service. However, Reorganization Plan No. 3 of 1966 abolished the Office of the Surgeon General and transferred all statutory powers and functions of the Surgeon General and other officers of the Public Health Service and of all agencies of or in the Public Health Service to the Secretary of Health, Education, and Welfare, now the Secretary of Health and Human Services, 31 FR 8855, 80 Stat. 1610 (June 25, 1966), see also Pub. L. No. 96-88, 509(b), 93 Stat. 695 (codified at 20 U.S.C.
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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,” he has the authority, in accordance with regulations approved by the President,2 “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.” PHS Act 362, 42 U.S.C. 265. Pursuant to a delegation of the Secretary’s authority, the CDC Director has promulgated regulations under section 362 to suspend the introduction of property into the United States. Current regulations, however, only address suspension of the introduction of property into the United States and the procedures to quarantine or isolate persons. That is, current regulations permit CDC to quarantine or isolate persons entering the United States, but they do not address the suspension of the introduction of persons into the United States under section 362.
CDC’s experience with COVID-19 is that, under some circumstances, quarantine or isolation is not a viable solution for protecting the public health from the introduction of a communicable disease from another country. For example, the arrival in U.S. ports of cruise ships with numerous passengers requiring quarantine or isolation has presented complex logistical challenges, consumed disproportionate agency resources, and taken CDC personnel away from other critical parts of the domestic and international response to COVID-19. To continue to respond promptly and effectively to the public health emergency presented by
3508(b)). References in the PHS Act to the Surgeon General are to be read in light of the transfer of statutory functions and re-designation. Although the Office of the Surgeon General was re-established in 1987, the Secretary of HHS has retained the authorities previously held by the Surgeon General. 2 Executive Order 13295 assigned the functions of the President under section 362 to the Secretary of HHS.
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COVID-19, CDC needs a more efficient regulatory mechanism to exercise its section 362 authority and suspend the introduction of persons who would otherwise pose a serious danger of introduction of COVID-19 into the United States.
Even though COVID-19 is present in certain locations within the United States, the suspension of the introduction of persons into the United States may be required in the interest of public health to avert the danger of further introduction of the disease into the same or other locations in the United States. For example, hypothetically, the introduction of COVID-19 into the United States would occur if two infected persons disembarked in a large metropolitan city in the Midwest from an international flight. Another vector for further introduction of COVID-19 into the United States would be a group of two infected persons who entered that Midwestern state by land after crossing the border from Canada. Suspension of the introduction of those two persons into the United States at the land border would mitigate the serious and increased danger of further introduction of COVID-19 in the United States. The same public health analysis would apply if two infected persons walked across the land border from Canada into a Northeastern State.
Past Experience with Migration and Communicable Disease International travel and migration play a significant role in the global transmission of infectious biological agents or their toxic products that pose risks for vulnerable populations.3 Travelers can serve as unwitting vectors of disease, and thereby increase the risk of communicable disease transmission and of the introduction of communicable disease into the
3 See, e.g., Institute of Medicine (US) Forum on Microbial Threats, “Infectious Disease Movement in a Borderless World: Workshop Summary,” National Academies Press (US); 2010, available at https://www.ncbi.nlm.nih.gov/books/NBK45728/ (hereinafter “Infectious Disease Movement in a Borderless World”); Wilson, ME. Travel and the Emergence of Infectious Diseases. Emerging Infectious Diseases. 1995;1(2):39-46. doi:10.3201/eid0102.950201; Tatem, A. J., Rogers, D. J. & Hay, S. Global Transport Networks and Infectious Disease Spread. Adv. Parasitology 62, 293–343 (2006).
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United States. The risk increases when travelers are in congregate settings, such as carriers (i.e.,
ships, aircraft, trains, and road vehicles) or terminals with shared sitting, sleeping, eating, or recreational areas, all of which are conducive to disease transmission.4
The speed and far reach of global travel were factors in prior outbreaks that expanded to
numerous continents. Examples include: the H1N1 influenza pandemic in 2009; severe acute
respiratory syndrome (SARs) coronavirus in 2003; tuberculosis; measles; Middle East Respiratory Syndrome (MERS-CoV) in 2012; and Ebola Virus Disease in 2014 and 2018.5 All
of these high-consequence diseases posed significant public health risks, especially given the
compressed timeframes in which the outbreaks occurred.
For example, the Federal response to the H1N1 influenza pandemic in 2009 would have
benefitted from the availability of an efficient mechanism for suspending the introduction of
persons into the United States. The initial cases of H1N1 occurred in Mexico, before the first
confirmed cases in the United States. Retrospective research findings in Mexico indicated that
transmission of the virus in Mexico involved person-to-person spread with multiple generations of transmission.6
Like 2009 H1N1, COVID-19 is a pandemic. But the new coronavirus is more infectious than 2009 H1N1.7 Indeed, it appears that the virus may at times be transmitted by persons who
4 E.g., https://wwwnc.cdc.gov/travel/yellowbook/2020/travel-by-air-land-sea/cruise-ship-travel (noting that the “often crowded, semi-enclosed environments onboard ships can facilitate the spread of person-to-person, foodborne, or waterborne diseases”); CDC, “Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Cases,” Updated March 7, 2020, available at https://www.cdc.gov/coronavirus/2019ncov/php/risk-assessment.html. 5 Infectious Disease Movement in a Borderless World (noting that “swine-origin H1N1 has spread globally, its movement hastened by global air travel” and [i]t is easy to see how travelers could play a key role in the global epidemiology of infections that are transmitted from person to person, such as HIV, SARS, tuberculosis, influenza, and measles”) (citing Hufnagel L, Brockmann D, Geisel T. Forecast and Control of Epidemics in a Globalized World. Proceedings of the National Academy of Sciences. 2004;101(42):15124–15129). 6 https://www.cdc.gov/h1n1flu/cdcresponse.htm. 7 See generally, CDC, “2009 H1N1 Pandemic Timeline,” available at https://www.cdc.gov/flu/pandemic-
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are asymptomatic. As discussed below, COVID-19 is also more likely to cause death in highrisk individuals.
In addition, global travel has increased dramatically since prior infectious disease outbreaks. By 2018, international visitations to the U.S. totaled over 20 million more per year than in 2009, when the 2009 H1N1 pandemic occurred, and 10 million more per year than in 2014, when the Ebola Virus Disease outbreak occurred.8 These differences make the availability of an efficient mechanism for exercising the section 362 authority all the more important to the protection of the public health going forward.
The Current Outbreak of COVID-19 COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARS-CoV2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan, Hubei Province, People’s Republic of China (“PRC”). The virus is thought to be transmitted primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes. It may also be transmitted through contact with surfaces or objects. While much is still unknown about the transmission of COVID-19, asymptomatic transmission may also occur. Manifestations of severe disease have included severe pneumonia, acute respiratory distress syndrome (ARDS), septic shock, and multi-organ failure. According to the World Health Organization (WHO), as of March 17, 2020, approximately 4.1% of reported COVID-19 cases have resulted in death globally. This mortality rate is higher among seniors or those with
resources/2009-pandemic-timeline.html; Van Kerkhove, Maria D et al. Estimating age-specific cumulative incidence for the 2009 influenza pandemic: a meta-analysis of A(H1N1)pdm09 serological studies from 19 countries. Influenza and Other Respiratory Viruses vol. 7,5 (2013): 872-86, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5781221/; CDC, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), available at https://www.cdc.gov/coronavirus/2019ncov/hcp/clinical-guidance-management-patients.html. 8 https://travel.trade.gov/outreachpages/download_data_table/Fast_Facts_2018.pdf
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compromised immune systems. Older adults and people who have severe chronic medical conditions like hypertension, heart, lung, or kidney disease are also at higher risk for more serious COVID-19 illness. Early data suggest older people are twice as likely to have serious COVID-19 illness.
As of March 17, 2020, there were over 179,100 cases of COVID-19 globally in over 150 locations (including countries), resulting in over 7,425 deaths; more than 4,225 cases have been identified in the United States, with new cases being reported daily and with at least 75 deaths due to the disease. Continued introduction into the United States of persons from foreign countries where COVID-19 exists presents a danger of disease transmission in congregate settings such as carriers or terminals, which may, in turn, result in a danger of disease transmission in contiguous areas.9
Unfortunately, at this time, there is no vaccine that can prevent infection with COVID-19, nor are there therapeutics for those who become infected. Treatment is currently limited to supportive (or palliative) care to manage symptoms while the body fights off the disease. Hospitalization may be required in severe cases and mechanical respiratory support may be needed in the most severe cases. The ease of COVID-19 transmission presents a risk of a surge in hospitalizations for COVID-19, which would limit hospital capacity available to treat other serious conditions.
Testing is available to confirm suspected cases of COVID-19 infection. Testing generally requires specimens collected from the nose, throat, or lungs; such specimens can only be analyzed in a laboratory setting. However, commercial test results are typically available
9 See supra n.4; see also CDC, Travelers from Countries with Widespread Sustained (Ongoing) Transmission Arriving in the United States, available at https://www.cdc.gov/coronavirus/2019-ncov/travelers/after-travelprecautions.html.
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within three to four days. Currently, the time required to obtain test results—coupled with the incubation period of the disease—makes it impracticable to confirm whether each person moving into the United States is infected with COVID-19 at the time of the movement. Widespread, compulsory Federal quarantines or isolations of such persons pending test results are impracticable due to the numbers of persons involved, logistical challenges, and CDC resource and personnel constraints.
On January 30, 2020, the Director General of WHO declared that the outbreak of COVID-19 is a Public Health Emergency of International Concern under the International Health Regulations.10 The following day, the Secretary of HHS declared COVID-19 a public health emergency under the PHS Act.11 On March 11, 2020, the WHO declared COVID-19 a pandemic. On March 13, 2020, the President issued a Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.12 As of March 16, 2020, all 50 states and several local and territorial jurisdictions declared states of emergency.
Global efforts to slow disease transmission have included sweeping measures to limit travel and exposure to COVID-19. A number of countries, such as Russia, Australia, the Philippines, Japan, and Israel, have imposed stringent restrictions on travelers who have recently been to the PRC. On March 17, 2020, the European Union approved a plan to ban all nonessential travel into its bloc for a minimum of 30 days. Many countries are asking persons to
10 Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV) (January 30, 2020), available at https://www.who.int/newsroom/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov). 11 HHS, “Determination that a Public Health Emergency Exists,” available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx. 12 “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” March 13, 2020, available at https://www.whitehouse.gov/presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
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self-quarantine for 14 days (a period estimated to encompass the incubation period for the disease) following return from foreign countries or places with sustained community transmission.
The President has exercised his authority in section 212(f) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1182(f), to suspend entry into the United States of certain foreign nationals who have recently visited PRC (excluding the Special Administrative Regions of Hong Kong and Macau), the Islamic Republic of Iran, the Schengen Area (comprised of 26 countries in Europe), the United Kingdom (excluding overseas territories outside of Europe), and the Republic of Ireland, within 14 days preceding their entry or attempted entry into the United States due to concerns of person-to-person transmission of COVID-19. CDC has issued Level 3 Travel Health Notices recommending that travelers avoid all nonessential travel to PRC (excluding the Special Administrative Regions of Hong Kong and Macau), the Islamic Republic of Iran, the Republic of Korea, and the Schengen Area. The U.S. Department of State has issued a Global Level 3 Health Advisory directing U.S. citizens to reconsider all travel abroad due to the global impact of COVID-19 and Level 4 Travel Advisories (Do Not Travel) for PRC (excluding the Special Administrative Regions of Hong Kong and Macau), Iran, and certain regions of Italy. In addition, CDC has recommended that travelers, particularly those with underlying health conditions, avoid all cruise ship travel worldwide. The U.S. Department of State has similarly issued guidance that U.S. citizens should not travel by cruise ship at this time. On March 16, 2020, the Federal government announced guidelines recommending that the public should avoid discretionary travel; discretionary shopping trips; social visits; gatherings in groups of more than 10 people; and eating or drinking at bars, restaurants, and food courts. Numerous States and cities have gone further and shut down restaurants, bars, nightclubs, and theaters. On
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March 18, 2020, the United States and Canada announced plans to, by mutual consent, close the U.S.-Canadian border to nonessential travel.
The COVID-19 pandemic highlights why CDC needs an efficient regulatory mechanism to suspend the introduction of persons who would otherwise increase the serious danger of the introduction of a communicable disease into the United States. Section 212(f) of the Immigration and Nationality Act (“INA”) applies to the “entry” of aliens, but section 362 instead provides the authority to prohibit the “introduction” of persons into the United States. Despite the unprecedented global efforts at mitigating or slowing the transmission of COVID-19, cases of COVID-19 have rapidly propagated and multiplied, crossing international borders with ease. As of March 17, 2020, CDC reported that 229 of the confirmed cases of COVID-19 in the United States with an established source of exposure were travel-related as opposed to community transmission, accounting for almost half of the 474 cases with an established source of exposure; another 3,752 cases remain under investigation. As of March 14, 2020, travelers from Japan have exported at least 20 COVID-19 cases to eight countries. As of March 14, 2020, travelers from the Islamic Republic of Iran have exported at least 145 COVID-19 cases to 17 other countries, as reported by the WHO, and travelers from the Schengen Area have exported 624 COVID-19 cases to 70 countries, including to the United States. In the near future, persons traveling from other foreign countries and jurisdictions may compound the serious danger of further introduction of COVID-19 into the United States.
To summarize, CDC knows that COVID-19 infection transmits easily, spreads quickly through global travel, and can have a high mortality rate for some of the most vulnerable members of society. At this time, there is no vaccine, therapeutic, or rapid testing for the disease. CDC needs a robust, efficient mechanism for exercising its authority under section 362
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and other applicable authorities to suspend the introduction of persons into the United States, should the public health require it. In issuing orders pursuant to this interim final rule, CDC would coordinate with the Secretary of State in order to ensure compliance with the international legal obligations of the United States and to take due account of U.S. national and security interests.
Other Public Health Risks Beyond the current COVID-19 pandemic, the suspension authority is also critical to CDC because there is always a risk of another emerging, or re-emerging, communicable disease that may harm the American public. One such risk is pandemic influenza (as opposed to seasonal influenza), which occurs when a novel, or new, influenza virus strain spreads over a wide geographic area and affects an exceptionally high proportion of the population. In such circumstances, the strain of virus is new, there is usually no available vaccine, and humans do not typically have immunity to the virus, often resulting in a more severe illness. The severity and unpredictable nature of an influenza pandemic requires public health systems to prepare constantly for the next occurrence. Whenever a new strain of influenza virus appears, or a major change to a preexisting virus occurs, individuals may have little or no immunity, which can lead to a pandemic when the virus passes easily from human to human and causes serious illness or death. The most recent influenza pandemics include H1N1 in 2009-2010, the 1968-1969 Hong Kong Flu, the 1957-1958 Asian Flu, and the 1918-1919 Spanish Flu. It is difficult to predict the impact that another emerging, or re-emerging, communicable disease would have on the U.S. public health system. The 2009 H1N1 pandemic caused between 100,000 and 600,000 deaths worldwide,13 while the 1918-1919 Spanish Flu was estimated to
13 https://www.cdc.gov/flu/pandemic-resources/2009-h1n1-pandemic.html.
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have caused over 50 million deaths worldwide.14 Although advances in health care quality have greatly improved since 1918, the dramatic increases in global mobility in the 21st century have increased the rate at which a communicable disease can spread. Modern pandemics, spread through international travel, can engulf the world in three months or less. Moreover, pandemics can last from 12 to 18 months and are not considered one-time events.
The introduction of another emerging, or re-emerging, communicable disease into the United States is always a risk. The PHS Act section 362 suspension authority would be critical to any effort by CDC and its Federal, State, and local partners to contain or mitigate the risk. CDC expects to mitigate the risk in the future by issuing a Final Rule, after considering comments, to implement a permanent regulatory structure regarding the potential suspension of introduction of persons into the United States in the event a serious danger of the introduction of communicable disease arises in the future.
II. Statutory Authority The primary legal authority supporting this rulemaking is section 362 of the PHS Act,
which is codified at 42 U.S.C. 265. Under section 362, the Secretary15 has the authority—if he were to determine that the existence of a communicable disease in a foreign country creates a serious danger of the introduction of such disease into the United States, and that this danger is increased by the introduction of persons or property from such country such that suspension of introduction is necessary to protect the public health—to suspend, in accordance with regulations approved by the President,16 such introduction for determined periods of time.
14 https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html. 15 See supra at n.1. 16 See supra at n.2.
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In addition to section 362, other sections of the PHS Act are relevant to this rulemaking,
including section 311, 42 U.S.C. 243; section 361, 42 U.S.C. 264; section 365, 42 U.S.C. 268;
and section 367, 42 U.S.C. 270. Section 311 authorizes the Secretary to accept State and local
assistance in the enforcement of quarantine rules and regulations and to assist States and their
political subdivisions in the control of communicable diseases. Section 361 authorizes the
Secretary to make and enforce such regulations that in the Secretary’s judgment are necessary to
prevent the introduction, transmission, or spread of communicable diseases from foreign
countries into the United States. It also permits the “apprehension, detention, or conditional
release of individuals” in order to prevent the “introduction, transmission, or spread” of such
communicable diseases as may be specified from time to time in Executive Orders of the
President upon the recommendation of the Secretary, in consultation with the Surgeon General.
Section 365 provides that it shall be the duty of designated customs officers and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations.17 Section 367 authorizes
the application of certain sections of the PHS Act and promulgated regulations (including
penalties and forfeitures for violations of such sections and regulations) to air navigation and
aircraft to such extent and upon such conditions as deemed necessary for safeguarding public health.18
17 The terms “officer of the customs” and “customs officer” are defined by statute to mean, “any officer of the United States Customs Service of the Treasury Department (also hereinafter referred to as the “Customs Service”) or any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person, including foreign law enforcement officers, authorized by law or designated by the Secretary of the Treasury to perform any duties of an officer of the Customs Service.” 19 U.S.C. 1401(i). Although this provision refers to the Secretary of the Treasury, the Homeland Security Act transferred to the Secretary of Homeland Security all “the functions, personnel, assets, and liabilities of . . . the United States Customs Service of the Department of the Treasury, including the functions of the Secretary of the Treasury relating thereto . . . [,]” 6 U.S.C. 203(1), such that reference to the Secretary of the Treasury should be read to reference the Secretary of Homeland Security. 18 HHS quarantine authorities also apply to vessels. See, e.g., PHS Act 364 (providing for quarantine stations at anchorages and vessel quarantine inspections), 366 (providing for bills of health for vessels, authorizing issuance of regulations applicable to vessels, and certificate of a quarantine officer before a vessel can enter any U.S. port to discharge cargo or land passengers).
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III. Provisions of New § 71.40 This interim final rule will implement section 362 and other applicable provisions of the
PHS Act to enable the CDC Director to suspend the introduction of persons into the United States consistent with the statute and applicable law.
Section 71.40(a) sets forth the statutory requirements for the CDC Director to suspend the introduction of persons into the United States. The provision establishes that the CDC Director may prohibit the introduction into the United States of persons from designated foreign countries (or one or more political subdivisions and regions thereof) or places, only for such period of time that the Director deems necessary for the public health, 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.
Section 71.40(b) sets forth definitions of several terms used in § 71.40. CDC defines the “introduction into the United States of persons” from a foreign country (or one or more political subdivisions or regions thereof) or place” as the movement of a person from a foreign country (or one or more political subdivisions or regions thereof) or a place, or series of foreign countries or places, into the United States so as to bring the person into contact with others 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 the communicable disease to persons or
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property, even if the communicable disease has already been introduced, transmitted, or is spreading within the United States.
Section 362 refers to the “introduction of persons” from foreign countries. CDC defines “introduction into the United States of persons” from a foreign country (including one or more political subdivisions or regions thereof) or place 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 for purposes of § 71.40.
Similarly, Section 362 refers to the “introduction of [a communicable disease] into the United States.” CDC defines “serious danger of the introduction of such communicable disease into the United States” to mean 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. CDC establishes this definition to clarify that, even if persons or property (e.g. animals) in the United States are already infected or contaminated with a communicable disease in some localities, the potential for introduction of additional vectors that would introduce, transmit, or spread the disease in the same or different localities can present a serious danger of the introduction of the disease into the United States. Suspension of the introduction of persons into the United States may be required, in the interest of public health, to avert the increased danger that results from further introduction, transmission, or spread of the disease within the United States.
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Finally, for purposes of this section, CDC defines the term “place” to include any location specified by the Director, including any carrier, whatever the carrier’s nationality. CDC does this in order to remove all doubt that when this interim final rule refers to “place,” it refers not just to territory within or outside of a country, but also to carriers, as that term is defined in 42 C.F.R. 71.1, whatever the carrier’s nationality.
CDC will establish the requirement to suspend the introduction of persons into the United States from certain designated places for certain periods of time by means of an order executed by the CDC Director. In § 71.40(c), CDC describes the required contents of such order. In any § 71.40 order, the CDC Director must designate:
 The foreign countries (or one or more designated political subdivisions or regions thereof) or places from which the introduction of persons is being suspended.
 The period of time or circumstances under which the introduction of any persons or class of persons into the United States is being suspended.
 The conditions under which that prohibition on introduction should be effective in whole or in part, including any relevant exceptions that the CDC Director determines are appropriate.
CDC might at times rely on (1) State and local authorities who agree to help implement orders issued pursuant to § 71.40, or (2) other Federal agencies to implement and execute the orders issued under this section. Accordingly, in § 71.40(d), CDC establishes that, before issuing any § 71.40 order, CDC may coordinate with the appropriate State and local authorities or other Federal agency (or agencies). If the order will be implemented in whole or in part by State and local authorities under 42 U.S.C. 243(a), the Director’s order may explain the procedures and standards by which those State or local authorities are expected to aid in the
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order’s enforcement. Similarly, if the order will be implemented in whole or in part by designated customs officers (including officers of the Department of Homeland Security with U.S. Customs and Border Protection who exercise the authorities of customs officers) or the United States Coast Guard under 42 U.S.C. 268(b), or another Federal department or agency, the CDC Director, in coordination with the Secretary of Homeland Security or the head of the other applicable department or agency, shall 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.
Section 71.40(e) provides that this section does not apply to members of the armed forces of the United States and associated personnel for whom the Secretary of Defense provides assurance to the Director that the Secretary of Defense, through measures such as quarantine, isolation, or other measures maintaining control over such individuals, is preventing the risk of transmission of a communicable disease to persons or property in the United States. CDC includes this exception because the Secretary of Defense has authority and means to prevent the introduction of a communicable disease into the United States from his personnel returning from foreign countries. Therefore, this interim final rule need not apply to Department of Defense personnel.
Although section 362 applies to “persons,” this interim final rule will not apply to U.S. citizens or lawful permanent residents. Congress provided CDC with the authority to prohibit the introduction of persons who would increase a serious danger of introducing into the United States a communicable disease, when required in the interest of the public health. 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
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caused by the introduction of U.S. citizens or lawful permanent residents into the United States. Section 71.40(f) therefore explains that this interim final rule shall not apply to U.S. citizens and lawful permanent residents. Determining the appropriate protections for U.S. citizens and lawful permanent aliens requires a complex balancing of numerous interests and would benefit from additional consideration and public comment. HHS does not want such concerns to delay the issuance of this interim final rule, which would enable the CDC Director to issue orders that would have the effect of slowing the introduction, transmission, and spread of COVID-19 in the United States. V. Rationale for Issuance of an Interim Final Rule with Immediate Effectiveness
Agency rulemaking is governed by section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). Section 553(b) requires that, unless the rule falls within one of the enumerated exemptions, HHS must publish a notice of proposed rulemaking in the Federal Register that provides interested persons an opportunity to submit written data, views, or arguments, prior to finalization of regulatory requirements. Section 553(b)(3)(B) of the APA authorizes a department or agency to dispense with the prior notice and opportunity for public comment requirement when the agency, for “good cause,” finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. In addition, because this interim final rule represents a critical part of the dialogue between the United States and the Governments of Mexico and Canada in preventing the spread of COVID-19 along our shared borders, it involves a “foreign affairs function of the United States.” 5 U.S.C. 553(a)(1).
As noted above, the United States and numerous other countries have taken unprecedented measures to try to contain or slow the transmission or spread of COVID-19. Such public health actions, especially the actions by the President and the Secretary, have slowed the
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introduction and transmission of the disease into the United States, which has benefitted the public health, preserved limited public and private resources, and given the U.S. public health system additional time to implement further measures to protect and support the public.
Nevertheless, these measures have not completely stopped global travelers, and other persons crossing from one country into another country, from spreading COVID-19 across national boundaries and around the globe. The introduction of persons from foreign countries with COVID-19 outbreaks is continuing to cause the introduction of COVID-19 into disparate locations within the United States. The suspension authority is therefore critical to slowing the introduction of COVID-19 into such disparate locations within the United States. The United States is in a phase where suspending the introduction of persons from certain countries or places may be required in the interest of the public health, because it could still materially reduce the transmission and spread of COVID-19 in the United States. Because persons can have COVID19 and be asymptomatic at the time of introduction into the United States, and because the completion of testing for COVID-19 may take three to four days, it is impracticable to confirm who is infected with COVID-19 and who is not infected with COVID-19 as persons move into the United States. Similarly, Federal quarantines or isolations of all such persons pending test results would be impracticable due to the numbers of persons involved, logistical challenges, and CDC resource and personnel constraints.
In addition, whereas section 212(f) of the INA applies to the “entry” of aliens, section 362 applies to the “introduction” of persons into the United States. Therefore, although 212(f) has been effective in slowing the transmission or spread of COVID-19 in the United States, section 362 provides CDC with a mechanism tied specifically to persons who increase the danger of introducing COVID-19 into the United States.
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Given 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.
Pursuant to 5 U.S.C. 553(b)(3)(B), and for the reasons stated above, HHS therefore concludes that there is good cause to dispense with prior public notice and the opportunity to comment on this rule before finalizing this rule. For the same reasons, HHS has determined, consistent with section 553(d) of the APA, that there is good cause to make this interim final rule effective immediately upon filing at the Office of the Federal Register. IV. Request for Comment
HHS requests comment on all aspects of this interim final rule, including its likely costs and benefits and the impacts that it is likely to have on the public health, as compared to the current requirements under 42 CFR Part 71. VI. Regulatory Impact Analysis
Executive Orders 12866 and 13563 and Regulatory Flexibility Act Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a regulation (1) having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as “economically
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significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563. CDC, however, is proceeding under the emergency provision at Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously during the current public health emergency to limit the number of new cases of COVID-19.
The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the APA or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register. 5 U.S.C. 603, 604. Specifically, the RFA normally requires agencies to describe the impact of a rulemaking on small entities by providing a regulatory impact analysis. Such analysis must address the consideration of regulatory options that would lessen the economic effect of the rule on small entities. The RFA defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a nonprofit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000. 5 U.S.C. 601(3)–(6). Except for such small government jurisdictions, neither State nor local governments are “small entities.” Similarly, for purposes of the RFA, individual persons are not small entities. The requirement to conduct a regulatory impact analysis does not apply if the head of the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The agency must, however, publish the certification in the Federal
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Register at the time of publication of the rule, “along with a statement providing the factual basis for such certification.” Id. If the agency head has not waived the requirements for a regulatory flexibility analysis in accordance with the RFA’s waiver provision, and no other RFA exception applies, the agency must prepare the regulatory flexibility analysis and publish it in the Federal Register at the time of promulgation or, if the rule is promulgated in response to an emergency that makes timely compliance impracticable, within 180 days of publication of the final rule. 5 U.S.C. 604(a), 608(b).19
This interim final rule establishes a regulatory mechanism for the exercise of the PHS Act section 362 suspension authority, which directly applies against persons and not State, local, or tribal governments, or the private sector. Accordingly, HHS and CDC believe that this interim final rule would likely impact only persons, and that it would, therefore, not have a significant economic impact on a substantial number of small entities. In addition, for the reasons set forth in this document pertaining to the COVID-19 outbreak, the Secretary finds that this interim final rule is being promulgated in response to an emergency that makes timely compliance with the provisions of section 604 impracticable. CDC will assess the potential impacts–including economic effects–of this action on all small entities. Based on that assessment, the Secretary will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.
Unfunded Mandates Reform Act
19 An agency head may delay the completion of the regulatory impact analysis requirements for a period of not more than 180 days after the date of publication in the Federal Register of a final rule by publishing in the Federal Register, not later than such date of publication, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes timely compliance with such requirements impracticable. If the agency has not prepared a final regulatory analysis within 180 days from the date of publication of the final rule, the RFA provides that the rule shall lapse and have no effect and shall not be re-promulgated until a final regulatory flexibility analysis has been completed by the agency. 5 U.S.C. 608(b).
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Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act) (2 U.S.C. 1532) requires that covered agencies prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. Currently, that threshold is approximately $154 million. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires covered agencies to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. HHS has determined that this interim final rule is not expected to result in expenditures by State, local, and tribal governments, or by the private sector, of $154 million or more in any one year because it only establishes a regulatory mechanism for the exercise of the PHS Act section 362 suspension authority, which applies against persons and not State, local, or tribal governments, or the private sector. Accordingly, HHS has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.
National Environmental Policy Act (NEPA)
HHS has determined that the amendments to 42 CFR Part 71 will not have a significant impact on the human environment.
Executive Order 12988: Civil Justice Reform HHS has reviewed this rule under Executive Order 12988 on Civil Justice Reform and has determined that this interim final rule meets the standard in the Executive Order. Executive Order 13132: Federalism This interim final rule has been reviewed under Executive Order 13132, Federalism. Under 42 U.S.C. 264(e), Federal public health regulations do not preempt State or local public
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health regulations, except in the event of a conflict with the exercise of Federal authority. Other than to restate this statutory provision, this rulemaking does not alter the relationship between the Federal government and State/local governments as set forth in 42 U.S.C. 264. The longstanding provision on preemption in the event of a conflict with Federal authority (42 CFR 70.2) is left unchanged by this rulemaking. Furthermore, there are no provisions in this regulation that impose direct compliance costs on State and local governments. Therefore, HHS believes that the interim final rule does not warrant additional analysis under Executive Order 13132.
Plain Language Act of 2010 Under the Plain Language Act of 2010 (Pub. L. 111-274, October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS/CDC has attempted to use plain language in promulgating this interim final rule, consistent with the Federal Plain Writing Act guidelines. Congressional Review Act The Congressional Review Act defines a “major rule” as “any rule that the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.” 5 U.S.C. 804(2). This Office of Information and Regulatory Affairs has determined that this interim final rule is a major rule for purposes of the Congressional Review
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Act. As this rule is promulgated under the “good cause” exemption of the Administrative Procedure Act, there is not a delay in its effective date under the Congressional Review Act.
Assessment of Federal Regulation and Policies on Families Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal departments and agencies to determine whether a proposed policy or regulation could affect family well-being. If the determination is affirmative, then the Department or agency must prepare an impact assessment to address criteria specified in the law. HHS has determined that this interim final rule will not have an impact on family well-being, as defined in the Act.
Paperwork Reduction Act of 1995 In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR 1320 Appendix A.1), HHS has reviewed this interim final rule and has determined that there are no new collections of information contained therein. List of Subjects in 42 CFR Part 71 Apprehension, Communicable diseases, Conditional release, CDC, Ill person, Isolation, Noninvasive, Public health emergency, Public health prevention measures, Qualifying stage, Quarantine, Quarantinable communicable disease. For the reasons set forth in the preamble, the Department of Health and Human Services, on behalf of the Centers for Disease Control and Prevention, amends 42 CFR part 71 as follows: PART 71 — FOREIGN QUARANTINE 1. The authority citation for part 71 continues to read as follows: Authority: Secs. 215 and 311 of the Public Health Service (PHS) Act, as amended (42 U.S.C. 216, 243); secs. 361-369, PHS Act, as amended (42 U.S.C. 264-272).
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2. Add § 71.40 to Subpart D of part 71 to read as follows: § 71.40 Prohibiting the introduction of persons from designated foreign countries and places into the United States. (a) The Director may prohibit the introduction into the United States of persons from designated foreign countries (or one or more political subdivisions and regions thereof) or places, only for such period of time that the Director deems necessary for the public health, 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. (b) For purposes of this section:
(1) Introduction into the United States of persons from a foreign country (or one or more political subdivisions or regions thereof) or place means the movement of a person from a foreign country (or one or more political subdivisions or regions thereof) or place, or series of foreign countries or places, into the United States so as to bring the person into contact with persons in the United States, or so as to cause the contamination of property in the United States, in a manner that the Director determines to present a risk of transmission of a communicable disease to persons or property, even if the communicable disease has already been introduced, transmitted, or is spreading within the United States;
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(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. (c) In any order issued under this section, the Director shall designate the foreign countries (or one or more political subdivisions or regions thereof) or places; the period of time or circumstances under which the introduction of any persons or class of persons into the United States shall be suspended; and the conditions under which that prohibition on introduction, in whole or in part, shall be effective, including any relevant exceptions that the Director determines are appropriate. (d) Before issuing any order under this section, the Director may coordinate with State and local authorities and other Federal departments or agencies as he deems appropriate in his 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 may 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 officers of the Department of Homeland Security with U.S. Customs and Border Protection, who exercise the authorities of customs officers) 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,
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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 members of the armed forces of the United States and associated personnel for whom the Secretary of Defense provides assurance to the Director that the Secretary of Defense, through measures such as quarantine, isolation, or other measures maintaining control over such individuals, is preventing the risk of transmission of a communicable disease into the United States. (f) This section shall not apply to U.S. citizens and lawful permanent residents.

Alex M. Azar II,

Secretary,

Department

of

Health

and

Human

[FR Doc. 2020-06238 Filed: 3/20/2020 4:15 pm; Publication Date: 3/24/2020]

Services.

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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

EXHIBIT B

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US DEPARTMENT OF HEALTH AND HUMAN SERVICES CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)
ORDER UNDER SECTIONS 362 & 365 OF THE PUBLIC HEALTH SERVICE ACT (42 U.S.C. §§ 265, 268):
ORDER SUSPENDING INTRODUCTION OF CERTAIN PERSONS FROM COUNTRIES
WHERE A COMMUNICABLE DISEASE EXISTS
I. Purpose and Application
I issue this order pursuant to Sections 362 and 365 of the Public Health Service (PHS) Act, 42 U.S.C. §§ 265, 268, and their implementing regulations, which authorize the Director of the Centers for Disease Control and Prevention (CDC) to suspend the introduction of persons into the United States when the Director determines that the existence of a communicable disease in a foreign country or place creates a serious danger of the introduction of such disease into the United States and the danger is so increased by the introduction of persons from the foreign country or place that a temporary suspension of such introduction is necessary to protect the public health.
This order applies to 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, subject to the exceptions detailed below. The danger to the public health that results from the introduction of such persons into congregate settings at or near the borders is the touchstone of this order.
This order is necessary to protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019 (COVID-19) into the land POEs, and the Border Patrol stations between POEs, at or near the United States borders with Canada and Mexico. Those facilities are operated by U.S. Customs and Border Protection (CBP), an agency within the U.S. Department of Homeland Security (DHS). This order is also necessary to protect the public health from an increase in the serious danger of the introduction of COVID-19 into the interior of the country when certain persons are processed through the same land POEs and Border Patrol stations and move into the interior of the United States.
There is a serious danger of the introduction of COVID-19 into the land POEs 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 United States land borders with Canada and Mexico. Those persons are subject to immigration processing in the land POEs and Border Patrol stations. Many of those persons (typically aliens who lack valid travel documents and are therefore inadmissible) are held in the common areas of the facilities, in close proximity to one another, for hours or days, as they undergo immigration processing. The common areas of such facilities were not designed for, and are not equipped to, quarantine, isolate, or enable social distancing by persons who are or may be infected with COVID-19. The introduction into

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 3 of 44
congregate settings in land POEs and Border Patrol stations of persons from Canada or Mexico increases the already serious danger to the public health to the point of requiring a temporary suspension of the introduction of such persons into the United States.
The public health risks of inaction are stark. They include transmission and spread of COVID-19 to 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.
These risks are troubling because POEs and Border Patrol stations were not designed and are not equipped to deliver medical care to numerous persons, nor are they capable of providing the level of care that vulnerable populations with COVID-19 may require. Indeed, CBP typically transfers persons with acute presentations of illness to local or regional healthcare providers for treatment. Outbreaks of COVID-19 in land POEs or Border Patrol stations would lead to transfers of such persons to local or regional health care providers, which would exhaust the local or regional healthcare resources, or at least reduce the availability of such resources to the domestic population, and further expose local or regional healthcare workers to COVID-19. [1] The continuing availability of healthcare resources to the domestic population is a critical component of the Federal government’s overall public health response to COVID-19. Action is required.
As stated above, this order applies to persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land POE or Border Patrol station at or near the United States border with Canada or Mexico, subject to exceptions. This order does not apply to U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed forces of the United States, and associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE. Additionally, this order does not apply to persons whom customs officers of DHS determine, with approval from a supervisor, 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. DHS shall consult with CDC concerning how these types of case-by-case, individualized exceptions shall be made to help ensure consistency with current CDC guidance and public health assessments.
DHS has informed CDC that persons who are traveling from Canada or Mexico (regardless of their country of origin), and who must be held longer in congregate settings in POEs or Border Patrol stations to facilitate immigration processing, would typically be aliens seeking to enter the United States at POEs 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. This order is intended to cover all such aliens.
[1] An outbreak of COVID-19 among CBP personnel in land POEs or Border Patrol stations would impact CBP operations negatively. Although not part of the CDC public health analysis, it bears emphasizing that the impact on CBP could reduce the security of U.S. land borders and the speed with which cargo moves across the same.
2

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 4 of 44
For simplicity, I shall refer to the persons covered by this order as “covered aliens.” I suspend the introduction of all covered aliens into the United States for a period of 30 days, starting from the date of this order. I may extend this order if necessary to protect the public health.
II. Factual Basis for Order1
1. COVID-19 is a global pandemic that has spread rapidly
COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARS-CoV2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan, Hubei Province, People’s Republic of China (China).2
COVID-19 appears to spread easily and sustainably within communities.3 The virus is thought to transfer primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes; it may also transfer through contact with surfaces or objects contaminated with these droplets.4 There is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others before exhibiting symptoms.5 The ease of transmission presents a risk of a surge in hospitalizations for COVID-19, which would reduce available hospital capacity. Such a surge has been identified as a likely contributing factor to the high mortality rate for COVID-19 cases in Italy and China.6
Symptoms include fever, cough, and shortness of breath, and typically appear 2-14 days after exposure.7 Manifestations of severe disease have included severe pneumonia, acute respiratory distress syndrome (ARDS), septic shock, and multi-organ failure.8 According to the WHO, approximately 3.4% of reported COVID-19 cases have resulted in death globally.9 This
1 Given the dynamic nature of the public health emergency, CDC recognizes that the types of facts and data set forth in this section may change rapidly (even within a matter of hours). The facts and data cited by CDC in this order represent a good-faith effort by the agency to present the current factual justification for the order. 2 Centers for Disease Control and Prevention, Situation Summary (Mar. 15, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html. 3 Centers for Disease Control and Prevention, Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings (Mar. 10, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/infection-control/control-recommendations.html. 4 Id. 5 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (Mar. 7, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/hcp/clinical-guidance-management-patients.html. 6 Ariana Eunjung Cha, Washington Post, Spiking U.S. Coronavirus Cases Could Force Rationing Decisions Similar to Those Made in Italy, China (Mar. 15, 2020), available at https://www.washingtonpost.com/health/2020/03/15/coronavirus-rationing-us/. 7 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19) (Mar. 16, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html. 8 Supra, note 4. 9 WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 3, 2020), available at
3

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 5 of 44

mortality rate is higher among older adults or those with compromised immune systems.10 Older
adults and people who have severe chronic medical conditions like heart, lung, or kidney disease are also at higher risk for more serious COVID-19 illness.11 Early data suggest older people are twice as likely to have serious COVID-19 illness.12

As of March 17, 2020, there were over 179,112 cases of COVID-19 globally in 150
locations, resulting in over 7,426 deaths; more than 4,226 cases have been identified in the United States, with new cases being reported daily and over 75 deaths due to the disease.13

Unfortunately, at this time, there is no vaccine against COVID-19, nor are there any approved therapeutics available for those who become infected. Treatment is currently limited to supportive care to manage symptoms. Hospitalization may be required in severe cases and mechanical respiratory support may be needed in the most severe cases. Testing is available to confirm suspected cases of COVID-19 infection. Testing requires specimens collected from the nose, throat or lungs; specimens can only be analyzed in a laboratory setting. At present, results are typically available within three to four days.14 There is currently no rapid test for COVID-19 that can provide results at the time of sample collection, although efforts are underway to develop such a test.

On January 30, 2020, the Director General of the WHO declared COVID-19 to be a Public Health Emergency of International Concern under the International Health Regulations.15 The
following day, the Secretary of Health and Human Services (HHS) declared that COVID-19 is a public health emergency under the Public Health Service Act (PHSA).16 On March 11, 2020, the

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid19---3-march-2020.

10 Supra, note 4.

11 Id.

12 Id.

13 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases in U.S. (Mar. 17, 2020),

available

at

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-in-us.html;

World Health Organization, Coronavirus disease 2019 (COVID-19) Situation Report – 57 (Mar. 17, 2020), available

at

https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200317-sitrep-57-covid-

19.pdf?sfvrsn=a26922f2_2.https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200317-

sitrep-57-covid-19.pdf?sfvrsn=a26922f2_2.

14 Centers for Disease Control and Prevention, Interim Guidelines for Collecting, Handling, and Testing Clinical Specimens from Persons for Coronavirus Disease 2019 (COVID-19) (Mar. 13, 2020), available at https://www.cdc.gov/coronavirus/2019-nCoV/lab/guidelines-clinical-specimens.html.

15 World Health Organization, Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCOv) (January 30, 2020), https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-healthregulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).

16 U.S. Dept. of Health and Human Services, Office of the Assistant Secretary for Preparedness and Response, Determination that a Public Health Emergency Exists (January 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.

4

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 6 of 44

WHO officially classified the global COVID-19 outbreak as a pandemic.17 On March 13, 2020, the President issued a Presidential Declaration that COVID-19 constitutes a National Emergency.18 Likewise, all U.S. states, territories, and the District of Columbia have declared a state of emergency in response to the growing spread of COVID-19.19
Global efforts to slow the spread of COVID-19 have included sweeping travel limitations. Countries such as Japan, Australia, Israel, Russia, and the Philippines have imposed stringent restrictions on travelers who have recently been in China, the epicenter of the pandemic. Similar travel restrictions have since been imposed on individuals from places experiencing substantial outbreaks, including the Islamic Republic of Iran (Iran), South Korea, and Europe. In many countries, individuals are being asked to self-quarantine for 14 days—the outer limit of the COVID-19’s estimated incubation period—following return from a foreign country with sustained community transmission.20
In the United States, the President has suspended the entry of most travelers from China (excluding Hong Kong and Macau), Iran, the Schengen Area of Europe,21 the United Kingdom (excluding overseas territories outside of Europe), and the Republic of Ireland, due to COVID19.22 CDC has issued Level 3 Travel Health Notices recommending that travelers avoid all nonessential travel to China (excluding Hong Kong and Macau), Iran, South Korea, and most of Europe.23 The U.S. Department of State has issued a global Level 4 Do Not Travel Advisory advising travelers to avoid all international travel due to the global impact of COVID-19. 24 In

17 World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 (March 11, 2020, https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020.

18 Message to Congress on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020) https://www.whitehouse.gov/briefings-statements/message-congress-declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.

19 National Governors Assn., Coronavirus: What You Need to Know, (last updated March 17, 2020) https://www.nga.org/coronavirus/#states.

20 James Asquith, [Update] Complete Coronavirus Travel Guide – The Latest Countries Restricting Travel, (March 16, 2020), https://www.forbes.com/sites/jamesasquith/2020/03/15/complete-coronavirus-travel-guide-the-latestcountries-restricting-travel/#2fdc3b7d715b.

21 For purposes of this order, the Schengen Area comprises 26 European states: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

22 Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus (March 14, 2020) https://www.whitehouse.gov/presidentialactions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risktransmitting-coronavirus-2/.

23 Centers for Disease Control and Prevention, Travelers’ Health, COVID – 19 in Europe, Warning – Level 3, Avoid Nonessential Travel – Widespread Ongoing Transmission (March 11, 2020) https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-europe.

24 U.S. Dept. of State, Bureau of Consular Affairs, Global Level 4 Health Advisory – Reconsider Travel (March 15,

2020)

https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-

advisory-issue.html.

5

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 7 of 44

addition, CDC has recommended that travelers, particularly those with underlying health conditions, avoid all cruise ship travel worldwide.25 The U.S. Department of State has similarly issued guidance that U.S. citizens should not travel by cruise ship at this time.26

The Federal government announced guidelines stating that the public should avoid
discretionary travel; shopping trips; social visits; gatherings in groups of more than 10 people; and eating or drinking at bars, restaurants, and food courts.27 Numerous states and
localitieslocalitieslocalitieslocalitieslocalitieslocalitieslocalities have gone further and shut down
restaurants, bars, nightclubs, and theaters. For example, 6 counties surrounding San Francisco, California have issued shelter in place orders impacting nearly 7 million residents.28 Similar measures are being considered in other cities.29

2. COVID-19 exists in Canada and Mexico

i. Persons from Canada and other foreign countries where COVID-19 exists cross into the United States from Canada frequently

As of March 17, 2020, Canada has reported 424 confirmed cases of COVID-19, of which
the Canadian government believes 74% are travel-related with an additional 6% being close contacts of travelers.30 This is a 115% increase in confirmed cases in four days.31 The provinces
of Ontario and British Columbia have reported the most COVID-19 cases, with Ontario reporting a 29% increase in confirmed cases in a single day.32 Canada’s Chief Public Health Officer stated
that community transmission of COVID-19 is occurring in multiple provinces and Ottawa public

25 Centers for Disease Control and Prevention, Travelers’ Health, COVID – 19 and Cruise Ship Travel, Warning – Level 3, Avoid Nonessential Travel (March 17, 2020) https://wwwnc.cdc.gov/travel/notices/warning/coronaviruscruise-ship.

26 U.S. Dept. of State, Bureau of Consular Affairs, Current Outbreak of Coronavirus Disease 2019 (March 14, 2020) https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html.

27 The White House & Centers for Disease Control and Prevention, 15 Days to Slow the Spread (Mar. 15, 2020),

available

at

https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-

guidance_8.5x11_315PM.pdf.

28 Erin Allday, San Francisco Chronicle, Bay Area Orders ‘Shelter in Place’ Only Essential Businesses Open in 6 Counties (Mar. 18, 2020), available at https://www.sfchronicle.com/local-politics/article/Bay-Area-must-shelter-inplace-Only-15135014.php.

29 Noah Higgins-Dunn & William Feuer, CNBC, New Yorkers Should be Prepared for a ‘Shelter-In-Place,’ Mayor Bill de Blasio says (Mar. 18, 2020), available at https://www.cnbc.com/2020/03/17/new-yorkers-should-be-preparedfor-a-shelter-in-place-order-mayor-bill-de-blasio-says.html.

30 Government of Canada, Coronavirus disease (COVID-19): Outbreak update (Mar. 15, 2020), https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html.

31 National Post, The Latest Numbers of COVID-19 Cases in Canada as of March 13, 2020 (Mar. 13, 2020), available at https://nationalpost.com/pmn/news-pmn/canada-news-pmn/the-latest-numbers-of-covid-19-cases-in-canada-as-ofmarch-13-2020.

32 Ryan Rocca, Global News, Coronavirus: Ontario reports 39 new COVID-19 cases, provincial total rises to 142

(Mar.

15,

2020),

https://globalnews.ca/news/6679409/ontario-coronavirus-update-march-

15/?utm_source=site_banner.

6

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 8 of 44

health officials believe that there are at least 1,000 undiagnosed cases in the Canadian capital alone.33 In an effort to slow the transmission and spread of the virus, the Canadian government banned foreign nationals from all countries except the United States from entering Canada and mandated that returning Canadians self-monitor for COVID-19 symptoms for 14 days following their return, effective March 18, 2020.34
The United States and Canada share the longest international border in the world, spanning approximately 3,987 (largely unfenced) miles with 119 ports of entry. 35
In 2017, approximately 33 million individuals crossed the Canadian border into the United States.36 Through February of Fiscal Year (FY) 2020, DHS has processed 20,166 inadmissible aliens at POEs at the U.S.-Canadian border, and CBP has apprehended 1,185 inadmissible aliens attempting to unlawfully enter the United States between POEs.37 These aliens have included not only Canadian nationals, but also 1,062 Iranian nationals, 1,396 Chinese nationals, and 1,326 nationals of Schengen Area countries—all of which currently have COVID-19 outbreaks. Indeed, the United States government has determined that China, Iran, and the countries of the Schengen Area are experiencing sustained person-to-person transmittal of the disease.38 As of March 15, 2020, the WHO reports that China has 81,048 confirmed cases and 3,204 deaths; Iran has 12,729 confirmed cases and 608 deaths39; and the Schengen Area has almost 42,000 confirmed cases.40 The total number of COVID-19 infections in these countries is impracticable to quantify due to the inherent limitations of epidemiological surveillance, but are likely higher than the reported number of confirmed cases because COVID-19 can be present in asymptomatic persons.

33 Adam Miller, Canadian Broadcast Corporation, ‘The Time is Now to Act’: COVID-19 spreading in Canada With no Known Link to Travel, Previous Cases (Mar. 16, 2020), available at https://www.cbc.ca/news/health/coronaviruscommunity-transmission-canada-1.5498804; CBC News, Canadian Broadcast Corporation, Community Spread of COVID-19 in Ottawa Likely, Says OPH (Mar. 15, 2020), available at https://www.cbc.ca/news/canada/ottawa/5-newcovid-cases-ottawa-1.5498489.

34 Government of Canada, Coronavirus disease (COVID-19): Canada’s Response, At Canadian Borders (Mar. 16, 2020), available at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirusinfection/canadas-reponse.html#acb.

35 Janice Cheryh Beaver, Congressional Research Service, U.S. International Borders: Brief Facts (Feb. 1, 2007),

available

at

https://www.everycrsreport.com/files/20070201_RS21729_514d6fe01555a06aa58c33fd1d8cf34ad1dc50f8.pdf.

36 Les Perreaux, The Globe and Mail, Rejection Rate on the Rise for Canadians at U.S. Border (Apr. 14, 2017), available at https://www.theglobeandmail.com/news/national/rejection-rate-on-the-rise-for-canadians-at-usborder/article34262237/.

37 Exhibits 2 and 3, attached.

38 The White House, Proclamation—Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus (Mar, 11, 2020), available at https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrantscertain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/.

39 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report – 55 (Mar. 15, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200315-sitrep-55-covid19.pdf?sfvrsn=33daa5cb_8.

40 Id.

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On March 18, 2020, the President announced that the United States “will be, by mutual consent, temporarily closing our Northern Border with Canada to non-essential traffic,” and DHS will be issuing guidance on the implementation of that arrangement, including exceptions for “essential travels.”
ii. Mexico expects community transmission of COVID-19 and has been slower to implement public health measures
According to WHO, as of March 17, 2020, Mexico has only 53 confirmed cases of COVID19, all found to be travel related, and no deaths.41 Some Mexican public health experts believe the number of COVID-19 cases in the country is much higher and that Mexico will see widespread community transmission of the virus in the near future.42 A Deputy Health Minister in Mexico has attributed Mexico’s low number of confirmed cases to the virus having been first detected in Mexico on February 27, 2020, approximately one month after the first confirmed cases in the United States.43 The same official also stated that, based on the Mexican government’s modeling, Mexico expects community transmission of COVID-19 to begin between 15 and 40 days from the first confirmed case (in other words, as early as March 13, 2020).44
Mexico is only now undertaking some of the public health measures to mitigate the spread of the virus.45 Schools will be closed from March 20 until April 20, and some large public events are being cancelled.46 However, many events, such as professional soccer games, have gone
41 Id. World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report – 57 (Mar. 17, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200317-sitrep-57-covid19.pdf?sfvrsn=a26922f2_4. 42 Andrea Ano, Latin Post, Experts Question Mexico's Coronavirus Preparations (Mar. 15, 2020), available at http://www.latinpost.com/articles/144156/20200315/experts-question-mexicos-coronavirus-preparations.htm; Mexico News Daily, One Former Health Minister Critical of Coronavirus Response (Mar. 14, 2020), available at https://mexiconewsdaily.com/news/former-health-secretary-critical-of-coronavirus-response/. 43 Mexico News Daily, Why so few Cases of Coronavirus? Deputy Minister Explains In Other Countries the Disease was Detected Earlier (Mar. 13, 2020), available at https://mexiconewsdaily.com/news/why-so-few-cases-ofcoronavirus-deputy-minister-explains/.https://mexiconewsdaily.com/news/why-so-few-cases-of-coronavirus-deputyminister-explains/. 44 Mexico News Daily, Business Insider, A Widespread Outbreak of Coronavirus in Mexico is 'Inevitable,' Health Officials Say (Mar. 13, 2020), available at https://www.businessinsider.com/widespread-outbreak-of-coronavirus-inmexico-is-inevitable-2020-3.https://www.businessinsider.com/widespread-outbreak-of-coronavirus-in-mexico-isinevitable-2020-3. 45 Patrick J. McDonnell, Katie Linthicum, Tracy Wilkinson, L.A. Times, Mexico, Latin America Gear up for Next Phase of Coronavirus Threat (Mar. 14, 2020), available at https://www.latimes.com/world-nation/story/2020-0314/mexico-latin-america-gear-up-for-next-phase-of-coronavirus-threat; cf Dave Graham, Reuters, Mexico Government Urges Public to Keep Distance Over Coronavirus; President Embraces Crowds (Mar. 15, 2020), available at https://www.reuters.com/article/us-health-coronavirus-mexico/mexico-government-urges-public-to-keep-distanceover-coronavirus-president-embraces-crowds-idUSKBN2130A0. 46 Alexis Ortiz & Karla Linares, El Universal, COVID-19: Mexico to Suspend Classes Over Coronavirus Concerns (Mar. 14, 2020), available at https://www.eluniversal.com.mx/english/covid-19-mexico-suspend-classes-overcoronavirus-concerns.
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forward as planned.47 Mexico has not announced any restrictions on persons entering the country from areas with sustained human-to-human transmission of the disease.48 There are currently no COVID-19 health screenings at Mexico’s international airports, although Mexican officials have announced that some additional screening measures may be implemented.49 Medical experts believe that community transmission and spread of COVID-19 at asylum camps and shelters along the U.S. border is inevitable, once community transmission begins in Mexico.50
Mexico has fewer health care resources than the United States. Mexico’s total expenditure on health care per capita is $1,122, compared to the United States’ $9,403 per person.51 On average, there are only 1.38 available hospital beds per every 1,000 inhabitants in Mexico, compared to 2.77 available hospital beds per every 1,000 inhabitants in the United States.52 Similarly, there are approximately 2.2 practicing doctors and 2.9 practicing nurses per every 1,000 inhabitants in Mexico, compared to 2.6 practicing doctors and 8.6 practicing nurses per every 1,000 inhabitants in the United States.53 This raises public health concerns, given that Mexico is likely to reach community transmission soon (including in asylum camps and shelters).
While Mexico responded vigorously to the H1N1 pandemic in 2009-2010, Mexico does not appear to be approaching the COVID-19 pandemic with the same dispatch. In 2003, Mexico established the National Preparedness and Response Plan for an Influenza Pandemic, which was first tested during the 2009 outbreak of H1N1 influenza. Mexico helped contain that outbreak, primarily through early detection of the outbreak, followed by the declaration of a “sanitary emergency” that focused on raising public awareness of the need to contain the spread with proper hygiene, school closings, cancellation of large public gatherings, and aggressive surveillance through widespread testing.54 Mexico does not appear to have undertaken equivalent measures in

47 Kirk Semple, The N.Y. Times, ‘We Call for Calm’: Mexico’s Restrained Response to the Coronavirus (Mar. 15, 2020), available at https://www.nytimes.com/2020/03/15/sports/soccer/soccer-mexico-coronavirus.html.

48 Wendy Fry, The San Diego Union-Tribune, While Impacts of Coronavirus Remain Mild in Baja California, Mexico Begins Bracing for Outbreak (Mar. 13, 2020), available at https://www.sandiegouniontribune.com/news/border-bajacalifornia/story/2020-03-13/impacts-of-coronavirus-remain-mild-in-baja-california.

49 Id.

50 Rick Jervis, USA Today, Migrants Waiting at U.S.-Mexico Border at Rick of Coronavirus, Health Experts Warn (Mar. 17, 2020), available at https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hardcoronavirus-migrants-wait-mexico/5062446002/; Rafael Carranza, AZ Central, New World’s Largest Border Crossing, Tijuana Shelters Eye the new Coronavirus with Worry (Mar. 14, 2020), available https://www.azcentral.com/story/news/politics/immigration/2020/03/14/tijuana-migrant-shelters-coronavirus-covid19/5038134002/.

51 Compare WHO, Mexico—Statistics, https://www.who.int/countries/mex/en/, with WHO, United States of America—Statistics, https://www.who.int/countries/usa/en/.

52 See Organization for Economic Co-operation and Development (“OECD”), Data—Hospital Beds, https://data.oecd.org/healtheqt/hospital-beds.htm.

53

Compare

The

World

Bank,

Data—Physicians

(per

1,000

people),

https://data.worldbank.org/indicator/SH.MED.PHYS.ZS, with The World Bank, Data—Nurses and Midwives (per

1,000 people), https://data.worldbank.org/indicator/SH.MED.PHYS.ZS.

54 See Jose A. Cordova-Villalobos et al., The influenza A (H1N1) epidemic in Mexico: Lessons learned, Health Research Policy & Systems 7:21 (Sept. 28, 2009); Gerardo Chowell, Characterizing the Epidemiology of the 2009

9

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 11 of 44
response to the COVID-19 pandemic. COVID-19 is more infectious than H1N1, and so CDC expected a more vigorous Mexican response to COVID-19, which has not occurred.
It also bears noting that Mexico struggled to mobilize its strategic stockpile of the antiviral drug Oseltamivir during the 2009-2010 H1N1 outbreak.55 The entire strategic stockpile was centrally stored as dry bulk product, and the national pandemic preparedness plan called for the dry bulk to be distributed to and reconstituted by Mexico’s 31 state-level public health laboratories.56 After the onset of the outbreak, Mexican authorities realized that the network of labs they intended to rely on were not properly equipped or authorized to prepare the antiviral medication, leading to complications in implementing the planned response.57 A comparative assessment of national pandemic preparedness plans found that Mexico’s plan was missing key annexes regarding case management, surveillance, communication, laboratory sample and transport, public health measures, and plans for private business.58 While no public health response is perfect, and testing for COVID-19 has presented global challenges, the experience of Mexican laboratories during the H1N1 outbreak raises concerns about their current capabilities.
The existence of COVID-19 in Mexico presents a serious danger of the introduction of COVID-19 into the United States for these reasons, and because the level of migration across the United States border with Mexico is so high. The U.S.-Mexico border runs an estimated 1,933 miles.59 To date in fiscal year (FY) 2020, DHS has processed 34,141 inadmissible aliens at POEs along the border, and U.S. Border Patrol has apprehended 117,305 aliens attempting to unlawfully enter the United States between POEs, almost 110,000 of whom reported Mexican citizenship.60 Over 15,000 were nationals of other countries that are now experiencing sustained human to human transmission of COVID-19, including approximately 1,500 Chinese nationals and 6,200 Brazilian nationals.61
Influenza A/H1N1 Pandemic in Mexico, PLOS Med 8(5): e1000436 (May 24, 2011). 55 Luis Meave Gutierrez-Mendoza et al., Lessons from the Field: Oseltamivir storage, distribution and dispensing following the 2009 H1N1 influenza outbreak in Mexico, Bull World Health Organ, 90:782-787 (Aug. 17, 2012). 56 Id. 57 Id. 58 WHO, Comparative Analysis of National Pandemic Influenza Preparedness Plans (Jan. 2011), available at https://www.who.int/influenza/resources/documents/comparative_analysis_php_2011_en/en/. 59 Supra, note 36. 60 Exhibits 2 and 3, attached. 61 Id.
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 12 of 44
3. Land POEs and Border Patrol stations are congregate settings that present infection control challenges
CBP screens and processes millions of aliens who seek to enter the United States legally each year at POEs, as well as apprehending, screening, and processing the hundreds of thousands of aliens who attempt to unlawfully enter the United States each year by crossing between POEs. See Exhibits 2-3 (charts summarizing number of apprehensions and inadmissible aliens in FY 2020, as of Mar. 3. 2020). Apprehended aliens vary significantly by age and health status. At this time, the majority tend to be adults between 25 and 40 years old, and include those with chronic health problems such as diabetes and high blood pressure (which are comorbidities known to increase the health risks associated with COVID-19 infections and, thus, the likelihood of requiring medical intervention after infection).62
i. Covered aliens in land POEs who CBP screens and processes for admissibility spend hours or days in congregate areas
There are 328 land POEs along the northern and southern borders operated by CBP. At land POEs, CBP screens and processes the millions of U.S. citizens, lawful permanent residents, and other aliens who seek to enter the United States from Canada and Mexico every year.
One of the CBP’s critical functions at POEs is to screen and process arriving aliens to determine whether they are admissible to the United States. CDC understands from DHS that inadmissible aliens are typically those who do not have proper travel documents to enter or whose entry is otherwise contrary to law, such as those who are interdicted attempting to smuggle contraband into the United States. It takes CBP much longer to screen inadmissible aliens than U.S. citizens, lawful permanent residents, and aliens with valid travel documents, all of whom tend to move quickly into the United States after contact with CBP personnel and other travelers at POEs. This difference is due in part to the fact that inadmissible aliens tend to arrive by foot (not vehicle), and lack documentation. Inadmissible aliens in land POEs may spend hours or days in congregate areas while undergoing processing. During that time, they are in close proximity to CBP personnel and other travelers, including U.S. citizens and other aliens.
The admissibility of each alien is determined by a CBP officer. As part of the current admissibility screening, aliens are subject to an initial set of questions designed to elicit their risk factors for various contagious diseases, including COVID-19. Questions would include recent travel and any physical symptoms they are experiencing. CBP officers also use this initial questioning to visually observe arrivals for any obvious signs of illness. Those whose appearance or responses indicate possible exposure to or infection with COVID-19 are directed to don a surgical mask, and are escorted by a CBP officer (also wearing a surgical mask) for further evaluation and risk assessment by the contract medical staff, which is conducted in a designated area within the POE.
Presently, if CBP determines that an alien may be exposed to or infected with COVID-19, the alien is escorted to a separate, enclosed waiting area (usually a small holding room adjacent to
62 Supra, note 4.
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 13 of 44
normal processing areas) while CBP alerts the relevant health authorities. Specifically, CBP notifies the local health department, CDC, and CBP’s Senior Medical Advisor. Local health officials and possibly CDC personnel if available, then consult with CBP to determine whether the individual should be tested for COVID-19 and where that testing should occur. CBP follows guidance from CDC and local health officials regarding transport to the testing site. If the alien is sent for testing in an ambulance, a CBP officer will accompany the individual in the ambulance. If CBP vehicles are used for transport, they are disinfected afterwards. In addition, CBP will consult with U.S. Immigration and Customs Enforcement (ICE) officials regarding the transport of the alien outside of the POE, given that the individual leaving the CBP facility does not have a preexisting legal right to enter the United States and must remain in custody while testing and treatment is carried out.
These infection control procedures are not easily scalable for large numbers of aliens. Moreover, an influx of infected, asymptomatic aliens would present significant infection control challenges for CBP, as the screening of such an aliens may not prompt testing. The aliens would remain in congregate areas in the POE while CBP finishes the screening and processing. During that time, the alien could infect CBP personnel or other aliens with COVID-19.
ii. Border Patrol stations present greater infection control challenges than POEs because they often have less space and fewer resources
In addition to the 328 POEs, CBP operates a network of Border Patrol stations to apprehend, process, and temporarily hold aliens seeking to unlawfully enter the United States between POEs. CBP has a total of 136 Border Patrol stations along the land and coastal borders, and many Border Patrol stations, particularly along the Southwest border, are in remote locations.
Border Patrol stations vary significantly in terms of size and layout, but generally have several congregate holding areas where covered aliens are divided based on demographic factors such as age, gender, and family status, as required by law. A typical Border Patrol station is designed to temporarily hold a maximum of 150 to 300 people standing shoulder-to-shoulder, and has between two to five separate holding areas that can be used to segregate adult males, adult females, unaccompanied children, and family units, with possible further subdivision for femaleand male-led family units. The subdividing of aliens is crucial to maintaining order and safety inside the Border Patrol stations because the experience of CBP is that certain cohorts of covered aliens are antagonistic towards one another. On average, a covered alien apprehended between POEs will spend approximately 78 hours in a Border Patrol station before transfer to ICE.
Only 46 of the 136 Border Patrol stations offer any medical services. The services that are offered are administered by contract medical support and are limited to glucose, pregnancy, influenza testing, and basic emergency care. The 46 facilities are all located on the southwest border with Mexico.
As discussed more fully below, the infection control challenges in Border Patrol stations can be greater than the challenges in POEs, especially when the Border Patrol stations are at or near capacity. This is because covered aliens are in close proximity with one another and CBP
12

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 14 of 44
personnel, and there is typically no suitable space for quarantining, isolating, or engaging in social distancing with aliens.
iii. The United States Public Health Service (USPHS) observed infection control challenges during a site visit to El Paso del Norte POE
On March 12-13, 2020, a USPHS Scientist officer conducted an observational visit to the El Paso del Norte POE (El Paso PDN). The USPHS Scientist officer viewed directly the areas within the POE that CBP uses to screen and process aliens for admissibility. (Exhibit 1).
El Paso PDN is one of the country’s busiest border crossings, with more than 10 million people entering the United States from Mexico every year. It receives a constant, heavy inflow of pedestrian and vehicular traffic, consisting of approximately 12,000 pedestrians and 6,000 vehicles per day. El Paso PDN operates 24/7, with a 3-4 person team of contract medical staff who work 12 hour shifts and provide 24/7 coverage. The medical team is typically led by a nurse practitioner or physician assistant, with the remaining team members consisting of emergency medical technicians (EMT) or registered nurses.
El Paso PDN adheres to the general process for screening and processing covered aliens described in § II.3.i above. In terms of medical capabilities, El Paso PDN performs on-site testing only for pregnancy, blood glucose levels, and Influenza A/B. Any other testing or treatment is performed by nearby medical providers. El Paso PDN is representative of other POEs in that it is heavily reliant on local and regional hospitals and EMT services to care for aliens. El Paso PDN has several small waiting rooms that are used to isolate individuals suspected of exposure to or infection with a contagious disease. Each room can fit approximately 6-7 people, and is equipped with windows to permit observation of the rooms’ occupants, and locks to prevent them from leaving.
Facility staff indicated they have been fit-tested for N95 respirators, receive biannual N95 training, and that the facility has an approximately 30-day regular use supply of N95 respirators for use by CBP personnel. El Paso PDN has not encountered any suspected COVID-19 cases, but does not currently perform COVID-19 testing.
The site was selected by CBP because it is of one of CBP’s largest and best equipped POEs on the Southwest Border. Other POEs have fewer capabilities.
The USPHS Scientist officer observed that even at El Paso PDN, covered aliens would present infection control challenges during processing and screening in congregate areas.
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 15 of 44
III. The introduction into DHS facilities of persons from countries with COVID-19 would increase the already serious danger of COVID-19 in the facilities
1. POEs and Border Patrol stations are not structured or equipped to effectively mitigate the risks presented by COVID-19
The time required to test for COVID-19 dictates, at least in part, the infection control measures that DHS would have to implement at POEs and Border Patrol stations to effectively mitigate the public health risks presented by covered aliens suspected of harboring or being infected with COVID-19. At this time, there is no available COVID-19 test that yields results at the time of sample collection, such as the rapid testing available for certain influenza strains that yields results in as little as 15 minutes. Nor is there a COVID-19 test that has been cleared for use in a non-clinical setting such as a POE or a Border Patrol station lacking isolation capabilities. Rather, current COVID-19 testing would require the collection of samples from aliens suspected of infection and the mailing of the samples to a laboratory for analysis, with results available within 3-4 days. In theory, to mitigate public health risks, CBP would have to transport aliens in their custody suspected of COVID-19 infection to a nearby medical site for sample collection and testing, and then implement containment protocols (i.e., quarantine or isolation) in their facilities while awaiting test results. CDC would not have the resources or personnel required to house in quarantine or isolation or monitor dozens, much less hundreds or thousands of aliens. The burden would shift to state and local governments, and it seems equally unlikely to CDC that they could collectively implement such a massive public health initiative under current conditions.
POEs and Border Patrol stations are not structured or equipped to implement quarantine, isolation, or social distancing protocols on site for COVID-19 for even small numbers of aliens, much less dozens or hundreds of them together with CBP personnel. In particular, POEs and Border Patrol stations were designed for the purpose of short-term holding in a congregate setting. The vast majority of those facilities lack the areas needed to effectively quarantine or isolate aliens for COVID-19 while test results are pending. Moreover, the process for screening and ultimately quarantining or isolating aliens suspected of COVID-19 infection would require the alien to move throughout various sections of the facility, creating a risk of exposure to all nearby— including DHS personnel and other aliens.63
Because POEs and Border Patrol stations are not structured or equipped for quarantine or isolation for COVID-19, DHS’s alternative would be to try to conduct some type of social distancing in congregate holding areas. The numbers of aliens and the size and capacity of the congregate holding areas are not at all conducive to effective social distancing, which requires individuals to maintain a distance of at least six feet from each other, and to avoid contact with shared surfaces. The typical dimensions of the congregate areas at POEs and Border Patrol stations would not provide sufficient space if more than a handful of individuals were present in congregate areas (which is typically the situation). Such an approach would be fraught with public health risks for not only the aliens but also DHS personnel nearby.
63 The use of congregate holding areas for quarantine or isolation would present a significant risk of transmitting COVID-19 for obvious reasons. Even if a congregate holding area were used to try to quarantine or isolate a single alien, it would significantly limit the facility’s overall holding capacity, and potentially increase the public health risks in other congregate holding areas (if any space were left at all, after subdividing demographics).
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 16 of 44

CDC also has a 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. Conditional release is not a viable solution in this context because many aliens covered by this order 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. Reliance on the conditional release mechanism in this context would jeopardize, not protect, the public health.
2. POEs and Border Patrol stations are not structured or equipped to safely house or care for aliens infected with COVID-19
POEs and Border Patrol stations would lack the capacity to provide the medical monitoring and care that would be needed by covered aliens confirmed to be infected with COVID-19. Only a few facilities offer medical services directly, and the medical services that are provided are limited to care for minor ailments, basic emergency care, or the on-site administration of prophylaxis for seasonal influenza (i.e., Tamiflu). The facilities are heavily reliant on local and regional hospitals and emergency medical system (EMS) resources.
Moreover, many of the facilities are geographically remote and far from the major medical centers or hospital systems equipped to handle COVID-19 outbreaks. Infected covered aliens would either have to be transported tens or hundreds of miles to the nearest appropriately equipped medical center, or brought to smaller local providers who might lack the resources or capacity to accept COVID-19 cases involving covered aliens. Indeed, U.S. states along the border with Mexico have some of the lowest number of hospital beds per 1,000 inhabitants in the United States.64 Arizona, California, and Texas also have some of the largest numbers of residents living in primary care shortage areas of any U.S. states or territories.65 The shift of healthcare resources to large numbers of infected, covered aliens would divert the same resources away from the domestic population, which would undermine the Federal response to COVID-19. It would also increase the risk of exposure to COVID-19 for domestic healthcare workers. Such a scenario is not tenable given the current nationwide public health emergency.
IV. Determination and Implementation
Based on the foregoing, I find there is a serious danger of the introduction of COVID-19 into the POEs and Border Patrol stations at or nearby the United States borders with Canada and Mexico, and the interior of the country as a whole, because COVID-19 exists in Canada, Mexico,

64 Arizona has 1.9 hospital beds per 1,000 inhabitants; California has 1.8; New Mexico has 1.8, and Texas has 2.3.

Kaiser Family Foundation, State Health Facts: Hospitals Per 1,000 Population by Ownership Type (2018), available

at

https://www.kff.org/other/state-indicator/beds-by-

ownership/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Total%22,%22sort%22:%22asc%22%7D.

65 Kaiser Family Foundation, State Health Facts: Primary Care Health Professional Shortage Areas (HPSAs) (Sept. 30, 2019), available at https://www.kff.org/other/state-indicator/primary-care-health-professional-shortage-areashpsas/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Percent%20of%20Need%20Met%22,%22sort%2 2:%22asc%22%7D.

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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 17 of 44
and the countries or places of origin of the covered aliens who migrate to the United States across the land borders with Canada and Mexico. I also find that the introduction into POEs and Border Patrol stations of covered aliens increases the seriousness of the danger to the point of requiring a temporary suspension of the introduction of covered aliens into the United States.
It is necessary for the public health to immediately suspend the introduction of covered aliens. The immediate suspension of the introduction of these aliens requires 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, with as little time spent in congregate settings as practicable under the circumstances. The 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 COVID19 into POEs, Border Patrol stations, other congregate settings, and the interior.
My determinations are based on information provided to CDC by DHS personnel regarding DHS border operations and facilities; the report of the observational visit to the El Paso PDN conducted by the USPHS Scientist officer; figures on the numbers of apprehensions at the United States borders with Canada and Mexico of aliens from countries where COVID-19 exists; information from the public domain; and my own personal knowledge and experience.
I consulted with DHS before I issued this order, and requested that DHS implement this order because CDC does not have the capability, resources, or personnel needed to do so. As part of the consultation, CBP developed an operational plan for implementing the order. Accordingly, DHS will, where necessary, use repatriation flights to move covered aliens on a space-available basis, as authorized by law. The plan is generally consistent with the language of this order directing that covered aliens spend as little time in congregate settings as practicable under the circumstances. In my view, it is also the only viable alternative for implementing the order; CDC’s other public health tools are not viable mechanisms given CDC resource and personnel constraints, the large numbers of covered aliens involved, and the likelihood that covered aliens do not have homes in the United States.66
This order is not a rule within the meaning of the Administrative Procedure Act (APA). In the event this order qualifies as a rule under the APA, notice and comment and a delay in effective date are not required because there is good cause to dispense with prior public notice and the opportunity to comment on this order and a delay in effective date. Given the public health emergency caused by COVID-19, it would be impracticable and contrary to the public health— and, by extension, the public interest—to delay the issuing and effective date of this order. In addition, because this order concerns the ongoing discussions with Canada and Mexico on how
66 CDC relies on the Department of Defense, other federal agencies, and state and local governments to provide both logistical support and facilities for federal quarantines. CDC lacks the resources, manpower, and facilities to quarantine covered aliens. Similarly, DHS has informed CDC that in the near term, it is not financially or logistically practicable for DHS to build additional facilities at POEs and Border Patrol stations for use in quarantines or isolation. Certain soft-sided facilities may be inappropriate for use in quarantines or isolation. DHS would need at least 90 days (likely more) to build and start bringing hard-sided facilities online. Such an approach would not help address the current public health emergency presented to the Federal government today.
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 18 of 44
best to control COVID-19 transmission over our shared border, it directly “involve[s] . . . a . . . foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). Notice and comment and a delay in effective date would not be required for that reason as well.
*** This order shall remain effective for 30 days, or until I determine that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, whichever is shorter. I may extend or modify this order as needed to protect the public health. In testimony whereof, the Director, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, has hereunto set his hand at Atlanta, Georgia, this 20th day of March, 2020.
Robert R. Redfield, MD Director Centers for Disease Control and Prevention
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 19 of 44
EXHIBIT 1
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 20 of 44
Date: March 14, 2020
To: RADM Sylvia Trent-Adams, Principal Deputy Assistant Secretary for Health, Office of the Assistant Secretary for Health (OASH)
RADM Erica Schwartz, Deputy Surgeon General, Office of the Surgeon General, OASH
From: CAPT Mehran S. Massoudi, Regional Health Administrator, Region VI, OASH
RE: Report of Observational Visit to the DHS El Paso Paso del Norte Port of Entry
Mission: Observe normal work flow process and personnel traffic at the El Paso Paso del Norte Port of Entry and assess possible public health risks or vulnerabilities posed by the Coronavirus Disease (COVID-19) at Department of Homeland Security (DHS) border facilities.
On March 12-13, 2020, I traveled to El Paso Paso del Norte (PDN) Port of Entry and met with Port Director Good, Watch Commander Alvarez, Watch Commander Gomez, and Supervisor Officer Rivas.
The site I visited was selected by the Customs and Border Patrol (CBP) Senior Medical Advisor Dr. Tarantino. It was intended to serve as an example of one of CBP’s largest and bestequipped Ports of Entry (POEs) on the Southwest Border, not a representative of other POEs across the country.
The El Paso PDN is one of the country’s busiest border crossings, and sees approximately 10 million people entering the United States from Mexico annually. The El Paso PDN processes a flow of approximately 12,000 pedestrians and approximately 6-8,000 vehicles per day. Field statistics for FY19 and Jan. 2020 were supplied by the Public Affairs and Community Liaison Director, El Paso Field Office and are attached to this report, as Attachments A and B, respectively. The location is staffed by CBP officers 24/7 working 8 hour shifts. In addition, the facility has 24/7 coverage by a third party contracted Medical Team comprised of 34 members, led by a nurse practitioner or physician assistant, with the rest of the team comprised of emergency medical technicians or Registered Nurses.
There are two points of entry into PDN: a pedestrian and vehicular mode. Both are staffed by the same CBP officers from El Paso. Each person seeking entry to the United States at PDN is asked a series of questions upon encountering the CBP officer, including the travelrelated COVID-19 screening questions. Officers use visual cues as well as responses to the screening questions to determine the level of risk of COVID-19 infection. If CBP officers suspect any level of risk or signs/symptoms of illness, they put on a surgical mask (CBP officers wear gloves as a normal practice) and give a surgical mask to the individual as well. The officer would then escort the individual to an area where the officer would first inspect the individual for anything that could be used as a weapon, and then fingerprint the individual (if applicable). The individual would then be triaged to an area where they would be administered a 13-part
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 21 of 44
questionnaire, with a series of questions added about COVID-19 by the third party contract Medical Team. The questionnaire is attached as Attachment C.
If an individual is determined to be at risk of COVID-19, the individual is escorted to one of several small waiting rooms, each with a window and locked door, while the local health department, Centers for Disease Control and Prevention (CDC), and CBP’s Senior Medical Advisor are notified. Local health officials and/or CDC would then be consulted to determine next steps with respect to testing and/or treatment for COVID-19.
If testing is recommended, then CBP will follow guidance from CDC and local health officials about which third party hospital to transport the individual. If the individual is sent for testing in an ambulance, a CBP officer will accompany the individual inside the ambulance. In addition, CBP will consult with Immigration and Customs Enforcement (ICE) officials if the individual leaving the CBP facility has not yet been processed and so must remain in custody.
CBP personnel informed me that the same basic process described above would be applied to those who arrived on foot or by vehicle—provided the individual provided a response to the screening questions indicative of COVID-19 exposure/infection or appeared to exhibit signs/symptoms of the disease requiring a medical consult for further evaluation and possible testing.
Key Observations:
All CBP officers are fit-tested twice a year for N-95 respirators, but when asked and observed, only surgical masks were identified for use. I was told that the N-95 respirators would be used when there is a declaration of a pandemic or when they are told to use them. Leadership at the site said that they have approximately a 30-day supply of N-95 respirators on hand at the PDN sites. I observed that all CBP officers had a box of gloves and a box of N-95 respirators by their feet behind their workstations. The CDC Quarantine Station in El Paso makes routine visits to stop by and answer any questions and provide any updates as needed for the CBP officers. The CBP officers carry a small, two-sided laminated card with key evaluation criteria. The card is attached as Attachment D. Observed color-posters of CDC COVID-19 awareness messaging on walls throughout the facility. The third party contract Medical Team performs only a small number of tests on-site (rapid Influenza A/B, pregnancy, and glucose). Tests for other conditions, particularly other contagious diseases like measles, are performed off-site at a third part medical facility. If an individual is suspected of having an infectious disease or needs to be held for a short period of time, they are put in a small room with a window and a locked door, adjacent to the CBP officers’ work-area. This is not an isolation room because the HVAC system is shared with the rest of the facility, and does not have adequate capabilities to contain COVID-19 (i.e., negative pressure, HEPA filtration). Escorting a contagious individual
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 22 of 44 to and from this room, as well as holding them there, poses a significant risk of exposing nearby CBP personnel. If an individual actually infected with COVID-19 were subject to the above screening processes, they would be maneuvered throughout various sections of the POE, creating a significant risk of COVID-19 exposure to other aliens and CBP officers in the POE.
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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 23 of 44
[Attachment A: FY 2019 Field Statistics]
U.S. Department of Homeland Security
9400 Viscount El Paso, TX 79925
U.S. Customs and Border Protection

January 21, 2019

To: From:
Subject:

Stakeholders and interested parties
Ruben Jauregui Director, Communication Management Office Public Affairs and Community Liaison El Paso Field Office El Paso, Texas
El Paso Field Office Traffic Summary Report January-December 2019

January 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

642 228,341

0

El Paso

Bridge of Americas 24,576

719 332,330 116

El Paso

Ysleta Bridge

46,518

0

238,762

0

El Paso

Stanton St DCL

0

0

119,715

0

El Paso

Ysleta DCL

0

0

101,452

0

Presidio

823

114

62,393

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

24,750

0

Serna/Tornillo

Ft Hancock

0

0

8,002

0

Columbus

Columbus

863

0

26,777

0

Columbus

Antelope Wells

0

*120

1,163

0

Santa Teresa

9,733

19

46,230

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 5,387
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 2,817
0 0 0 0 0 0 0 0 0 0

Pedestrians
376,229 104,379 116,175
0 0 19,563 144 3,124 162 23,158 0 10,132

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Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 24 of 44

February 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

793 208,026

0

El Paso

Bridge of Americas 22,159

539 296,190 116

El Paso

Ysleta Bridge

43,800

0

213,097

0

El Paso

Stanton St DCL

0

0

114,954

0

El Paso

Ysleta DCL

0

0

96,686

0

Presidio

707

77

53,410

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

24,503

0

Serna/Tornillo

Ft Hancock

0

0

7,792

0

Columbus

Columbus

418

0

24,635

0

Columbus

Antelope Wells

0

*76

793

0

Santa Teresa

9,116

15

42,335

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 6,503
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 2,487
0 0 0 0 0 0 0 0 0 0

Pedestrians
347,742 93,721 115,133
0 0 15,362 2,385 3,284 143 21,340 0 7,413

March 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

759 225,206

0

El Paso

Bridge of Americas 23,832

684 305,090 109

El Paso

Ysleta Bridge

45,152

0

221,472

0

El Paso

Stanton St DCL

0

0

124,712

0

El Paso

Ysleta DCL

0

0

106,205

0

Presidio

791

105

62,810

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

28,181

0

Serna/Tornillo

Ft Hancock

0

0

9,908

0

Columbus

Columbus

377

0

28,673

0

Columbus

Antelope Wells

0

*103

972

0

Santa Teresa

9,903

24

52,541

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 5,751
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 3,180
0 0 0 0 0 0 0 0 0 0

Pedestrians
408,028 115,579 136,788
0 0 20,473 4,362 3,061 224 21,951 0 9,898

April 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

750 155,983

0

El Paso

Bridge of Americas 18,973

670 200,817 112

El Paso

Ysleta Bridge

38,449

0

140,421

0

El Paso

Stanton St DCL

0

0

130,521

0

El Paso

Ysleta DCL

0

0

92,139

0

Presidio

829

123

55,708

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

28,326

0

Serna/Tornillo

Ft Hancock

0

0

11,545

0

Columbus

Columbus

608

0

28,117

0

Columbus

Antelope Wells

0

*127

1,302

0

Santa Teresa

10,187

29

45,852

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 6,932
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 3,211
0 0 0 0 0 0 0 0 0 0

Pedestrians
380,366 154,135 173,111
0 0 35,469 2,875 4,361 339 24,299 0 20,355

23

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 25 of 44

May 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

882 168,894

0

El Paso

Bridge of Americas 20,390

705 242,474 134

El Paso

Ysleta Bridge

47,835

0

169,580

0

El Paso

Stanton St DCL

0

0

138,374

0

El Paso

Ysleta DCL

0

0

108,888

0

Presidio

875

0

58,129

0

Boquillas

0

0

0

0

Serna/Tornillo

0

118

29,010

0

Serna/Tornillo

Ft Hancock

0

0

11,630

0

Columbus

Columbus

1,030

0

30,660

0

Columbus

Antelope Wells

0

*125

1,135

0

Santa Teresa

13,221

13

49,834

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 8,308
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 3,239
0 0 0 0 0 0 0 0 0 0

Pedestrians
379,532 147,259 168,443
0 0 23,072 1,563 3,571 216 24,365 0 14,221

June 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

934 158,621

0

El Paso

Bridge of Americas 14,620

789 224,054 121

El Paso

Ysleta Bridge

48,564

0

181,356

0

El Paso

Stanton St DCL

0

0

123,047

0

El Paso

Ysleta DCL

0

0

104,499

0

Presidio

643

117

55,964

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

26,625

0

Serna/Tornillo

Ft Hancock

0

0

9,443

0

Columbus

Columbus

1,204

0

29,661

0

Columbus

Antelope Wells

0

*127

992

0

Santa Teresa

11,843

30

50,672

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 7,820
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 3,116
0 0 0 0 0 0 0 0 0 0

Pedestrians
372,565 154,368 161,103
0 0 29,194 1,007 1,506 334 15,392 0 16,847

July 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

862 146,360

0

El Paso

Bridge of Americas 15,711

883 217,658 126

El Paso

Ysleta Bridge

51,922

0

305,414

0

El Paso

Stanton St DCL

0

0

123,123

0

El Paso

Ysleta DCL

0

0

107,296

0

Presidio

830

162

58,934

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

33,967

0

Serna/Tornillo

Ft Hancock

0

0

9,456

0

Columbus

Columbus

1,808

0

32,455

0

Columbus

Antelope Wells

0

*152

1,473

0

Santa Teresa

12,915

19

56,495

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 8,741
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 2,660
0 0 0 0 0 0 0 0 0 0

Pedestrians
369,293 182,378 178,969
0 0 37,779 934 1,510 385 22,959 0 26,487

24

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 26 of 44

August 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

981 163,806

0

El Paso

Bridge of Americas 16,129

812 240,369 124

El Paso

Ysleta Bridge

53,240

0

198,831

0

El Paso

Stanton St DCL

0

0

133,379

0

El Paso

Ysleta DCL

0

0

108,208

0

Presidio

806

130

56,539

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

28,161

0

Serna/Tornillo

Ft Hancock

0

0

9,508

0

Columbus

Columbus

2,138

0

31,132

0

Columbus

Antelope Wells

0

*121

950

0

Santa Teresa

11,922

22

49,664

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 10,404
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 4,487
0 0 0 0 0 0 0 0 0 0

Pedestrians
349,842 152,466 166,014
0 0 25,946 709 3,093 273 25,529 0 16,532

September 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

930 183,319

0

El Paso

Bridge of Americas 15,080

675 252,480 127

El Paso

Ysleta Bridge

50,428

0

221,684

0

El Paso

Stanton St DCL

0

0

134,221

0

El Paso

Ysleta DCL

0

0

107,839

0

Presidio

833

125

56,328

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

25,901

0

Serna/Tornillo

Ft Hancock

0

0

9,581

0

Columbus

Columbus

2,054

0

30,609

0

Columbus

Antelope Wells

0

*98

938

0

Santa Teresa

11,377

16

43,162

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 8,223
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 3,086
0 0 0 0 0 0 0 0 0 0

Pedestrians
341,846 131,396 156,242
0 0 20,988 1,001 3,654 268 24,870 0 12,113

October 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

839 191,494

0

El Paso

Bridge of Americas 16,498

697 265,834 115

El Paso

Ysleta Bridge

55,251

0

214,485

0

El Paso

Stanton St DCL

0

0

146,029

0

El Paso

Ysleta DCL

0

0

115,628

0

Presidio

1,054

142

56,209

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

27,883

0

Serna/Tornillo

Ft Hancock

0

0

9,676

0

Columbus

Columbus

2,890

0

30,318

0

Columbus

Antelope Wells

0

*0

931

0

Santa Teresa

12,672

13

42,174

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 7,278
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 2,571
0 0 0 0 0 0 0 0 0 0

Pedestrians
361,221 147,038 159,779
0 0 19,401 1,700 4,021 268 23,592 0 11,661

25

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 27 of 44

November 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

742 175,505

0

El Paso

Bridge of Americas 12,839

760 259,756 112

El Paso

Ysleta Bridge

52,063

0

203,584

0

El Paso

Stanton St DCL

0

0

133,865

0

El Paso

Ysleta DCL

0

0

105,061

0

Presidio

1,022

142

54,667

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

26,583

0

Serna/Tornillo

Ft Hancock

0

0

9,664

0

Columbus

Columbus

1,868

0

27,981

0

Columbus

Antelope Wells

0

*95

1,070

0

Santa Teresa

10,924

20

43,748

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 7,202
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 2,346
0 0 0 0 0 0 0 0 0 0

Pedestrians
330,171 134,592 149,073
0 0 21,686 3,498 3,128 242 21,435 0 12,416

December 2019

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

1,007 190,826

0

El Paso

Bridge of Americas 11,379

978 284,027 97

El Paso

Ysleta Bridge

46,744

0

221,027

0

El Paso

Stanton St DCL

0

0

135,170

0

El Paso

Ysleta DCL

0

0

108,080

0

Presidio

985

182

58,203

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

29,660

0

Serna/Tornillo

Ft Hancock

0

0

10,279

0

Columbus

Columbus

1,490

0

30,398

0

Columbus

Antelope Wells

0

*121

1,551

0

Santa Teresa

10,113

20

53,942

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 5,258
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 2,826
0 0 0 0 0 0 0 0 0 0

Pedestrians
325,436 154,034 161,469
0 0 38,527 2,467 3,099 262 22,675 0 23,104

26

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 28 of 44
[Attachment B: Jan. 2020 Field Statistics]
U.S. Department of Homeland Security
9400 Viscount El Paso, TX 79925
U.S. Customs and Border Protection

February 25, 2020

To: From:
Subject:

Stakeholders and interested parties
Ruben Jauregui Director, Communication Management Office Public Affairs and Community Liaison El Paso Field Office El Paso, Texas
El Paso Field Office Traffic Summary Report January 2020

January 2020

Trucks Buses POV’s Trains

El Paso

Paso del Norte

0

1,047 186,475

0

El Paso

Bridge of Americas 13,612

810 279,016 91

El Paso

Ysleta Bridge

53,785

0

219,982

0

El Paso

Stanton St DCL

0

0

134,574

0

El Paso

Ysleta DCL

0

0

104,067

0

Presidio

967

128

56,535

0

Boquillas

0

0

0

0

Serna/Tornillo

0

0

24,937

0

Serna/Tornillo

Ft Hancock

0

0

9,246

0

Columbus

Columbus

1,032

0

28,629

0

Columbus

Antelope Wells

0

*118

1,254

0

Santa Teresa

11,886

31

46,478

0

*Antelope Wells numbers are for passenger vans processed

Empty Rail containers
0 4,090
0 0 0 0 0 0 0 0 0 0

Full Rail Containers
0 1,481
0 0 0 0 0 0 0 0 0 0

Pedestrians
294,921 127,497 137,015
0 0 25,047 2.585 2,929 169 24,479 0 14,731

27

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 29 of 44 [Attachment C: 13-part Screening Questionnaire]
28

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 30 of 44 29

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 31 of 44 30

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 32 of 44 31

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 33 of 44 [Attachment D: RING Card] (front)
32

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 34 of 44
(back) 33

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 35 of 44 34

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 36 of 44 35

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 37 of 44
EXHIBIT 2
36

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 38 of 44

U.S. Border Patrol (USBP) - Apprehensions (FY20TD-Feb.)

Country of Citizenship

Southwest Border

Northern Border

ALBANIA

12

1

ALGERIA

0

1

ARGENTINA

4

2

ARMENIA

1

0

BANGLADESH

420

1

BELGIUM

0

1

BOLIVIA

10

1

BRAZIL

6,248

11

BULGARIA

1

1

BURKINA FASO

1

1

CAMBODIA

0

1

CAMEROON

20

0

CANADA

2

33

CHILE

341

0

CHINA (PEOPLE’S REPUBLIC

OF)

1,157

18

COLOMBIA

204

35

COSTA RICA

21

0

DEM REP OF THE CONGO

149

0

DOMINICAN REPUBLIC

160

12

ECUADOR

7,027

35

FRENCH GUIANA

1

0

GERMANY

0

1

GUADELOUPE

2

0

HONDURAS INDIA

19,493

87

805

111

INDONESIA

1

1

IRAN

5

1

IRAQ

1

1

IRELAND

2

0

ISRAEL

4

3

ITALY

6

1

JAMAICA

1

7

JAPAN

0

1

JORDAN

7

3

KOREA

0

1

KUWAIT

1

0

MALAYSIA

1

1

37

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 39 of 44

U.S. Border Patrol (USBP) - Apprehensions (FY20TD-Feb.)

Country of Citizenship

Southwest Border

Northern Border

MEXICO

80,130

707

MOLDOVA

0

1

NEPAL

77

0

NIGERIA

9

8

NORWAY

0

1

PAKISTAN

61

3

PANAMA

11

1

PARAGUAY

1

1

PERU

295

1

PHILIPPINES

0

3

POLAND

0

3

ROMANIA

151

43

RUSSIA

6

0

SENEGAL

1

1

SINGAPORE

1

0

SOUTH AFRICA

2

2

SOUTH KOREA

1

8

SPAIN

5

7

SRI LANKA

196

3

SWEDEN

1

0

THAILAND

0

1

TOGO

2

1

TUNISIA

0

1

TURKEY

46

1

UKRAINE

2

3

UNITED KINGDOM

2

10

VIETNAM

197

2

TOTAL

117,305

1,185

Source: End of Month Report

38

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 40 of 44
EXHIBIT 3
39

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 41 of 44

Office of Field Operations (OFO) - Inadmissible Aliens (FY20TD-Feb.)

Country of Citizenship

Southwest Border

Northern Border

AFGHANISTAN

0

23

ALBANIA

0

13

ALGERIA

0

349

ANDORRA

0

1

ARGENTINA

4

7

ARMENIA

108

1

AUSTRALIA

4

53

AUSTRIA

1

6

AZERBAIJAN

8

9

BANGLADESH

3

79

BELARUS

11

5

BELGIUM

15

39

BHUTAN

0

9

BOLIVIA

3

2

BOSNIA-HERZEGOVINA

0

6

BRAZIL

152

318

BULGARIA

1

14

BURKINA FASO (UPPER VOLTA)

10

20

CAMBODIA

0

3

CAMEROON

1,025

69

CANADA

25

9,693

CHILE

21

47

CHINA (PEOPLE’S REPUBLIC OF)

500

1,378

TAIWAN

0

21

COLOMBIA

83

151

COSTA RICA

8

3

CROATIA

0

10

CYPRUS

0

4

CZECH REPUBLIC DEMOCRATIC REPUBLIC OF CONGO (ZAIRE)

1

7

171

29

DENMARK

1

16

DOMINICAN REPUBLIC

4

25

ECUADOR

156

14

40

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 42 of 44

Office of Field Operations (OFO) - Inadmissible Aliens (FY20TD-Feb.)

Country of Citizenship

Southwest Border

Northern Border

EGYPT

2

124

ESTONIA

0

1

FINLAND

0

5

FRANCE

6

802

GEORGIA

59

2

GERMANY

1

88

GREECE

1

19

HONDURAS

1,343

32

HONG KONG, PRC

0

8

HUNGARY

1

16

INDIA

22

2,135

INDONESIA

1

17

IRAN

3

1,061

IRAQ

2

63

IRELAND

0

27

ISRAEL

5

58

ITALY

6

50

JAMAICA

24

120

JAPAN

2

33

JORDAN

1

28

KUWAIT

3

1

LATVIA

1

1

LEBANON

2

54

LITHUANIA

2

8

LUXEMBOURG

0

2

MACAO (MACAU), PRC

0

1

MACEDONIA (SKOPJE)

0

2

MALAYSIA

0

9

MALTA AND GOZO

0

2

MEXICO

29,713

245

MOLDOVA

0

9

MOROCCO

1

350

NEPAL

0

6

NETHERLANDS

0

17

41

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 43 of 44

Office of Field Operations (OFO) - Inadmissible Aliens (FY20TD-Feb.)

Country of Citizenship

Southwest Border

Northern Border

NEW ZEALAND

0

20

NIGERIA

0

182

NORWAY

3

7

OMAN

1

2

PAKISTAN

5

160

PANAMA

4

1

PARAGUAY

0

2

PERU

46

15

PHILIPPINES

0

554

POLAND

1

66

PORTUGAL

0

57

REPUBLIC OF CONGO (BRAZZAVILLE)

40

9

REPUBLIC OF SOUTH AFRICA

6

21

ROMANIA

9

39

RUSSIA

340

101

SAUDI ARABIA

4

14

SENEGAL

5

56

SERBIA

0

4

SINGAPORE

0

6

SLOVAKIA

0

2

SLOVENIA

0

2

SOUTH KOREA

12

178

SPAIN

19

66

SRI LANKA

0

28

SWEDEN

0

27

SWITZERLAND

1

20

THAILAND

0

6

TOGO

6

20

TUNISIA

0

274

TURKEY

38

50

UKRAINE

70

130

UNITED ARAB EMIRATES

1

2

UNITED KINGDOM

7

148

VIETNAM

7

77

42

Case 1:20-cv-01509-CJN Document 28-2 Filed 06/17/20 Page 44 of 44

Office of Field Operations (OFO) - Inadmissible Aliens (FY20TD-Feb.)

TOTAL

Country of Citizenship

Southwest Border
34,141

Northern Border
20166

Source: SBO Data via End of Month Report; NBO Data via CBP Data Warehouse as of 3/3/2020

43

Case 1:20-cv-01509-CJN Document 28-3 Filed 06/17/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

EXHIBIT C

1

Case 1:20-cv-01509-CJN Document 28-3 Filed 06/17/20 Page 2 of 8
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)
ORDER UNDER SECTIONS 362 & 365 OF THE PUBLIC HEALTH SERVICE ACT (42 U.S.C. §§ 265, 268):
EXTENSION OF ORDER SUSPENDING INTRODUCTION OF CERTAIN PERSONS FROM COUNTRIES WHERE A COMMUNICABLE DISEASE EXISTS
I am extending the Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists issued on March 20, 2020 until 11:59 p.m. EDT on May 20 or until I determine that the danger of further introduction of COVID-19 into the United Sates has ceased to be a serious danger to the public health, whichever is sooner. I may further amend or extend the March 20, 2020 Order as needed to protect the public health.
I issued the March 20, 2020 Order pursuant to §§ 362 and 365 of the Public Health Service (PHS) Act, 42 U.S.C. §§ 265, 268, and the Act’s implementing regulations, which authorize the Director of the Centers for Disease Control and Prevention (CDC) to suspend the introduction of persons into the United States when the Director determines that the existence of a communicable disease in a foreign country or place creates a serious danger of the introduction of such disease into the United States, and the danger is so increased by the introduction of persons from the foreign country or place that a temporary suspension of such introduction is necessary to protect the public health.
The March 20, 2020 Order suspended introduction of certain “covered aliens” into the United States for a period of 30 days. The March 20, 2020 Order defined “covered aliens” as follows:
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 border with Canada or Mexico, subject to exceptions. This order does not apply to U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed forces of the United States, and associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE.
In addition, the March 20, 2020 Order did not apply to “persons whom customs officers of DHS determine, with approval from a supervisor, 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.”
The March 20, 2020 Order was based on the following determinations:

Case 1:20-cv-01509-CJN Document 28-3 Filed 06/17/20 Page 3 of 8
COVID-19 is a communicable disease that poses a danger to the public health;
COVID-19 is present in numerous foreign countries, including Canada and Mexico;
There is a serious danger of the introduction of COVID-19 into the land POEs 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;
But for a suspension-of-entry order under 42 U.S.C. § 265, covered aliens would be subject to immigration processing at the land POEs and Border Patrol stations, and during that processing many of them (typically aliens who lack valid travel documents and are therefore inadmissible) would be held in the common areas of the facilities, in close proximity to one another, for hours or days; and
Such introduction into congregate settings of persons from Canada or Mexico would increase the already serious danger to the public health to the point of requiring a temporary suspension of the introduction of covered aliens into the United States.
COVID-19 has continued to spread since the March 20, 2020 Order. Canada and Mexico continue to see increasing numbers of COVID-19 infections and deaths. In addition, the United States has seen many states experience exponential growth in the number of confirmed COVID19 cases, which has strained the healthcare system and prompted dramatic public health responses at the local, state, and Federal levels. Millions of Americans are now complying with local and state stay-at-home orders, engaging in social distancing, and taking other precautions calculated to slow the spread of, and protect others from, COVID-19. At the Federal level, the U.S. Departments of Health and Human Services (HHS) and Homeland Security (DHS) are working with public and private stakeholders to rapidly procure, distribute, and increase the supply of scarce medical and healthcare resources such as personal protective equipment (PPE), ventilators, and therapeutics for the American public. The entire country has mobilized to save lives by limiting face-to-face contact and reserving medical and healthcare resources for those who need them most. At a time when these domestic efforts are ongoing and effective, it would be counterproductive and dangerous to undermine those efforts by permitting the introduction of persons from outside the United States who pose a risk of transmission of COVID-19 within DHS facilities or the U.S. interior.
Further, the determinations made in support of the March 20, 2020 Order remain correct. If anything, they have become more compelling. I therefore conclude that the March 20, 2020 Order should remain in effect until 11:59 p.m. EDT on May 20.
COVID-19 is Continuing to Spread in Canada, Mexico, and the United States
Since the March 20, 2020 Order, the number of COVID-19 cases globally, including in Canada, Mexico, and the United States, has continued to increase.

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Canada
As of April 13, 2020, Canada has reported 24,804 confirmed cases of COVID-19, and a total of 734 deaths. Canada has tested 422,200 people for COVID-19.1 The Public Health Agency of Canada estimates that 72% of infections are the result of community transmission. Canadian modeling indicates that, with the use of strong epidemic controls resulting in a 2.5% infection rate, Canada could see 940,000 people with infections, 73,000 hospitalizations, and 23,000 people requiring intensive care over the course of the COVID-19 pandemic.2
Canada has implemented and maintained robust public health measures to slow the spread of COVID-19, including closures of public schools and cancelation of public events.3 Nonessential businesses have been closed across the country.
Mexico
As of April 12, 2020, Mexico has reported 3,844 confirmed cases of COVID-19 and 233 deaths.4 Nevertheless, based on public health surveillance, Mexico estimates that its current case count is 26,519. Mexico’s modeling, based on World Health Organization (WHO) reporting from China, assumes a 0.2% infection rate with 250,656 infected people during the acceleration phase of the pandemic.5 Of those people, 70% (175,459) are anticipated to seek medical care.6 Among people seeking medical care, it is projected that 80% (140,367) will be ambulatory patients, 14% (25,564) will need to be hospitalized without intensive care, and 6% (10,528) will require intensive care.7
1 Government of Canada, Coronavirus disease (COVID-19): Outbreak Update (Apr. 13, 2020), https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html?topic=tilelink#a2.
2 Public Health Agency of Canada, COVID-19 in Canada: Using Data and Modeling to Inform Public Health Action (Apr. 9, 2020), available at https://www.canada.ca/content/dam/phac-aspc/documents/services/diseases/2019-novelcoronavirus-infection/using-data-modelling-inform-eng.pdf.
3 See generally Kristin Rushowy, The Star, Ontario Schools Will Remain Closed Until at Least May 4. But Kids Can Expect Marks (Mar. 31, 2020), https://www.thestar.com/politics/provincial/2020/03/31/ontario-schools-wontopen-until-at-least-may.html; Ryan Rocca, Global News, Coronavirus: City of Toronto Cancels Events Through June 30, including Pride Parade (updated Apr. 1, 2020), https://globalnews.ca/news/6758350/coronavirus-torontocancels-events-pride-parade/.
4 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report – 83 (Apr. 12, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200412-sitrep-83-covid-19.pdf?sfvrsn= 697ce98d_4.
5 Secretaria De Salud, COVID-19: Comunicado Tecnico Diario (Mar. 17, 2020), available at https://www.gob.mx/cms/uploads/attachment/file/541879/COVID-19__Presentacion_Comunicado_Tecnico_Diario_2020.03.17.pdf.pdf.
6 Id.
7 Id.

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On March 30, 2020, Mexico’s General Health Council declared a “State of Health Emergency” and suspended all non-essential activities in the public and private sectors until April 30, 2020.8 The order granted full authority to the Secretariat of Health to take action to address the pandemic across Mexico. The central guidance of the Mexican health authorities is to maximize social distancing and that people should only leave their homes for essential activities, such as to procure food or medical care.9 State and local authorities in several Mexican states also are enforcing non-essential business closures and self-quarantine measures.
United States
As of April 13, 2020, the United States has reported 554,849 confirmed cases of COVID19 across the United States and 21,942 deaths.10 Community transmission of COVID-19 is occurring in many locations across the United States. Several cities and states have experienced widespread, sustained community transmission to the extent that their healthcare and public health systems are at risk of being overwhelmed. This includes parts of states and territories at or near borders of the United States which are reporting large increases in new COVID-19 cases since the March 20, 2020 Order.11
In addition to practicing rigorous hygiene and social distancing and limiting non-essential travel,12 CDC’s guidance to the general public has expanded to include the recommendation that individuals wear face coverings when out in public.13 CDC expects widespread transmission of COVID-19 in the United States will occur and, in the coming months, most of the U.S. will be exposed to COVID-19.14 Nevertheless, not all areas of the United States are currently experiencing high rates of infection or numbers of confirmed cases. Generally speaking, COVID19 is currently concentrated along the East, West, and Gulf Coasts and in the Great Lakes region;
8 U.S. Department of State, U.S. Embassy and Consulates in Mexico, Health Alert – Mexico COVID-19 Update (Apr. 10, 2020), https://mx.usembassy.gov/health-alert-mexico-covid-19-update-04-10-2020/.
9 Id.
10 CDC, Cases in U.S. (updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html.
11 The New York Times, Coronavirus in the U.S.: Latest Map and Case Count (Apr. 13, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#states; see also CDC, Coronavirus Disease 2019 (COVID-19): Cases in U.S.: States Reporting Cases of COVID-19 to CDC (Apr. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html#cumulative.
12 CDC, COVID-19: How to Protect Yourself and Others (last reviewed Apr. 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
13 CDC, COVID-19: How to Wear a Cloth Face Covering (last reviewed Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
14 CDC, Testing for COVID-19 (Mar. 21, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/testing.html.

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there are significantly fewer cases in the interior of the United States.15 Limiting the spread of COVID-19 in these less affected areas is a critical component of the overall U.S. strategy to “flatten the curve,” which requires limiting the number of foci, or infected individuals, who may enter these areas.
Joint Efforts
On March 20, 2020, the United States and Canada jointly decided to restrict all nonessential travel across the U.S.-Canadian border for 30 days, with limited exceptions for U.S. citizens and others entering Canada for essential business, provided these individuals have not been outside Canada or the United States in the 14 days prior to requesting entry into Canada. Foreign nationals, excluding those arriving from the U.S., will not be allowed into Canada, subject to certain exceptions.16 The Canadian government is requiring individuals returning home to Canada to self-isolate for 14 days upon their return.17 Individuals exhibiting symptoms of COVID19 are not permitted to enter Canada, except for Canadian citizens or permanent residents.18
Similarly, on March 20, 2020, the United States and Mexico announced a joint initiative temporarily restricting all non-essential travel across their border in an effort to combat the spread of COVID-19.19
Availability of Rapid COVID-19 Testing
Since the March 20, 2020 Order, rapid testing for COVID-19 has been developed that can provide results in approximately 15 minutes and manufacturers are currently ramping up production and distribution of rapid COVID-19 testing.20 Although rapid COVID-19 testing could
15 See Johns Hopkins University, COVID-19 United States Cases by County, https://coronavirus.jhu.edu/us-map.
16 See Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada, 85 Fed. Reg. 16548 (Mar. 24, 2020).
17 Government of Canada, Coronavirus disease (COVID-19): Canada’s Response, https://www.canada.ca/en/publichealth/services/diseases/2019-novel-coronavirus-infection/canadas-reponse.html?topic=tilelink
18 Id.
19 U.S. Department of Homeland Security, Joint Statement on U.S.-Mexico Joint Initiative to Combat the COVID19 Pandemic (Mar. 20, 2020), available at https://www.dhs.gov/news/2020/03/20/joint-statement-us-mexico-jointinitiative-combat-covid-19-pandemic.
20 For instance, on March 27, 2020, Abbott received emergency use authorization from the U.S. Food and Drug Administration (“FDA”) for the fastest available point-of-care test for COVID-19. Abbott, “Detect COVID-19 in as Little as 5 Minutes” (Mar. 27, 2020), https://www.abbott.com/corpnewsroom/product-and-innovation/detect-covid19-in-as-little-as-5-minutes.html; see generally U.S. Food and Drug Administration, Emergency Use Authorizations, https://www.fda.gov/medical-devices/emergency-situations-medical-devices/emergency-useauthorizations#covid19ivd. Rapid COVID-19 testing will significantly reduce the time needed to confirm a suspected diagnosis of COVID-19, which currently may take as long as three to four days. See CDC, Order Suspending Introduction of Certain Persons from Countries where a Communicable Disease Exists (Mar. 20, 2020), available at https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-

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ameliorate some of the public health concerns associated with congregate detention in DHS border facilities, rapid COVID-19 testing is not yet widely available, and demand outstrips supply. Moreover, once it is available, rapid COVID-19 testing should be prioritized to certain key locations, such as hospitals treating high numbers of COVID-19 patients, where the ability to quickly determine whether doctors and nurses have been infected with COVID-19 could increase the availability of care providers by eliminating the need for these individuals to self-isolate while awaiting test results.
Determination and Implementation
Based on the foregoing, I find that the global presence of COVID-19, including in Canada, Mexico, still presents a danger of further introduction of COVID-19 into the United States. This is true notwithstanding the community transmission of COVID-19 in many locations across the United States. There are many locations in the United States near our borders with Canada and Mexico that have not yet experienced widespread community transmission. The on-going COVID-19 pandemic, including in Canada and Mexico, remains a serious danger to such locations.
In the March 20, 2020 Order, I found the risks troubling partly because outbreaks of COVID-19 in POEs or Border Patrol stations would lead U.S. Customs and Border Protection to transfer persons with acute presentations of illness to local or regional healthcare providers for treatment, which would exhaust the local or regional healthcare resources or at least reduce the availability of such resources to the domestic population, and further expose local or regional healthcare workers to COVID-19. Millions of Americans are complying with local and state stayat-home orders, engaging in social distancing, and taking other precautions calculated to slow the spread, protect others, and relieve the strain on the healthcare system. Their efforts would be significantly undermined if outbreaks of COVID-19 in land POEs or Border Patrol stations crippled the DHS workforce and local or regional healthcare systems.
I consulted with DHS before issuing this Order and requested that DHS continue to implement the March 20, 2020 Order because CDC does not have the capability, resources, or personnel needed to alternatively issue quarantine or isolation orders.21
p.pdf; see also CDC, Interim Guidelines for Collecting, Handling, and Testing Clinical Specimens from Persons for Coronavirus Disease 2019 (COVID-19) (updated Apr. 8, 2020), https://www.cdc.gov/coronavirus/2019nCoV/lab/guidelines-clinical-specimens.html. When a case of COVID-19 is suspected, the sooner that confirmatory test results are available, the more quickly treatment and isolation and quarantine measures can be implemented, lowering the risk of infecting others. See CDC, Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (updated Mar. 24, 2020), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html.
21 As previously discussed in the March 20, 2020 Order, CDC relies on the Department of Defense, other federal agencies, and state and local governments to provide both logistical support and facilities for federal quarantines. See 42 U.S.C. § 268(b) (requiring customs officers to aid in the enforcement of quarantine regulations). CDC lacks the resources, staffing, and facilities to quarantine covered aliens. Similarly, DHS has informed CDC that in the near term, it is not financially or logistically practicable for DHS to build additional facilities at POEs and Border Patrol stations for purposes of quarantine or isolation.

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The March 20, 2020 Order shall remain in effect until 11:59 p.m. EDT on May 20, or until I determine that the danger of further introduction of COVID-19 into the United Sates has ceased to be a serious danger to the public health, whichever is sooner. I may further amend or extend the March 20, 2020 Order as needed to protect the public health.
This Order is not a rule subject to notice and comment under the Administrative Procedure Act (APA). In the event this order qualifies as a rule subject to notice and comment, a delay in effective date are not required because there is good cause to dispense with prior public notice and the opportunity to comment on this order and a delay in effective date.22 Given the public health emergency caused by COVID-19, it would be impracticable and contrary to the public health— and, by extension, the public interest—to delay the issuing and effective date of this order. In addition, because this order concerns ongoing discussions with Canada and Mexico on how to best control COVID-19 transmission over our shared borders, it directly “involve[s] . . . a . . . foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). Notice and comment and a delay in effective date would not be required for that reason as well.
*** The March 20, 2020 Order shall remain in effect until 11:59 p.m. EDT on May 20, 2020. In testimony whereof, the Director, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, has hereunto set his hand at Washington, D.C., this 19th day of April, 2020.
Robert R. Redfield, MD Director Centers for Disease Control and Prevention
22 See 5 U.S.C. §§ 553(b)(B) and (d)(3).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

EXHIBIT D

1

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U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)
ORDER UNDER SECTIONS 362 & 365 OF THE PUBLIC HEALTH SERVICE ACT (42 U.S.C. §§ 265, 268):
AMENDMENT AND EXTENSION OF ORDER SUSPENDING INTRODUCTION OF CERTAIN PERSONS FROM COUNTRIES WHERE A COMMUNICABLE DISEASE
EXISTS
I. Introduction
I am amending the Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, issued on March 20, 2020 (hereinafter, March 20, 2020 Order or Order) and extended on April 20, 2020 (hereinafter, April 20, 2020 Extension or Extension), to clarify that it applies to all land and coastal Ports of Entry (POEs) and Border Patrol stations1 at or near the United States’ border with Canada or Mexico that would otherwise hold covered aliens in a congregate setting. I am extending the duration of the Order until I determine that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, and continuation of the Order is no longer necessary to protect the public health. Every 30 days, the Centers for Disease Control and Prevention (CDC) shall review the latest information regarding the status of the COVID-19 pandemic and associated public health risks to ensure that the Order remains necessary to protect the public health. Upon determining that the further introduction of COVID-19 into the United States is no longer a serious danger to the public health necessitating the continuation of this Order, I will publish a notice in the Federal Register terminating this Order and its Extensions.
II. History of Order
A. March 20, 2020 Order
I issued the March 20, 2020 Order pursuant to sections 362 and 365 of the Public Health Service (PHS) Act, 42 U.S.C. §§ 265, 268, and the Act’s implementing regulations, which authorize the Director of CDC to suspend the introduction of persons into the United States when the Director determines that the existence of a communicable disease in a foreign country or place creates a serious danger of the introduction of such disease into the United States, and the danger is so increased by the introduction of persons from the foreign country or place that a temporary suspension of such introduction is necessary to protect the public health.
The March 20, 2020 Order suspended introduction of certain “covered aliens” into the United States for a period of 30 days. The March 20, 2020 Order described “covered aliens” as follows:
1 As explained below, air POEs are excluded from the Amended Order and Extension because they do not present the same public health risk as land and coastal POEs.
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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 border with Canada or Mexico, subject to exceptions. This order does not apply to U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed forces of the United States, and associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE.
The March 20, 2020 Order also did not apply to “persons whom customs officers of DHS determine, with approval from a supervisor, 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.”
The March 20, 2020 Order was based on the following determinations:
• COVID-19 is a communicable disease that poses a danger to the public health;
• COVID-19 is present in numerous foreign countries, including Canada and Mexico;
• There is a serious danger of the introduction of COVID-19 into the land POEs 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;
• But for a suspension-of-entry order under 42 U.S.C. § 265, covered aliens would be subject to immigration processing at the land POEs and Border Patrol stations, and during that processing many of them (typically aliens who lack valid travel documents and are therefore inadmissible) would be held in the common areas of the facilities, in close proximity to one another, for hours or days; and
• Such introduction into congregate settings of persons from Canada or Mexico would increase the already serious danger to the public health to the point of requiring a temporary suspension of the introduction of covered aliens into the United States.
B. April 20, 2020 Extension
On April 20, 2020, I extended the March 20, 2020 Order until 11:59 p.m. EDT on May 20, 2020. The April 20, 2020 Extension found that the determinations of the March 20, 2020 Order remain correct, and further determined that the suspension of introduction of covered aliens should continue for another 30 days based on the increasing numbers of COVID-19 infections in Canada, Mexico, and the United States, and the highly dynamic domestic health care landscape.
2

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As detailed below, the Order has proven effective in reducing the risk of COVID-19 within POEs and Border Patrol stations, and the latest information on the status of the pandemic in Canada, Mexico, and the United States justifies issuing this Amendment and Extension until I determine that the serious danger of further introduction of COVID-19 into the United States has ceased to be a danger to the public health.
III. The Order has reduced the risk of COVID-19 transmission in POEs and Border Patrol stations
Recent DHS data indicates the March 20, 2020 Order and April 20, 2020 Extension have 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, thereby reducing the risk of COVID-19 infection among DHS personnel and others within these facilities.
DHS has provided CDC with statistical information on the impact of the Order and Extension, which supports my decision to further extend the suspension. For example, following issuance of the March 20, 2020 Order, DHS data on operational encounters with covered aliens demonstrate that the population of covered aliens held in POEs and Border Patrol stations was reduced by 88 percent. Specifically, in the 46-day period preceding the March 20, 2020 Order (i.e., February 3, 2020 to March 20, 2020), there was a daily average of 3,249 covered aliens in custody at POEs and Border Patrol stations. In the 47-day period following the March 20, 2020 Order (i.e., March 21, 2020 to May 6, 2020), there was a daily average of 395 covered aliens in custody, with approximately 100 aliens in CBP facilities at any given time. By significantly reducing the number of covered aliens held in POEs and Border Patrol stations, the Order and Extension have reduced the density of covered aliens held in congregate custody within these facilities, which reduces the risk of exposure to COVID-19 for DHS personnel and others in POEs and Border Patrol stations.
IV. Conditions in Canada, Mexico, and the United States warrant continued implementation of the Order
Since the April 20, 2020 Extension, COVID-19 has continued to spread. Canada and Mexico continue to see increasing numbers of COVID-19 infections and deaths. In the United States, many states continue to experience growth in the number of confirmed COVID-19 cases, as more states enter the acceleration phase of the pandemic. Although certain early hotspots are beginning to see improvement, and certain areas of the country are beginning a phased reopening of their communities, millions of Americans continue to comply with stay-at-home orders and practice social distancing, most schools and businesses remain closed, and health care providers across the country continue to strive to meet the demand for COVID-19-related care. Epidemiologically speaking, the United States as a whole remains in the acceleration phase of the
3

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pandemic.2 Accordingly, there remains a serious risk to the public health that COVID-19 will continue to spread to unaffected communities within the United States, or further burden already affected areas. At this critical juncture, it would be counterproductive to undermine ongoing public health efforts by relaxing restrictions on the introduction of covered aliens who pose a risk of further introducing COVID-19 into the United States.
A. Canada
As of May 9, 2020, Canada has reported 66,780 confirmed cases of COVID-19, and a total of 4,628 deaths. Canada has tested 1,067,595 people for COVID-19.3 The Public Health Agency of Canada believes that the COVID-19 pandemic may have reached its peak, but expects that the number of confirmed COVID-19 cases will continue to increase.4 The Canadian government estimates that 81 percent of COVID-19 cases are the result of community transmission.5 Canadian modeling indicates that, with the use of strong epidemic controls resulting in a 2.5 percent infection rate, Canada could see 940,000 people with infections, 73,000 hospitalizations, and 23,000 people requiring intensive care over the course of the COVID-19 pandemic.6 Canada continues to enforce robust public health measures to slow the spread of COVID-19; non-essential businesses and public schools remain largely closed, and public events remain cancelled.7
B. Mexico
2 CDC, Situation Summary (updated Apr. 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html; see also Dr. Anne Schuchat, MMWR and Morbidity and Mortality Weekly Report, U.S. Dep’t. of Health and Human Services, Public Health Response to the Initiation and Spread of Pandemic COVID-19 in the United States, February 24–April 21, 2020 (May 8, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6918e2.htm#suggestedcitation 3 Government of Canada, Coronavirus disease (COVID-19): Outbreak Update (May 9, 2020), https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html?topic=tilelink#a2.
4 Government of Canada, Epidemiological Summary of COVID-19 Cases in Canada (May 9, 2020), https://healthinfobase.canada.ca/covid-19/epidemiological-summary-covid-19-cases.html. 5 Id. 6 Public Health Agency of Canada, COVID-19 in Canada: Using Data and Modeling to Inform Public Health Action (last updated May 3, 2020), https://www.canada.ca/en/public-health/services/publications/diseasesconditions/covid-19-using-data-modelling-inform-public-health-action.html.
7 Schools in Quebec are scheduled to re-open May 11 with restrictions. See Solarina Ho, CTV News (May 4, 2020) https://www.ctvnews.ca/health/coronavirus/when-will-school-resume-what-we-know-province-by-province1.4923667; see also generally Marc Montgomery, Radio Canada International (May 5, 2020) https://www.rcinet.ca/en/2020/05/05/covid-19-the-2020-summer-of-fun-events-that-werent/.
4

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As of May 9, 2020, Mexico has reported 29,616 confirmed cases of COVID-19 and 2,961 deaths.8 The Mexican Health Ministry believes that there are approximately 8 additional cases for each confirmed case of COVID-19.9 On April 21, 2020, government officials announced that Mexico has entered Phase III of the COVID-19 pandemic, the Mexican government’s highest level of public health emergency.10 As the pandemic continues, there are media reports of hospitals in Mexico City turning away potential COVID-19 cases and fears that Mexico lacks sufficient ventilators.11 Mexico’s initial modeling, based on Chinese data reported by the World Health Organization (WHO), assumed a 0.2 percent infection rate with 250,656 people infected during the acceleration phase of the pandemic.12 Of those people, 70 percent (175,459) are anticipated to seek medical care.13 Among people seeking medical care, it is projected that 80 percent (140,367) will be ambulatory patients, 14 percent (25,564) will need to be hospitalized without intensive care, and 6 percent (10,528) will require intensive care.14 Non-governmental models and estimates indicate that Mexico may have between 620,000 and 730,000 symptomatic COVID-19 cases.15
C. United States
8 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report – 110 (May 9, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200509covid-19-sitrep110.pdf?sfvrsn=3b92992c_4.
9 Mexico News Daily, New Model Show Highest Number of Virus Cases Will Come Sooner Than Expected (Apr. 24, 2020), https://mexiconewsdaily.com/news/coronavirus/new-model-shows-virus-cases-will-come-sooner-thanexpected/.
10 James Pasley, MSN News Insider, Mexico has Moved to “Phase 3” – its Most Serious Level of Coronavirus Alert – and Faces a Looming Outbreak. Here’s how it got to this Point (Apr. 23, 2020), https://www.msn.com/enus/news/other/mexico-has-moved-to-phase-3-e2-80-94-its-most-serious-level-of-coronavirus-alert-e2-80-94-andfaces-a-looming-outbreak-heres-how-it-got-to-this-point/ss-BB135RGq/.
11 Andrea Navarro, Bloomberg, Mexico City Top Hospitals Reach Capacity, Reject Virus Patients (Apr. 28, 2020), https://www.bloomberg.com/news/articles/2020-04-28/mexico-city-top-hospitals-reach-capacity-reject-viruspatients.
12 Secretaria De Salud, COVID-19: Comunicado Tecnico Diario (Mar. 17, 2020), available at https://www.gob.mx/cms/uploads/attachment/file/541879/COVID-19__Presentacion_Comunicado_Tecnico_Diario_2020.03.17.pdf.pdf.
13 Id.
14 Id.
15 See Jorge Galindo, Javier LaFuente, El País, The Magnitude of the Epidemic in Mexico (May 8, 2020), https://elpais.com/sociedad/2020-05-08/la-magnitud-de-la-epidemia-en-mexico.html; Juan Montes, The Wall Street Journal, Death Certificates Point to Much Higher Coronavirus Toll in Mexico (May 8, 2020), https://www.wsj.com/articles/death-certificates-point-to-much-higher-coronavirus-toll-in-mexico-11588957041; Azam Ahmed, Hidden Toll: Mexico Ignores Wave of Coronavirus Deaths in Capital (May 8, 2020), https://www.nytimes.com/2020/05/08/world/americas/mexico-coronavirus-count.html.
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As of May 9, 2020, the United States has reported 1,274,036 confirmed cases of COVID19 and 77,034 deaths.16 Community transmission of COVID-19 is continuing in many locations across the United States. Public health measures to slow the spread of COVID-19 so as to avoid overwhelming health care systems have, to date, largely proven successful.17 However, several cities and states, including several located at or near U.S. borders, continue to experience widespread, sustained community transmission that has put their healthcare and public health systems remain at risk of being overwhelmed.18
CDC continues to recommend that all Americans practice vigorous hand hygiene, engage in social distancing, limit non-essential travel,19 and wear cloth face coverings when out in public.20 Nevertheless, not all areas of the United States are currently experiencing high rates of infection or numbers of confirmed cases.21 Limiting the spread of COVID-19 to un- or lessaffected areas, and slowing the spread of COVID-19 in highly impacted areas, involves limiting the number of foci, or infected individuals, who may enter these areas. Such efforts are critical as individual states begin to ease public health restrictions on businesses and public activities in an effort to mitigate the economic and other costs of the COVID-19 pandemic.22
V. The Order is amended to apply to land and coastal POEs and Border Patrol stations at or near the border with Canada or Mexico that would otherwise hold covered aliens in a congregate setting
16 CDC, Cases in U.S. (updated May 9, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html.
17 Judy Woodruff, Interview with Vice President of the United States Michael Pence, PBS News Hour (Apr. 17, 2020), https://www.pbs.org/newshour/show/our-health-care-system-has-not-been-overwhelmed-by-covid-19-sayspence.
18 See Johns Hopkins University, COVID-19 United States Cases by County, https://coronavirus.jhu.edu/us-map; see also Letter from Chris D. Van Gorder, President & CEO, Scripps Health, & Daniel L. Gross, Executive Consultant, Sharp HealthCare COVID-19 Strategic Response, to Hon. Alex M. Azar, Secretary of the U.S. Dep’t. of Health & Human Services, and Hon. Chad F. Wolf, Acting Secretary of the U.S. Dep’t. of Homeland Security (Apr. 28, 2020), available at https://www.voiceofsandiego.org/wp-content/uploads/2020/04/Border-Concerns-Letter_ScrippsHealth_Sharp-HealthCare-4.28.20.pdf; see also Letter from Hon. Kristin Gaspar, Supervisor, Third District, San Diego County Board of Supervisors, to Hon. Michael Pence, Vice President of the United States (Apr. 19, 2020), available at https://www.krqe.com/news/border-report/san-diego-county-official-asks-white-house-to-help-mexicocontrol-covid-19/.
19 CDC, COVID-19: How to Protect Yourself & Others (last reviewed May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
20 CDC, COVID-19: Use of Cloth Face Coverings to Help Slow the Spread of COVID-19 (last reviewed May 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
21 See Johns Hopkins University, COVID-19 United States Cases by County, https://coronavirus.jhu.edu/us-map.
22 Executive Office of President and CDC, Guidelines for Opening Up America Again (Apr. 16, 2020), https://www.whitehouse.gov/openingamerica/.
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As noted above, the March 20, 2020 Order and April 20, 2020 Extension defined “covered alien” in terms of the public health risk associated with permitting individuals who have traveled from Canada or Mexico to be introduced into a congregate holding area “in a land Port of Entry (POE) or Border Patrol station at or near the United States borders with Canada and Mexico.” Due to the highly contagious nature of the virus that causes COVID-19 and the mode of transmission, it is determined that the continued introduction of potentially infected individuals into these facilities poses a public health risk given the role of these facilities and their personnel not only in carrying out immigration functions, but also in ensuring safe border crossings for essential goods and persons, and in law enforcement activities such as preventing terrorism and drug trafficking. Because the limited medical capacity in POEs and Border Patrol stations presents a significant obstacle to safely managing the risk of COVID-19 among covered aliens held in these facilities, the public health risk is best addressed by suspending the introduction of covered aliens into land and coastal POEs and Border Patrol stations.23
After consulting with DHS regarding its various operations and ability to rapidly stand-up the containment measures and medical capacity needed to deal with the COVID-19 pandemic, CDC determined that protecting the public health of the United States necessitated temporarily suspending the introduction of covered aliens into the congregate holding areas of POEs and Border Patrol stations at or near the United States’ border with Canada and Mexico. CDC understands that, at least in theory, it is possible to expand and retrofit POEs and Border Patrol stations with the structural and engineering controls necessary to contain COVID-19, and that DHS personnel could be equipped with the necessary PPE and trained in clinically-informed practices to more safely interact with covered aliens. However, CDC believes such an endeavor would be ill-advised in that it would consume a significant amount of scarce medical resources that could otherwise be used to meet the needs of the domestic population. Nor could such interventions— particularly those involving structural and engineering additions or changes to hundreds of DHS facilities—be implemented quickly enough to mitigate the current risk of allowing covered aliens to be introduced into POEs and Border Patrol stations. As noted above, the Order has effectively reduced the population of covered aliens in POEs and Border Patrol stations at or near the border, thereby significantly reducing the risk COVID-19 spreading within these facilities.24
The intent of the March 20, 2020 Order and April 20, 2020 Extension was to suspend the introduction of individuals who have traveled from Canada or Mexico who would otherwise likely have been held in the congregate holding areas of POEs or Border Patrol stations at or near the border with Canada or Mexico, where they could transmit COVID-19 to the DHS personnel and other individuals in those facilities. The public health risk addressed by the Order and Extension was the risk of transmission in the congregate holding areas of POEs and Border Patrol stations created when individuals who have traveled from Canada or Mexico are held for significant periods of time in these facilities because they lack valid documentation for entry into the United
23 The various screening and documentation requirements to board an aircraft justify the exclusion of air POEs from the scope of this Order because they do not pose the same public health risk as land and coastal POEs. In addition, DHS has informed CDC that air POEs do not tend to hold large numbers of persons for the more extended processing that occurs at land and coastal POEs.
24 See supra Section III.
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States. This public health analysis was based, in part, on the operational issues identified by DHS, and on the observations of the United States Public Health Service Scientist Officer who visited the El Paso del Norte POE on March 12-13, 2020. For the purposes of the public health analysis and risk determinations, it is irrelevant whether a particular POE or Border Patrol station is designated by DHS as a “land” or “coastal” facility.25 The relevant factor is whether the facility receives individuals who have traveled from Canada or Mexico and are likely to be held in a congregate setting within a POE or Border Patrol station at or near the border.
DHS has informed CDC that many POEs and Border Patrol stations service both land and coastal borders, such that covered aliens who are apprehended while attempting to enter the United States by a coastal border are held in the same facilities that temporarily hold covered aliens apprehended while crossing into the United States over the land borders with Canada and Mexico.26 These facilities are substantially similar in all respects relevant to the public health analysis. DHS has informed CDC that, like their land-based counterparts, coastal POEs and Border Patrol stations generally have one or more congregate areas where covered aliens are held for processing, and are not structured or equipped to manage covered aliens exposed to or infected with COVID-19, nor to protect DHS personnel and other individuals within those facilities, including other aliens, from exposure to COVID-19. Similarly, covered aliens at coastal POEs and Border Patrol stations spend periods of time (i.e., hours or days) in the congregate holding areas of these facilities while they are processed for immigration purposes that are material from a public health perspective. All POEs and Border Patrol stations lack medical resources sufficient to provide the appropriate level of care required by those infected with COVID-19 and would be forced to rely on local health systems, many of which are straining to meet the medical needs of the domestic population.27
Land and coastal POEs and Border Patrol stations are not structured or equipped to implement recommended COVID-19 screening, isolation/quarantine, or social distancing protocols for even small numbers of covered aliens. As noted in the March 20, 2020 Order, the holding areas of POEs and Border Patrol stations were designed for the purpose of short-term processing and holding in a congregate setting. The vast majority of these facilities lack the areas needed to effectively isolate or quarantine covered aliens while COVID-19 test results are pending. Moreover, the process of screening and isolating/quarantining covered aliens suspected of
25 DHS has advised CDC that “coastal borders” refers to any U.S. border that is adjacent to a waterway, rather than land. DHS has further advised CDC that “waterway” refers to any large body of water (e.g., Pacific Ocean, Atlantic Ocean, and Gulf of Mexico). For the purpose of this Order, “coastal” applies to any waterway from which persons traveling through Canada and Mexico may enter the United States (e.g. Pacific, Gulf of Mexico, Lake Michigan, Rio Grande).
26 Indeed, the DHS enforcement statistics cited in the March 20, 2020 Order included apprehensions of inadmissible aliens who attempted to cross a U.S. coastal border. See Exhs. 2-3, Order Suspending Introduction of Certain Persons from Countries where a Communicable Disease Exists (Mar. 20, 2020), available at https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf.
27 See CDC, COVID View Weekly Summary (updated May 8, 2020), https://www.cdc.gov/coronavirus/2019ncov/covid-data/covidview/index.html.
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COVID-19 infection would require covered aliens to move throughout various sections of the facility, creating a risk of exposure to all nearby—including DHS personnel and other aliens.
I hereby amend the March 20, 2020 Order and April 20, 2020 Extension by adding the modifier “coastal” so that this Amended Order and Extension expressly applies to land and coastal POE and Border Patrol stations operated by DHS at or near the border with Canada or Mexico. Accordingly, the definition of “covered alien” is amended as follows:
Persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land or coastal Port of Entry (POE) or Border Patrol station at or near the United States border with Canada or Mexico, subject to exceptions.28
This Amendment and Extension does not alter any of the exclusions or exceptions to the March 20, 2020 Order or April 20, 2020 Extension. Like the March 20, 2020 Order and April 20, 2020 Extension, the Amended Order and Extension does not apply to U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed forces of the United States, and associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE. The Amended Order and Extension also does not apply to persons whom customs officers determine, with approval from a supervisor, 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.29 DHS shall consult with CDC concerning how these types of caseby-case, individualized exceptions shall be made to help ensure consistency with current CDC guidance and public health assessments.
VI. Extended Duration Subject to Recurring 30 Day Review
As discussed above, the number of confirmed cases of COVID-19 in Canada, Mexico, and the United States continue to increase. The COVID-19 public health emergency determination by the Secretary of HHS has remained in effect since February 4, 2020.30 As individual states in the United States enter different phases of the pandemic, the demand for COVID-19-related care and the challenges of providing that care are rapidly changing. Although some states are beginning to
28 CDC 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 Amended Order and Extension. For example, it may be unclear whether individuals who arrive at a coastal border by boat departed from Mexico, or another country, such as Haiti. CDC defers to DHS regarding the operational considerations necessary to address such scenarios.
29 In addition to CBP and U.S. Coast Guard officers, customs officers include any agent or other person, including foreign law enforcement officers, authorized by law or designated by the Secretary of Homeland Security to perform the duties of a customs officer. See 19 U.S.C. § 1401(i).
30 Determination of Public Health Emergency, 85 Fed. Reg. 7316 (Feb. 7, 2020); see also HHS Secretary, “Renewal of Determination That A Public Health Emergency Exists,” April 21, 2020, available at: https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-21apr2020.aspx.
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relax restrictions and plan for the reopening of their communities, the reopening process will occur in phases that are closely tied to local infection rates, as well as other considerations. As the United States collectively determines how to best balance protecting public health with resuming normal activities, it is critical that the country continues to adhere to existing containment strategies, where possible—including the suspended introduction of covered aliens.
Furthermore, although stay-at-home orders and social distancing have been an important part of controlling the COVID-19 pandemic and “flattening the curve,” these strategies alone cannot eliminate the risk of COVID-19 in the United States. Lasting protection from COVID-19 will be achieved with a widely-available vaccine that confers immunity to the uninfected, widelyavailable therapeutics for those who are infected, or some combination of both.31 While there is unprecedented collaboration between public and private stakeholders to develop vaccines and therapeutics for COVID-19, a widely available finished product is still months away.
The public health risks that are the basis for this Amended Order and Extension are unlikely to abate in the coming months. Covered aliens cannot be introduced into the congregate holding areas of land and coastal POEs and Border Patrol stations without significantly increasing the risk of infection among DHS personnel and others in those facilities. Accordingly, this Amended Order and Extension shall remain in effect until I determine that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health.
CDC shall reassess the Order every 30 days to determine whether the latest relevant information regarding the COVID-19 pandemic warrants continued implementation, or whether the Order should be modified or terminated.
VII. Determination and Implementation
Based on both the foregoing and additional insight gained over the past two months, I find that the determinations underlying the March 20, 2020 Order and April 20, 2020 Extension remain correct, and that the situation in Canada, Mexico, and the United States continues to require suspension of the introduction of covered aliens into land and coastal POEs and Border Patrol stations at or near the border in order to protect the public health from COVID-19.
The March 20, 2020 Order and April 20, 2020 Extension were based on the risk of introduction of individuals who have traveled through Canada and Mexico into the congregate settings of POEs and Border Patrol stations. Because COVID-19 is a contagious disease spreading throughout Canada and Mexico, individuals coming from these countries pose a risk of introducing or spreading COVID-19 into the United States once they enter POEs and Border Patrol stations at or near the border. Because covered aliens lack proper immigration documentation for entering the United States, they would have been likely to spend a material amount of time (i.e., hours or days) in the congregate holding areas of POEs and Border Patrol stations while they undergo immigration processing. POEs and Border Patrol stations have capacity only for short-term processing and holding of inadmissible aliens. They were never intended to provide the medical
31 CDC does not consider Remdesivir to be a therapeutic for COVID-19 for the purposes of the Amended Order and Extension because Remdesivir is not currently approved by the Food and Drug Administration to treat COVID19.
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screening, monitoring, and isolation functions needed to contain COVID-19, especially on the scale demanded by the ongoing pandemic. As POEs and Border Patrol stations lack appropriate medical capabilities, any COVID-19-related care of covered aliens would have to be met by local healthcare systems in the United States, which are already straining to respond to the needs of the domestic population.
Moreover, 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. CDC and local public health jurisdictions simply lack the resources and personnel necessary to effectively monitor covered aliens who would otherwise be conditionally released into the United States but for the Order. Accordingly, covered aliens must be returned to the country from which they entered the United States, to their country of origin, or to another appropriate location.
The statistical information provided by DHS shows the March 20, 2020 Order and April 20, 2020 Extension have significantly reduced the number of covered aliens in custody at POEs and Border Patrol stations, practically eliminating one channel through which COVID-19 can enter the United States. In light of the current lack of a widely-available vaccine or therapeutic for COVID-19, protecting the public health warrants further extending the Order.
Accordingly, I determine that COVID-19 remains a contagious disease that is present in many countries including Canada and Mexico; covered aliens arriving from those countries pose a risk of further introducing or spreading COVID-19 into the United States while they are held in the congregate holding areas of POEs and Border Patrol stations at or near the border; and this risk is serious enough to require suspending the introduction of such covered aliens into all land and coastal POEs and Border Patrol stations at or near the border with Canada or Mexico that would otherwise hold covered aliens in a congregate setting.
I consulted with DHS before issuing this Amended Order and Extension and requested that DHS continue to implement the operational plan developed to carry out the March 20, 2020 Order and April 20, 2020 Extension because CDC does not have the capability, resources, or personnel needed to alternatively issue quarantine or isolation orders.32
This Amended Order and Extension applies to all persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in any land or coastal POE or Border Patrol station at or near the border with Canada and Mexico, subject to exceptions.
This Amended Order and Extension does not apply to U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed forces of the United States, and
32 As previously discussed in the March 20, 2020 Order, CDC relies on the Department of Defense, other federal agencies, and state and local governments to provide both logistical support and facilities for federal quarantines. See 42 U.S.C. § 268(b) (requiring customs and Coast Guard officers to aid in the enforcement of quarantine regulations). CDC lacks the resources, staffing, and facilities to quarantine covered aliens. Similarly, DHS has informed CDC that in the near term, it is not financially or logistically practicable for DHS to build additional facilities at POEs and Border Patrol stations for purposes of quarantine or isolation.
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associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE. Additionally, this Amended Order and Extension does not apply to persons whom customs officers determine, with approval from a supervisor, 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. DHS shall consult with CDC concerning how these types of case-bycase, individualized exceptions shall be made to help ensure consistency with current CDC guidance and public health assessments.
This Amended Order and Extension is not a rule subject to notice and comment under the Administrative Procedure Act (APA). In the event this order qualifies as a rule subject to notice and comment, a delay in effective date is not required because the foregoing discussion shows that there is good cause to dispense with prior public notice and the opportunity to comment on this order and a delay in effective date.33 Given the public health emergency caused by COVID-19, it would be impracticable and contrary to the public health—and, by extension, the public interest— to delay the issuing and effective date of this Order. In addition, because this Order concerns ongoing discussions with Canada and Mexico on how to best control COVID-19 transmission over our shared borders, it directly “involve[s] . . . a . . . foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). Notice and comment and a delay in effective date would not be required for that reason as well.
*** This Amended Order and Extension goes into effect at 12:00 a.m. Eastern Daylight Time (EDT) on May 21, 2020 and shall remain in effect until I determine that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, and the continuation of the Order is no longer necessary to protect the public health. Upon making this determination, I will publish a notice in the Federal Register terminating this Order and its Extensions. CDC shall reassess the Order every 30 days to determine whether current conditions warrant continued implementation, modification, or termination of the Order. I may further amend or extend the Order as needed to protect the public health. In testimony whereof, the Director, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, has hereunto set his hand at Washington, D.C. this 19th day of May, 2020.
Robert R. Redfield, MD Director Centers for Disease Control and Prevention
33 See 5 U.S.C. § 553(b)(B) and (d)(3).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

[PROPOSED] ORDER Upon consideration of Plaintiff’s Emergency Motion for Temporary Restraining Order and all supporting materials, including the amicus briefs filed in this action, as well as Defendants’ opposition to that motion, and any reply thereto, it is hereby ORDERED that Plaintiff’s motion is DENIED. SO ORDERED.

________________________ Date

______________________________ CARL J. NICHOLS United States District Judge

Case 1:20-cv-01509-CJN Document 28-7 Filed 06/17/20 Page 2 of 3
NAMES OF PERSONS TO BE SERVED WITH PROPOSED ORDER
Pursuant to LCvR 7(k), the following attorneys are entitled to be notified of the entry of the foregoing:
Celso Perez ACLU Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (646) 905-8953 Cperez@aclu.org
Arthur B. Spitzer American Civil Liberties Union of the District of Columbia 915 15th Street, NW 2nd Floor Washington, DC 20005 Phone: (202) 601-4266 Fax: (202) 457-0805 Artspitzer@gmail.com
Jamie L. Crook Center for Gender and Refugee Studies 200 McAllister Street San Francisco, CA 94102 (415) 565-4877 Crookjamie@uchastings.edu
Lee Gelernt American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2616 Fax: (212) 549-2654 Lgelernt@aclu.org
Cody H. Wofsy American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0785 Fax: (415) 395-0950 Cwofsy@aclu.org
Daniel Antonio Galindo ACLU Foundation Immigrants’ Rights Project
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125 Broad Street, 18th Floor New York, NY 10004 (646) 905-8907 Dgalindo@aclu.org
Morgan Russell American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 (415) 343-0776 Irp_Mr@aclu.org
Stephen Bonggyun Kang American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Phone: (415) 343-0774 Fax: (415) 395-0950 Skang@aclu.org
Jean Lin U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Room 11532 Washington, DC 20005 Phone: (202) 514-3716 Fax: (202) 616-8470 Jean.Lin@usdoj.gov
Kevin Snell U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington DC 20005 Phone: (202) 305-0924 Fax: (202) 616-8460 Kevin.Snell@usdoj.gov
Bradley Craigmyle U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 616-8101 Bradley.T.Craigmyle@usdoj.gov
3

 
 Case 1:20-cv-01509-CJN Document 38 Filed 06/24/20 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his farther and next fried, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Action No. 1:20-cv-01509 (CJN)

ORDER This matter is before the Court on Plaintiff’s Emergency Motion for Temporary Restraining Order (“Motion”), ECF No. 2. For the reasons stated by the Court in the telephonic hearing held on this date, it is hereby ORDERED that Plaintiff’s Motion is GRANTED. The Court’s stay in the June 11, 2020 Order, ECF No. 9, is extended: Plaintiff shall not be returned to his home country or removed or otherwise expelled from the United States unless and until the Court resolves this action on the merits. It is further ORDERED that on or before June 29, 2020, the Parties shall meet and confer and file a Joint Status Report proposing a summary judgment briefing schedule. It is so ORDERED.

DATE: June 24, 2020

CARL J. NICHOLS United States District Judge

1

 
 Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 20-cv-01509-CJN ) ) ) ) ) ) ) )

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR EMERGENCY STAY OF REMOVAL

Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 2 of 36
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................ ii INTRODUCTION....................................................................................................1
I. SECTION 265 DOES NOT AUTHORIZE PLAINTIFF’S DEPORTATION. ......................... 1 A. Section 265 Provides No Implied Deportation Power.............................................................. 2 B. Section 265 Was Designed To Regulate Transportation. ........................................................ 3 C. No Deference Is Owed To The Government’s Claim To Deportation Power. .................... 10
II. SECTION 265 DOES NOT OVERRIDE THE PROTECTIONS FOR UNACCOMPANIED CHILDREN AND ASYLUM SEEKERS................................................................................... 12
A. Section 265 Does Not Override The TVPRA And Protection Statutes. .................................. 13 B. The Assertion Of Power To Override Protections Is Not Entitled To Deference................... 16 C. J.B.B.C.’s Statutory Rights Were Unquestionably Violated................................................. 18 III. DEFENDANTS’ ACTIONS ARE ARBITRARY AND CAPRICIOUS............................... 20 IV. THE BALANCE OF HARMS TIPS DECIDEDLY IN J.B.B.C.’S FAVOR. ...................... 23
CONCLUSION.......................................................................................................25
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TABLE OF AUTHORITIES
Cases Am. Wild Horse Pres. Campaign v. Perdue,
873 F.3d 914 (D.C. Cir. 2017) .................................................................................................. 23
Ass’n of Reptile Keepers, Inc. v. Jewell, 106 F. Supp. 3d 125 (D.D.C. 2015) .......................................................................................... 24
Atl. City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir. 2002) ...................................................................................................... 16
Brown v. GSA, 425 U.S. 820 (1976) .................................................................................................................. 14
Career College Ass’n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996) .................................................................................................. 17
Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000) ........................................................................................................ 23
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ................................................................................................ 10, 11, 16, 18
Christensen v. Harris Cty., 529 U.S. 576 (2000) .................................................................................................................. 16
Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993) .................................................................................................................... 13
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ................................................................................................................. 20
Clark v. Martinez, 543 U.S. 371 (2005) ................................................................................................................. 2,3
Demjanjuk v. Holder, 563 F.3d 565 (6th Cir. 2009)..................................................................................................... 24
Devitri v. Cronen, 289 F. Supp. 3d 287(D. Mass. 2018) ........................................................................................ 24
DHS v. Regents of the Univ. of Calif., _ S. Ct. _, 2020 WL 3271746 at *10 (2020) ............................................................... 18, 20, 22
ii

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Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 (1995) .............................................................................................................. 4, 10
District of Columbia v. Dep’t of Labor, 819 F.3d 444 (D.C. Cir. 2016) ............................................................................................ 11, 12
East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018)............................................................................................... 14, 15
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ......................................................................................................... 16,17
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .................................................................................................................. 20
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ............................................................................................... 13, 14, 15, 19
Fox v. Clinton, 684 F.3d 67 (D.C. Cir. 2012) .................................................................................................... 11
Gordon v. New York Stock Exchange, Inc., 422 U.S. 659 (1975) .................................................................................................................. 17
Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) ..................................................................................... 11, 24
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ................................................................................................................... 16
Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638 (D.C. Cir. 2000) .................................................................................................. 14
Judulang v. Holder, 565 U.S. 42 (2011) .............................................................................................................. 10, 16
Kansas v. Garcia, 140 S. Ct. 791 (2020) ................................................................................................................ 13
Kaufman v. Nielsen, 896 F.3d 475 (D.C. Cir. 2018) ............................................................................................ 16, 17
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ........................................................................................................ 10, 18
iii

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Louisiana v. Mathews, 427 F. Supp. 174 (E.D. La. 1977) ............................................................................................ 12
Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014) ................................................................................... 11, 14, 18
Luis v. United States, 136 S. Ct. 1083 (2016) .............................................................................................................. 10
Merck & Co. v. United States Dep’t of Health & Human Servs., __ F.3d __, 2020 WL 3244013 (D.C. Cir. June 16, 2020)............................................... 3, 4, 10
Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001) ............................................................................................... 16
Michigan v. EPA, 576 U.S. 743 (2015) .................................................................................................................. 20
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................................. 20, 21
Mylan Laboratories, Inc. v. Thompson, 389 F.3d 1272 (D.C. Cir. 2004) ................................................................................................ 17
Nasrallah v. Barr, 140 S. Ct. 1683 (2020) ................................................................................................................ 6
Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747 (D.C. Cir. 2000) .................................................................................................. 10
Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102 (D.C. Cir. 2019) ................................................................................................ 21
National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) .................................................................................................................. 17
Nken v. Holder, 556 U.S. 418 (2009) ................................................................................................................. 24
Osorio-Martinez v. Att’y Gen., 893 F.3d 153 (3d Cir. 2018) ...................................................................................................... 25
Pereira v. Sessions, 138 S. Ct. 2105 (2018) .............................................................................................................. 10
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Prof. Reactor Operator Soc. v. NRC, 939 F.2d 1047 (D.C. Cir. 1991) ............................................................................................... 16
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) .................................................................................................................. 14
Ramirez v. ICE, 310 F. Supp. 3d 7 (D.D.C. 2018) .............................................................................................. 25
Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Defense, 87 F.3d 1356 (D.C. Cir. 1996) .................................................................................................. 16
Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014) .................................................................................................................... 17
Soeung v. Holder, 677 F.3d 484 (1st Cir. 2012) ............................................................................................... 18, 19
Strawberry v. Albright, 111 F.3d 943 (D.C. Cir. 1997) .................................................................................................. 14
Thatikonda v. USCIS, No. CV 19-685 (RC), 2020 WL 2126716 (D.D.C. May 5, 2020) ............................................ 24
Trump v. Hawaii, 138 S. Ct. 2392 (2018) .............................................................................................................. 14
Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936) ........................................................................................................................ 3
W. Coal Traffic League v. Surface Transp. Bd., 216 F.3d 1168 (D.C. Cir. 2000) ................................................................................................ 17
Walsh v. Preston, 109 U.S. 297 (1883) ................................................................................................................ 4, 5
Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018) .......................................................................................................... 3, 15
Zadvydas v. Davis, 533 U.S. 678 (2001) .................................................................................................................... 5
Statutes
42 U.S.C. § 264(c) .................................................................................................................. 11, 12
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42 U.S.C. § 265...................................................................................................................... passim 42 U.S.C. § 271............................................................................................................................. 12 42 U.S.C. § 271(a) .......................................................................................................................... 6 8 U.S.C. § 1182(f)................................................................................................................... 12, 14 8 U.S.C. § 1225(b)(1) ............................................................................................................. 11, 12 8 U.S.C. § 1225(b)(1)(B)(iii)(III) ................................................................................................. 19 8 U.S.C. § 1229a ........................................................................................................................... 20 8 U.S.C. § 1232(a)(5)(D) .............................................................................................................. 14 8 U.S.C. § 1232(b)(3) ................................................................................................................... 25 8 U.S.C. § 1325............................................................................................................................. 12 8 U.S.C. §1182(a)(1)..................................................................................................................... 11 8 U.S.C. §1222.............................................................................................................................. 11 8 U.S.C. §1232(c)(3)(A) ............................................................................................................... 22 8 U.S.C.§ 1225(b)(1)(B)(iii)(II).................................................................................................... 19 Act of Aug. 5, 1892, Pub. L. No. 52- 380, 27 Stat. 349, 366 (1892)............................................ 13 Act of March 3, 1891, ch. 551, §§ 10, 11, 26 Stat. 1084, 1086 ...................................................... 6 Act of March 3, 1903, chap. 1012, §§ 8, 9, 19, 20, 21, 32 Stat. 1213 ............................................ 6 Chinese Exclusion Act of May 6, 1882, ch. 126, §§ 2, 12, 22 Stat. 58, 59, 61 .............................. 6 Coronavirus Aid, Relief, and Economic Security Act,
Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020) ................................................................ 12 Coronavirus Preparedness and Response Supplemental Appropriations Act,
Pub. L. No. 116-123, 134 Stat. 146 (Mar. 6, 2020) .................................................................. 12 Families First Coronavirus Response Act,
Pub. L. No. 116-127, 134 Stat. 178 (Mar. 18, 2020) ................................................................ 12 Paycheck Protection Program and Health Care Enhancement Act,
Pub. L. No. 116-139, 134 Stat. 620 (Apr. 24, 2020) ................................................................. 12 vi

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Other Authorities A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) ................... 10 COVID-19 Measures Related to Asylum and Migration Across Europe (Apr. 8, 2020),
https://tinyurl.com/ybahhmro .................................................................................................... 22 Introduce, Webster’s Collegiate Dictionary 453 (1st ed. 1898) ..................................................... 4 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............................................... 25 Minimizing the Risk of Exposure to COVID-19 in Canada Order, P.C. 2020-0161, § 4(2)(d) (Mar. 20, 2020), https://tinyurl.com/y888f7yh. ........................................................................ 22 Twenty Days Quarantine, N.Y Times, Sept. 2, 1892 ................................................................... 10 U.S. Dep’t of State, 2019 Country Reports on Human Rights Practices: Honduras 16 (2020) .. 24 Universal English Dictionary 1067 (John Craig ed. 1861) ............................................................ 4 Regulations 70 Fed. Reg. 71,892 (Nov. 30, 2005).............................................................................................. 8 8 C.F.R. § 208.30(e)...................................................................................................................... 19 8 C.F.R. § 235.3(b)(7)................................................................................................................... 19 80 Fed. Reg. 16,400 (Mar. 27, 2015).............................................................................................. 8 81 Fed. Reg. 54230 (Aug. 15, 2016)............................................................................................... 8 85 Fed. Reg. 16,559 (Mar. 24, 2020)............................................................................................ 11 85 Fed. Reg. 17,060 (Mar. 26, 2020)...................................................................................... 11, 25 85 Fed. Reg. 7874 (Feb. 12, 2020) ................................................................................................. 8 85 Fed. Reg. at 17065 ................................................................................................................... 21 85 Fed. Reg. at 31503 (May 26, 2020) ......................................................................................... 22
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Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 9 of 36 Legislative History 24 Cong. Rec. 359 (1893) ............................................................................................................. 7 24 Cong. Rec. 378 (1893) .............................................................................................................. 6 24 Cong. Rec. 470 (1893) .............................................................................................................. 8 98 Cong. Rec. 4423 (1952) ......................................................................................................... 12
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INTRODUCTION The issue before the Court is whether to allow J.B.B.C. to be sent back to danger pending the outcome of this Court’s merits ruling (which can of course be placed on expedited schedule). Defendants do not, and could not, dispute that this boy can be safely kept in the United States. And while Defendants assert that Plaintiff’s proffered evidence of harm if he is returned is insufficient, Defendants have not presented any contrary evidence. On the merits, Defendants do not grapple with the text, structure, and history of the relevant public health and immigration statutes. Instead, Defendants’ argument reduces to one proposition: Congress must have intended to authorize any action Defendants now believe is necessary. Congress has afforded the government extensive powers, but nowhere authorized deportations outside the immigration law framework. And that makes sense, because the statute on which Defendants rely has always operated as a regulation on transportation companies— meaning that Congress had no reason to authorize deportations. In any event, Congress’s careful and specific safeguards for unaccompanied children and those seeking protection cannot be disregarded. The new Title 42 Process is also arbitrary and capricious, particularly when it comes to children seeking protection, like J.B.B.C. I. SECTION 265 DOES NOT AUTHORIZE PLAINTIFF’S DEPORTATION. Defendants assert that 42 U.S.C. § 265 empowers them to deport Plaintiff. Yet they concede that Title 42 nowhere explicitly grants any deportation power—indeed, the concept is never mentioned in § 265. Although Defendants have never, in the 127 years since § 265 was first enacted, used the statute to deport anyone from the country, they claim to have discovered an implied deportation power in this long-dormant, nearly forgotten statute. But as already explained, Courts greet such claims of late-discovered authority with skepticism, and here all the tools of statutory construction underscore that deportations are not authorized. TRO Br. 7-10. Congress’s choice not to pair § 265 with a deportation power makes sense. 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,
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and it imposed fines and imprisonment on such transportation entities if they violated a public health order. See also Decl. of Adrienne Harrold (“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.
Defendants thus misapprehend Plaintiff’s position. Plaintiff does not argue that § 265 authorizes the deportation of an individual at a port of entry but not someone, like Plaintiff, who enters the country. Gov’t Br. 18-19. Section 265 authorizes no deportations at all. Rather, it provides authority to halt transportation companies from introducing people (noncitizen and citizen alike) from countries suffering an epidemic to the United States, by, for example, ship, train, and, in modern times, aircraft. And even if § 265 could be read also to operate against individuals seeking to come to the United States, it would still not authorize deportations, but only those penalties Congress has established, namely fines and imprisonment.
A. Section 265 Provides No Implied Deportation Power. Nothing in § 265 can be read to grant Defendants any deportation power. To the
contrary, Congress established specific penalties for violations of a § 265 order and has explicitly authorized deportations in the immigration laws when vesting the government with that extreme power. TRO Br. 7-9.
Defendants respond that the Court should nevertheless read an implied power of deportation into the statute. Gov’t Br. 17. The implications of Defendants’ implied-power argument are enormous. The statute refers only to “persons,” and in no way differentiates between citizens and noncitizens. Thus, if removal from the country could be implied as a power “necessarily included” in § 265 to “effectuate” its “purpose,” Gov’t Br. 17, that would be true for all “persons” covered by the statute—including citizens. Defendants shrink from that clear consequence of their position, suggesting that the statute might not even permit a “temporar[y] delay” for citizens, much less removal. Gov’t Br. at 20. But if the statute implicitly provides for removal as a means of enforcement, it does so for everyone, including citizens. See Clark v.
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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). Defendants also try to escape the implications of their position by noting that the regulation at issue here exempts U.S. citizens. Gov’t Br. 19. But that is irrelevant to determining what powers the statute authorizes. Merck & Co. v. United States Dep’t of Health & Human Servs., __ F.3d __, 2020 WL 3244013, at *7 (D.C. Cir. June 16, 2020) (“[T]he breadth of the Secretary’s asserted authority is measured not only by the specific application at issue, but also by the implications of the authority claimed.”).
The extraordinary power of physically removing a person from the United States must be “affirmatively granted,” not divined by implication, and that is especially true when finding an implicit (and unconstitutional) power to remove a citizen. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 12 (1936); TRO Br. 9. Defendants do not respond to Valentine. The public health statutes provide explicit penalties for § 265 violations, but make no mention of deportation—even though Congress has always provided any such authority in the immigration statutes expressly, including in immigration legislation authorizing exclusion on public health grounds passed contemporaneously with the 1893 Act. TRO Br. 8-9; Part I.B, infra. Courts “presume differences in language like this convey differences in meaning[,]” particularly where contemporaneous statutes address related issues. See Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2071-72 (2018) (internal quotation marks omitted).1
B. 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. The text, context, structure, and history all make clear that § 265 was designed to operate
1 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, 2020 WL 3244013, at *7 (rejecting agency’s “construction of the statute [which] would seem to give it unbridled power”).
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on transportation entities. 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’ core argument is that a power to deport would best effectuate Congress’s “purpose of preventing the transmission of a communicable disease.” Gov’t Br. 17. But as Defendants concede, “[e]very statute proposes, not only to achieve certain ends, but also to achieve them by particular means.” Gov’t Br. 27 (quoting Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 136 (1995)); see Merck, 2020 WL 3244013, at *3 (agencies are “bound” by Congress’s choice of “means”). And here, the “means” Congress granted to Defendants in § 265—prohibiting the “introduction” of persons—authorizes regulation only of transportation entities.
The 1893 Act was aimed squarely at travel to this country by ship—and operated as a regulation of the transportation companies that would bring potentially infected individuals to the United States. Congress believed that the regulation of transportation entities would be sufficient to keep out almost all of those with communicable diseases, and accordingly did not create a parallel deportation process on top of the quarantine laws and extensive immigration laws enacted just a few years before, which permitted the detention and removal of any individual with a communicable disease who might still find a way to come to the United States.
1. 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). As Defendants concede, that term—“introduction”—meant then, as now, “‘the act of bringing into a country.’” Gov’t Br. 17 n.11 (quoting 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”). But Defendants fail to grapple with the implications of that textual choice. 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,
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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.2
To the extent Defendants address the meaning of “introduction,” they contend that the term “signals” that § 265 “is not limited to the Nation’s borders.” Gov’t Br. 17. But that does not help Defendants with the relevant distinction here: whether § 265’s use of the term “introduction” regulates individuals coming to the United States or only transportation entities who bring them into the country, i.e., who the statute regulates.3
2. 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).
2 The 1893 Act’s title was “An act granting additional quarantine powers and imposing additional duties upon the Marine-Hospital Service.” When recodified in 1944, § 265 was titled “Suspension of entries and imports from designated places.” That title is consistent with § 265’s text, in that suspending transportation companies’ right to “introduce” people has the effect of suspending those individuals’ entry. Regardless, the title cannot overcome the statute’s text and also sheds no light on what the term “introduction of persons” meant in 1893—which Defendants concede is the relevant question. See Gov’t Br. 17 & n.11. 3 Immigration law has long treated those who enter the country, even unlawfully, differently from those at ports of entry. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001). If § 265 really did authorize an alternative deportation scheme, the Court would need to determine whether and how those immigration doctrines apply to § 265 (which, again, applies equally to citizens). But given the arguments Plaintiff has made, the Court need not reach that issue.
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Critically, the 1893 Act imposed only penalties 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).4
Furthermore, an examination of immigration statutes in force in 1893 makes plain that Congress knew exactly how to regulate 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
4 Defendants say the current penalties provision in 42 U.S.C. § 271(a) has “no bearing” on § 265’s scope because it refers only to the violation of regulations under § 265, not the Act itself. Gov’t Br. 19. But § 265 requires any order issued under its authority to be “in accordance with regulations.” Besides, Defendants concede that what matters is what the language of § 265’s predecessor meant in 1893. Gov’t Br. 17 & n.11. In the original 1893 Act, the penalties put on ships applied to violations of the Act, including Section 7. Act of Feb. 15, 1893, ch. 114, § 1.
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penalty-triggering conduct of such third parties. But Congress said nothing about any power to deport individuals who came to our shores. “[I]t is not the proper role of the courts to rewrite [a law] passed by Congress and signed by the President.” Id.
3. Defendants invoke the legislative history of the 1893 Act in arguing that the statute should be read more expansively to permit a deportation power. Gov’t Br. 20, 24-25. But the legislative history strongly confirms what is demonstrated by the text, context, and structure: Section 7 was a regulation of transportation entities and not a deportation power.
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 363-64 (“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.
Defendants do not squarely address any of this legislative history. Instead, Defendants note that the original text of the bill would have authorized the President to “suspend
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immigration” but was expanded to cover the “introduction” of “people and goods” generally. Gov’t. Br. 20. But that expansion had no relevance to whether the law applied only to transportation entities. It simply ensured the law would also apply to the introduction of U.S. citizens by transportation entities. See 24 Cong. Rec. at 470 (statements of Sens. Gray and Mills) (discussing application of Section 7 to U.S. citizens). Senator Chandler, who was heavily involved in debates on the bill, thus explained: “certainly there can be no objection” to amending Section 7 “to provide that . . . [the President] may, if the exigency demands, exclude all other passenger travel as well as immigration.” Id. at 471 (emphasis added).
4. 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 prohibit the introduction of persons was in 1929, and it did not authorize deportations.5 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
5 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. 71,892, 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).
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United States ports.”6 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.
5. Defendants’ argument for an implied deportation power is thus predicated on a faulty assumption: that to effectuate the “purpose” of § 265, “the power to ‘prohibit’ a person’s ‘introduction’ necessarily includes the power to physically remove.” Gov’t Br. 17. But far from a “nullity,” Gov’t Br. 27, Congress vested the government with a significant power totally separate from any need to deport individuals from the country: shutting down all 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. But it does not explicitly or implicitly give authority to deport individuals outside of the extensive immigration system Congress has enacted and refined over the decades.
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
6 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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quarantine. Twenty Days Quarantine, N.Y Times (Sept. 2, 1892).7 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.
Defendants’ reliance on Justice Thomas’s opinion in Luis v. United States, 136 S. Ct. 1083, 1097 (2016), is thus misplaced. A deportation power is in no way “a necessary predicate” to prohibiting the introduction of persons into the country. Id. Nor does honoring Congress’s choice of means render § 265 “meaningless.” Id. Halting all flights from China, for example, would hardly be meaningless.
In short, Defendants are incorrect that because Congress’s goal was to keep out disease, it implicitly authorized any means to do so. But that is not how statutes are interpreted. Merck, 2020 WL 3244013, at *3 (“agencies are ‘bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes”) (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.” Newport News, 514 U.S. at 136; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) (an “absent provision cannot be supplied by the courts”).
C. No Deference Is Owed To The Government’s Claim To Deportation Power. Defendants fall back on a claim for deference under Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837 (1984). But Chevron is not a “rubber stamp,” Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000), so courts must not embrace statutory interpretations with “reflexive” deference. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring)).
Here, deference is unwarranted at the outset because, even assuming these agency pronouncements might otherwise be subject to Chevron, the CDC Order does not actually offer “an interpretation of any statutory language.” Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011);
7 https://www.nytimes.com/1892/09/02/archives/twenty-days-quarantine-the-government-takesdecisive-action-a.htmlsee
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see also Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018). Rather, the Order merely states that the suspension of the introduction of “covered aliens . . . requires the movement of all such aliens” out of the country “as rapidly as possible.” CDC Order, 85 Fed. Reg. 17,060, 17,067 (Mar. 26, 2020). The regulation’s preamble is similarly conclusory. Control of Communicable Diseases, 85 Fed. Reg. 16,559, 16,563 (Mar. 24, 2020) (“moving” individuals “outside the United States constitutes preventing their ‘introduction’ into the United States for purposes” of regulation). But those are largely statements of Defendants’ perceived policy objectives, not an interpretation of statutory text. See Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 2012) (refusing deference, even where agency purported to interpret statutory text, because it offered “little more than uncited, conclusory assertions of law”).
In any event, deference fails at Chevron’s first step because Defendants’ asserted new deportation power is at odds with “the traditional tools of statutory interpretation—including the statute’s text, history, structure, and context.” Loving v. IRS, 742 F.3d 1013, 1021-22 (D.C. Cir. 2014) (rejecting interpretation as “foreclosed by the statute”); see also District of Columbia v. Dep’t of Labor, 819 F.3d 444, 454 (D.C. Cir. 2016) (rejecting “novel reading” of statute that would “significantly enlarge” its effect). And at Chevron’s second step, Defendants’ interpretation warrants no deference “because it is unreasonable in light of the statute’s text, history, structure, and context.” Loving, 742 F.3d at 1022.
In sum, § 265 is a powerful tool permitting the suspension of transportation to this country. But Defendants have numerous other tools at their disposal under both the public health and immigration laws. Individuals entering from a foreign country can be apprehended, detained, examined, and quarantined. 42 U.S.C. § 264(c). They can be deported under the immigration laws, subject to any applicable substantive and procedural protections. See 8 U.S.C. §§ 1182(a)(1), 1222. Adults without documentation can be put into a special system Congress set up to speed deportations while protecting certain vulnerable migrants. See 8 U.S.C. §
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1225(b)(1) (“expedited removal” system). Defendants can prosecute and fine individuals who violate quarantines, or enter without inspection. 8 U.S.C. § 1325; 42 U.S.C. § 271.8
Further, the President has the power to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” where such entry would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). Notably, Congress specifically contemplated this power might be used in the case of an epidemic abroad. See 98 Cong. Rec. 4423 (1952) (statement of Rep. Walter, bill sponsor) (calling provision “absolutely essential” to have such power “in case of . . . an outbreak of an epidemic in some country”). And the President has used his § 1182(f) authority to address COVID-19. See Gov’t Br. 4. But even the substantial power under § 1182(f) does not override the Trafficking Victims Protection Reauthorization Act (“TVPRA”) and protection statutes. See infra Part II.A.
If Defendants believe these vast powers are insufficient, the Constitution prescribes the solution: “When a new situation arises outside the scope of an old statute, the proper approach under our system of separation of powers is for Congress to amend the statute, not for the Executive Branch and the courts to rewrite the statute beyond what the statute’s terms can reasonably bear.” District of Columbia, 819 F.3d at 450.9 II. SECTION 265 DOES NOT OVERRIDE THE PROTECTIONS FOR
UNACCOMPANIED CHILDREN AND ASYLUM SEEKERS. In the alternative, the Court can decide this emergency motion on narrower grounds, namely that the specific protections Congress enacted for unaccompanied children and those
8 Defendants cite Louisiana v. Mathews, 427 F. Supp. 174 (E.D. La. 1977), to suggest their § 264 powers are broad. Gov’t Br. 29. But that decision represents an application of the penalties Congress authorized to a violation of a public health measure regarding turtles; it offers no support for Defendants’ claim to a deportation power Congress never authorized. Plaintiff takes no issue with Defendants’ general point that they enjoy broad authority over the “apprehension, detention, examination, or conditional release of individuals” at the border under § 264(c). 9 Congress has responded to COVID-19 with extensive legislation. See Coronavirus Preparedness and Response Supplemental Appropriations Act, Pub. L. No. 116-123, 134 Stat. 146 (Mar. 6, 2020); Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178 (Mar. 18, 2020); Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020); Paycheck Protection Program and Health Care Enhancement Act, Pub. L. No. 116-139, 134 Stat. 620 (Apr. 24, 2020).
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fleeing persecution prohibit Plaintiff’s deportation, regardless of whether § 265 authorizes deportation in general.
Defendants do not dispute that Congress has carefully and repeatedly enacted special safeguards for unaccompanied children and persons fleeing persecution. TRO Br. 11-14. These statutes contain specific exceptions from their coverage, but no exception for communicable diseases or public health crises. TRO Br. 13 & nn.2-3. Defendants incorrectly quibble with the scope of some of those protections, but do not dispute that (absent § 265) Plaintiff is entitled to special procedures by virtue of Congress’s solicitude of children and asylum seekers, and in particular, to be transferred to ORR legal custody and get a full immigration hearing. Section 265 must be read in conjunction with the specific protections for those groups. Defendants’ farreaching argument that § 265 permits the Executive to override all such protections is unsupported by the ordinary tools of statutory construction, and not entitled to deference.
A. Section 265 Does Not Override The TVPRA And Protection Statutes. Nothing in the text of § 265 authorizes the government to override the protections for juvenile asylum-seekers like Plaintiff. There is an established way for Congress to “override conflicting provisions” found elsewhere in the U.S. Code: to use a commonplace phrase like “notwithstanding any other provision of law.” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993). That formulation was well known to Congress in 1893, as such language was included in the Constitution itself, and similar “non obstante” clauses were regularly included in legislation. See Kansas v. Garcia, 140 S. Ct. 791, 807 (2020) (Thomas, J., concurring); see also, e.g., Act of Aug. 5, 1892, Pub. L. No. 52- 380, 27 Stat. 349, 366 (1892) (appropriations bill addressing immigration, quarantine, and prevention of epidemics, and separately providing for certain taxes “any other law to the contrary notwithstanding”). But Congress did not include such language in § 265 to indicate it was authorizing the Executive to override the procedural protections available under the immigration statutes. Thus, as with all potential conflicts, the Court must read § 265 and the refugee and child protections 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
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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)). So too with § 265.
Defendants argue that § 265 must be read to conflict with the INA’s specific protections, and that § 265 prevails because it applies only in health emergencies. Gov’t Br. 24. But 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 protections and 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); Loving, 742 F.3d at 1020-21.
Moreover, even if conflict were unavoidable, Defendants are wrong about which statutes are more specific. The TVPRA, for example, 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. The TVPRA sets forth specific, mandatory obligations, including that Defendants must place Plaintiff in regular removal proceedings and provide access to counsel. 8 U.S.C. § 1232(a)(5)(D). And Congress did not create exceptions for public health or communicable diseases. It is therefore the more specific provision when it comes to removal of children from the United States. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 152-54 (1976) (cited in Gov’t Br. 24) (holding that the “mandatory” provision that “focus[ed] on the particularized problems of national banks” controlled over “broad” provision of separate statute); Strawberry v. Albright, 111 F.3d 943, 947 (D.C. Cir. 1997) (per curiam) (holding that “general prohibition of age discrimination” did not supersede subsequently enacted “mandatory retirement provisions” for specific employees).
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Defendants seek to remove Plaintiff from the country. Yet § 265 says nothing at all about removal; or children; or steps the government must take or may skip. That § 265 applies only in the case of disease does not mean it represents Congress’s most explicit regulation on the circumstances of this case. See East Bay Sanctuary Covenant, 932 F.3d at 760.
Defendants also repeat that giving effect to the precise and careful protections in the INA would “render Section 265 a nullity.” Gov’t Br. 27. But as already explained, Congress enacted § 265 as a regulation on transportation companies and understood it would operate by keeping those companies from “introduc[ing]” people into the United States from abroad. Indeed, that is precisely how it was used in 1929. The nullity canon does not apply because on any interpretation, § 265 would do at least that significant work. See Wisc. Cent. Ltd., 138 S. Ct. at 2073 (provision not rendered superfluous even if it only does “modest work” compared to government’s interpretation). That § 265 does not authorize this particular invocation—an order singling out noncitizens, including children and asylum seekers, and overriding protections for those individuals—does not make the statute meaningless.
Defendants again invoke the legislative history of the 1893 Act to justify its claim that § 265 overrides all immigration law. Gov’t Br. 24-25. But nothing in the legislative history of § 265 discusses the specific statutory protections for children and asylum seekers, which would not be enacted until decades after both the 1893 and 1944 Acts. See Brown & Williamson, 529 U.S. at 143 (“[T]he implications of a statute may be altered by the implications of a later statute . . . particularly . . . where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand”). Indeed, it is notable that Congress has chosen not to permit concerns about disease to override legislative protections for children and noncitizens seeking protection. Although noncitizens who have certain diseases may be subject to removal on that basis, under the immigration laws, the protections for children and asylum seekers take precedence and bar removal without the required procedures. See IRAP Amicus at 6-7.
Paradoxically, Defendants invoke the broad powers of Congress over “the admission and exclusion of aliens.” Gov’t Br. 28. But Plaintiff does not attack what Congress has done—in fact, he relies on it. He challenges Defendants’ attempt to exercise power contrary to Congress’s
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enactments. And invoking Congress’s immigration powers lays bare that the Title 42 Process is really an immigration regulation—but one that Congress never authorized.
B. The Assertion Of Power To Override Protections Is Not Entitled To Deference. CDC also defends its newfound immigration powers by invoking Chevron and Skidmore deference to justify overriding the laws specific to juveniles and those seeking protection. Gov’t Br. 31-32. Yet “[a]gency authority may not be lightly presumed,” and there are multiple reasons why CDC’s resolution of the conflict between § 265 and the INA is owed no deference here. Atl. City Elec. Co. v. FERC, 295 F.3d 1, 9, 13 (D.C. Cir. 2002) (quoting Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir. 2001)). First, as with its assertion of § 265’s deportation power, see supra, CDC deserves no deference for its bald claim that its actions do not conflict with the INA. The CDC Order, which governs only this particular invocation of § 265, is not the type of formal interpretation entitled to deference. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion letters[,] . . . policy statements, agency manuals, and enforcement guidelines . . . do not warrant Chevron-style deference.”). And CDC did not even cite any immigration provisions, much less explain how its actions square with the INA’s mandatory requirements. There can be no deference where there has been no actual interpretation. Judulang, 565 U.S. at 53 n.8; Kaufman v. Nielsen, 896 F.3d 475, 485 (D.C. Cir. 2018) (Skidmore deference is owed only “proportional to its power to persuade”). Second, CDC concedes its lack of expertise in administering the immigration statutes. Gov’t Br. 36. A court owes no deference to agency interpretations “outside the agency’s particular expertise and special charge to administer.” Prof. Reactor Operator Soc. v. NRC, 939 F.2d 1047, 1051 (D.C. Cir. 1991); see also Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Defense, 87 F.3d 1356, 1361 (D.C. Cir. 1996) (similar). Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 105, 116 (1976) (holding federal interest in immigration could not justify specific agency acting “so far removed from [its] normal responsibilities”). What is more, CDC purports to resolve a conflict between “distinct statutory regimes,” which “‘is a matter for the courts,’ not agencies.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
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1629 (2018) (quoting Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 686 (1975)). Non-deferential review “preserve[s] the balance Congress struck in its statutes,” and guards against “[a]n agency eager to advance its statutory mission, but without any particular interest in or expertise with a second statute.” Id. And because CDC ceded implementation of its Orders to DHS, 85 Fed. Reg. at 17067, “any claim to Chevron deference is weaker still,” Kaufman, 896 F.3d at 485; see id. (divided administration undercuts deference). While CDC claims it “did not contemplate that CBP would implement the immigration laws concurrently with [its] Order,” Gov’t Br. 33, CBP’s implementation memorandum envisions just that. The CBP memo shunts some noncitizens into the Title 42 Process, while applying the regular INA processes to others. See U.S. Customs and Border Protection, COVID-19 CAPIO 2-3 [hereinafter “CBP Memo”], Harrold Decl., Ex. E (describing noncitizens who are “not amenable to being expelled,” and allowing “agents . . . to process under existing statutory authorities found in Title 8”). CDC (and DHS, for that matter) have not explained how this dual system squares with the INA’s numerous mandatory requirements. CDC thus gets no deference on its supposed “interpretation.”
Most of Defendants’ cases regarding agency interpretations “in the face of perceived statutory conflicts,” Govt. Br. 31, concern provisions within the same statutory scheme—the scheme the agency was charged to administer. See Scialabba v. Cuellar de Osorio, 573 U.S. 41, 64 (2014) (plurality) (conflict within same INA provision); W. Coal Traffic League v. Surface Transp. Bd., 216 F.3d 1168 (D.C. Cir. 2000) (conflict within same statute); Career College Ass’n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996) (same). Defendants’ other cases also provide them no help.10 For example, National Ass’n of Home Builders v. Defenders of Wildlife, deferred to a regulatory interpretation jointly issued by multiple agencies, following their concerted and reasoned attempt to reconcile inconsistencies. 551 U.S. 644, 665-68 (2007). Here, CDC conclusorily asserts § 265 overrides other statutes it concededly has no expertise overseeing.
10 See Mylan Laboratories, Inc. v. Thompson, 389 F.3d 1272, 1279 n.5 (D.C. Cir. 2004) (cited Gov’t Br. 32) (FDA gets no deference with patent statute it “is not charged with administering”).
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Third, Defendants’ Chevron argument fails on its own terms. Gov’t Br. 32-33. As explained above, the tools of statutory construction at Chevron’s first step show that § 265 does not override all other mandatory INA provisions. CDC’s construction is also unreasonable at Chevron’s second step for the same reason. It also fails to even acknowledge—as explained below—numerous relevant factors, including the TVPRA and other mandatory obligations; the special protection needs of minors; and that ORR releases minors to the care of people who can ensure their safety. See Loving, 742 F.3d at 1022.
Finally, although Defendants’ counsel now offers its own explanation of how the agency’s actions reconcile with Title 8, Gov’t Br. 25-30, 32-33, positions advanced in litigation briefs are entitled to no deference. See Kisor, 139 S. Ct. at 2417 (refusing to defer to litigation position or post hoc rationalization, rather than agency’s “fair and considered judgment”); DHS v. Regents of the Univ. of Cal., _ S. Ct. _, 2020 WL 3271746 at *10 (2020) (courts may only consider “contemporaneous explanations,” not “post hoc justifications . . . raised in court”).
C. J.B.B.C.’s Statutory Rights Were Unquestionably Violated. Defendants half-heartedly claim they are complying with some conflicting immigration
provisions, but notably do not claim compliance with all the provisions applicable here. First, and most importantly here, Defendants do not claim that they are transferring
minors to ORR or providing them with full removal proceedings, as they concede the TVPRA would require absent the Title 42 Process. Defendants’ sole TVPRA argument is that the statute purportedly allows them to take longer than 72 hours to transfer a minor to ORR in “exceptional circumstances.” Gov’t Br. 23 n.13. But Defendants are seeking to deport Plaintiff, not transfer him to ORR after a delay, so Defendants’ argument is beside the point.
Second, Defendants do not claim that they are complying with the asylum and withholding statute. Nor could they do so, as the CBP Implementation Memo does not instruct agents to screen for asylum or withholding.
Third, Defendants’ claim they are providing CAT screenings does not save the Title 42 Process, as they would still be in violation of the TVPRA, as well as the asylum and withholding statutes. See, e.g., Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012) (noting standard for
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torture is more exacting than for asylum and withholding claims). In any event, Defendants’ cursory CAT screenings are not being lawfully conducted, as children are entitled to have their CAT claims decided in full removal proceedings.11
Notably, moreover, Defendants’ claim that they are providing CAT screenings only undermines their own statutory arguments, as there is no reason why CAT should be viewed as somehow more mandatory than the INA’s other obligations. And apparently complying with CAT creates no significant conflict with CDC’s authorities.
* * * 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.
11 Defendants’ new Title 42 process does not satisfy CAT, as it requires anyone, including children, to “make an affirmative, spontaneous” claim of fear of torture. CBP Memo 4 (emphasis added). But traumatized individuals who lack any understanding of U.S. law, especially children, cannot be expected to know what they must “affirmatively” and “spontaneously” say. Thus, this procedure is not meaningfully available to many noncitizens going through the Title 42 Process.
As to Plaintiff himself, Defendants say only they made an “assessment” of his CAT claim after this case was filed, without describing what procedures they used, or what standard they applied. See ECF. No. 28-6 ¶ 6. Nor did Defendants provide a written summary of the interviews, 8 U.S.C.§ 1225(b)(1)(B)(iii)(II), 8 C.F.R. § 208.30(e); any indication that a supervisor reviewed the negative determination, 8 C.F.R. § 235.3(b)(7); or note that J.B.B.C. was informed of his right to seek review before an immigration judge, see 8 U.S.C. § 1225(b)(1)(B)(iii)(III). In sum, this meager procedure, inappropriate for a child and undertaken only in response to this litigation, does not comply with CAT. Defendants also argue a CAT ruling is unreviewable. Gov’t Br. 22. But Plaintiff is not seeking review of an individual CAT ruling.
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III. DEFENDANTS’ ACTIONS ARE ARBITRARY AND CAPRICIOUS. Defendants have failed to “engage in ‘reasoned decisionmaking’” as the APA requires.
Regents, 2020 WL 3271746 at *7 (quoting Michigan, 576 U.S. at 50). The Court’s role here, contrary to Defendants’ assertions, is to “assess” not only “‘whether there has been a clear error of judgment’” but also “‘whether the decision was based on a consideration of the relevant factors.’” Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). The agency was required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And where the agency’s logic has gaps—for example, where the agency “entirely failed to consider an important aspect of the problem”—a court cannot “supply a reasoned basis for the agency’s action that the agency itself has not given.” Id.
1. The APA required Defendants to offer a “reasoned explanation” for applying the Title 42 Process to unaccompanied children, particularly those seeking protection. Regents, 2020 WL 3271746, at *17; TRO Br. 15. Defendants admit they offered no explanation here. Gov’t Br. 3435. That admission itself establishes an APA violation. Regents, 2020 WL 3271746 at *17.
Defendants’ omission of any rationale is particularly glaring, moreover, because it departs so starkly from Defendants’ prior treatment of 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. The reasoned explanation requirement “ordinarily demand[s] that [an agency] display awareness that it is changing position. 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). That did not happen here.
Defendants have also “entirely failed to consider . . . important aspect[s] of the problem.” State Farm, 463 U.S. at 43. In creating the Title 42 Process and applying it to minors like J.B.B.C., Defendants have failed to analyze the impact on unaccompanied children and those seeking protection. Defendants argue that they did not need to acknowledge or explain the
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impact of their actions on vulnerable groups because the APA “does not require an agency to address every imaginable scenario.” Gov’t Br. 35 (emphasis added). It was hardly speculative, however, that unaccompanied children and asylum seekers would come to the border seeking protection from harm. Yet 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. 2019) (finding action arbitrary and capricious where it “failed to address the problem that would be created as a result” of its conduct).
Defendants also contend that they were under no obligation to consider “statutes administered by other agencies that may be impacted by a section 265 order.” Gov’t Br. 36. Yet CDC’s actions have much more than a mere incidental effect on the immigration statutes—CDC seeks to cast those statutes aside, without any acknowledgment of the devastating impact on minors fleeing danger or, importantly, whether there was a way to safely process children, particularly given that under the TVPRA children spend less than 72 hours with CBP.
2. Defendants’ explanations for their decisions also “runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43.12 Defendants claim that processing those without travel documents takes “hours or days.” 85 Fed. Reg. at 17065. But Defendants’ own contingency plans for a migration increase show they can process any necessary immigration paperwork for unaccompanied children within mere hours. Appellees’ Supplemental Excerpts of Record, Al Otro Lado v. Wolf, No. 19-56417 (9th Cir. Dec. 23, 2019), ECF No. 33-5 at 149 (capacity for 1-2 hour processing time for unaccompanied children at Hidalgo); id. at 171 (2-4 hours for unaccompanied children at Progreso). CBP does not need to carefully screen unaccompanied children from noncontiguous countries, like J.B.B.C.; under the TVPRA that is done after transfer to ORR and placement in full removal proceedings.
Indeed, Defendants’ implementation of the Title 42 Process shows they can hold children while minimizing risks to DHS officers and other unaccompanied children. Defendants kept
12 Defendants have not produced the administrative record in this emergency posture. Plaintiff reserves the right to further challenge the agency’s decisions after the record is disclosed.
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J.B.B.C. in a hotel for days longer than the 72 hours permitted by the TVPRA, for the purpose of effectuating his deportation. ECF No. 2-3 ¶ 4 (Corchado Decl.). And if Defendants were complying with the TVPRA, there would be no need to hold children in CBP custody for prolonged periods at all—J.B.B.C. and other minors would be swiftly sent to ORR shelters.
Notably, Defendants say nothing about one of the CDC Orders’ chief justifications, which is the “significant uncertainty that covered aliens would be able to effectively selfquarantine, self-isolate, or otherwise comply with existing social distancing guidelines” if released. 85 Fed. Reg. at 31508. And for good reason, as CDC has not explained the factual basis for this assumption or cited any evidence for it. Indeed, this justification is particularly wanting with respect to unaccompanied children, who are sent to sponsors who assume responsibility for their care, rather than simply released into the interior without supervision. See 8 U.S.C. § 1232(c)(3)(A); ECF No. 18 ¶ 16 (public health experts). Here, for instance, J.B.B.C. can be released to his father. See Regents, 2020 WL 3271746, at *13 (finding failure to consider “alternative[s] . . . within the ambit of the existing [policy]” arbitrary and capricious).
Defendants also note that “children are not immune from [COVID-19]” as a justification for their failure to account for that population. Gov’t Br. 35. Yet their reasoning fails to even acknowledge that children may be differently situated with respect to the disease, ECF No. 18 (public health experts), and CDC was obliged, at minimum, to weigh that difference. Defendants’ argument also carries even less force when applied against a child, like J.B.B.C., who has exhibited no symptoms.13
3. Although Defendants disclaim any obligation to consider the effects of their actions on unaccompanied child asylum seekers, they also argue that CDC’s consultation with DHS, and
13 Defendants assert that other countries have issued similar travel restrictions. Gov’t Br. 34. But numerous countries have kept their doors open to asylum seekers. See European Council on Refugees and Exiles, COVID-19 Measures Related to Asylum and Migration Across Europe (Apr. 8, 2020), https://tinyurl.com/ybahhmro (listing countries that exempt persons seeking protection from bans, e.g., Denmark, Finland, France, Germany, and Italy). And Canada expressly exempts unaccompanied children from its restrictions on non-U.S.-nationals seeking asylum between ports. See Order in Council, Minimizing the Risk of Exposure to COVID-19 in Canada Order, P.C. 2020-0161, § 4(2)(d) (Mar. 20, 2020), https://tinyurl.com/y888f7yh.
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the latter agency’s implementation procedures, satisfy its APA obligations. Gov’t Br. 36-37. But unlike in Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000), the face of the Orders shows no indication that CDC meaningfully consulted with DHS on the unique circumstances of unaccompanied children seeking humanitarian relief. See Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 931 (D.C. Cir. 2017) (finding failure to consider “broader, real-world impact” arbitrary and capricious). If anything, the CDC Orders’ silence only emphasizes the flaws in the decisionmaking process here, as DHS was surely aware that it regularly apprehends unaccompanied children and asylum seekers.
And in any event, DHS’s own implementation of the Title 42 Process is also flawed. To start, DHS has offered no public justification for its implementation procedures, which depart drastically from normal immigration proceedings and ignore the special needs of children and asylum seekers. The mere “discretion” to exempt individuals “on a case-by-case basis, based on . . . individual circumstances” is also inadequate, especially where there is no clear process or standard for making such exemptions. Gov’t Br. at 35.
Notably, CBP is perfectly willing to exempt individuals from the Title 42 Process when doing so suits its immigration objectives. CBP’s Implementation Memo states that individuals with certain criminal histories must be removed from the Title 42 Process and placed into the immigration and criminal system. See CBP Memo at 3 (exempting those with certain criminal convictions as “[s]ubjects not amenable to being expelled”). Yet Defendants cannot claim that having a prior conviction makes one less likely to transmit COVID-19. Put simply, DHS— apparently with CDC’s sanction—is implementing the immigration statute when it chooses to, and yet leaves itself free to ignore its statutory obligations under the TVPRA and the asylum, withholding, and CAT provisions. There is no health-related justification for that distinction. IV. THE BALANCE OF HARMS TIPS DECIDEDLY IN J.B.B.C.’S FAVOR.
1. As set forth in Plaintiff’s declarations, J.B.B.C. fled Honduras due to violent attacks, the murder of a relative, and direct threats to his life. If he is returned, he will likely be persecuted or even killed. ECF No. 2-3 ¶ 5 (Corchado Decl.); Declaration of Carlos Emilio Barrera Rodriguez ¶¶ 4-19; Supplemental Declaration of Linda Corchado ¶¶ 9-10. The State
23

Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 33 of 36
Department acknowledges that Honduran children face horrendous dangers, including “death threats for failure to pay extortion, attempted recruitment by gangs, [and] witnessing criminal activity by gangs or organized crime.” Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, 2019 Country Reports on Human Rights Practices: Honduras 16 (2020).14 Yet, although Defendants offer no facts to rebut Plaintiff’s declarations, they assert his fears are merely “unsubstantiated and speculative.” Gov’t Br. 39. Numerous courts have held that similar showings show irreparable injury. See, e.g., Demjanjuk v. Holder, 563 F.3d 565 (6th Cir. 2009) (granting stay for noncitizen who asserted removal would violate CAT); Grace v. Whitaker, 344 F. Supp. 3d 96, 146 (D.D.C. 2018) (finding fear of “domestic violence, beatings, shootings, and death in their countries of origin” constitute irreparable injury); Devitri v. Cronen, 289 F. Supp. 3d 287, 296–97 (D. Mass. 2018) (risk of persecution if removed is irreparable harm). 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).
2. Defendants, in contrast, would incur comparatively little harm from a stay. A stay of this child’s removal “would effectively balance the equities at stake and serve the public interest.” Thatikonda v. USCIS, No. CV 19-685 (RC), 2020 WL 2126716, at *6 (D.D.C. May 5, 2020). Defendants offer no explanation as to why staying a single healthy child’s deportation would impinge significantly on their interests. But this one boy’s removal is all that is at stake in this emergency motion. See Ass’n of Reptile Keepers, Inc. v. Jewell, 106 F. Supp. 3d 125, 128– 29 (D.D.C. 2015) (granting preliminary injunction barring defendants from giving effect to challenged regulation as to plaintiffs). Defendants’ attempt, therefore, to shift the focus beyond Plaintiff’s specific circumstances and balance broader systemic equities is misplaced. Accordingly, Plaintiff makes only a few brief points about that broader balance of harms.
First, unaccompanied children like J.B.B.C. are released to sponsors under the TVPRA, which in most cases will be a parent or close relative who can ensure the child will selfquarantine as needed and will be subject to local restrictions. Insofar as children must spend
14 https://www.state.gov/wp-content/uploads/2020/02/HONDURAS-2019-HUMAN-RIGHTSREPORT.pdf
24

Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 34 of 36
short periods in ORR’s network of juvenile facilities before release, that network can deal with communicable diseases.
Second, contrary to the CDC Orders’ stated justifications, this case shows the Title 42 Process does not make DHS officers safer, and in fact, likely increases any potential exposure. Under the TVPRA, juveniles like J.B.B.C. must be transferred to ORR or a sponsor within 72 hours. See 8 U.S.C. § 1232(b)(3). Yet deporting children under Title 42 almost invariably takes DHS longer than that, due to travel arrangements and confirming the sending country’s receipt.
Third, even for adults, public health officials have overwhelmingly noted there are numerous safety measures that can be taken, including quarantines.15 Defendants say that CDC has reached a different conclusion. Gov’t Br. 40-41. But read carefully, the CDC Orders do not conclude that it is unworkable to process asylum seekers safely, but rather that it is not worth the resources or not worth trying. 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 just chosen to de-prioritize those fleeing danger, even as it permits or even encourage large recreational activities (such as beach outings), air travel by tens of thousands of foreign visitors, and other events and activities.
Finally, although Defendants claim that an injunction here would prevent “a court from effectuating statutes enacted by . . . its people,” Gov’t Br. 41, J.B.B.C. seeks to vindicate rights Congress gave him. “And it is squarely in the public interest to enable [children] . . . to partake of statutory . . . rights,” especially “where, as here, it is consistent with the process prescribed by Congress.” Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 179 (3d Cir. 2018); see Ramirez v. ICE, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (“The public interest surely does not cut in favor of permitting an agency to fail to comply with a statutory mandate.”).
CONCLUSION For these reasons, the Court should stay Plaintiff’s removal.
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.
25

Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 35 of 36

Dated: June 22, 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
Jamie Crook (D.C. Bar No. 1002504) Blaine Bookey Karen Musalo Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 Tel: (415) 565-4877

/s/ Lee Gelernt_____________________ 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
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 Plaintiffs
*Admitted pro hac vice **Pro hac vice application forthcoming

26

Case 1:20-cv-01509-CJN Document 34 Filed 06/22/20 Page 36 of 36 CERTIFICATE OF SERVICE
I hereby certify that on June 22, 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
27

Case 1:20-cv-01509-CJN Document 34-1 Filed 06/22/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez,
Plaintiff,
v.
CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity, et al.,
Defendants.

) ) ) ) ) ) ) ) No. 20-cv-01509-CJN ) ) ) ) ) ) ) )

DECLARATION OF ADRIENNE HARROLD IN SUPPORT OF PLAINTIFF’S MOTION FOR EMERGENCY STAY OF REMOVAL
I, Adrienne Harrold, Esq., declare as follows: 1. I submit this declaration in support of Plaintiff’s Motion for Emergency Stay of Removal. I have personal knowledge of the facts set forth herein, and, if called as a witness, I could and would testify competently as follows: 2. Attached as Exhibit A is a true and correct copy of the Act of February 15, 1893, which enacted the predecessor provision to 42 U.S.C. § 265. See Act of Feb. 15, 1893, ch. 114, § 7, 27 Stat. 449, https://www.loc.gov/law/help/statutes-at-large/52nd-congress/session2/c52s2ch114.pdf. 3. Attached as Exhibit B is a true and correct copy of Executive Order No. 5143, Restricting for the Time Being the Transportation of Passengers From Certain Ports in the Orient to a United States Port (June 21, 1929), as downloaded from the HeinOnline database. 4. Attached as Exhibit C is a true and correct copy of the July 11, 1929, regulation that implemented Executive Order No. 5143, as contained in the Connecticut Health Bulletin from September 1929. See Regulations Governing the Embarkation of Passengers and Crew at Ports in China and the Philippine Islands and Their Transportation to the United States Ports

1

Case 1:20-cv-01509-CJN Document 34-1 Filed 06/22/20 Page 2 of 2
Prescribed in Accordance with Executive Order Approved June 21, 1929 (July 11, 1929), included in Conn. Dep’t of Health, Connecticut Health Bulletin, vol. 43, no. 9, 324-326 (Sept. 1929), as downloaded from the HathiTrust database. 5. Attached as Exhibit D is a true and correct copy of the Treasury Department’s circular from September 1, 1892, as contained in the Abstract of Sanitary Reports from September 2, 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) (circular), included in Abstract of Sanitary Reports, vol 7, no. 36, 445 (Sept. 2, 1892), https://play.google.com/books/reader?id=3cQhjR-RhXUC&hl=en&pg=GBS.PA445.
6. On Sunday, June 21, 2020, I downloaded from the ProPublica website (linking to the Document Cloud website) a Border Patrol memorandum obtained by ProPublica which contains information about the implementation of the Title 42 process. See Dara Lind, Leaked Border Patrol Memo Tells Agents to Send Migrants Back Immediately — Ignoring Asylum Law, ProPublica (Apr. 2, 2020), https://www.propublica.org/article/leaked-border-patrol-memo-tellsagents-to-send-migrants-back-immediately-ignoring-asylum-law (linking to https://www.documentcloud.org/documents/6824221-COVID-19-CAPIO.html). Attached as Exhibit E is a true and correct copy of this memorandum.
I, Adrienne Harrold, declare under penalty of perjury of the laws of the State of California and the United States of America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on June 22, 2020, in San Francisco, California.
__________________________________ ADRIENNE HARROLD, ESQ.
2

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 1 of 19

J.B.B.C. v. Wolf et al., Case No. 20-cv-01509-CJN

Index of Exhibits in Support of Plaintiff’s Motion for Emergency Stay of Removal

Exhibit # A B C
D
E

Exhibit Name Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449 Executive Order No. 5143, Restricting for the Time Being the Transportation of Passengers from Certain Ports in the Orient to a United States Port (June 21, 1929) 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 (July 11, 1929), included in Conn. Dep’t of Health, Connecticut Health Bulletin, vol. 43, no. 9, 324-326 (Sept. 1929) 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) (circular), included in Abstract of Sanitary Reports, vol 7, no. 36, 445 (Sept. 2, 1892) U.S. Customs & Border Protection, COVID-19 CAPIO Memorandum

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 2 of 19
Exhibit A

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 3 of 19

FIFTY-SECOND CONGRESS. SESS. II. CHS. 108, 114. 1893.

449

kinds, for the transit of animals, foot passengers, and all kinds of commerce, travel, or communication, and said corporation may charge and receive reasonable tolls therefor, subject to the approval of the Secre- Tolls. tary of War.

SEC. 3. That any bridge built under this act and subject to its limi- Lawful structure tations shall be a lawful structure, and shall be recognized and known and post route.

as a post route, and it shall enjoy the rights and privileges of other

post roads in the United States: Provided,That the United States may construct a postal telegraph over said bridge without charge therefor.

Proovis. eeaph.

SEC. 4. That said bridge shall be built and located under and subject Secretary of War to

to such regulations for the security of navigation of said river as the approve plan. etc. Secretary of War shall prescribe; and to secure that object, the said corporation shall submit to the Secretary of War, for his examination and approval, a design and drawings of the said bridge and a map of the proposed location, giving, for the space of one mile above and one mile below the proposed location, the topography of the banks of the river and the shore lines at high and low water, the direction and strength of the current at all stages, and the soundings, accurately showing the bed of the stream, the location of any other bridge or bridges, and shall furnish such other information as may be required for a full and satisfactory understanding of the subject, and until the plan and location of said bridge have been approved by the Secretary of War, the bridge shall not be commenced or built.
SEC. 5. That all railroad companies desiring the use of any bridge Use by railroad constructed under this act shall have and be entitled to equal rights companies. and privileges relative to the passage of railway trains or cars over the same and over the approaches thereto, upon payment of reasonable compensation for such use; and in case the owner or owners of said Compensation. bridge and the several railroad companies, or any of them, desiring such use shall fail to agree upon the sum or sums to be paid, and upon rules and conditions to which each shall conform in using said bridge, all matters at issue between them shall be decided by the Secretary of War upon a hearing of the allegations and proof of the parties.

SEC. 6. That said bridge herein authorized to be constructed shall be
so kept and managed at all times as to afford proper means and ways for the passage of vessels, barges, or rafts, both by day and by night, and there shall be displayed on said bridge by the owners thereof, front sunset to sunrise, such lights or other signals as the Light-House
Board may prescribe; and such changes shall be made froml time to time in the structure of said bridge as the Secretary of War may direct, at the expense of said bridge company, in order the more effectutally to preserve the free navigation of said river.

Aids to navigation.
Lights, etc. Changes.

SEC. 7. That the right to alter, amend, or repeal this act is hereby Amendment. etc. expressly reserved, and the right to require any changes in said structure or its entire removal at the expense of the owners thereof, or the corporation or persons controlling the same, whenever public interest requires it, is also reserved.
SEC. 8. That this act shall be null and void if actual construction of Commencement and
the bridge herein authorized be not commenced within one year and completion. completed within three years fron the date hereof.

Approved, February 14, 1893.

CHAP. 114.-An act granting additional quarantine powers and imposing ad- February 15,1893. ditional duties upon the Marine-Hospital Service.

Be it enacted by the Senate and House of Representativesof the United Quarantine. States of America in Congress assembled, That it shall be unlawful for any merchant ship or other vessel from any foreign port or place to Entryofvesselsvio enter any port of the United States except in accordance with the pro- .unlawfl. visions of this act and with such rules and regulations of State and

VOI, XXVI-

29

4C5a0se 1:20-cv-015F0I9F-TCYJ-SNECDONocDumCOenNtG3R4E-S2S. FSilEeSdS.0I6I./22C/H2.0114P. a1g8e934. of 19

Penalty.

municipal health authorities as may be made in pursuance of, or consistent with, this act; and any such vessel which shall enter, or attempt

Proceedings

to enter, a port of the United States in violation thereof shall forfeit to the United States a sum, to be awarded in the discretion of the court, not exceeding five thousand dollars, which shall be a lien upon said vessel, to be recovered by proceedings in the proper district court of the United States. In all such proceedings the United States dis trict attorney for such district shall appear on behalf of the United States; and all such proceedings shall be conducted in accordance with the rules and laws governing cases of seizure of vessels for violation

of the revenue laws of the United States.

consular bill of SEC. 2. Thattany vessel at any foreign port clearing for any port or

healh required.

place in the United States shall be required to obtain from the consul,

contents.

vice-consul, or other consular officer of the United States at the port of departure, or from the medical officer where such officer has been detailed by the President for that purpose, a bill of health, in duplicate, in the form prescribed by the Secretary of the Treasury, setting forth the sanitary history and condition of said vessel, and that it has

in all respects complied with the rules and regulations in such cases

prescribed for securing the best sanitary condition of the said vessel,

its cargo, passengers, and crew; and said consular or medical officer is

required, before granting such duplicate bill of health, to be satisfied

that the matters and things therein stated are true; and for his serv-

ices in that behalf he shall be entitled to demand and receive such

Fees.

fees as shall by lawful regulation be allowed, to be accounted for as is

required in other cases.

Detailofmedicalofa- The President, in his discretion, is authorized to detail any medical

cer ateonsate. officer of the Government to serve in the office of the consul at any

foreign port for the purpose of furnishing information and making the

Penalty for vessel inspection and giving the bills of health hereinbefore mentioned. Any

Tiolating.

vessel clearing and sailing from any such port without such bill of

health, and entering any port of the United States, shall forfeit to the United States not more than five thousand dollars, the amount to be

Proceeings.

determined by the court, which shall be a lien on the same, to be recovered by proceedings in the proper district court of the United States. In all such proceedings the United States district attorney for

such district shall appear on behalf of the United States; and all such proceedings shall be conducted in accordance with the rules and laws governing cases of seizure of vessels for violation of the revenue laws

of the United States.

Marine-H ospital SEC. 3. That the Supervising Surgeon-General of the Marine Hospital

health r to en. Service shall, immediately after this act takes effect, examine the

force rules, etc.

quarantine regulations of all State and municipal boards of health, and

shall, under the direction of the Secretary of the Treasury, co-operate with and aid State and municipal boards of health in the execution and

enforcement of the rules and regulations of such boards and in the

execution and enforcement of the rules and regulations made by the Secretary of the Treasury to prevent the introduction of contagious or

infectious diseases into the United States from foreign countries, and into one State or Territory or the District of Columbia from another

Rules to operate State or Territory or the District of Columbia; and all rules and regu-

unifornly.

lations made by the Secretary of the Treasury shall operate uniformly

Additional rules, and in no manner discriminate against any port or place; and at such

the. Tre.asry wSeere ports and places within the United States as have no quarantine regu-

local regulations are lations under State or municipal authority, where such regulations are,

inadequate.

in the opinion of the Secretary of the Treasury, necessary to prevent

the introduction of contagious or infectious diseases into the United

States from foreign countries, or into one State or Territory or the Dis-

trict of Columbia from another State or Territory or the District of Co-

lumbia, and at such ports and places within the United States where

quarantine regulations exist under the authority of the State or muni-

cipality which, in the opinion of the Secretary of the Treasury, are not

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 5 of 19

FIFTY-SECOND CONGRESS. SESS. II. CH. 114. 1893.

451

sufficient to prevent the introduction of such diseases into the United States, or into one State or Territory or the District of Columbia from another State or Territory or the District of Columbia, the Secretary of the Treasury shall, if in his judgment it is necessary and proper, make such additional rules and regulations as are necessary to prevent the introduction of such diseases into the United States from foreign countries, or into one State or Territory or the District of Columbia from another State or Territory or the Districtof Columbia, and when said rules and regulations have been made they shall be promulgated by the Secretary

of the Treasury and enforced by the sanitary authorities of the States and municipalities, where the State or municipal health authorities will undertake to execute and enforce them; but if the State or municipal authorities shall fail or refuse to enforce said rules and regulations the President shall execute and enforce the same and adopt such measures as in his judgment shall be necessary to prevent the introduction or spread of such diseases, and may detail or appoint officers

Enforcement.

for that purpose. The Secretary of the Treasury shall make such rules Rules for vessels and regulations as are necessary to be observed by vessels at the port from foreign ports. of departure and on the voyage, where such vessels sail from any foreign port or place to any port or place in the United States, to secure the best sanitary condition of such vessel, her cargo, passengers, and crew; which shall be published and communicated to and enforced by

the consular officers of the United States. None of the penalties herein Rules to be posted imposed shall attach to any vessel or owner or officer thereof until a n eons' la te. copy of this act, with the rules and regulations made in pursuance thereof, has been posted up in the office of the consul or other consular officer of the United States for ten days, in the port from which said vessel sailed; and the certificate of such consul or consular officer over his official signature shall be competent evidence of such posting in any court of the United States.

Sec. 4. That it shall be the duty of the supervising Surgeon-General Duties of Marineof the Marine Hospital Service, under the direction of the Secretary of Hospital Service. the Treasury, to perform all the duties in respect to quarantine and quarantine regulations which are provided for by this act, and to obtain information of the sanitary condition of foreign ports and places from which contagious and infectious diseases are or may be imported

into the United States, and to this end the consular officer of the United Sanitary reports to States at such ports and places as shall be designated by the Secretary be made by consuls. of the Treasury shall make to the Secretary of the Treasury weekly reports of the sanitary condition of the ports and places at which they are respectively stationed, according to such forms as the Secretary of

the Treasury shall prescribe; and the Secretary of the Treasury shall Weekly domestic also obtain, through all sources accessible, including State and munici- sanitary reports. pal sanitary authorities throughout the United States, weekly reports of the sanitary condition of ports and places within the United States,

and shall prepare, publish, and transmit to collectors of customs and Publication and disto State and municipal health officers and other sanitarians weekly tribution.

abstracts of the consular sanitary reports and other pertinent information received by him, and shall also, as far as he may be able, by means of the voluntary co-operation of State and municipal authorities, of public associations, and private persons, procure information relating to the climatic and other conditions affecting the public health, and shall make an annual report of his operations to Congress, with such recommendations as he may deem important to the public interest.

Annualreport.

SEC. 5. That the Secretary of the Treasury shall from time to time Rules to secnre san-

issue to the consular officers of the United States and to the medical-t"8eles'tI"ns

o°

officers serving at any foreign port, and otherwise make publicly

known, the rules and regulations made by him, to be used and com-

plied with by vessels in foreign ports, for securing the best sanitary

conditions of such vessels, their cargoes, passengers, and crew, before

their departure for any port in the United States, and in the course of

C4a5s2e 1:20-cv-0150F9I-FCTJYN-SECDOoNcuDmCeOnNt 3G4R-E2SS.FilSeEdSS0.6I/I2. 2/C2H0. 1P14a. ge18693.of 19

rraInspection,

etc.,

on

the voyage; and all such other rules served in the inspection of the same on

and regulations as shall be obthe arrival thereof at any quar-

antine station at the port of destination, and for the disinfection and

isolation of the same, and the treatment of cargo and persons on board,

so as to prevent the introduction of cholera, yellow fever, or other con-

vessels not to enter tagious or infectious diseases; and it shall not be lawful for any vessel

filer'sterifcate. to enter said port to discharge its cargo, or land its passengers, except

'upon a certificate of the health officer at such quarantine station certifying that said rules and regulations have in all respects been observed and complied with, as well on his part as on the part of the said vessel

and its master, in respect to the same and to its cargo, passengers, and

Delivery of papers crew; and the master of every such vessel shall produce and deliver to

to ctoms officer. the collector of customs at said port of entry, together with the other

papers of the vessel, the said bills of health required to be obtained at

the port of departure and the certificate herein required to be obtained from the health officer at the port of entry; and that the bills of health

herein prescribed shall be considered as part of the ship's papers, and

when duly certified to by the proper consular or other officer of the United

States, over his official signature and seal, shall be accepted as evidence of the statements therein contained in any court of the United States. Infected vessel tobe SEC. 6. That on the arrival of an infected vessel at any port not pro-

antine staton. q vided with proper facilities for treatment of the same, the Secretary of the Treasury may remand said vessel, at its own expense, to the near-

est national or other quarantine station, where accommodations and

appliances are provided for the necessary disinfection and treatment Certificate after of the vessel, passengers, and cargo; and after treatment of any in-

fected vessel at a national quarantine station, and after certificate shall

have been given by the United States quarantine officer at said sta-

g

tion that the vessel, cargo, and passengers are each and all free from

infectious disease, or danger of conveying the same, said vessel shall

be admitted to entry to any port of the United States named within

oal quarantine the certificate. But at any ports where sufficient quarantine provision

has been made by State or local authorities the Secretary of the Treas-

ury may direct vessels bound for said ports to undergo quarantine at

said State or local station Suspension ofimmi- SEC. 7. That whenever it shall be shown to the satisfaction of the

engce o contagious President that by reason of the existence of cholera or other infectious

diseases.

or contagious diseases in a foreign country there is serious danger of

the introduction of the same into the United States, and that notwithstanding the quarantine defense this danger is so increased by the in-

troduction of persons or property from such country that a suspension

of the right to introduce the same is demanded in the interest of the

public health, the President shall have power to prohibit, in whole or

in part, the introduction of persons and property from such countries

or places as he shall designate and for such period of time as he may

deem necessary. Comtnensation for SEC. 8. That whenever the proper authorities of a State shall surren-

etc.

der to the United States the use of the buildings and disinfecting ap-

paratus at a State quarantine station, the Secretary of the Treasury

shall be authorized to receive them and to pay a reasonable compensa-

tion to the State for their use, if, in his opinion, they are necessary to

the United States.

National board of SEC. 9. That the act entitled "An act to prevent the introduction of

health abolished. infectious or contagious diseases into the United States, and to estab-

Vol. 20, . 484.

lish a national board of health," approved March third, eighteen hun-

dred and seventy-nine, be, and the same is hereby, repealed. And the

Disposition of prop- Secretary of the Treasury is directed to obtain possession of any prop-

erty.

erty, furniture, books, paper, or records belonging to the United States

which are not in the possession of an officer of the United States under

the Treasury Department which were formerly in the use of the

National Board of Health or any officer or employee thereof.

Approved, February 15, 1893.

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 7 of 19
Exhibit B

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 8 of 19

EO 5143

Executive Orders

Executive Order 5143. June 21,1929

Srecuttve orber

Restricting for the time being the transportation of passengers from certain ports in the Orient to a United States port.

Whereas there have arrived periodically at Pacific Coast ports since November 1928, a total of 17 trans-pacific passenger-carrying vessels with epidemic cerebrospinal meningitis infection existing on board among Oriental steerage passengers;
And Whereas the continued arrival of vessels having epidemic cerebrospinal meningitis infection on board has overtaxed the combined available quarantine facilities of federal and local health authorities and that notwithstanding the quarantine defense, there exists danger of introducing this disease into the United
States; Therefore in order to prevent the further introduction of epidemic cerebrospinal
meningitis from foreign ports into the United States, by virtue of the authority vested in me by Section 7 of the Act of Congress approved February 15, 1893, entitled "An Act granting additional quarantine powers and imposing additional duties upon the Marine Hospital Service", 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 for such period of time as may be deemed necessary, except under such conditions as may be prescribed by the Secretary of the Treasury.
This order shall take effect from and after this date.

HERBERT HOOVER

THE WHITE HousE June 21, 1929.

[No. 5143]

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Exhibit C

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Exhibit D

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Exhibit E

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COYID-I9 CAPIO
U.S. Customs and Border Protection (CBP) and specifically the United States Border Patrol (USBP) is supporting the U.S. Government's response to the coronavirus disease (abbreviated
"covrD-19)
The Director of the Centers fot Disease Control and Prevention (CDC) under the Authority of
the Public Health Service Act has directed CBP to prohibit the introduction of certain persons into the United States who, due to the existence of COVID- 19 in countries or places from which persons are traveling, create a serious danger of the introduction of such disease into the United
States.
When implementing the order, USBP is not operating pursuant to its authorities under Titles 8 or 19. However, Border Patrol agents may rely on their training and experience in detecting, apprehending and determining whether penons are subject to the CDC order, including but not limited to the following considerations: physical observation, use of sensors and technology, physical indicators and tracking techniques, information from third-parties, and deductive techniques.
Eneountet
o Enforcement efforts on the SWB and NB will be conducted as close to the physical border as
practical with the objective to intercept aliens that are potentially infected with COVID-l9 before firther exposing or contaminating the U.S. public.
o Determine if individual encountered is a U.S. Citizen or an alien. . U.S. Citizens and l,awfirl Perrnanent Residents are not subject to the CDC order and will be
processed under existing CBP authorities.
Determine whethet an alien is subiect to the CDC order a Based on training, experience, physical observation, technology, questioning and other
considerations, if an agent believes that it is more likely than not that a person is an alien
seekilg to enter the Unit€d States, without proper travel documentation or otherwise subject to travel restrictions at or between a POE, coming from or transiting through Canada or
Mexico (regardless of their country of origin), and if such a person was encountered within the area of operation ofa Border Patol station or POE operated by CBP, the CBP ofEcer or agent shall apply the CDC order to the person in accordance with the procedures below. a Domiciled aliens encountered within the US will be processed under existing Title 8 authorities and processes. To the extent practical, USBP will leverage field deployed mobile biometric devices to perform immigration and criminal history checks in real-time for officer
safery.
Processine
o To the maximum extent possible all processing will be done in the field. Only in eigent
circumstances will aliens be taken into permanent CBP facilities.
o Once USBP detennines an alien is subject to the CDC order, in the field and to the extent
practical, USBP will capture a subject's biographical information and archive data
appropriately.

Case 1:20-cv-01509-CJN Document 34-2 Filed 06/22/20 Page 17 of 19

. Agents are not to place subjects in assigned vehicles . Property is not to be taken into custody

The followino rucommzndation will aoolv for suidance lo the field:

At any time a subject is determined to no longer be amenable under Title 42 CDC Order agents will process under existing statutory authorities found in Title 8 of the US code. The authority to make this determination resides with the Chief Patrol Agent and cannot be delegated below the Watch Commander position. Subjects taken into custody under Title 8 must be processed under normal Title 8 guidelines (e.g., ER, NTA, etc...)
. Agents are to consider officer safety and safety to the general public at all times. . The appropriate PPE will be utilized o Subjects will only be placed in a designated transport vehicle and/or a desipated staging
area

Upon initial encounter the agent will determine if subject is amenable to expulsion under Tille 42
CDC Order
o Contact TOC/Radio Room or utilize e3 Mobile device to create a TSM Event # under
'Operation Capio' and initiate e3 Event from TSM
o Include the number of subjects encountered and veriff that 'Operation Capio' is associated
with designated e3 Event and obtain both TSWe3 Event #'s
o Record both TSIWe-3 #'s on Field Intake Form and fill in the necessary information
required
o S@ Utilize e3 Mobile device to enter biographical information and role fingerprints fo.
Onh
. Based on results, should subject still be amenable to being expelled, subject will be
transported to the designated Port of Entry - Should an agent determine a subject is not
W amenable to expulsion refer to o Field Intake Forms will be required to be brought back to station or designated processing
areas for data entry into TSiWe3 lntake (Note: Ensure that ALL required information is entered on the Field Intake Form)

Data Entry of Field Intake Form information

o Designated processing personnel will input information from the Field Intake Form into the

appropriate e3 Event #
o Generate an I44 under the appropriate e3 Event # in accordance to provided information

below (Note: Efforts to keep Family Units together should be considered at all times)
o For the purpose of Title 42 the following defrnitions will apply in regard to Family Units and

Unaccompanied Juveniles:

o 3$ X'amily Units: A person or persons accompanied by

relative

o Unaccompanied Juvenile: A minor tmder the age of l8 and NOT accompanied

by a relative
. Dispositions for all subjects amenable to immediate expulsion

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NON DEPORTABLE/i''{OT IN CUSTODY

I-tl4 Narrative Required Information:

of Subject is one

tal number in orouo. encountered in CITY, SIATE. Subject oppeored to hove

no illness or injuries. Subject wos removed through the PIOE Name under 'Operotion CAPIO", in

occordonce with Title 42 U.S.C Sedion 265.

Subject is member of o Fomily Unit:

FAMILY MEMBER 7: Subjefi Nome
FAMILY MEMBER2: FAM'LY MEMBER 3
NON DEPORTABLE/IN CUSTODY

W The following disposition of

wiJl apply to all subjects

who cannot be expelled in an expeditious manner and are required to be transfened to a facility.

This is necessary in order to comply with Transport, Escort, Detention, Search (TEDS) & e3

Detention Module (e3 DM).

. Subjects not amenable to being expelled: TSDB, CIMT, Aggravated Feloq Injured Alien,
Non-Immigration Felony Convictions, etc.... or otherwise determined by the Sector Chief Patrol Ageot or designated official
o Subjects expelled via flights as appropriate or sent to designated Quarantine Facility . Subjects non amenable to being expelled via a POE - agents will request an ICAD Ticket #
and record on Field Intake Form and subjects will be transferred via local guidelines
. Based on available evidence and only for extenuating circumstances, agents may determine
to process under existing stahrtory authorities found in Title 8 ofthe US code. The authority to make this determination resides with the Chief Patrol Agent and cannot be delegated below the Watch Commander position. Subjects taken into custody under Title 8 must be processed under normal Title 8 guidelines (e.g., E& NTA, etc...)

Transoorlation

USBP will have dedicated transportation vehicles with separation between agents and subjects encountered to minimize your exposure. At no time shall subjects be transported in USBP vehicles not designated as COVID-l9 transportation vehicles unless exigent circumstances exist.
. Subjects will be transported to the nearest POE and immediately retumed to Mexico or
Canad4 depending on their point oftransit.
r Subjects encountered that are not amenable to immediate expulsion to Mexico or Canada
will be transported to a dedicated facility for limited holding prior to expulsion to the alien's country of citizenship. This varies by sector but should be a tent, soft-sided facility or predesignated CBPruSBP facility with dedicated space.
. ICE/ERO will take custody ofany subject cleared by HHS or appropriate medical personnel
and follow established procedures under Title 8 or Title 42 as applicable.

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Vehicles utilized to temporarily hold subjects will rmdergo the appropriate sanitation procedures in place to minimize exposure and possible spread of virus
Convention Asaimt Torture Clrim
Aliens that make an affirmative, spontaneous and reasonably believable claim that they fear being
torhrcd in the country they are being sent back to, will be taken to the designated station and
.referred to USCIS. Agents should scek Supervisory Guidance.
Noti& USCIS
o USCIS determines positive, converted to Title 8, tum over to ERO and entered into 240
proceedings for an Asylum hearing based on Torture.
o Interview by Asylt m Ofiicer while in our custody . Secondary review Supervisory Asylum Officer o USCIS detemfnes negative, continue under Title 42, expel to Mexico or Other.

Case 1:20-cv-01509-CJN Document 34-3 Filed 06/22/20 Page 1 of 3
SUPPLEMENTAL DECLARATION OF LINDA CORCHADO, ESQ., IN SUPPORT OF PLAINTIFF’S EMERGENCY MOTION FOR STAY OF REMOVAL
1. I am Linda Corchado, Esq., the Legal Director of Las Americas Immigrant Advocacy Center. I am counsel to J.B.B.C. in his administrative immigration matters, and previously submitted a declaration in support of his emergency motion for a stay of removal.
2. I submit this declaration to address the screening J.B.B.C. purportedly received for his claims under the Convention Against Torture (“CAT”), which occurred after the submission of my initial declaration.
3. On the afternoon of June 8, 2020, upon learning of J.B.B.C.’s case, I promptly notified the El Paso ICE Field Office and Office of Chief Counsel that my client fears persecution and torture should he be expelled to Honduras. I requested that my client receive a screening for his claims. In an e-mail on June 9, I further informed both the Field Office and Office of Chief Counsel that [“[i]t is clear my client has an asylum and withholding/CAT claim,” and that “I ask that you transfer my client to ORR.”
4. Although I had put both offices on notice that I was the attorney of record, I was never notified by USCIS, DHS or ICE that my client had been scheduled for a CAT screening.
5. I first made contact with J.B.B.C. midday on June 9, 2020. We had a conversation while he was in transit from the El Paso International Airport to an undisclosed hotel in El Paso. I made our conversation brief since he was within earshot of the people who were accompanying J.B.B.C.
6. Late afternoon on June 9, 2020, after J.B.B.C. had been returned to the El Paso hotel, he and I spoke via phone. On that call, I learned for the first time that he had spoken with someone who asked him about his fears of returning to Honduras. From his description of the conversation, it seemed to have been a type of screening for CAT.
7. J.B.B.C. told me that shortly after arriving at the hotel, an officer handed him a phone. He asked who was on the phone, and he was told an officer wants to talk to him about his claim. My client was not given any advance warning that this call would take place, he was not given the opportunity to reschedule the interview, nor the opportunity to have his attorney present.
8. I was not notified in advance that this screening was to take place, even though I had repeatedly made clear with DHS officers that I am his lawyer.
9. My client informed me that at the start of the interview the officer stressed that he could only speak about the harms he himself had directly experienced. My client understood this to mean that he could only discuss the harm that he personally had suffered. As a result, he did not discuss the harm and murders that others suffered, including his family members, even though the threats to his life are the result of his having knowledge of
1

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such harms. For example, my client did not discuss the fact that his uncle is a wellknown politician in his town who has been persecuted for refusing to go along with corruption, nor that his immediate family members suffered violence for reasons that are recognized as a basis for asylum, such as based on their sexuality.
10. My client has also directly witnessed harm to others, such as his neighbor who was murdered right outside his aunt’s store, which also served as their home. Since his father is an asylum seeker in the United States, his aunt and uncle are his de facto parents in Honduras. The gangs were aware that he saw the murder, which is highly relevant to his claims of persecution.
11. Preparing for a client’s screening interview can be an extensive process, because asylum seekers have no knowledge of the U.S. immigration system and do not know how to respond to an asylum officer’s questions.
12. Such preparation is especially critical for minors, for several reasons. Minors are frequently less likely to understand their rights and often have greater difficulty conveying a coherent factual narrative. As importantly, minors will also not know the full story because adults will often shield them from the harrowing aspects of their situation. In this case, for example, after my client heard the gunshots and saw the body of a man murdered in front of his aunt’s store, men came to threaten him and his family, since the family were potential witnesses. My client was not home at the time that the men made these threats, and his aunt chose not to inform him. Instead, she informed my client’s father of the threat to his son, explaining that his son was now in grave danger if he remained in Honduras. Had my client been able to even minimally prepare for his screening, he would have been informed of this threat and known to inform the screening officer.
13. Las Americas has an entire program dedicated to helping asylum seekers with similar screening interviews, including a know your rights portion and a lengthy intake to better understand the persecution claims. In addition, our office screens for trauma and posttraumatic stress disorder, as we have noticed an uptick in clients suffering from exceptional trauma and anxiety, which can impact their ability to accurately represent themselves before an officer. My client was denied the opportunity to receive these services.
14. On June 11, 2020, the day after the screening interview, J.B.B.C. was informed that he had not passed his CAT screening. I have requested any paperwork or documentation concerning the screening process, including the notes of the officer and any written memorialization of the decision. I have thus far received only a short notice, titled “42 U.S.C. § 265 Convention Against Torture Assessment Notice,” that provides only an “x” mark on a check box that says “you did not establish it is more likely than not that you will be tortured in Honduras.” That notice, redacted only to shield my client’s full name, is attached to this declaration.
2

Case 1:20-cv-01509-CJN Document 34-3 Filed 06/22/20 Page 3 of 3 15. I have not received any further documentation of any kind, including interview notes or
any further analysis or explanation of the decision; or any indication the decision was reviewed by a supervisor; or any indication that my client was advised of any right to review by an immigration judge. 16. My client is feeling high levels of stress, depression and anxiety. His voice often breaks when he talks about his fear of returning to Honduras and how desperate he is to see his father. He continues to remark on his sense of hopelessness and isolation. I declare under the penalty of perjury, under the laws of the United States and Texas, that the foregoing is true and correct to the best of my knowledge. Date: June 21, 2020
___________________________ Linda Corchado Attorney for J.B.B.C.
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 Case 1:20-cv-01509-CJN Document 42 Filed 07/02/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C.,* A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez, c/o American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
E.Y.,* A MINOR CHILD, by and through his brother and Next Friend, Fernando Barrios, c/o American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
Plaintiffs,
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;

) ) ) ) ) ) ) ) No. 20-cv-01509-CJN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:20-cv-01509-CJN Document 42 Filed 07/02/20 Page 2 of 33

)

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

)

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, DC 20201;

)

)

Defendants.

)

)

FIRST AMENDED 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 pseudonyms pursuant to Federal Rule of Civil Procedure 5.2(a).

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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 Plaintiffs collectively refer to as the “Title 42 Immigration Process” or “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 child shows no signs of having COVID-19, and even if the child is fleeing danger and seeking protection in the United States. 3. Plaintiffs J.B.B.C. (“J.”) and E.Y. (“E.”) are minors who came to the United States unaccompanied. 4. J. is a 16-year-old boy from Honduras. His father suffered persecution in Honduras and was forced to flee to the United States. His father now lives in the United States and is awaiting his immigration proceedings. Recently, J. was also forced to escape severe persecution in Honduras and sought to join his father in the United States. 5. U.S. Customs and Border Protection (“CBP”) apprehended J. on or about June 4, 2020, after he came to the United States unaccompanied. He is currently in Office of Refugee Resettlement (“ORR”) custody in the El Paso, Texas, area. 6. Plaintiff E. is a 15-year-old boy from Guatemala. He has suffered extreme familial abuse from his grandfather and aunt with whom he had lived in Guatemala, has been persecuted because his mother testified against her stalker, and has been threatened by gangs. E. was ultimately forced to flee to the United States to seek protection. His siblings live in the United
1

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States. Both were granted asylum protections last year and E.’s protection claims are materially the same as those of his siblings. 7. CBP apprehended E. on or about June 26, 2020, after he came to the United States unaccompanied. He is currently in CBP custody in the McAllen, Texas, area. 8. Prior to the Title 42 Process, and pursuant to longstanding immigration statutes protecting children and those seeking protection, J. and E. should have been given shelter in children’s facilities until they could be released to family members, and would have been entitled to a full hearing, and appeals, to determine their right to seek safety in the United States with their family members. 9. 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 never in this way—entitle it to set aside the immigration laws. 10. But those public health provisions do not authorize this unprecedented Title 42 Immigration 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. And even if Title 42 permits the expulsion of some individuals, that power would not apply to children or those seeking protection from persecution or torture. The statutes protecting children and those seeking protection were enacted after the Title 42 provisions and contain no exception for individuals with communicable diseases. 11. In fact, communicable diseases have a long history in immigration law, and Congress has squarely addressed how to handle them. Under the specific immigration provisions enacted by Congress, if a border official suspects that an arriving noncitizen has a communicable disease
2

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deemed serious by the government, the official has numerous options, including testing and even quarantine. But children and others seeking protection may under no circumstances be deported without a hearing to determine their right to remain in the United States (even if that means a period of quarantine is required). 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 the use of testing and quarantines, not deportations. 12. Not only does the Title 42 Process violate the immigration statutes, but its application to Plaintiffs J. and E. is patently arbitrary and capricious from a public health standpoint. 13. The principal stated justifications for the Title 42 Process is 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 explained, numerous safety measures are available, including social distancing, face masks, and gloves. Under the normal operation of the immigration laws, Plaintiffs would have been promptly sent to a shelter where trained workers would have cared for them, or to the custody of a family member, who would have ensured they stayed safe. 14. Moreover, under the regular operation of immigration laws governing children, an unaccompanied child who arrives from Central America, like Plaintiffs, is transferred to the custody of ORR within 72 hours of the child’s apprehension.
3

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15. Instead, Plaintiff E. has remained in immigration custody for over five days, and at the time of the original Complaint Plaintiff J. had remained in custody for more than five days, in order for Defendants to arrange for their return to Honduras and Guatemala respectively. This increases the risk of exposure to COVID-19 for Plaintiffs and border enforcement agents. Thus, the Title 42 Process increases the amount of time children spend with border agents, because it takes time to find air transportation to deport them. 16. Whatever the Administration’s motivation for applying the Title 42 Process to children and adults seeking protection, the Process is unlawful. Plaintiffs would face grave danger in Honduras and Guatemala and must be given the opportunity to remain to the United States to receive the statutory protections to which they are entitled under the laws passed by Congress.
JURISDICTION AND VENUE 17. 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 § 264, et seq. 18. 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). 19. 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, and Defendants reside in this District.
4

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PARTIES Plaintiffs 20. Plaintiff J. is a 16-year-old boy from Honduras, who fled to seek protection in the United States. After he entered the United States, he was apprehended by CBP. He seeks to remain in the United States to seek protection from persecution and torture. He sues by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez. 21. Plaintiff E. is a 15-year-old boy from Guatemala, who fled to seek protection in the United States. After he entered the United States, he was apprehended by CBP. He seeks to remain in the United States to seek protection from persecution and torture. He sues by and through his brother and Next Friend, Fernando Barrios. Defendants 22. Defendant Chad Wolf is the Acting Secretary of Homeland Security, which is a cabinetlevel department of the U.S. government. 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”). 23. 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.
5

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24. 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 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. 25. 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. 26. 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. 27. 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 ORR, which are components of HHS. 28. 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. 29. 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
6

Case 1:20-cv-01509-CJN Document 42 Filed 07/02/20 Page 9 of 33
programs designed to ensure that unaccompanied children access certain procedural protections in their removal proceedings. The agency is a component of HHS. In that capacity, Defendant Stirrup oversees the care and custody of unaccompanied children in immigration custody.
FACTS Unaccompanied Children in the Immigration System 30. 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, and Guatemala because of the escalating influence of powerful gangs that control large swaths of these countries and frequently target children. Many unaccompanied children from these Central American countries are also fleeing gender-based, family-based, and other types of violence. 31. 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. 32. 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.
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33. In 2008, Congress then 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 ensure their care.1 34. 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 are subject to an initial screening to determine whether they must be referred to ORR custody. 8 U.S.C. § 1232(a)(2)(A)(i)-(iii), (a)(3). 35. 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. 36. 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.
1 Although the TVPRA refers to HHS, ORR (as an HHS subagency) carries out these statutory functions.
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37. 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. 38. The TVPRA also includes safeguards concerning the removal proceedings of unaccompanied children from noncontiguous countries, and those children from contiguous countries who pass the screening. Most importantly, if DHS seeks to remove a child, 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. Children cannot be removed via fast-track removal processes applicable to others. 8 U.S.C. § 1232(a)(5)(D)(i). 39. 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. 40. In short, an unaccompanied child from a country like Honduras and Guatemala must automatically be allowed to remain in the country, transferred within 72 hours to ORR custody, and placed in full immigration proceedings, where he can apply for asylum and other protections under which he may ultimately receive permission to remain in the United States. There is no screening before the child is transferred to ORR and placed in immigration proceedings, other than checking that he is unaccompanied and from a non-contiguous country.
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41. 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. 42. 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 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). 43. 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. 44. 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.
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The Treatment of Communicable Diseases Under the Immigration Laws 45. 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. 46. 8 U.S.C. § 1182(a)(1) contains various “health-related” grounds of inadmissibility. The statute applies to various 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 self or others, id. § 1182(a)(1)(A)(iii); or “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 summary deportation of children in violation of the TVPRA. 47. 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 healthrelated 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 48. 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
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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. 49. 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. 50. Before COVID-19, Administration officials discussed using public health powers to restrict immigration and circumvent the protections in the immigration laws. 51. 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, 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.” 52. 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 modern 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
2 In 1966, the Surgeon General transferred its § 265 authority 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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53. 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). 54. 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. 55. 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. 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 (Mar. 24, 2020) (effective date Mar. 20, 2020). 56. 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 interpreted 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 interpreted “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).
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57. 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). 58. 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.” 42 C.F.R. § 71.40(d)(2); see 85 Fed. Reg. at 16,564. 59. 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. 17,060-17088 (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).
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60. 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. 61. The Order directs 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. 62. 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. 63. In addition to repeating the regulatory exceptions for U.S. citizens and LPRs, the Order 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. 64. 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. 65. 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.
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66. The March 20 Order was extended for an additional 30 days on April 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). 67. 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. 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). 68. 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 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. 69. The CDC acknowledged that there were alternatives to expulsion but concluded that it was not worth the resources for those, like children and asylum seekers, who lacked documents. The CDC also presumed, without evidence, that those without documents covered by the Order would lack a means of self-quarantining. CBP’s Implementation of the Title 42 Process 70. 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. 71. 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
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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. 72. Covered noncitizens “will be transported to the nearest POE and immediately returned to Mexico or Canada, depending on their point of transit.” CBP Memo at 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. 73. The CBP Memo provides no instructions on medical screenings or other procedures for determining whether a covered noncitizen may have COVID-19. 74. The CBP Memo does not exempt minors from forcible expulsion. 75. 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. 76. CBP has turned back multiple children to Mexico in the middle of the night. 77. 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.
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78. CDC suggested in the May 20 Order that there has been a reduced rate of transmission and that this is due to reduced number of “covered aliens” at ports of entry and border patrol stations. CDC, however, offered no evidence of this causal link. 79. This complaint refers 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 collectively as the “Title 42 Immigration Process” or “Title 42 Process.” Defendants Seek to Expel Plaintiffs to Honduras and Guatemala Under the Title 42 Process 80. Plaintiffs J. is a 16-year-old boy from Honduras and Plaintiff E. is a 15-year-old boy from Guatemala. They are two of the many unaccompanied children subject to summary expulsions by CBP pursuant to the Title 42 Process. They face deportation back to Honduras and Guatemala, respectively. 81. Plaintiff J.’s father, Mr. Barrera Rodriguez, lives in the United States and has a pending asylum case. 82. J. experienced persecution in Honduras. He witnessed a gang member murder a young man. Gang members then came to the store where his aunt worked, and where J. also helped, threatening him and ordering that the store had to close. Another relative was also beaten by gang members near where J. lived. J. was terrified to leave the house after these events, even to go to school. 83. J. fled Honduras because he was afraid for his life and journeyed to the United States to seek safety and reunite with his father. 84. On or around June 4, 2020, J. entered the United States near El Paso, Texas, where CBP apprehended him. Until the original Complaint was filed, CBP officials did not give him any opportunity to raise his fear of return to Honduras.
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85. His father received a call the afternoon of June 4 asking for his name and address, and to confirm that he was J.’s father. The official on the phone said that they would call the father again with more information. 86. On June 5, J.’s father received a call from the same phone number and was able to speak with J. but was unable to speak with officials again to get further information about what would happen to his son. 87. J. was moved to a hotel before or on June 6. He remained in the hotel as officials waited to place him on a flight to Honduras. 88. At the time the original Complaint was filed, J. had spent at least five days in CBP custody. 89. J. has not exhibited any symptoms of COVID-19 and is in good health. 90. At the time the original Complaint was filed, J.’s removal to Honduras was imminent. J.’s counsel and father attempted to obtain information from CBP about his whereabouts and whether Defendants planned to deport him to Honduras. On June 9, 2020, at 8:20 a.m. MST, a DHS official confirmed via email to J.’s counsel that J. “is pending expulsion under Title 42” and that, “[a]t this time, there is no legal impediment to the imminent expulsion of [J.].” 91. Later on June 9, at 11:17 a.m. MST, a DHS official further stated in email to J.’s counsel that J. was “scheduled to depart via an ICE Air flight within the next few days” and that the Honduran consulate “has been advised.” 92. In a subsequent conversation with a DHS official on the evening of June 9, counsel for J. learned that J. was scheduled to be flown to Honduras the next day, June 10.
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93. Both J.’s counsel and his father sought to communicate to the government officers holding J. in custody that the boy is afraid return to Honduras because he fears persecution and torture there. 94. Plaintiff E. experienced persecution in Guatemala. His grandfather and aunt with whom he had lived have repeatedly abused him; his uncle has stalked and abused E.’s mother and targeted E.; and gang members have sought out E. and threatened to harm him. E.’s siblings, both of whom escaped their grandfather and aunt’s home, received grants of asylum last year based on materially the same claims of asylum. In fact, E.’s abuse at the hands of his grandfather and aunt has gone on longer because he was not able to escape until recently. 95. The various ways in which E. has been persecuted are connected: His mother spoke out and testified in judicial proceedings against his uncle, who had sexually abused her and, in one attack, beheaded a relative of E.’s father. The uncle has since stalked and threatened E.’s mother and E., including from the prison where he was incarcerated, by sending gang members and other family to approach E. The uncle either was recently released from incarceration or is about to be released, thus putting E. in further harm. And the gang members sent by the uncle to threaten E. have in turn offered to protect E. from the uncle, but only if he joins the gang. E.’s grandfather and aunt physically abused him and his siblings, and when beating them would tell them that they were being punished for their uncle’s crimes. 96. E. was forced to flee Guatemala to escape persecution and seek safety. 97. E. entered the United States on or about June 26, 2020, near Roma, Texas, and CBP apprehended him.
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98. E. told CBP officers that he came to the United States because he was in danger in Guatemala. He also gave CBP the name and number of family members here in the United States, including his parents. 99. On June 27, E.’s parents were informed by CBP officials that he was in their custody. On June 28, E.’s mother spoke to E. by phone and confirmed that E. had raised his claims of fearing return to Guatemala with CBP officers. She also told an officer who arranged the call that E. cannot return to Guatemala because he is being abused by his grandfather and an aunt, and his uncle wants to kill him. The CBP officer told E.’s mother there was nothing she could do and that they were going to put E. on a plane. 100. E. has spent at least five days in DHS custody. 101. E. has not exhibited any symptoms of COVID-19 and is in good health. 102. E.’s removal to Guatemala is likely imminent. DHS officials have confirmed to an attorney for E. that he will be sent to Guatemala by plane soon, but have not provided further details or responded to numerous inquiries. 103. On June 30, 2020, a CBP official confirmed over the phone to E.’s counsel that E. was being treated under Title 42. 104. The threat of persecution and torture to J. and E. is imminent and real. Honduras and Guatemala are among the most violent countries in the world. And children are not exempt from this widespread danger. Indeed, many children are targeted specifically by gang members for recruitment. Children have experienced extreme harms ranging from threats against their lives and physical abuse to rape, kidnapping, and murder. 105. If J. and E. are allowed to remain the United States, they could live with their respective family members, who currently reside in the United States, and are waiting for them.
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106. Even if Plaintiffs were required to first reside for a short time in an ORR children’s shelter, they 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. 107. 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. 108. After the Title 42 Process went into place, the numbers dropped even more precipitously. As of May 2020, the number of children detained in ORR custody was reportedly at about 1,600—approximately 11 percent of total capacity. 109. Because Plaintiffs could have been transferred directly to their family members or to an ORR shelter, they would pose minimal, if any, additional risk to border agents. 110. Plaintiffs have been required to remain in DHS custody far longer than the time it would have taken to transfer them to their family members or to an ORR facility. 111. 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 documents and that it is therefore necessary to deport such individuals to reduce the risk to agents. But, as Plaintiffs’ facts illustrate, arranging for air transport to deport individuals will take longer than the 72 hours in which DHS must transfer children to ORR or family members. In addition, where the individual shows no signs of COVID-19, the risk is even less. J. and E., for example, have shown no COVID-19 symptoms.
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The Title 42 Process Is An Extreme Outlier 112. 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. 113. 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.” 114. 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. 115. 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 “the national interest” to permit noncitizens who compete in, inter alia, the National
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Basketball Association, the Professional Golfers’ Association Tour, and the National Hockey League, to enter the country and participate in sporting events. 116. 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. 117. 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 Denmark, France, and Germany, 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. 118. Despite Defendants’ claimed fear of “introducing” infected individuals into the country, the United States is experiencing an outbreak of COVID-19 that is substantially more serious than most of its neighbors. This country has the highest COVID-19 death toll and one of the highest infection rates in the entire world. As of June 29, 2020, the United States had over 2.56 million confirmed cases of COVID-19, a rate of 7.81 people per thousand.
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)) 119. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 120. 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
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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). 121. The TVPRA, 8 U.S.C. § 1232, includes mandatory requirements for the processing, custody, release, and removal of unaccompanied children. Defendants’ subjection of Plaintiffs to the Title 42 Process violates the statute in numerous ways, including that they should have been referred to the custody of HHS or their family member (rather than be facing expulsion to Honduras and Guatemala); that they should have been placed in full removal proceedings before an immigration judge, where they would have a full and fair opportunity to litigate their claims for relief; and that they have been deprived of numerous statutory safeguards designed to facilitate their safe release into the United States and ensure the fairness of their removal proceedings. 122. Defendants’ subjection of Plaintiffs to the Title 42 Process violates the TVPRA. 123. As a result, Defendants’ application of the Title 42 Process and regulation to Plaintiffs is contrary to law. See 5 U.S.C. § 706(2)(A). 124. Moreover, by refusing to grant Plaintiffs the statutory protections to which the TVPRA entitles them, and instead planning to expel them to countries where they face threat of persecution and torture, 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)) 125. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 126. Title 42 of the U.S. Code does not authorize the expulsion of noncitizens from the United States.
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127. 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 Plaintiffs, which will result in their expulsion from the United States and return to Honduras and Guatemala, is contrary to law. See 5 U.S.C. § 706(2)(A). 128. 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. 129. The application of the Title 42 Process to Plaintiffs 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))
130. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 131. 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 persecution. 132. 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). 133. Defendants applied the Title 42 Process and regulation to Plaintiffs without any of these required safeguards. 134. Application of the Title 42 Process and regulation to Plaintiffs therefore violated 8 U.S.C. § 1231(b)(3), and its implementing regulations.
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135. As a result, Defendants’ actions against Plaintiffs are contrary to law. See 5 U.S.C. § 706(2)(A). 136. In addition, by refusing to grant Plaintiffs 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)) 137. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 138. 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). 139. Defendants’ application of the Title 42 Process to Plaintiffs has prevented them from applying for asylum in accordance with 8 U.S.C. § 1158(a)(1), and was therefore contrary to law, see 5 U.S.C. § 706(2)(A). 140. In addition, by refusing to grant Plaintiffs the meaningful opportunity to apply for asylum to which they are 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))
141. All of the foregoing allegations are repeated and realleged as if fully set forth herein.
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142. FARRA prohibits the government from returning a noncitizen to a country where it is more likely than not that he would face torture. 143. It is more likely than not that Plaintiffs J. and E. will face torture if they are returned to Honduras and Guatemala respectively. 144. 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). 145. Defendants applied the Title 42 Process and regulation to Plaintiffs, to provide for their summary expulsion without placing them into full removal proceedings. 146. The application of the Title 42 Process to Plaintiffs therefore violated § 1231(b)(3), FARRA, and their implementing regulations. 147. Defendants’ actions were contrary to law. See 5 U.S.C. § 706(2)(A). 148. In addition, by refusing to grant Plaintiffs 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)) 149. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 150. The INA, 8 U.S.C. § 1101, et seq., sets out the sole mechanisms established by Congress for the removal of noncitizens. 151. 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).
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152. 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. 153. Because the Title 42 Process provides for the expulsion of Plaintiffs without the procedures specified in the INA, it violates 8 U.S.C. § 1229a and the INA. 154. As a result, Defendants’ actions against Plaintiffs were contrary to law. See 5 U.S.C. § 706(2)(A). 155. In addition, by refusing to grant Plaintiffs 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)) 156. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 157. 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 Plaintiffs; 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; relied on factors Congress did not intend to be considered; failed to consider reasonable alternatives that were less restrictive; and offered no explanation for their decision to expel them from the country. 158. Plaintiffs’ 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,
29

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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, Plaintiffs J. and E. respectfully prays this Court to:

a. Declare unlawful the Title 42 Process as applied to Plaintiffs;

b. Enter an order enjoining Defendants from applying the Title 42 Process to Plaintiffs;

c. Enter an order providing relief for Plaintiffs 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 is

eligible;

d. Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice

Act, and any other applicable statute or regulation; and,

e. Grant such further relief as the Court deems just, equitable, and appropriate.

Dated: July 2, 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

/s/ Lee Gelernt_____________________ 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
Robert Silverman** Oxfam America 226 Causeway Street, Suite 500 Boston, MA 02114 Tel: (617) 482-1211

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Case 1:20-cv-01509-CJN Document 42 Filed 07/02/20 Page 33 of 33

American Civil Liberties Union Foundation of Texas, Inc. 5225 Katy Freeway, Suite 350 Houston, Texas 77007 Tel. (713) 942-8146
Jamie Crook (D.C. Bar No. 1002504) Blaine Bookey Karen Musalo Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 Tel: (415) 565-4877

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 Plaintiffs

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

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Exhibit A

Case 1:20-cv-01509-CJN Document 42-1 Filed 07/02/20 Page 2 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C.,* A MINOR CHILD, by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez, c/o American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
PlaintiffE.Y.,* A MINOR CHILD, by and through his brother and Next Friend, Fernando Barrios, c/o American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
Plaintiffs,
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;

) ) ) ) ) ) ) ) No. 202020-cv-___________) 01509-CJN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:20-cv-01509-CJN Document 42-1 Filed 07/02/20 Page 3 of 36

)

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

)

Washington, D.C.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.DC 20201;

)

)

Defendants.

)

)

)

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Case 1:20-cv-01509-CJN Document 42-1 Filed 07/02/20 Page 4 of 36
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(ViolationViolations 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 pseudonympseudonyms pursuant to Federal Rule of Civil Procedure
5.2(a).

Case 1:20-cv-01509-CJN Document 42-1 Filed 07/02/20 Page 5 of 36
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 PlaintiffPlaintiffs collectively refersrefer to as the “Title 42 Immigration Process” or “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 child shows no signs of having COVID-19, and even if the child is fleeing danger and seeking protection in the United States. 3. Plaintiff J.B.B.C.Plaintiffs J.B.B.C. (“J.”) and E.Y. (“E.”) are minors who came to the United States unaccompanied. 3.4. J. is a 16-year-old boy from Honduras. His father suffered persecution in Honduras and was forced to flee to the United States. His father now lives in the United States and is awaiting his immigration proceedings. Recently, PlaintiffJ. was also forced to escape severe persecution in Honduras and sought to join his father in the United States. 5. U.S. Customs and Border Protection (“CBP”) apprehended J.B.B.C. on or about June 4, 2020, after he came to the United States unaccompanied. He is currently in CBP Office of Refugee Resettlement (“ORR”) custody in the El Paso, Texas, area. 6. Plaintiff E. is a 15-year-old boy from Guatemala. He has suffered extreme familial abuse from his grandfather and aunt with whom he had lived in Guatemala, has been persecuted because his mother testified against her stalker, and has been threatened by gangs. E. was
1

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ultimately forced to flee to the United States to seek protection. His siblings live in the United States. Both were granted asylum protections last year and E.’s protection claims are materially the same as those of his siblings. 4.7. CBP apprehended E. on or about June 26, 2020, after he came to the United States unaccompanied. He is currently in CBP custody in the McAllen, Texas, area. 5.8. Prior to the Title 42 Process, and pursuant to longstanding immigration statutes protecting children and those seeking protection, J.B.B.C and E. should have been given shelter in a children’s facilityfacilities until hethey could be released to his fatherfamily members, and he would have been entitled to a full hearing, and appeals, to determine histheir right to seek safety in the United States with his fathertheir family members. 6.9. 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 never in this way—entitle it to set aside the immigration laws. 7.10. But those public health provisions do not authorize this unprecedented Title 42 Immigration 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. And even if Title 42 permits the expulsion of some individuals, that power would not apply to children or those seeking protection from persecution or torture. The statutes protecting children and those seeking protection were enacted after the Title 42 provisions and contain no exception for individuals with communicable diseases. 8.11. In fact, communicable diseases have a long history in immigration law, and Congress has squarely addressed how to handle them. Under the specific immigration provisions enacted by
2

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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 children and others seeking protection may under no circumstances be deported without a hearing to determine their right to remain in the United States (even if that means a period of quarantine is required). 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 the use of testing and quarantines, not deportations. 9.12. Not only does the Title 42 Process violate the immigration statutes, but its application to PlaintiffPlaintiffs J.B.B.C and E. is patently arbitrary and capricious from a public health standpoint. 10.13. The principal stated justifications for the Title 42 Process is 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 explained, numerous safety measures are available, including social distancing, face masks, and gloves. Under the normal operation of the immigration laws, PlaintiffPlaintiffs would have been promptly sent to a shelter where trained workers would have cared for himthem, or to the custody of his fathera family member, who would have ensured hethey stayed safe.
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11.14. Moreover, under the regular operation of immigration laws governing children, an unaccompanied child who arrives from Central America, like PlaintiffPlaintiffs, is transferred to the custody of ORR within 72 hours of the child’s apprehension. 12.15. Instead, Plaintiff E. has remained in immigration custody for more than over five days, and at the time of the original Complaint Plaintiff J. had remained in custody for more than five days, in order for Defendants to arrange for histheir return to Honduras, increasing and Guatemala respectively. This increases the risk of exposure to COVID-19 for PlaintiffPlaintiffs and border enforcement agents. Thus, the Title 42 Process increases the amount of time children spend with border agents, because it takes time to find air transportation to deport them. 13.16. Whatever the Administration’s motivation for applying the Title 42 Process to children and adults seeking protection, the Process is unlawful. PlaintiffPlaintiffs would face grave danger in Honduras and Guatemala and must be given the opportunity to remain to the United States to receive the statutory protections to which he isthey are entitled under the laws passed by Congress.
JURISDICTION AND VENUE 14.17. 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 ServicesService Act of 1944, 42 U.S.C § 264, et seq.
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15.18. 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). 16.19. 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, and Defendants reside in this District.
PARTIES Plaintiff Plaintiffs 17.20. Plaintiff J.B.B.C. is a 16-year-old boy from Honduras, who fled to seek protection in the United States. After he entered the United States, he was apprehended by CBP. He seeks to remain in the United States to seek protection from persecution and torture. He sues by and through his father and Next Friend, Carlos Emilio Barrera Rodriguez. 21. Plaintiff E. is a 15-year-old boy from Guatemala, who fled to seek protection in the United States. After he entered the United States, he was apprehended by CBP. He seeks to remain in the United States to seek protection from persecution and torture. He sues by and through his brother and Next Friend, Fernando Barrios. Defendants 18.22. Defendant Chad Wolf is the Acting Secretary of Homeland Security, which is a cabinetlevel department of the U.S. government. 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 U.S. Customs and Border Protection (“CBP”),CBP and U.S. Immigration and Customs Enforcement (“ICE”).
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19.23. 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. 20.24. 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 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. 21.25. 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. 22.26. 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. 23.27. 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
6

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Control (“CDC”) and the Office of Refugee Resettlement (“ORR”),ORR, which are components of HHS. 24.28. Defendant Dr. Robert R. Redfield, M.D., is the Director of the CDC. He is sued in his official capacity. In that rolecapacity, he authorized the Title 42 Process at issue in this case. 25.29. 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 rolecapacity, Defendant Stirrup oversees the care and custody of unaccompanied children in immigration custody.
FACTS Unaccompanied Children in the Immigration System 26.30. 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, and Guatemala because of the escalating influence of powerful gangs that control large swaths of these countries and frequently target children. Many unaccompanied children from these Central American countries are also fleeing gender-based, family-based, and other types of violence. 27.31. 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.
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28.32. 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. 29.33. In 2008, Congress then 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 ensure their care.1 30.34. 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 are subject to an initial screening to determine whether they must be referred to ORR custody. 8 U.S.C. § 1232(a)(2)(A)(i)-(iii), (a)(3). 31.35. 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.
1 Although the TVPRA refers to HHS, ORR (as an HHS subagency) carries out these statutory functions.
8

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§ 1232(c)(2)(A). Such placements can include referral to shelters or care facilities operated by entities that contract with ORR. 32.36. 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. 33.37. 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. 34.38. The TVPRA also includes safeguards concerning the removal proceedings of unaccompanied children from noncontiguous countries, and those children from contiguous countries who pass the screening. Most importantly, if DHS seeks to remove a child, 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. Children cannot be removed via fast-track removal processes applicable to others. 8 U.S.C. § 1232(a)(5)(D)(i). 35.39. 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.
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36.40. In short, an unaccompanied child from a country like Honduras and Guatemala must automatically be allowed to remain in the country, transferred within 72 hours to ORR custody, and placed in full immigration proceedings, where he can apply for asylum and other protections under which he may ultimately receive permission to remain in the United States. There is no screening before the child is transferred to ORR and placed in immigration proceedings, other than checking that he is unaccompanied and from a non-contiguous country. 37.41. 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. 38.42. 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 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). 39.43. 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
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removal,” requires the applicant to meet a higher burden with respect to the likelihood of harm but is mandatory if the standard is met. 40.44. 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 41.45. 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. 42.46. 8 U.S.C. § 1182(a)(1) contains various “health-related” grounds of inadmissibility. The statute applies to various 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 self or others, id. § 1182(a)(1)(A)(iii); or “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 summary deportation of children in violation of the TVPRA. 43.47. 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 healthrelated 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

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“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 44.48. 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. 45.49. 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. 46.50. Before COVID-19, Administration officials discussed using public health powers to restrict immigration and circumvent the protections in the immigration laws. 47.51. 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, 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.” 48.52. 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 modern
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Public Health Service Act of 1944. Section 265 provides in relevant part: theThe 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 49.53. 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). 50.54. 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. 51.55. 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. 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 (Mar. 24, 2020) (effective date Mar. 20, 2020). 52.56. 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 FRFed. Reg. at 16,563; see 42 C.F.R. § 71.40(a). The public notice of the regulation interpreted 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
2 In 1966, the Surgeon General transferred its § 265 authority 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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communicable disease.” 85 FRFed. Reg. at 16,563; see 42 C.F.R. § 71.40(b)(1). And it interpreted “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 FRFed. Reg. at 16,563; see 42 C.F.R. § 71.40(b)(2). 53.57. 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 FRFed. Reg. at 16,564; see 42 C.F.R. § 71.40(e), (f). 54.58. 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.” 42 C.F.R. § 71.40(d)(2); see 85 FRFed. Reg. at 16,564. 55.59. 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. 17,060-17088 (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 FRFed. Reg. at 17,067. “Covered aliens” are those seeking to enter the United States through

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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 FRFed. 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). 56.60. 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 FRFed. Reg. at 17,061. 57.61. The Order directs the forcible return of individuals back to the country from which they entered (Canada or Mexico), their home country, or another location. 85 FRFed. Reg. at 17,067. 58.62. 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 FRFed. Reg. at 17,067. 59.63. In addition to repeating the regulatory exceptions for U.S. citizens and LPRs, the Order 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 FRFed. Reg. at 17,061. The visa waiver program applies to nationals of 39 countries. 60.64. 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,

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and public health interests.” 85 FRFed. 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. 61.65. 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. 62.66. The March 20 Order was extended for an additional 30 days on April 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). 63.67. 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. 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). 64.68. 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 further introducing COVID-19 into the United States.” 85 FRFed. 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. 65.69. The CDC acknowledged that there were alternatives to expulsion but concluded that it was not worth the resources for those, like children and asylum seekers, who lacked documents. The CDC also presumed, without evidence, that those without documents covered by the Order would lack a means of self-quarantining.
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CBP’s Implementation of the Title 42 Process 66.70. 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. 67.71. 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. 68.72. Covered noncitizens “will be transported to the nearest POE and immediately returned to Mexico or Canada, depending on their point of transit.” CBP Memo at 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. 69.73. The CBP Memo provides no instructions on medical screenings or other procedures for determining whether a covered noncitizen may have COVID-19. 70.74. The CBP Memo does not exempt minors from forcible expulsion. 71.75. 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. 72.76. CBP has turned back multiple children to Mexico in the middle of the night.
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73.77. 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. 74.78. CDC suggested in the May 20 Order that there has been a reduced rate of transmission and that this is due to reduced number of “covered aliens” at ports of entry and border patrol stations. CDC, however, offered no evidence of this causal link. 75.79. This complaint refers 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 collectively as the “Title 42 Immigration Process” or “Title 42 Process.” Defendants Will Imminently Seek to Expel PlaintiffPlaintiffs to Honduras and Guatemala Under the Title 42 Process 76.80. PlaintiffPlaintiffs J.B.B.C. is a 16-year-old boy from Honduras. He and Plaintiff E. is onea 15-year-old boy from Guatemala. They are two of the many unaccompanied children subject to summary expulsions by CBP pursuant to the Title 42 Process. He faces imminentThey face deportation back to Honduras. and Guatemala, respectively. 77.81. Plaintiff J.B.B.C.’s father, Mr. Barrera Rodriguez, lives in the United States. His father is now living in the United States and has a pending asylum case. 78.82. J.B.B.C. experienced persecution in Honduras. He witnessed a gang member murder a young man. Gang members then came to the store where his aunt worked, and where J.B.B.C.
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also helped, threatening him and ordering that the store had to close. Another relative was also beaten by gang members near where J.B.B.C. lived. J.B.B.C was terrified to leave the house after these events, even to go to school. 79.83. J.B.B.C. fled Honduras because he was afraid for his life and journeyed to the United States to seek safety and reunite with his father. 80.84. On or around June 4, 2020, J.B.B.C. entered the United States near El Paso, Texas, where CBP apprehended him. Until the original Complaint was filed, CBP officials did not give him any opportunity to raise his fear of return to Honduras. 81.85. His father received a call the afternoon of June 4 asking for his name, and address, and to confirm that he was J.B.B.C.’s father. The official on the phone said that they would call the father again with more information. 82.86. On June 5, theJ.’s father received a call from the same phone number and was able to speak with J.B.B.C. but was unable to speak with officials again to get further information about what would happen to his son. 83.87. J.B.B.C. was moved to a hotel before or on June 6. He has remained in the hotel since then, as officials waitwaited to place him on a flight to Honduras. 84.88. At the time the original Complaint was filed, J.B.B.C. has had spent at least five days in CBP custody. 85. J.B.B.C. and his father do not have access any U.S. government paperwork regarding J.B.B.C. 86.89. J.B.B.C. has not exhibited any symptoms of COVID-19 and is in good health. 87.90. J.B.B.C.At the time the original Complaint was filed, J.’s removal to Honduras iswas imminent. J.B.B.C.’s counsel and father have attempted to obtain information from CBP about
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his whereabouts and whether Defendants planplanned to deport him to Honduras. On June 9, 2020, at 8:20 ama.m. MST, a DHS official confirmed via email to J.B.B.C.’s counsel that J.B.B.C. “is pending expulsion under Title 42” and that, “[a]t this time, there is no legal impediment to the imminent expulsion of [J.B.B.C.].” 88.91. Later on June 9, at 11:17 ama.m. MST, a DHS official further stated in email to J.B.B.C.’s counsel that J.B.B.C. is was “scheduled to depart via an ICE Air flight within the next few days” and that the Honduran consulate “has been advised.” 89.92. In a subsequent conversation with a DHS official on the evening of June 9, counsel for J.B.B.C. learned that J.B.B.C. is was scheduled to be flown to Honduras tomorrowthe next day, June 10. 90.93. Both J.B.B.C.’s counsel and his father have sought to communicate to the government officers holding J.B.B.C. in custody that the boy is afraid return to Honduras because he fears persecution and torture there. 94. Plaintiff E. experienced persecution in Guatemala. His grandfather and aunt with whom he had lived have repeatedly abused him; his uncle has stalked and abused E.’s mother and targeted E.; and gang members have sought out E. and threatened to harm him. E.’s siblings, both of whom escaped their grandfather and aunt’s home, received grants of asylum last year based on materially the same claims of asylum. In fact, E.’s abuse at the hands of his grandfather and aunt has gone on longer because he was not able to escape until recently. 95. The various ways in which E. has been persecuted are connected: His mother spoke out and testified in judicial proceedings against his uncle, who had sexually abused her and, in one attack, beheaded a relative of E.’s father. The uncle has since stalked and threatened E.’s mother and E., including from the prison where he was incarcerated, by sending gang members and
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other family to approach E. The uncle either was recently released from incarceration or is about to be released, thus putting E. in further harm. And the gang members sent by the uncle to threaten E. have in turn offered to protect E. from the uncle, but only if he joins the gang. E.’s grandfather and aunt physically abused him and his siblings, and when beating them would tell them that they were being punished for their uncle’s crimes. 96. E. was forced to flee Guatemala to escape persecution and seek safety. 97. E. entered the United States on or about June 26, 2020, near Roma, Texas, and CBP apprehended him. 98. E. told CBP officers that he came to the United States because he was in danger in Guatemala. He also gave CBP the name and number of family members here in the United States, including his parents. 99. On June 27, E.’s parents were informed by CBP officials that he was in their custody. On June 28, E.’s mother spoke to E. by phone and confirmed that E. had raised his claims of fearing return to Guatemala with CBP officers. She also told an officer who arranged the call that E. cannot return to Guatemala because he is being abused by his grandfather and an aunt, and his uncle wants to kill him. The CBP officer told E.’s mother there was nothing she could do and that they were going to put E. on a plane. 100. E. has spent at least five days in DHS custody. 101. E. has not exhibited any symptoms of COVID-19 and is in good health. 102. E.’s removal to Guatemala is likely imminent. DHS officials have confirmed to an attorney for E. that he will be sent to Guatemala by plane soon, but have not provided further details or responded to numerous inquiries.
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103. On June 30, 2020, a CBP official confirmed over the phone to E.’s counsel that E. was

being treated under Title 42.

91.104.

The threat of persecution and torture to J.B.B.C and E. is imminent and

real. Honduras is one ofand Guatemala are among the most violent countries in the world. And

children are not exempt from this widespread danger. Indeed, many children are targeted

specifically by gang members for recruitment. Children have experienced extreme harms

ranging from threats against their lives and physical abuse to rape, kidnapping, and murder.

92.105.

If J.B.B.C. is and E. are allowed to remain the United States, hethey could live

with his fathertheir respective family members, who currently residesreside in the United States,

and isare waiting for J.B.B.Cthem.

93.106.

Even if PlaintiffPlaintiffs were required to first reside for a short time in an ORR

children’s shelter, hethey 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.

94.107.

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.

95.108.

After the Title 42 Process went into place, the numbers dropped even more

precipitously. As of May 2020, the number of children detained in ORR custody was reportedly

at about 1,600—approximately 11 percent of total capacity.

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96.109.

Because PlaintiffPlaintiffs could have been transferred directly to his fathertheir

family members or to an ORR shelter, hethey would pose minimal, if any, additional risk to

border agents.

97.110.

J.B.B.C. hasPlaintiffs have been required to remain in DHS custody far longer

than the time it would have taken to transfer himthem to his fathertheir family members or to an

ORR facility.

98.111.

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 documents and that it is therefore necessary to deport such individuals to

reduce the risk to agents. But, as Plaintiff’sPlaintiffs’ facts illustrate, arranging for air transport

to deport individuals will take longer than the 72 hours in which DHS must transfer children to

ORR or family members. In addition, where the individual shows no signs of COVID-19 or is

tested, as Plaintiff was, the risk is even less. J. and E., for example, have shown no COVID-19

symptoms.

The Title 42 Process Is An Extreme Outlier

99.112.

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.

100.113. 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

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individual’s eligibility for asylum, withholding of removal, or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture.” 101.114. 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. 102.115. 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 “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. 103.116. 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. 104.117. 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 Denmark, France, and Germany, have exempted asylum seekers from their immigration prohibitions, and permitted
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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. 105.118. Despite Defendants’ claimed fear of “introducing” infected individuals into the country, the United States is experiencing an outbreak of COVID-19 that is substantially more serious than most of its neighbors. This country has the highest COVID-19 death toll and one of the highest infection rates in the entire world. As of June 729, 2020, the United States had over 1.942.56 million confirmed cases of COVID-19, a rate of 5.917.81 people per thousand.
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)) 106.119. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 107.120. 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). 108.121. The TVPRA, 8 U.S.C. § 1232, includes mandatory requirements for the processing, custody, release, and removal of unaccompanied children. Defendants’ imminent forcible expulsionsubjection of J.B.B.C.Plaintiffs to the Title 42 Process violates the statute in numerous ways, including that hethey should have been referred to the custody of HHS or his fathertheir family member (rather than be facing expulsion to Honduras and Guatemala); that
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hethey should have been placed in full removal proceedings before an immigration judge, where hethey would have a full and fair opportunity to litigate histheir claims for relief; and that he hasthey have been deprived of numerous statutory safeguards designed to facilitate histheir safe release into the United States and ensure the fairness of histheir removal proceedings. 109.122. Defendants’ imminent expulsionsubjection of J.B.B.C. pursuantPlaintiffs to the Title 42 Process violates the TVPRA. 110.123. As a result, Defendants’ application of the Title 42 Process and regulation to J.B.B.C.Plaintiffs is contrary to law. See 5 U.S.C. § 706(2)(A). 111.124. Moreover, by refusing to grant J.B.B.C.Plaintiffs the statutory protections to which the TVPRA entitles himthem, and instead plansplanning to expel himthem to Hondurascountries where his facesthey face threat of persecution and torture, 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)) 112.125. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 113.126. Title 42 of the U.S. Code does not authorize the expulsion of noncitizens who are insidefrom the United States. 114.127. 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 J.B.B.C.,Plaintiffs, which will result in histheir expulsion from the United States and return to Honduras and Guatemala, is contrary to law. See 5 U.S.C. § 706(2)(A).
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115.128. 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. 116.129. The application of the Title 42 Process to J.B.B.C.Plaintiffs 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))
117.130. All of the foregoing allegations are repeated and realleged as if fully set forth herein.
118.131. 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 persecution. 119.132. 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). 120.133. Defendants applied the Title 42 Process and regulation to J.B.B.C.Plaintiffs without any of these required safeguards. 121.134. Application of the Title 42 Process and regulation to J.B.B.C., resulting in his imminent expulsion to Honduras where he faces threat of persecution and torture,Plaintiffs therefore violated 8 U.S.C. § 1231(b)(3), and its implementing regulations. 122.135. As a result, Defendants’ actions against J.B.B.C.Plaintiffs are contrary to law. See 5 U.S.C. § 706(2)(A).

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123.136. In addition, by refusing to grant J.B.B.C.Plaintiffs 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)) 124.137. All of the foregoing allegations are repeated and realleged as if fully set forth
herein. 125.138. 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). 126.139. Defendants’ application of the Title 42 Process to J.B.B.C.Plaintiffs has prevented himthem from applying for asylum in accordance with 8 U.S.C. § 1158(a)(1), and was therefore contrary to law, see 5 U.S.C. § 706(2)(A). 127.140. In addition, by refusing to grant J.B.B.C.Plaintiffs the meaningful opportunity to apply for asylum to which he isthey are 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))
128.141. All of the foregoing allegations are repeated and realleged as if fully set forth herein.
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129.142. FARRA prohibits the government from returning a noncitizen to a country where it is more likely than not that he would face torture. 130.143. It is more likely than not that Plaintiffs J.B.B.C and E. will face torture if he isthey are returned to Honduras and Guatemala respectively. 131.144. 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). 132.145. Defendants applied the Title 42 Process and regulation to J.B.B.C., and will soon summarily expelled him from the United StatesPlaintiffs, to provide for their summary expulsion without placing himthem into full removal proceedings. 133.146. The application of the Title 42 Process to J.B.B.C., resulting in his imminent expulsion to Honduras where he faces threat of torture,Plaintiffs therefore violated § 1231(b)(3), FARRA, and their implementing regulations. 134.147. Defendants’ actions were contrary to law. See 5 U.S.C. § 706(2)(A). 135.148. In addition, by refusing to grant J.B.B.C.Plaintiffs 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)) 136.149. All of the foregoing allegations are repeated and realleged as if fully set forth
herein. 137.150. The INA, 8 U.S.C. § 1101, et seq., sets out the sole mechanisms established by Congress for the removal of noncitizens.

Formatted: Keep with next

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138.151. 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, “except“[u]nless otherwise specified” in the INA. 8 U.S.C. § 1229a(a)(3). 139.152. 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. 140.153. Because the Title 42 Process provides for the expulsion of J.B.B.C.Plaintiffs without the procedures specified in the INA, it violates 8 U.S.C. § 1229a and the INA. 141.154. As a result, Defendants’ actions against J.B.B.C.Plaintiffs were contrary to law. See 5 U.S.C. § 706(2)(A). 142.155. In addition, by refusing to grant J.B.B.C.Plaintiffs 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)) 143.156. All of the foregoing allegations are repeated and realleged as if fully set forth
herein. 144.157. 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 J.B.B.C.;Plaintiffs; failed to consider relevant factors in applying the Title 42 process to them to him, including histheir statutory protections as an unaccompanied childchildren and histheir fear of persecution and torture in Honduras; relied on factors Congress did not intend to be
30

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considered; failed to consider reasonable alternatives that were less restrictive; and offered no

explanation for their decision to expel himthem from the country.

145.158.

J.B.B.C.’s imminent expulsion Plaintiffs’ 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, PlaintiffPlaintiffs J.B.B.C and E. respectfully prays this Court to:

a. Declare unlawful the Title 42 Process as applied to J.B.B.C.;Plaintiffs;

b. Enter an order enjoining Defendants from applying the Title 42 Process to

J.B.B.C.;Plaintiffs;

c. Enter an order providing relief for J.B.B.C.Plaintiffs by ordering that Defendants stay

histheir expulsion, remove himthem from the Title 42 Process, and to afford himthem 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 hethey is eligible;

d. Award Plaintiff’sPlaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to

Justice Act, and any other applicable statute or regulation; and,

e. Grant such further relief as the Court deems just, equitable, and appropriate.

Dated: June 9July 2, 2020

Respectfully submitted,

Stephen B. Kang*

/s/Celso J. Perez_____________________

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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
Jamie Crook (D.C. Bar No. 1002504) Blaine Bookey Karen Musalo Center for Gender & Refugee Studies 200 McAllister St. San Francisco, CA 94102 Tel: (415) 565-4877

/s/ Lee Gelernt_____________________ 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
Robert Silverman*** Oxfam America 226 Causeway Street, SuteSuite 500 Boston, MA 02114 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

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

Attorneys for PlaintiffPlaintiffs

32

 
 Case 1:20-cv-01509-CJN Document 47 Filed 07/23/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez, et al.,
Plaintiffs,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

DEFENDANTS’ MOTION TO DISMISS For the reasons explained in the accompanying memorandum of law, Defendants respectfully move to dismiss all claims raised in Plaintiffs’ amended complaint. See Fed. R. Civ. P. 12(b)(1).

Dated: July 23, 2020

Respectfully submitted,

ETHAN P. DAVIS Acting Assistant Attorney General

DAVID MORRELL Deputy Assistant Attorney General

/s/ Jean Lin JEAN LIN (NY Bar 4074530) Special Litigation Counsel KEVIN SNELL BRADLEY CRAIGMYLE Trial Attorneys Federal Programs Branch Civil Division, Department of Justice 1100 L Street, N.W. Washington, D.C. 20005 (202) 514-3716 Jean.Lin@usdoj.gov

Counsel for Defendants

Case 1:20-cv-01509-CJN Document 47 Filed 07/23/20 Page 2 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez, et al.,
Plaintiffs,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

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Case 1:20-cv-01509-CJN Document 47 Filed 07/23/20 Page 3 of 18 TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 LEGAL STANDARD..................................................................................................................... 5 ARGUMENT .................................................................................................................................. 6 I. THIS CASE IS MOOT BECAUSE THERE IS NO ACTUAL ONGOING
CONTROVERSY BETWEEN THE PARTIES ................................................................. 6 II. NO EXCEPTION TO MOOTNESS APPLIES .................................................................. 9
A. The Voluntary Cessation Doctrine Is Inapplicable ............................................................. 9 B. The “Capable of Repetition Yet Evading Review” Exception Is Inapplicable ................ 10 CONCLUSION............................................................................................................................. 12
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TABLE OF AUTHORITIES
Cases Almaqrami v. Pompeo,
933 F.3d 774 (D.C. Cir. 2019) ................................................................................................ 5, 6 Am. Bar Ass’n v. FTC,
636 F.3d 641 (D.C. Cir. 2011) .................................................................................................... 9 Am. Freedom Law Ctr. v. Obama,
821 F.3d 44 (D.C. Cir. 2016) ...................................................................................................... 6
Autor v. Blank, 161 F. Supp. 3d 111 (D.D.C.), aff’d sub nom. Autor v. Pritzker, 843 F.3d 994 (D.C. Cir. 2016)................................................ 8
*Chafin v. Chafin, 568 U.S. 165 (2013) ............................................................................................................ 5, 6, 7
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) .................................................................................................................... 6
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ................................................................................................................ 5
*Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (en banc) ........................................................................ 9, 10, 11
Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985) ................................................................................................ 10
County of Los Angeles v. Davis, 440 U.S. 625 (1979) .................................................................................................................... 9
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .................................................................................................................... 5
Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) .................................................................................................. 11
Diamond v. Charles, 476 U.S. 54 (1986) ...................................................................................................................... 8
Epstein v. Geren, 539 F. Supp. 2d 267 (D.D.C. 2008) .......................................................................................... 10
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FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) .................................................................................................................. 10
Guedes v. ATF, 920 F.3d 1 (D.C. Cir.), judgment entered, 762 F. App’x 7 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020).......... 9
Hewitt v. Helms, 482 U.S. 755 (1987) ................................................................................................................... 7
Honeywell Int’l, Inc. v. Nuclear Reg. Comm’n, 628 F.3d 568 (D.C. Cir. 2010) .................................................................................................... 6
Knox v. Serv. Emps. Int’l Union, 567 U.S. 298 (2012) .................................................................................................................... 6
Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) .................................................................................................................... 8
Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................................................................... 10
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................................... 7
*Planned Parenthood of Wis., Inc. v. Azar, 942 F.3d 512 (D.C. Cir. 2019) .................................................................................................... 6
Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017) .......................................................................................... 11, 12
Spencer v. Kemna, 523 U.S. 1 (1998) ...................................................................................................................... 11
Thomas R.W. ex rel. Pamela R. v. Mass. Dep’t of Educ., 130 F.3d 477 (1st Cir. 1997) ....................................................................................................... 8
True the Vote, Inc. v. IRS, 831 F.3d 551 (D.C. Cir. 2016) .................................................................................................... 6
United Brotherhood of Carpenters & Joiners of Am., AFL-CIO v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO, 721 F.3d 678 (D.C. Cir. 2013) .................................................................................................. 11
United States v. Chem. Found., 272 U.S. 1 (1926) ...................................................................................................................... 10
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United States v. Juvenile Male, 564 U.S. 932 (2011) .................................................................................................................... 5
Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................................... 8
Zukerman v. USPS, 961 F.3d 431 (D.C. Cir. 2020) .................................................................................................... 6
Statutes 8 U.S.C. § 1225............................................................................................................................... 4 8 U.S.C. § 1229............................................................................................................................... 4 8 U.S.C. § 1229a ............................................................................................................... 4, 5, 7, 10 8 U.S.C. § 1232........................................................................................................................... 4, 5 28 U.S.C. § 2412(d)(1)(B) .............................................................................................................. 8 42 U.S.C § 265................................................................................................................................ 2 42 U.S.C § 268................................................................................................................................ 2 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. No. 110-457, 122 Stat 5044 (2008) ................................................................................ 4 Rules Fed. R. Civ. P. 12(b)(1)................................................................................................................... 6 Regulations and Orders 8 C.F.R. § 1003.1 ............................................................................................................................ 4 85 Fed. Reg. 16559 (Mar. 24, 2020)............................................................................................... 2 85 Fed. Reg. 17060 (Mar. 26, 2020),........................................................................................ 2, 10 85 Fed. Reg. 22424 (Apr. 20, 2020) ............................................................................................... 2 85 Fed. Reg. 31503 (May 21, 2020) ............................................................................................... 2 Other Authorities Exec. Off. for Immigr. Rev., Adjudication Statistics: Median Unaccompanied Alien Child (UAC) Case Completion and Case Pending Time,
https://www.justice.gov/eoir/page/file/1061551/download (Apr. 15, 2020)............................11
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INTRODUCTION Plaintiffs are two alien minors from Honduras and Guatemala, respectively, who have received all the relief they seek in this lawsuit—to be placed in immigration proceedings to assert their asylum and other claims for protection from removal. This case is moot and should be dismissed. In the face of the historic COVID-19 pandemic, the United States has implemented many measures to combat the highly contagious disease, including closing the Nation’s borders to nonessential travel and significantly restricting international air travel. The Director of the Centers for Disease Control and Prevention (“CDC”) also issued an order temporarily prohibiting the movement of certain aliens into the United States from Canada and Mexico regardless of their country of origin. He did so because of outbreaks in Canada and Mexico and the fact that aliens subject to the order typically are held for extended periods of time in congregate settings during immigration processing, presenting a significant risk of transmitting COVID-19 within border facilities and across border communities. Plaintiffs previously were determined to be subject to the CDC Order after they illegally crossed the U.S.-Mexico border into the United States. They sued to prevent the Government from returning them to their home countries pursuant to the CDC Order and to require the Government to afford them the immigration procedures that otherwise would be applicable without the CDC Order. The Government has done exactly that. It has excepted Plaintiffs from the CDC Order and transferred them to the Office of Refugee Resettlement in the Department of Health and Human Service. In fact, both Plaintiffs have been placed with family members in the interior of the United States. The Government also has initiated removal proceedings for each Plaintiff. In those proceedings, Plaintiffs may raise their claims for asylum or for any other form of relief or protection from removal from the United States. And the Government has further confirmed through sworn declarations that Plaintiffs will not be taken out of those immigration proceedings to be processed under the CDC Order. Accordingly, there is no live case or controversy between the parties, and the case should be dismissed as moot.
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BACKGROUND As Defendants previously detailed, COVID-19 is a communicable disease that spreads easily and rapidly without regard to national borders. See Defs.’ Opp’n to Pl.’s Emergency Mot. for a TRO at 3-15, ECF No. 28. To mitigate the risks presented by the COVID-19 global pandemic, the CDC Director temporarily prohibited the “introduction”1 of certain aliens traveling into the United States from Canada and Mexico, both of which have been severely impacted by COVID-19.2 Issued pursuant to the Public Health Service Act, 42 U.S.C §§ 265, 268, and an Interim Final Rule promulgated thereunder, 85 Fed. Reg. 16563, the CDC Director’s Order required the return of all aliens subject to the Order as rapidly as possible and with as little time spent in congregate settings as feasible to the country from which they entered the United States, to their country of origin, or to another location as practicable. 85 Fed. Reg. at 17067. Customs officers may, with supervisory approval, except otherwise covered aliens from the Order based on the totality of the circumstances, including considerations of significant law enforcement, officer and public safety, humanitarian, and public health interests. Id. Plaintiff J.B.B.C. was initially determined to be subject to the CDC Order after he was apprehended on June 4, 2020, approximately one mile from the border after illegally entering the United States near El Paso, Texas. First Am. Compl. ¶ 5, ECF No. 42; Declaration of Robert Danley, ¶¶ 3, 4, dated June 17, 2020, ECF No. 28-5. He was thus scheduled for return to his home
1 The CDC defines “introduction into the United States of persons” from a foreign country 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 Director determines to present a risk of transmission of a communicable disease.” 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, 16563 (Mar. 24, 2020).
2 See 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, 17061 (Mar. 26, 2020), as extended and/or amended by Extension of Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 22424 (Apr. 20, 2020), and Amendment and Extension of Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31503-02 (May 21, 2020).
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country, Honduras, and was moved to a hotel to await the next available flight. Declaration of Danielle Hernandez, ¶¶ 4, 5, dated June 17, 2020, ECF No. 28-6. On June 9, 2020, Defendants voluntarily agreed to remove him from the scheduled flight, and J.B.B.C. filed suit the same day along with a motion for a temporary restraining order. See Pl.’s Emergency Mot. for TRO, ECF No. 2. Following expedited briefing and a hearing, the Court entered an order prohibiting Defendants from “return[ing] [J.B.B.C.] to his home country or remov[ing] or otherwise expel[ling] [him] from the United States unless and until the Court resolves this action on the merits.” Order at 1, ECF No. 38.
On June 28, 2020, undersigned counsel notified J.B.B.C.’s counsel that Defendants intended to except J.B.B.C. from the CDC Order. The next day, Defendants further notified counsel and the Court that they “ha[d] transferred the custody of [J.B.B.C.] to the Office of Refugee Resettlement (ORR), Department of Health and Human Services, for immigration processing under Title 8 of the U.S. Code.” Notice to the Court at 1, ECF No. 41. Defendants explained that “[b]ecause [J.B.B.C.] is now excepted from processing under Title 42 and will no longer be subject to the challenged CDC Order,” they “anticipate moving to dismiss this case.” Id.
Although J.B.B.C.’s case had become moot, an amended complaint was filed on July 2, 2020, adding a new plaintiff, E.Y., a Guatemalan minor, to this action. See First Am. Compl. E.Y. was apprehended by agents of U.S. Customs and Border Protection (“CBP”) on June 26, 2020, after illegally entering the United States near McAllen, Texas. Second Declaration of Robert Danley, ¶¶ 2, 3, dated July 20, 2020 (attached). CBP determined that he was subject to the CDC Order and, on June 30, 2020, transferred him to U.S. Immigration and Customs Enforcement (“ICE”) to be returned to Guatemala. Id. ¶ 3. Plaintiffs filed the First Amended Complaint on July 2, 2020, shortly after requesting that the Government delay E.Y.’s return to Guatemala. That same day, Defendants excepted E.Y. from the CDC Order to process him pursuant to the immigration procedures set forth in Title 8 of the U.S. Code. Id. ¶ 4. Shortly thereafter, E.Y. was transferred to ORR custody. Id.
As with the initial complaint, the First Amended Complaint seeks an order (1) declaring 3

Case 1:20-cv-01509-CJN Document 47 Filed 07/23/20 Page 10 of 18
the CDC Order unlawful as applied to Plaintiffs; (2) enjoining Defendants from applying the Order to Plaintiffs; and (3) staying Plaintiffs’ “expulsion, remov[ing] them from the Title 42 Process [i.e., the CDC Order], and . . . afford[ing] them the [Trafficking Victims Protection Reauthorization Act’s] statutory requirements and protections, as well as the procedures guaranteed by the [Immigration and Nationality Act] including access to asylum, withholding of removal, [Convention Against Torture] relief, and all other forms of relief to which they [are] eligible.” First Am. Compl., Prayer for Relief ¶¶ a-c. Plaintiffs further seek attorneys’ fees and such further relief as the Court deems just. Id. ¶¶ d-e.
Each Plaintiff has since been issued a Notice to Appear, which places him in removal proceedings under Title 8 of the U.S. Code. Second Danley Decl. ¶ 4; Second Declaration of Danielle Hernandez, ¶ 4, dated July 17, 2020 (attached). They will not be removed from those immigration proceedings to be processed under the CDC Order. See Second Danley Decl. ¶ 4; Second Hernandez Decl. ¶ 4. Section 1225(b)(2)(A) of Title 8 authorizes removal proceedings for any “applicant for admission” whom an immigration officer determines is not clearly and beyond a doubt entitled to be admitted. 8 U.S.C. § 1225(b)(2)(A).3 Such an alien “shall be detained for a proceeding under section 1229a of this title.” Id. Section 1229a, in turn, sets out the procedures for full removal proceedings, which begin with a Notice to Appear and involve a hearing before an immigration judge with review by the Board of Immigration Appeals. See id. §§ 1229, 1229a; 8 C.F.R. § 1003.1. In removal proceedings, the alien may seek asylum or any other form of relief or protection from removal from the United States. See 8 U.S.C. § 1229a(a)(2), (c)(4).
Section 235 of the William Wilberforce Trafficking Victims Protection and Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457 (codified in principal part at 8 U.S.C. § 1232), provides certain additional protections to unaccompanied alien children subject to
3 An “applicant for admission” is defined as “[a]n alien present in the United States who has not been admitted 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).” 8 U.S.C. § 1225(a)(1).
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the removal scheme under Title 8’s immigration provisions. For example, an unaccompanied child from a non-contiguous country sought to be removed generally must be placed in removal proceedings under 8 U.S.C. § 1229a, in lieu of expedited removal proceedings. See 8 U.S.C. § 1232(a)(5)(D)(i). And an unaccompanied child who remains in the country must be transferred to the custody of ORR, which then must place the child with a care provider in the least restrictive setting that is in the best interest of the child, subject to considerations of danger to self, danger to others, and risk of flight. See id. § 1232(c)(2)(A).
Pursuant to the TVPRA, both Plaintiffs have now been placed with “suitable family member[s],” id.—namely, their respective fathers in the United States.
LEGAL STANDARD Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” The Supreme Court has explained that “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). This means that a federal court has jurisdiction only if a plaintiff “ha[s] suffered, or [is] threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (citation omitted). “Federal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’” Id. (alteration in original) (citation omitted). This “case-or-controversy requirement subsists through all stages of federal judicial proceedings.” Id. That is, a plaintiff must satisfy Article III’s requirements “throughout the litigation,” “not merely at the time the complaint is filed.” United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (alteration omitted) (citations omitted). “A lawsuit becomes moot—and is therefore no longer a ‘Case’ or ‘Controversy’—when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’” Almaqrami v. Pompeo, 933 F.3d 774,
5

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779 (D.C. Cir. 2019) (quoting Chafin, 568 U.S. at 172). This happens when “it is impossible for a court to grant ‘any effectual relief whatever’ to the prevailing party.” Knox v. Serv. Emps. Int’l Union, 567 U.S. 298, 307 (2012) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)); accord Zukerman v. USPS, 961 F.3d 431, 441 (D.C. Cir. 2020); see, e.g., Planned Parenthood of Wis., Inc. v. Azar, 942 F.3d 512, 516 (D.C. Cir. 2019) (case moot where the requested injunctive relief “would have no effect” and court could grant no “effectual relief to the prevailing party”).
Because mootness goes to a federal court’s very power to act, a motion to dismiss based on mootness is brought under Federal Rule of Civil Procedure 12(b)(1). True the Vote, Inc. v. IRS, 831 F.3d 551, 558 (D.C. Cir. 2016). The party raising mootness has the burden of showing that the case is moot, but the opposing party bears the burden of showing an exception applies. Honeywell Int’l, Inc. v. Nuclear Reg. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010). A court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016).
ARGUMENT I. THIS CASE IS MOOT BECAUSE THERE IS NO ACTUAL ONGOING
CONTROVERSY BETWEEN THE PARTIES The Court should dismiss this case for lack of jurisdiction because there is “no actual, ongoing controvers[y]” between the parties. Zukerman, 961 F.3d at 441 (citation omitted). Plaintiffs seek (1) to stop Defendants from returning them to their home countries pursuant to the CDC Order and (2) to be afforded the immigration procedures set forth in Title 8. Defendants have already provided that relief. Thus, the requested declaratory and injunctive relief “would have no effect” and the Court could grant no “effectual relief” to Plaintiffs. Planned Parenthood, 942 F.3d at 516. Specifically, Plaintiffs allege that they are injured by Defendants’ application of the CDC Order to them, see First Am. Compl. ¶¶ 121–22, 129, 134, 139, 146, 154, 157–58, and to remedy this alleged injury, they ask the Court to “[d]eclare unlawful the [CDC Order] as applied to [them],” enjoin Defendants from applying the CDC Order to them, and stay their “expulsion”
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under the CDC Order. See id. Prayer for Relief ¶¶ a-c. As the attached declarations indicate, Defendants have already excepted Plaintiffs from the CDC Order and are no longer returning Plaintiffs to their home countries under that Order. See Second Danley Decl. ¶ 4; Second Hernandez Decl. ¶ 4. Thus, Plaintiffs no longer have a personal stake in any dispute about the legality of the Order because the Order is not being applied to them. An order declaring the CDC Order unlawful as applied to Plaintiffs, or enjoining Defendants from applying the CDC Order to Plaintiffs, would thus have no actual, concrete effect in addressing Plaintiffs’ alleged injury— indeed, it would have no effect on their situation at all, because they have already been placed in removal proceedings under Title 8, exactly as they requested. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (Article III requires a plaintiff to show a likelihood “that the injury will be redressed by a favorable decision”). Instead, such an order would contravene Article III’s proscription against deciding “questions that cannot affect the rights of litigants in the case.” Chafin, 568 U.S. at 172 (citation omitted)).
The same is true with respect to Plaintiffs’ request that the Court “afford them the . . . statutory requirements and protections [under Title 8 of the U.S. Code],” including those under the TVPRA. First Am. Compl., Prayer for Relief ¶ c. Not only have Plaintiffs been transferred to ORR custody pursuant to the TVPRA, but they also have been placed in removal proceedings pursuant to Title 8 where they can seek asylum or any other form of relief or protection from removal from the United States. See Second Danley Decl. ¶ 4; Second Hernandez Decl. ¶ 4; see also 8 U.S.C. § 1229a(a)(2), (c)(4). They will not be taken out of those immigration proceedings to be processed under the CDC Order. Second Danley Decl. ¶ 4; Second Hernandez Decl. ¶ 4. If they are eventually removed to their home countries at the conclusion of those removal proceedings, it would not be due to the application of the CDC Order.
As the Supreme Court has explained, “a judicial decree is not the end but the means.” Hewitt v. Helms, 482 U.S. 755, 761 (1987). “At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces—the payment of damages, or some specific performance, or the termination of some conduct.” Id. A judicial decree
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in favor of Plaintiffs now would have no effect because the Government is already giving them exactly what they seek in this action. Plaintiffs cannot show that they “personally would benefit in a tangible way from the court’s intervention.” Warth v. Seldin, 422 U.S. 490, 508 (1975).
The two remaining prayers for relief similarly do not preserve a live case or controversy. First, Plaintiffs seek attorneys’ fees under the Equal Access to Justice Act (“EAJA”). See First Am. Compl., Prayer for Relief ¶ d. But “[an] interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990) (citing Diamond v. Charles, 476 U.S. 54, 70–71 (1986)). Indeed, any litigation concerning any purported entitlement to attorneys’ fees under EAJA would occur only after final judgment or dismissal. See 28 U.S.C. § 2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party . . . .”); see, e.g., Autor v. Blank, 161 F. Supp. 3d 111, 113 (D.D.C.) (EAJA fee denied because plaintiffs were not “prevailing parties” within the meaning of EAJA after Government voluntarily agreed to the requested relief and case was dismissed), aff’d sub nom. Autor v. Pritzker, 843 F.3d 994 (D.C. Cir. 2016).
Second, Plaintiffs’ general prayer for “such further relief as the Court deems just, equitable, and appropriate,” First Am. Compl., Prayer for Relief ¶ e, is merely an unspecified, catch-all prayer that is insufficient to avoid mootness. Cf. Thomas R.W. ex rel. Pamela R. v. Mass. Dep’t of Educ., 130 F.3d 477, 480 (1st Cir. 1997) (plaintiff’s general prayer for “such further relief as this court deems just and proper” could not “operate to preserve a request for damages in order to avoid mootness where there [was] no specific request and no evidence to sustain a claim for reimbursement”). Indeed, as discussed above, Plaintiffs have received all material terms of their requested relief.
There is no effective relief that this Court could grant Plaintiffs, and, thus, this action is moot.
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II. NO EXCEPTION TO MOOTNESS APPLIES To the extent they try, Plaintiffs cannot keep this case alive by invoking an exception to
the mootness doctrine. Neither of the two exceptions to the mootness doctrine applies here. Those exceptions are the voluntary cessation doctrine and the “capable of repetition yet evading review” doctrine.
A. The Voluntary Cessation Doctrine Is Inapplicable “The voluntary-cessation rule is designed to deter the [alleged] wrongdoer who would otherwise engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Guedes v. ATF, 920 F.3d 1, 15 (D.C. Cir.) (per curiam), judgment entered, 762 F. App’x 7 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020) (citation omitted). For that reason, “[v]oluntary cessation will only moot a case if ‘there is no reasonable expectation . . . that the alleged violation will recur’ and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’” Am. Bar Ass’n v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). To determine whether there is a reasonable expectation that the alleged violation will occur, the Court must “defin[e] the wrong that the defendant is alleged to have inflicted.” Clarke v. United States, 915 F.2d 699, 703 (D.C. Cir. 1990) (en banc). Here, the wrongs Defendants are alleged to have inflicted on Plaintiffs are the application of the CDC Order to Plaintiffs and the deprivation of immigration procedures otherwise applicable to Plaintiffs without the CDC Order. See First Am. Compl., Prayer for Relief ¶¶ a-c; see also Clarke, 915 F.2d at 703 (“[W]here plaintiffs are resisting a mootness claim we think they must be estopped to assert a broader notion of their injury than the one on which they originally sought relief.”). As confirmed by the attached declarations of officials at CBP and ICE, see Second Danley Decl. ¶ 4; Second Hernandez Decl. ¶ 4, there is no reasonable expectation that Defendants will remove Plaintiffs from the ongoing Title 8 immigration proceedings, to which Plaintiffs are now subject, to again process them under the CDC Order. Defendants did not except Plaintiffs from
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the CDC Order to moot the case so that it could again apply the CDC Order to Plaintiffs after this case is dismissed. Indeed, coordinate branches of Government are presumed to act in good faith. See Clarke, 915 F.2d at 705 (“At least in the absence of overwhelming evidence (and perhaps not then), it would seem inappropriate for the courts either to impute such manipulative conduct to a coordinate branch of government, or to apply against that branch a doctrine that appears to rest on the likelihood of a manipulative purpose.”); see also United States v. Chem. Found., 272 U.S. 1, 14–15 (1926) (“[I]n the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.”); Epstein v. Geren, 539 F. Supp. 2d 267, 275 (D.D.C. 2008) (public officers are entitled to a “strong” presumption that they “discharge their duties correctly, lawfully, and in good faith”).
Moreover, while the CDC Order expressly allows customs officers to except otherwise covered aliens from the CDC Order, see 85 Fed. Reg. at 17061, it does not provide a mechanism to cut short Plaintiffs’ ongoing removal proceedings under 8 U.S.C. § 1229a so as to subject them to the CDC Order again. The voluntary cessation exception, therefore, does not apply to prevent this case from becoming moot.
B. The “Capable of Repetition Yet Evading Review” Exception Is Inapplicable “The capable of repetition yet evading review doctrine properly applies in cases . . . in which intervening events beyond the control of either the plaintiff or defendant appear to have rendered the claims moot.” Conyers v. Reagan, 765 F.2d 1124, 1128 n.9 (D.C. Cir. 1985). By definition, this exception is inapplicable here because this case was mooted by Defendants’ voluntary action, not an intervening event beyond the parties’ control. See id. (“In cases in which the defendant voluntarily ceases the complained of activity before the matter is litigated, a different standard [than the capable-of-repetition exception] applies.”). Even if the Court were to consider the exception, Plaintiffs cannot meet the standard. “[T]he capable-of-repetition doctrine applies only in exceptional situations,” Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), “where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or
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expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again,” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (alterations in original) (citation omitted); accord FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). The second prong requires a determination of “exactly what must be repeatable in order to save [the] case from mootness.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009) (citation omitted). As with the voluntary cessation doctrine, it similarly depends on the injury the defendant is alleged to have inflicted on the plaintiff. See Clarke, 915 F.2d at 703 (“Common to both exceptions is the task of defining the wrong that the defendant is alleged to have inflicted.”). And “[a] controversy ‘is capable of repetition’ only if ‘the same parties will engage in litigation over the same issues in the future.’” Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080, 1088 (D.C. Cir. 2017) (citation omitted).
Putting aside the question of whether the challenged action is by its very nature too short in duration so that it could not be adjudicated while fully live, see United Brotherhood of Carpenters & Joiners of Am., AFL-CIO v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada, AFL-CIO, 721 F.3d 678, 688 (D.C. Cir. 2013) (“[T]he ‘rule-of-thumb’ [is] that ‘orders of less than two years’ duration ordinarily evade review . . . .’” (quoting LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998))), Plaintiffs cannot meet the second prong of the exception. There is no reasonable expectation that the parties will engage in litigation over the same issues in the future because the Government is unlikely to apply the CDC Order to these Plaintiffs again. Both Plaintiffs have been placed in removal proceedings, which can more than a year to adjudicate. For example, as of the second quarter of Federal Fiscal Year 2020, the median length of time to complete removal proceedings for an unaccompanied alien child is 591 days.4 Even if Plaintiffs are removed at the end of their removal proceedings potentially more than a year from now, there is no reason to believe that the CDC Order—issued in the face of the public health
4 See Exec. Off. for Immigr. Rev., Adjudication Statistics: Median Unaccompanied Alien Child (UAC) Case Completion and Case Pending Time, https://www.justice.gov/eoir/page/ file/1061551/download (Apr. 15, 2020).
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crisis posed by COVID-19—would still be in effect should Plaintiffs again attempt to cross the U.S.-Mexico border illegally. And even if these speculative events are possible, “[a] theoretical possibility, . . . is not sufficient to qualify as ‘capable of repetition’[;] . . . [t]here must instead be a reasonable expectation or demonstrated probability’ that the action will recur.” Ferrer, 856 F.3d at 1088 (alterations in original) (citation omitted). Therefore, Defendants’ prior application of the CDC Order to Plaintiffs thus is not capable of repetition.
CONCLUSION Because this case is moot and no exception to the mootness doctrine applies, the Court should dismiss it for lack of subject matter jurisdiction.

Dated: July 23, 2020

Respectfully submitted,
ETHAN P. DAVIS Acting Assistant Attorney General
DAVID MORRELL Deputy Assistant Attorney General

/s/ Jean Lin JEAN LIN (NY Bar 4074530) Special Litigation Counsel KEVIN SNELL BRADLEY CRAIGMYLE Trial Attorneys Federal Programs Branch Civil Division, Department of Justice 1100 L Street, N.W. Washington, D.C. 20005 (202) 514-3716 Jean.Lin@usdoj.gov Attorneys for Defendants
Counsel for Defendants

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Case 1:20-cv-01509-CJN Document 47-2 Filed 07/23/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez,

Case No. 1:20-cv-01509 (CJN)

E.Y., a MINOR CHILD, by and through his brother and Next Friend, Fernando Barrios,

Plaintiffs,

vs.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

SECOND DECLARATION OF DANIELLE HERNANDEZ I, Danielle Hernandez, hereby declare as follows:
1. I am an Acting Assistant Field Office Director at the El Paso Office of Enforcement and Removal Operations (ERO), U.S. Immigration and Customs Enforcement (ICE), within the U.S. Department of Homeland Security (DHS) in El Paso, Texas. I oversee the Non-Detained Unit, which encompasses the Non-Detained Operations Unit, Migrant Protection Protocol Unit and the Field Office Juvenile Coordinators. The Non-Detained Unit is responsible for the detention, release and removal of individuals, family units, and unaccompanied minors in immigration proceedings.
2. In connection with my job responsibilities, I am familiar with this litigation. The
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.B.B.C., a MINOR CHILD, by and through his father and next friend, Carlos Emilio Barrera Rodriguez, et al.,
Plaintiffs,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security, et al.,
Defendants.

Civil Docket No. 1:20-cv-01509 (CJN)

[PROPOSED] ORDER Upon consideration of Defendants’ motion to dismiss for lack of subject matter jurisdiction, it is hereby ORDERED that the motion is GRANTED, and it is further ORDERED that this case is DISMISSED WITH PREJUDICE. SO ORDERED.

Dated: _____________

___________________________ CARL J. NICHOLS United States District Judge

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