474 F.Supp.3d 45
D.D.C.2020Background
- Nearly 100 family members from 11 countries with final expedited-removal orders sought a TRO to block their deportations during the COVID-19 pandemic, arguing travel and post‑arrival conditions would create unreasonable health risks.
- Many petitioners were detained at ICE family residential centers in Dilley, Texas and Berks, Pennsylvania; some were released for medical/other reasons.
- ICE submitted sworn declarations describing enhanced COVID-19 precautions for removals (symptom screening, temperature checks, PPE, chartered transport, aircraft/vehicle disinfection) but admits it does not test all deportees and sometimes commingles populations during transport.
- Petitioners countered with declarations alleging failures to follow guidelines, use of public transportation for transfers, and reports of COVID-positive deportees; they also raised risks of inadequate medical care and stigma upon return to home countries.
- The Court concluded it likely has jurisdiction to review claims challenging the physical manner of deportation but likely lacks jurisdiction over claims that would effectively challenge the decision to return petitioners to their home countries; it denied the TRO and lifted the administrative stay, finding petitioners unlikely to succeed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(A) bars judicial review of claims challenging COVID‑era deportation conditions | Challenges to the physical manner of deportation are ancillary to removal and thus reviewable | §1252(a)(2)(A) precludes review of any claim "arising from or relating to" implementation of expedited removal orders | Court: §1252(a)(2)(A) does not likely bar review of manner‑of‑deportation (ancillary) claims; jurisdiction likely exists |
| Whether §1252(g) bars review of claims about deportation conditions and home‑country risks | §1252(g) does not bar non‑discretionary claims about unconstitutional methods of removal | §1252(g) bars challenges tied to the Attorney General’s decision to execute removal (including where to return) | Court: §1252(g) likely does not bar manner‑of‑deportation claims but likely bars claims that effectively contest the decision to remove to particular home countries |
| Whether deporting petitioners during the pandemic violates substantive due process (conditions of deportation) | Travel and commingling, lack of universal testing, and risky post‑arrival conditions create an unreasonable risk and violate due process | ICE has implemented reasonable precautions (screening, PPE, charter flights, disinfection); zero risk is not required | Court: Petitioners unlikely to succeed; ICE’s measures render travel not unconstitutionally unsafe relative to remaining in congregate detention |
| Whether ICE’s alleged failure to follow CDC guidance or internal rules gives rise to an APA/Accardi claim | ICE’s departures from CDC and its own policies are arbitrary and capricious and violate Accardi | Accardi protects procedural, binding internal rules, not substantive public‑health guidance; petitioners haven’t shown a binding procedural norm was violated | Court: APA/Accardi claim unlikely to succeed; Accardi does not create substantive rights to CDC guidance |
| Irreparable harm and TRO balance | Deportation would foreclose review of conditions claims and thus constitutes irreparable harm; public interest favors preventing wrongful removals | Government emphasizes public interest in prompt execution of removal orders; removal is not categorically irreparable | Court: Petitioners demonstrated irreparable harm in the sense of losing ability to litigate, but other TRO factors (likelihood on merits and balance) do not clearly favor relief, so TRO denied |
Key Cases Cited
- Jennings v. Rodriguez, 138 S. Ct. 830 (interpreting scope of INA review bars and distinguishing ancillary conditions claims)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (narrow construction of §1252(g) and scope of reviewability)
- Nken v. Holder, 556 U.S. 418 (standards on stays of removal and irreparable harm in immigration context)
- Bell v. Wolfish, 441 U.S. 520 (standard for when confinement conditions constitute punishment)
- DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (government duty to ensure safety when it confines persons)
- Helling v. McKinney, 509 U.S. 25 (Eighth Amendment and risk of serious illness from confinement conditions)
- Thuraissigiam v. United States, 140 S. Ct. 1959 (limits of statutory habeas review and distinguishing core vs non‑core habeas claims)
- Castro v. DHS, 835 F.3d 422 (3d Cir.) (limits on judicial review of credible‑fear determination procedures)