Barbara v. TrumpBarbara v. Trump
This order grants a preliminary injunction and provisionally certifies a class of petitioners.
Pseudonymous petitioners “Barbara,” “Sarah,” by her guardian, parent, and next friend “Susan,” and “Matthew,” by his guardian, parent, and next friend “Mark,” bring this class action suit asking this court to enjoin the enforcement of an executive order that would exclude certain groups from United States citizenship status.1 They sue the President, the Secretary and Department of Homeland Security, the Secretary and Department of State, the Secretary and Department of Agriculture, and the Administrator of and Centers for Medicare and Medicaid Services (the persons in their official capacities).2 The petitioners allege that a recent executive order involving birthright citizenship violates the Fourteenth Amendment of the United States Constitution, the
After reviewing the parties’ submissions and holding requested oral argument, the court provisionally certifies a class of petitioners3 and grants the preliminary injunction.
I. Procedural background
On January 20th, 2025, the President issued Executive Order No. 14160, titled “Protecting the Meaning and Value of American Citizenship.”4 It provides that the Fourteenth Amendment of the Constitution excludes from birthright citizenship “persons who were born in the United States but not ‘subject to the jurisdiction thereof.‘”5 It orders that, beginning February 19th, 2025, “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons” in two circumstances:
“(1) when that person‘s mother was unlawfully present in the United States and the person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth, or (2) when that person‘s mother‘s presence in the United States was lawful but temporary, and the
person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth.”6
This court and three others preliminarily enjoined the respondents7 from enforcing the Executive Order in four separate suits.8 This court enjoined enforcement “with respect to the petitioners, and with respect to any individual or entity in any other matter or instance within the jurisdiction of this court,” during the pendency of the litigation.9 New Hampshire Indonesian Cmty. Support, 765 F. Supp. 3d 102, 112 (D.N.H. 2025). The three other courts issued universal preliminary injunctions, which the Supreme Court held were “broader than necessary to provide complete relief to each plaintiff with standing to sue.” Trump v. CASA, Inc., 606 U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2025 WL 1773631, at *15 (U.S. June 27, 2025). The Supreme Court ordered lower courts to ensure that their injunctions comport with the ruling, stayed the injunctions “to the extent that they prohibit executive agencies from developing and issuing public guidance” regarding the Executive Order, and ordered that § 2 of the Executive Order would not take effect until 30 days after the date of the opinion, or July 27, 2025.10 Id. The Court did not rule on the merits of the injunctions.
II. Class representative petitioners
The class representative petitioners—Barbara, Sarah, Susan, Matthew, and Mark—bring this action under
Petitioner “Barbara” is a is a citizen of Honduras.13 She currently resides in New Hampshire with her husband and three minor children.14 Her asylum application is pending with the United States Citizenship and Immigration Services, and she has resided in the United States since 2024.15 Her husband, the father of her children, is not a U.S.-citizen or lawful permanent resident.16 They are expecting their fourth child in October
Petitioner “Sarah” is the daughter of petitioner “Susan,” a citizen of Taiwan.19 Susan and Sarah reside in Utah.20 Susan has lived in the U.S. for 12 years.21 She is currently in the United States on a student visa and is in the process of applying for lawful permanent resident status based on an approved employment-based visa.22 Her husband, the father of her children, is not a U.S.-citizen or lawful permanent resident.23 Susan gave birth to Sarah in Utah in April 2025,24 and applied for a United States passport for the child.25 She has three other children, all of whom are U.S. citizens.26
Petitioner “Matthew” is the son of petitioner “Mark,” a citizen of Brazil.27 Mark resides in Florida.28 He has lived in the United States for the past five years,29 and is in the process of applying for lawful permanent status.30 Matthew, Mark‘s first child, was
The class representative petitioners seek to represent the following proposed class:
“All current and future persons who are born on or after February 20, 2025, where (1) that person‘s mother was unlawfully present in the United States and the person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth, or (2) that person‘s mother‘s presence in the United States was lawful but temporary, and the person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth, as well as the parents (including expectant parents) of those persons.”34
The petitioners request that the court provisionally certify the class and immediately issue a class-wide preliminary injunction.35 The respondents object to both class certification and the preliminary injunction.
III. Class certification
The court grants provisional class certification, but to a narrower class than that proposed by petitioners. The certified class includes only those persons to whom the Executive Order denies citizenship. It does not include their parents.
a. Applicable standard
The petitioners have moved for certification under
Both the burden and quantum of required proof under this standard are familiar. The burden here rests with the petitioners. The required quantum of evidence is proof by a preponderance. “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart, 564 U.S. at 350. “It is sufficient if each disputed requirement has been proven by a preponderance of evidence.” In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015) (cleaned up). “‘Provisional’ certification does not lower the bar with respect to the Rule 23(a) and (b) standards; the court must conduct a rigorous inquiry and satisfy itself that the putative class meets those requirements.” Gomes v. Acting Sec‘y, U.S. Dep‘t of Homeland Sec., No. 20-CV-453-LM, 2020 WL 2113642, at *2 (D.N.H. May 4, 2020) (McCafferty, C.J.).
“Courts routinely grant provisional class certification for purposes of entering injunctive relief.” Idaho Org. of Res. Councils v. Labrador, No. 1:25-CV-00178-AKB, 2025 WL 1237305, at *15 (D. Idaho Apr. 29, 2025) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041-43 (9th Cir. 2012); Padres Unidos de Tulsa v. Drummond, No. CIV-24-511-J, 2025 WL 1444433, at *12 (W.D. Okla. May 20, 2025) (collecting cases); see also CASA, No. 24A884, 2025 WL 1773631, at *19 (“[P]laintiffs who challenge the legality of a new federal statute or executive action and request preliminary injunctive relief may sometimes seek to proceed by class action under [Rule] 23(b)(2) and ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide.“) (Kavanaugh, J. concurring). The court does so here, and may later modify or amend the order granting class certification.
b. Class definition
The court grants provisional class certification but declines to adopt the class definition proposed by petitioners. As petitioners point out,36 federal courts have discretion to modify a class definition. See, e.g. Campbell v. First Am. Title Ins. Co., 269 F.R.D. 68, 74 (D. Me. 2010) (Singal, J.) (citing Slapikas v. First Am. Title Ins. Co., 250 F.R.D. 232, 250-51 (W.D. Pa. 2008)) (revising class definition); Wagner v. Taylor, 836 F.2d 578, 589–90 (D.C. Cir. 1987) (noting a court‘s “broad discretion to redefine and reshape the proposed class to the point that it qualifies for certification under Rule 23“); 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1759 (4th ed. 2025) (“[I]f plaintiff‘s definition of the class is found to be unacceptable, the court may ... redefine the class to bring it within the scope of Rule 23 ....“); Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem, No. CV 25-306 (RDM), 2025 WL 1825431, at *46 (D.D.C. July 2, 2025) (Moss, J.) (noting the court‘s authority to alter a class definition). Petitioners have not demonstrated by a preponderance of the evidence that the class should include “the parents (including expectant parents)” of the children denied birthright citizenship by the Executive Order. Doubtless the parents of such children would suffer harms following from the denial of United States citizenship to their children, including, but likely not limited to, those detailed in the complaint.37 But the harms to the parents of children denied citizenship are (a) not the subject of the specific claims in the complaint, which refer to the Executive Order‘s denial of citizenship to children,38 and (b) would not necessarily meet Rule 23(a)‘s requirements for commonality and typicality, as the enumerated harms are factually and legally diverse. Certifying a class of children without their parents eliminates those potential commonality and typicality issues while still allowing complete relief for the claims as stated in the complaint. This approach is particularly suitable where, as here, the petitioners have requested both preliminary injunctive relief, full briefing, oral argument, and a ruling in an approximately one-week timeframe.39
Narrowing the class also sharpens the court‘s focus on the specific injury for which relief is claimed in Counts 1, 2, 3, and 4: the denial of the children‘s constitutional
The court therefore provisionally certifies and focuses its analysis on the following, narrower, class:
“All current and future persons who are born on or after February 20, 2025, where (1) that person‘s mother was unlawfully present in the United States and the person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth, or (2) that person‘s mother‘s presence in the United States was lawful but temporary, and the person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth.”41
c. Numerosity
To satisfy this first requirement of class certification, Rule 23 requires that “the class is so numerous that joinder of all members is impracticable.”
The petitioners argue that the number of children denied American citizenship satisfies the numerosity requirement, and the respondents do not dispute this assertion. The court agrees with the petitioners. The petitioners cite credible evidence estimating that the Executive Order would deny citizenship to thousands of children. See Repealing Birthright Citizenship Would Significantly Increase the Size of the U.S. Unauthorized Population, Migration Policy Inst. (May 2025), https://www.migrationpolicy.org/news/birthright-citizenship-repeal-projections.
Respondents object to the inclusion of “future persons” in the class, arguing that “‘future persons‘—i.e., persons who have not yet been conceived—lack either standing or capacity to sue.”42 As petitioners note, the fact that a policy will continue to harm future class members is relevant to numerosity.43
Including future class members is no bar to class certification. Although the future class member children in this case have yet to be born, as soon as they are born, they will join the class and their claims will be ripe. See A. B. v. Hawaii State Dep‘t of Educ., 30 F.4th 828, 838 (9th Cir. 2022) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1118 (9th Cir. 2010) (abrogation on other grounds recognized by Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022))) (“The
Finally, more children will continuously populate the class as they are born, and, where “an influx of future members will continue to populate the class ... at indeterminate points in the future, joinder becomes not merely impracticable but effectively impossible.” Gomes, 561 F. Supp. 3d at 99 (citations and quotation marks omitted); see also Reid v. Donelan, 297 F.R.D. 185, 189 (D. Mass.), enforcement granted, 64 F. Supp. 3d 271 (D. Mass. 2014) (Ponsor, J.) (citing William B. Rubenstein, Newberg and Rubenstein on Class Actions § 3.15 (5th ed. 2013) (“Unforeseen members will join the class at indeterminate points in the future, making joinder impossible.“) (emphasis in original).
d. Commonality
To certify a class, the court must also find “questions of law or fact common to the class.”
The petitioners argue that the putative class members share legal questions about the constitutionality and lawfulness of the Executive Order. Each class member, they contend, will suffer the common injury of denial of citizenship and would receive the same relief: an injunction declaring the Executive Order unlawful and unenforceable.
The respondents argue that divergent factual issues related to parents’ domiciles at the time of the children‘s birth undermine the class‘s commonality. Reasserting their argument from New Hampshire Indonesian Cmty. Support that the phrase “subject to the jurisdiction” of the United States refers, in the Fourteenth Amendment and
Next, petitioners must show “typicality,” or that their claims or defenses are “typical of the claims or defenses of the class.”
“The commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-Mart, 564 U.S. at 349 n. 5. Typicality is established when the claims of the named plaintiffs and the class “involve the same conduct by the defendant . . . regardless of factual differences.” Hawkins ex rel. Hawkins v. Comm‘r of N.H. Dep‘t of Health & Human Servs., No. CIV. 99-143-JD, 2004 WL 166722, at *3 (D.N.H. Jan. 23, 2004) (DiClerico, J.) (quoting Johnson v. HBO Film Mgt., Inc., 265 F.3d 178, 184 (3d Cir. 2001)). “For purposes of demonstrating typicality, ‘[a] sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.‘” In re Relafen Antitrust Litig., 231 F.R.D. 52, 69 (D. Mass. 2005) (Young, J.) (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.1984)). “Even though there may be some differences between [the class representative] and the putative class members, what
Petitioners claim that the named representatives’ claims are “obviously typical” of the claims of the proposed class,46 while the respondents argue that, as with commonality, individualized determinations about the class members’ domiciles undermine the claims’ typicality.
The court agrees with the petitioners with respect to the claims of the class as limited by the court. As in Ouadani, and Gomes, the putative class members’ injuries would be the same—namely, denial of citizenship—and would “involve the same conduct by the defendant[s],“—namely, enforcement of the Executive Order. See Hawkins ex rel. Hawkins, 2004 WL 166722, at *3. This is true even if some factual differences may exist between the class members (for instance, their parents’ domicile or length of residence in the United States) because the respondents’ conduct and the petitioners’ injuries would be the same in all cases. Id. As with commonality, because domicile and “legal presence,”47 outside of the exceptions enumerated in Wong Kim Ark,
The typicality requirement is met here.
f. Adequacy of representation
Finally, Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interests of the class.”
The court has not identified any conflicting or potentially conflicting interests between representatives of the proposed class and those of the unnamed class members. Respondents make two arguments against the adequacy of the proposed class: first, that differences in the parents’ domiciles may lead petitioners to focus only on arguments that cover their factual and legal situation; and second, that the petitioners’ decision to proceed pseudonymously undermines the ability of putative class members to assess the class representatives’ adequacy or potentially conflicting interests.49
As to the first argument, the court has rejected the contention that the domiciles of class-member children‘s parents matter for the purposes of the claims raised in the case.50 The respondents do not raise any other potential conflicts that could exist between members of the putative class and the class representatives.
As to the second argument, courts have recognized that litigation can proceed pseudonymously in “exceptional cases.” Doe v. Massachusetts Inst. of Tech., 46 F.4th 61, 70 (1st Cir. 2022) (quotation marks omitted). In this case, the court found that the “totality of the circumstances” favored allowing the petitioners to proceed pseudonymously for the reasons stated in their motion.51 See id. And although in Rule 23(b)(3) cases, where class members may opt out, “[p]utative class members have an interest in knowing the identities of all class representatives so that they may assess
Turning to the second factor of the adequacy inquiry, the court is convinced that proposed class counsel, lawyers from the ACLU Immigrants’ Rights Project, the ACLUs of New Hampshire, Maine, and Massachusetts, the Asian Law Caucus, the NAACP Legal Defense and Educational Fund, and the Democracy Defenders Fund have sufficient experience and qualifications to serve as class counsel. The petitioners satisfy the adequacy requirement.
23(b)(2) certification
In addition to meeting the requirements of
Petitioners argue that the class meets
Respondents, quoting Wal-Mart, 564 U.S. at 360 (“[t]he key to the (b)(2) class is the
But the discussion in Wal-Mart itself contradicts the respondents’ argument. Quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997), the Supreme Court noted that “‘[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant to capture,” and explained that “the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order.” Wal-Mart, 564 U.S. at 361. The
Because enforcement of the Executive Order would likely constitute unlawful behavior towards the entire class as limited by the court, see infra § IV(b), and because a single injunction and declaratory judgment would provide complete relief to every member of the class, the class fits comfortably into the
h. Catchall arguments on class certification
The respondents make several catchall arguments against class certification at this early stage in the litigation.58 The court rejects these generalized contentions in favor of the petitioners’ suggested course of action.
The court finds petitioners’ arguments more persuasive, both with respect to the court‘s ability to certify classes provisionally for the purpose of injunctive relief, and the petitioners’ cited authority for the court‘s exercise of this ability. See, e.g., Gomes, 2020 WL 2113642, at *4; Meyer, 707 F.3d at 1041-43.60 Moreover, the court may continue to revise the class certification order until final judgment. See
Further, this court has no hesitation determining this situation warrants emergency injunctive relief and class certification. The respondents’ proposed course of action would reverse a nationally known and recognized government policy in place for over a century and affect thousands of families. Injunctive relief here would only maintain the status quo during the litigation and, at most, delay the policy‘s implementation. While the respondents attempt to claim that all the petitioners’ cited cases provide more exigent circumstances than described here, this court disagrees. As the petitioners claimed in
The respondents also argue that provisional certification does not lower the bar for class certification. The court agrees. But the petitioners have provided sufficient factual and legal support for class certification.
Premature certification. Second, the respondents argue that certifying the class would be premature because other lower courts have not yet narrowed the scope of their nationwide injunctions, as ordered by the Supreme Court in CASA. They argue that this court should withhold any potential injunction until the review of the other injunctions occurs. Otherwise, the respondents contend, the petitioners cannot show whether the existing injunctions already provide relief to the putative class and representatives. Petitioners contend that the putative class has no assurances that the existing injunctions will protect them once the lower courts have narrowed the nationwide injunctions.
The court agrees with petitioners with regard to certification, but, for reasons stated infra Part VI, stays the injunction.
“[I]n the wake of a major new federal statute or executive action, different district courts may enter a slew of preliminary rulings on the legality of that statute or executive action. Or alternatively, perhaps a district court (or courts) will grant or deny the functional equivalent of a universal injunction—for example, by granting or denying a preliminary injunction to a putative nationwide class under Rule 23(b)(2)...[T]he courts of appeals in turn will undoubtedly be called upon to promptly grant or deny temporary stays or temporary injunctions in many cases.... [I]n cases where classwide or set-aside relief has been awarded, the losing side in the lower courts will likewise regularly come to this Court if the matter is sufficiently important. When a stay or injunction application arrives [to the Supreme Court], this Court should not and cannot hide in the tall grass. When we receive such an application, we must grant or deny. And when we do—that
is, when this Court makes a decision on the interim legal status of a major new federal statute or executive action—that decision will often constitute a form of precedent (de jure or de facto) that provides guidance throughout the United States during the years-long interim period until a final decision on the merits.”
CASA, 2025 WL 1773631 at *21–22 (Kavanaugh, J., concurring). Respondents’ arguments do not persuade.
Nationwide class. Similarly, the respondents also contend that a nationwide class is not “appropriate,” citing warnings in CASA against nationwide classes as an “end-run around” universal injunctions.61 Respondents cite the importance of letting issues “percolate” within other circuits and district courts and claim that nationwide relief here would disrupt other litigation across the United States.62 They argue that providing a nationwide injunction would “create conflicts with the decisions of putative class members to bring their suits elsewhere and the ability of those courts to address them” and that, at most, this court can certify a class in the District of New Hampshire.63 Meanwhile, petitioners argue that the grant of certification does not affect other litigation, and therefore, courts can “percolate” the merits after the injunction. They contend that the respondents’ conduct warrants a nationwide class, and limiting the order geographically would be arbitrary.
Again, petitioners’ argument prevails. At no point in the briefs do the petitioners request a “nationwide class.” Petitioners request class certification for a harm that most
This court has rigorously applied
Discovery. Respondents argue that the court should order more discovery before granting class certification. The argument fails. As discussed supra note 46, respondents fail to identify any discovery that would have a meaningful impact on any issue surrounding certification. Petitioners correctly point out that the respondents’ arguments regarding domicile are most likely irrelevant for class certification; that the court may permit discovery after it protects the status quo with a preliminary injunction; and that the court may reconsider class certification up until final judgment. Finally, “discovery may be unnecessary because the ‘claims for relief rest on readily available and undisputed facts or raise only issues of law (such as a challenge to the legality of a statute or regulation).‘” Newberg and Rubenstein, supra, § 7:15 (citations omitted).
The court provisionally certifies the narrowed, children-only class for the purpose of granting injunctive relief.
IV. Preliminary injunction
The petitioners have requested a preliminary injunction precluding the respondents from enforcing President Trump‘s Executive Order against the class during the pendency
a. Applicable legal standard
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Again, the requisite burden and quantum of proof are familiar. “The plaintiff has the burden at the preliminary injunction stage to establish entitlement to relief by a fair preponderance of the evidence.” Devaney v. Kilmartin, No. CA 13-510L, 2014 WL 877764, at *5 (D.R.I. Mar. 5, 2014) (Lagueux, J.). But see Bevis v. City of Naperville, 85 F.4th 1175, 1188 (7th Cir. 2023) (quotation marks omitted) (“[A]lthough the party seeking the injunction need not demonstrate likelihood of success by a preponderance of the evidence, that party must nevertheless make a strong showing that reveals how it proposes to prove its case. Similarly, a mere possibility of irreparable harm will not suffice.“).
“The movant‘s likelihood of success on the merits weighs most heavily in the preliminary injunction calculus.” Ryan v. U.S. Immigr. & Customs Enf‘t, 974 F.3d 9, 18 (1st Cir. 2020). The petitioners argue that they have a strong likelihood of success on the merits of their constitutional and statutory challenges to the Executive Order based on Supreme Court precedent interpreting the Fourteenth Amendment in Wong Kim Ark and the ordinary meaning of § 1401 at the time of its enactment. The respondents contend that the Executive Order is constitutional because the language “subject to the jurisdiction thereof” in the Fourteenth Amendment interpretively turns on an individual‘s domicile, rather than place of birth. Therefore, they contend, those affected by the Executive Order are not entitled to birthright citizenship because “citizenship flows from lawful domicile,” and children whose parents are not lawful permanent residents fall outside the Citizenship Clause.65
Petitioners will likely succeed in claiming that the Executive Order violates the Fourteenth Amendment66 and
The respondents do not identify additional arguments in favor of their interpretation of the Citizenship Clause. This court, along with the other courts to address the merits of this issue, agrees with the petitioners. The Executive Order likely violates the Fourteenth Amendment of the Constitution and
c. Irreparable harm
“Irreparable injury in the preliminary injunction context means an injury that cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005) (quotation marks omitted). The petitioners argue that the denial of citizenship to newborns would cause
The court agrees with the petitioners. The putative class would suffer irreparable harm without a preliminary injunction enjoining the Executive Order. As the court stated in New Hampshire Indonesian Cmty. Support, “the denial of citizenship status to newborns, even temporarily, constitutes irreparable harm. The denial of citizenship to the plaintffs’ members’ children would render the children either undocumented noncitizens or stateless entirely....The children would risk deportation to countries they have never visited.” 765 F. Supp. 3d at 111; see also Doe v. Trump, 766 F. Supp. 3d at 285 (“The loss of birthright citizenship—even if temporary, and later restored at the conclusion of litigation—has cascading effects that would cut across a young child‘s life (and the life of
Respondents’ arguments about irreparable harm remain unconvincing to the court, which has no difficulty concluding that the rapid adoption by executive order, without legislation and the attending national debate, of a new government policy of highly questionable constitutionality that would deny citizenship to many thousands of individuals previously granted citizenship under an indisputably longstanding policy, constitutes irreparable harm, and that all class representatives could suffer irreparable harm absent an injunction. To the extent that the respondents challenge the petitioners’ standing as to certain respondents, the court will not address these arguments at this time. A motion to dismiss certain respondents from the case, rather than an objection to a preliminary injunction, better suits these arguments. See supra note 50. Finally, because the court stays the injunction pending appeal, see infra Part VI, respondents’ arguments about non-imminent and hypothetical harms do not persuade.
The court finds that the petitioners have shown that they are likely to suffer irreparable harm in the absence of preliminary relief.
d. Equities and public interest
Finally, the court considers the equitable and public interests involved, which “‘merge when the Government is the opposing party.‘” Doe v. Trump, 766 F. Supp. 3d at 278 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). The petitioners cite the destabilizing effects of the loss of citizenship and the ease of maintaining the status quo. The respondents do not appear to add any arguments to their briefing in New Hampshire Indonesian Cmty. Support.
These merged factors favor preliminary injunctive relief. As this court stated in New Hampshire Indonesian Cmty. Support:
“A continuation of the status quo during the pendency of this litigation will only shortly prolong the longstanding practice and policy of the United States government, while imposition of the Executive Order would impact the plaintiffs and similarly situated individuals and families in numerous ways, some of which—in the context of balancing equities and the public interest—are unnecessarily destabilizing and disruptive.”
765 F. Supp. 3d at 111–12. The other three district courts considering similar cases have agreed. See Doe v. Trump, 766 F. Supp. 3d at 286 (“It is difficult to imagine a government or public interest that could outweigh the harms established by the plaintiffs here.“); State v. Trump, 765 F. Supp. 3d at 1153 (“First, constitutional violations weigh heavily in favor of an injunction. Second, the Government has no legitimate interest in enforcing an Order that is likely unconstitutional and beyond its authority. Third, the rule of law is secured by a strong public interest that the laws...are not imperiled by executive fiat“) (cleaned up); CASA, Inc. v. Trump, 763 F. Supp. 3d at 745 (“The balance of the equities and the public interest strongly weigh in favor of a preliminary injunction that maintains the status quo during litigation.“).
These final factors in the preliminary injunction analysis favor the petitioners. Because they prevail as to all factors, the court grants the preliminary injunction.
The court requires a nominal bond of $1. “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
VI. Conclusion and stay
As this court observed in its earlier case regarding birthright citizenship, the “ultimate lawfulness of the Executive Order will surely be determined by the Supreme Court. This is as it should be.” New Hampshire Indonesian Cmty. Support, 765 F.Supp.3d at 112; see also CASA, No. 24A884, 2025 WL 1773631 at *14 n.18 (citations omitted) (“The dissent worries that the Citizenship Clause challenge will never reach this Court, because if the plaintiffs continue to prevail, they will have no reason to petition for certiorari. . . . But at oral argument, the Solicitor General acknowledged that challenges to the Executive Order are pending in multiple circuits, and when asked directly ‘When you lose one of those, do you intend to seek cert?‘, the Solicitor General responded, ‘yes
The petitioners initiated this litigation with a request that the court issue orders on its preliminary injunction and class certification motions within one week in order to facilitate expeditious appeals for resolution before the Supreme Court‘s 30-day deadline. Id. at *15; see also doc. nos. 5, 6. After convening an immediate conference with the cooperative and highly professional counsel from both sides, a 10-day schedule was adopted, which concludes today with this order. In preliminary deference to the Supreme Court‘s stay,
Nothing in this order should be construed as conflicting with the Supreme Court‘s ruling in CASA, including its specific holding allowing executive agencies to develop and issue public guidance about the Executive‘s plans to implement the Executive Order.
Based on the above analysis, the court GRANTS the petitioners’ motion for class certification (doc. no. 5). The following class is provisionally CERTIFIED:
All current and future persons who are born on or after February 20, 2025, where (1) that person‘s mother was unlawfully present in the United States and the person‘s father was not a United States citizen or lawful permanent resident at the time of said person‘s birth, or (2) that person‘s mother‘s presence in the United States was lawful but temporary, and the person‘s
father was not a United States citizen or lawful permanent resident at the time of said person‘s birth.
Sarah, by her guardian, parent, and next friend Susan; and Matthew, by his guardian, parent, and next friend Mark, are APPOINTED as representatives of the class. Petitioners’ counsel from the ACLU Immigrants’ Rights Project; the ACLUs of New Hampshire, Maine, and Massachusetts; the Asian Law Caucus; the NAACP Legal Defense and Educational Fund; and the Democracy Defenders Fund are APPOINTED as class counsel.
The court GRANTS the petitioners’ motion for a preliminary injunction (doc. no. 6) as to the certified class.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: July 10, 2025
cc: Counsel of Record