Casa Inc. v. TrumpCasa Inc. v. Trump
Pаrents, on behalf of their children and expected children, bring this class action challenging an Executive Order that seeks to strip children born on U.S. soil of their constitutional and statutory right to U.S. citizenship. They seek an injunction that halts enforcement of the Executive Order and a declaration that the Executive Order is unlawful. The plaintiffs have moved for class certification. The motion is granted.
I. Background
A. The Fourteenth Amendment and the Immigration and Nationality Act
The Citizenship Clause of the
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Congress codified this right in the Immigration and Nationality Act of 1952 (INA). The INA states that [t]he following, including a person born in the United States, and subject to the jurisdiction thereof, shall be nationals and citizens of the United States at birth.
B. The Citizenship Executive Order
A recent Executive Order seeks to upend this constitutional and statutory right. On January 20, 2025, the President issued
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person‘s mother was unlawfully present in the United Stаtes and the 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 at the time of said person‘s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person‘s birth.
Exec. Order § 1.
Section 2 of the Executive Order establishes the policy of the United States government. Id. § 2. Under § 2, no federal department or agency 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 of such a person. Id. § 2(a). The policy applies only to persons who are born in the United States after February 19, 2025. Id. § 2(b).
Section 3 of the Executive Order discusses enforcement. Id. § 3. It instructs the Secretary of the U.S. Department of State, the U.S. Attorney General, the Secretary of the U.S. Department of Homeland Security, and the Commissioner of the Social Security Administration to take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order and to ensure that their agencies’ officers, employees, and agents act in accordance with the Executive Order. Id. § 3(a). It also instructs the heads of executive departments and agencies to issue public guidance within 30 days of the Executive Order regarding their implementation of it. Id. § 3(b).
C. The Lawsuit
On January 21, 2025, CASA, Inc. (CASA) and Asylum Seeker Advocacy Project (ASAP)—two nonprofit organizations that provide services to immigrants—and five pregnant women without permanent immigration status who expected to give birth in the United States in the coming months filed this lawsuit to preserve the constitutional right to citizenship by birth pursuant to the Citizenship Clause of the
The plaintiffs requested, and on February 5, 2025, the Court entered, a preliminary injunction to enjoin implementation and enforcement of the Executive Order until the merits of their claims are resolved. CASA, Inc. v. Trump, 763 F. Supp. 3d 723 (D. Md. 2025). On February 11, the government appealed, Trump v. CASA, Inc., No. 25-1153 (4th Cir.), and asked this Court to stay the injunction‘s nationwide application pending appeаl so the
The government then asked the Supreme Court to stay the nationwide aspect of the preliminary injunction. Application for a Partial Stay of the Injunction Issued by the United States District Court for the District of Maryland, Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) (No. 24A884). The Supreme Court consolidated the application with two similar applications in other cases concerning birthright citizenship, Washington v. Trump, 765 F. Supp. 3d 1142 (W.D. Wash. 2025), aff‘d, No. 25-807, 2025 WL 2061447 (9th Cir. July 23, 2025); and Doe v. Trump, 766 F. Supp. 3d 266 (D. Mass. 2025), appeal pending, No. 25-1170 (1st Cir.). See Trump v. CASA, Inc., 145 S. Ct. 1917 (2025) (mem.).
On June 27, 2025, the Supreme Court granted the partial stays, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. Trump v. CASA, Inc., 145 S. Ct. 2540, 2562–63 (2025). At the same time, the Supreme Court noted
Plaintiffs 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
Federal Rule of Civil Procedure 23(b)(2) and ask a court to award preliminary classwidе relief that may, for example, be statewide, regionwide, or even nationwide.
Id. at 2567 (Kavanaugh, J., concurring) (first citing A. A. R. P. v. Trump, 145 S. Ct. 1364, 1370 (2025) (per curiam); and then citing Califano v. Yamasaki, 442 U. S. 682, 701–03 (1979)). Justice Alito cautioned against abuse of this approach. See id. at 2565 (Alito, J., concurring) (noting the availability of . . . class certification could potentially threaten the practical significance of [the Court‘s] decision, which will have very little value if district courts award relief to broadly defined classes without following Rule 23‘s procedural protections’ for class certification (quoting id. at 2555–56 (majority opinion)).
Within hours of the Supreme Court‘s decision, the plaintiffs filed an amended class action complaint, ECF 96, a motion to certify the class, ECF 97, and an emergency motion for a classwide temporary restraining order and preliminary injunction that enjoins the Executive Order as to the putative class, ECF 98. The government opposed the motions, ECF 106 & 111, and the plaintiffs replied, ECF 107 & 113. The motion for class certification is ripe.1
The plaintiffs in the amended class action complaint are CASA, ASAP, and eight individual plaintiffs: Maribel, Juana, Trinidad Garcia, Monica, individually and as next friends to their respective future children; Liza, individually and as next friend to L.B.; Ashley, individually and as next friend to K.K.; Andrea, individually and as next friend to E.T.P.; and Niurka, individually and as next friend to L.G. ECF 96, ¶¶ 20–49. The plaintiffs allege that their children w[ere] or will be born in the United States after February 19, 2025 and that [t]he Executive Order purports to deny these babies their сonstitutionally and statutorily guaranteed United States citizenship. ECF 96, ¶ 9. Of the individual plaintiffs, seven—Juana, Trinidad Garcia, Monica, Liza, Ashley, Andrea, and Niurka—bring their claims on behalf of themselves as parents, on behalf of their children, and on behalf of similarly situated children and parents.2
Juana, who is pregnant, lives in Maryland. ECF 2-4, ¶¶ 2, 6; see ECF 96, ¶ 42. She fled from Colombia and has a pending asylum claim, on which her 12-year-old daughter, who also lives in the United States, is a derivative. ECF 2-4, ¶¶ 3, 5. Her partner, who is her unborn baby‘s father, also is seeking asylum. Id. ¶ 4. Juana is afraid to return to Colombia and worried that her unborn baby will be born without a country as a result of this Executive Order and could be denied U.S. citizenship and deported to Colombia without [her]. Id. ¶¶ 6, 7. She states that [i]t is important to [her] that [her] child is a U.S. citizen so they can have a better quality of life and fully engage with all that the United States has to offer, and that it does not make[] sense for [her] child to be denied the benefits of citizenship they deserve once they are born in the U.S. Id. ¶ 8.
Trinidad Garcia, who is pregnant, lives in North Carolina. ECF 97-8, ¶¶ 3, 8; see ECF 96, ¶ 43. She and her husband came to the United States on tourist visas from Venezuela in 2017. ECF 97-8, ¶ 4. They stayed and have been working with work permits. Id. ¶¶ 4, 6. They have a pending affirmative asylum application with the USCIS, and they have Temporary Protective Status (TPS). Id. ¶ 5. Trinidad Garcia is very worried and anxious about the possibility that [her] baby might not be born a U.S. citizen, and she and her husband want [their] child to receive a U.S. passport and proof of U.S. citizenship as soon as they are born. Id. ¶¶ 10–11. She feel[s] it would be impossible to get their child Venezuelan citizenship if they wanted it, because as asylum seekers, they cannot leave the country and there are no Venezuelan consular services in the United States, and therefore, [t]here is no way for [them] to approach the Venezuelan government regarding [their] baby‘s citizenship. Id. ¶ 12. Trinidad Garcia is worried that, [i]f [their] U.S.-born baby is not able to get U.S. citizenship at birth, ... their child will not be a citizen of any country or be able to get important identity documents. Id. ¶ 13. She also is worried that [she] will have to apply for asylum
Monica, who is pregnant, lives in South Carolina. ECF 97-6, ¶¶ 3, 8; see ECF 96, ¶ 44. She and her husband are from Venezuela and have been in the United States since 2019. ECF 97-6, ¶¶ 4-5. They bоth have TPS and pending affirmative asylum applications with USCIS. Id. ¶ 4. Monica cannot travel outside the United States without losing her asylum claim. Id. ¶ 10. Like Trinidad Garcia, she is worried her child will be stateless. Id. ¶ 12. Her anxiety about her unborn child‘s status has made [her] pregnancy more difficult than it otherwise would be, and she and her husband are afraid of bringing more life into this world because of the Executive Order. Id. ¶ 9. She want[s] [her] child to have U.S. citizenship because they will be born here and belong here, and the Constitution says [her] child has a right to U.S. citizenship. Id. ¶¶ 13, 14. She notes that citizenship will give her child legal protections, opportunities, and the right to remain safely by [her] side as [her] husband and [she] pursue [their] asylum claim here. Id. ¶ 13.
Liza declares that she and her husband are from Russia but cannot return there for fear of persecution. ECF 97-5, ¶¶ 2, 4; see ECF 96, ¶ 45. She has a student visa, and he has a pending asylum claim. ECF 97-5, ¶¶ 3–4. Their child, L.B., was born after February 19, 2025, in the United States. Id. ¶ 5. Liza describes constant worry, fear, and anxiety from the Executive Order and her concerns that the baby could be detained or deported. Id. ¶¶ 6–9. She worries that her baby will be denied access to healthcare and cutting-edge educational opportunities that do not exist elsewhere, but [m]ost importantly, she want[s] L.B. to be a U.S. citizen because citizenship will ensure L.B.‘s safety. Id. ¶ 9.
Ashley declares that she has been living in the United States lawfully for over 10 years and that she and her husband have valid H-1B visas, which they had when their baby, K.K., was born. ECF 97-3, ¶¶ 4–8; ECF 96, ¶ 46. They want their child, who was born in and is being raised in the United States, to be a U.S. citizen to be protected by the full rights and freedoms granted under the U.S. Constitution. ECF 97-3, ¶ 9. Ashley states that [c]itizenship will provide K.K. access to essential services and legal protections exclusive to U.S. citizens, supporting K.K.’s wellbeing, safety, and security. Id. She expresses fear and uncertainty about what could happen if her baby is denied citizenship. Id. ¶ 10.
Andrea declares that she is pursuing asylum and that she and her husband were both undocumented when their baby, E.T.P., was born. ECF 97-2, ¶ 4; see ECF 96, ¶ 47. She states she want[s] [her] child to have the full dignity and rights of citizenship, including access to educational opportunities and the benefits to which they are entitled. ECF 97-2, ¶ 5.
Niurka declares that she, her husband, and their older child fled to the United States from Cuba after suffering political persecution, and they do not intend to return. ECF 97-7, ¶ 3; see ECF 96, ¶ 48. They have pending applications for asylum and to become lawful permanent residents. ECF 97-7, ¶ 3. Their child, L.G., was born in the United States after February 19, 2025. Id. ¶ 4. Niurka want[s] L.G. to have U.S. citizenship because [she] want[s] L.G.
As in the original complaint, the plaintiffs claim the Executive Order violates the
As for harm to the parents, the plaintiffs claim they will be directly harmed by the denial of the benefits of citizenship to their children. Id. The plaintiffs also claim
[p]arents will face significant harm, including increased stress and anxiety that comes from the U.S. governmеnt treating their children differently from other U.S.-born children, and from the prospect of their children facing statelessness and an uncertain fate in the land of their birth. Immigrant parents, including those who cannot be deported because of a pending asylum claim or other immigration application, will also face the reality that their U.S.-born child could be subject to deportation.
Id. ¶ 15.
They seek a declaration that the Executive Order is unconstitutional and violates the INA; a declaration that all children born in the United States to noncitizen parents covered by the Executive Order are citizens of the United States and are entitled to all of the rights and privileges that such status provides, regardless of the immigration status of their parents; and an injunction enjoining Defendants from enforcing the Executive Order, or taking any other action that fails to recognize citizenship to individuals born within the United States to noncitizens covered by the Executive Order. Id. at 41.
III. Class Certification
To certify a class, the plaintiffs must show that the class they propose complies with the requirements of
Under
[I]f
In analyzing whether the
A. Rule 23(b)(2)
The plaintiffs seek to certify a class under
Here, the requirements of
B. Rule 23(a)
To satisfy
1. Numerosity
There is numerosity if the class is so numerous that joinder of all members is impracticable. In re Zetia (Ezetimibe) Antitrust Litig., 7 F.4th 227, 234 (4th Cir. 2021) (quoting
Numerosity is easily met in this case. The defendants acknowledge that the plaintiffs propose a class of enormous size. ECF 106, at 19; see also Application for a Partial Stay of the Injunction Issued by the United States District Court for the District of Maryland at 3, CASA, 145 S. Ct. 2540 (No. 24A884) (noting the Executive Order applies to millions of [people] across the country). And the plaintiffs cite evidence that each year, an average of about 255,000 babies born on U.S. soil’ would no longer receive U.S. citizenship at birth if the Executive Order went into effect. ECF 97, at 11 & n.4 (quoting Penn State Social Science Research Institute, Ending Automatic Birthright Citizenship Would Significantly Increase the Size of the U.S. Unauthorized Population, New Projections Show (May 13, 2025), https://pop.psu.edu/news/ending-automatic-birthright-citizenship-would-significantly-increase-size-us-unauthorized [https://perma.cc/V25T-YLCX]).
There is numerosity.
2. Commonality
There is commonality if there are questions of law or fact common to the class.
The class representatives and the class members suffer the same injury: the denial of U.S. citizenship.5 Their claims depend on the same contention: that [t]he Executive Order purports to deny these babies their constitutionally and statutorily guaranteed United States citizenship. ECF 96, ¶ 9. Stated as a question of law common to the class: Does the Executive
injury, and a resolution of their common question of law will resolve the issue that is central to their claims.
The defendants argue that varying factual circumstances of members of Plaintiffs’ desired class defeat . . . commonality and typicality. ECF 106, at 16. As the defendants see it, these factual circumstances could affect the members’ domicile. Id. at 16–17. Domicile, according to the defendants, turns on how long the parents of a child born in the United States have been in the United States, the parents’ immigration statuses, and whether the parents wish to remain here. See id. at 18–19. In the defendants’ view, the parents’ domicile is relevant to commonality and typicality because the parents’ domicile is relevant to whether the child is entitled to birthright citizenship. On the defendants’ account, the grant of citizenship for people born in the United States and subject to the jurisdiction thereof,
The defendants’ arguments touch on the merits of the claims. Though courts cannot engage in free-ranging merits inquiries at the certification stage, merits questions may be considered if they are relevant to determining whether the
On the merits, the defendants’ argument stumbles out of the gate. The foundational premise of their argument—that the citizenship of a U.S.-born child is determined by their parents’ domicile—was rejected by this Court when it previously analyzed
When the Court determines whether the Executive Order is constitutional and whether it violates the INA, it will resolve in one stroke the issue that is central to the validity of the class claims. See Wal-Mart, 564 U.S. at 350. The plaintiffs have established commonality for the children‘s claims.6
But they have not established commonality for the parents’ claims. The Executive Order denies citizenshiр to children born after its effective date; it does not deny citizenship to their parents. Thus, the parents themselves do not suffer[] the same injury as their children. See Wal-Mart, 564 U.S. at 350 (quoting Gen. Tel., 457 U.S. at 157).
Moreover, the parents do not even suffer the same injury as their counterparts in the proposed class. For instance, the plaintiffs allege the parents will be directly harmed by the denial of the benefits of citizenship to their children. ECF 96, ¶ 14. Those benefits include the Supplemental Nutrition Assistance Program, welfare programs such as Temporary Assistance for Needy Families, and healthcare programs such as the Children‘s Health Insurance Program, the Affordable Care Act, and Medicaid. Id. ¶¶ 12–13, 95; see ECF 97-5, ¶¶ 9–10 (Liza‘s declaration stating that she wants her child to receive healthcare). But not all parents will seek these benefits—either because they do not plan to remain in the United States or because they do not qualify for or need them.
The uncertainty, stress, and fear that these parents are experiencing are not necessarily common to all parents in the proposed class. For example, if a baby subject to the Executive Order is born prematurely in the United States to parents who wanted their child to be born elsewhere, or if a baby has citizenship in another country by virtue of their parents’ citizenship, the parents may not feel the same uncertainty, stress, and fear that the class representatives are experiencing. The class representatives cannot establish that every parent of a child subject to the Executive Order will have a viable claim and a right to recovery. See Stafford, 123 F.4th at 681. The plaintiffs have not shown commonality for the parents’ claims.7
There is typicality if the class representatives are part of the class and possess the same interest and suffer the same injury as the class members. Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (quoting Gen. Tel., 457 U.S. at 156 (internal quotation marks omitted)). The representatives’ claims must arise[] from the same event, practice, or course of conduct that gives rise to the claims of other class members and be based on the same legal theory. 1 Newberg & Rubenstein on Class Actions § 3:29 (6th ed. 2022). The claims must be so interrelated that the
interests of the class members will be fairly and adequately protected in their absence.” Deiter, 436 F.3d at 466 (quoting Gen. Tel., 457 U.S. at 157 n.13). The representatives’ claims “cannot be so different from the claims of absent class members that their claims will not be advanced by [the representatives‘] proof of [their] own individual claim[s].” Id. at 466-67. In other words, “as goes the claim of the named plaintiff, so go the claims of the class.” Id. at 466 (quoting Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)). Though the class representatives’ and the class members’ claims do not have to be “perfectly identical or perfectly aligned,” typicality is met if no differences “strike[] at the heart of the respective causes of actions.” Id. at 467. The typicality requirement “tends to merge with the commonality and adequacy-of-representation requirements.” Id. at 466 (first citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997); and then citing Gen. Tel., 457 U.S. at 157 n.13); see also 1988 Tr. for Allen Child. Dated 8/8/88 v. Banner Life Ins. Co., 28 F.4th 513, 523 (4th Cir. 2022) (noting that courts “need not tarry for long” on typicality analysis after considering commonality because the two requirements “tend to merge” (quoting Gen. Tel., 457 U.S. at 157 n.13)).
Typicality is satisfied for the same reasons commonality is satisfied. The class representatives and the class members bring the same claims, suffer the same injury, and have the same interests. The class representatives’ claims are typical of the class.
The defendants insist that “discovery is warranted . . . . to assess whether [the plaintiffs] satisfy the typicality requirement.” ECF 106, at 19. They say they need discovery about “the class representatives’ immigration statuses, how long they have been present in the United States, . . . facts related to their demonstrated intention to stay and make the United States their lawful home,” and “the ways in which the class representatives intend to utilize the benefits of American citizenship.” Id. This attempt to derail early class certification with a fishing expedition into factual matters wholly unrelated to typicality, or certification in general, is rejected.
Though pre-certification discovery “relating to the issues involved in maintainability” is often permitted, the pre-certification discovery the defendants seek is not necessary to determine typicality (or any certification requirement). See Doctor v. Seaboard Coast Line R.R., 540 F.2d 699, 707 (4th Cir. 1976) (quoting Huff v. N. D. Cass Co., 485 F.2d 710, 713 (5th Cir. 1973) (en banc)); see also Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1312 (9th Cir. 1977) (“Whether or not discovery will be permitted in a case of this nature [a class action] lies within the sound discretion of the trial court.” (citation omitted)). The discovery the defendants claim they need concerns the domicile of the class representatives. The Court has already explained why the domicile of the parents of U.S.-born children is irrelevant to commonality. For the same reasons, the domicile of the class representatives is irrelevant to typicality. Even if the information were relevant, the defendants have it. The class representatives have submitted declarations describing their immigration status, how long they have been in the United States, and their desire to remain here. See ECF 2-4, ¶¶ 3-8; 97-2, ¶¶ 4-5; 97-3, ¶¶ 4-10; 97-5, ¶¶ 2-9; 97-6, ¶¶ 3-5, 13; 97-7, ¶¶ 3, 6; 97-8, ¶¶ 3-6, 14. The defendants have not identified any “reasonably contested class issues” that would justify pre-certification discovery. See Bearden v. Honeywell Int‘l Inc., 720 F. Supp. 2d 932, 942 (M.D. Tenn. 2010) (quoting In re Allstate Ins. Co. Underwriting & Rating Pracs. Litig., 917 F. Supp. 2d 740, 751 (M.D. Tenn. 2008)). The request for pre-certification discovery is denied.
Typicality is satisfied.
4. Adequacy of Representation
Representation is adequate “if the class representative ‘will fairly and adequately protect the interests of the class.‘” Sharp Farms v. Speaks, 917 F.3d 276, 295 (4th Cir. 2019) (quoting Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010)). There cannot be any “fundamental” “conflicts of interest between named parties and the class they seek to represent.” Id. (first quoting Ward, 595 F.3d at 180; and then quoting Amchem, 521 U.S. at 625). “A conflict is not fundamental when . . . all class members ‘share common objectives and the same factual and legal positions [and] have the same interest in establishing the liability of [defendants].‘” Id. (alteration in original) (quoting Ward, 595 F.3d at 180). Just like for typicality, the “class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” Id. (quoting Amchem, 521 U.S. at 625-26). Also, “[a] class representative must ‘be of a character to vigorously pursue the case.‘” D.N.N. v. Baker, No. JRR-25-1613, 2025 WL 2098633, at *11 (D. Md. July 25, 2025) (quoting Monroe v. City of Charlottesville, 579 F.3d 380, 385 (4th Cir. 2009)).
There is no conflict of interest between the class representatives and the class members. They share the same injury, the same objections, the same factual and legal positions, and the same interest in challenging the Executive Order. If the class representatives obtain a ruling that the Executive Order is unconstitutional or violates the INA, all class members will benefit from that ruling and obtain the same relief. The class representatives have no interest antagonistic to the class members. Their interests are identical.
Upon review of the class representatives’ declarations, the Court finds that they will prosecute the action vigorously on behalf of the entire class. See ECF 97-3, ¶ 11; ECF 97-4, ¶¶ 2-3; ECF 97-5, ¶ 13; ECF 97-6, ¶¶ 17-18; ECF 97-7, ¶¶ 9-10; ECF 97-8, ¶ 17. By pursuing their own claims, the class representatives necessarily will pursue declaratory and injunctive relief that will benefit all class members.
The defendants argue that because the class representatives are proceeding pseudonymously, “it is not рossible for the class members to assess . . . in a void” whether the class representatives are
This argument might have merit if the plaintiffs were pursuing a
But this is not a
There is no question that the class representatives, despite proceeding pseudonymously, will adequately represent the interests of the absent class members. This is because the hallmark of a
The class representatives will fairly and adequately protect the interests of the class. Adequacy of representation is met.
C. Class Definition
The plaintiffs propose the following class definition: “All children who have been born or will be born in the United States on or after February 19, 2025, who are designated by Executive Order 14,160 to be ineligible for birthright citizenship, and their parents.” ECF 97, at 1-2. The defendants object that this definition is too broad.
A class definition is too broad when “it sweeps within it persons who could not have been injured by the defendant‘s conduct.” See Stafford v. Bojangles’ Rests., Inc., 123 F.4th 671, 682 (4th Cir. 2024) (quoting Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009)). An overly broad class definition does not “reach the thresholds of class certification” because it reflects “underlying flaws with the classes’ commonality, predominance, and typicality.” Id. at 681 (quoting Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 933 (5th Cir. 2023)). “An overbreadth problem, however, can and often should be solved by refining the class definition[s] . . . .” Id. at 682 (alteration in original) (citation modified).
The plaintiffs’ proposed class definition is too broad because it includes the phrase “and their parents.” As the Court has found, the parents, in their individual capacities, cannot establish they will suffer the same injury as the children or as other parents. Because the parents, in their individual capacities, cannot satisfy commonality or typicality, the Court does not include the parents as class members.
The defendants argue that the class definition is overbroad for another reason: the
Start with the argument that children who have yet not been conceived lack standing and thus cannot be part of the class. The Supreme Court has not “address[ed] the distinct question whether every class member must demonstrate standing before a court certifies a class.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 n.4 (2021). But the Fourth Circuit has refused “to import standing concepts into the class certification analysis.” Carolina Youth Action Project v. Wilson, 60 F.4th 770, 777 (4th Cir. 2023). Thus, “[o]nce threshold individual standing by the class representative is met, a proper party to raise a particular issue is before the court[, and] there is no further, separate ‘class action standing’ requirement.” Id. at 779 (quoting Newberg § 2:1). Here, the class representatives have established standing. They include Liza, next friend to L.B.; Ashley, next friend to K.K.; Andrea, next friend to E.T.P.; and Niurka, next friend to L.G. They also include Juana, Trinidad Garcia, and Monica, who currently are pregnant with children who will be subject to the Executive Order and who bring claims on behalf of their future children. These class representatives have standing to sue on behalf of other children who are subject to the Executive Order. There is no further class action standing requirement at this stage.
Next consider the аrgument that not-yet-conceived children lack the capacity to sue. This argument, too, is without merit. The defendants cite no authority for the notion that only class members with the capacity to sue may be included in a
The defendants’ argument fails for the additional reason that the not-yet-conceived children are future claimants, and courts routinely certify
Just as these courts certified
The Court defines the class as follows:
Any child who has been born or will be born in the United States after February 19, 2025, (1) whose mother was unlawfully present in the United States and whose father was not a United States citizen or lawful permanent resident
at the time of said person‘s birth, or (2) whose mother‘s presence in the United States at the time of said person‘s birth was lawful but temporary and whose father was not a United States citizen or lawful permanent resident at the time of said person‘s birth.11
D. Simultaneous Class Certifications
This Court is not the only one to consider whether to certify a class of people harmed by the Executive Order. The U.S. District Court for the District of New Hampshire provisionally certified a class of children born on or after February 20, 2025, who fall under the terms of the Executive Order. See Barbara, 2025 WL 1904338, at *1, *4. The defendants argue “there is no need for this Court to certify a duplicative nationwide class for the children who are already members of the Barbara class.” ECF 111, at 2. The Court disagrees. “[I]t is not uncommon to find pending simultaneously in different federal or state courts a number of individual suits and class actions based on the same events and transactions.” Newberg § 10:33. One court‘s certification of a class does not “forestall[] other related cases” because “nеither the filing of a class action nor even the grant of a class certification motion has any formal effect on litigation elsewhere.” Id. Only a final judgment would “preclude[] all other lawsuits concerning the same transaction and occurrence pursued by class members.” Id. “[A] parallel action has no effect on a competing action until a final judgment is reached. That is even true for the certification decision.” Sharp Farms, 917 F.3d at 309 (Quattlebaum, J., concurring) (citing Newberg § 10:33). The provisional class certification of a nearly identical class in a different district does not obviate the need for class certification here.
E. Scope of Class
The defendants alternatively ask the Court to limit the class to individuals in this judicial district. They cite no authority that supports their request. That is because the law is not on their side.12
Nothing in
Rule 23 . . . limits the geographical scope of a class action that is brought in conformity with that Rule. . . . Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive reliefis dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.
Califano, 442 U.S. at 702. What this Court must do is “take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certificаtion of such a class would not improperly interfere with the litigation of similar issues in other judicial districts.” Id. Then, “[i]f a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.” Id.
Courts routinely certify classes that include members outside of the court‘s jurisdiction. See, e.g., Berry, 807 F.3d at 606, 609 (holding that district court properly certified
Here, the scope of the class must be nationwide because the Executive Order applies to children nationwide. The Executive Order‘s denial of birthright citizenship is not limited to children born in the District of Maryland. The denial extends to “persons who are born within the United States.” Exec. Order § 1. Indeed, certification of a nationwide class of children subject to the Executive Order is not only appropriate; it is necessary. Accordingly, the Court certifies the following nationwide class:
Any child who has been born or will be born in the United States after February 19, 2025, (1) whose mother was unlawfully present in the United States and whose father was not a United States citizen or lawful permanent resident at the time of said person‘s birth, or (2) whose mother‘s presence in the United States at the time of said person‘s birth was lawful but temporary and whose father was not a United States citizen or lawful permanent resident at the time of said person‘s birth.
IV. Class Counsel
Because the Court has certified a class, the Court must appoint class counsel.
- (i) the work counsel has done in identifying or investigating potential claims in the action;
- (ii) counsel‘s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
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(iii) counsel‘s knowledge of the applicable law; and - (iv) the resources that counsel will commit to representing the class.
The plaintiffs seek to have attorneys from the Georgetown Law Institute for Constitutional Advocacy and Protection (“ICAP“) and ASAP appointed as class counsel. In support of their request, they submitted declarations from Joseph Mead, Special Litigation Counsel at ICAP, and Zachary Manfredi, Litigation and Advocacy Director at ASAP. ECF 97-9 & 97-10. Although the defendants oppose class certification, they do not oppose appointment of counsel from ICAP and ASAP.
The plaintiffs identify the work that counsel has done thus far in this case and their knowledge of the applicable law:
Attorneys from [ICAP and ASAP] have litigated this case since the onset, including in this Court, the Fourth Circuit, and the Supreme Court. . . . Counsel have spent the last several months identifying and analyzing the constitutional and statutory defects of the Executive Order, and they have worked to build the legal arguments and factual record that supported the preliminary injunction this Court previously entered. Counsel are therefore deeply familiar with the case and the applicable law; indeed, counsel have already litigated issues arising in this case up to the Supreme Court.
ECF 97-1, at 17. The plaintiffs also state that their attorneys “have devoted extensive resources to engaging with plaintiffs and others whose children may be harmed by the Executive Order.” Id.
The plaintiffs cite counsel‘s experience with class actions, complex litigation more generally, and claims like those asserted in the amended class action complaint, and they provide examples of their knowledge in this area of law:
These attorneys have experience litigating complex class action lawsuits in federal court. . . .
Beyond their fluency with the issues and arguments in this case, counsel are recognized experts in constitutional law, administrative law, civil rights litigation, and litigation involving the government. ICAP has previously litigated cases challenging the legality of federal policy relating to immigration, including challenges to the Department of Homeland Security‘s Public Charge Rule and Diversity Visa Rule. See CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020), vacated on rehearing en banc, 981 F.3d 311 (4th Cir. 2020); E.B. v. U.S. Dep‘t of State, 583 F. Supp. 3d 58 (D.D.C. 2022). ASAP attorneys have previously litigated numerous challenges to federal policy, including the government‘s termination of Deferred Action for Childhood Arrivals, poor treatment of people in civil detention, separation of families at the U.S.-Mexico border, and delays in work authorization to asylum seekers. E.g., CASA de Maryland, Inc., v. Mayorkas (formerly CASA v. Wolf), No. 20-cv-02118 (D. Md.) (asserting APA and federal statutory claims); Romero Najera v. Barr, et al., No. 20-cv-00866 (C.D. Cal.) (individual habeas). And counsel have brought numerous challenges to the constitutionality and legality of other federal, state, and local policies, including through class actions and cases seeking facial invalidation of laws.
Upon consideration of the
V. Conclusion
For the foregoing reasons, the motion for class certification is granted consistent with this opinion. The attorneys from ICAP and ASAP are appointed as class counsel. Liza, as next friend to L.B.; Ashley, next friend to K.K.; Andrea, as next friend to E.T.P.; Niurka, as next friend to L.G.; and Juana, Trinidad Garcia, and Monica, as next friends to their future children are designated class representatives. A separate Order follows.
Date: August 7, 2025
Deborah L. Boardman
United States District Judge