Huisha-Huisha v. GaynorHuisha-Huisha v. Gaynor
MEMORANDUM OPINION
Plaintiffs—a group of asylum-seeking families who fled to the United States—bring this lawsuit against Alejandro Mayorkas,1 in his official capacity as Secretary of Homeland Security, and various other federal government officials (“Defendants” or the “government“) for violations of the
I. Background
A. Factual Background
1. The U.S. Asylum Process
“For almost a century, Congress has recognized that citizens of foreign states are sometimes forced to flee from persecution in their home countries, and it has been the policy of the United States government that this country ought to serve as a place of refuge for persons who are in such distress.” Kiakombua v. Wolf, 498 F. Supp. 3d 1, 11-12 (D.D.C. 2020). In keeping with this policy, Congress has codified various procedures governing how the United States evaluates and processes the admission requests of refugees. As relevant here, there are three primary protections for asylum seekers in place under current immigration laws.
First, in 1980, Congress passed the Refugee Act, Pub. L. No. 96-212, 94 Stat. 102, which amended the
Second, at the same time the Refugee Act of 1980 established the asylum process, it amended the statutory scheme governing a related form of relief—“withholding of deportation“—to remove the Attorney General‘s discretion to decide whether to grant that form of relief. Cardoza-Fonseca, 480 U.S. at 428-29. As amended by the 1980 Act, the
Third, Article 3 of the Convention Against Torture (“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, p. 20, 1456 U.N.T.S. 114. Congress has implemented Article 3 of CAT as part of the
2. COVID-19 Pandemic and the CDC Orders
Since 1893, federal law has provided federal officials with the authority to stem the spread of contagious diseases from foreign countries by prohibiting, “in whole or in part, the introduction of persons and property from such countries.” Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452 (“1893 Act“). Under current law:
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations 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.
On March 20, 2020, as the COVID-19 virus spread globally, HHS issued an interim final rule pursuant to
(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;
(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.
The CDC‘s Interim Rule went into effect immediately.
Pursuant to the Interim Final Rule, the CDC Director issued an order suspending for 30 days the introduction of “covered aliens,” which he defined as “persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry [(“POE“)] or Border Patrol station at or near the United States borders with Canada and Mexico.” Notice of Order Under
Soon thereafter, the CBP issued a memorandum on April 2, 2020 establishing its procedures for implementing the March 2020 Order. See Ex. E to Cheung Decl. (“CAPIO Memo“), ECF No. 57-5 at 15; see also Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 14-15. The CAPIO Memo instructed that agents may determine whether individuals are subject to the CDC‘s order “[b]ased on training, experience, physical observation, technology, questioning and other considerations.” CAPIO Memo, ECF No. 57-5 at 15. If an individual was determined to be subject to the order, they were to be “transported to the nearest POE and immediately returned to Mexico or Canada, depending on their point of transit.”
On April 22, 2020, the March 2020 Order was extended for an additional 30 days. See Extension of Order Under
On September 11, 2020, the CDC published its final rule. See Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right To Introduce and Prohibition of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg. 56424-01, 2020 WL 5439721, (Sept. 11, 2020) (Effective October 13, 2020) (“Final Rule“). The Final Rule “defin[ed] the phrase to ‘[p]rohibit, in whole or in part, the introduction into the United States of persons’ to mean ‘to prevent the introduction of persons into the United States by suspending any right to introduce into the United States, physically stopping or restricting movement into the United States, or physically expelling from the United States some or all of the persons.‘”
On August 2, 2021, the CDC issued its most recent order, “Public Health Assessment and Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists,” which replaced and superseded the October 2020 Order. See Public Health Assessment and Order Suspending
3. CDC Order‘s Effect on Asylum Seekers
Plaintiffs and the proposed class member are families from countries “that are among the most dangerous in the world due to gang, gender, family membership, and other identity-based violence.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 31. Plaintiffs are currently detained and in the custody of DHS. Am. Compl., ECF No. 22 ¶¶ 14-19. As such, they are subject to expulsion from the United States pursuant to the CDC Order. Plaintiffs assert that prior to the Title 42 Process, and “pursuant to longstanding immigration statutes protecting asylum seekers, Plaintiffs were entitled to assert claims for asylum and related forms of humanitarian protection, and to procedures Congress established to ensure the fair determination of their right to remain in the United States.”
B. Procedural History
1. Related Litigation
On November 18, 2020, this Court adopted Magistrate Judge Harvey‘s Report and Recommendation, provisionally granted the plaintiff‘s motion to certify class, and issued a preliminary injunction barring enforcement of the Title 42 Process as to unaccompanied minors in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 520-22 (D.D.C. 2020). The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit“) later stayed the preliminary injunction pending appeal. Order, P.J.E.S. v. Mayorkas, No. 20-5357 (D.C. Cir. Jan. 29, 2021).
In February 2021, the CDC issued a notice “temporarily except[ing] ... unaccompanied noncitizen children” from expulsion under the Title 42 Process. CDC, Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children Encountered in the United States Pending Forthcoming Public Health Determination, 86 Fed. Reg. 9942-01, 2021 WL 600683 (Feb. 11, 2021). The notice stated that CDC was “in the process of reassessing” the Title 42 Order and that the temporary exception for unaccompanied minors would “remain in effect until CDC has completed its public health assessment and published any notice or modified Order.”
In July 2021, the CDC issued an order “except[ing] unaccompanied noncitizen children ... from the [CDC‘s] October [13, 2020] Order.” See Order Under
2. Proceedings in this Case
Plaintiffs filed this action on January 12, 2021. See Compl., ECF No. 1. The same day, Plaintiffs filed an emergency motion to stay their removal from the United States, and Defendants orally objected to Plaintiffs’ request during the hearing on the motion. See Pls.’ Emergency Mot. Stay Removal, ECF No. 5. The Court entered a Minute Order granting Plaintiffs’ emergency motion over objection “[i]n view of the arguments presented by Plaintiffs in their motion, the representations made by the Government, and for the reasons stated on the record at the January 12, 2021 Status Conference.” Min. Order (Jan. 12, 2021). The Court also granted thirteen subsequent emergency motions to stay the removal of other families on January 19, 2021; January 27, 2021; January 29, 2021; February 1, 2021; February 4, 2021; February 5, 2021; February 6, 2021; February 9, 2021; February 18, 2021; February 19, 2021; and February 22, 2021. See Min. Orders (Jan. 19, 2021; Jan. 27, 2021; Jan. 29, 2021; Feb. 1, 2021; Feb. 4, 2021; Feb. 5, 2021; Feb. 6, 2021; Feb. 9, 2021; Feb. 18, 2021; Feb. 19, 2021; Feb. 22, 2021).
Plaintiffs filed a motion for class certification on January 28, 2021, see Mot. Certify Class, ECF No. 23; and they filed a motion for preliminary injunction on February 5, 2021, see Mot. Prelim. Inj., ECF No. 57. Defendants filed a combined opposition to both motions on February 17, 2021. See Defs.’ Opp‘n, ECF No. 76. On February 23, 2021, the Court granted the parties’ joint motion to hold in abeyance Plaintiffs’ motions for class certification and classwide preliminary injunction. Min. Order (Feb. 23, 2021). The motions were held in abeyance until August 5, 2021, when the Court granted the parties’ motion for a briefing schedule on Plaintiffs’ motions. Min. Order (Aug. 5, 2021). On August 6, 2021, Defendants filed a supplemental declaration in support of their combined opposition. See Shahoulian Decl., ECF No. 116. Plaintiffs filed their combined reply brief on August 11, 2021. See Pls.’ Reply, ECF No. 118. The motions are now ripe for the Court‘s adjudication.
II. Legal Standard
“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original)
In the wake of the Supreme Court‘s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C. Circuit has suggested that a positive showing on all four preliminary injunction factors may be required.” Holmes v. FEC, 71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644 F.3d at 393 (“[W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.“) (citation and quotation marks omitted)). Nonetheless, “the Circuit has had no occasion to decide this question because it has not yet encountered a post-Winter case where a preliminary injunction motion survived the less rigorous sliding-scale analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C. 2014).
III. Analysis
A. Plaintiffs’ Motion for Class Certification
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quotation marks omitted).
“The party seeking certification bears the burden of persuasion, and must show that the putative class[] meet[s] the requirements of Rule 23 by a preponderance of the evidence.” Garnett v. Zeilinger, 301 F. Supp. 3d 199, 204 (D.D.C. 2018) (citing Hoyte v. District of Columbia, 325 F.R.D. 485, 491 (D.D.C. 2017)). To carry that burden, Plaintiffs must “affirmatively demonstrate ... compliance with the Rule—that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Court must undertake a “rigorous analysis” to confirm that the requirements of Rule 23 have been satisfied. Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982).
Pursuant to
1. Class Definition
“[I]t is far from clear that there exists in this [D]istrict a requirement that a class ... must demonstrate ascertainability to merit certification.” Ramirez v. USCIS, 338 F. Supp. 3d 1, 48 (D.D.C. 2018); see also Hoyte v. District of Columbia, 325 F.R.D. 485, 489 n.3 (D.D.C. 2017) (noting that “[t]he ascertainability requirement, while adopted by some courts in this district, has been recently disavowed by four federal appellate courts” and explaining that “the D.C. Circuit has not opined on the requirement“). However, the requirement of “definiteness” has been imposed by some courts as an “implied requirement” for class certification, in addition to the express requirements in Rule 23. See DL v. District of Columbia, 302 F.R.D. 1, 17 (D.D.C. 2013). This “common-sense requirement,” Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998); is designed primarily to ensure the proposed class is administratively manageable, see Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). “It is not designed to be a particularly stringent test, but plaintiffs must at least be able to establish that ‘the general outlines of the membership
of the class are determinable at the outset of the litigation.’” Pigford, 182 F.R.D. at 346 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1760 at 118).
“[W]here the plaintiff seeks certification of an injunctive class pursuant to
Defendants contend that Plaintiffs have failed to establish that the proposed class satisfies the requirements of
The Court disagrees. As an initial matter, the Court notes that a “vague and ambiguous class definition” is not automatically “fatal[]” to a motion for class certification. Defs.’ Opp‘n, ECF No. 76 at 15-17. The case law is clear that the mere existence of a problematic class definition does not automatically mandate denial of class certification. See Brewer, 2015 WL 13604257, at *7. Rather, “[w]hen appropriate, district courts may redefine classes . . . sua sponte prior to certification.” Borum v. Brentwood Village, LLC, 324 F.R.D. 1, 8 (D.D.C. 2018); see also Wagner v. Taylor, 836 F.2d 578, 589-90 (D.C. Cir. 1987) (stating that district courts may “exercise . . . broad discretion to redefine and reshape the proposed class to the point that it qualifies for certification under
Here, however, the proposed class is not so poorly defined as to require sua sponte redefinition by the Court. First, Plaintiffs’ amended complaint, motions, and reply brief each set forth a fairly descriptive definition of the Title 42 Process as referring to the practice of summarily expelling asylum-seeking families since late March 2020. See Pls.’ Mot. Class Cert., ECF No. 23-1 at 7 (“A class action lawsuit is appropriate to challenge Defendants’ unlawful practice of summarily expelling vulnerable families with minor children under their shadow deportation system, referred to here as the ‘Title 42 Process’ or ‘Title 42 Policy.‘”); Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 9 (“Defendants moved to summarily deport [Plaintiffs] based on an unprecedented and unlawful expulsion process, invoking the public health powers of the Centers for Disease Control and Prevention (‘CDC’), specifically
Second, although Plaintiffs do use the phrase “among other things” in one sentence within their Amended Complaint, Defendants’ argument is weakened by their own acknowledgment that the focus of this litigation is the “‘practice of summary
And third, Defendants’ reliance on the Seventh Circuit case Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008), is misplaced. In Rahman, the plaintiffs sought to certify a class of citizens defined as “[a]ll United States citizens who now are and/or in the future will be subjected to detentions upon reentry to the United States as a result of defendants’ contested policies, practices and customs.” Id. at 625. However, the class definition did not specify what “defendants’ contested policies, practices and customs” were. Id. The Seventh Circuit therefore denied the plaintiffs’ motion to certify, explaining that “[a] class of all persons now or in the future subject to unspecified practices may have nothing to do with the named representatives’ injuries, or what caused them.” Id. at 626. The court also noted that the undefined class was “hard to evaluate” and “incompatible” with the “typicality” requirement. Id. at 627.
Here, Defendants argue that Plaintiffs’ class definition “suffers from similar infirmities.” Defs.’ Opp‘n, ECF No. 76 at 16. But not only is Rahman non-binding on this Court, it is also distinguishable on the facts. Significantly, though Plaintiffs refer to the “Title 42 Process” generally as a “system established in a set of agency documents—a new regulation, several orders, and an implementation memo,” id. at 17; Plaintiffs’ Amended Complaint and motions briefing also separately identify and describe each regulation, order, and memo. See, e.g., Am. Compl., ECF No. 22 ¶¶ 41-66. Thus, unlike in Rahman, the Court is able to easily evaluate the application of specific policies and procedures on the proposed class members, and any “administrative feasibility requirement” is satisfied because identifying the class members under this definition would not require much, if any, individual factual inquiry. See Brewer, 2015 WL 13604257, at *6.
2. Rule 23(a) Requirements
a. Numerosity
Because of the general rule in favor of confining litigation to the named parties only, a class action is appropriate only when “the class is so numerous that joinder of all members is impracticable.”
Here, Defendants do not dispute that the proposed class satisfies the numerosity requirement. Plaintiffs have provided evidence that, between March 2020 and December 2020, approximately 21,515 members of family units4 were subject to the CDC Order and its previous iterations, see Kang Decl., ECF No. 23-2 ¶ 4; and that, between April 2020 and December 2020,
“approximately 21,018 members of family units (81%) were expelled under Title 42,” id. ¶ 6. Accordingly, the Court finds that the numerosity requirement is met. See O.A. v. Trump, 404 F. Supp. 3d 109, 155 (D.D.C. 2019) (finding numerosity established by evidence in the administrative record estimating that the class consisted of “thousands of migrants who have crossed and will cross the United States’ southern border outside ports of entry”).
b. Commonality
A plaintiff seeking class certification must also establish that “there are questions of law or fact common to the class.”
As the D.C. Circuit has explained, commonality is satisfied where there is “a uniform policy or practice that affects all class members.” DL, 713 F.3d at 128; see also O.A., 404 F. Supp. 3d at 156 (finding commonality satisfied where “[a]ll members of the proposed class, and all of the proposed class representatives, face the same threat of injury” and where “[a]ll challenge the same Rule on the same grounds, and all seek the same remedy—invalidation of the Rule”). Here, Plaintiffs are challenging the lawfulness of the Title 42 Process, which is a uniform policy that applies to each Plaintiff and all members of the proposed class. Moreover, “[n]ot only do all class members present the same challenge to the policy, but there also is no evident variation among them concerning their ultimate entitlement to relief: if any person in the class has a meritorious claim, they all do.” J.D. v. Azar, 925 F.3d 1291, 1321 (D.C. Cir. 2019). The Court can, therefore, conclude that “common questions of law and fact” unite the class members’ claims. Damus v. Nielsen, 313 F. Supp. 3d 317, 332 (D.D.C. 2018) (finding that “the allegation that the five ICE Field Officers are no longer providing the ‘individualized determinations’ of parole eligibility and procedural protections required by the Parole Directive” satisfied the commonality requirement).
c. Typicality
A class representative satisfies the typicality requirement if the representative‘s “claims are based on the same legal theory as the claims of the other class members” and her “injuries arise from the same course of conduct that gives rise to the other class members’ claims.” Bynum v. District of Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003). Put another way, a representative‘s claims are typical of those of the class when “[t]he plaintiffs allege that their injuries derive from a unitary course of conduct by a single system.” Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Here, Plaintiffs and all members of the proposed class face the same injury: the threat of expulsion pursuant to the Title 42 Process. All challenge the same policy on the same grounds, and all seek the same remedy—invalidation of the Title 42 Process. Thus, the typicality requirement is met.
d. Adequacy
“The adequacy requirement aims to ensure that absent class members will not be bound by the outcome of a suit in which they were not competently and
Defendants also do not dispute that Plaintiffs have satisfied the adequacy requirement. First, Defendants have not identified—and the Court is unaware of—any interest Plaintiffs have that is antagonistic to or conflicts with the putative class members. Rather, courts have found that where, as here, the plaintiffs “seek identical relief for all class members, . . . there are no conflicting interests that might derail certification on this prong.” Coleman ex rel. Bunn v. District of Columbia, 306 F.R.D. 68, 84 (D.D.C. 2015). Second, the Court concludes that Plaintiffs’ current counsel are “willing and have the ability vigorously to litigate this case and to protect the interests of absent class members.” O.A., 404 F. Supp. 3d at 157.
3. Rule 23(b)(2) Requirement
Having determined that Plaintiffs meet the requirements of
Plaintiffs have satisfied both requirements here. The relief Plaintiffs seek—among other things, a declaration that the Title 42 Process is unlawful and an injunction prohibiting Defendants from applying the Title 42 Process to Plaintiffs and proposed class members—is “generally applicable to the class” and is indivisible. See Damus, 313 F. Supp. 3d at 334-35 (finding
For all these reasons, the Court grants Plaintiffs’ motion for class certification.
B. Plaintiffs’ Motion for Preliminary Injunction
1. Plaintiffs Are Likely to Succeed on the Merits
Plaintiffs argue that the CDC Orders instituting the Title 42 Process exceed the
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), provides the framework for reviewing an agency‘s interpretation of a statute that the agency is charged with administering. See id. at 837. The first step in this review process is for the court to determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. In determining whether the statute unambiguously expresses the intent of Congress, the court should use all the “traditional tools of statutory construction,” including looking to the text and structure of the statute, as well as its legislative history, if appropriate. See id. at 843 n.9; see also Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997). If the court concludes that the statute is either silent or ambiguous with respect to the precise question at issue, the second step of the court‘s review process is to determine whether the interpretation proffered by the agency is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. The court must defer to agency interpretations that are not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844.
The Court‘s analysis begins with the statutory text. See S. Cal. Edison Co. v. FERC, 195 F.3d 17, 22-23 (D.C. Cir. 1999). Here,
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.
As Plaintiffs point out,
Indeed, particularly where the statute in question regards such a “severe ‘penalty‘” as deportation, Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting States” cite=“149 U.S. 698” pinpoint=“740” court=“U.S.” date=“1893“>Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)); the Court is loathe to recognize an implied power of forced removal from the country, see 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.‘”). Rather, as this Court explained in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 512 (D.D.C. 2020), “when Congress wants to grant the power to expel individuals out of the United States, it does so plainly.” P.J.E.S., 502 F. Supp. 3d at 512; see, e.g.,
The Court also finds that the plain text of
Neither does neighboring
Furthermore, even beyond Sections
Defendants argue, however, that the findings above “ignore[] the purely public health purpose of the statute,” because “[t]he absence of the terms ‘expel’ or ‘removal’ has no special significance in the public health context even if its absence might be meaningful in the immigration context.” Defs.’ Opp‘n, ECF No. 76 at 19-20. They further contend that
Defendants arguments are unpersuasive. First, regardless of whether the words “expel” or “remove” are specific to the immigration context, Defendants do not explain the lack of synonyms of either word within the statute. Moreover, “[i]t is a fundamental principle of statutory interpretation that absent provision[s] cannot
Second, even accepting the government‘s position that the phrase “prohibit . . . the introduction of” means “to intercept or prevent” the “process” of introduction, Defs.’ Opp‘n, ECF No. 76 at 18-19; this phrase also does not encompass expulsion from the United States, nor do any of the definitions provided by the Government contain the word “expel” or synonyms thereof. Rather, to “prohibit . . . the introduction of” merely means that the process of introduction can be halted. And “[e]xpelling persons, as a matter of ordinary language, is entirely different from interrupting, intercepting, or halting the process of introduction.” P.J.E.S., 502 F. Supp. 3d at 512; see also id. at 536 (finding that the Merriam-Webster Dictionary definitions of “prohibit,” “intercept,” and “prevent” each “connote stopping something before it begins, rather than remedying it afterwards“). In other words, “interrupting, intercepting, or halting the process of introduction does [not] inexorably lead to expulsion.” Id. at 512.
However, the Supreme Court routinely points to other statutes as evidence that Congress knows how to legislate in particular ways. See Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“A textual judicial supplementation is particularly inappropriate when, as here, Congress has shown that it knows how to adopt the omitted language or provision. Congress has enacted statutes that expressly include the language [the petitioner] asks us to read in . . . .“); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626 (2018) (explaining that “when Congress wants to mandate [certain] procedures[,] it knows exactly how to do so,” and “Congress has spoken often and clearly” to the issue in other statutes).
The Government next contends that, “rather than specifying that the power to prohibit the introduction of persons is limited to the Nation‘s borders,” Congress expressly delegated the power to issue regulations that accomplish Section 265‘s purpose. Defs.’ Opp‘n, ECF No. 76 at 20. But the government‘s argument is beside the point; if
Finally, in view of the above discussion and finding that
2. Plaintiffs Face Irreparable Injury
“The failure to demonstrate irreparable harm is ‘grounds for refusing to issue a preliminary injunction, even if the other three factors . . . merit such relief.‘” Nat‘l Mining Ass‘n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (RBW) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). “In this Circuit, a litigant seeking a preliminary injunction must satisfy ‘a high standard’ for irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297). The movant must demonstrate that it faces an injury that is “both certain and great; it must be actual and not theoretical,” and of a nature “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and emphasis omitted).
Plaintiffs contend that they are likely to suffer irreparable harm if they are expelled without the opportunity to seek humanitarian relief pursuant to the Title 42 Process. Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 31. Plaintiffs have presented as evidence United States Department of State reports and multiple declarations asserting that the home countries of the proposed class members “are among
The Court finds that Plaintiffs have sufficiently shown they will likely suffer irreparable harm absent a preliminary injunction. Plaintiffs’ alleged injuries would likely be “beyond remediation.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297. First, pursuant to the Title 42 Process, Plaintiffs and the proposed class members face the prospect of expulsion without any opportunity to apply for asylum or withholding of removal. And once expelled from the United States and outside the jurisdiction of the Court, a judicial remedy may be unavailable. See Doe v. Mattis, 928 F.3d 1, 22 (D.C. Cir. 2019) (finding irreparable harm likely to flow from the transfer of a dual citizen detained in Iraq to an unidentified third country because he would then be in the custody of that third country “without any continuing oversight by—or recourse to—the United States“); P.J.E.S., 502 F. Supp. 3d at 545; Tefel v. Reno, 972 F. Supp. 608, 619-20 (S.D. Fla. 1997) (“[T]he Court finds . . . that Plaintiffs and class members would suffer irreparable harm if they are deported to their native countries after having been denied an opportunity to have a hearing on their claims for suspension of deportation.“); Velasquez v. Velasquez, No. 14-cv-1688, 2014 WL 7272934, at *5 (E.D. Va. Dec. 15, 2014) (finding irreparable harm where children could be removed from jurisdiction because that would “frustrate the effort of th[e] Court in resolving the [dispute]“). Second, members of the proposed class also do not seek monetary compensation for their injuries; instead, they seek injunctive and declaratory relief invalidating the Title 42 Process. Unlike economic harm, the harm resulting from expulsion from the United States pursuant to an unlawful policy likely cannot be remediated after the fact. Cf. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295 (D.C. Cir. 2009) (explaining that economic losses are typically not irreparable because compensation can be awarded after a merits determination).
In addition, “[i]t is well-established that acts by [g]overnment agencies in derogation of statutory rights of the public or certain individual members of the public can constitute irreparable injury.” Kirwa v. U.S. Dep‘t of Def., 285 F. Supp. 3d 21, 42 n.22 (D.D.C. 2017) (quoting Gates v. Schlesinger, 366 F. Supp. 797, 800 (D.D.C. 1973)). Here, the Court has explained that Section 265 likely does not authorize expulsion, thereby denying the proposed class members’ the opportunity to seek humanitarian benefits pursuant to the immigration statutes.
Defendants argue, however, that the “inherently individualized nature” of Plaintiffs’ potential harms does not demonstrate that the harms are “likely” to occur in the
Defendants also contend that “the [g]overnment‘s implementation of the Order provides a process for determining a covered alien‘s claim for protection under the Convention Against Torture. Thus, Plaintiffs would not be expelled without some opportunity to seek humanitarian relief.” Defs.’ Opp‘n, ECF No. 76 at 35. However, Defendants do not dispute that Plaintiffs and proposed class members would still be deprived of the protections and procedures provided for under the immigration statutes. See id.
Plaintiffs have thus shown a likelihood of suffering irreparable harm.
3. The Balance of the Equities and Public Interest Favors an Injunction
The balance-of-equities factor directs the Court to “balance the competing claims of injury and . . . consider the effect on each party of the granting or withholding of the requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting Winter, 555 U.S. at 24). “When the issuance of a preliminary injunction, while preventing harm to one party, causes injury to the other, this factor does not weigh in favor of granting preliminary injunctive relief.” Id.; see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast, the balance of equities may favor a preliminary injunction that serves only “to preserve
Plaintiffs contend that issuing a preliminary injunction “would not substantially injure the government and would be consistent with public health” because (1) “families who come to the border . . . can be processed quickly by Border Patrol agents and released to sponsors in the interior,” where they can quarantine and be subject to local health restrictions; (2) “insofar as Defendants choose to detain families upon their apprehension at the border, Defendants operate family detention facilities where the family can be housed together,” as well as tested and quarantined; and (3) “Defendants keep many families in custody for weeks before expulsion,” where the families are tested for COVID-19. Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 34-35. Defendants, in opposition, argue that “an injunction will increase the risk of COVID-19 transmission, which for some could have deadly consequences, and undoing the mitigation measures put in place by the Order is not in the public interest.” Defs.’ Opp‘n, ECF No. 76 at 36.
Here, the Court ultimately finds that the balance of the equities and the public interest weigh in favor of an injunction.
First, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016); see also 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.“); R.I.L-R, 80 F. Supp. 3d at 191 (“The Government ‘cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.‘“). As explained above, the Court has determined that Plaintiffs are likely to succeed on their claim that the Title 42 Process is unlawful. Accordingly, because “there is an overriding public interest . . . in the general importance of an agency‘s faithful adherence to its statutory mandate,” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court finds that Plaintiffs likelihood of success “is a strong indicator that a preliminary injunction would serve the public interest,” Newby, 838 F.3d at 12; see also A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and public can have little interest in executing removal orders that are based on statutory violations . . . .“).
Second, “the public has an interest in ‘ensuring that we do not deliver aliens into the hands of their persecutors,’ Leiva-Perez [v. Holder], 640 F.3d [962,] 971 [(9th Cir. 2011)], and ‘preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’ Nken, 556 U.S. at 436.” East Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 678 (9th Cir. 2021). Here, the Title 42 Process deprives Plaintiffs and the proposed class members of an opportunity to seek humanitarian protections under the asylum and withholding of removal statutes. Proceeding to the merits of this litigation without preliminary injunctive relief thus “risks
Defendants argue, however, that “an injunction will increase the risk of COVID-19 transmission, which for some could have deadly consequences, and undoing the mitigation measures put in place by the Order is not in the public interest.” Defs.’ Opp‘n, ECF No. 76 at 36. According to Defendants, (1) “CBP facilities ‘are not structured or equipped for quarantine or isolation for COVID-19‘“; (2) “[t]he numbers of aliens and the size and capacity of the congregate holding areas are not at all conducive to effective social distancing“; and (3) “CBP is not equipped to provide on-site care to infected persons.” Id. (quoting March Order at 14; Final Rule, 85 Fed Reg. at 56,433). Due to these constraints, Defendants fear that U.S. Border Patrol‘s facilities “may rapidly become overcrowded” if the Title 42 Process is rescinded. Id. But despite the government‘s warnings regarding the capacity of its facilities and staff, the fact remains that “86% of families arriving at the southwest border are already allowed into the United States and processed for regular removal proceedings.” Pls.’ Reply, ECF No. 118 at 22. Moreover, although Defendants have expressed concerns regarding its inability to provide for quarantine space or “effective social distancing” if the Title 42 Process were not in effect, expulsion pursuant to the CDC Orders still results in “plac[ing] families on crowded planes and buses from the Rio Grande Valley,” without first testing the individuals and isolating those who test positive, and transporting them “to other locations in Texas, or places as far away as Arizona and San Diego,” before expelling them or releasing them into the United States. Pls.’ Reply, ECF No. 118 at 25.
Citing an increased number of “enforcement encounters” from April 2020 to January 2021, Defendants further contend that an injunction in this case could “create a ‘pull factor’ leading to additional attempts to enter the United States and in turn more apprehensions.” Defs.’ Opp‘n, ECF No. 76 at 37 (citing Miller Decl., ECF No. 76-2 ¶ 16). However, as Plaintiffs point out, Defendants’ only evidence in support of their prediction is “a 16% increase in encounters of unaccompanied children in the weeks after entry of this Court‘s injunction in P.J.E.S. in November 2020,” which was actually “part of a larger upward trend that predated the injunction by many months—and it was smaller than the percentage increase for each month from April to October 2020, when Title 42 was being enforced against unaccompanied children.” Pls.’ Reply, ECF No. 118 at 26 (citing Menjívar Decl., ECF No. 118-23 ¶ 15). Moreover, though Defendants contend that there has been a “historic” level of enforcement encounters at the border, the statistics Defendants cite “overstate the number of unique individuals arriving at the border.” Reichlin-Melnick Decl.,
Defendants also note that “the pandemic has taken a toll on the CBP workforce,” with many CBP employees contracting COVID-19 and several others dying from the virus. Defs.’ Opp‘n, ECF No. 76 at 37 (citing Miller Decl., ECF No. 76-2 ¶ 18). Defendants assert that “[w]ith personnel on sick leave or quarantining, the ability of CBP to perform its functions is diminished.” Id. (citing Miller Decl., ECF No. 76-2 ¶ 14). The loss of life resulting from COVID-19 contraction is undeniably tragic, and the Court agrees that “promoting public health—especially during a pandemic—is in the public interest.” Nat‘l Immigration Project of Nat‘l Lawyers Guild v. Exec. Off. of Immigration Review, 456 F. Supp. 3d 16, 34 (D.D.C. 2020). However, Defendants provide no evidence that the CBP employees who tested positive for COVID-19 contracted the virus from any of the asylum seekers crossing the border into the United States. And, significantly, since Defendants filed its opposition brief in this matter, vaccines protecting against the risk of serious disease and hospitalization have become widely available in the United States. See Pls.’ Reply, ECF No. 118 at 25. The Court does not doubt that a preliminary injunction issued in this matter would force the government “to make difficult decisions about allocation of resources to mitigate the risks caused by COVID-19.” P.J.E.S., 502 F. Supp. 3d at 549. But in view of the wide availability of testing, vaccines, and other minimization measures, the Court is not convinced that the transmission of COVID-19 during border processing cannot be significantly mitigated. Indeed, the government has successfully implemented mitigation measures with regard to processing unaccompanied minors in order to minimize risk of COVID-19 transmission. See Pls.’ Reply, ECF No. 118 at 21-22.
Finally, Defendants argue that “[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.” Defs.’ Opp‘n, ECF No. 76 at 38 (quoting Maryland v. King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the Title 42 Process is likely unlawful, and “[t]here is generally no public interest in the perpetuation of an unlawful agency action.” Newby, 838 F.3d at 12.
4. The Court Will Not Require Plaintiffs to Post a Bond
5. The Court Shall Stay the Preliminary Injunction
Defendants request that the Court stay its Order enjoining the Title 42 Process for 14 days “to give Defendants sufficient time to explore their appellate options.” Defs.’ Opp‘n, ECF No. 76 at 39. Plaintiffs do not oppose Defendants’ request. Pls.’ Reply, ECF No. 118 at 30. Accordingly, the Court shall stay its Order for 14 days from the date of its entry. However, the Court declines to stay this decision pending appeal for substantially the same reasons as those articulated in this Opinion.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Class Certification, ECF No. 23, and GRANTS Plaintiffs’ Motion for Preliminary Injunction, ECF No. 57. The preliminary injunction shall be stayed for 14 days. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 16, 2021