REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES v. NOEMREFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES v. NOEM
MEMORANDUM OPINION
On January 20, 2025, the President issued a proclamation declaring that “the current situation at the southern border qualifies as an invasion” because “the sheer number of aliens entering the United States has overwhelmed the system” and is “prevent[ing] the Federal Government from obtaining operational control of the border.” Proclamation 10888, Guaranteeing the States Protection Against Invasion, 90 Fed. Reg. 8333, 8334–35 (Jan. 20, 2025) (the “Proclamation“). The Proclamation, in effect, prevents anyone who crosses the southern border of the United States at any place other than a designated port of entry, as well as anyone who enters anywhere else (including at a designated port of entry) without a visa or without extensive medical information, criminal history records, and other background records, from applying for asylum or withholding of removal. On Defendants’ telling, this dramatic step was necessary to
The Proclamation contains five operative sections, all of which—along with the Department of Homeland Security‘s implementing guidance—are at issue in this case:
The first and second sections operate together. The first “direct[s] that entry into the United States” on or after January 20, 2025, of “aliens engaged in the invasion across the southern border” is “suspended until [the President] issue[s] a finding that the invasion . . . has ceased.” Proclamation, § 1. The implementing guidance clarifies that this group includes aliens who enter the United States “between the ports of entry on the southern land border.” Dkt. 52-1 at 5. The second, in turn, restricts those individuals from invoking any provision of the Immigration and Nationality Act (“INA“),
The third section relies on the same two sources of statutory authority but cuts a broader geographic swath. It applies regardless of the point of entry, and it suspends “entry into the United States of” any alien who, after January 20, 2025, “fails, before entering the United States, to provide Federal officials with sufficient medical information and reliable criminal history and background information” to permit the government to determine, among other things, whether the alien has “received vaccination against vaccine-preventable diseases,” has a communicable disease or dangerous physical or mental disorder, is a drug abuser, has a disqualifying conviction, or poses a threat to national security or public safety, see
The fourth section does not rely on any statutory authority but, rather, invokes Article II and Article IV, Section 4 of the Constitution. Proclamation, § 4. As relevant here, Article II vests “[t]he Executive Power” of the United States in the President, while Article IV, Section 4 guarantees that “[t]he United States . . . shall protect each [State in the Union] against Invasion.” Relying on these constitutional provisions, the Proclamation “suspend[s] physical entry of any alien engaged in the invasion across the southern border of the United States” and “direct[s] the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, to take appropriate actions
Finally, the fifth section directs “[t]he Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, [to] take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border” after January 20, 2025. Proclamation, § 5. That provision relies on both the statutory and the constitutional authorities invoked in support of the preceding sections, and “delegate[s]” the President‘s relevant constitutional authority to the Secretaries of Homeland Security and State and the Attorney General for purposes of effectuating the Proclamation. Id.
Plaintiffs are thirteen individuals—A.M., Z.A., T.A., A.T., N.S., D.G., B.R., M.A., G.A., F.A., K.A., Y.A., and E.G.—and three nonprofit organizations—Refugee and Immigrant Center for Education and Legal Services (“RAICES“), Las Americas Immigrant Advocacy Center (“Las Americas“), and the Florence Immigrant & Refugee Rights Project (“Florence Project“). The thirteen individual plaintiffs, all of whom are or were subject to the Proclamation, have allegedly “suffered past persecution and/or fear future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion[s],” or have allegedly “suffered or fear torture.” Dkt. 12 at 1. They allege that they have fled persecution in Afghanistan, Ecuador, Cuba, Egypt, Brazil, Turkey, and Peru. Dkt. 11 at 9–10 (Am. Compl. ¶¶ 12–19). Some of the individual plaintiffs (N.S., D.G., F.A., K.A., Y.A., and E.G.) have already been removed from the United States—or, as Defendants sometimes call it, “repatriated” pursuant to the Proclamation, either to their own country or to third countries like Panama. See Dkt. 43-3 at 4–5 (Hollinder Decl. ¶¶ 6, 10); Dkt. 43-7 at 4, 6 (Huettl Decl. ¶¶ 8, 21). Other individual plaintiffs (A.M., Z.A., T.A., A.T., B.R., M.A., and G.A.) are still in the United States. See Dkt. 43-3 at 3 (Hollinder Decl. ¶ 4); Dkt. 43-7 at 4–5 (Huettl Decl. ¶¶ 10, 14, 16). The individual plaintiffs seek to proceed both individually and on behalf of a putative class of all others who “were, are, or will be subject to” the Proclamation. Id. at 27 (Am. Compl. ¶ 86). The three organizational plaintiffs provide legal services to individuals seeking asylum in the United States and other forms of relief from immigration proceedings. Id. at 6–8 (Am. Compl. ¶¶ 9–11).
The fifteen defendants include President Trump, along with three cabinet-level Departments (the Departments of Homeland Security, State, and Justice); three components of the Department of Homeland Security (Customs and Border Patrol (“CBP“), Immigration and Customs Enforcement (“ICE“), and United States Citizenship and Immigration Services (“USCIS“)); and multiple agency officials sued in their official capacities (collectively, the “Agency Defendants“). Dkt. 11 at 11–13 (Am. Compl. ¶¶ 20–35).
Plaintiffs allege that the Proclamation and its implementation are unlawful and mark a dramatic break with decades of Executive Branch precedent. Dkt. 11 at 4 (Am. Compl. ¶ 3). Among other things, they allege that the Proclamation and its implementation supplant the INA with a non-statutory immigration regime, which violates (1) the asylum statute, which gives aliens “physically present in the United States” the right to apply for asylum, “irrespective of such alien‘s status,”
Most fundamentally, Plaintiffs posit that the authorities that Defendants invoke in support of the Proclamation and implementing guidance do not authorize Defendants’ actions. They challenge Defendants’ reliance on
Finally, Plaintiffs assert a series of claims under the Administrative Procedure Act (“APA“),
Before the Court are Plaintiffs’ motion to certify a class, Dkt. 13; Plaintiffs’ motion for a preliminary injunction, Dkt. 14; Plaintiffs’ motion for summary judgment, Dkt. 51, which the Court consolidated with the motion for preliminary relief, see Min. Order (Feb. 26, 2025); and Defendants’ cross-motion for summary judgment, Dkt. 44. Given the time-sensitive nature of Plaintiffs’ challenges to impending “repatriations” and removals, and given the difficult questions posed by Plaintiffs’ request that the Court grant relief to those who
For the reasons that follow, the Court concludes that neither the INA nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. But the INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II‘s Vesting Clause or Article IV‘s Invasion Clause be read to grant the President or his delegees authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated. As the Framers understood, “every breach of the fundamental laws,” even when “dictated by necessity,” undermines respect for the rule of law and “forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent or palpable.” The Federalist No. 25, at 167 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Here, nothing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance. An appeal to necessity cannot fill that void.
The Court will, accordingly, **GRANT** in part Plaintiffs’ motion for summary judgment, Dkt. 51; will **GRANT** in part Plaintiffs’ motion to certify a class, Dkt. 13, and will **DEFER** ruling on the remaining portions of the parties’ cross-motions. The Court will also **DIRECT** that the parties submit a joint status report proposing a schedule for further briefing on whether the Court can and should grant relief to those Plaintiffs and putative class members who are no longer present in the United States.
TABLE OF CONTENTS
I. BACKGROUND.... 10
A. Statutory and Regulatory Background. 10
1. Admissibility and Inadmissibility. 10
2. Statutory Protections: Asylum, Withholding of Removal, and CAT Protection. 12
3. Formal and Expedited Removal Procedures. 16
B. Prior Administrative Actions 19
C. Challenged Actions. 26
1. The Proclamation 27
2. Implementing Guidance. 28
II. LEGAL STANDARD 37
III. ANALYSIS 38
A. Threshold Issues. 38
1.
2. Statutory Jurisdiction 56
3. Causes of Action 61
B. Merits 70
1. “212(f) Direct Repatriation” and “212(f) Expedited Removal” 72
2. Suspension of Asylum 89
3. Suspension of Withholding of Removal 98
4. Extra-Regulatory CAT Protection Procedures. 100
C. Class Certification.. 103
1. Rule 23(a). 105
2. Rule 23(b)(2). 112
D. Remedy 113
1. Vacatur 114
2. Declaratory Judgment. 117
3. Injunction 117
E. Request for Stay Pending Appeal 125
CONCLUSION 128
I. BACKGROUND
A. Statutory and Regulatory Background
The INA sets out a comprehensive scheme that governs entry and removal of aliens from the United States. Among other things, it specifies which aliens may lawfully enter the United States, see, e.g.,
1. Admissibility and Inadmissibility
The INA sets forth criteria for determining whether an alien seeking admission is admissible or inadmissible. Under the INA, no “immigrant“—other than a refugee admitted at the discretion of the Attorney General and certain returning resident immigrants, see
Aliens are also inadmissible if they were previously ordered removed or if they were previously unlawfully present in the United States for an extended period. With certain exceptions, an alien who has
In addition to the statutory limitations, “Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances.” Trump v. Hawaii, 585 U.S. 667, 683 (2018). “The principal source of that authority, § 1182(f), enables the President to ‘suspend the entry of all aliens or any class of aliens’ whenever he ‘finds’ that their entry ‘would be detrimental to the interests of the United States.‘” Id. (quoting
Inevitably, some aliens gain entry to the United States without being lawfully admitted. Aliens who enter without being admitted are usually “remov[able]” upon the order of “an immigration officer,”
2. Statutory Protections: Asylum, Withholding of Removal, and CAT Protection
Asylum is the most protective of these types of relief. The INA authorizes the Attorney General and Secretary of Homeland Security (“Secretary“) to grant asylum to any “alien who has applied for asylum in accordance with the requirements and procedures established by the” Attorney General or Secretary if “such alien is a refugee within the meaning of” the INA.
Asylum applications are governed by the INA and its implementing regulations. Under the INA, any alien “physically present” or “who arrives in the United States” “may apply for asylum,” regardless of “whether or not” the alien arrived “at a designated port of arrival” and “irrespective of such alien‘s status.”
The Attorney General and the Secretary are tasked with determining whether an alien qualifies for asylum, and their authority to grant or to deny asylum is, for the most part, discretionary. See
An alien who is ineligible for asylum or who is denied asylum may still apply for withholding of removal and CAT protection. An alien is eligible for withholding of removal if he or she can show “that it is more likely than not that he or she would be persecuted on account of” a protected ground if removed from the
The Convention Against Torture, as implemented in the United States, provides another avenue of protection for aliens facing removal. It is the “policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”
3. Formal and Expedited Removal Procedures
Before 1996, “an individual in the United States without proper documentation could be considered ‘deportable,’
The second type of proceedings, known as “expedited removal,” affords considerably less process to a subset of aliens. The INA mandates the use of expedited removal for aliens who are arriving in the United States without valid entry documents. See
officer determines that the alien has a credible fear, “the alien [is] detained for further consideration of the application for asylum,”
B. Prior Administrative Actions
The Proclamation at issue in this case is not the first executive action adopted to restrict access to asylum for those crossing the southern border, although the two most analogous actions differ from the present approach in important respects.
In 2018, President Trump issued a proclamation that, like the Proclamation at issue here, relied on § 1182(f) and § 1185(a) to declare that “[t]he entry of any alien into the United States across the international boundary between the United States and Mexico,” at any point other than a designated port of entry, “is hereby suspended and limited” for a period of ninety days or until “an agreement permits the United States to remove aliens to Mexico” pursuant to
Second, it did not purport to have any stand-alone effect. It was, of course, already unlawful to enter the United States outside of a designated port of entry, and so the suspension of entry alone had no separate legal effect on the status of any of the aliens it covered.
Relying on their authority under
Additional limitation on eligibility for asylum. For applications filed after November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order. This limitation on eligibility does not apply if the proclamation or order expressly provides that it does not affect eligibility for asylum, or expressly provides for a waiver or exception that makes the suspension or limitation inapplicable to the alien.
The 2018 Rule was short lived. Ten days after the rule was promulgated, a district court issued a temporary restraining order barring its implementation, see E. Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838 (N.D. Cal. 2018); that court subsequently issued a preliminary injunction further barring implementation, see E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018); and the Court of Appeals for the Ninth Circuit affirmed that decision, see E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020), as modified by E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021).
While the Ninth Circuit litigation addressed the plaintiffs’ motion for preliminary relief, this Court considered the lawfulness of the 2018 Rule on the merits in O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019). After extensive briefing and
Even assuming that the phrases “may not apply” and “are ineligible” reflect some subtle distinction in meaning, the relevant question is not whether the Rule uses the exact same words as in the statutory prohibition. The question, instead, is whether the Rule is “consistent with,”
8 U.S.C. § 1158(b)(2)(C) , the statutory mandate that any alien present in the United States “may apply for asylum,” regardless of “whether or not” the alien entered the United States “at a designated port of arrival,”8 U.S.C. § 1158(a)(1) . Defendants do not even attempt to satisfy that test, nor could they.
Id. at 149. Although Defendants initially appealed the Court‘s decision in O.A., the parties later agreed to dismiss the appeal. See O.A. v. Biden, 2023 WL 7228024 (D.C. Cir. Nov. 1, 2023).
That is how things stood until June 2024, when President Biden issued a proclamation, which, like the 2018 Proclamation, invoked
Like the 2018 Proclamation, the 2024 Proclamation was given operative effect through an interim final—and, later, a final—rule promulgated by the Attorney General and the Secretary. And like the 2018 Rule, the 2024 interim final rule, see
In adopting this rule, the Attorney General and Secretary acknowledged certain limitations contained in the relevant statutory authorities. First and foremost, they observed that “the [2024] Proclamation itself does not and cannot affect noncitizens’ right to apply for asylum, their eligibility for asylum, or asylum procedures.” Id. at 81163. As they explained, this “recognition that”
Second, the Attorney General and Secretary recognized that their statutory authority to set “additional limitations and conditions” on eligibility for asylum pursuant to
Finally, while reserving their objections to the decision, the Attorney General and Secretary recognized that the Ninth Circuit had concluded that the 2018 Rule was invalid because any regulation adding limitations to asylum eligibility that do not appear in the statute must be “consistent with” the statute,
The [2024 Rule] is within the scope of the Departments’ authority and does not conflict with the statutory requirement that noncitizens “physically present in the United States” be permitted to apply for asylum because it adds a limitation on asylum eligibility as permitted under
8 U.S.C. 1158(b)(2)(C) and (d)(5)(B). The limitation is not a sweeping categorical bar that would preclude a grant of asylum solely based on manner of entry, which some courts have found to conflict with .8 U.S.C. 1158(a)(1) . E.g., East Bay Sanctuary Covenant v. Biden (East Bay III), 993 F.3d 640, 669–70 (9th Cir. 2021) (concluding that a prior regulation that enacted a bar on asylum eligibility for those who entered the United States between designated POEs was “effectively a categorical ban” on migrants based on their method of entering the United States, in conflict with . . .8 U.S.C. 1158(a)(1) ).
89 Fed. Reg. at 81169–70.
In May 2025, this Court (Contreras, J.) struck down portions of the 2024 Rule. See Las Americas Immigrant Advoc. Center v. U.S. Dep‘t of Homeland Sec., ___ F. Supp. 3d ___, 2025 WL 1403811 (D.D.C. May 9, 2025). First, the Court held that the rule‘s “limitation on asylum eligibility” for aliens who arrive in the United States outside a port of entry “exceed[ed] the authority that Congress conferred on the Secretary of Homeland Security to ‘establish additional limitations and conditions’ on asylum that are ‘consistent with’ section 1158 of the INA” because “place-of-entry-based bans” are inconsistent with § 1158‘s instruction that “asylum is available ‘whether or not’ a noncitizen arrives ‘at a designated port of entry.‘” Id. at *14–15 (quoting
C. Challenged Actions
The challenged actions in this case differ from the 2018 and 2024 Proclamations and Rules in several significant respects. Most notably, unlike the 2018 and 2024 Rules, which relied on the statutory delegation to the Attorney General and the Secretary of authority to establish, “by regulation,” “additional limitations and conditions” on eligibility for asylum,
1. The Proclamation
After describing the difficulties posed by the “ongoing influx” of millions of aliens across the southern border of the United States,” the Proclamation contains five operative sections. Proclamation, 90 Fed. Reg. 8333–36. The first two sections apply to aliens who are “engaged in the invasion across the southern border.” Proclamation, §§ 1–2. The first, entitled “Suspension of Entry,” proclaims that “the entry into the United States on or after the date of this order of aliens engaged in the invasion across the southern border is detrimental to the interest of the United States” and invokes
The third section imposes similar restrictions for “any alien who fails, before entering the United States, to provide Federal officials with sufficient medical information and reliable criminal history and background information as to enable fulfillment of the requirements” in
The fourth section take a different approach to the same problem. It also suspends the entry of those “engaged in the invasion across the southern border,” but rather than rely on any statutory authority to do so, this section relies on “the authorities provided to [the President] under Article II of the Constitution of the United States, including [the President‘s] control over foreign affairs, and [his authority] to effectuate the guarantee of protection against invasion required by Article IV, Section 4.” Proclamation, § 4. The fourth
Finally, the fifth section directs the Secretary of Homeland Security, acting in coordination with the Secretary of State and the Attorney General, to “take all appropriate actions to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States on or after the date of this order.” Proclamation, § 5. Combining the sources of authority invoked in support of the preceding sections, this section relies on
2. Implementing Guidance
In response to the directive that the Secretary “take all appropriate action” to implement the Proclamation, id. § 5, the Department of Homeland Security has issued implementing guidance regarding the procedures to follow with respect to “alien[s] subject to the Proclamation,” Dkt. 52-1 at 13. That guidance includes emails sent to U.S. Border Patrol (“USBP“) personnel explaining how to process aliens subject to the Proclamation; an Office ofField Operations memorandum describing how to implement active executive orders, including the Proclamation; and USCIS training materials instructing asylum officers on how to conduct credible fear interviews for aliens subject to the Proclamation.
a. U.S. Border Patrol Emails
The administrative record includes three emails containing USBP guidance. The first email has the subject line “Update Field Guidance for Southern Border RE: 212(F) Presidential Proclamation Guaranteeing the States Protection Against Invasion” and was sent on February 4, 2025, for “disseminat[ion] . . . to all Southwest Border Sectors.” Dkt. 52-1 at 5. As one might expect from guidance directed at border agents on the southern border, it is concerned primarily with the first category of aliens identified in the Proclamation: those “engaged in the invasion across the southern border.” See Dkt. 52-1 at 5; see also Proclamation, § 2. For purposes of implementing the 2025 Proclamation, the guidance defines an “illegal alien invading the United States” to mean “an alien who crosses between the ports of entry on the southern land border.” Id. The guidance directs that “aliens invading the United States“—i.e., those subject to the Proclamation—“are not permitted to apply for asylum.” Id. (emphasis in original).
The second email, also sent on February 4, 2025, has the subject line “Field Guidance for Northern and Coastal Borders RE: 212(F) Presidential Proclamation Guaranteeing the States Protection Against Invasion” and was sent “to all Northern and Coastal Border Sectors.” Dkt. 52-1 at 13. This guidance, in contrast, focuses on the second category of aliens identified in the Proclamation: those “who fail[], before entering the United States, to provide Federal officials with sufficient medical information and reliable criminal history and background information,” Proclamation, § 3. See Dkt. 52-1 at 13. The guidance provides that “the entry of aliens who [have] failed to provide such information is suspended, and they are restricted from invoking provisions of the INA, including asylum, that would permit their continued presence.” Id.(emphasis in original). The guidance also provides that aliens with valid travel documents have
Both February 4 emails then describe the procedures to be used when processing individuals subject to the Proclamation. Those subject to the Proclamation “may be processed” in one of two ways: “as a 212(f) Direct Repatriation” or by “212(f) Expedited Removal” (which is sometimes referred to as “Expedited Removal – Per 212(F)“). Id. at 5–6, 13–14. According to Defendants, the difference between the two pathways is that “[a]liens subject to expedited removal procedures are served with a Notice to Alien Ordered Removed and issued an Expedited Removal Order (Form I-860),” while “[a]liens processed for repatriation are not issued a removal order.” Dkt. 59 at 7. Beyond the issuance of a notice and order, however, Defendants fail to identify any difference between the two “212(f)” procedures. According to Defendants, issuance of a removal order matters only because “repatriations do not carry the same immigration or criminal consequences as expedited removal.” Id. at 8; see also
The February 4 emails also instruct officers to omit several steps from the INA‘s
The final email included in the administrative record was sent on February 19, 2025, seemingly to all border sectors, to provide them with the “update” that aliens could now be sent to “several Central American countries” with which the United States “has enacted agreements” pursuant to which those countries have agreed “to receive third country nationals who have illegally entered” the United States. Dkt. 52-1 at 20. To take advantage of those agreements, the February 19 email advises immigration officers that individuals subject to the Proclamation can be removed by means of “212(f) Direct Repatriations to Third Countr[ies].” Id. at 21. Before removal, CBP “will notify” anyone who is not being transferred to his or her country of nationality of the “country [to which he or she] will be sent” by giving that person a “212(f) Tear Sheet.” Id. at 20, 25. Aliens “who manifest a fear of the country to which CBP intends to [remove] them” will be referred for CAT screening with respect to that country. Id. at 20. If the CAT screening is negative, CBP will “continue with transfer of the alien to the designated country.” Id. If the CAT screening is positive, CBP can either “designate another third countryfor removal” or place the person into full EOIR proceedings for adjudication of his or her CAT claim. Id. If another third country is designated, and “the alien manifests a fear for the newly designated country, CBP will again refer the case to USCIS for another CAT screening relative to the newly designated country,” and the process starts again. Id.
b. Office of Field Operations memorandum
The administrative record also includes a February 28, 2025 memorandum sent to various officials in the Office of Field Operations from Ray Provencio, the Acting Executive Director of Admissibility and Passenger Programs in the Office of Field Operations. Dkt. 52-1 at 26. According to the memorandum, the Proclamation “leverage[s] INA 212(f) authorities” to “provide[] the ability for U.S. Customs and Border Protection personnel to immediately and efficiently repatriate undocumented aliens that are not excepted at all U.S. ports of entry.” Id. It also includes a “Muster” with “[u]pdates regarding certain non-arriving aliens” that reiterates many of the instructions in the emails discussed above and affirms that CAT screening will remain available for those who affirmatively manifest a fear to the immigration officer. See, e.g., id. at 28 (“CBP officers will not provide Forms I-867A and I-867B and will not provide individualized
c. USCIS training materials
The administrative record also contains training materials provided to USCIS personnel, instructing them on the new procedures for CAT assessments. See Dkt. 52-1 at 38–74. Those documents contain details about specific CAT screening procedures—including which forms to use and how to fill them out. Essentially, the guidance instructs USCIS asylum officers to use amuch higher screening standard for CAT claims, which departs from the standard set forth in the governing regulations.
Under the governing regulations, asylum officers conduct a credible fear screening, at which the standard of proof asks whether there is “a significant possibility” that it is more likely than not that the individual will be tortured.
D. Procedural History
The organizational plaintiffs filed this action on February 3, 2025, see Dkt. 1, and promptly amended their complaint to add the individual plaintiffs, see Dkt. 11. Plaintiffs also promptly filed a motion for class certification, Dkt. 13; a motion for a preliminary injunction,Dkt. 14; and an emergency motion to stay the removal of the individual plaintiffs who still remained in the United States, Dkt. 15.
The Court scheduled a hearing for the next day, February 20, 2025. Min. Entry (Feb. 20, 2025). At the hearing, the parties informed the Court that “it appear[ed]” that one of the individual plaintiffs—N.S.—had likely been removed from the United States that morning. Dkt. 19 at 15 (Feb. 20, 2025 Hrg. Tr. 15:5–6). To “preserve the Court‘s jurisdiction” while the parties briefed the emergency motion, the Court entered an administrative stay prohibiting the government from removing any individual plaintiffs still in the United States pending a hearing on the emergency motion. Id. (Feb. 20, 2025 Hrg. Tr. 13:14–19). Defendants subsequently filed a response representing that they will not remove any of the individual plaintiffs pursuant to the Proclamation during the pendency of this case, see Dkt. 21 at 2, and the Court, relying on that representation, denied Plaintiffs’ emergency motion as moot,
The parties agreed to consolidation under
The Court held a hearing on those motions on April 29, 2025. See Min. Entry. At the hearing, the Court ordered supplemental briefing from Defendants on two issues: first, whether an alien subject to the Proclamation could file an affirmative asylum application outside the context of any removal proceedings and whether doing so would prevent his or her removal or repatriation, and, second, what the differences were between expedited removal under the Proclamation (“212(f) Expedited Removal“) and repatriation under the Proclamation (“212(f) Direct Repatriation“). See Dkt. 59. The Court also, at Plaintiffs’ request, granted leave to file a supplemental brief on whether
Finally, after the close of briefing, the Court concluded that it required additional information from both Plaintiffs and Defendants to resolve the pending motions and to ensure that the record is complete for purposes of any appeal. The Court ordered Plaintiffs to file supplemental declarations from each individual plaintiff “indicating whether he or she provided Federal officials with the medical information, criminal history, and other background information required by the Proclamation,” Min. Entry (May 13, 2025), and gave Defendants an opportunity to respond to those declarations, Min. Entry (May 20, 2025). The Court also ordered Defendants to compile and produce the complete administrative record. See id. The additionalmaterials have now been filed, see Dkt. 64; Dkt. 65; Dkt. 67, and the case is now ripe for decision as to persons who have not yet been removed from the United States.
II. LEGAL STANDARD
In the normal course, summary judgment may be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as matter of law.” Air Transp. Ass‘n of Am., Inc. v. Nat‘l Mediation Bd., 719 F. Supp. 2d 26, 31–32 (D.D.C. 2010), aff‘d, 663 F.3d 476 (D.C. Cir. 2011). On the other hand, “[i]n a case involving review of a final agency action under the Administrative Procedure Act, . . . the Court‘s role is limited to reviewing the administrative record, so the standard set forth in
Under the APA, “agency actions will be set aside if they are contrary to law—if, in other words, they are not ‘authorized by the statutory text,‘” Fisher v. Pension Benefit Guar. Corp., 151 F. Supp. 3d 159, 165 (D.D.C. 2016) (quoting Gonzales v. Oregon, 546 U.S. 243, 255 (2006)), or some other source of lawful authority. In reviewing the executive‘s reliance on statutory authority, the Court should pay “[c]areful attention to the judgment of the Executive Branch” to the extent it “help[s] inform that inquiry” and should “respect” lawful delegations of “authority to an agency.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 413 (2024). But the meaning of the relevant statutory text is ultimately a question for the Court, which “must exercise [its] independent judgment” in interpreting the law. Id. at 412.
Nor does the fact that “the ‘executive‘s’ action . . . is essentially that of the President . . . insulate the entire executive branch from judicial review.” Chamber of Com. of the U.S. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (”Reich“). To the contrary, “it is now well established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President‘s directive.‘” Id. (citing Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and concurring in the judgment)); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). It is well-settled, moreover, that even though the President is not an “agency” subject to suit under the APA, his “actions may still be reviewed for constitutionality,” Franklin, 505 U.S. at 801 (citing Youngstown, 343 U.S. at 579); see also Dalton v. Specter, 511 U.S. 462, 469 (1992).
III. ANALYSIS
A. Threshold Issues
1. Article III Standing
“Because Article III limits federal judicial jurisdiction to cases and controversies, see
a. Individual Plaintiffs in the United States
The individual plaintiffs still present in the United States (A.M., Z.A., T.A., A.T., B.R., M.A., and G.A.) have established standing to challenge the bar on asylum and withholding of removal contained in the Proclamation and implementing guidance, as well as the guidance‘s extra-regulatory procedures for those seeking CAT protection. They have standing because the Proclamation and implementing guidance make it more difficult for them to access these forms of relief. Defendants do not dispute that asylum, withholding of removal, and CAT protection are valuable forms of relief that protect non-U.S. citizens from removal to countries where they may face persecution or torture. Asylum is particularly valuable because it affords the asylee benefits above and beyond avoiding removal, including a path to lawful permanent resident status and citizenship. As a result, the bars on asylum and withholding of removal and the extra-regulatory procedures for adjudicating CAT claims each injure the individual plaintiffs still in the United States because they make it more difficult (or, with respect to asylum and withholding of removal, impossible) for those plaintiffs to access these valuable forms of relief.6 See Lujan,
504 U.S. at 561–62 (holding that “there is ordinarily little question” that a plaintiff has standing if she herself is “an object of the action . . . at issue“). Each individual
Defendants do not dispute that the individual plaintiffs still in the United States are suffering a cognizable injury caused by the Proclamation and the implementing guidance. Instead, they argue that the individual plaintiffs’ injuries are non-redressable based on
removal proceedings,
To start, Defendants’ redressability argument ignores the fact that
Defendants’ redressability argument also fails because
Starting with the availability of APA vacatur, Defendants’ contention that
Here, Defendants’ argument fails even before the Court applies either presumption. The APA mandates that a “reviewing court shall . . . set aside agency action . . . found to be . . . not in accordance with law [or] contrary to constitutional . . . power,”
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
Section
Defendants respond by noting that
To be sure, the word “restrain” is, at times, given a broader meaning, which “captures orders that merely inhibit acts,” Direct Mktg. Ass‘n v. Brohl, 575 U.S. 1, 12-13 (2015) (emphasis omitted); see also Aleman Gonzalez, 596 U.S. at 549. But statutory terms are best construed in light of the company that they keep, see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008), and, here,
The Court, accordingly, concludes that
The same is true of declaratory relief. Here, Defendants candidly concede that the D.C. Circuit rejected their capacious reading of
That resolves the question. It bears note, however, that six Supreme Court justices have expressed the same view, albeit in separate opinions in different cases. Most recently, Justice Alito wrote for the plurality in Nielsen v. Preap that the district courts have “jurisdiction to entertain . . . request[s] for declaratory relief,” notwithstanding
Although the Supreme Court has not had occasion to address the application of
In reaching these conclusions, the Court relied on two features of the statutory text that bear on Defendants’ argument here. First, the Court noted that nothing in the language of
Given
At this point, it is worth pausing to note that the Supreme Court not only read
Defendants raise one, final redressability argument, which merits only brief discussion. They argue that the Court lacks authority to enjoin the President, Dkt. 55 at 19 (citing Mississippi v. Johnson, 71 U.S. 475, 501 (1867)), and that, as a result, setting aside the implementing guidance will not redress the Plaintiffs’ asserted injuries. On Defendants’ telling, no matter what the Court does, the Proclamation will remain in effect and, even if the implementing guidance is enjoined or vacated, the Proclamation will continue to preclude immigration officials from considering Plaintiffs’ requests for asylum or withholding of removal. Justice Scalia spoke directly to this issue in his concurring opinion in Franklin v. Massachusetts. He wrote:
None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President‘s directive, see, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 572 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)—just as unlawful legislative action can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see, e.g., Powell v. McCormack, 395 U.S. 486, 503-06 (1969); Dombrowski v. Eastland, 387 U.S. 82 (1967); Kilbourn v. Thompson, 103 U.S. 168 (1881), but by enjoining those congressional (or executive)
agents who carry out Congress‘s directive. Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct the President to take a specified executive act or the Congress to perform particular legislative duties.
505 U.S. at 828-29 (Scalia, J., concurring in part and concurring in the judgment). D.C. Circuit precedent, moreover, is to the same effect. As the D.C. Circuit observed in Reich: “Even if the Secretary were acting at the behest of the President, this ‘does not leave the courts without power to review the legality’ of the action and ‘to compel subordinate executive officials to disobey illegal Presidential commands.‘” 74 F.3d at 1328 (quoting Soucie v. David, 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971)). Because the President does not personally take “the final step necessary” to reject a request for asylum or withholding of removal, much less to repatriate or to remove an individual from the United States, this is not one of those rare cases in which the courts are powerless to review executive action. Pub. Citizen v. U.S. Trade Rep., 5 F.3d 549, 552 (D.C. Cir. 1993). As a result, the question of how most appropriately to effectuate the Court‘s decision is a question of remedy and not redressability.
h. Organizational Plaintiffs
The organizational plaintiffs also have standing to challenge the Proclamation and implementing guidance, including the restrictions on asylum and withholding of removal, the use of “212(f) Direct Repatriations” and “212(f) Expedited Removal,” and the extra-regulatory procedures for adjudicating CAT protection claims.
An organization “can assert standing on its own behalf, on behalf of its members or both.” Equal Rts. Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, the organizational plaintiffs rely on the first approach, which requires that they, “like an individual plaintiff, show ‘actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.‘” Id. (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). To meet this burden, Plaintiffs rely on the framework recognized in Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). In that case, a fair housing organization claimed that the defendant‘s discriminatory housing practices “perceptibly impaired” the organization‘s ability to “provide counseling and referral services for low- and moderate-income homeseekers,” forcing it “to devote significant resources to identify and counteract” the alleged discriminatory practices. Id. The Supreme Court held that the organization had standing to challenge the housing practices. As the Court explained, “there [could] be no question that the organization . . . suffered injury in fact” because it established a “concrete and demonstrable injury to the organization‘s activities—with the consequent drain on the organization‘s resources—[that] constitute[d] far more than simply a setback to the organization‘s abstract social interests.” Id.
The D.C. Circuit “has applied Havens Realty to justify organizational standing in a wide range of circumstances.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (collecting cases); see also 13A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3531.9.5 (3d ed. 2018) (same). But Havens is not without limits. When “a plaintiff challenges the government‘s ‘unlawful regulation (or lack of regulation) of someone else,’ ‘standing is not precluded,
Here, the organizational plaintiffs have satisfied this burden. RAICES, Las Americas, and Florence Project have each identified various ways that the Proclamation and implementing guidance have interfered with their core business activity of providing direct legal services to individuals at risk of removal, including asylum seekers. The declaration submitted by RAICES’ legal director, for example, attests that the organization “provides free and low-cost immigration legal services to underserved immigrant children, families and individuals” in support of its mission to “defend the rights of immigrants and refugees.” Dkt. 14-1 at 1 (Hidalgo Decl. ¶ 3). The Proclamation and guidance interfere with that work because “the process of summarily expelling noncitizens without the opportunity for credible fear interviews frustrates and impedes RAICES from [its] fundamental day-to-day work of representing noncitizens with protection needs.” Id. (Hidalgo Decl. ¶ 4). The Proclamation, for example, has greatly diminished RAICES’ ability to provide legal services to those who would ordinarily proceed through the expedited removal process. Last year, RAICES provided legal services to about 15 such people every week. See id. at 2 (Hidalgo Decl. ¶ 9). Since the Proclamation went into effect on January 20, those opportunities have vanished. RAICES has “made contact with” only a few aliens who entered the country after that date, and “none of those people have been permitted to seek protection.” Id. at 3 (Hidalgo Decl. ¶ 14). RAICES has had to “divert resources” to respond to the Proclamation and guidance by, among other things, “searching for alternative ways to contact detained individuals and families” and “training staff.” Id. at 3 (Hidalgo Decl. ¶ 17). As a result, the organization has incurred additional expenses and has faced new obstacles in pursuing its core business activity. Id. at 4 (Hidalgo Decl. ¶ 18).
Similarly, Las Americas has shown that the Proclamation and guidance have frustrated and will continue to frustrate its ability to provide legal services to immigrants and will impose tangible burdens on the organization. The declaration submitted by Las Americas’ legal services director describes the organization‘s mission and the activities that it pursues to support that mission. See generally Dkt. 14-2 (Babaie Decl.). Las Americas’ mission is “to provide high-quality legal services to
Yet, since the Proclamation was issued, the organization has “not received calls for [a credible fear interview] consultation from anyone who entered the country.” Id. at 4 (Babaie Decl. ¶ 19). Indeed, “[i]n response to the enforcement of the Proclamation, it is fair to say that all of Las Americas’ work has been forced to change.” Id. at 5 (Babaie Decl. ¶ 24). The Proclamation has also “forced [the organization] to divert limited resources away from individual representation” to find alternative ways to serve its missions, including, for example, “assisting families trying to find the location of loved ones who attempt[] to seek protection at the border.” Id. at 6 (Babaie Decl. ¶ 31). Finally, the Babaie declaration explains that 85% of the organization‘s revenue comes from grants, some of which “have requirements regarding the number of people [the organization] serve[s] as well as caveats on the geography and types of services provided.” Id. at 2 (Babaie Decl. ¶ 7). Because Las Americas’ grants, most of which “are heavily metrics based,” id. at 6 (Babaie Decl. ¶ 32), and because “many funders are interested in funding work that reaches the greatest number of people possible,” id. at 7 (Babaie Decl. ¶ 35), the organization will incur expenses working to shore up its donor relationships and risks “losing out on grants” aimed at reaching the greatest number of people, since the Proclamation has undermined, and will continue to undermine, Las Americas’ ability to connect with clients, id.
Finally, the Florence Project has also shown that the Proclamation and guidance have frustrated, and will continue to frustrate, its activities and will impair its ability to provide legal services to those seeking asylum, withholding of removal, and CAT protection. The Florence Project “is a 501(c)(3) non-profit legal services organization” whose “mission is to provide free legal and social services to detained adults and children facing immigration removal proceedings in Arizona.” Dkt. 14-3 at 1 (St. John Decl. ¶ 2). Its goal is to “ensure that all immigrants facing removal have access to counsel, understand their rights under the law, and are treated fairly and humanely.” Id. The organization “represent[s] hundreds of adult clients before the asylum office, immigration courts, and the Board of Immigration Appeals . . . each year, including many who are seeking humanitarian relief, such as asylum, withholding of removal, and protection under the Convention Against Torture.” Id. at 2 (St. John Decl. ¶ 4). “In 2023, Florence Project staff provided individualized legal support to at least one thousand adults in ICE custody who specifically were seeking some fear-based form of protection.” Id. at 3 (St. John Decl. ¶ 9). Yet, “in sharp contrast to years of experience and migration and detention trends, as of February 18, 2025, Florence Project has still not been able to identify or [to] meet with any asylum seekers in ICE custody who entered the United States, whether by entering without inspection or presenting at a port of entry, after the Proclamation took effect on January 20, 2025.” Id.
These uncontested declarations demonstrate that the Proclamation and implementing guidance have had—and will continue to have—a significant and direct detrimental effect on the organizational plaintiffs’ “core business activities,” All. for Hippocratic Med., 602 U.S. at 395; have required—and will continue to require—the organizational plaintiffs to expend substantial “resources to counteract that injury,” ASPCA, 659 F.3d at 25; and will likely result in either a large loss of funding to the organizations or require the expenditure of resources to renegotiate or to amend grants or contracts or to find alternative sources of funding. In Alliance for Hippocratic Medicine, the Supreme Court noted that the effect on the “core business activities” of the organizational plaintiff in Havens was “not dissimilar to a retailer who sues a manufacturer for selling defective goods to the retailer.” 602 U.S. at 395. By the same token, the “core business activities” of the organizational plaintiffs in this case are not dissimilar to the interests of a “vendor who is prevented from selling his product to third parties by [an] unlawful regulation” and who “may challenge that regulation ‘on the basis of the vendor-vendee relationship alone.‘” Lepelletier v. FDIC, 164 F.3d 37, 44 (D.C. Cir. 1999) (emphasis and citation omitted). No more is required to establish standing under Havens and Alliance for Hippocratic Medicine.
Defendants disagree, arguing that a “less demanding case load” does not injure the organizations’ “ability to carry out” their existing activities: they can still provide services to aliens who do end up in the “expedited removal credible fear process or in removal proceedings.” Dkt. 44 at 29-30 (emphasis omitted). But there is no requirement that an organization prove that the challenged agency actions absolutely foreclose it from pursuing its core business activities. A defendant‘s actions need only cause a “perceptibl[e] impair[ment],” Havens, 455 U.S. at 379, and some attendant expenditure or loss of resources, ASPCA, 659 F.3d at 25. The organizational plaintiffs have made that showing—and then some.
2. Statutory Jurisdiction
Defendants also contend that the Court lacks statutory jurisdiction to consider the organizational plaintiffs’ claims that (1) “challenge the Proclamation” on the ground that “it ‘contradicts the specific
Most fundamentally, Defendants’ argument misconstrues Plaintiffs’ claims and misconceives the nature of the challenged governmental action. Before turning to those difficulties, however, the Court pauses to note Defendants’ concession that
The Court starts, as it must, with the statutory text. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). Section
(A) Review relating to section 1225(b)(1)
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review—
(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of [Title 8],
(ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section,
(iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of [Title 8], or
(iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of [Title 8].
Here, however, Plaintiffs do not challenge any expedited removal order entered pursuant to
Although the Court must avoid conflating jurisdiction with the merits, Plaintiffs’ contention that they are challenging the Proclamation and its implementation (and not the Attorney General or the Secretary‘s implementation of
Other portions of the administrative record refer to “212(f) Direct Repatriations” and “212(f) Expedited Removal” or “Expedited Removal – Per 212(F).” See, e.g., id. at 6, 11-14, 18-19, 21. When asked to explain the difference between a “212(f) Direct Repatriation” and a “212(f) Expedited Removal,” Defendants identified only one difference: An individual subject to “212(f) Expedited Removal” receives “a Notice to Alien Ordered Removed and [is] issued an Expedited Removal Order,” while an individual subject to a “212(f) Direct Repatriation” does not. Dkt. 59 at 7-8. As Defendants further explained, id. at 8, this difference has collateral immigration consequences, given the temporary inadmissibility of those previously subject to removal orders and the risk of criminal liability for reentry, see
Two things stand out about this approach. First, there is no such thing as “direct repatriation” under the INA. Second, “212(f) Expedited Removal” is not the same thing as expedited removal under
Finally, the Court notes an important difference between
orders are undertaken “per”
Accordingly, even if the Court did not have statutory jurisdiction based on the individual plaintiffs’ claims, the Court would have both Article III and statutory jurisdiction based on the organizational plaintiffs’ claims.8
Defendants’ final set of threshold arguments posit that Plaintiffs lack an APA or a non-statutory cause of action. They are incorrect on both counts.
a. APA Cause of Action
Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
First, Defendants argue that the Proclamation does not constitute “agency action” and that the implementing guidance does not constitute “final agency action distinct from the Proclamation.” Dkt. 44 at 39. Although they are correct that the Proclamation is not itself subject to APA review, their characterization of the implementing guidance misses the mark. An agency action is deemed final if two conditions are met. First, the action “must mark the consummation of the agency‘s decisionmaking process” and “must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotation marks and citation omitted). “And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 178 (internal quotation marks omitted). Both conditions are satisfied here. The guidance “consummates” the Department of Homeland Security‘s decision regarding the implementation of the Proclamation; there is nothing preliminary, tentative, or inchoate about it. It is equally clear, moreover, that the guidance has real “legal consequences” for those subject to the Proclamation, including the individual plaintiffs in this case, some of whom have already been removed from the United States pursuant to the guidance. Nor is the guidance “indistinct” from the Proclamation. To be sure, the guidance implements the Proclamation, but it also adds both detail and real-world consequences. The guidance—not the Proclamation—sets out two types of removal procedures that will apply to aliens subject to the Proclamation, instructs officers and agents not to ask aliens specific fear questions or to use forms otherwise required under the agencies’ regulations, and instructs immigration officers to use a
Second, Defendants argue that APA review is precluded here because of “other limitations on judicial review” that the APA leaves intact. Dkt. 44 at 41 (quoting
Third, Defendants argue that APA review is unavailable because the decision at issue—the President‘s decision to invoke
Fourth, Defendants argue that the organizational plaintiffs lack zone-of-interests standing. Dkt. 44 at 36–38. Zone-of-interests standing is a non-jurisdictional doctrine that asks whether a “plaintiff‘s complaint fall[s] within the zone of interests protected by the law invoked.” Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (internal quotation marks and citation omitted). The zone-of-interests test is, in other words, a “tool for determining who may invoke the cause of action” created in the statute at issue. Id. at 130. “[I]n keeping with Congress‘s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable,‘” the test, at least in the APA context, “‘is not meant to be especially demanding.‘” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quoting Clarke v. Secs. Indus. Ass‘n, 479 U.S. 388, 399 (1987)). “The interest [the plaintiff] asserts must be ‘arguably within the zone of interests to be protected or regulated by the [underlying] statute’ that [the plaintiff] says was violated.” Id. at 224 (quoting Ass‘n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Courts “do not require any ‘indication of congressional purpose to benefit the would-be plaintiff,‘” and the Supreme Court has “always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.” Id. at 225 (quoting Clarke, 479 U.S. at 399–400). “The test forecloses suit only when a plaintiff‘s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.‘” Id. (quoting Clarke, 479 U.S. at 399).
The organizational plaintiffs satisfy this permissive test. Notably, their interests in providing legal assistance to asylum seekers is consistent with the INA‘s purpose to “establish[] . . . [the] statutory procedure for granting asylum to refugees.” Cardoza-Fonseca, 480 U.S. at 427. As in O.A., the organizational plaintiffs’ “interest in representing asylum seekers furthers the purposes of the INA,” see 404 F. Supp. 3d at 144, which instructs the government to advise aliens filing an application for asylum “of the privilege of being represented by counsel” and to “provide the alien a list of persons . . . who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis,”
Defendants argue that O.A. relied on a “more lenient version” of the zone-of-interests test that “no longer survives the Supreme Court‘s more recent decision in United States v. Texas, 599 U.S. 670 (2023).” Dkt. 44 at 38. According to Defendants, Texas “clarified . . . that third parties like Plaintiffs have no cognizable interest in the way the Executive enforces the immigration laws against others.” Id. (citing United States v. Texas, 599 U.S. at 674, 677). But the Supreme Court has made clear that Article III standing and zone-of-interests standing are entirely different concepts, and United States v. Texas addressed only Article III standing. Nothing in that decision calls into question the zone-of-interests test set forth in Lexmark, 572 U.S. at 126, and Patchak, 567 U.S. at 225, which is the standard that the
b. Non-Statutory Cause of Action
Plaintiffs also bring a non-statutory—or equitable—cause of action challenging the Proclamation itself. Defendants argue that no such cause of action is cognizable for a hodgepodge of reasons, most of which receive little more than a sentence in Defendants’ briefs. They argue that the Proclamation itself “unambiguously forecloses judicial review,” Dkt. 44 at 43; that, in any event, “proclamations are [simply] management tools for implementing the President‘s policies, not legally binding documents that may be enforced against the Executive Branch,” id.; that
To the extent this litany of arguments either rehashes arguments addressed above or anticipates the merits, which are addressed below, the Court will not repeat itself here. A couple of points, however, warrant at least brief mention. To start, non-statutory review of unlawful executive action existed long before the APA was enacted, and “[n]othing in the subsequent enactment of the APA altered” the understanding that, “[w]hen an executive acts ultra vires, courts are normally available to reestablish the limits on his
Nor is there any merit to Defendants’ suggestion that presidential actions lie beyond the scope of review, even when the relief is limited to enjoining the actions of subordinate government officials. To the contrary, the D.C. Circuit engaged in precisely that form of review in Reich, 74 F.3d at 1328; it is the approach that Justice Scalia endorsed in his concurrence in Franklin v. Massachusetts, 505 U.S. at 823–29; and it is what happened in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). As the D.C. Circuit wrote in Soucie v. David: “The fact that the President may have ordered” the subordinate official to engage in the challenged conduct “does not leave the courts without power to review the legality of” that conduct, “for courts have power to compel subordinate executive officials to disobey illegal Presidential commands.” 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971). In this respect, Defendants’ unsupported contention that federal courts not only lack the power to enjoin the President, but also lack the power to “otherwise constrain” how he discharges his “official duties,” Dkt. 55 at 19, is not only wrong, but at odds with the fundamental tenet that ours is “a government of laws and not of men,” Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (internal quotation marks omitted); see also Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, 575 (D.D.C. 1952). And their argument that the substance of the Proclamation is unreviewable merely because it recites the usual boilerplate disclaiming the creation of “any right or benefit, substantive or procedural, enforceable at law or in equity,” Proclamation, § 6, requires only the briefest of responses; putting aside Defendants’ misreading of the Proclamation, the Executive Branch, in any event, cannot avoid judicial review by simply declaring that its actions are unreviewable.
There are, of course, limits on the availability of ultra vires or non-statutory review. Congress (unlike the Executive Branch) may “preclude[] non-statutory judicial review,” Reich, 74 F.3d at 1328, and certain exercises of presidential authority are committed to the President‘s exclusive discretion. The Court, however, has already addressed the relevant statutory limits on its jurisdiction and authority, and, in the field of immigration, the President shares authority with Congress. See
B. Merits
Plaintiffs challenge the Proclamation and implementing guidance as an unlawful effort to supplant the detailed provisions of the INA with an alternative set of immigration laws established by executive “fiat.” Dkt. 52 at 11. They argue that the Proclamation and guidance purport to establish an alternative extra-statutory system for removing or repatriating aliens in “212(f) Expedited Removals” and “212(f) Direct Repatriations,” rather than under the rules and procedures that Congress has enacted. And they argue that, under this alternative system, the right to apply for asylum,
Plaintiffs further argue that none of the authorities that Defendants invoke in support of the Proclamation and guidance authorize such a wholesale rewriting of the INA and the governing regulations. Plaintiffs stress that, even if
Defendants disagree with each of these arguments, and they maintain that the Proclamation and implementing guidance constitute a permissible, albeit novel, use of
For the reasons explained below, the Court concludes that Plaintiffs have the better of the arguments and that neither the INA nor the Constitution authorizes the changes in immigration law embodied in the Proclamation and implementing guidance. The Court will first address the creation of the new “212(f) Direct Repatriation” and “212(f) Expedited Removal” mechanisms and will then consider the suspension of the rights to apply for asylum and to obtain withholding of removal and the changes made to the procedures for seeking CAT protection.
1. “212(f) Direct Repatriation” and “212(f) Expedited Removal”
a. Statutory Authority
The first question is whether the INA authorizes the use of the new “212(f) Direct Repatriation” and “212(f) Expedited Removal” mechanisms in lieu of traditional removal procedures. The parties agree that the regular removal procedures set forth in
Putting aside the moment Defendants’ claim of implied authority, it is safe to conclude that
Nor does the President‘s authority under
Defendants’ attempts to sidestep the statutory text are unavailing. First, Defendants maintain that “[n]othing in Section 1182(f) forecloses repatriation of illegal immigrants who manage to gain physical entry into the United States notwithstanding a Proclamation barring such entry.” Dkt. 44 at 49. That is true but unhelpful. A failure to forbid is not a grant of authority, and the authority granted here, as discussed above, is limited to the sphere of “entry.” See INS v. Chadha, 462 U.S. 919, 953 n.16 (1983) (“Executive action [under legislatively delegated authority] is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review . . . .“); see also Trump v. Hawaii, 585 U.S. at 688 (finding that the
Second, Defendants contend that a “[s]uspension on entry must necessarily encompass the ability to expel” because, otherwise, “the statute‘s authority to prohibit physical entry” would be “render[ed] . . . ineffective.” Dkt. 44 at 49. This is not a textual argument but, rather, posits that
In other contexts, moreover, the authority to suspend entry is undoubtedly meaningful. That is, for example, what spurred the litigation leading to the Supreme Court‘s decision in Trump v. Hawaii, 585 U.S. 667 (2018). Presidents have also used
In this respect, Defendants’ appeal to an implied authority runs headlong into the aphorism about hiding elephants in mouseholes. See Whitman v. Am. Trucking Ass‘n, 531 U.S. 457, 468 (2001). To be sure,
Defendants’ reliance on Huisha-Huisha is also misplaced. Huisha-Huisha said nothing about
Acting pursuant to this statutory and regulatory authority and in light of the threat to public health posed by the COVID-19 pandemic, the CDC issued an order in March 2020 suspending “the introduction of all covered aliens“—defined to include those “traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into the congregate settings in land [Ports of Entry] or Border Patrol stations“—“into the United States” for a designated period of time. Notice of Order Under Sections 362 and 365 of the Public Health Service Act, 85 Fed. Reg. 17060, 17061 (March 26, 2020). The CDC subsequently extended the designated period of time on several occasions, and took the position that the “‘suspension’ clause in
Among other challenges, which are discussed below, the Huisha-Huisha plaintiffs argued that
preventing spread of the disease in the United States would not be achieved. In short, the D.C. Circuit reasoned that
By Defendants’ reasoning, one of two things must be true: Either those federal agencies engaged in enforcing the immigration laws should be allowed to “repatriate” anyone who is inadmissible pursuant to any of the provisions of
Huisha-Huisha is unhelpful to Defendants for a second reason as well.
That, then, leads to one final question posed by Huisha-Huisha‘s analysis of the CDC‘s authorization to expel aliens pursuant to
The Court, accordingly, concludes that Defendants lack statutory authority to supplant the usual removal procedures set forth in
b. Constitutional Authority
Nor is the Court persuaded by Defendants’ contention that, “[e]ven without . . . Section 1182(f), the President‘s action here would be supported by the inherent authority of the Executive over admission decisions.” Dkt. 44 at 52. Defendants’ argument involves two steps. They first argue that “the power of excluding aliens from U.S. territory is an inherent attribute of sovereignty exercised by the political branches of government.” Id. And they then argue that, even though “the Executive‘s inherent authority over expulsion is not likely as broad as its authority over exclusion,” “mandating the repatriation of aliens whose entry was barred at the time they entered the United States on account of a Presidential Proclamation under Section 1182(f) is a permissible Executive Branch exercise of inherent authority, [which] is also consistent with the broad parameters Congress” has specified. Id. at 53. In Defendants’ view, the President is therefore permissibly operating in Youngstown Category Two. Id. at 53–54 (citing Youngstown, 343 U.S. at 639 (Jackson, J., concurring)).
The argument fails for several reasons. As an initial matter, the Court once again notes that the President did not establish the new “212(f) Direct Repatriation” and “212(f) Expedited Removal” procedures as an exercise of his constitutional authority; at best, he delegated authority to the Secretary to “take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border.” Proclamation, § 5. Accordingly, the Court is not called upon to review a presidential decree in this respect but, rather, decisions made by U.S. Border Patrol and USCIS officials regarding how to implement the Proclamation. But even had the President directed that immigration enforcement authorities supplant the detailed procedures for removing inadmissible aliens set forth in
The principal authority that Defendants invoke, U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), does more harm than good to their argument. That case, of course, preceded enactment of the INA in 1952, but much of the Court‘s reasoning remains illuminating today. What is perhaps most notable about U.S. ex rel. Knauff is that it recognizes the shared responsibilities of the legislative and executive branches “concerning the admissibility of aliens,” but it—appropriately—casts Congress as the lead when it comes to prescribing the rules. Id. at 542; see also Jarkesy, 603 U.S. at 129 (referring to Congress‘s “plenary power over immigration“); Demore v. Kim, 538 U.S. 510, 521 (2003) (referring to Congress‘s “broad power over naturalization and immigration“). In U.S. ex rel. Knauff, the Court rejected a nondelegation challenge and upheld Congress‘s authority to “place[]” “the decision to admit or to exclude an alien . . . with the President.” U.S. ex rel. Knauff, 338 U.S. at 543. The Supreme Court explained its reasoning as follows:
Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent.
Id. (emphasis added). In other words, although the legislature typically sets the conditions on entry by legislation, Congress may authorize the Executive Branch to exercise the authority to limit entry when it is in “the best interests” of the United States to do so, and it may “entrust[]” the Executive Branch to set appropriate “procedures for carrying out . . . congressional intent.” Id.
Nowhere in U.S. ex rel. Knauff or in any other decision has the Supreme Court ever suggested that the President‘s inherent authority to protect the borders of the United States permits him to supplant rules proscribed by Congress. In this respect, the present case is the polar opposite of U.S. ex rel. Knauff. In U.S. ex rel. Knauff, the question was whether Congress could authorize the President or his delegee to exclude certain aliens and to “specify the procedures for carrying out th[at] congressional intent.” 338 U.S. at 542–43. Here, the question is whether the President or his delegees may disregard the rules that Congress has specified and expel individuals who are already in the United States without complying with the “exclusive procedure[s]” set by statute, see
That conclusion carries particular force here, moreover, because, unlike in U.S. ex rel. Knauff, the present dispute is not about the power to exclude but, rather, about the power to expel. U.S. ex rel. Knauff gestures at the importance of this difference, noting: “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branches of the Government to exclude a given alien.” 338 U.S. at 543 (emphasis added). Even more importantly, Defendants themselves candidly acknowledge that “the Executive‘s inherent authority over expulsion is not likely as broad as its authority over exclusion.” Dkt. 44 at 53. That concession makes sense given the limited rights that aliens typically possess before entering the United States and the unique authority that the political branches maintain over who is permitted to enter the country. See, e.g., U.S. ex rel. Knauff, 338 U.S. at 542–43; Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). But once an alien has entered the United States, the INA and decades of historical practice, see, e.g., NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) (“[L]ong settled and established practice is a consideration of great weight in proper interpretation of constitutional provisions regarding the relationship between Congress and the President.“), establish that the Executive Branch is bound to follow the will of Congress in expelling inadmissible aliens.
Defendants’ reliance on the Constitution‘s guarantee that the “United States . . . shall protect each [state] against Invasion,”
The Court, accordingly, concludes that the President lacks the inherent constitutional authority to supplant
2. Suspension of Asylum
Plaintiffs further argue that the Proclamation runs afoul of the asylum statute,
Here, the relevant text provides as follows:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an
alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien‘s status may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
Defendants offer two nontextual responses to this logic: they first argue that a bar on applying for asylum is necessary to give effect (or, at least, maximum effect) to the Proclamation‘s bar on entry, and, second, they argue that asylum is a discretionary form of relief that the Attorney General is free to deny and that, as a result, permitting aliens to apply for asylum would be futile if the Attorney General has already decided that their applications will be denied. Dkt. 44 at 56–57. Defendants invoke the D.C. Circuit‘s opinion in Huisha-Huisha in support of both contentions. A comparison of this case and Huisha-Huisha, however, merely highlights why Defendants’ argument fails here.
a.
Defendants’ first argument regarding the right to apply for asylum tracks their argument regarding repatriation. In both contexts, Defendants rely on Huisha-Huisha‘s observation that the statutory authority conferred in
First, the conflict that the D.C. Circuit confronted in Huisha-Huisha was both direct and irreconcilable. Although the initial screening for asylum can take place quickly, for those who establish a “credible fear of persecution,” the process can take years to complete.
Here, in contrast, the asserted conflict is far less direct and far less clear. To be sure, efforts to keep aliens from unlawfully entering the United States would be aided by denying statutory benefits, including the right to apply for asylum, to those who have managed to cross the border. But that is a consideration that Congress sought to balance in the INA, when it—even without a presidential proclamation—barred the admission of undocumented aliens, and when it, nonetheless, mandated that “[a]ny alien who is physically present in the United States . . ., irrespective of such alien‘s status, may apply for asylum in accordance with [§ 1158] or, where applicable, section 1225(b).”
Defendants’ necessity argument confronts a second difficulty, which was not addressed in Huisha-Huisha, presumably because the order at issue in that case was issued pursuant to Title 42, while the proclamation at issue here was issued under the INA. In any event, the INA—as opposed to Title 42—provides the Executive Branch with substantial authority, which if exercised in accordance with law, allows the Secretary and the Attorney General to impose additional, non-statutory limitations on eligibility for asylum. That is the mechanism that the Executive Branch invoked to support the 2018 and 2024 Proclamations, discussed above, see supra at 19–26. Although those prior efforts were, in large part, unsuccessful for reasons not at issue here, see id., Defendants fail even to gesture at the possibility that they could have, but have not, used the authority that Congress provided to curtail the right to asylum.
In particular,
Notably, this conclusion is not a new one, and, indeed, the Department of Justice itself has long held this view of the law. As the Department explained in the 2024 final rule, although the Attorney General and Secretary have broad rulemaking authority, a presidential proclamation—standing alone—“cannot affect noncitizens’ right to apply for asylum, their eligibility for asylum, or asylum procedures.” 89 Fed. Reg. at 81163. Indeed, “[t]his recognition that [
The Department of Justice is not typically in the business of construing presidential authority narrowly. See Jack Goldsmith, The Terror Presidency 36 (2007) (“Not surprisingly, OLCs of both parties have always held robust conceptions of presidential power.“) Yet the Department rejected the precise assertion of congressionally delegated authority asserted in the Proclamation. Its analysis is persuasive and bears quoting at length:
That longstanding understanding follows from the text and structure of the governing statutes. Section [
1182(f) ] provides that under certain circumstances, the President may “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” [ ]8 U.S.C. 1182(f) . Although this provision—first enacted in 1952—“grants the President broad discretion,” it “operate[s]” only within its “sphere.” Trump v. Hawaii, 585 U.S. 667, 683–84, 695 (2018). Section [1182 ] (entitled “Inadmissible aliens“), generally “defines the universe of aliens who are admissible” and “sets the boundaries of admissibility into the United States.” Id. at 695. Hence, when section[ 1182(f) ] authorizes the President to suspend “entry,” it “enabl[es] the President to supplement the other grounds of inadmissibility in the INA,” id. at 684 (citing Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986)), and to bar individuals from entry into the United States.This authority, though broad, does not authorize the President to override the asylum statute. First enacted in the Refugee Act, the asylum statute today provides that “[a]ny alien who is physically present in the United States or who arrives in the United States[,]. . . irrespective of such alien‘s status, may apply for asylum.” . . .
8 U.S.C. 1158(a)(1) . The right to apply for asylum thus turns on whether a noncitizen is “physically present” or has “arrive[d] in the United States.” Id. As a result, the power under [§ 1182(f) ] to suspend “entry” does not authorize the President to override the asylum rights of noncitizens who have already physically entered the United States and who are entitled to an adjudication of eligibility under the applicable statutory and regulatory rules and standards.
89 Fed. Reg. at 81163–64 (footnotes omitted).
Finally, it is noteworthy that the same Department of Justice that litigated the Huisha-Huisha case in the D.C. Circuit distinguished
The Court, for all these reasons, is unpersuaded by Defendants’ necessity argument.
b.
Defendants’ futility argument fares no better. As the D.C. Circuit observed in Huisha-Huisha, the
For the reasons explained above, however, that analysis does not hold here. Rather, as the Department of Justice observed in the 2024 final rule, and consistent with four decades of Executive Branch interpretation,
* * *
Finally, Defendants fail to advance any constitutional arguments that differ from those addressed and rejected above. The Court, accordingly, concludes that the Proclamation and guidance are contrary to law to the extent that they prohibit covered aliens from applying for asylum or implement new limitations on asylum that have not been adopted by regulation.
3. Suspension of Withholding of Removal
Plaintiffs also contend that the guidance violates the withholding of removal statute,
Defendants respond that the withholding of removal statute constrains the Secretary and the Attorney General, not the President. See Dkt. 55 at 28. But that contention ignores two important facts. First, the Proclamation says nothing about withholding of removal. Rather, it says that covered aliens “are restricted from invoking provisions of the INA that would permit their continued presence in the United States.” Proclamation, §§ 2, 3. And,
Second, Defendants’ argument ignores the fact that the removals and repatriations at issue are, in fact, being carried out under the direction of the Secretary. All of the relevant guidance was issued by components of the Department of Homeland Security, and the USCIS and U.S. Border Patrol officials and employees engaged in those processes operate under the direction of the Secretary. As a result, Defendants cannot escape the operation of
Defendants also suggest that
The Court, accordingly, concludes that the guidance is arbitrary and capricious and contrary to law to the extent it instructs asylum officers or others that withholding of removal is not available for aliens subject to the Proclamation. Except as Congress has specified,
4. Extra-Regulatory CAT Protection Procedures
Finally, Plaintiffs contend that the guidance‘s extra-regulatory CAT protection procedures violate FARRA. FARRA instructed “the heads of the appropriate agencies” to issue regulations to implement the protections included in the Convention Against Torture.
individual‘s CAT protection claim. Id.
The guidance that Plaintiffs challenge changes this process by instructing asylum officers to require that an alien carry his ultimate burden at the first interview. Instead of starting with a credible fear screening and then moving to an adjudication interview, the asylum officer conducts a “CAT-Only assessment,” Dkt. 52-1 at 44, at which the applicant “must show that it is more likely than not that [the applicant] will be tortured in the country to which [the applicant] may be returned,” id. at 46. Aliens in CAT-Only assessments are “not entitled to a consultant, legal representative, or a consultation period.” Id. at 45. In essence, the new procedures require that an alien carry his burden at the initial hearing without the benefit of counsel or consultation and without the time to prepare accorded under the regulations.
Agencies are, of course, bound to follow their own regulations, even when the procedures therein are “possibly more rigorous than otherwise would be required,” Morton v. Ruiz, 415 U.S. 199, 235 (1974), and they may not adopt guidance or other procedures that conflict with or disregard duly promulgated regulations, see U.S. Telecom Ass‘n v. FCC, 400 F.3d 29, 35-36 (D.C. Cir. 2005) (holding that substantive changes to regulations must be promulgated through notice and comment rulemaking); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68 (1954) (holding that regulations are binding “as long as [they] remain operative“). Here, Defendants do not dispute that the guidance at issue is inconsistent with the regulations. The guidance is, as a result, arbitrary and capricious and contrary to law. See Nat‘l Environ. Dev. Ass‘ns Clean Air Project v. EPA, 752 F.3d 999, 1009-11 (D.C. Cir. 2014).
Defendants offer two responses, which are in tension with one another. In their opening brief, they argued that the Proclamation applies only to those benefits found in the INA, and since “CAT protection is not provided by the INA,” it “is not subject to the Proclamation‘s limitations.” Dkt. 44 at 62. But if the Proclamation does not limit or modify the rules relating to CAT protection, Defendants are left without any justification for discarding the CAT regulations in the guidance. Defendants then shift gears in their reply brief and argue that because “the covered aliens do not fall within the bounds of the regulatory provisions cited by Plaintiffs,” Defendants are not required to apply the CAT
The Court, accordingly, concludes that the guidance is arbitrary and capricious and contrary to law to the extent it purports to replace the CAT procedures set forth in the existing regulations with less protective “§§ 212(f) and 215(a)” “CAT Assessment Instructions and Implementation Guidance.” Dkt. 52-1 at 38-39.
C. Class Certification
The Court must next consider whether to grant Plaintiffs’ motion for class certification.16 To proceed on behalf of a class, a plaintiff or group of plaintiffs must clear two hurdles. First, the putative class representatives must demonstrate that “(1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”
Because “[t]he 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) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)), the party seeking class treatment “must affirmatively demonstrate . . . compliance” with
As explained below, the Court is persuaded that, with one modification to the class definition, Plaintiffs are entitled to proceed on behalf of the proposed class. The Court will, accordingly, certify a class (or subclass) consisting of all individuals who are or will be subject to the Proclamation and/or its implementation and who are now or will be present in the United States. The Court will postpone addressing whether it is also appropriate to certify a class (or subclass) of individuals who were subject to the Proclamation and guidance and have already been repatriated or removed from the United States because those individuals stand in a markedly different posture than those who have yet to be repatriated or removed, because their claims implicate distinct questions of law, and because the relief that they seek is different. See 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“);
The Court will appoint Plaintiffs’ counsel to represent the class of individuals who are or will be subject to the Proclamation and the guidance within the United States and will appoint the Individual Plaintiffs who still remain in the United States (A.M., Z.A., T.A., A.T., B.R., M.A., and G.A.) as the class (or subclass) representatives.
1. Rule 23(a)
The proposed class, as modified, satisfies the four “prerequisites” set forth in
The second and third requirements, commonality and typicality, often overlap. The commonality requirement is satisfied if “there are questions of law or fact common to the class,”
Defendants disagree, arguing that the class is “overbroad” for several reasons.17 Some of those reasons fall aside in light of the Court‘s decision to modify the proposed class to include, at least for present purposes, only those individuals subject to the Proclamation and guidance who are still in the United States. Defendants’ remaining arguments remain relevant but are nonetheless unavailing.
First, Defendants argue that the proposed class is improper because “it includes those who lack entitlement to the claimed statutory protections;” that is, they object to the proposed class because not every proposed member has or will claim or manifest a fear of persecution and because some of the proposed class members are or will be “statutorily ineligible for protection.” Dkt. 43 at 10-11. The Court is unpersuaded. Unlike in Dukes, where the Supreme Court reasoned that no “glue” held together each of the purported acts of discrimination alleged by a class of women, 564 U.S. at 352, Plaintiffs and the putative class members share an interest in some or all of the relief sought. Commonality is satisfied where there is “a uniform policy or practice that affects all class members,” DL, 713 F.3d at 128, and that principle applies with equal force to the typicality requirement. Here, the Proclamation and guidance apply equally to and they affect the legal rights of all of the members of the proposed, modified class. Because all putative class members will, absent relief, face non-statutory repatriation or removal
Second, Defendants argue that the “procedures for implementing the Proclamation could change in the future in ways that are material to the proposed class members’ claims and claimed injuries.” Dkt. 43 at 29. But the relief Plaintiffs seek—vacatur of the current guidance and a declaration that the Proclamation is unlawful to the extent it prohibits them from seeking statutory and regulatory protections—does not depend on hypothetical future procedures that are not before the Court.
Third, Defendants argue that “[t]hose class members who have received, or will receive,
Significantly, Plaintiffs do not seek judicial review of a determination entered pursuant to
Even putting this concession aside, Defendants offer no plausible basis to conclude that the “212(f) Expedited Removal” orders constitute “determinations under section
Defendants do not even suggest that Plaintiffs’ challenge is directed at the Secretary or Attorney General‘s “implementation” of
2. Rule 23(b)(2)
Plaintiffs have also carried their burden under
Both requirements of
In
* * *
The Court, accordingly, concludes that Plaintiffs have carried their burden of demonstrating that class treatment is warranted under
D. Remedy
This brings the Court to the question of remedy. Plaintiffs urge the Court (1) to “[v]acate the guidance insofar as it permits Defendants” to engage in non-statutory removals, restricts covered individuals from invoking the INA‘s protections, and departs from the regulatory CAT screening standards; (2) to “[d]eclare that Defendants [] cannot lawfully implement or enforce the Proclamation or [the implementing guidance]” to take any of those actions; and (3) to “[e]njoin Defendants from implementing or enforcing the Proclamation” to take any of those three actions. Dkt. 52 at 42-43.19 Defendants disagree, countering that “the Court may not issue relief that is broader than necessary to remedy actual harm shown by specific Plaintiffs;” that the Court lacks jurisdiction to enter a class-wide injunction under
The Court will consider each form of relief in turn.
1. Vacatur
As explained above, the Court has concluded that the implementing guidance is “not in accordance with law,”
To the extent Defendants argue that the vacatur remedy should be limited to the individual plaintiffs, that contention is both at odds with settled precedent and difficult to square with the statutory text of the APA, which offers no such limitation. The D.C. Circuit has “made clear that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.‘” Nat‘l Mining Ass‘n v. U.S. Army Corps of Eng‘rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21 (D.C. Cir. 1989)) (emphasis added).
In explaining its basis for reaching that conclusion, the D.C. Circuit invoked Justice Blackmun‘s opinion in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), which, although a dissent, “apparently express[ed] the view of all nine Justices on th[e] question.” Nat‘l Mining Ass‘n, 145 F.3d at 1409. Justice Blackmun wrote:
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule.
Lujan, 497 U.S. at 913 (Blackmun, J., dissenting). As explained by the D.C. Circuit in National Mining Association, this view was shared by the three Justices who joined Justice Blackmun‘s dissent and by the majority, which observed that a final agency action may “be challenged under the APA by a person adversely affected—and the entire [agency program], insofar as the content of that particular action is concerned, would thereby be affected.” Id. at 890 n.2; see also Nat‘l Mining Ass‘n, 145 F.3d at 1409 (citing same). This Court is, of course, bound by the D.C. Circuit‘s decision in National Mining Association and the “countless” Supreme Court and D.C. Circuit opinions that have “vacated agency actions . . . rather than merely providing injunctive relief that enjoined enforcement of the rules against the specific plaintiffs,” Corner Post, Inc. v. Bd. of Governors of Fed. Reserve Sys., 603 U.S. 799, 830-31 (2024) (Kavanaugh, J., concurring) (collecting cases); see also, e.g., Trump v. Casa, Inc., No. 24A886, 606 U.S. ___, 25 WL 1773631, at *19 (June 27, 2025) (Kavanaugh, J., concurring) (noting that “in cases under the Administrative Procedure Act, plaintiffs may ask a court
Even without this controlling precedent, moreover, the Court would follow the plain language of the APA, which provides that “[t]he reviewing court shall . . . set aside agency actions . . . found to be . . . not in accordance with law.”
The Court, accordingly, concludes that the proper remedy includes vacatur of the challenged guidance. This remedy is appropriate with or without a class action and with or without the organizational plaintiffs, See Nat‘l Mining Ass‘n, 145 F.3d at 1409, and it will afford much—although not all—of the relief that Plaintiffs seek in this case.
2. Declaratory Judgment
The Court will also enter a declaratory judgment as to all Defendants other than the President declaring that the Proclamation is unlawful insofar as it purports to suspend or restrict access to asylum, withholding of removal, or the existing regulatory processes for obtaining CAT protection. The Court will not, however, enter declaratory relief against the President. Although “the possibility” that declaratory relief “might be available against the President in extraordinary cases” appears to have been “le[ft] open” by the D.C. Circuit, such relief would be appropriate only if “the conduct at issue . . . involve[s] a ministerial duty” or if “relief is [un]available against other executive officials and so the President” must be “sued as a last resort.” McCray v. Biden, 574 F. Supp. 3d 1, 10-11 (D.D.C. 2021). Neither of those two circumstances is present here. Plaintiffs, however, argue that declaratory relief against the President is available under the D.C. Circuit‘s decision in National Treasury Employees Union v. Nixon (NTEU), 492 F.2d 587 (D.C. Cir. 1974). But that case involved a “ministerial duty,” id. at 616, and Plaintiffs do not argue—nor could they—that the conduct at issue here is ministerial in nature. More importantly, declaratory relief that runs against the executive officials responsible for carrying out the Proclamation suffices to clarify which aspects of the Proclamation cannot be lawfully implemented by those officials.
3. Injunction
Plaintiffs also seek an injunction prohibiting the Agency Defendants from implementing the Proclamation to take any of the challenged actions. According to Defendants,
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall
have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
The principal question addressed in Aleman Gonzalez was how best to read the phrase “to enjoin or restrain the operation of the provisions of part IV of this subchapter.”
The Supreme Court concluded that
What Plaintiffs do seek, and what is not subject to
To be sure, but-for the Proclamation and guidance, the putative class members’ claims for asylum and withholding of removal would, in all likelihood, be processed pursuant to the provisions of the INA governing expedited removal,
Although Plaintiffs do not seek an order requiring Defendants to institute removal proceedings under
The relevant question for purposes of
conflat[ing] the question of what provisions the injunction is enforcing with the question of what provisions the injunction is restraining. Section 1252(f)(1) does not address why an injunction may issue; it addresses what that injunction may run against.
U.S. Department of Homeland Security v. D.V.D, No. 24A1153, Reply Br. in Support of Application for Stay of Injunction (June 5, 2025), at 4 (emphasis in original); see also Dkt. 70-1 at 6. That describes the current circumstances to a tee. Plaintiffs do not seek an order compelling Defendants to comply with
One of Plaintiffs’ claims does, however, implicate
The question is a close one because Plaintiffs’ principal challenge is directed at the Proclamation and its implementation, and they do not ask that the Court enter an injunction compelling Defendants to comply with
In any event, the Court is persuaded that it lacks authority to issue a class-wide injunction requiring the Agency Defendants to comply with
It is one thing to read the phrase “authority to enjoin or restrain the operation of the provisions of part IV” to prevent lower courts from issuing class-wide injunctions directing how the Secretary and Attorney General should implement the covered provisions. Aleman Gonzalez, 596 U.S. at 550. It would be a different matter altogether to read that phase to preclude a court from enjoining the implementation of the Proclamation, which contains no mention of
* * *
Having concluded that an injunction is available, the Court must decide, as a matter of its equitable discretion, whether to exercise that authority?
Notably, the Supreme Court has cautioned that a district court vacating an agency action under the APA should not issue an injunction unless doing so would “have [a] meaningful practical effect independent of its vacatur.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). This is because “[a]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course” or where “a less drastic remedy . . . [is] sufficient to redress” the plaintiffs’ injury. Id. When addressing a similar question in the past, this Court declined to issue an injunction for just this reason. See O.A., 404 F. Supp. 3d at 154.
The present circumstances, however, differ in an important respect. In O.A., the Court relied on the defendants’ representation “that they w[ould] abide by the Court‘s order, . . . and Department of Justice guidance regarding vacatur under the APA provide[d] that the ‘Department litigators should’ comply ‘with circuit precedent,’ including the D.C. Circuit‘s decision in National Mining Association,” which instructs that the legal consequences of vacatur under the APA extend beyond the parties to a case. Id. Here, in contrast, Defendants have themselves expressed doubt that an order merely setting aside the guidance would be effective. They assert that, “if the guidance alone were . . . vacated . . . , the Plaintiffs would still be able to be repatriated under the Proclamation‘s authority.” Dkt. 55 at 22. When asked about this at oral argument, moreover, Defendants doubled down, asserting that all of the actions that Plaintiffs challenge “flow from the Proclamation itself, which is the only final action at issue.” Dkt. 56 at 51 (Hrg. Tr. 51:7-10). The Court has, of course, rejected that proposition, see supra 62-63, but Defendants’ suggestion that the Proclamation will continue to compel immigration officials to operate outside the ordinary bounds of the INA, even if the implementing guidance is set
The Court, accordingly, concludes that this is one of the rare cases in which injunctive relief is required. The injunction, of course, will not run against the President. Moreover, the Court will narrowly tailor the injunction to prohibit defendants from implementing the Proclamation, including by adopting extra-statutory expulsion procedures pursuant to
E. Request for Stay Pending Appeal
Finally, Defendants “ask for a stay pending appeal” or for “a 14-day delay of the effective date of any order” to “seek a stay from the D.C. Circuit in an orderly manner” and to address the “significant operational concerns involved in turning ... off the proclamation.” Dkt. 56 at 65-66 (Hrg. Tr. 65:23-66:6). The Court appreciates those concerns but must also weigh the fact that thousands of individuals will be repatriated or removed from the United States pursuant to an unlawful assertion of extra-statutory authority and the risk that, once repatriated or removed, their likelihood of obtaining meaningful relief will suffer a significant, if not insurmountable, setback.
The Court concludes that Defendants have failed to carry their burden of satisfying “the stringent requirements for a stay pending appeal.” Citizens for Resp. & Ethics in Wash. v. FEC, 904 F.3d 1014, 1016 (D.C. Cir. 2018); Archdiocese of Wash. v. WMATA, 877 F.3d 1066, 1066 (D.C. Cir. 2017). In deciding whether to grant a stay pending appeal, the Court must consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 779 (1987)); see also Cuomo v. U.S. Nuclear Regul. Comm‘n, 772 F.2d 972, 974 (D.C. Cir. 1985). “The first two factors of the traditional standard are the most critical,” and they require, respectively, “[m]ore than a mere ‘possibility’ of relief” and more than “some ‘possibility of irreparable injury.‘” Nken, 556 U.S. at 434 (citations omitted). Here, Defendants have failed to carry their burden with respect to any of the four factors.
First, for all the reasons given above, the Court is unpersuaded that Defendants are likely to succeed on the merits on appeal. Defendants have offered no separate argument that “casts doubt on the Court‘s decision.” TECO Guatemala Holdings, LLC v. Rep. of Guatemala, No. 17-102, 2020 WL 13612440, at *2 (D.D.C. Mar. 6, 2020).
Second, although the Court recognizes that the judiciary should not lightly intervene in the affairs of the Executive Branch and that implementing the immigration laws presents supreme challenges, the Court is unpersuaded that requiring Defendants to return to the processes that Congress required and that applied just a few months ago would cause Defendants irreparable harm. Although enjoining the President from exercising an exclusive constitutional prerogative might, standing alone, give rise to irreparable injury, requiring
The final two factors weigh heavily in favor of denying Defendants’ request for a stay. A stay would allow Defendants to continue removing class members using extra-statutory procedures, and Defendants have taken the position that this Court lacks the authority to provide relief to any aliens once they are removed. See, e.g., Dkt. 44 at 25-26; Dkt. 55 at 14. Although the Court has yet to address the merits of that contention, the question is a difficult one, and a substantial possibility exists that continued implementation of the Proclamation during the pendency of an appeal will effectively deprive tens of thousands of individuals of the lawful processes to which they are entitled. The Court recognizes that timing is crucial—both for Defendants and Plaintiffs—and that the question whether to grant a stay can, at times, matter as much as the underlying merits of a case. But where the Court is persuaded that the government is acting unlawfully; where that unlawful activity may well cause irreparable injury to the plaintiffs; and where the government may continue to enforce the law using lawful means, the balance of harms and public interest weigh against granting a stay.
Although the Court is unpersuaded that it should stay its decision pending appeal, the Court agrees with Defendants that they should have the opportunity to seek a stay from the court of appeals and that it will take some time to effectuate the Court‘s class-wide order. The Court will, accordingly, postpone the effective date of its class-wide order by fourteen days. During that period, however, Defendants shall take steps to ensure that they will are fully prepared to implement the Court‘s order without further delay. The Court‘s order granting relief to the individual plaintiffs who remain in the United States will take immediate effect.
CONCLUSION
For all these reasons, the Court will GRANT in part Plaintiffs’ motion for summary judgment, Dkt. 51, will GRANT in part Plaintiffs’ motion to certify a class, Dkt. 13, will DENY as moot Plaintiffs’ motion for a preliminary injunction, Dkt. 14, and will DEFER ruling on the remaining portions of the parties’ cross-motions. The Court will postpone the effective date of its class-wide order for fourteen days to permit Defendants to seek a stay pending appeal from the Court of Appeals and to prepare to implement the Court‘s order. Pursuant to
Separate orders will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 2, 2025
Notes
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.