D.A.M. v. Barr

• Court: District Court, District of Columbia
• Decided: July 23, 2020
• Docket: Civil Action No. 2020-1321
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

D.A.M, et al.,

Petitioners,

v. Case No. 20-cv-1321 (CRC)

WILLIAM BARR, in his official capacity as Attorney General of the United States, et al.,

Respondents.

MEMORANDUM OPINION

Petitioners in this case are nearly 100 families from eleven countries who were denied

asylum after entering the United States without valid entry documents and, consequently, are

subject to orders of expedited removal from the country. Many of them are currently being

detained by Immigration and Customs Enforcement (“ICE”) at either the South Texas Family

Residential Facility in Dilley, Texas (“Dilley”) or the Berks County Residential Center in

Leesport, Pennsylvania (“Berks”). Others have been released for medical or other reasons. All

petitioners seek a writ of habeas corpus preventing ICE from deporting them during the COVID-

19 pandemic. Presently before the Court is a motion for a temporary restraining order, filed on

behalf of the detained petitioners only, seeking an emergency stay of their imminent removals.

They contend that if the removals were to go forward as planned, they would be exposed to

increased risk of contracting COVID-19 during the deportation process, and later in their home

countries, which would violate their due process rights and ICE’s internal regulations. Finding

that it likely has jurisdiction to review petitioners’ challenge to the conditions they would

experience during the deportation process but concluding that they have not satisfied the requirements for preliminary injunctive relief, the Court will deny their TRO motion and lift the

administrative stay of removal that the Court put in place while it considered the motion.

I. Background

A. Deportation in the Time of COVID-19

It goes without saying that we are in the midst of a global pandemic. As of this writing,

there are over fourteen and a half million confirmed cases of COVID-19 worldwide with over

600,000 people dead. See WHO, Coronavirus Disease (COVID-19) Pandemic (updated July 21,

2020). 1 The United States remains a hotspot, with over three and a half million confirmed cases

and more than 140,000 deaths. CDC, Cases in the U.S. (updated July 21, 2020). 2

COVID-19 is highly contagious. It spreads primarily through close person-to-person

contact, because carriers of the virus produce airborne respiratory droplets when they cough,

sneeze, or talk that may be inhaled by others standing nearby. See CDC, How to Protect

Yourself & Others (Apr. 14, 2020). 3 Though less frequent, the virus can be also spread through

contact with contaminated surfaces. See CDC, Detailed Disinfection Guidance (updated July ,

2020). 4 Symptoms, such as fever, cough, and shortness of breath, typically appear two to

fourteen days after exposure, but even those who are asymptomatic may be capable of spreading

the disease. CDC, Clinical Questions about COVID-19: Questions and Answers – Transmission

1 https://www.who.int/emergencies/diseases/novel-coronavirus-2019. 2 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 3 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. 4 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cleaning- disinfection.html.

2 (July 21, 2020). 5 The most effective ways to prevent contracting the virus are to avoid being

within six feet of other people, to wash your hands frequently, to avoid crowded places and

gathering in groups, to cover your mouth and nose with a mask when around others, and to clean

and disinfect frequently touched surfaces. See CDC, How to Protect Yourself & Others (Apr.

24, 2020). In addition, the CDC discourages travel because it “increases your chances of getting

infected and spreading COVID-19” by making it difficult to follow the practices laid out in the

prevention guidelines. CDC, Travel in the US (June 28, 2020). 6 But, neither the CDC, nor any

other U.S. governmental body to the Court’s knowledge, has banned travel altogether. Id.

(providing tips on how to “protect yourself and others” if you travel). Indeed, commercial air

travel has continued throughout the duration of the pandemic, although at reduced levels and

with heightened safety precautions. See Dep’t of Transp., et al., Runway to Recovery (July

2020). 7 To date, there is no approved vaccine or cure for COVID-19. CDC, How to Protect

Yourself & Others (Apr. 24, 2020).

During the pandemic, ICE has continued to deport noncitizens subject to final removal

orders. At the heart of this case is whether appropriate safeguards are being taken during the

deportation process. ICE has submitted declarations from officials familiar with the process,

and, while not to be accepted blindly, these declarations are subject to a presumption of good

faith absent clearly contradictory evidence. C.G.B. v. Wolf, No. 20-cv-1072, 2020 WL 2935111,

at *6 (D.D.C. June 2, 2020) (Cooper, J.) (citing cases). According to ICE’s declarants, it has

5 https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission. 6 https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html. 7 https://www.transportation.gov/sites/dot.gov/files/2020-07/Runway_to_Recovery_ 07022020.pdf.

3 implemented additional health screening, cleaning, and transportation protocols to help prevent

the spread of COVID-19 while executing final orders of removal. Harper Decl. ¶ 7. ICE attests

that a medical professional with its Health Service Corps completes a transfer summary

certifying that each detainee is medically cleared for travel after a review of their medical

records. Id. ¶ 10. ICE conducts COVID-19 testing prior to removal, but only for migrants being

returned to countries that require the United States to do so. Id. ¶ 11. ICE has also implemented

additional pre-removal screening procedures, which entail evaluations of all deportees by a

health professional to determine whether they are experiencing any symptoms that would

preclude their travel, including those associated with COVID-19. Id. ¶ 12. Prior to boarding any

transportation vehicle, ICE also questions each detainee to confirm whether she is experiencing

any COVID-19 symptoms. Id. ¶ 14. If the detainee clears this screening process, she is

scheduled for removal. Id. Prior to removal, ICE medical staff ensures that each deportee’s

temperature is below 99 degrees, well under the 100.4-degree threshold that the CDC has

identified as a symptom of COVID-19. Id. ¶ 15.

ICE further attests that it provides detainees with personal protective equipment (“PPE”),

including surgical-grade face masks, nitrile gloves on request, and hand sanitizer, throughout the

removal process. Id. ¶ 17. 8 The same is true for transportation personnel. Id. ¶ 22. ICE requires

masks to be worn at all times and performs temperature checks on detainees every hour. Id. ¶

26. It now uses ICE-operated aircraft and ground vehicles only, which it says comply with CDC

8 Petitioners present declarations from migrants deported earlier in the pandemic who say they were not provided with the full range of PPE. See, e.g., T.A.L. Decl. ¶ 5 (no gloves); M.D.R.F. Decl. ¶ 5 (no gloves); M.M.R. Decl. ¶ 4, 8 (no gloves); M.C.P. Decl. ¶ 8 (no mask); A.C.L.T. Decl. ¶¶ 2–4 (no mask). ICE disputes some of these reports, but nonetheless responds that PPE is fully available to all deportees now. Hunt Decl. ¶¶ 9–16.

4 and ICE detention standards. Id. ¶ 7. ICE explains that all vehicles used during the removal

process are thoroughly cleaned and disinfected by a contractor before and after transports. Id.

¶ 21.

Upon arrival at an intermediate destination within the U.S., transportation specialists once

again check all deportees’ temperatures. Id. ¶ 28. ICE permits deportees to keep any PPE on the

next mode of transportation or for use in their home countries. Id. ICE flights now have an extra

medical provider, and its medical staff conducts another round of temperature checks and visual

screenings at the airport. Cordero Decl. ¶ 11–12. Detainees who fail these screenings are denied

boarding. Id. ¶ 13. During the flights, families must sit in the front of the plane while

individuals are placed at the rear, and, if possible, ICE instructs that empty seats remain between

families and individuals to maintain physical distance. Id. ¶ 18. The ICE-chartered planes are

also cleaned and disinfected after every flight. Id. ¶ 19. As noted, ICE only tests deportees for

COVID-19 prior to removal to countries that “require testing prior to repatriation.” Id. ¶ 7. It

explains that it simply “does not have enough testing resources to test all” noncitizens

“scheduled for future removals.” Id. ¶ 8.

Petitioners insist that many of the precautions ICE describes are simply not being taken

and that others are woefully inadequate. For example, an attorney who works with clients

detained at the Berks family residential center in Pennsylvania declares that deportation from

that center requires the use of public transportation and entails comingling with detainees from

other detention centers. Cambria Decl. ¶ 10–14. ICE acknowledges that detainees are

comingled during the deportation process but adds that social distancing is practiced “to the

extent possible.” Cordero Decl. ¶ 18. Petitioners explain that, prior to the pandemic, deportees

often had layovers with commercial airlines. Cambria Decl. ¶ 12. As noted, however, ICE

5 represents that it is currently only using ICE-chartered flights and “has taken reasonable steps to

ensure that all Air Charter flights comply” with CDC and FAA regulations. Martinez Decl. ¶ 4.

Despite ICE’s precautions, petitioners report that some removal flights have included individuals

infected with COVID-19. Cambria Decl. ¶ 15.

In addition to the dangers they face during the deportation process, petitioners fear what

may await them when they reach their home countries. 9 Many of these countries’ medical

systems, they allege, are ill-equipped to handle an influx of cases. Am. Pet’n & Compl. ¶¶ 209–

32. In some countries, such as Guatemala, petitioners say that new arrivals from the United

States are persecuted because they are seen as bringing the virus with them. See, e.g., T.A.L.

Decl. ¶¶ 12–26 (prior deportee describing physical intimidation and verbal abuse upon arrival in

Guatemala). They claim further that many of the non-profits and government agencies that

typically provide services to arriving deportees have been shuttered due to COVID-19. Fluharty

Decl. ¶ 17. Thus, some petitioners fear that they will be unable to contact family members or

arrange transportation to their final destinations upon their arrival.

B. Procedural History

1. Expedited Removal and Applications for Asylum

Petitioners each sought admission to the United States without valid entry documents

and, as a result, were placed into expedited removal proceedings. Under the expedited removal

statute, immigration officers were required to remove petitioners “from the United States without

further hearing or review unless [they] indicate[d] either an intention to apply for asylum . . . or a

9 Petitioners hail from Guatemala (72), Honduras (57), El Salvador (39), Haiti (14), Mexico (13), Ecuador (13), Brazil (6), Colombia (3), Chile (3), Nicaragua (2), and Peru (2). Am. Pet’n & Compl. ¶¶ 36–121.

6 fear of persecution” supporting a claim of withholding of removal. 8 U.S.C. § (b)(1)(A)(i).

After petitioners so indicated, they were interviewed by asylum officers, who sought to ascertain

whether each petitioner possessed a credible “fear of persecution,” such that there was “a

significant possibility . . . that [they] could establish eligibility for asylum.” Id.

§ 1225(b)(1)(B)(v). The asylum officers determined that all the petitioners failed to show a

credible fear of persecution. Consequently, they were required by statute to be “removed from

the United States,” subject to review within seven days by an immigration judge upon

petitioners’ request. Id. § 1225(b)(1)(B)(iii)(I)–(III). Petitioners requested this “prompt review,”

id., but the immigration judges all concurred with the asylum officers’ negative credible fear

determinations. Petitioners therefore each have a final order of expedited removal pursuant to

§ 1225(b). As described in more detail below, the Immigration and Nationality Act (“INA”)

severely limits judicial review of any of these determinations so as to ensure that removal is

indeed expedited. Id. § 1252(a)(2)(A).

Many of the petitioners faced an additional hurdle to establishing a claim for admission in

the summary expedited removal process. Last year, the Department of Homeland Security and

the Department of Justice jointly issued an interim rule, known as the “Transit Ban,” that

rendered migrants seeking admission at the border with Mexico categorically ineligible for

asylum unless they first applied for and were denied similar protection in a third country through

which they traveled. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829,

33,835 (July 16, 2019). The Transit Ban, however, did not prevent petitioners from seeking

admission and a withholding of removal under either section 241(b)(3) of the INA (which

enables them to seek a withholding of removal after they have a final order) or the Convention

Against Torture (which provides separate protections from removal). The upshot of the rule was

7 that petitioners who did not apply for asylum in an interim country faced a more substantial

burden when they sought admission to the U.S.; under both section 241(b)(3) and the Convention

Against Torture, asylum seekers are required to show that “it is more likely than not” that they

would either be persecuted on a protected ground or would be tortured if removed to the

proposed country. See 8 C.F.R. § 1208.16(b)(2); id. § 1208.16(c)(2). If petitioners subject to the

Transit Ban could not show that there was a “significant possibility” that they were eligible for

relief under either of those standards, the asylum officer was required to make a negative

credible-fear determination. Id. § 208.30(e)(2)–(3), (g). While this motion was pending, Judge

Timothy J. Kelly found that the Transit Ban violated the APA and vacated the rule. Cap. Area

Immigrants’ Rts. Coal. v. Trump, No. 19-cv-2117, 2020 WL 3542481, at *21–23 (D.D.C. June

30, 2020). 10

2. Related Litigation

Petitioners are no strangers to this court. Last September, some of them challenged the

validity of their removal orders in an action before Judge Amy Berman Jackson. See M.M.V. v.

Barr, No. 19-cv-2773, 2020 WL 1984309 (D.D.C. Apr. 27, 2020). 11 They invoked the court’s

10 After Judge Kelly vacated the Transit Ban, petitioners here amended their habeas petition and complaint to add a claim arguing that petitioners who were subject to the vacated Transit Ban do not have lawful final orders of removal. Am. Pet’n & Compl. ¶¶ 299–310. However, the currently detained petitioners have not moved to stay their removal on this ground. The Court therefore has not considered Judge Kelly’s ruling in deciding the present TRO motion. 11 Many of the petitioners are also plaintiffs in another lawsuit in this court seeking immediate release of all detainees in three family residential centers, including Dilley and Berks, on the ground that ICE’s failure to protect them from COVID-19 at the facilities violates due process. See Petition & Complaint at 38–42, O.M.G. v. Wolf, No. 20-cv-786 (JEB) (D.D.C. Mar. 21, 2020); Motion for Preliminary Injunction at 25, O.M.G. v. Wolf, No. 20-cv-786 (JEB) (D.D.C. July 2, 2020) (seeking a court order requiring DHS “to promptly release Petitioners and all detained families at the FRCs”) (emphasis added).

8 jurisdiction under 8 U.S.C. § 1252(e)(3), which authorizes federal court challenges to “written”

policies “implementing” expedited removal orders under certain circumstances. Judge Jackson

dismissed the bulk of the claims, finding that the majority of the alleged policies that the

petitioners challenged were not written and that the INA clearly stripped the court of jurisdiction

to review unwritten policies. M.M.V., 2020 WL 1984309, at *10–19. She also denied several

motions to join the suit by many would-be plaintiffs (also petitioners here) because they either

were not subject to the one written (and thus reviewable) policy or failed to challenge it within

sixty days of its implementation, as required by the statute. Id. at *20–22. Upon making that

determination, Judge Jackson lifted an administrative stay of petitioners’ deportations. Id. at

*21. The government began removing individuals the next day, and petitioners sought to stay

their deportations pending appeal. M.M.V. v. Barr, No. 19-cv-2773, 2020 WL 2119744, at *1

(D.D.C. May 1, 2020) (order denying stay pending appeal). Judge Jackson had entered another

administrative stay while she considered the motion to stay pending appeal, but she ultimately

denied the motion because the INA barred her from entering any injunctive relief. Id. at *3–4.

The D.C. Circuit issued a third administrative stay in the case within an hour of Judge Jackson’s

denial of the stay motion but lifted it two weeks later when it denied petitioners’ emergency

motion for a stay pending appeal. Order, M.M.V. v. Barr, No. 20-5106 (D.C. Cir. May 1, 2020)

(per curiam) (administrative stay); Order, M.M.V. v. Barr, No. 20-5106 (D.C. Cir. May 15,

2020) (per curiam) (denying stay pending appeal). While petitioners in M.M.V. apparently did

not raise the argument that lifting of the stay would expose them to undue COVID-19 risks, both

Judge Jackson and the Circuit surely appreciated the fact that deportations were likely to resume

forthwith during the pandemic.

9 3. Proceedings in this Case

This petition for habeas corpus, complaint for injunctive relief, and motion for temporary

restraining order (“TRO”) followed the next business day after the Circuit lifted petitioners’ stay

of removal. That evening, Judge Carl J. Nichols, acting in his capacity as emergency motion

judge, administratively stayed the deportations of the detained petitioners until a judge could be

assigned the case. Order Granting Administrative Stay (May 18, 2020), ECF No. 8. Petitioners

had indicated that this case was related to M.M.V. because it involved the same petitioners

seeking similar relief. Notice of Related Case (May 18, 2020), ECF No. 12. But this case raises

different claims than those in M.M.V. There, petitioners challenged the legality of the process

and standards that ICE used to determine that they were not entitled to asylum in the first

instance. Here, petitioners seek to prevent the government from deporting them during a global

pandemic in violation of the Constitution and the APA. Based on these differences, Judge

Jackson determined the cases were not related and ordered this petition to be randomly

reassigned. Minute Order (May 19, 2020); Order (May 21, 2020), ECF No. 15. She also

extended Judge Nichols’ stay until the assignment was made. Id. Upon receiving the case, this

Court further extended the administrative stay while it considered the TRO motion and heard

oral argument two days later. The government filed an opposition prior to the hearing, and the

Court permitted petitioners to file a reply afterwards. The government has also sought leave to

file a surreply, which the Court has considered and grants leave file. 12 The TRO motion is now

ripe.

12 Petitioners ask the Court to take judicial notice of two extra-record pieces of evidence. First, petitioners seek to introduce congressional testimony by ICE’s Executive Associate Director of Enforcement and Removal Operations, who recently testified to Congress that not all

10 II. Legal Standards

“A TRO is an extraordinary remedy and should be granted sparingly.” Basel Action

Network v. Mar. Admin., 285 F. Supp. 2d 58, 60 (D.D.C. 2003). To obtain a TRO, the moving

party must show: (1) that he is likely to succeed on the merits of his claim; (2) that he is likely to

suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in

his favor; and (4) that an injunction is in the public interest. See Winter v. Nat’l Res. Def.

Council, 555 U.S. 7, 20 (2008); Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) (“The

same standard applies to both temporary restraining orders and to preliminary injunctions”). The

D.C. Circuit has suggested, without holding, that the failure to establish a likelihood of success

on the merits categorically forecloses preliminary relief. Sherley v. Sebelius, 644 F.3d 388, 393

(D.C. Cir. 2011). It has made clear, however, that an absence of irreparable injury is fatal to a

plaintiff’s motion. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.

Cir. 2006).

Before reaching the merits, the Court should ensure that it has jurisdiction to consider

petitioners’ claims. Courts evaluate whether they have jurisdiction through the lens of the

deportees are tested prior to removal. Pet’rs’ Mot. for Judicial Notice (June 8, 2020), ECF No. 25. The Court will take judicial notice of this sworn testimony because congressional testimony “is not subject to reasonable dispute.” Fed. R. Evid. 201(b)(2); see also Didban v. Pompeo, 435 F. Supp. 3d 168, 177 n.5 (D.D.C. 2020) (this Court taking judicial notice of congressional testimony). Second, petitioners seek to introduce two newspaper articles discussing deportees who have tested positive for COVID-19 after removal. Pet’rs’ Mot. for Judicial Notice (June 26, 2020), ECF No. 29. The Court will take judicial notice of the “existence of these articles,” to show that ICE is aware of the reports. Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 113 (D.D.C. 2015) (taking judicial notice of newspaper articles “not . . . for the truth of their assertions,” but “for the fact that they . . . should have put plaintiff on notice of [their contents]” (citing Washington Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991) (“[A] court may take judicial notice of the existence of newspaper articles in the Washington, D.C., area that publicized” certain facts.))).

11 standard applicable at each stage of litigation. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). For example, “a party who fails to show a ‘substantial likelihood’ of standing is not

entitled to a” temporary restraining order. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,

913 (D.C. Cir. 2015) (citation omitted). “That same reasoning . . . extends to other jurisdictional

prerequisites.” California Ass’n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158,

167 (D.D.C. 2018). Thus, “[a]s part of establishing a likelihood of success on the merits, the

[petitioners] must first demonstrate a likelihood of success in establishing jurisdiction.” Make

the Rd. New York v. Wolf, 962 F.3d 612, 623 (D.C. Cir. 2020).

III. Analysis

The petitioners who are currently detained at the Dilley and Berks facilities seek an

emergency stay of their removal orders during the pandemic. They in essence raise two sorts of

claims. First, they allege that the travel conditions they would experience during the deportation

process do not comport with ICE or CDC guidelines and are inherently unsafe. Thus, they

contend that requiring them to travel during the pandemic violates their substantive due process

rights and the Administrative Procedure Act (“APA”). Second, they allege that the conditions

they would encounter in their home countries after the deportation process are dangerous due to

both the prevalence of COVID-19 and the stigma of having traveled from the United States.

Consequently, they claim releasing them in those destinations during the pandemic would also

violate their due process rights.

A. Likelihood of Jurisdiction

As mentioned, petitioners “must first demonstrate a likelihood of success in establishing

jurisdiction.” Make the Rd., 962 F.3d at 623. ICE contends that the Court lacks the power to

review petitioners’ claims due to section 242 of the INA, 8 U.S.C. § 1252, which strips federal

12 courts of jurisdiction to hear a wide variety of claims made by noncitizens in connection with

their immigration proceedings. The Court interprets jurisdiction-stripping provisions like § 1252

“against the backdrop of ‘a familiar principle of statutory construction: the presumption favoring

judicial review of administrative action.’” Id. (quoting Guerrero-Lasprilla v. Barr, 140 S. Ct.

1062, 1069 (2020)) (applying the presumption in interpreting § 1252). This “‘strong

presumption’ in favor of judicial review is so embedded in the law that it applies even when

determining the scope of statutory provisions specifically designed to limit judicial review” and

“can be overcome only by clear and convincing evidence of congressional intent to preclude

judicial review” over petitioners’ claims. Id. at 624 (internal quotations omitted). That principle

in mind, the Court will “start with the text, and then read those words in light of the statutory

structure and context.” Id. The government argues that review of both sets of petitioners’ claims

are independently foreclosed by two subsections of § 1252, namely § 1252(a)(2)(A) and §

1252(g). The Court takes each in turn.

1. Section 1252(a)(2)(A)

Section 1252(a)(2)(A) limits judicial review of orders of expedited removal issued under

8 U.S.C. § 1225(b)(1). The relevant parts state:

(2) Matters not subject to judicial review.

(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 this title.

13 8 U.S.C. § 1252(a)(2)(A)(i) (emphasis added). 13 The government contends that the prohibition

against judicial review of any claim “arising from or relating to the implementation . . . of an

order of [expedited] removal” bars review of all of petitioners’ claims here. Id. The Court does

not read that text so broadly. While the phrase “arising from or relating to” is expansive, it is not

limitless. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 476–87 (1999)

(narrowly construing the phrase “arising from” in § 1252(g)); Jennings v. Rodriguez, 138 S. Ct.

830, 839–41 (2018) (plurality) (narrowly construing the phrase “arising from” in § 1252(b)(9)

and emphasizing the Court’s long history of “eschew[ing] uncritical literalism” when

interpreting phrases like “arising from and relating to” when it would “lead[] to results that no

sensible person could have intended.” (internal quotation marks omitted)).

The Supreme Court’s ruling in Jennings v. Rodriquez highlights the point. Jennings

presented a claim by arriving noncitizens that their prolonged detention without a bond hearing

13 The government makes passing reference in its briefs to romanettes (ii)-(iv) of § 1252(a)(2)(A). To the extent the government contends that these provision bar petitioners’ claims, the Court finds them inapplicable. Petitioners do not challenge (ii) any “decision . . . to invoke” § 1225(b)(1); (iii) “the application of” § 1225(b)(1) to them; or (iv) any “procedures and policies adopted . . . to implement” § 1225(b)(1).

Subsection (e), the carve out to the jurisdictional bar in § 1252(a)(2)(A), is also inapplicable. Subsection (e) permits judicial review over three specific factual questions in habeas proceedings and over certain systemic challenges to the expedited removal process. With respect to an individual habeas petition, the Court may only review (1) whether a petitioner is a noncitizen, (2) whether they were in fact ordered removed, and (3) whether they have been lawfully admitted for permanent residence, as a refugee, or been granted asylum. 8 U.S.C. § 1252(e)(2). As for systemic challenges, the suit must be “filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure . . . is first implemented.” Id. § 1252(e)(3). It is undisputed that these claims fall outside those parameters.

Thus, the only inquiry remaining is under romanette (i), which asks whether petitioners’ claims “aris[e] from or relat[e] to the implementation or operation of an order of removal pursuant to section 1225(b)(1).”

14 violated due process. Jennings, 138 S. Ct. at 839. Section 1252(b)(9), another of the INA’s

jurisdiction-stripping provisions, requires all claims “arising from any action taken or proceeding

brought to remove an alien from the United States” to be brought together, at once, in a review of

a final order of removal before a federal circuit court. 8 U.S.C. § 1252(b)(9). 14 The claims in

Jennings, however, were brought separately from any review of a final order and in the district

court. The government thus argued that § 1252(b)(9) foreclosed the plaintiffs’ length-of-

detention challenge, at least until the review of a final order of removal, because the detention

itself arose from the removal proceedings.

A three-justice plurality of the Supreme Court rejected the government’s argument. 15

Writing for the plurality, Justice Alito explained that § 1252(b)(9) did not bar the claims

challenging prolonged detention because the plaintiffs did “not ask[] for review of an order of

removal; they [were] not challenging the decision to detain them in the first place or to seek

removal; and they [were] not even challenging any part of the process by which their

removability [would] be determined.” Jennings, 138 S. Ct. at 841 (plurality). The length-of-

detention constitutional claims were ancillary to the removal orders, the plurality explained,

14 Section 1252(b)(9) does not apply to the expedited removal process petitioners underwent here. See 8 U.S.C. § 1252(a)(1) (exempting expedited orders of removal from the judicial review provisions of subsection (b)). As discussed, the § 1252(a)(2)(A) jurisdiction- stripping provisions govern the reviewability of claims by noncitizens with expedited removal orders. 15 Although the bulk of the Jennings opinion garnered a majority vote, the jurisdiction section interpreting the INA was only joined by three members of the Court. However, six justices in total (the plurality plus a three-justice dissent) agreed that the INA did not bar review. (The dissent would have read the INA jurisdiction-stripping provisions even more narrowly than the plurality.) The two concurring justices, who joined the remainder of the Jennings opinion, would have held that the INA barred the petitioners claims. (Attentive readers will have counted only eight votes; Justice Kagan did not participate in the case.)

15 because “the legal questions” in the case were “too remote from” any “action taken to remove an

alien,” even if detention itself arises from such an action. Id. at 841 n.3. This was so even

though “it may be argued” that the length-of-detention claims arose from the actions taken to

order removal “in the sense that if those actions had never been taken, the aliens would not be in

custody at all.” Id. at 840. A contrary conclusion, in Justice Alito’s view, would have led to

“staggering results,” such as requiring Bivens claims based on inhumane conditions of

confinement or state-law tort claims to be reviewable only during judicial review of final

removal orders. Id.

Justice Thomas (along with Justice Gorsuch) rejected the plurality’s reasoning because,

to him, “detention is an ‘action taken . . . to remove’ an alien[.]” Id. at 855 (Thomas, J.,

concurring in part). As a result, he would have rejected the detainees’ challenge as they were

only contesting the fact of their detention. Id. He noted, however, that his interpretation of the

statute would still preclude the “staggering results” that the plurality feared. Id. He explained:

[M]y conclusion that § 1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government’s lawful pursuit of its removal objective).

Id. (citing Bell v. Wolfish, 441 U.S. 520, 536–39 (1979) (drawing a similar distinction)).

The three remaining justices would have read the language in § 1252(b)(9) even more

narrowly, such that it would only apply to challenges to the removal order itself. Id. at 876

(Breyer, J., dissenting). Thus, the Court unanimously agreed that ancillary challenges, such as

those to the conditions of confinement, were not channeled into the review of a final removal

order by § 1252(b)(9).

16 Jennings’ logic applies here. Recall that § 1252(a)(2)(A)(i) bars the Court from

reviewing “any individual determination or [from] entertain[ing] 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),” which governs expedited removals. Section 1252(b)(9), at issue in Jennings, is

similar. Although it does not bar review completely, it requires claims “arising from any action

taken or proceeding brought to remove an alien from the United States,” apart from expedited

removal orders, to be brought alongside the review of a final removal order before a federal

circuit court. 8 U.S.C. § 1252(b)(9). Justice Thomas’ distinction between challenging the fact of

detention and challenging circumstances that arise during detention perfectly encapsulates the

issues here, and all eight of the justices who participated in Jennings agreed that § 1252(b)(9) did

not apply to ancillary claims such as those that arise from conditions suffered during detention.

Petitioners’ first set of claims (i.e., those aimed at COVID-related travel risks) do not

challenge the fact of their removals; they challenge the conditions they would face during the

removal process. Those claims are not related to the executive’s discretionary decisions to

implement or execute a removal order. See Reno, 525 U.S. at 486 (recognizing that

§ 1252(a)(2)(A) is “aimed at protecting the Executive’s discretion from the courts”).

Furthermore, accepting the government’s expansive interpretation of § 1252(a)(2)(A) would lead

to even more absurd results than the Supreme Court contemplated in Jennings. There, the

plurality explained that interpreting § 1252(b)(9) to cover the plaintiffs’ length-of-detention

claims would have required claims based on inhumane conditions of confinement and state law

tort claims to be reviewed only during the review of final orders. Jennings, 138 S. Ct. at 840.

That delay could have prevented meaningful review for noncitizens detained at length before

they were able reach the courthouse doors. Here, because petitioners are subject to expedited

17 removal orders, the government’s interpretation would mean that alleged unconstitutional

conditions of confinement could not be challenged at all. See 8 U.S.C. § 1252(a)(2)(A).

In sum, the INA gives the government virtually unreviewable authority to decide whether

and when to implement the petitioners’ removal orders, but the Court retains jurisdiction to hear

claims challenging the constitutionality of the manner in which the government physically

carries out the removals during the deportation process. That conclusion comports with the text

and purpose of § 1252(a)(2)(A) and prevents the type of “staggering results” that the Supreme

Court sought to avoid in Jennings. 16

2. Section 1252(g)

Turning to § 1252(g), which the government contends independently strips the Court of

jurisdiction over all of petitioners’ claims, the Court likewise finds that petitioners’ conditions-

of-deportation claims likely are not barred by that provision. Section 1252(g) prohibits the

courts from hearing any claim “arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g)

(emphasis added). The Supreme Court has narrowly construed this subsection to preclude only

16 The Third Circuit’s decision in Castro v. DHS, 835 F.3d 422 (3d Cir. 2016), which the government cites to support its claim of non-reviewability, is not to the contrary. There, habeas petitioners claimed that “the asylum officer and [immigration judge] conducting their credible fear interview and review violated their Fifth Amendment procedural due process rights,” as well as other rights under statutes and treaties, by “fail[ing] to prepare a written record of their negative credible fear determinations that included the officers’ analysis of why . . . the alien has not established a credible fear of persecution,” and by “apply[ing] a higher standard for evaluating the credibility of their fear of persecution than is called for in the statute.” Castro, 835 F.3d at 428 & n.8. Those claims were clearly barred by the INA because they related directly to the agency’s process of determining whether the noncitizens should be removed. Castro did not confront whether claims that are untethered to the process or decision to implement a removal order, like those here challenging the manner of deportation, fall within the ambit of the statute. As explained above, they do not.

18 challenges to the three enumerated actions listed in the statute: deciding to commence

proceedings, deciding to adjudicate cases, and deciding to execute removal orders. Reno, 525

U.S. at 482. These three actions, the Court has observed, “represent the initiation or prosecution

of various stages in the deportation process.” Id. at 483. “At each stage the Executive has

discretion to abandon the endeavor,” and Congress saw fit to insulate these discretionary

judgments from judicial review. Id. at 483–84 (observing that Congress sought to curtail the

ability of noncitizens to challenge discretionary decisions by the government not to defer

immigration actions “for humanitarian reasons or simply for its own convenience,” which had

become a regular practice); see also DHS v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907

(2020) (“Section 1252(g) is . . . narrow.”).

By contrast, nondiscretionary decisions, such as physically deporting noncitizens in an

unconstitutional manner, likely fall outside the statute’s jurisdictional bar. And petitioners’

challenge to the physical manner of their deportation does not implicate the agency’s

discretionary decision to execute their removal orders. The immigration authorities are

“empowered to remove Petitioner[s] at their discretion. But they cannot do so in any manner

they please.” You, Xiu Quing v. Nielsen, 321 F. Supp. 3d 451, 457 (S.D.N.Y. 2018). The

decisions challenged here regarding how to transport deportees during the ongoing pandemic are

more akin to the “other decisions or actions that may be part of the deportation process—such as

the decisions to open an investigation, to surveil the suspected violator, to reschedule the

deportation hearing, to include various provisions in the final order that is the product of the

adjudication, and to refuse reconsideration of that order”—that the Supreme Court in Reno found

not to be encompassed by § 1252(g). Reno, 525 U.S. at 482.

19 Petitioners’ second set of claims, which challenge their removal to countries they allege

are ill-equipped to receive them, do not fare as well under § 1252(g). Petitioners argue that it

would violate due process by releasing them into countries where COVID-19 is not controlled or

where they will face persecution due to fear on the part of their compatriots that they are carrying

the virus from the United States. Unlike the claims based on the conditions of deportation, this

challenge directly implicates the government’s discretionary authority to return noncitizens to

their native countries. See Reno, 525 U.S. at 483–84 (noting that the decision to execute a

removal order “represent[s] the initiation or prosecution of [a particular] stage[] in the

deportation process” and that the “the Executive has discretion to abandon the endeavor” at that

stage for “humanitarian reasons” or otherwise). In determining whether to implement

petitioners’ removal orders, the government necessarily must decide whether to return them to

their home countries. Petitioners’ contention that they would face danger in those same

countries unavoidably calls into question that judgment, which, for better or worse, Congress has

left to the exclusive province of the Executive branch. See generally 8 U.S.C. § 1231(c)(2)(A)(i)

(“The Attorney General may stay the removal of an alien under this subsection if the Attorney

General decides that immediate removal is not practicable or proper.”). 17

Permitting judicial review of due process challenges to the conditions in petitioners’

home countries could also open the door to impermissible relitigation of negative credible-fear

17 It also bears noting that the INA provides a separate procedure for petitioners to reopen removal proceedings on the basis that changed country conditions warrant relief. See 8 U.S.C. § 1229a(c)(7)(C)(ii) (permitting noncitizens to file a belated motion to open removal proceedings “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding”); 8 C.F.R. § 1208.4(a)(4)(i)(A)–(B).

20 determinations. Take, for example, a noncitizen with an expedited removal order who claims

that it would violate due process for ICE to release him into his home country because there is a

civil war raging there and he will be persecuted when he arrives. If the presence of the civil war

was the factual basis for his rejected asylum application, his claims clearly would be barred. In

ordering the noncitizen removed, the agency would necessarily have already rejected the

petitioner’s claim that the civil war warranted asylum, and one of the primary purposes of the

INA’s jurisdiction-stripping provisions is to prevent the relitigation of the agency’s initial asylum

determinations. See DHS v. Thuraissigiam, 140 S. Ct. 1959, 1966 (2020) (“A major objective of

[these provisions] was to ‘protec[t] the Executive’s discretion’ from undue interference by the

courts; indeed, ‘that can fairly be said to be the theme of the legislation.’” (quoting Reno, 525

U.S. at 486)). Granted, petitioners’ home-country claims here are not based on the same factual

predicate as their underlying asylum claims. But, even though petitioners “may not be directly

questioning the agency’s discretionary” decision to carry out their removal orders, the INA bars

review of claims that effectively do so. C.G.B., 2020 WL 2935111, at *30 (citing Giammarco v.

Kerlikowske, 665 F. App’x 24, 26 (2d Cir. 2016) (“[B]ecause [the] petition for a writ of habeas

corpus ad testificandum essentially seeks to void discretionary decisions denying [a detainee] the

same relief, his petition is inextricably linked to those decisions,” there is no “jurisdiction to

consider the merits of [the] habeas petition [under 8 U.S.C. § 1252(a)(2)(B)].” (citations

omitted))).

Because the decision to return petitioners to their home countries is part and parcel of

ICE’s discretionary, unreviewable decision to execute their expedited removal orders, the Court

21 finds that § 1252(g) likely divests it of jurisdiction to hear petitioners’ claims that exposing them

to dangerous conditions in those countries would violate due process. 18

3. The Suspension Clause

The final aspect of the Court’s jurisdictional inquiry involves the Suspension Clause of

the Constitution, which prohibits the political branches from “suspend[ing]” the writ of habeas

corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it,” U.S.

Const. Art. I, § IX, cl. 2. Petitioners contend that if the Court were to hold that the INA bars

jurisdiction over their claims, the statute would violate the Suspension Clause. After the briefing

on petitioners’ motion was completed, the Supreme Court clarified that the Suspension Clause

only protects “core” habeas claims, namely those that challenge present physical confinement.

Thuraissigiam, 140 S. Ct. at 1970–71. Here, petitioners seek a “non-core” application of the writ

in that they “challenge[] something other than [their] present physical confinement.” Rumsfeld

v. Padilla, 542 U.S. 426, 438 (2004). Indeed, they seek to stay their deportation and thereby

remain in custody. Accordingly, the INA’s bar to judicial review of the petitioner’s home-

country claims does not implicate the Suspension Clause.

***

Section 1252 is one of the most comprehensive jurisdiction-stripping statutes in the

United State Code, yet some claims manage to escape its clutches. Because the text of the INA

does not clearly prohibit the Court from reviewing the constitutionality of the physical manner in

18 Petitioners’ home-country claims are also likely barred by § 1252(a)(2)(A)(i) for similar reasons. Because the government has discretion to begin or suspend the execution of removal orders, these claims could be said to challenge the fact of deportation and therefore “aris[e] from or relat[e] to the implementation or operation of an order of removal” within the meaning of § 1252(a)(2)(A)(i). See Jennings, 138 S. Ct. at 855 (Thomas, J., concurring in part).

22 which petitioners would be deported, the Court likely has jurisdiction to decide those claims. On

the other hand, petitioners’ due-process claims based on conditions they might encounter in their

home countries directly implicate the government’s discretionary decision to carry out their

removal orders such that the Court likely lacks jurisdiction over those claims. The Court will

therefore only analyze petitioners’ likelihood of succeeding on the merits of their manner-of-

deportation claims.

B. Likelihood of Success on the Merits

Again, the petitioners claim that the manner of their contemplated deportations—

specifically, their exposure to the risks of contracting COVID-19 during the transportation

process—would violate both their Fifth Amendment due process rights and the APA. The Court

concludes that petitioners have not established a likelihood of success on the merits of their

claim on either ground.

1. Due Process

Taking due process first, the government argues out of the blocks that petitioners do not

have due process rights because they have not been lawfully admitted to the United States.

Gov’t’s Opp’n 21. Not so. The Supreme Court recently clarified that an asylum seeker with a

negative credible-fear determination “has only those rights regarding admission that Congress

has provided by statute.” Thuraissigiam, 140 S. Ct. at 1982–83 (emphasis added) (citing Landon

v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial

admission to the United States requests a privilege and has no constitutional rights regarding his

application.” (emphasis added)). Petitioners here do not seek to vindicate procedural due

process rights related to their asylum applications, which the Supreme Court has now expressly

limited to the process provided by statute. Rather, they are seeking to enforce substantive due

23 process rights based on what amounts to unconstitutional conditions of confinement during the

removal process. See id. at 2013 n.12 (Sotomayor, J., dissenting) (“Presumably a challenge to

the length or conditions of confinement pending a hearing before an immigration judge falls

outside of that class of cases. Because respondent only sought promised asylum procedures,

today’s decision can extend no further than these claims for relief.”). The Court therefore finds

that petitioners are entitled to due process in relation to the conditions attendant to their

deportations.

The question, then, is whether the deporting the currently detained petitioners during the

pandemic would likely offend due process. This Court recently laid out the constitutional

standards that apply to a conditions of confinement challenge brought by noncitizens in civil

immigration detention:

When the Government “takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume some responsibility for [her] safety and general well-being[.]” DeShaney v. Winnebago Cnty. Dep't. of Social Serv., 489 U.S. 189, 199–200 (1989). Confinement of a person in a way that “renders [her] unable to care for [her]self, and at the same time fails to provide for [her] basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” violates the Eighth Amendment to the Constitution. Id. Accordingly, the Eighth Amendment prohibits the Government from “ignor[ing] a condition of confinement that is sure or very likely to cause serious illness.” Helling v. McKinney, 509 U.S. 25, 33 (1993). While civil immigration detainees are protected by the Fifth Amendment’s Due Process Clause, these Eighth Amendment protections nevertheless apply to them “because a [civil] detainee’s rights are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.’” Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *3 (W.D.N.Y. Apr. 2, 2020) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).

To assess whether conditions of confinement violates due process, courts consider whether the conditions “amount to punishment of the detainee.” Bell, 441 U.S. at 535. Because civil immigration detainees, like pretrial criminal detainees, have not been convicted of any present crime, they “may not be subjected to punishment of any description.” Hardy v. District of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)).

24 In determining whether conditions of confinement amount to punishment, “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell, 441 U.S. at 538.

C.G.B., 2020 WL 2935111, at *22. Because petitioners would remain in ICE’s custody during

the deportation process up to the point of their release into their home countries, the Court will

apply this standard to their challenge to the conditions attendant to that process. 19 The relevant

inquiry, therefore, is whether the manner in which their deportations would be carried out is

“rationally related to a legitimate nonpunitive governmental purpose or . . . appear[s] excessive

in relation to that purpose.” Kingsley, 135 S. Ct. at 2373–74 (quoting Bell, 441 U.S. at 538). 20

The government plainly has a legitimate interest in the enforcement of immigration laws,

and Congress has deemed that interest to be furthered by expeditiously removing asylum seekers

who have been found not to have a credible fear of persecution in their native countries. See,

e.g., Landon, 459 U.S. at 34 (“The government’s interest in efficient administration of the

immigration laws at the border . . . is weighty.”). In C.G.B., this Court considered whether the

conditions of detention experienced by certain noncitizens at five ICE facilities across the

country violated due process. Finding that the conditions likely violated the due process rights of

some, but not all, of the detainees, the Court explained that “the Constitution does not require

19 Petitioners frame their claims under the higher “deliberate indifference” and “shocks the conscience” standards that apply in substantive due process cases where the government has a “special-relationship” with the plaintiff or has exposed him to “state-created danger.” See, e.g., Harris v. District of Columbia, 932 F.2d 10, 14 (D.C. Cir. 1991); Butera v. District of Columbia, 235 F.3d 637, 649–51 (D.C. Cir. 2001). Because, as discussed, their claims are unlikely to succeed under the lower standard set out in C.G.B., they are necessarily likely to fail under these higher standards. 20 Petitioners do not allege “an expressed intent to punish on the part of [ICE] officials.” Bell, 441 U.S. at 538 (internal quotation marks omitted).

25 ICE to reduce the risk of harm to zero.” C.G.B., 2020 WL 2935111, at *23 (quoting Benavides

v. Gartland, No. 20-cv-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020)). “If it did, then

any detention that does not allow detainees to perfectly practice social distancing would be per se

unconstitutional.” Id. The same reasoning applies to ICE’s detention of deportees during the

removal process. Due process only requires ICE to provide petitioners with “reasonable safety,”

not perfect safety. DeShaney, 489 U.S. at 200.

As noted previously, ICE has provided the Court sworn declarations, which carry a

presumption of good faith, indicating that it has taken a series of reasonable precautions to

mitigate the possibility that petitioners traveling from the Berks or Dilley facility will be exposed

to COVID-19 during their journey home. It will conduct verbal screenings and temperature

checks of all deportees at each leg of the trip and prohibit anyone exhibiting COVID-19

symptoms from traveling further. It will provide all travelers with hand sanitizer and masks,

which they will be required to wear. It has also arranged for dedicated charter flights and ground

transportation for all trips, so no petitioner will be forced to congregate in commercial airports or

travel in commercial vehicles or planes. Each flight will carry a healthcare provider proficient in

aviation medicine, who will conduct additional pre-removal visual screenings and distribute

additional PPE as needed. And ICE has committed to segregating families from individuals on

flights and limiting the number of passengers on any given flight to allow for physical distancing

“to the extent possible.”

Still, as ICE itself acknowledges, these preventative measures will not eliminate the risk

of exposure altogether. Petitioners correctly note that ICE’s inability to ensure complete

compliance with CDC’s social distancing guidelines will increase their risk of exposure to some

extent. They also stress that ICE’s failure to test every deportee (in lieu of symptom-based

26 screening) makes it possible that asymptomatic COVID carriers will be traveling alongside non-

infected petitioners. Again, however, due process does not demand zero risk. It only requires

ICE to ensure its detainees reasonably safe conditions. The Court is persuaded that with the

precautions it has adopted, ICE has met that standard. While the CDC has recommended against

all non-essential travel during the pandemic, it has not suggested that travel be banned entirely.

Consistent with that guidance, commercial airlines have continued to operate during the

pandemic. And the conditions that thousands of commercial air travelers currently experience

every day (albeit mostly voluntarily)—required masks but no guarantee of an unoccupied

adjacent seat or row and no COVID testing—are comparable to those that petitioners would face

on ICE charter flights. See Dep’t of Transp., et al., Runway to Recovery, at 29–30 (July 2020).

More importantly, the Court must assess the conditions that petitioners would experience

during the deportation process relative to those they would continue to face were the Court to

grant the requested stay. While the parties have not provided the Court with any information on

the prevalence of the virus or ICE’s prevention efforts at the Berks and Dilley facilities,

petitioners’ counsel are actively pursuing litigation against ICE elsewhere in this court on behalf

of detainees at both facilities over their alleged non-compliance with CDC’s COVID-19

guidelines. See Petition & Complaint at 3, O.M.G. v. Wolf, No. 20-cv-786 (JEB) (filed D.D.C.

Mar. 21, 2020) (alleging that ICE has “failed to provide education to Petitioners and individuals

employed at the [facilities], ensure that minimum basic necessities such as soap or hand sanitizer

are provided, and ensure that is possible to achieve the critical need for social distancing”).

Indeed, Judge Dolly Gee in the Central District of California recently found that detainees at

ICE’s family residential centers, including at Berks and Dilley, are at a high risk for COVID-19.

Flores v. Barr, No. 85-cv-4544, 2020 WL 3488040, at *1 (C.D. Cal. June 26, 2020). She

27 specifically found that that “individuals living in congregate settings are more vulnerable to the

virus,” that “four employees at Dilley already have tested positive,” that there have been “recent

increases in COVID-19 infection rates in the counties in which . . . Dilley [is] located,” and that

“six children were afflicted with viral stomatitis in or about April 2020, further demonstrating

the ease with which contagion can spread in congregate settings.” Id. Likewise, while

petitioners note the purported risk associated with comingling deportees from multiple facilities

during the deportation process, similar risk exists within the detention centers. The populations

of the centers are in flux, detainees are not tested on a routine basis, and staff come and go daily.

Petitioners therefore have not shown that commingling during the removal process would

increase their exposure to the virus beyond what it is now, let alone to such an extent that would

violate constitutional due process.

The bottom line is that the risks of the removal process cannot be assessed a vacuum.

Rather, the Court must ask whether it is reasonable for ICE to expose petitioners to the

temporary risks of traveling as compared to the indefinite risks of remaining in congregate

detention facilities with transient detainee populations who have not all been tested for the virus

and staff entering and leaving every day. Viewed from that perspective, the Court has little

difficulty concluding that petitioners are not likely to show that ICE will subject them to an

unreasonable health risk by carrying out their removals with the precautionary measures ICE has

committed to taking.

2. Administrative Procedure Act

Petitioners also contend that their removal during the pandemic would violate the APA.

They root their APA claim in United States ex rel. Accardi v. Shaughnessy (“Accardi”), where

the Supreme Court vacated a deportation order that was issued in a manner that did not comply

28 with “[r]egulations [that] prescribe[d] the procedure to be followed in processing an alien’s

application for suspension of deportation.” 347 U.S. 260, 265 (1954). “Accardi has come to

stand for the proposition that agencies may not violate their own rules and regulations to the

prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005). Rules that fall

within Accardi’s ambit include “internal agency guidance” that are “intended” to be “binding

norm[s].” Damus v. Nielsen, 313 F. Supp. 3d 317, 336 (quoting Padula v. Webster, 822 F.2d 97,

100 (D.C. Cir. 1987)). Petitioners contend that, under Accardi, ICE’s failure to follow CDC

guidance and its own policies in responding to the COVID-19 pandemic is arbitrary and

capricious. Am. Pet’n & Compl. ¶¶ 287–98. The government responds that petitioners do not

challenge the type of regulation encompassed by Accardi and that, regardless, they have not

shown that ICE is violating the guidelines. The Court agrees that petitioners’ claims fall outside

the Accardi doctrine.

As this Court recently explained, “agency regulations do not create substantive due

process rights.” C.G.B., 2020 WL 2935111, at *34 (emphasis in original). Accardi is instead

“rooted instead in notions of procedural due process.” Id. (emphasis in original) (citing Lopez v.

FAA, 318 F.3d 242, 246 (D.C. Cir. 2003); Thomas W. Merrill, The Accardi Principle, 74 Geo.

Wash. L. Rev. 569, 577 (2006) (noting that all post-1950s Supreme Court cases “that reference

the Accardi principle . . . involve procedural as opposed to substantive regulations.”)). In Damus

v. Neilson, for example, the court held that plaintiffs could challenge ICE’s failure to comply its

own Parole Directive, which imposed “a number of procedural requirements for assessing

asylum-seekers’ eligibility for release,” including “an opportunity to submit documentation, the

availability of an individualized parole interview, and an explanation of the reasons for a parole

denial.” 313 F. Supp. 3d at 324, 337; see also Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 151

29 (D.D.C. 2018) (recognizing an Accardi claim related to a policy that “establishe[d] procedural

rights for asylum seekers in connection with the parole process”). The guidelines involved here,

conversely, set out substantive standards for how to handle the COVID-19 crisis. But because

Accardi does not create substantive rights, petitioners cannot rely on the APA to enforce the

government’s adherence to CDC guidelines or its own internal guidance during their removals.

Petitioners therefore have not established likelihood of success on the merits of their APA claim.

C. Irreparable Injury

Moving to the irreparable injury prong of the TRO analysis, deportation pursuant to a

valid removal order is “not categorically irreparable.” Nken v. Holder, 556 U.S. 418, 435

(2009). That is, “the burden of removal alone cannot constitute the requisite irreparable

injury.” Id. (emphasis added). The Supreme Court explained that noncitizens were not

irreparably harmed when they could “continue to pursue their petitions for review” after removal

and, if they prevailed, could “be afforded effective relief by facilitation of their

return.” Id. Here, however, removal during the pandemic would effectively foreclose this

petition from review; petitioners obviously could not challenge the legality of the conditions of

their deportation during a pandemic after they have been removed. Even if they could, the Court

would not be able to afford them effective relief. Petitioners have, therefore, demonstrated

irreparable harm in that regard. 21

21 While the Court finds petitioners have shown irreparable harm insofar as they would be unable to mount their challenge absent a stay, as discussed above in connection with the merits prong of the TRO analysis, they have failed to show that the alleged harm associated with the deportation process would be any greater than the present harm inside the Dilley and Berks facilities. In fact, it may well be less.

30 D. Balance of the Equities and the Public Interest

When the movant seeks to enjoin the government, the final two TRO factors—balancing

the equities and the public interest—merge. See Pursuing Am.’s Greatness v. FEC, 831 F.3d

500, 511 (D.C. Cir. 2016). There are equities and public interests on both sides of the scale

here. As the Supreme Court has noted, “[t]here is always a public interest in prompt execution

of removal orders” because “[t]he continued presence of an alien lawfully deemed removable

undermines the streamlined removal proceedings [Congress] established, and ‘permit[s] and

prolong[s] a continuing violation of United States law.’” Nken, 556 U.S. at 436 (quoting Reno,

525 U.S. at 490). But that interest is not as strong where, as here, petitioners “are not being

removed because they violated the law.” M.M.V., 2020 WL 2119744, at *3. Nor is it as strong,

perhaps, where legitimate concerns have been raised over the circumstances surrounding the

denial of petitioners’ asylum petitions. Id. (referencing a number of “troubling” circumstances

surrounding petitioners’ applications—including the application of the Transit Ban, adversarial

interviews, negative social media posts by interviewing officers, and the failure to apply the most

favorable circuit precedent—that the court did not have jurisdiction to review); see also M.M.V.,

2020 WL 1984309, at *4–6, 12–16. The Supreme Court has also recognized that there is a

“public interest in preventing aliens from being wrongfully removed, particularly to countries

where they are likely to face substantial harm.” Nken, 556 U.S. at 436. Absent a TRO staying

their removal, petitioners will very likely be deported during a worldwide pandemic, exposing

them to at least some risk of contracting the virus along the way. It is in the public interest to

avoid or reduce that risk. As discussed above, however, petitioners’ deportation could

potentially reduce their overall COVID exposure by removing them from congregate detention

facilities that have been found not to comply with relevant CDC guidelines. Lowering the

31 capacity of those facilities would also curtail the remaining detainees’ exposure to the virus,

which is also in the public interest. Weighing these factors, the Court cannot say that balance

tips decidedly towards one party or the other.

While petitioners will suffer irreparable harm insofar as they will not be able to mount

this challenge after their deportation, because they are unlikely to succeed on the merits and the

other two factors do not “‘clearly favor[]’ granting the injunction,” Davis v. Pension Ben. Guar.

Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009), the Court must decline to enter a temporary

restraining order and will lift the administrative stay of removal.

IV. Venue

Finally, the government asks the Court to transfer venue after denying petitioners’ TRO

motion because the so-called immediate physical custody rule requires habeas petitions to be

heard in the district where the detainees are held. Opp’n 36. It also maintains that “this case

presents a local controversy related to ICE removal operations” and should be transferred “to a

district where one of the Family Residential Centers [at issue] are located (i.e., the Southern

District of Texas or Eastern District of Pennsylvania).” Id. Petitioners respond that the

immediate physical custody rule only applies to core habeas petitions challenging detention itself

as unlawful and seeking release. Reply 30 (citing Rumsfeld v. Padilla, 542 U.S. 426, 435

(2004)). They say that non-core claims, like those here, need not follow that rule. Id.

Petitioners are generally correct. The Supreme Court has held that core habeas claims

must follow the physical custody rule but that the rule should not be so rigidly applied to non-

core claims. Padilla, 542 U.S. at 435. For non-core petitions, courts “have relied on traditional

venue considerations such as the location of material events, the location of records and

32 witnesses pertinent to the claim, and the relative convenience of the forum for each party.”

S.N.C. v. Sessions, 325 F. Supp. 3d 401, 408 (S.D.N.Y. 2018) (internal quotation marks

omitted). At this juncture, however, the Court lacks sufficient information to decide whether the

District of Columbia is the most appropriate venue. The government has not formally moved for

transfer and the cursory discussion of the issue in its opposition brief does not confront all the

factors relevant to customary venue considerations under 28 U.S.C. § 1404(a). The Court

therefore will defer consideration of venue until such a motion is made.

V. Conclusion

While the Court concludes that petitioners have not satisfied the exacting standard

required for the issuance of a TRO, it will remind the government that, whatever circumstances

brought the petitioners to this country, they are now in our care and will remain so until they

reach their home countries. For that reason alone, the government has a duty to carry out their

lawful removal in as safe and humane a fashion as possible. The Court has accepted ICE’s

representations that is has implemented preventative measures to reduce the risk of COVID

exposure during petitioners’ journeys. It expects them to be followed. The Court also urges ICE

not to spare expense or cut corners in the transportation process, such as by unnecessarily filling

buses and planes to their full capacity. The law may require petitioners’ removal to be

“expedited,” but it does not demand that it be so hurried or incautious as to jeopardize their

wellbeing.

That said, and for the foregoing reasons, the Court must deny Petitioners’ Motion for a

Temporary Restraining Order and lift the administrative stay. A separate Order shall follow.

Date: July 23, 2020 ________________________ CHRISTOPHER R. COOPER United States District Judge