Huisha-Huisha v. Gaynor

• Court: District Court, District of Columbia
• Decided: September 16, 2021
• Docket: Civil Action No. 2021-0100
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NANCY GIMENA HUISHA-HUISHA, et al.,

Plaintiffs,

v. Civ. Action No. 21-100(EGS)

ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs—a group of asylum-seeking families who fled to

the United States—bring this lawsuit against Alejandro Mayorkas, 1

in his official capacity as Secretary of Homeland Security, and

various other federal government officials (“Defendants” or the

“government”) for violations of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 701, et seq.; the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101, et seq.; the Foreign

Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C.

§ 1231 note; and the Public Health Service Act of 1944, 42 U.S.C

§ 201, et seq. Pending before the Court are Plaintiffs’ Motion

for Class Certification and Motion for Classwide Preliminary

1 Alejandro Mayorkas is substituted pursuant to Federal Rule of Civil Procedure 25(d). 1 Injunction. See Pls.’ Mot. Class Cert., ECF No. 23-1; Mem. Supp.

Pls.’ Mot. Classwide Prelim. Inj. (“Pls.’ Mot. Prelim. Inj.”),

ECF No. 57-1. 2 Upon careful consideration of the motions, the

responses, and replies thereto, the applicable law, and the

entire record, the Court GRANTS Plaintiffs’ Motion for Class

Certification and GRANTS Plaintiffs’ Motion for Classwide

Preliminary Injunction. 3

I. Background

A. Factual Background

1. The U.S. Asylum Process

“For almost a century, Congress has recognized that

citizens of foreign states are sometimes forced to flee from

persecution in their home countries, and it has been the policy

of the United States government that this country ought to serve

2 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF page number, not the page number of the filed document. 3 On August 11, 2021, Defendants filed a motion for oral argument

on Plaintiffs’ motion for preliminary injunction. See Mot. Oral Argument, ECF No. 117. Pursuant to Local Civil Rule 65(d), “[o]n request of the moving party together with a statement of the facts which make expedition essential, a hearing on an application for preliminary injunction shall be set by the Court no later than 21 days after its filing, unless the Court earlier decides the motion on the papers or makes a finding that a later hearing date will not prejudice the parties.” Here, while Plaintiffs filed their motion on February 5, 2021, briefing on the motion was stayed until August 5, 2021. See Min. Order (Aug. 5, 2021). Thus, the Court finds that there is no prejudice to the parties in declining to hold a hearing on Plaintiffs’ motion and shall instead decide the motion on the papers. Defendants’ motion for oral argument is therefore denied. 2 as a place of refuge for persons who are in such distress.”

Kiakombua v. Wolf, 498 F. Supp. 3d 1, 11-12 (D.D.C. 2020). In

keeping with this policy, Congress has codified various

procedures governing how the United States evaluates and

processes the admission requests of refugees. As relevant here,

there are three primary protections for asylum seekers in place

under current immigration laws.

First, in 1980, Congress passed the Refugee Act, Pub. L.

No. 96-212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-

414, 66 Stat. 163 (1952) (codified as amended in sections of 8

U.S.C.). The Refugee Act created a statutory procedure for

refugees seeking asylum and established the standards for

granting such requests. The INA currently governs this

procedure, and it provides that “[a]ny 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 . . . ),

irrespective of such alien’s status, may apply for asylum.” 8

U.S.C. § 1158(a)(1). The Attorney General is granted the

discretion to grant asylum. Id. § 1158 (b)(1)(A). However, that

relief can only be granted if the alien is a “refugee,” as

defined by federal law. Id. Pursuant to the INA, a “refugee” is

“any person who is outside any country of such person’s

nationality” and who is “unable or unwilling to return to . . .

that country because of persecution or a well-founded fear of

3 persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

Id. § 1101(a)(42)(A). “Thus, the ‘persecution or well-founded

fear of persecution’ standard governs the Attorney General’s

determination [of] whether an alien is eligible for asylum.” INS

v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987). Furthermore, even

when a noncitizen is subject to a rapid expulsion process known

as “expedited removal” because they fit within an established

category of persons who can be summarily removed without full

hearings or other process, such noncitizen can only be so

removed if she does not have “an intention to apply for asylum

under [8 U.S.C. § 1158] or a fear of persecution.” 8 U.S.C. §

1225(b)(1)(A)(i).

Second, at the same time the Refugee Act of 1980

established the asylum process, it amended the statutory scheme

governing a related form of relief—“withholding of deportation”—

to remove the Attorney General’s discretion to decide whether to

grant that form of relief. Cardoza-Fonseca, 480 U.S. at 428–29.

As amended by the 1980 Act, the INA “requires the Attorney

General to withhold deportation of an alien who demonstrates

that his ‘life or freedom would be threatened’ on account of one

of [a list of factors] if he is deported.” Id. at 423. A grant

of withholding is mandatory if the individual meets the

4 statutory criteria. INS v. Aguirre-Aguirre, 526 U.S. 415, 420

(1999).

Third, Article 3 of the Convention Against Torture (“CAT”)

provides that “[n]o State Party shall expel, return (‘refouler’)

or extradite a person to another State where there are

substantial grounds for believing that he would be in danger of

being subjected to torture.” Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, Art.

3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1456

U.N.T.S. 114. Congress has implemented Article 3 of CAT as part

of the Foreign Affairs Reform and Restructuring Act of 1998

(“FARRA”). Omar v. McHugh, 646 F.3d 13, 17 (D.C. Cir. 2011).

FARRA further declares it “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.” Id. (quoting Pub.L. No. 105–277, § 2242,

112 Stat. 2681–761, 822 (1998) (codified at 8 U.S.C. § 1231

note).

2. COVID-19 Pandemic and the CDC Orders

Since 1893, federal law has provided federal officials with

the authority to stem the spread of contagious diseases from

foreign countries by prohibiting, “in whole or in part, the

introduction of persons and property from such countries.” Act

5 of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452 (“1893

Act”). Under current law:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

42 U.S.C. § 265 (“Section 265”). In 1966, the Surgeon General’s

Section 265 authority was transferred to the Department of

Health and Human Services (“HHS”), which in turn delegated this

authority to the Centers for Disease Control and Prevention

(“CDC”) Director. See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 503

(D.D.C. 2020); 31 Fed. Reg. 8855 (June 25, 1966), 80 Stat. 1610

(1966).

On March 20, 2020, as the COVID-19 virus spread globally,

HHS issued an interim final rule pursuant to Section 265 that

aimed to “provide[] a procedure for CDC to suspend the

introduction of persons from designated countries or places, if

required, in the interest of public health.” Interim Final Rule,

6 Control of Communicable Diseases; Foreign Quarantine: Suspension

of Introduction of Persons Into United States From Designated

Foreign Countries or Places for Public Health Purposes, 85 Fed.

Reg. 16559-01, 2020 WL 1330968, (March 24, 2020) (“Interim Final

Rule”). Pursuant to the Interim Final Rule, the CDC Director

could “suspend the introduction of persons into the United

States.” Id. at 16563. The Interim Final Rule stated, in

relevant part:

(1) Introduction into the United States of persons from a foreign country (or one or more political subdivisions or regions thereof) or place means the movement of a person from a foreign country (or one or more political subdivisions or regions thereof) or place, or series of foreign countries or places, into the United States so as to bring the person into contact with persons in the United States, or so as to cause the contamination of property in the United States, in a manner that the Director determines to present a risk of transmission of a communicable disease to persons or property, even if the communicable disease has already been introduced, transmitted, or is spreading within the United States;

(2) Serious danger of the introduction of such communicable disease into the United States means the potential for introduction of vectors of the communicable disease into the United States, even if persons or property in the United States are already infected or contaminated with the communicable disease; and

(3) The term “Place” includes any location specified by the Director, including any

7 carrier, as that term is defined in 42 CFR 71.1, whatever the carrier’s nationality.

Id. at 16566-67.

The CDC’s Interim Rule went into effect immediately. Id. at

16565. The CDC explained that, pursuant to 5 U.S.C. 553(b)(3)(B)

of the APA, HHS had concluded that there was “good cause” to

dispense with prior notice and comment. Id. Specifically, the

CDC stated that “[g]iven the national emergency caused by COVID-

19, it would be impracticable and contrary to the public health—

and, by extension, the public interest—to delay these

implementing regulations until a full public notice-and-comment

process is completed.” Id.

Pursuant to the Interim Final Rule, the CDC Director issued

an order suspending for 30 days the introduction of “covered

aliens,” which he defined as “persons traveling from Canada or

Mexico (regardless of their country of origin) who would

otherwise be introduced into a congregate setting in a land Port

of Entry [(“POE”)] or Border Patrol station at or near the

United States borders with Canada and Mexico.” Notice of Order

Under Sections 362 and 365 of the Public Health Service Act

Suspending Introduction of Certain Persons From Countries Where

a Communicable Disease Exists, 85 Fed. Reg. 17060-02, 17061,

2020 WL 1445906 (March 26, 2020) (“March 2020 Order”). The March

2020 Order declared that “[i]t is necessary for the public

8 health to immediately suspend the introduction of covered

aliens” and “require[d] the movement of all such aliens to the

country from which they entered the United States, or their

country of origin, or another location as practicable, as

rapidly as possible.” Id. at 17067. The CDC Director then

“requested that [the Department of Homeland Security (“DHS”)]

implement th[e] [March 2020 Order] because CDC does not have the

capability, resources, or personnel needed to do so.” Id. The

CDC Director also noted that U.S. Customs and Border Protection

(“CBP”), a federal law enforcement agency of DHS, had already

“developed an operational plan for implementing the order.” Id.

Soon thereafter, the CBP issued a memorandum on April 2,

2020 establishing its procedures for implementing the March 2020

Order. See Ex. E to Cheung Decl. (“CAPIO Memo”), ECF No. 57-5 at

15; see also Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 14-15. The

CAPIO Memo instructed that agents may determine whether

individuals are subject to the CDC’s order “[b]ased on training,

experience, physical observation, technology, questioning and

other considerations.” CAPIO Memo, ECF No. 57-5 at 15. If an

individual was determined to be subject to the order, they were

to be “transported to the nearest POE and immediately returned

to Mexico or Canada, depending on their point of transit.” Id.

at 17. Those who are “not amenable to immediate expulsion to

Mexico or Canada, will be transported to a dedicated facility

9 for limited holding prior to expulsion” to their home country.

Id. The CAPIO Memo “provide[d] no instructions on medical

screenings or other procedures for determining whether a covered

noncitizen may have COVID-19.” Am. Compl., ECF No. 22 ¶ 60.

On April 22, 2020, the March 2020 Order was extended for an

additional 30 days. See Extension of Order Under Sections 362

and 365 of the Public Health Service Act; Order Suspending

Introduction of Certain Persons From Countries Where a

Communicable Disease Exists, 85 Fed. Reg. 22424-01, 2020 WL

1923282 (April 22, 2020) (“April 2020 Order”). The order was

then extended again on May 20, 2020 until such time that the CDC

Director “determine[s] that the danger of further introduction

of COVID-19 into the United States has ceased to be a serious

danger to the public health.” Amendment and Extension of Order

Under Sections 362 and 365 of the Public Health Service Act;

Order Suspending Introduction of Certain Persons From Countries

Where a Communicable Disease Exists, 85 Fed. Reg. 31503-02,

31504, 2020 WL 2619696 (May 26, 2020) (“May 2020 Order”).

On September 11, 2020, the CDC published its final rule.

See Control of Communicable Diseases; Foreign Quarantine:

Suspension of the Right To Introduce and Prohibition of

Introduction of Persons Into United States From Designated

Foreign Countries or Places for Public Health Purposes, 85 Fed.

Reg. 56424-01, 2020 WL 5439721, (Sept. 11, 2020) (Effective

10 October 13, 2020) (“Final Rule”). The Final Rule “defin[ed] the

phrase to ‘[p]rohibit, in whole or in part, the introduction

into the United States of persons’ to mean ‘to prevent the

introduction of persons into the United States by suspending any

right to introduce into the United States, physically stopping

or restricting movement into the United States, or physically

expelling from the United States some or all of the persons.’”

Id. at 56445. The CDC Director then replaced the March, April,

and May 2020 Orders with a new order on October 13, 2020. Order

Suspending the Right To Introduce Certain Persons From Countries

Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg.

65806, 65808 (Oct. 16, 2020) (“October 2020 Order”).

On August 2, 2021, the CDC issued its most recent order,

“Public Health Assessment and Order Suspending the Right to

Introduce Certain Persons from Countries Where a Quarantinable

Communicable Disease Exists,” which replaced and superseded the

October 2020 Order. See Public Health Assessment and Order

Suspending the Right to Introduce Certain Persons from Countries

Where a Quarantinable Communicable Disease Exists (Aug. 2,

2021), Attach. A to Notice CDC Public Health Order (“August 2021

Order”), ECF No. 114. The August 2021 Order states that “CDC has

determined that an Order under 42 U.S.C. § 265 remains necessary

to protect U.S. citizens, U.S. nationals, lawful permanent

residents, personnel and noncitizens at the ports of entry (POE)

11 and U.S. Border Patrol stations, and destination communities in

the United States during the COVID-19 public health emergency.”

Id. at 5. Thus, the August 2021 Order continues to prohibit the

introduction of “covered noncitizens”—which is defined to

include “family units”—into the United States along the U.S.

land and adjacent coastal borders. Id. at 7. The Court will

refer to the process developed by the CDC and implemented by the

August 2021 Order as the “CDC Order” or the “Title 42 Process.”

3. CDC Order’s Effect on Asylum Seekers

Plaintiffs and the proposed class member are families from

countries “that are among the most dangerous in the world due to

gang, gender, family membership, and other identity-based

violence.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 31.

Plaintiffs are currently detained and in the custody of DHS. Am.

Compl., ECF No. 22 ¶¶ 14-19. As such, they are subject to

expulsion from the United States pursuant to the CDC Order.

Plaintiffs assert that prior to the Title 42 Process, and

“pursuant to longstanding immigration statutes protecting asylum

seekers, Plaintiffs were entitled to assert claims for asylum

and related forms of humanitarian protection, and to procedures

Congress established to ensure the fair determination of their

right to remain in the United States.” Id. ¶ 4. Plaintiffs claim

that if they and others like them are expelled pursuant to the

CDC Order, they “would face grave danger in their home

12 countries.” Id. ¶ 10. According to Plaintiffs, “Defendants

subjected approximately 21,500 members of families to the Title

42 Process between March and December 2020.” Pls.’ Mot. Class

Cert., ECF No. 23-1 at 10.

B. Procedural History

1. Related Litigation

On November 18, 2020, this Court adopted Magistrate Judge

Harvey’s Report and Recommendation, provisionally granted the

plaintiff’s motion to certify class, and issued a preliminary

injunction barring enforcement of the Title 42 Process as to

unaccompanied minors in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492,

520-22 (D.D.C. 2020). The Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) later stayed the preliminary

injunction pending appeal. Order, P.J.E.S. v. Mayorkas, No. 20-

5357 (D.C. Cir. Jan. 29, 2021).

In February 2021, the CDC issued a notice “temporarily

except[ing] . . . unaccompanied noncitizen children” from

expulsion under the Title 42 Process. CDC, Notice of Temporary

Exception from Expulsion of Unaccompanied Noncitizen Children

Encountered in the United States Pending Forthcoming Public

Health Determination, 86 Fed. Reg. 9942-01, 2021 WL 600683 (Feb.

11, 2021). The notice stated that CDC was “in the process of

reassessing” the Title 42 Order and that the temporary exception

for unaccompanied minors would “remain in effect until CDC has

13 completed its public health assessment and published any notice

or modified Order.” Id. Magistrate Judge Harvey and the D.C.

Circuit granted the parties’ motion to hold the case in abeyance

on February 24, 2021. See Min. Order (Feb. 24, 2021); Order,

P.J.E.S. v. Mayorkas, No. 20-5357 (D.C. Cir. Mar. 2, 2021).

In July 2021, the CDC issued an order “except[ing]

unaccompanied noncitizen children . . . from the [CDC’s] October

[13, 2020] Order.” See Order Under Sections 362 & 365 of the

Public Health Service Act (42 U.S.C. 265, 268) and 42 CFR 71.40;

Public Health Determination Regarding an Exception for

Unaccompanied Noncitizen Children From the Order Suspending the

right to Introduce Certain Persons From Countries Where a

Quarantinable Communicable Disease Exists, 86 Fed. Reg. 38717,

38718 (July 22, 2021). The CDC explained that the July 16 Order

“supersede[s]” the notice issued on February 11, 2021. Id. at

38720. On August 2, 2021 the CDC issued another order that

superseded the October 2020 Order. Public Health Reassessment

and Order Suspending the Right To Introduce Certain Persons From

Countries Where a Quarantinable Communicable Disease Exists, 86

Fed. Reg. 42828-02 (Aug. 5, 2021). The July 16 Order was “made a

part of [the August 2021 Order] and incorporated by reference as

if fully set forth” in the August 2021 Order. Id. at 42829 n.5.

14 2. Proceedings in this Case

Plaintiffs filed this action on January 12, 2021. See

Compl., ECF No. 1. The same day, Plaintiffs filed an emergency

motion to stay their removal from the United States, and

Defendants orally objected to Plaintiffs’ request during the

hearing on the motion. See Pls.’ Emergency Mot. Stay Removal,

ECF No. 5. The Court entered a Minute Order granting Plaintiffs’

emergency motion over objection “[i]n view of the arguments

presented by Plaintiffs in their motion, the representations

made by the Government, and for the reasons stated on the record

at the January 12, 2021 Status Conference.” Min. Order (Jan. 12,

2021). The Court also granted thirteen subsequent emergency

motions to stay the removal of other families on January 19,

2021; January 27, 2021; January 29, 2021; February 1, 2021;

February 4, 2021; February 5, 2021; February 6, 2021; February

9, 2021; February 18, 2021; February 19, 2021; and February 22,

2021. See Min. Orders (Jan. 19, 2021; Jan. 27, 2021; Jan. 29,

2021; Feb. 1, 2021; Feb. 4, 2021; Feb. 5, 2021; Feb. 6, 2021;

Feb. 9, 2021; Feb. 18, 2021; Feb. 19, 2021; Feb. 22, 2021).

Plaintiffs filed a motion for class certification on

January 28, 2021, see Mot. Certify Class, ECF No. 23; and they

filed a motion for preliminary injunction on February 5, 2021,

see Mot. Prelim. Inj., ECF No. 57. Defendants filed a combined

opposition to both motions on February 17, 2021. See Defs.’

15 Opp’n, ECF No. 76. On February 23, 2021, the Court granted the

parties’ joint motion to hold in abeyance Plaintiffs’ motions

for class certification and classwide preliminary injunction.

Min. Order (Feb. 23, 2021). The motions were held in abeyance

until August 5, 2021, when the Court granted the parties’ motion

for a briefing schedule on Plaintiffs’ motions. Min. Order (Aug.

5, 2021). On August 6, 2021, Defendants filed a supplemental

declaration in support of their combined opposition. See

Shahoulian Decl., ECF No. 116. Plaintiffs filed their combined

reply brief on August 11, 2021. See Pls.’ Reply, ECF No. 118.

The motions are now ripe for the Court’s adjudication.

II. Legal Standard

“A plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the merits, [2]

that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.”

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration

in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392

(D.C. Cir. 2011)). Where the federal government is the opposing

party, the balance of equities and public interest factors

merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A

preliminary injunction is an “extraordinary remedy that may only

be awarded upon a clear showing that the plaintiff is entitled

16 to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008) (citation omitted). “The purpose of a

preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be

held.” Univ. of Tex. V. Camenisch, 451 U.S. 390, 395 (1981). In

this Circuit, the four factors have typically been evaluated on

a “sliding scale,” such that if “the movant makes an unusually

strong showing on one of the factors, then it does not

necessarily have to make as strong a showing on another factor.”

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92

(D.C. Cir. 2009).

In the wake of the Supreme Court’s decision in Winter v.

Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C.

Circuit has suggested that a positive showing on all four

preliminary injunction factors may be required.” Holmes v. FEC,

71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644

F.3d at 393 (“[W]e read Winter at least to suggest if not to

hold that a likelihood of success is an independent,

freestanding requirement for a preliminary injunction.”)

(citation and quotation marks omitted)). Nonetheless, “the

Circuit has had no occasion to decide this question because it

has not yet encountered a post-Winter case where a preliminary

injunction motion survived the less rigorous sliding-scale

17 analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C.

2014).

III. Analysis

A. Plaintiffs’ Motion for Class Certification

“The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)

(quotation marks omitted). Rule 23(a) establishes four

requirements for class certification: (1) that “the class is so

numerous that joinder of all members is impracticable”; (2) that

“there are questions of law or fact common to the class”; (3)

that “the claims or defenses of the representative parties are

typical of the claims or defenses of the class”; and (4) that

“the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a). In addition

to satisfying Rule 23(a), a putative class must also meet one of

the Rule 23(b) requirements. Here, Plaintiffs seek certification

under Rule 23(b)(2), claiming that Defendants have “acted or

refused to act on grounds that apply generally to the class, so

that final injunctive relief or corresponding declaratory relief

is appropriate respecting the class as a whole.” Pls.’ Mot.

Class Cert., ECF No. 23-1 at 8 (quoting Fed. R. Civ. P.

23(b)(2)).

18 “The party seeking certification bears the burden of

persuasion, and must show that the putative class[] meet[s] the

requirements of Rule 23 by a preponderance of the evidence.”

Garnett v. Zeilinger, 301 F. Supp. 3d 199, 204 (D.D.C. 2018)

(citing Hoyte v. District of Columbia, 325 F.R.D. 485, 491

(D.D.C. 2017)). To carry that burden, Plaintiffs must

“affirmatively demonstrate . . . compliance with the Rule—that

is, [they] must be prepared to prove that there are in fact

sufficiently numerous parties, common questions of law or fact,

etc.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

The Court must undertake a “rigorous analysis” to confirm that

the requirements of Rule 23 have been satisfied. Gen. Tel. Co.

of S.W. v. Falcon, 457 U.S. 147, 161 (1982).

Pursuant to Federal Rules of Civil Procedure 23(a) and

23(b)(2), Plaintiffs have sought certification of the following

class: “All noncitizens who (1) are or will be in the United

States; (2) come to the United States as a family unit composed

of at least one child under 18 years old and that child’s parent

or legal guardian; and (3) are or will be subjected to the Title

42 Process.” Pls.’ Mot. Class Cert., ECF No. 23-1 at 7. For the

reasons discussed below, the Court finds that Plaintiffs meet

all of Rule 23(a) and Rule 23(b)(2)’s requirements. As

Defendants’ sole challenge to Plaintiffs’ class certification

motion is that the term “Title 42 Process” is not adequately

19 defined, Defs.’ Opp’n, ECF No. 76 at 16; the Court shall first

address the sufficiency of the class definition before briefly

analyzing the remaining Rule 23(a) and Rule 23(b)(2)

requirements.

1. Class Definition

“[I]t is far from clear that there exists in this

[D]istrict a requirement that a class . . . must demonstrate

ascertainability to merit certification.” Ramirez v. USCIS, 338

F. Supp. 3d 1, 48 (D.D.C. 2018); see also Hoyte v. District of

Columbia, 325 F.R.D. 485, 489 n.3 (D.D.C. 2017) (noting that

“[t]he ascertainability requirement, while adopted by some

courts in this district, has been recently disavowed by four

federal appellate courts” and explaining that “the D.C. Circuit

has not opined on the requirement”). However, the requirement of

“definiteness” has been imposed by some courts as an “implied

requirement” for class certification, in addition to the express

requirements in Rule 23. See DL v. District of Columbia, 302

F.R.D. 1, 17 (D.D.C. 2013). This “common-sense requirement,”

Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998); is

designed primarily to ensure the proposed class is

administratively manageable, see Hartman v. Duffey, 19 F.3d

1459, 1471 (D.C. Cir. 1994). “It is not designed to be a

particularly stringent test, but plaintiffs must at least be

able to establish that ‘the general outlines of the membership

20 of the class are determinable at the outset of the litigation.’”

Pigford, 182 F.R.D. at 346 (quoting 7A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure

§ 1760 at 118).

“[W]here the plaintiff seeks certification of an injunctive

class pursuant to Rule 23(b)(2), ‘actual membership of the class

need not . . . be precisely delimited’ because such cases will

not require individualized notice, opt-out rights, or individual

damage assessments, and the defendant will be required to comply

with the relief ordered no matter who is in the class.’” Brewer

v. Lynch, No. 08-1747, 2015 WL 13604257, at *6 (D.D.C. Sept. 30,

2015). In those cases, the definiteness requirement is satisfied

as long as plaintiffs can establish the “existence of a class”

and propose a class definition that “accurately articulates ‘the

general demarcations’ of the class of individuals who are being

harmed by the alleged deficiencies.” See, e.g., Kenneth R. v.

Hassan, 293 F.R.D. 254, 264 (D.N.H. 2013); see also DL, 302

F.R.D. at 17 (“Because the rationale for precise

ascertainability is inapposite in the 23(b)(2) context, . . . it

is not required in cases such as this where only injunctive

relief is sought and notice is not required.”).

Defendants contend that Plaintiffs have failed to establish

that the proposed class satisfies the requirements of Rule 23(a)

and Rule 23(b)(2) because the phrase “Title 42 Process” is not

21 defined within the class definition. Defs.’ Opp’n, ECF No. 76 at

16. They argue that, due to the lack of a definition,

“Plaintiffs have not established that the conduct they seek to

enjoin or declare unlawful will be ‘as to all of the class

members or as to none of them.’” Id. (quoting Fed. R. Civ. P.

23(b)(2)). While Defendants concede that “it is no secret that

Plaintiffs challenge the ‘practice of summary expulsion under

the Title 42 Process’ and the alleged lack of access to asylum,”

they argue that the Amended Complaint and Class Certification

Motion include statements that suggest that the “class

definition might include practices that Plaintiffs do not

challenge as unlawful.” Id. at 17. Specifically, Defendants note

that Plaintiffs refer to the “Title 42 Process” as a “system

established in a set of agency documents—a new regulation,

several orders, and an implementation memo,” and that the

Amended Complaint states that, “[a]mong other things, the Title

42 Process authorizes the summary expulsion of noncitizens,

including vulnerable families seeking asylum in this country,

without any of the procedural protections guaranteed by

Congress.” Id. (quoting Am. Compl., ECF No. 22 ¶¶ 1, 3) (cleaned

up).

The Court disagrees. As an initial matter, the Court notes

that a “vague and ambiguous class definition” is not

automatically “fatal[]” to a motion for class certification.

22 Defs.’ Opp’n, ECF No. 76 at 15-17. The case law is clear that

the mere existence of a problematic class definition does not

automatically mandate denial of class certification. See Brewer,

2015 WL 13604257, at *7. Rather, “[w]hen appropriate, district

courts may redefine classes . . . sua sponte prior to

certification.” Borum v. Brentwood Village, LLC, 324 F.R.D. 1, 8

(D.D.C. 2018); see also Wagner v. Taylor, 836 F.2d 578, 589-90

(D.C. Cir. 1987) (stating that district courts may “exercise . .

. broad discretion to redefine and reshape the proposed class to

the point that it qualifies for certification under Rule 23”).

Here, however, the proposed class is not so poorly defined

as to require sua sponte redefinition by the Court. First,

Plaintiffs’ amended complaint, motions, and reply brief each set

forth a fairly descriptive definition of the Title 42 Process as

referring to the practice of summarily expelling asylum-seeking

families since late March 2020. See Pls.’ Mot. Class Cert., ECF

No. 23-1 at 7 (“A class action lawsuit is appropriate to

challenge Defendants’ unlawful practice of summarily expelling

vulnerable families with minor children under their shadow

deportation system, referred to here as the ‘Title 42 Process’

or ‘Title 42 Policy.’”); Pls.’ Mot. Prelim. Inj., ECF No. 57-1

at 9 (“Defendants moved to summarily deport [Plaintiffs] based

on an unprecedented and unlawful expulsion process, invoking the

public health powers of the Centers for Disease Control and

23 Prevention (‘CDC’), specifically 42 U.S.C. § 265 (the ‘Title 42

Process’).”); Pls.’ Reply, ECF No. 118 at 29 (“Plaintiffs have

identified and challenged ‘a uniform policy or practice’ of

‘expulsion,’ and sought relief enjoining application of the

challenged CDC orders to the class.”); Am. Compl., ECF No. 22 ¶

3 (“Among other things, the Title 42 Process authorizes the

summary expulsion of noncitizens, including vulnerable families

seeking asylum in this country, without any of the procedural

protections guaranteed by Congress—even if the families show no

signs of having COVID-19.”).

Second, although Plaintiffs do use the phrase “among other

things” in one sentence within their Amended Complaint,

Defendants’ argument is weakened by their own acknowledgment

that the focus of this litigation is the “‘practice of summary

expulsion under the Title 42 Process’ and the alleged lack of

access to asylum.” Defs.’ Opp’n, ECF No. 76 at 16.

And third, Defendants’ reliance on the Seventh Circuit case

Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008), is misplaced.

In Rahman, the plaintiffs sought to certify a class of citizens

defined as “[a]ll United States citizens who now are and/or in

the future will be subjected to detentions upon reentry to the

United States as a result of defendants’ contested policies,

practices and customs.” Id. at 625. However, the class

definition did not specify what “defendants’ contested policies,

24 practices and customs” were. Id. The Seventh Circuit therefore

denied the plaintiffs’ motion to certify, explaining that “[a]

class of all persons now or in the future subject to unspecified

practices may have nothing to do with the named representatives’

injuries, or what caused them.” Id. at 626. The court also noted

that the undefined class was “hard to evaluate” and

“incompatible” with the “typicality” requirement. Id. at 627.

Here, Defendants argue that Plaintiffs’ class definition

“suffers from similar infirmities.” Defs.’ Opp’n, ECF No. 76 at

16. But not only is Rahman non-binding on this Court, it is also

distinguishable on the facts. Significantly, though Plaintiffs

refer to the “Title 42 Process” generally as a “system

several orders, and an implementation memo,” id. at 17;

Plaintiffs’ Amended Complaint and motions briefing also

separately identify and describe each regulation, order, and

memo. See, e.g., Am. Compl., ECF No. 22 ¶¶ 41-66. Thus, unlike

in Rahman, the Court is able to easily evaluate the application

of specific policies and procedures on the proposed class

members, and any “administrative feasibility requirement” is

satisfied because identifying the class members under this

definition would not require much, if any, individual factual

inquiry. See Brewer, 2015 WL 13604257, at *6.

25 2. Rule 23(a) Requirements

a. Numerosity

Because of the general rule in favor of confining

litigation to the named parties only, a class action is

appropriate only when “the class is so numerous that joinder of

all members is impracticable.” Fed. R. Civ. P. 23(a)(1).

Although Plaintiffs need not clear any “specific threshold,” as

a general benchmark, “courts in this jurisdiction have observed

that a class of at least forty members is sufficiently large to

meet this requirement.” Taylor v. D.C. Water & Sewer Auth., 241

F.R.D. 33, 37 (D.D.C. 2007). Plaintiffs may satisfy the

requirement by supplying estimates of putative class members,

see Pigford, 182 F.R.D. at 347–48; “[s]o long as there is a

reasonable basis for the estimate provided,” Kifafi v. Hilton

Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999).

Here, Defendants do not dispute that the proposed class

satisfies the numerosity requirement. Plaintiffs have provided

evidence that, between March 2020 and December 2020,

approximately 21,515 members of family units 4 were subject to the

CDC Order and its previous iterations, see Kang Decl., ECF No.

23-2 ¶ 4; and that, between April 2020 and December 2020,

4 The CBP defines a “family unit” as “the number of individuals (either a child under 18 years old, parent or legal guardian) apprehended with a family member.” See Kang Decl., ECF No. 23-2 ¶ 3. 26 “approximately 21,018 members of family units (81%) were

expelled under Title 42,” id. ¶ 6. Accordingly, the Court finds

that the numerosity requirement is met. See O.A. v. Trump, 404

F. Supp. 3d 109, 155 (D.D.C. 2019) (finding numerosity

established by evidence in the administrative record estimating

that the class consisted of “thousands of migrants who have

crossed and will cross the United States’ southern border

outside ports of entry”).

b. Commonality

A plaintiff seeking class certification must also establish

that “there are questions of law or fact common to the class.”

Fed. R. Civ. P. 23(a)(2). This requires more than the

identification of the purported violation of the same provision

of law. See DL v. District of Columbia, 713 F.3d 120, 127–30

(D.C. Cir. 2013) (vacating an order certifying a class composed

of students who were purportedly each denied a free appropriate

public education on the ground that plaintiffs had identified

only sufferers of a violation of the same provision of law and

had not met the commonality requirement). Instead, the claims

must depend on “a common contention [that] is capable of

classwide resolution—which means that determination of its truth

or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.” Wal–Mart Stores, 564

27 U.S. at 350. “Even a single common question will do.” Id. at 359

(cleaned up).

As the D.C. Circuit has explained, commonality is satisfied

where there is “a uniform policy or practice that affects all

class members.” DL, 713 F.3d at 128; see also O.A., 404 F. Supp.

3d at 156 (finding commonality satisfied where “[a]ll members of

the proposed class, and all of the proposed class

representatives, face the same threat of injury” and where

“[a]ll challenge the same Rule on the same grounds, and all seek

the same remedy—invalidation of the Rule”). Here, Plaintiffs are

challenging the lawfulness of the Title 42 Process, which is a

uniform policy that applies to each Plaintiff and all members of

the proposed class. Moreover, “[n]ot only do all class members

present the same challenge to the policy, but there also is no

evident variation among them concerning their ultimate

entitlement to relief: if any person in the class has a

meritorious claim, they all do.” J.D. v. Azar, 925 F.3d 1291,

1321 (D.C. Cir. 2019). The Court can, therefore, conclude that

“common questions of law and fact” unite the class members’

claims. Damus v. Nielsen, 313 F. Supp. 3d 317, 332 (D.D.C. 2018)

(finding that “the allegation that the five ICE Field Officers

are no longer providing the ‘individualized determinations’ of

parole eligibility and procedural protections required by the

Parole Directive” satisfied the commonality requirement).

28 c. Typicality

A class representative satisfies the typicality requirement

if the representative’s “claims are based on the same legal

theory as the claims of the other class members” and her

“injuries arise from the same course of conduct that gives rise

to the other class members’ claims.” Bynum, 214 F.R.D. at 35.

Put another way, a representative’s claims are typical of those

of the class when “[t]he plaintiffs allege that their injuries

derive from a unitary course of conduct by a single system.”

Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Here,

Plaintiffs and all members of the proposed class face the same

injury: the threat of expulsion pursuant to the Title 42

Process. All challenge the same policy on the same grounds, and

all seek the same remedy—invalidation of the Title 42 Process.

Thus, the typicality requirement is met.

d. Adequacy

“The adequacy requirement aims to ensure that absent class

members will not be bound by the outcome of a suit in which they

were not competently and fairly represented.” J.D., 925 F.3d at

1312. “Adequacy embraces two components: the class

representative (i) ‘must not have antagonistic or conflicting

interests with the unnamed members of the class’ and (ii) ‘must

appear able to vigorously prosecute the interests of the class

29 through qualified counsel.’” Id. (quoting Twelve John Does v.

District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)).

Defendants also do not dispute that Plaintiffs have

satisfied the adequacy requirement. First, Defendants have not

identified—and the Court is unaware of—any interest Plaintiffs

have that is antagonistic to or conflicts with the putative

class members. Rather, courts have found that where, as here,

the plaintiffs “seek identical relief for all class members, . .

. there are no conflicting interests that might derail

certification on this prong.” Coleman ex rel. Bunn v. District

of Columbia, 306 F.R.D. 68, 84 (D.D.C. 2015). Second, the Court

concludes that Plaintiffs’ current counsel are “willing and have

the ability vigorously to litigate this case and to protect the

interests of absent class members.” O.A., 404 F. Supp. 3d at

157.

3. Rule 23(b)(2) Requirement

Having determined that Plaintiffs meet the requirements of

Rule 23(a), the Court must next determine whether they meet the

requirements of Rule 23(b)(2). Rule 23(b)(2) applies if “the

party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The

key to the (b)(2) class is the indivisible nature of the

30 injunctive or declaratory remedy warranted—the notion that the

conduct is such that it can be enjoined or declared unlawful

only as to all of the class members or as to none of them.” Wal-

Mart, 564 U.S. at 360 (internal quotation marks and citations

omitted). Rule 23(b)(2) imposes “two requirements: (1) that

defendant’s actions or refusal to act are ‘generally applicable

to the class’ and (2) that plaintiffs seek final injunctive

relief or corresponding declaratory relief on behalf of the

class.” Bynum, 214 F.R.D. at 37.

Plaintiffs have satisfied both requirements here. The

relief Plaintiffs seek—among other things, a declaration that

the Title 42 Process is unlawful and an injunction prohibiting

Defendants from applying the Title 42 Process to Plaintiffs and

proposed class members—is “generally applicable to the class”

and is indivisible. See Damus, 313 F. Supp. 3d at 334–35

(finding Rule 23(b)(2) satisfied where plaintiffs were not

asking the court “to remedy discrete errors in their parole

determinations,” but rather “only . . . address an alleged

systematic harm”); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 182

(D.D.C. 2015) (finding Rule 23(b)(2) satisfied where plaintiffs

sought to enjoin ICE from consideration of particular factor in

making detention determination). Plaintiffs also do not seek

individualized relief, and thus this is not a case where “each

individual class member would be entitled to a different

31 injunction or declaratory judgment against the defendant.” Wal–

Mart, 564 U.S. at 360; see also Ramirez, 338 F. Supp. 3d at 48

(finding Rule 23(b) satisfied where plaintiffs “d[id] not seek a

court order mandating any particular outcome with respect to any

particular [individual plaintiff]”).

For all these reasons, the Court grants Plaintiffs’ motion

for class certification.

B. Plaintiffs’ Motion for Preliminary Injunction

1. Plaintiffs Are Likely to Succeed on the Merits

Plaintiffs argue that the CDC Orders instituting the Title

42 Process exceed the authority granted by Congress pursuant to

Section 265 because “[n]othing in [Section] 265, or Title 42

more generally, purports to authorize any deportations, much

less deportations in violation of” statutory procedures and

humanitarian protections, including the right to seek asylum.

Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 17-18. The Court agrees

and finds that Plaintiffs have shown that they are likely to

succeed on the merits of their claim.

Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837 (1984), provides the framework for reviewing an

agency’s interpretation of a statute that the agency is charged

with administering. See 467 U.S. at 837. The first step in this

review process is for the court to determine “whether Congress

32 has directly spoken to the precise question at issue.” Id. at

842. “If the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress.” Id. at 842–

43. In determining whether the statute unambiguously expresses

the intent of Congress, the court should use all the

“traditional tools of statutory construction,” including looking

to the text and structure of the statute, as well as its

legislative history, if appropriate. See id. at 843 n.9; see

also Bell Atlantic Tel. Co. v. FCC, 131 F.3d 1044, 1047 (D.C.

Cir. 1997). If the court concludes that the statute is either

silent or ambiguous with respect to the precise question at

issue, the second step of the court’s review process is to

determine whether the interpretation proffered by the agency is

“based on a permissible construction of the statute.” Chevron,

467 U.S. at 843. The court must defer to agency interpretations

that are not “arbitrary, capricious, or manifestly contrary to

the statute.” Id. at 844.

The Court’s analysis begins with the statutory text. See S.

Cal. Edison Co. v. FERC, 195 F.3d 17, 22-23 (D.C. Cir. 1999).

Here, Section 265 states in full:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger

33 is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

42 U.S.C. § 265.

As Plaintiffs point out, Section 265 simply contains no

mention of the word “expel”—or any synonyms thereof—within its

text. See Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 18. The lack

of express terms within the statute is significant: even “broad

rulemaking power must be exercised within the bounds set by

Congress,” Merck & Co. v. U.S. Dep’t of Health & Human Servs.,

385 F. Supp. 3d 81, 92, 94 (D.D.C. 2019), aff’d, 962 F.3d 531

(D.C. Cir. 2020) (stating that “agencies are ‘bound, not only by

the ultimate purposes Congress has selected, but by the means it

has deemed appropriate, and prescribed, for the pursuit of those

purposes’”); and the CDC “does not [have the] power to revise

clear statutory terms,” Util. Air Reg. Grp. v. EPA, 573 U.S.

302, 327 (2014).

Indeed, particularly where the statute in question regards

such a “severe ‘penalty’” as deportation, Padilla v. Kentucky,

559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United

34 States, 149 U.S. 698, 740 (1893)); the Court is loathe to

recognize an implied power of forced removal from the country,

see Util. Air Reg. Grp., 573 U.S. at 324 (“We expect Congress to

speak clearly if it wishes to assign to an agency decisions of

vast ‘economic and political significance.’”). Rather, as this

Court explained in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 512

(D.D.C. 2020), “when Congress wants to grant the power to expel

individuals out of the United States, it does so plainly.”

P.J.E.S., 502 F. Supp. 3d at 512; see, e.g., 8 U.S.C. §

1225(b)(2)(A), (C) (allowing an alien who has arrived on land

from a contiguous country and who is “not clearly and beyond a

doubt entitled to be admitted” to be “return[ed] . . . to that

territory pending a proceeding”); id. § 1231(a)(1)(A) (“Except

as otherwise provided in this section, when an alien is ordered

removed, the Attorney General shall remove the alien from the

United States within a period of 90 days . . . .”); 18 U.S.C. §

3186 (authorizing a fugitive from another country found in the

United States to be “take[n] . . . to the territory of such

foreign government” by an agent of that government). Moreover,

“Congress has made clear when public health concerns merit

disallowing a non-citizen to remain in the United States.”

P.J.E.S., 502 F. Supp. 3d at 539; see 8 U.S.C. § 1182(a)(1)

(providing that “aliens who are inadmissible” are those

determined “to have a communicable disease of public health

35 significance”); id. § 1222 (providing for medical detention and

examination as part of immigration processing). As the Supreme

Court “ha[s] stated time and again[,] . . . courts must presume

that a legislature says in a statute what it means and means in

a statute what it says there.” Conn. Nat’l Bank v. Germain, 503

U.S. 249, 253–54 (1992) (citations omitted); see also FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (“The

classic judicial task of reconciling many laws enacted over

time, and getting them to make sense in combination, necessarily

assumes that the implications of a statute may be altered by the

implications of a later statute.” (internal quotation marks

omitted)). And here, the plain language of Section 265,

particularly when read in conjunction with the above statutes

governing immigration under Title 8 of the U.S. Code, evinces no

intention to grant the Executive the authority to expel or

remove persons from the United States.

The Court also finds that the plain text of Section 265 is

supported by the statutory context. See Brown & Williamson

Tobacco Corp., 529 U.S. at 132-33 (2000) (“It is a ‘fundamental

canon of statutory construction that the words of a statute must

be read in their context and with a view to their place in the

overall statutory scheme.’” (quoting Davis v. Mich. Dep’t of

Treasury, 489 U.S. 803, 809 (1989))). For example, in Section

271, Congress provided for specific “penalties” for those

36 persons who or vessels that violated public health regulations

prescribed under the relevant sections, including Section 265.

42 U.S.C. § 271. For individuals, Section 271 states that any

violation “shall be punished by a fine of not more than $1,000

or by imprisonment for not more than one year, or both.” Id. §

271(a). Removal from the United States, however, is not included

as a penalty. Moreover, Section 271 refers to the regulations

prescribed under Section 265 and others as “quarantine laws,”

further suggesting that the CDC’s powers were limited to

quarantine and containment. Id. § 271 (emphasis added).

Neither does neighboring Section 264 contemplate the

removal of persons from the United States. Section 264

authorizes the Secretary to use various public health measures

to “prevent the introduction, transmission, or spread of

communicable diseases.” 42 U.S.C. § 264. Although Defendants

rely on Section 264 as evidence of the Secretary’s “sweeping

authority to protect the country from potentially devastating

communicable diseases,” Defs.’ Opp’n, ECF No. 76 at 23; the

provision only mentions regulations that provide for the

“apprehension, detention, examination, or conditional release of

individuals” if the individual is “coming into a State or

possession from a foreign country or possession.” 42 U.S.C. §

264(c). Again, the authority to remove is not mentioned. “That

is, in a section where one would expect the term to appear—where

37 Congress has delineated the government’s power to prevent the

spread of contagious disease from individuals coming into the

United States from a foreign country—it does not.” P.J.E.S., 502

F. Supp. 3d at 537-38.

Furthermore, even beyond Sections 264 and 271, the statute

as a whole does not contain “a word about the power of the [CDC]

to expel anyone who has come into the country.” Id. at 513-14

(citing 42 U.S.C., Chap. 6A, Subchap. II, Part G (entitled

“Quarantine and Inspection”)); 42 U.S.C. § 267 (entitled

“Quarantine stations, grounds, and anchorages”); id. § 268

(entitled “Quarantine duties of consular and other officers”);

id. § 270 (entitled “Quarantine regulations governing civil air

navigation and civil aircraft”); id. § 271 (entitled “Penalties

for violation of quarantine laws”); id. § 272 (entitled

“Administration of oaths by quarantine officers”). Rather, the

statutory scheme reflects Congress’s focus on the public’s

health, authorizing the CDC to create regulations that allow for

the “apprehension, detention, examination, or conditional

release of individuals” entering from foreign countries to stop

the spread of communicable diseases from those countries, id. §

264; and then in times of serious danger, to halt the

“introduction of persons” from designated foreign countries, id.

§ 265.

38 Defendants argue, however, that the findings above

“ignore[] the purely public health purpose of the statute,”

because “[t]he absence of the terms ‘expel’ or ‘removal’ has no

special significance in the public health context even if its

absence might be meaningful in the immigration context.” Defs.’

Opp’n, ECF No. 76 at 19-20. They further contend that Section

265’s phrase “prohibit[ing] . . . the introduction” does not

demonstrate that Congress intended to limit the Executive’s

authority at “stopping a person precisely at the Nation’s

borders.” Id. at 18. Instead, “the term ‘introduction’ refers to

a continuing process and is most naturally read to extend beyond

a person’s immediate physical crossing of the border,” and “to

‘prohibit . . . the introduction’ naturally means to intercept

or prevent such a process.” Id. at 18-19. Thus, in Defendants’

view, “the Section 265 authority includes intercepting and

halting persons who have already crossed the border—but who are

in the process of being introduced—into the United States.” Id.

at 19.

Defendants arguments are unpersuasive. First, regardless of

whether the words “expel” or “remove” are specific to the

immigration context, Defendants do not explain the lack of

synonyms of either word within the statute. Moreover, “[i]t is a

fundamental principle of statutory interpretation that absent

provision[s] cannot be supplied by the courts.” Rotkiske v.

39 Klemm, 140 S. Ct. 355, 360–61 (2019) (internal citations and

quotation marks omitted) (alteration in original). “[W]hen

Congress wants to mandate [certain] procedures[,] it knows

exactly how to do so.” Epic Sys. Corp. v. Lewis, 138 S. Ct.

1612, 1626 (2018). In view of current immigration laws, which

speak to deportation by using words such as “remove” and

“return,” see 8 U.S.C. § 1182(d)(3)(A) (“The Attorney General

shall prescribe conditions . . . to . . . return . . .

inadmissible aliens . . . .” (emphasis added)); id. § 1182(h)(2)

(“No waiver shall be granted . . . for a period of not less than

7 years immediately preceding the date of initiation of

proceedings to remove the alien from the United States.”

(emphasis added)); this Court recognizes, as have other courts

in this District, that “[t]here’s a serious question about

whether [Section 265’s] power includes the power . . . to remove

or exclude persons who are already present in the United

States,” Hr’g Tr., J.B.B.C. v. Wolf, No. 20-cv-1509, ECF No. 39

at 50 (June 26, 2020). Put simply, the “fact that Congress did

not use [words such as ‘return’ or ‘remove’] . . . suggests at a

minimum that the power to remove is not granted by [S]ection

265.” Id. 5

5 Citing to dicta in Russello v. United States, 464 U.S. 16, 25 (1983), the government argues that “language in one statute usually sheds little light upon the meaning of different language in another statute.” Defs.’ Opp’n, ECF No. 76 at 19-20. 40 Second, even accepting the government’s position that the

phrase “prohibit . . . the introduction of” means “to intercept

or prevent” the “process” of introduction, Defs.’ Opp’n, ECF No.

76 at 18-19; this phrase also does not encompass expulsion from

the United States, nor do any of the definitions provided by the

Government contain the word “expel” or synonyms thereof. Rather,

to “prohibit . . . the introduction of” merely means that the

process of introduction can be halted. And “[e]xpelling persons,

as a matter of ordinary language, is entirely different from

interrupting, intercepting, or halting the process of

introduction.” P.J.E.S., 502 F. Supp. at 512; see also id. at

536 (finding that the Merriam-Webster Dictionary definitions of

“prohibit,” “intercept,” and “prevent” each “connote stopping

something before it begins, rather than remedying it

afterwards”). In other words, “interrupting, intercepting, or

halting the process of introduction does [not] inexorably lead

to expulsion.” Id. at 512.

However, the Supreme Court routinely points to other statutes as evidence that Congress knows how to legislate in particular ways. See Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“A textual judicial supplementation is particularly inappropriate when, as here, Congress has shown that it knows how to adopt the omitted language or provision. Congress has enacted statutes that expressly include the language [the petitioner] asks us to read in . . . .”); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626 (2018) (explaining that “when Congress wants to mandate [certain] procedures[,] it knows exactly how to do so,” and “Congress has spoken often and clearly” to the issue in other statutes). 41 The Government next contends that, “rather than specifying

that the power to prohibit the introduction of persons is

limited to the Nation’s borders,” Congress expressly delegated

the power to issue regulations that accomplish Section 265’s

purpose. Defs.’ Opp’n, ECF No. 76 at 20. But the government's

argument is beside the point; if Section 265 does not provide

the authority to expel persons, then it does not delegate the

authority to issue regulations to expel persons. In addition,

the Court also notes that the legislative history cited by the

government—that Section 265’s predecessor statute would have

given the President the power to suspend “immigration,” see

Defs.’ Opp’n, ECF No. 76 at 22—does not provide support for its

position that Section 265 authorizes it to expel persons.

Finally, in view of the above discussion and finding that

Section 265 is not ambiguous, the Court need not reach step two

of the Chevron analysis. However, even if the statute was

ambiguous, deference would not be justified. First, “the

‘reconciliation’ of distinct statutory regimes ‘is a matter for

the courts,’ not agencies,” Epic Sys., 138 S. Ct. at 1629

(quoting Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659, 685-86

(1975)); and here, “[t]he question for this claim is purely

legal: does Section 265 authorize expulsions from the United

States, or does it not?” P.J.E.S., 502 F. Supp. 3d at 544 n.15.

And while the government contends that the interpretation of

42 “introduction” is within the Secretary’s expertise, see Defs.’

Opp’n, ECF No. 76 at 33-34; the Court disagrees. “The CDC’s

‘scientific and technical knowledge’ . . . has no bearing on

that question of statutory interpretation.” P.J.E.S., 502 F.

Supp. 3d at 544 n.15. Moreover, government has not explained how

its scientific and technical expertise would lead it to

interpret “introduction” to encompass “expulsion.” Cf. Kisor v.

Wilkie, 139 S. Ct. 2400, 2416 (2019) (noting that “[a] court

must make an independent inquiry into whether the character and

context of the agency interpretation entitled it to controlling

weight”); see also NRDC v. Daley, 209 F.3d 747, 755-56 (D.C.

Cir. 2000) (“The Service cannot rely on ‘reminders that its

scientific determinations are entitled to deference’ in the

absence of reasoned analysis ‘to cogently explain’ why its

additional recommended measures satisfied the Fishery Act’s

requirements.”). Accordingly, the CDC is not entitled to

deference with respect to its interpretation. 6

2. Plaintiffs Face Irreparable Injury

“The failure to demonstrate irreparable harm is ‘grounds

for refusing to issue a preliminary injunction, even if the

6 Because the Court finds that Title 42 does not authorize expulsion, the Court need not address Plaintiffs’ additional arguments that Section 265 was designed to regulation transportation or that, even if Section 265 authorized expulsions, the Title 42 Process would violate the immigration statutes. See Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 21, 27. 43 other three factors . . . merit such relief.’” Nat’l Mining

Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (RBW)

(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290, 297 (D.C. Cir. 2006)). “In this Circuit, a litigant seeking

a preliminary injunction must satisfy ‘a high standard’ for

irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting

Chaplaincy of Full Gospel Churches, 454 F.3d at 297). The movant

must demonstrate that it faces an injury that is “both certain

and great; it must be actual and not theoretical,” and of a

nature “of such imminence that there is a clear and present need

for equitable relief to prevent irreparable harm.” Wis. Gas Co.

v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and

emphasis omitted).

Plaintiffs contend that they are likely to suffer

irreparable harm if they are expelled without the opportunity to

seek humanitarian relief pursuant to the Title 42 Process. Pls.’

Mot. Prelim. Inj., ECF No. 57-1 at 31. Plaintiffs have presented

as evidence United States Department of State reports and

multiple declarations asserting that the home countries of the

proposed class members “are among the most dangerous in the

world due to gang, gender, family membership, and other

identity-based violence.” Id. at 32. The declarations submitted

to the Court specify in detail Plaintiffs’ fear of violence,

persecution, and other victimization if they are removed, yet

44 they remain subject to the Title 42 Process and face the threat

of removal prior to receiving any of the protections the

immigration laws provide. See, e.g., Sealed Decl., ECF No. 9;

Sealed Decl., ECF No. 17; Sealed Decl., ECF No. 27; Sealed

Decl., ECF No. 32; Sealed Decls., ECF Nos. 63-67; Sealed Decl.,

ECF No. 70; Sealed Decls., ECF Nos. 84; Sealed Decls., ECF No.

88-89. Plaintiffs further assert that many of the families “are

expelled to Mexico, where they are often victimized by criminal

cartels and gang members and face numerous barriers to finding

safe places to shelter.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1

at 33. Defendants do not dispute the potential harms that

Plaintiffs could face if removed from the United States.

The Court finds that Plaintiffs have sufficiently shown

they will likely suffer irreparable harm absent a preliminary

injunction. Plaintiffs’ alleged injuries would likely be “beyond

remediation.” Chaplaincy of Full Gospel Churches, 454 F.3d at

297. First, pursuant to the Title 42 Process, Plaintiffs and the

proposed class members face the prospect of expulsion without

any opportunity to apply for asylum or withholding of removal.

And once expelled from the United States and outside the

jurisdiction of the Court, a judicial remedy may be unavailable.

See Doe v. Mattis, 928 F.3d 1, 22 (D.C. Cir. 2019) (finding

irreparable harm likely to flow from the transfer of a dual

citizen detained in Iraq to an unidentified third country

45 because he would then be in the custody of that third country

“without any continuing oversight by—or recourse to—the United

States”); P.J.E.S., 502 F. Supp. 3d at 545; Tefel v. Reno, 972

F. Supp. 608, 619–20 (S.D. Fla. 1997) (“[T]he Court finds . . .

that Plaintiffs and class members would suffer irreparable harm

if they are deported to their native countries after having been

denied an opportunity to have a hearing on their claims for

suspension of deportation.”); Velasquez v. Velasquez, No. 14-cv-

1688, 2014 WL 7272934, at *5 (E.D. Va. Dec. 15, 2014) (finding

irreparable harm where children could be removed from

jurisdiction because that would “frustrate the effort of th[e]

Court in resolving the [dispute]”). Second, members of the

proposed class also do not seek monetary compensation for their

injuries; instead, they seek injunctive and declaratory relief

invalidating the Title 42 Process. Unlike economic harm, the

harm resulting from expulsion from the United States pursuant to

an unlawful policy likely cannot be remediated after the fact.

Cf. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295

(D.C. Cir. 2009) (explaining that economic losses are typically

not irreparable because compensation can be awarded after a

merits determination).

In addition, “[i]t is well-established that acts by

[g]overnment agencies in derogation of statutory rights of the

public or certain individual members of the public can

46 constitute irreparable injury.” Kirwa v. U.S. Dep’t of Def., 285

F. Supp. 3d 21, 42 n.22 (D.D.C. 2017) (quoting Gates v.

Schlesinger, 366 F. Supp. 797, 800 (D.D.C. 1973)). Here, the

Court has explained that Section 265 likely does not authorize

expulsion, thereby denying the proposed class members’ the

opportunity to seek humanitarian benefits pursuant to the

immigration statutes.

Defendants argue, however, that the “inherently

individualized nature” of Plaintiffs’ potential harms does not

demonstrate that the harms are “likely” to occur in the absence

of a preliminary injunction. Defs.’ Opp’n, ECF No. 76 at 35. But

while the decision whether to eventually grant asylum to

individuals is undoubtedly fact-intensive, as explained above,

Plaintiffs have provided ample unrebutted evidence demonstrating

that they are collectively deprived of certain statutory

procedures to seek protection under the Title 42 Process, and

they face real threats of violence and persecution if they were

to be removed from the United States. See, e.g., Neusner Decl.,

ECF No. 118-4 ¶ 8; Harbury Decl., ECF No. 118-5 ¶¶ 1, 10; Arvey

Decl, ECF No. 118-7 ¶ 16; Pinheiro Decl., ECF No. 118-7 ¶ 37;

Suppl. Levy Decl., ECF No. 118-3 ¶ 16; Rivas Decl., ECF No. 118-

11 ¶ 16. In addition, as Plaintiffs point out, “Defendants offer

no evidence that class members face materially disparate dangers

once expelled.” Pls.’ Reply, ECF No. 118 at 20. As other courts

47 have noted, “similar showings” of “bona fide clams for

humanitarian relief, including fear of persecution on the basis

of protected characteristics,” have been found to be “sufficient

to demonstrate irreparable injury.” P.J.E.S., 502 F. Supp. 3d at

544 (citing cases); see also J.B.B.C. v. Wolf, No. 20-cv-1509,

2020 WL 6041870, at *2 (D.D.C. June 26, 2020) (stating that

sealed “declaration describing the possible harms that would

result from plaintiff’s return to Honduras” was sufficient);

Devitri v. Cronen, 289 F. Supp. 3d 287, 296-97 (D. Mass. 2018)

(finding unrebutted evidence showing threat of persecution or

torture if deported established likely irreparable harm, despite

“no individualized evidence concerning the specific threats each

Petitioner faces in Indonesia”); Grace v. Whitaker, 344 F. Supp.

3d 96, 146 (D.D.C. 2018), aff’d in part, rev’d in part on other

grounds sub nom., Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020)

(“[P]laintiffs credibly alleged at their credible fear

determinations that they feared rape, pervasive domestic

violence, beatings, shootings, and death in their countries of

origin. Based on plaintiffs’ declarations attesting to such

harms, they have demonstrated that they have suffered

irreparable injuries.”); Orantes-Hernandez v. Meese, 685 F.

Supp. 1488, 1504–05 (C.D. Cal. 1988) (finding that plaintiffs

would suffer irreparable harm if they were summarily removed

48 without being afforded the opportunity to exercise their right

to apply for asylum).

Defendants also contend that “the [g]overnment’s

implementation of the Order provides a process for determining a

covered alien’s claim for protection under the Convention

Against Torture. Thus, Plaintiffs would not be expelled without

some opportunity to seek humanitarian relief.” Defs.’ Opp’n, ECF

No. 76 at 35. However, Defendants do not dispute that Plaintiffs

and proposed class members would still be deprived of the

protections and procedures provided for under the immigration

statutes. See id.

Plaintiffs have thus shown a likelihood of suffering

irreparable harm.

3. The Balance of the Equities and Public Interest Favors an Injunction

The balance-of-equities factor directs the Court to

“balance the competing claims of injury and . . . consider the

effect on each party of the granting or withholding of the

requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting

Winter, 555 U.S. at 24). “When the issuance of a preliminary

injunction, while preventing harm to one party, causes injury to

the other, this factor does not weigh in favor of granting

preliminary injunctive relief.” Id.; see also Serono Labs., Inc.

v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast,

49 the balance of equities may favor a preliminary injunction that

serves only “to preserve the relative positions of the parties

until a trial on the merits can be held.” Rufer v. FEC, 64 F.

Supp. 3d 195, 206 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at

395). “The purpose of . . . interim relief is not to

conclusively determine the rights of the parties, . . . but to

balance the equities as the litigation moves forward. In

awarding a preliminary injunction a court must also ‘conside[r]

. . . the overall public interest’. . . .” Trump v. Int’l

Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (second

alteration in original) (citations omitted).

Plaintiffs contend that issuing a preliminary injunction

“would not substantially injure the government and would be

consistent with public health” because (1) “families who come to

the border . . . can be processed quickly by Border Patrol

agents and released to sponsors in the interior,” where they can

quarantine and be subject to local health restrictions; (2)

“insofar as Defendants choose to detain families upon their

apprehension at the border, Defendants operate family detention

facilities where the family can be housed together,” as well as

tested and quarantined; and (3) “Defendants keep many families

in custody for weeks before expulsion,” where the families are

tested for COVID-19. Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at

34-35. Defendants, in opposition, argue that “an injunction will

50 increase the risk of COVID-19 transmission, which for some could

have deadly consequences, and undoing the mitigation measures

put in place by the Order is not in the public interest.” Defs.’

Opp’n, ECF No. 76 at 36.

Here, the Court ultimately finds that the balance of the

equities and the public interest weigh in favor of an

injunction.

First, “[t]here is generally no public interest in the

perpetuation of unlawful agency action.” League of Women Voters

of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016); see also

Ramirez v. ICE, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (“The public

interest surely does not cut in favor of permitting an agency to

fail to comply with a statutory mandate.”); R.I.L-R, 80 F. Supp.

3d at 191 (“The Government ‘cannot suffer harm from an

injunction that merely ends an unlawful practice or reads a

statute as required to avoid constitutional concerns.’”). As

explained above, the Court has determined that Plaintiffs are

likely to succeed on their claim that the Title 42 Process is

unlawful. Accordingly, because “there is an overriding public

interest . . . in the general importance of an agency’s faithful

adherence to its statutory mandate,” Jacksonville Port Auth. v.

Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court finds that

Plaintiffs likelihood of success “is a strong indicator that a

preliminary injunction would serve the public interest,” Newby,

51 838 F.3d at 12; see also A.B.-B. v. Morgan, No. 20-cv-846, 2020

WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and

public can have little interest in executing removal orders that

are based on statutory violations . . . .”).

Second, “the public has an interest in ‘ensuring that we do

not deliver aliens into the hands of their persecutors,’ Leiva-

Perez [v. Holder], 640 F.3d [962,] 971 [(9th Cir. 2011)], and

‘preventing aliens from being wrongfully removed, particularly

to countries where they are likely to face substantial harm,’

Nken, 556 U.S. at 436.” East Bay Sanctuary Covenant v. Biden,

993 F.3d 640, 678 (9th Cir. 2021). Here, the Title 42 Process

deprives Plaintiffs and the proposed class members of an

opportunity to seek humanitarian protections under the asylum

and withholding of removal statutes. Proceeding to the merits of

this litigation without preliminary injunctive relief thus

“risks [P]laintiffs being returned to home countries where they

face significant risk of physical harm.” A.B.-B., 2020 WL

5107548, at *9. Defendants do not question that Plaintiffs face

substantial harm if returned to their countries of origin.

Accordingly, “[t]hese life-or-death consequences weigh heavily

in favor of preliminary injunctive relief.” Id.; see also

Devitri, 289 F. Supp. 3d at 297 (D. Mass. 2018) (“The public’s

interest in providing due process for non-citizens to ensure

that they are not removed to a country where they will be

52 persecuted is an extremely weighty one.”); Chaudhry v. Barr, No.

19-cv-00682, 2019 WL 2009307, at *4 (E.D. Cal. May 7, 2019)

(“[T]here is . . . ‘a public interest in preventing aliens from

being wrongfully removed, particularly to countries where they

are likely to face substantial harm.’” (quoting Sied v. Nielsen,

No. 17-cv-06785, 2018 WL 1142202, at *27 (N.D. Cal. Mar. 2,

2018))).

Defendants argue, however, that “an injunction will

increase the risk of COVID-19 transmission, which for some could

have deadly consequences, and undoing the mitigation measures

put in place by the Order is not in the public interest.” Defs.’

Opp’n, ECF No. 76 at 36. According to Defendants, (1) “CBP

facilities ‘are not structured or equipped for quarantine or

isolation for COVID-19’”; (2) “[t]he numbers of aliens and the

size and capacity of the congregate holding areas are not at all

conducive to effective social distancing”; and (3) “CBP is not

equipped to provide on-site care to infected persons.” Id.

(quoting March Order at 14; Final Rule, 85 Fed Reg. at 56,433).

Due to these constraints, Defendants fear that U.S. Border

Patrol’s facilities “may rapidly become overcrowded” if the

Title 42 Process is rescinded. Id. But despite the government’s

warnings regarding the capacity of its facilities and staff, the

fact remains that “86% of families arriving at the southwest

border are already allowed into the United States and processed

53 for regular removal proceedings.” Pls.’ Reply, ECF No. 118 at

22. Moreover, although Defendants have expressed concerns

regarding its inability to provide for quarantine space or

“effective social distancing” if the Title 42 Process were not

in effect, expulsion pursuant to the CDC Orders still results in

“plac[ing] families on crowded planes and buses from the Rio

Grande Valley,” without first testing the individuals and

isolating those who test positive, and transporting them “to

other locations in Texas, or places as far away as Arizona and

San Diego,” before expelling them or releasing them into the

United States. Pls.’ Reply, ECF No. 118 at 25.

Citing an increased number of “enforcement encounters” from

April 2020 to January 2021, Defendants further contend that an

injunction in this case could “create a ‘pull factor’ leading to

additional attempts to enter the United States and in turn more

apprehensions.” Defs.’ Opp’n, ECF No. 76 at 37 (citing Miller

Decl., ECF No. 76-2 ¶ 16). However, as Plaintiffs point out,

Defendants’ only evidence in support of their prediction is “a

16% increase in encounters of unaccompanied children in the

weeks after entry of this Court’s injunction in P.J.E.S. in

November 2020,” which was actually “part of a larger upward

trend that predated the injunction by many months—and it was

smaller than the percentage increase for each month from April

to October 2020, when Title 42 was being enforced against

54 unaccompanied children.” Pls.’ Reply, ECF No. 118 at 26 (citing

Menjívar Decl., ECF No. 118-23 ¶ 15). Moreover, though

Defendants contend that there has been a “historic” level of

enforcement encounters at the border, the statistics Defendants

cite “overstate the number of unique individuals arriving at the

border.” Reichlin-Melnick Decl., ECF No. 118-18 ¶¶ 15-16. For

example, Plaintiffs have provided evidence that, after the

implementation of the Title 42 Process, the recidivism rate of

individuals crossing the border increased from less than 7% to

40%. Id. ¶ 11. In other words, under the Title 42 regime,

individuals seeking an asylum hearing have attempted to cross

the border multiple times, “sometimes 10 times or more, and each

attempt is counted as a new ‘encounter.’” Pls.’ Reply, ECF No.

118 at 22. Such evidence casts doubt on Defendants’ claims that

an injunction in this matter would create a “pull factor.” See

Flores v. Sessions, No. 85-cv-4544, 2018 WL 4945000, at *2 (C.D.

Cal. July 9, 2018) (finding argument that border crossings would

surge due to court order lacked merit).

Defendants also note that “the pandemic has taken a toll on

the CBP workforce,” with many CBP employees contracting COVID-19

and several others dying from the virus. Defs.’ Opp’n, ECF No.

76 at 37 (citing Miller Decl., ECF No. 76-2 ¶ 18). Defendants

assert that “[w]ith personnel on sick leave or quarantining, the

ability of CBP to perform its functions is diminished.” Id.

55 (citing Miller Decl., ECF No. 76-2 ¶ 14). The loss of life

resulting from COVID-19 contraction is undeniably tragic, and

the Court agrees that “promoting public health—especially during

a pandemic—is in the public interest.” Nat’l Immigration Project

of Nat’l Lawyers Guild v. Exec. Off. of Immigration Review, 456

F. Supp. 3d 16, 34 (D.D.C. 2020). However, Defendants provide no

evidence that the CBP employees who tested positive for COVID-19

contracted the virus from any of the asylum seekers crossing the

border into the United States. And, significantly, since

Defendants filed its opposition brief in this matter, vaccines

protecting against the risk of serious disease and

hospitalization have become widely available in the United

States. See Pls.’ Reply, ECF No. 118 at 25. The Court does not

doubt that a preliminary injunction issued in this matter would

force the government “to make difficult decisions about

allocation of resources to mitigate the risks caused by COVID-

19.” P.J.E.S., 502 F. Supp. 3d at 549. But in view of the wide

availability of testing, vaccines, and other minimization

measures, the Court is not convinced that the transmission of

COVID-19 during border processing cannot be significantly

mitigated. Indeed, the government has successfully implemented

mitigation measures with regard to processing unaccompanied

minors in order to minimize risk of COVID-19 transmission. See

Pls.’ Reply, ECF No. 118 at 21-22.

56 Finally, Defendants argue that “[a]ny time [the government]

is enjoined by a court from effectuating statutes enacted by

representatives of its people, it suffers a form of irreparable

injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.

King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the

Title 42 Process is likely unlawful, and “[t]here is generally

no public interest in the perpetuation of an unlawful agency

action.” Newby, 838 F.3d at 12.

4. The Court Will Not Require Plaintiffs to Post a Bond

Federal Rule of Civil Procedure 65(c) provides that “[t]he

court may issue a preliminary injunction . . . only if the

movant gives security in an amount that the court considers

proper to pay the costs and damages sustained by any party found

to have been wrongfully enjoined.” Fed. R. Civ. P. 65(c).

“Courts in this Circuit have found the Rule ‘vest[s] broad

discretion in the district court to determine the appropriate

amount of an injunction bond,’ including the discretion to

require no bond at all.” Simms v. District of Columbia, 872 F.

Supp. 2d 90, 107 (D.D.C. 2012) (quoting DSE, Inc. v. United

States, 169 F.3d 21, 33 (D.C. Cir. 1999)) (internal citation

omitted). Here, Plaintiffs are families allegedly fleeing

persecution in their home country and do not have the ability to

post a bond. Additionally, they are seeking to vindicate

57 important procedures and protections under the immigration laws.

Accordingly, the Court will waive the requirement for an

injunction bond. See id.

5. The Court Shall Stay the Preliminary Injunction

Defendants request that the Court stay its Order enjoining

the Title 42 Process for 14 days “to give Defendants sufficient

time to explore their appellate options.” Defs.’ Opp’n, ECF No.

76 at 39. Plaintiffs do not oppose Defendants’ request. Pls.’

Reply, ECF No. 118 at 30. Accordingly, the Court shall stay its

Order for 14 days from the date of its entry. However, the Court

declines to stay this decision pending appeal for substantially

the same reasons as those articulated in this Opinion.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiffs’

Motion for Class Certification, ECF No. 23, and GRANTS

Plaintiffs’ Motion for Preliminary Injunction, ECF No. 57. The

preliminary injunction shall be stayed for 14 days. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 16, 2021