P.J.E.S. v. Wolf

502 F.Supp.3d 492

P.J.E.S., a minor child, BY AND THROUGH his father and next friend, Mario ESCOBAR FRANCISCO, on behalf of himself and others similarly situated, Plaintiffs,

v.Chad F. WOLF, Acting Secretary of Homeland Security, et al., Defendant.

Civ. Action No. 20-2245 (EGS)

United States District Court, District of Columbia.

Signed November 18, 2020

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

Plaintiff P.J.E.S., a 15-year-old minor from Guatemala who entered the United States as an unaccompanied minor in August 2020, brings this action against Chad F. Wolf in his official capacity as Acting 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 Trafficking Victims Protection Reauthorization Act ("TVPRA"), 8 U.S.C. § 1232 ; the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. ; and the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), 8 U.S.C. § 1231 NOTE.

Pending before the Court are Plaintiff's motion for class certification ("Pl.’s Cert. Mot."), ECF No. 2,¹ and motion for a classwide preliminary injunction ("Pl.’s Prelim. Inj. Mot."), ECF No. 15. Magistrate Judge Harvey's Report and Recommendation ("R. & R.") recommends that this Court provisionally grant the motion for class certification and grant the motion for preliminary injunction and. See R. & R., ECF No. 65 at 2.

The Government has objected to several of Magistrate Judge Harvey's recommendations. See Gov't's Objs., ECF No. 69. Raising no objections to the R. & R., Plaintiff asks this Court to adopt Magistrate Judge Harvey's recommendations to grant both motions. See Pl.’s Resp. to Pl.’s Objs. ("Pl.’s Resp."), ECF No. 72 at 7. Upon careful consideration of the R. & R., the Government's objections, Plaintiff's response, and the relevant law, the Court hereby ADOPTS the R. & R., ECF No. 65, PROVISIONALLY GRANTS Plaintiff's (1) Motion to Certify Class, ECF No. 2, and GRANTS Plaintiff's (2) Motion for Preliminary Injunction, ECF No. 15.

I. Background

The factual background and procedural history in this case are set forth in the R. & R. See R. & R., ECF No. 65 at 3-15.²

A. Factual Background

1. Pre-COVID-19 Pandemic

Prior to the current COVID-19 pandemic and pursuant to the TVPRA, unaccompanied children who entered the United States and were nationals of countries that do not share a border with the United States were required to be transferred to the care and custody of the Department of Health and Human Services’ ("DHH") Office of Refugee Resettlement ("ORR"), within 72 hours of their detainment, for placement in the "least restrictive setting that is in the best interest of the child." 8 U.S.C. § 1232(b). Unaccompanied children from countries that share borders with the United States were initially screened to determine that the unaccompanied child: (1) was not a victim of trafficking; (2) did not have "a credible fear of persecution"; and (3) was "able to make an independent decision" about their admission into the United States. Id. § 1232(a)(2)(A). Absent these determinations, the unaccompanied child was also transferred to the care and custody of ORR. Id. § 1232(a)(3). These unaccompanied children also had access to "counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking," id. § 1232(c)(5) ; and some were provided "independent child advocates ... to effectively advocate for the[ir] best interest." Id. § 1232(c)(6).

In addition, all unaccompanied children retained their rights under the INA to (1) apply for asylum, id. § 1158(a)(1); contest their removal to a country where their "life or freedom would be threatened ... because of [their] race, religion, nationality, membership in a particular social group, or political opinion," id. § 1231(b)(3) ("withholding of removal"); or, pursuant to FARRA, (3) make a case that "he or she would be tortured if removed to the proposed country of removal." Id. § 1231 Note.

2. COVID-19 Pandemic and CDC Orders

Since 1893, federal law has provided federal officials with the authority to stem the spread of contagious diseases from foreign countries by prohibiting, "in whole or in part, the introduction of persons and property from such countries." Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452, ECF No. 15-5 at 5 ("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 § 265 authority was transferred" to HHS, which in turn "delegated this authority to the [Centers for Disease Control ("CDC")] in 2001 and [t]he President's functions under § 265 were assigned to the Secretary of HHS in a 2003 executive order." Compl., ECF No. 1 at 13 n.2.

On March 24, 2020, as the COVID-19 virus spread throughout the country, the CDC issued a new regulation, pursuant to Section 265, aiming 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." 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 Rule"). The Interim Rule created Section 71.40 to "enable the CDC Director to suspend the introduction of persons into the United States" and stated, in relevant part,

(b) For purposes of this section:

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

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

(3) The term "Place" includes any location specified by the Director, including any carrier, as that term is defined in 42 CFR 71.1, whatever the carrier's nationality.

Id. at 16566-67. The CDC's Interim Rule was made effective immediately, "without advance notice and comment," Compl., ECF No. 1 at 13 ¶ 50; though the CDC explained that "[p]ursuant to 5 U.S.C. 553(b)(3)(B)," of the APA, HHS "conclude[d] that there [was] good cause to dispense with prior public notice and the opportunity to comment on this rule before finalizing this rule." Interim Rule at 16564. 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. at 16565. Finally, noting that Section 265 applied to "persons" in general, the CDC declared that the "interim final rule [would] not apply to U.S. citizens or lawful permanent residents ... [because the] CDC believes that, at present, quarantine, isolation, and conditional release, in combination with other authorities, while not perfect solutions, can mitigate any transmission or spread of COVID-19 caused by the introduction of U.S. citizens or lawful permanent residents into the United States." Id. at 16564.

Pursuant to the Interim Rule, the CDC Director issued an order suspending 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" for a period of 30 days. 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, 2020 WL 1445906 (March 26, 2020) ("March Order"). The CDC Director found the March Order necessary because the public health risks

include[d] transmission and spread of COVID-19 to [U.S. Customs and Border Protection ("CBP")] personnel, U.S. citizens, lawful permanent residents, and other persons in the POEs and Border Patrol stations; further transmission and spread of COVID-19 in the interior; and the increased strain that further transmission and spread of COVID-19 would put on the United States healthcare system and supply chain during the current public health emergency.

Id. at 17061. In a section titled "Determination and Implementation," the...