Huisha-Huisha v. Mayorkas

• Decision Date: 16 September 2021
• Docket Number: Civ. Action 21-100(EGS)
• Parties: NANCY GIMENA HUISHA-HUISHA, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

NANCY GIMENA HUISHA-HUISHA, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, et al., Defendants.

Civ. No. Action 21-100(EGS)

United States District Court, District of Columbia

September 16, 2021

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

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 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 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 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 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 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, 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 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...