P.J.E.S. v. Wolf
Decision Date | 18 November 2020 |
Docket Number | Civ. Action No. 20-2245 (EGS) |
Citation | 502 F.Supp.3d 492 |
Parties | 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. |
Court | U.S. District Court — District of Columbia |
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 () , ECF No. 15. Magistrate Judge Harvey's Report and Recommendation () 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.
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
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.
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.
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.
Id. at 17061. In a section titled "Determination and Implementation," the...
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