Declaration of Caroline Heller in Support of Proposed Intervenors' Motion — East Bay Sanctuary v. Barr (N.D. Cal.)

Record facts

U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 95-1 · 2020-10-16 · Docket on CourtListener

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DECLARATION OF CAROLINE HELLER 
ACTIVE 52989673v3 
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  Adam Siegler (SBN 116233) 
GREENBERG TRAURIG LLP 
1840 Century Park East 
Suite 1900 
Los Angeles, CA 90067 
Telephone: (310) 586-7700 
Facsimile: (310) 586-7800 
Email:sieglera@gtlaw.com 
 
Jonathan K. Ogata (SBN 325914) 
GREENBERG TRAURIG, LLP  
1201 K Street, Suite 1100 
Sacramento, CA 
Telephone: (916) 442-1111 
Email:ogataj@gtlaw.com 
 
Steven G. Barringer* 
GREENBERG TRAURIG, LLP 
2101 L Street, NW, Suite 1000 
Washington, DC 20037 
Telephone: (202) 331-3108   
Facsimile: (202) 261-0114  
Email: barringers@gtlaw.com 
 
* Pro Hac Vice Forthcoming 
Caroline J. Heller*  
GREENBERG TRAURIG LLP 
200 Park Ave 
New York, NY 10166 
Telephone: (212) 801-9200 
Facsimile: (212) 801-6400 
Email: hellerc@gtlaw.com 
 
Gregory P. Copeland* 
Sarah T. Gillman* 
RAPID DEFENSE NETWORK 
11 Broadway, Suite 615 
New York, NY 10004-1490 
Telephone: (212) 843-0910 
Facsimile: (212) 257-7033 
Email: gregory@defensenetwork.org 
Email: sarah@defensenetwork.org 
 
Attorneys for Proposed Plaintiff-Intervenors  
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
EAST BAY SANCTUARY 
COVENANT, et al.,  
 
Plaintiffs, 
         vs. 
 
WILLIAM BARR, et al., 
Defendants. 
 Case No. 4:19-cv-04073-JST 
[Judge:  Hon. Jon S. Tigar] 
DECLARATION FOR CAROLINE 
HELLER 
 
 
Date Action Filed: July 16, 2019 
 
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DECLARATION OF CAROLINE HELLER 
ACTIVE 52989673v3 
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DECLARATION OF CAROLINE HELLER 
I, Caroline J. Heller declare, under penalty of perjury pursuant to 28 U.S.C. § 
1746, that the following is true and correct: 
1. 
I am an attorney at law and am of counsel with the law firm Greenberg 
Traurig, LLP (“GT”), counsel of record for Proposed Plaintiff-Intervenors, in the above-
captioned matter.  I make this declaration in support of Proposed Plaintiff-Intervenors’ 
Motion for Leave to Intervene and Motion for Temporary Restraining Order and 
Preliminary Injunction (“Motion”) filed concurrently herewith.  Except where indicated 
on information and belief, the matters set forth herein are based upon my personal 
knowledge, and if called as a witness in this matter, I could and would testify 
competently thereto; as to the matters stated upon information and belief, I believe them 
to be true. 
2. 
Attached hereto as Exhibit 1 is a true and correct copy of the Amended 
Petition for Writ of Habeas Corpus filed in D.A.M. v. Barr, 20-CV-1321 (CRC) 
(D.D.C.), ECF No. 31.  
3. 
Attached hereto as Exhibit 2 is a true and correct copy of a District Court 
Decision denying motion for temporary restraining order for a stay of removal, D.A.M. 
v. Barr, No. 20-CV-1321 (CRC), 2020 WL 5525056, at *1 (D.D.C. Sept. 15, 2020). 
4. 
Attached hereto as Exhibit 3 is a true and correct copy the Declaration of 
Bridget Cambria, Esq. sword to October 16, 2020. 
5. 
Attached hereto as Exhibit 4 is a true and correct copy the Declaration of 
Shalyn Fluharty, Esq. sword to October 16, 2020. 
I declare under penalty of perjury under the laws of the State of California that the 
foregoing is true and correct.  
Executed on October 16, 2020 in New York, New York. 
 
 
 
 
 
 
 
       
 /s/Caroline Heller   
 
 
 
 
 
 
 
 
 
Caroline Heller 
 
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EXHIBIT “1” 
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Caroline J. Heller*  
GREENBERG TRAURIG LLP 
200 Park Ave 
New York, NY 10166 
Telephone: (212) 801-9200 
Facsimile: (212) 801-6400 
Email: hellerc@gtlaw.com 
 
*Appearing Pro Hac Vice 
Steven G. Barringer (D.D.C. Bar # 375373) 
GREENBERG TRAURIG, LLP 
2101 L Street, NW, Suite 1000 
Washington, DC 20037 
Telephone: (202) 331-3108   
Facsimile: (202) 261-0114  
Email: barringers@gtlaw.com 
 
 
Gregory P. Copeland (D.D.C. Bar # NY0311) 
Sarah T. Gillman (D.D.C. Bar # NY0316) 
RAPID DEFENSE NETWORK 
11 Broadway, Suite 615 
New York, NY 10004-1490 
Telephone: (212) 843-0910 
Facsimile: (212) 257-7033 
Email: gregory@defensenetwork.org 
Email: sarah@defensenetwork.org 
 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
D.A.M. et al.,  
 
Petitioners, 
 
v. 
 
BARR et al., 
 
Respondents. 
 
§ 
§ 
§ 
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§ 
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§ 
§ 
§ 
§ 
 
Case No. 20-cv-01321-CRC 
 
VERIFIED AMENDED PETITION FOR 
WRIT OF HABEAS CORPUS & 
COMPLAINT FOR DECLARATORY 
AND INJUNCTIVE RELIEF  
 
 
ORAL ARGUMENT REQUESTED  
 
 
INTRODUCTION 
1. 
Petitioners are parents and children who have fled persecution in their home 
countries to seek asylum in the United States.  The vast majority of the Petitioners had final orders 
of removal issued based on the unlawful and recently vacated interim final rule known as the 
“Transit Ban”, such that no valid or lawful order exists to justify the government seeking their 
removal absent constitutionally adequate process and due process protections. 
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2. 
Petitioners are detained at either the South Texas Family Residential Center in 
Dilley, Texas (“Dilley”) or the Berks County Residential Center in Leesport, Pennsylvania 
(“Berks”), or have been released from Dilley or Berks but remain “in custody” for habeas corpus 
purposes based on the substantial restrictions on liberty imposed by Respondents on those released 
by way of ongoing efforts to effect removal and ongoing orders of supervision, monitoring and 
electronic custody.    
3. 
Upon information and belief, Petitioners will be imminently removed from the 
United States in the absence of a stay of removal.  
4. 
At its historical core, the writ of habeas corpus has served as a means of reviewing 
the legality of executive encroachment on liberty, and it is in that context that its protections have 
been strongest.  See I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001).  These protections extend fully to 
noncitizens subject to an order of removal. Id.; see also Gerard L. Neuman, Habeas Corpus, 
Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 1044 (1998) 
(“[H]istorical precedents beginning shortly after 1787 and reaching to the present confirm the 
applicability of the writ of habeas corpus to the detention involved in the physical removal of aliens 
from the United States.  These precedents include opinions . . . denying the power of Congress to 
eliminate judicial inquiry.”). 
5. 
This non-core habeas petition challenges the legality of Respondents’ actions 
during the COVID-19 pandemic to deport Petitioners.  Respondents’ actions are unsafe.  Further, 
the vast majority of Petitioners received orders of removal following the interim final rule jointly 
published by the Departments of Justice and Homeland Security entitled “Asylum Eligibility and 
Procedural Modifications,” 84 Fed. Reg. 33,829 (July 16, 2019) (“Transit Ban”) that a Court in 
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this District found to be void ab initio.  See Capital Area Immigrants’ Rights Coalition v. Trump, 
Civil Action Nos. 19-2117, 19-2530 (TJK), 2020 WL 3542481 (D.D.C. June 30, 2020) (“CAIR”). 
6. 
Attempting to remove Petitioners in an unsafe manner during a global pandemic 
predicated on removal orders issued pursuant to a vacated rule constitutes an encroachment into 
Petitioners’ protected liberty interests, conclusively establishing irreparable harm in the threat of 
removal prior to any form of lawful process, and undercutting any governmental interest in seeking 
to quickly remove them. 
The Transit Ban 
 
7. 
On June 30, 2020, in a Memorandum Opinion and accompanying Order, Judge 
Timothy J. Kelly of the District Court of the District of Columbia entered a final, appealable Order 
vacating the Transit Ban, holding that “Defendants unlawfully promulgated the [Transit Ban] 
without complying with the APA’s notice-and comment requirements, because neither the ‘good 
cause’ nor the ‘foreign affairs function’ exceptions are satisfied on the record here.”  2020 WL 
3542481 at *1; see CAIR v. Trump, Case 1:19-cv-02117-TJK, Document 71 Filed 06/30/20.  
“Having found that the [Transit Ban] was enacted unlawfully, the Court sees no reason why it 
should not be vacated.”  2020 WL 3542481 at *1. 
8. 
“A regulation not promulgated pursuant to the proper notice and comment 
procedures has no ‘force or effect of law’ and therefore is void ab initio.”   United States v. Goodner 
Bros. Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992) (citing Chrysler Corp. v. Brown, 441 U.S. 
281, 313, (1979)); see Chrysler Corp, 441 U.S. at 313 (“Certainly regulations subject to the APA 
cannot be afforded the ‘force and effect of law’ if not promulgated pursuant to the statutory 
procedural minimum found in that Act.”) (citing Morton v. Ruiz, 415 U.S. 199 (1974) & U.S. v. 
Allegheny–Ludlam Steel Corp., 406 U.S. 742, 758, (1972)). 
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9. 
All but thirteen (13) Petitioners in this case were subjected to the Transit Ban and 
its procedures. Their final orders of removal result from Respondents’ application of the now-
vacated Transit Ban to those Petitioners.  Petitioners subjected to the Transit Ban were 
categorically unable to avoid persecution by establishing a significant possibility of asylum 
eligibility under the credible fear standard, with few exceptions.  
Removal is Unreasonably Unsafe 
 
10. 
The Centers for Disease Control and Prevention (“CDC”), recommends against 
travel now, with the CDC stating “[b]ecause travel increases your chances of getting and spreading 
COVID-19 staying at home is the best way to protect yourself and others from getting sick.”1  The 
novel coronavirus (“COVID-19”) pandemic is a global catastrophe that has affected virtually every 
corner of the world.   
11. 
In the United States, the risks of COVID-19 have caused social distancing measures 
to be implemented throughout the country, along with the shutdown or suspension of all but 
essential businesses and services in nearly every state.  Petitioners’ countries of origin have been 
similarly impacted, but with far fewer resources to fight the spread of the virus or provide care for 
those who fall ill. 
12. 
Because of its failures to follow the CDC guideline over the past few months, the 
United States has removed dozens of immigrants infected with COVID-19, thereby exposing every 
other person who travelled with them to COVID-19.2   
                                                 
1 Consideration for Travelers - Coronavirus in the United States, CTRS. FOR DISEASE CONTROL 
AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html 
(last visited July 8, 2020). 
2 Juan Montes, U.S. Fails to Prevent Deportation of Migrants Infected With Covid-19, Guatemalan 
Officials Say, THE WALL STREET JOURNAL (June 24, 2020) 
https://www.wsj.com/articles/u-s-fails-to-prevent-deportation-of-migrants-infected-with-covid-
19-guatemalan-officials-say-11593023095 (“a Guatemalan health official said that 28 deportees 
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13. 
The risks of exposure to COVID-19 during removal are so great that on Monday, 
May 11, 2020, United States Representative Frederica Wilson introduced the Haitian Deportation 
Relief Act, which calls for the suspension of the deportation of Haitian nationals until the COVID-
19 pandemic has ended in both the United States and Haiti.3 
14. 
There are no reasonable practices to test detainees for COVID-19 prior to 
deportation; Immigration and Customs Enforcement (“ICE”) told the Miami Herald that the 
agency would acquire approximately 2,000 tests a month “but given the nationwide shortages of 
testing kits, ‘the agency likely won’t have enough to test all aliens scheduled for future removals 
and will prioritize testing based on evolving operational considerations,’ ICE said.”4   
15. 
Upon information and belief, Respondents do not test every detainee for COVID-
19 prior to deportation.  
                                                 
tested positive upon arrival since May 4, when the first flight under the new protocols arrived from 
Brownsville, Texas, until mid-June.”); Caitlin Dickerson & Kirk Semple, U.S. Deported 
Thousands Amid Covid-19 Outbreak. Some Proved to Be Sick, N.Y. TIMES (Apr. 18, 2020), 
https://www.nytimes.com/2020/04/18/us/deportations-coronavirus-guatemala.html (“Dozens of 
Guatemalans flown home by Immigration and Customs enforcement since late March tested 
positive for the coronavirus after returning, according to Guatemalan authorities.”); Maria Martin, 
Official Alleges The U.S. Has Deported Many COVID-19-Positive Migrants To Guatemala,     
NPR 
(Apr. 
15, 
2020), 
https://www.npr.org/sections/coronavirus-live-
updates/2020/04/15/834999661/official-alleges-the-u-s-has-deported-many-covid-19-positive-
migrants-to-guatema. (Guatemalan health officials claim one deportation flight from the United 
States arrived with 75% of its passengers infected). 
3 Press Release, Rep. Frederica S. Wilson, Wilson Introduces Bill to Suspend Deportations to Haiti 
During Pandemic (May 11, 2020), https://wilson.house.gov/media-center/press-releases/wilson-
introduces-bill-to-suspend-deportations-to-haiti-during-pandemic. 
4 Monique O. Madan, Jacqueline Charles, & Romina Ruiz-Goiriena, ICE plans to increase 
COVID-19 testing as Haiti commission calls for pause in deportations, MIAMI HERALD (Apr. 24, 
2020), 
https://www.miamiherald.com/news/nation-world/world/americas/haiti/ 
article242265956.html. 
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16. 
Upon information and belief, when Respondents do test a detainee for COVID-19 
prior to deportation, they utilize a “rapid” COVID-19 test that shows higher “false negative” rates 
than other methods of testing. 
17. 
According to ICE reports, as of July 6, 2020, ICE reported 836 cases of COVID-
19 among its current detainee population of 22,805.5   
18. 
ICE Guidance on COVID-19 is woefully inadequate; it does not require: testing 
prior to removal; the provision of face masks to detainees; or social distancing during 
transportation to airports or on flights.6 
19. 
During the removal process, individuals and families are frequently shuttled across 
the country between different detention centers, and often confined in close quarters.  Even the 
ordinary process for removing asylum-seeking families—transporting families en masse via bus 
or other vehicle to airports, where they are crowded onto commercial airplanes and flown to their 
home countries—is fraught with danger related to the COVID-19. 
20. 
Respondents’ actions also put Petitioners’ health and safety at great risk even after 
they arrive in their home countries.  Upon arrival, Petitioners may be subjected to quarantine 
measures (presenting the risk of further persecution as Petitioners may be viewed as disease 
carriers).  Once individuals who are removed from the United States are permitted to leave 
quarantine, they may have no safe place to turn, especially if they were fleeing persecution in their 
homes in the first place. In some countries, public transportation is suspended and curfews are 
imposed, inhibiting Petitioners’ ability to contact relatives or friends, as well as their ability to 
                                                 
5 
ICE 
Guidance 
on 
COVID-19, 
U.S. 
IMMIGRATION 
AND 
CUSTOMS 
ENF’T, 
https://www.ice.gov/coronavirus (last visited July 8, 2020). 
6 Id. 
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reach a safe place to stay amid the ongoing pandemic.  These risks are all-the-more inhumane 
when, as here, they threaten children. 
Unreasonable Unsafe Removal & Removal Pursuant to Invalid Orders is Unconstitutional 
 
21. 
Deportation proceedings that subject Petitioners to COVID-19 infections in the 
United States and/or in Petitioners’ home countries and who received orders of removal resulting 
from a process that was found to be void ab initio, would infringe on Petitioners’ constitutional 
rights.  
22. 
Without a stay of removal, Respondents may remove Petitioners at any time.   
23. 
Without a stay of removal, the deportation of all detained and some non-detained 
Petitioners is imminent.  
24. 
Absent a stay of removal from this Court, Petitioners will face imminent harm and 
possible death from COVID-19. 
25. 
Petitioners seek a temporary stay of their removal to avoid the grave danger and 
risk of peril caused by the deportation process as it exists.  As described in further detail below, 
deporting Petitioners during the coronavirus pandemic would violate (1) Petitioners’ substantive 
and procedural due process rights, (2) the special-relationship doctrine, (3) the state-created danger 
doctrine, and (4) the Accardi doctrine. 
26. 
Petitioners also seek a temporary stay of their removal until the Petitioners who had 
final orders of removal issued based on the “Transit Ban” have been provided a lawful process. 
Suspension Clause 
 
27. 
The writ of habeas corpus is so foundational to our legal framework that the 
Constitution provides: “[t]he privilege of the writ of habeas corpus shall not be suspended unless 
when in cases of rebellion or invasion the public safety may require it.”  U.S. CONST. art. I, § 9, cl. 
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2.  It is the only writ enshrined in the Constitution, and this, along with the Judiciary Act of 1789 
(1 Stat. 73 (1789)), establishes the authority for at least the Supreme Court to issue writs of habeas 
corpus when they believe detention is unlawful. 
28. 
The same authority vested in the Supreme Court above has been extended by 
Congress to the district courts through the Habeas Corpus Act of 1867 (14 Stat. 385 (1867)), which 
provides that a district court can grant the writ of habeas corpus whenever a petitioner is “in 
custody in violation of the Constitution or law and treaties of the United States.” 28 U.S.C. 
§ 2241(c)(3). 
29. 
Absent this Court’s intervention, Petitioners have no adequate substitute to 
challenge the legality of Respondents’ action to deport them during the COVID-19 pandemic to 
countries where it has been confirmed that the government has deported people who tested positive 
for the virus for which there is no cure.   
30. 
The Supreme Court has noted the habeas corpus writ’s “scope and flexibility,” i.e., 
its “capacity to reach all manner of illegal detention,” and its “ability to cut through barriers of 
form and procedural mazes.”  Harris v. Nelson, 394 U.S. 286, 291 (1969).  Additionally, the 
remedy should “be administered with the initiative and flexibility essential to ensure that 
miscarriages of justices within its reach are surfaced and corrected.”  Id.  
31. 
The Constitution permits and requires the Court to retain residual habeas 
jurisdiction to ensure that the process employed by Respondents to deport Petitioners meets 
constitutional standards.  
32. 
The writ of habeas corpus is “a procedural device for subjecting executive, judicial, 
or private restraints on liberty to judicial scrutiny....”  Peyton v. Rowe, 391 U.S. 54, 58 (1968).  
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Chief Justice Earl Warren stated that it is this “high purpose [that] has made the writ both the 
symbol and guardian of individual liberty.” Id.   
33. 
A stay of removal is necessary to maintain the status quo to ensure that Respondents 
do not engage in a removal process that unlawfully extinguishes the ability of Petitioners to pursue 
their claims and not be exposed to life threatening conditions in removal.  A stay is therefore 
necessary to ensure the effectiveness of the judicial review process to protect Petitioners’ property 
and liberty interests.   
34. 
Respondents’ swift deportation of one family to Mexico 24 hours after Judge 
Berman Jackson lifted the administrative stays in M.M.V v. Barr, and their preparation to deport 
other families to Honduras the evening after Judge Berman Jackson lifted the administrative stays, 
are evidence that Petitioners’ deportation to their countries of origin is imminent.    
PARTIES 
35. 
Petitioners are all mothers, fathers, and children either detained at Dilley or Berks, 
or released, who have been issued negative credible and reasonable fear determinations. 
36. 
Petitioners D.A.M. and her minor child Y.H.A. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 20, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 3, 2019.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
37. 
Petitioners M.M.V. and her minor son A.A.M. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  M.M.V. and A.A.M. were placed in 
credible fear proceedings on or around August 22, 2019, attended their initial credible fear 
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interview on August 29, 2019, and were served with negative credible fear determinations on 
August 30, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 30, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
38. 
Petitioners S.L.V. and her minor daughter M.F.L. are Salvadoran nationals who 
seek protection in the United States from persecution and torture.  S.L.V. and M.F.L. were placed 
in credible fear proceedings on or around August 22, 2019, attended their initial credible fear 
interview on August 29, 2019, and were served with negative credible fear determinations on 
September 2, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 18, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
39. 
Petitioners M.R.A. and her minor daughter L.C.R. are Honduran nationals who seek 
protection in the United States from persecution and torture.  M.R.A. and L.C.R. were placed in 
credible fear proceedings on or around August 28, 2019, attended their initial credible fear 
interview on September 3, 2019, and were served with negative credible fear determinations on 
September 3, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 23, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
40. 
Petitioners A.L.V. and her minor sons I.G.L. and A.G.L. are Honduran nationals 
who seek protection in the United States from persecution and torture.  A.L.V., I.G.L., and A.G.L. 
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were placed in credible fear proceedings on or around August 28, 2019, attended their initial 
credible fear interview on September 3, 2019, and were served with negative credible fear 
determinations on September 3, 2019.  Their negative credible fear determinations were affirmed 
by an immigration judge on September 19, 2019.  They are detained at the South Texas Family 
Residential Center in Dilley, Texas and have unlawful final orders of removal procured under the 
vacated Transit Ban, which no longer has the force and effect of law. 
41. 
Petitioners L.O.R. and her minor son A.P.O. are Honduran nationals who seek 
protection in the United States from persecution and torture.  L.O.R. and A.P.O. were placed in 
credible fear proceedings on or around August 16, 2019, attended their initial credible fear 
interview on September 3, 2019, and were served with negative credible fear determinations on 
September 3, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 18, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
42. 
Petitioners N.P. and her minor daughter R.D.P. are Honduran nationals who seek 
protection in the United States from persecution and torture.  N.P. and R.D.P. were placed in 
credible fear proceedings on or around August 16, 2019, attended their initial credible fear 
interview on August 27, 2019, and were served with negative credible fear determinations on 
August 29, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on October 17, 2019.  They were released from the South Texas Family Residential Center 
in Dilley, Texas, but remain “in custody” for habeas corpus purposes and have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law. 
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43. 
Petitioners M.D.E. and her minor son A.G.D. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  M.D.E. and A.G.D. were placed in 
credible fear proceedings on or around August 21, 2019, attended their initial credible fear 
interview on August 29, 2019, and were served with negative credible fear determinations on 
August 29, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 18, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
44. 
Petitioners M.M.B. and her minor daughter N.M.M. are Nicaraguan nationals who 
seek protection in the United States from persecution and torture.  M.M.B. and N.M.M. were 
placed in credible fear proceedings on or around August 21, 2019, attended their initial credible 
fear interview on August 30, 2019, and were served with negative credible fear determinations on 
August 31, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 30, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
45. 
Petitioners D.C.V. and her minor son S.V.C. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  D.C.V. and S.V.C. were placed in 
credible fear proceedings on or around August 22, 2019, attended their initial credible fear 
interview on August 27, 2019, and were served with negative credible fear determinations on 
August 30, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 30, 2019.  They are detained at the South Texas Family Residential Center in 
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Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
46. 
Petitioners M.G.V. and her minor child A.R.G. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 25, 2019, attended their initial credible fear interview on 
September 2, 2019, and were served with negative credible fear determinations on September 3, 
2019.  Their negative credible fear determinations were affirmed by an immigration judge on 
September 18, 2019.  They are detained at the South Texas Family Residential Center in Dilley, 
Texas and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law. 
47. 
Petitioners R.P.F. and her minor child J.F.P. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 26, 2019, attended their initial credible fear interview on 
September 2, 2019, and were served with negative credible fear determinations on September 2, 
2019.  Their negative credible fear determinations were affirmed by an immigration judge on 
September 18, 2019.  They are detained at the South Texas Family Residential Center in Dilley, 
Texas and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law. 
48. 
Petitioners J.M.R. and her minor child C.G.M. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 20, 2019, attended their initial credible fear interview on August 
27, 2019, and were served with negative credible fear determinations on August 29, 2019.  Their 
negative credible fear determinations were affirmed by an immigration judge on September 30, 
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2019.  They are detained at the South Texas Family Residential Center in Dilley, Texas and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
49. 
Petitioners J.S.M. and her minor child D.M.S. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 21, 2019, attended their initial credible fear interview on August 
29, 2019, and were served with negative credible fear determinations on August 30, 2019.  Their 
negative credible fear determinations were affirmed by an immigration judge on September 23, 
2019.  They were released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes.  They have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
50. 
Petitioners Y.U. and her now adult child F.G.U. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 23, 2019, attended their initial credible fear interview on August 
29, 2019, and were served with negative credible fear determinations on September 2, 2019.  Their 
negative credible fear determinations were affirmed by an immigration judge on September 23, 
2019.   They were released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes.  They have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
51. 
Petitioners I.F.L. and her minor child R.F.L. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 24, 2019, attended their initial credible fear interview on 
September 2, 2019, and were served with negative credible fear determinations on September 2, 
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2019.  Their negative credible fear determinations were affirmed by an immigration judge on 
September 19, 2019.  They are detained at the South Texas Family Residential Center in Dilley, 
Texas and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law. 
52. 
Petitioners N.M.L. and her minor child A.R.M. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 28, 2019, attended their initial credible fear interview on 
September 4, 2019, and were served with negative credible fear determinations on September 5, 
2019.  Their negative credible fear determinations were affirmed by an immigration judge on 
September 18, 2019.  They are detained at the South Texas Family Residential Center in Dilley, 
Texas and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law. 
53. 
Petitioners Y.O.T., a Salvadoran national, D.L.O., a Guatemalan national and 
V.L.O., a Guatemalan and Salvadoran national, seek protection in the United States from 
persecution and torture.  They were placed in credible fear proceedings on or around August 21, 
2019, attended their initial credible fear interview on September 4, 2019, and were served with 
negative credible fear determinations on September 5, 2019.  Their negative credible fear 
determinations were affirmed by an immigration judge on September 23, 2019.  They are detained 
at the South Texas Family Residential Center in Dilley, Texas and have unlawful final orders of 
removal procured under the vacated Transit Ban, which no longer has the force and effect of law. 
54. 
Petitioners M.A.A. and her minor children A.R.A. and C.A.A. are Salvadoran 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings on or around August 29, 2019, attended their initial credible fear 
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interview on September 4, 2019, and were served with negative credible fear determinations on 
September 4, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on October 3, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
55. 
Petitioners C.C.N. and her minor son B.S.C. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  C.C.N. and B.S.C. were placed in 
credible fear proceedings on or around August 27, 2019, attended their initial credible fear 
interview on September 4, 2019, and were served with negative credible fear determinations on 
September 6, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on December 12, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
56. 
Petitioners L.H.H. and her minor daughter Y.F.H. are Honduran nationals who seek 
protection in the United States from persecution and torture.  L.H.H. and Y.F.H. were placed in 
credible fear proceedings on or around August 25, 2019, attended their initial credible fear 
interview on September 2, 2019, and were served with negative credible fear determinations on 
September 2, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 23, 2019.  They have been released from the South Texas Family Residential 
Center in Dilley, Texas, but remain “in custody” for habeas corpus purposes and have unlawful 
final orders of removal procured under the vacated Transit Ban, which no longer has the force and 
effect of law. 
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57. 
Petitioners S.G.H. and her minor child A.G.H. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  S.G.H. and A.G.H. were placed in 
credible fear proceedings on or around August 30, 2019, attended their initial credible fear 
interview on September 5, 2019, and were served with negative credible fear determinations on 
September 12, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 23, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
58. 
Petitioners J.S.P. and her minor son M.A.S. are Honduran nationals who seek 
protection in the United States from persecution and torture.  J.S.P. and M.A.S. were placed in 
credible fear proceedings on or around August 16, 2019, attended their initial credible fear 
interview on September 5, 2019, and were served with negative credible fear determinations on 
September 12, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 26, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
59. 
Petitioners K.P.P. and her minor children I.P.P. and M.P.P. are Ecuadorean 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings on or around September 9, 2019, attended their initial credible fear 
interview on September 12, 2019, and were served with negative credible fear determinations on 
September 12, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 30, 2019.   They have been released from the South Texas Family Residential 
Center in Dilley, Texas, but remain “in custody” for habeas corpus purposes and have unlawful 
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final orders of removal procured under the vacated Transit Ban, which no longer has the force and 
effect of law. 
60. 
Petitioners K.N.E. and her minor son E.A.N. are Honduran nationals who seek 
protection in the United States from persecution and torture.  K.N.E. and E.A.N. were placed in 
credible fear proceedings on or around September 8, 2019, attended their initial credible fear 
interview on September 12, 2019, and were served with negative credible fear determinations on 
September 16, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on September 30, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
61. 
Petitioners M.H. and her minor son J.M.H. are Honduran nationals who seek 
protection in the United States from persecution and torture.  M.H. and J.M.H. were placed in 
credible fear proceedings on or around August 29, 2019, attended their initial credible fear 
interview on September 4, 2019, and were served with negative credible fear determinations on 
September 6, 2019.  Their negative credible fear determinations were affirmed by an immigration 
judge on October 17, 2019.  Although they have been released from the South Texas Family 
Residential Center in Dilley, Texas, they remain “in custody” for habeas corpus purposes and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
62. 
Petitioners M.C.M. and her minor child S.M.C. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around August 26, 2019, attended their initial credible fear interview on 
September 2, 2019, and were served with negative credible fear determinations on September 2, 
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2019.  Their negative credible fear determinations were affirmed by an immigration judge on 
October 17, 2019.  They are detained at the South Texas Family Residential Center in Dilley, 
Texas and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law. 
63. 
Petitioners Y.V.O. and her minor child E.P.V. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 18, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on September 30, 2019.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
64. 
Petitioners S.L.R. and her minor child A.V.L. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 19, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on September 30, 2019.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
65. 
Petitioners A.D.L. and her minor child M.D.D. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 26, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 3, 2019.  They are detained at the South Texas 
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Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
66. 
Petitioners D.P.R. and her minor child S.B.P. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 25, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 3, 2019.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
67. 
Petitioners L.G.G. and her minor child W.C.G. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 25, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 17, 2019.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
68. 
Petitioners M.C.P. and her minor children J.C.P. and M.R.C. are Salvadoran 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings, attended their initial credible fear interview, and were served with 
negative credible fear determinations on September 23, 2019.  Their negative credible fear 
determinations were affirmed by an immigration judge on October 17, 2019.  Petitioner M.C.P. 
has been released with her children for medical reasons.  Although they have been released from 
the South Texas Family Residential Center in Dilley, Texas, they remain “in custody” for habeas 
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corpus purposes and have unlawful final orders of removal procured under the vacated Transit 
Ban, which no longer has the force and effect of law. 
69. 
Petitioners R.L.A. and her minor child N.C.L. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 28, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 17, 2019.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
70. 
Petitioners M.L.M. and her minor child J.R.L. are Honduran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 27, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 17, 2019.  Petitioner M.L.M. and J.R.L. have been 
released for medical reasons, but they remain “in custody” for habeas corpus purposes and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
71. 
Petitioners C.C.G. and her minor child E.C.G. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 25, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on October 17, 2019.  They are detained at the South Texas 
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Family Residential Center in Dilley, Texas and have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law. 
72. 
Petitioners B.C.A. and her minor child G.S.C. are Ecuadorian nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings, attended their initial credible fear interview, and were served with negative credible 
fear determinations on September 17, 2019.  Their negative credible fear determinations were 
affirmed by an immigration judge on September 30, 2019.  They have been released from the 
South Texas Family Residential Center in Dilley, Texas, but remain “in custody” for habeas corpus 
purposes and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law.   
73. 
Petitioners L.M.P. and her children Y.M.M. and L.P.M. are Guatemalan nationals 
who seek protection in the United States from persecution and torture.  The family was placed in 
credible fear proceedings on October 5, 2019 and attended their initial credible fear interview on 
October 14, 2019.  The family was served with negative credible fear determinations on October 
30, 2019.  The negative decisions were affirmed by an immigration judge on December 2, 2019.  
They have been released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
74. 
Petitioners A.G.P. and her children D.S.G. and A.S.G. are Mexican nationals who 
seek protection in the United States from persecution and torture.  The family was placed in 
credible fear proceedings on October 3, 2019 and attended their initial credible fear interview on 
October 15, 2019.  The family was served with negative credible fear determinations on October 
30, 2019.  The negative decisions were affirmed by an immigration judge on December 2, 2019.  
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They have been released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes and have final orders of removal. 
75. 
Petitioners C.R.R. and her children I.G.R. and V.G.R. are Mexican nationals who 
seek protection in the United States from persecution and torture.  The family was placed in 
credible fear proceedings on October 10, 2019 and attended their initial credible fear interview on 
October 26, 2019.  The family was served with negative credible fear determinations on November 
1, 2019.  They have been released from the South Texas Family Residential Center in Dilley, 
Texas, but remain “in custody” for habeas corpus purposes and have final orders of removal. 
76. 
Petitioners E.G. and her child J.G.M. are Brazilian nationals who seek protection 
in the United States from persecution and torture. The family was placed in credible fear 
proceedings on September 29, 2019 and attended their initial credible fear interview on October 
12, 2019.  The family was served with negative credible fear determinations on October 31, 2019.  
They have been released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
77. 
Petitioners B.G.C. and her child S.M.G. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on October 1, 2019 and attended their initial credible fear interview on October 
11, 2019.  The family was served with negative credible fear determinations on October 31, 2019.  
They have been released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
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78. 
Petitioners T.S.J. and her children L.P.S. and G.S.J. are Guatemalan nationals who 
seek protection in the United States from persecution and torture.  The family was placed in 
credible fear proceedings on September 29, 2019 and attended their initial credible fear interview 
on October 18, 2019.  The family was served with negative credible fear determinations on 
November 1, 2019.  They have been released from the South Texas Family Residential Center in 
Dilley, Texas, but remain “in custody” for habeas corpus purposes and have unlawful final orders 
of removal procured under the vacated Transit Ban, which no longer has the force and effect of 
law. 
79. 
Petitioners I.C.A. and her child S.P.C. are Honduran nationals who seek protection 
in the United States from persecution and torture.  The family was placed in credible fear 
proceedings on October 1, 2019 and attended their initial credible fear interview on October 10, 
2019.  The family was served with negative credible fear determinations on October 29, 2019.  The 
negative determinations were affirmed by an Immigration Judge on December 2, 2019.  They have 
been released from the South Texas Family Residential Center in Dilley, Texas, but remain “in 
custody” for habeas corpus purposes and have unlawful final orders of removal procured under 
the vacated Transit Ban, which no longer has the force and effect of law. 
80. 
Petitioners M.P.O. and her child G.G.L. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on October 3, 2019 and attended their initial credible fear interview on October 
17, 2019.  The family was served with negative credible fear determinations on November 1, 2019.  
They are detained at the South Texas Family Residential Center in Dilley, Texas and have unlawful 
final orders of removal procured under the vacated Transit Ban, which no longer has the force and 
effect of law. 
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81. 
Petitioners D.O.H. and her children L.A.O. and D.A.O. are Guatemalan nationals 
who seek protection in the United States from persecution and torture.  The family was placed in 
credible fear proceedings on September 24, 2019 and attended their initial credible fear interview 
on October 7, 2019.  The family was served with negative credible fear determinations around 
October 18, 2019.  The negative determinations were affirmed by an Immigration Judge on 
November 19, 2019.  They are detained at the South Texas Family Residential Center in Dilley, 
Texas and have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law. 
82. 
Petitioners S.J.A. and her child W.A.A. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on September 28, 2019 and attended their initial credible fear interview on 
October 4, 2019.  The family was served with negative credible fear determinations on October 
18, 2019.  The negative determinations were affirmed by an Immigration Judge on November 14, 
2019.  They are detained at the South Texas Family Residential Center in Dilley, Texas and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
83. 
Petitioner child A.V.M. is a Guatemalan national who entered the United States 
accompanied by her mother E.V.M., who was placed in reasonable fear proceedings.  A.V.M. was 
placed in credible fear proceedings on September 29, 2019 and attended her initial credible fear 
interview on October 14, 2019.   She was served with a negative credible fear determination on 
October 17, 2019.  The negative determination was affirmed by an immigration judge on 
November 14, 2019.   E.V.M. and A.V.M. are detained at the South Texas Family Residential 
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Center in Dilley, Texas and A.V.M has an unlawful final order of removal procured under the 
vacated Transit Ban, which no longer has the force and effect of law. 
84. 
Petitioners M.A.R. and her child S.R.S. are Brazilian nationals who seek protection 
in the United States from persecution and torture.  The family was placed in credible fear 
proceedings on September 28, 2019 and attended their initial credible fear interview on October 
11, 2019.  The family was served with negative credible fear determinations on October 22, 2019.  
The negative determinations were affirmed by an Immigration Judge on November 21, 2019.  They 
are detained at the South Texas Family Residential Center in Dilley, Texas and have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law. 
85. 
Petitioners O.T.G. and her child T.T.G. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on October 3, 2019 and attended their initial credible fear interview on October 
15, 2019.  The family was served with negative credible fear determinations on October 24, 2019.  
The negative determinations were affirmed by an Immigration Judge on November 21, 2019.  They 
are detained at the South Texas Family Residential Center in Dilley, Texas and have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law. 
86. 
Petitioners M.T.T. and her child Y.L.T. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on September 28, 2019 and attended their initial credible fear interview on 
October 3, 2019.  The family was served with negative credible fear determinations on October 
14, 2019.  The negative determinations were affirmed by an Immigration Judge on November 12, 
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2019.  They have been released from the South Texas Family Residential Center in Dilley, Texas, 
but remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
87. 
Petitioners R.C.H. and her child E.P.C. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on September 28, 2019 and attended their initial credible fear interview on 
October 3, 2019.  The family was served with negative credible fear determinations on October 9, 
2019.  The negative determinations were affirmed by an Immigration Judge on November 5, 2019.  
They have been released from the South Texas Family Residential Center in Dilley, Texas, but 
remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
88. 
Petitioners M.J.P. and her children A.M.P., A.P.P., and C.P.P. are Honduran 
nationals who seek protection in the United States from persecution and torture.  The family was 
placed in credible fear proceedings on September 17, 2019 and attended their initial credible fear 
interview on September 20, 2019.  The family was served with negative credible fear 
determinations on October 4, 2019.  The negative determinations were affirmed by an Immigration 
Judge on November 4, 2019.  They are detained at the South Texas Family Residential Center in 
Dilley, Texas and have unlawful final orders of removal procured under the vacated Transit Ban, 
which no longer has the force and effect of law. 
89. 
Petitioners I.H.L. and her child S.R.H. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on September 23, 2019 and attended their initial credible fear interview on 
September 30, 2019.  The family was served with negative credible fear determinations on October 
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8, 2019.  The negative determinations were affirmed by an Immigration Judge on November 5, 
2019.  They are detained at the South Texas Family Residential Center in Dilley, Texas and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
90. 
Petitioners L.M.B. and her children Z.R.M. and E.R.M. are Honduran nationals 
who seek protection in the United States from persecution and torture. The family was placed in 
credible fear proceedings on September 26, 2019 and attended their initial credible fear interview 
on October 3, 2019.  The family was served with negative credible fear determinations on October 
10, 2019.  The negative determinations were affirmed by an Immigration Judge on November 6, 
2019.  They have been released from the South Texas Family Residential Center in Dilley, Texas, 
but remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
91. 
Petitioners C.H.G. and her child M.G.H. are Salvadoran nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on September 25, 2019 and attended their initial credible fear interview on 
October 3, 2019.  The family was served with negative credible fear determinations on October 
26, 2019.  The negative determinations were affirmed by an Immigration Judge on December 2, 
2019.  They have been released from the South Texas Family Residential Center in Dilley, Texas, 
but remain “in custody” for habeas corpus purposes and have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law. 
92. 
Petitioners T.C.L. and her child A.P.C. are Honduran nationals who seek protection 
in the United States from persecution and torture.  The family was placed in credible fear 
proceedings on October 5, 2019 and attended their initial credible fear interview on October 16, 
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2019.  The family was served with negative credible fear determinations on October 31, 2019. The 
negative determinations were affirmed by an Immigration Judge on December 3, 2019.  They are 
detained at the South Texas Family Residential Center in Dilley, Texas and have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law. 
93. 
Petitioners J.C. and her child Y.J.C. are Honduran nationals who seek protection in 
the United States from persecution and torture.  The family was placed in credible fear proceedings 
on October 5, 2019 and attended their initial credible fear interview on October 14, 2019.  The 
family was served with negative credible fear determinations on October 30, 2019.  The negative 
determinations were affirmed by an Immigration Judge on December 3, 2019. They are detained 
at the South Texas Family Residential Center in Dilley, Texas and have unlawful final orders of 
removal procured under the vacated Transit Ban, which no longer has the force and effect of law. 
94. 
Petitioners L.M.L. and her child M.R.M. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  The family was placed in credible 
fear proceedings on September 13, 2019 and attended their initial credible fear interview on 
September 18, 2019.  The family was served with negative credible fear determinations on October 
4, 2019.  The negative determinations were affirmed by an Immigration Judge on November 4, 
2019.  They are detained at the South Texas Family Residential Center in Dilley, Texas and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
95. 
Petitioners T.R.M. and her child J.R.R. are Honduran nationals who seek protection 
in the United States from persecution and torture.  The family was placed in credible fear 
proceedings on September 7, 2019 and attended their initial credible fear interview on September 
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18, 2019.  The family was served with negative credible fear determinations on October 10, 2019. 
The negative decisions were affirmed by an immigration judge on November 13, 2019.  They have 
been released from the South Texas Family Residential Center in Dilley, Texas, but remain “in 
custody” for habeas corpus purposes and have unlawful final orders of removal procured under 
the vacated Transit Ban, which no longer has the force and effect of law. 
96. 
Petitioners B.H.I. and her child D.M.H. are Honduran nationals who seek protection 
in the United States from persecution and torture.  The family was placed in credible fear 
proceedings on October 5, 2019 and attended their initial credible fear interview on October 14, 
2019.  The family was served with negative credible fear determinations on November 6, 2019.  
They are detained at the South Texas Family Residential Center in Dilley, Texas and have unlawful 
final orders of removal procured under the vacated Transit Ban, which no longer has the force and 
effect of law. 
97. 
Petitioners S.R.F. and her child C.M.R. are Honduran nationals who seek protection 
in the United States from persecution and torture.  The family was placed in credible fear 
proceedings on October 15, 2019 and attended their initial credible fear interview on October 30, 
2019.  The family was served with negative credible fear determinations on November 5, 2019.  
They are detained at the South Texas Family Residential Center in Dilley, Texas and have unlawful 
final orders of removal procured under the vacated Transit Ban, which no longer has the force and 
effect of law. 
98. 
Petitioners M.Z.L. and her child F.P.Z. are Peruvian nationals who seeks protection 
from persecution and torture in the United States.  They were placed in credible fear proceedings 
on September 13, 2019 and attended their initial credible fear interview on September 27, 2019.  
They were served with a negative credible fear determination on October 18, 2019.  The negative 
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decision was affirmed by an immigration judge on November 14, 2019.  On November 27, 2019, 
M.Z.L. and F.P.Z. were released from detention from the South Texas Family Residential Center 
in Dilley, Texas, but remain “in custody” for habeas corpus purposes, and have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law. 
99. 
Petitioners I.M.V. and her children J.T.M. and D.T.M. are Colombian nationals 
who seek protection in the United States from persecution and torture.  The family was placed in 
credible fear proceedings on September 13, 2019 and attended their initial credible fear interview 
on September 17, 2019.  The family was served with negative credible fear determinations on 
September 26. The negative decisions were affirmed by an immigration judge on October 24.  
They were released from detention on November 27, 2019 with final orders of removal. 
100. 
Petitioners F.F.A., a Mexican national, D.A.B., a Honduran national, and their six-
month old baby Petitioner A.A.B., a Mexican national, seek protection in the United States from 
persecution and torture.  F.F.A., D.A.B., and A.A.B. were placed in credible fear proceedings on 
or around February 18, 2020, attended their credible fear interview on February 25, 2020 and were 
served with a negative credible fear determination on March 2, 2020.  Their negative credible fear 
determinations were affirmed by an immigration judge on March 5, 2020.  They have unlawful 
final orders of removal procured under the vacated Transit Ban, which no longer has the force and 
effect of law. 
101. 
Petitioners G.S.C., a father, M.C., a mother, both Haitian nationals, and their minor 
children G.R.S.C., who is a Haitain national, and Petitioner N.Y.B., who is a Chilean national, 
seek protection in the United States from persecution and torture.   G.S.C., M.C., G.R.S.C., and 
N.Y.B. were placed in credible fear proceedings on or around March 2, 2020, attended their 
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credible fear interview on March 16, 2020 and were served with a negative credible fear 
determination on March 18, 2020.   Their negative credible fear determinations were affirmed by 
an immigration judge on March 24, 2020.   They have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law.  They are detained 
at the Berks County Family Residential Center in Leesport, Pennsylvania. 
102. 
Petitioners N.V., a Haitian national, and her minor child Z.F., a Brazilian national, 
seek protection from persecution and torture in the United States.  They were placed in credible 
fear proceedings on or around January 23, 2020, attended their initial credible fear interviews on 
January 30, 2020, and were served with negative credible fear determinations on February 5, 2020.  
Their negative credible fear determinations were affirmed by an immigration judge on February 
14, 2020.   They have final orders of removal, and Z.F.’s final order is unlawful as it was procured 
under the vacated Transit Ban, which no longer has the force and effect of law.   They have been 
released from the South Texas Family Residential Center in Dilley, Texas, but remain “in custody” 
for habeas corpus purposes. 
103. 
Petitioners C.L., a Haitian national, and her minor child J.A., a Brazilian national, 
seek protection from persecution and torture in the United States.  They were placed in credible 
fear proceedings on or around January 22, 2020, attended their initial credible fear interviews on 
January 31, 2020, and were served with negative credible fear determinations on February 7, 2020. 
Their negative credible fear determinations were affirmed by an immigration judge on February 
14, 2020.  They have been released from the South Texas Family Residential Center in Dilley, 
Texas, but remain “in custody” for habeas corpus purposes and have final orders of removal. 
104. 
Petitioners A.O.V. and her minor child J.S.O., Honduran nationals, seek protection 
from persecution and torture in the United States.  A.O.V. and J.S.O. were placed in credible fear 
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proceedings on or around August 25, 2019, attended their initial credible fear interview on August 
30, 2019, and were served with negative credible fear determinations on September 3, 2019.  Their 
negative credible fear determinations were affirmed by an immigration judge on September 18, 
2019.  They are detained at the South Texas Family Residential Center in Dilley, Texas, and have 
unlawful final orders of removal procured under the vacated Transit Ban, which no longer has the 
force and effect of law. 
105. 
Petitioners R.S.J. and her minor child S.A. are Haitian nationals who seek 
protection in the United States from persecution and torture.   They were placed in credible fear 
proceedings on or around February 12, 2020, attended their initial credible fear interviews on 
February 24, 2020, and were served with negative credible fear determinations on March 11, 2020.  
Their negative credible fear determinations were affirmed by an immigration judge on March 20, 
2020.  They have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law.  They have been released from the South Texas Family 
Residential Center in Dilley, Texas, but remain “in custody” for habeas corpus purposes. 
106. 
Petitioners B.L., a father, and C.N., a mother, are Haitian nationals, and their minor 
child B.L.N., is a Chilean national, and they seek protection in the United States from persecution 
and torture. B.L., C.N., and B.L.N. were placed in credible fear proceedings on or around March 
11, 2020, attended their credible fear interview on March 19, 2020 and were served with a negative 
credible fear determination on March 26, 2020.   Their negative credible fear determinations were 
affirmed by an immigration judge on April 8, 2020.  They have been released from the Berks 
County Family Residential Center in Leesport, Pennsylvania, but remain “in custody” for habeas 
corpus purposes and have unlawful final orders of removal procured under the vacated Transit 
Ban, which no longer has the force and effect of law. 
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107. 
Petitioners M.P.A. and her minor child G.S.P. are Ecuadorian nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around February 26, 2020, attended their initial credible fear interviews on 
March 10, 2020, and were served with negative credible fear determinations on March 13, 2020.  
Their negative credible fear determinations were affirmed by an immigration judge on March 20, 
2020.   They have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law.   They are detained at the South Texas Family Residential 
Center in Dilley, Texas. 
108. 
Petitioners S.M.C. and her minor children D.S.M. and A.M.M. are Guatemalan 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings on or around March 16, 2020, attended their initial credible fear 
interviews on March 19, 2020, and were served with negative credible fear determinations on 
March 23, 2020.  Their negative credible fear determinations were affirmed by an immigration 
judge on March 25, 2020.  They have unlawful final orders of removal procured under the vacated 
Transit Ban, which no longer has the force and effect of law.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas. 
109. 
Petitioners M.T.B. and her minor children A.V.B. and W.A.B. are Haitian nationals 
who seek protection in the United States from persecution and torture.  They were placed in 
credible fear proceedings on or around February 27, 2020, attended their initial credible fear 
interviews on March 11, 2020, and were served with negative credible fear determinations on 
March 17, 2020.  Their negative credible fear determinations were affirmed by an immigration 
judge on March 25, 2020.  They have unlawful final orders of removal procured under the vacated 
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Transit Ban, which no longer has the force and effect of law.   They are detained at the South Texas 
Family Residential Center in Dilley, Texas. 
110. 
Petitioners I.F. and her minor children Z.M.F., E.G.F., and J.M.F. are Ecuadorian 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings on or around January 14, 2020, attended their initial credible fear 
interviews on January 22, 2020, and were served with negative credible fear determinations on 
January 28, 2020.  Their negative credible fear determinations were affirmed by an immigration 
judge on February 5, 2020.   They have unlawful final orders of removal procured under the 
vacated Transit Ban, which no longer has the force and effect of law.  They are detained at the 
South Texas Family Residential Center in Dilley, Texas. 
111. 
Petitioners Z.L. and her minor child J.C.L. are Ecuadorian nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around February 22, 2020, attended their initial credible fear interviews on 
February 26, 2020, and were served with negative credible fear determinations on March 4, 2020.  
Their negative credible fear determinations were affirmed by an immigration judge on March 10, 
2020.  They have unlawful final orders of removal procured under the vacated Transit Ban, which 
no longer has the force and effect of law.  They are detained at the South Texas Family Residential 
Center in Dilley, Texas. 
112. 
Petitioners R.S.P. and her minor children F.P.P. and C.P.P. are Guatemalan 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings on or around March 10, 2020, attended their initial credible fear 
interviews on March 15, 2020, and were served with negative credible fear determinations on 
March 27, 2020.  Their negative credible fear determinations were affirmed by an immigration 
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judge on April 6, 2020.  They have unlawful final orders of removal procured under the vacated 
Transit Ban, which no longer has the force and effect of law.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas. 
113. 
Petitioners I.C.T. and her minor child V.T.P. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around March 19, 2020, attended their initial credible fear interviews on March 
25, 2020, and were served with negative credible fear determinations on March 30, 2020.  Their 
negative credible fear determinations were affirmed by an immigration judge on April 1, 2020.   
They have unlawful final orders of removal procured under the vacated Transit Ban, which no 
longer has the force and effect of law.  They have been released from the South Texas Family 
Residential Center in Dilley, Texas, but remain “in custody” for habeas corpus purposes. 
114. 
Petitioners I.E.B. and her minor child B.E. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around March 19, 2020, attended their initial credible fear interviews on March 
25, 2020, and were served with negative credible fear determinations on March 31, 2020.  Their 
negative credible fear determinations were affirmed by an immigration judge on April 2, 2020.  
They have unlawful final orders of removal procured under the vacated Transit Ban, which no 
longer has the force and effect of law.  They are detained at the South Texas Family Residential 
Center in Dilley, Texas. 
115. 
Petitioners M.V.G. and her minor children D.M.V. and J.M.V are Guatemalan 
nationals who seek protection in the United States from persecution and torture.  They were placed 
in credible fear proceedings on or around March 19, 2020, attended their initial credible fear 
interviews on March 24, 2020, and were served with negative credible fear determinations on 
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March 26, 2020.  Their negative credible fear determinations were affirmed by an immigration 
judge on March 31, 2020.   They have unlawful final orders of removal procured under the vacated 
Transit Ban, which no longer has the force and effect of law. They are detained at the South Texas 
Family Residential Center in Dilley, Texas. 
116. 
Petitioners M.P.T. and her minor children A.A.P. and H.A.P. are Guatemalan 
nationals who seek protection in the United States from persecution and torture.   They were placed 
in credible fear proceedings on or around March 7, 2020, attended their initial credible fear 
interviews on March 13, 2020, and were served with negative credible fear determinations on 
March 16, 2020.  Their negative credible fear determinations were affirmed by an immigration 
judge on March 23, 2020.  They have unlawful final orders of removal procured under the vacated 
Transit Ban, which no longer has the force and effect of law.  They are detained at the South Texas 
Family Residential Center in Dilley, Texas. 
117. 
Petitioners V.P.M. and her minor children S.L.P., N.L.P., and E.L.P. are 
Guatemalan nationals who seek protection in the United States from persecution and torture.  They 
were placed in credible fear proceedings on or around February 28, 2020, attended their initial 
credible fear interviews on March 2, 2020, and were served with negative credible fear 
determinations on March 9, 2020.  Their negative credible fear determinations were affirmed by 
an immigration judge on March 11, 2020.  They have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law.  They are detained 
at the South Texas Family Residential Center in Dilley, Texas. 
118. 
Petitioners J.H.R. and her minor child A.M.H. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around March 10, 2020, attended their initial credible fear interviews on March 
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14, 2020, and were served with negative credible fear determinations on March 16, 2020.  Their 
negative credible fear determinations were affirmed by an immigration judge on March 20, 2020.  
They have unlawful final orders of removal procured under the vacated Transit Ban, which no 
longer has the force and effect of law.  They are detained at the South Texas Family Residential 
Center in Dilley, Texas. 
119. 
Petitioners P.M. and M.N., Haitian nationals, and their minor child H.M.N., a 
Chilean national, seek protection in the United States from persecution and torture. P.M., M.N. 
and H.M.N. were placed in credible fear proceedings on or around March 11, 2020, attended their 
credible fear interview on March 19, 2020 and were served with a negative credible fear 
determination on March 26, 2020.  Their negative credible fear determinations were affirmed by 
an immigration judge on April 8, 2020.  They have unlawful final orders of removal procured 
under the vacated Transit Ban, which no longer has the force and effect of law.  They are detained 
at the Berks County Family Residential Center in Leesport, Pennsylvania.  
120. 
Petitioners A.Q.L. and her minor child A.G.C. are Guatemalan nationals who seek 
protection in the United States from persecution and torture.  They were placed in credible fear 
proceedings on or around March 1, 2020, attended their initial credible fear interviews on March 
9, 2020, and were served with negative credible fear determinations on March 10, 2020.  Their 
negative credible fear determinations were affirmed by an immigration judge on March 12, 2020. 
They have unlawful final orders of removal procured under the vacated Transit Ban, which no 
longer has the force and effect of law.  They are detained at the South Texas Family Residential 
Center in Dilley, Texas. 
121. 
Petitioners A.B.C. and her child E.C.B. are Salvadoran nationals who seek 
protection in the United States from persecution and torture. The family was placed in credible 
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fear proceedings on August 29, 2019 and attended their initial credible fear interview on September 
4, 2019. The family was served with negative credible fear determinations on September 11, 2019. 
The negative determinations were affirmed by an Immigration Judge on September 23, 2019. They 
have been released from the South Texas Family Residential Center in Dilley, Texas, but remain 
“in custody” for habeas corpus purposes and have unlawful final orders of removal procured under 
the vacated Transit Ban, which no longer has the force and effect of law. 
122. 
Respondent William P. Barr is the Attorney General of the United States and the 
head of the United States Department of Justice (“DOJ”).  DOJ is the federal agency responsible 
for the administration and enforcement of the immigration laws, and for advising the relevant 
federal Departments and agencies of their duties under the law.  He is sued in his official capacity, 
and is the immediate and legal custodian of Petitioners.  Respondent Barr’s address is U.S. 
Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, District of Columbia 20530. 
123. 
Respondent Chad Wolf is the Acting Secretary of the Department of Homeland 
Security (“DHS”), the Department of the Executive Branch of the United States government that 
oversees the agencies responsible for enforcing the immigration laws of the United States.  
Defendant Wolf is the head of DHS and has ultimate responsibility for the administration and 
enforcement of the immigration laws by DHS agencies.  In that capacity, Respondent Wolf has 
direct authority over all policies, procedures and practices relating to the apprehension of 
immigrants at the United States border and any subsequent removal proceedings.  He is sued in 
his official capacity, and is the immediate and legal custodian of Petitioners.  Respondent Wolf’s 
address is U.S. Department of Homeland Security, 800 K Street, N.W. #1000, Washington, District 
of Columbia 20528. 
 
 
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JURISDICTION AND VENUE 
Jurisdiction 
 
124. 
The Court has jurisdiction over the Petitioners’ claims, and this Petition is brought 
pursuant to 28 U.S.C. §§ 2241 et seq., as provided under Art. I § 9, cl. 2 of the United States 
Constitution (“Suspension Clause”), federal question jurisdiction under 28 U.S.C. § 1331, and 
jurisdiction based on the United States as respondent under 28 U.S.C. § 1346(a)(2).  
125. 
This case arises under the United States Constitution, the Immigration and 
Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., and the Administrative Procedure Act (“APA”), 
5 U.S.C. §§ 500 et seq.  
126. 
This Court also has remedial authority under its inherent authority, the Declaratory 
Judgment Act, 28 U.S.C. §§ 2201 et seq., and the All Writs Act, 28 U.S.C. § 1651.  
127. 
While only the federal courts of appeal have jurisdiction to review removal orders 
directly through petitions for review, see 8 U.S.C. §§ 1252(a)(1), (b), federal district courts have 
jurisdiction to hear habeas claims by noncitizens challenging the lawfulness or constitutionality of 
ICE’s conduct in detaining them, Demore v. Kim, 538 U.S. 510, 516–17 (2003); Zadvydas v. Davis, 
533 U.S. 678, 687 (2001). 
128. 
This Petition has been brought by, and is directed to, the appropriate parties.  A 
petition for a writ of habeas corpus may be brought by anyone “in custody in violation of the 
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).  “The writ . . . shall 
be directed to the person having custody of the persons detained.” 28 U.S.C. § 2243. Accordingly, 
the proper respondent to a habeas petition is the person who has custody over the petitioner.  “[T]he 
writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who 
holds him in what is alleged to be unlawful custody.”  Rasul, 542 U.S. at 478–79 (quoting Braden 
v. 30th Judicial Circuit, 410 U.S. 484, 495 (1973)). 
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129. 
Federal courts have jurisdiction to hear habeas petitions because “absent 
suspension, the writ of habeas corpus remains available to every individual detained within the 
United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (plurality opinion of O’Connor, J.); 
U.S. CONST. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be 
suspended…”); 28 U.S.C. § 2241(c)(3) (stating federal courts may grant the writ to any person “in 
custody in violation of the Constitution or laws or treaties of the United States”).  District courts 
may grant habeas relief “within their respective jurisdictions.” 28 U.S.C. § 2241(a). 
130. 
Jurisdiction over a habeas corpus petition can, under some narrow circumstances, 
be deprived by 8 U.S.C. § 1252, but those circumstances are not applicable here.  For 8 U.S.C. 
§ 1252 to deprive the Court of habeas jurisdiction, the Court must assess a two-pronged inquiry: 
(i) whether the statute contains a clear statement that the Court lacks habeas jurisdiction, and (ii) 
if the statute does clearly deny jurisdiction, then whether the statute unconstitutionally suspends 
the habeas writ by failing to provide an adequate alternative forum for review. Boumediene v. 
Bush, 553 U.S. 723, 736, 771 (2008) (determining first whether the statute “denies the federal 
courts jurisdiction,” and then whether the statute “avoids the Suspension Clause mandate” by 
providing “adequate substitute procedures for habeas corpus”); see also Hamdan v. Rumsfeld, 548 
U.S. 557, 575 (2006) (tracing the requirement of an “unmistakably clear statement” at least as far 
back as Ex parte Yerger, 75 U.S. 85, 104-05 (1868)). 
131. 
With respect to the first prong, the clear-statement rule must be applied to each 
case’s facts, i.e., even though a statute’s jurisdiction-stripping statement might clearly strip 
jurisdiction for one set of facts, the same statement might be ambiguous as to another set of facts, 
and in the latter circumstance, jurisdiction is retained. See Flores-Torres v. Mukasey, 548 F.3d 
708, 712 n.6 (9th Cir. 2008) (holding that “in this circumstance” § 1252(b) does not provide a 
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“clear statement” even if it does in other circumstances).  This has proven particularly true with 
section 1252 because the statute strips jurisdiction in some respects but is ambiguous in others. 
See Hernandez v. Gonzales, 424 F.3d 42, 42–43 (1st Cir. 2005) (stating that § 1252 strips 
jurisdiction over some but not all alien habeas petitions). 
132. 
The U.S. Supreme Court has confirmed that section 1252 is not universal in its 
jurisdiction-stripping provisions.  Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 
(1999) (hereinafter “AADC”).  The AADC Court explained that section 1252 strips jurisdiction 
only for a “narrow” class of alien challenges to “discrete actions” of the Attorney General.  Id. at 
482.  This “narrow” reading of section 1252 was critical to the outcome of the AADC case because 
the majority and the minority jockeyed over whether section 1252 barred the entire “universe of 
deportation claims,” or a “much narrower” set. Id.  Despite the dissenting justice’s arguments, the 
majority agreed that the narrow view must prevail.  See id. at 505–06 (Souter, J., dissenting) 
(arguing that the section was in fact “exhaustive”). 
133. 
This limited reading of section 1252 was reinforced in Jennings v. Rodriguez, 138 
S. Ct. 830, 841 (2018).  See, e.g., Osorio-Martinez v. AG United States, 893 F.3d 153, 178 (3d Cir. 
2018) (finding jurisdiction stripping under section 1252(e) violates suspension clause).  In sum, 
section 1252 is not a talisman to be invoked to eliminate a noncitizen’s habeas petition; instead, a 
case-by-case analysis is necessary to determine when it applies.  See Osorio-Martinez, 893 F.3d 
at 178. 
134. 
Here, 8 U.S.C. § 1252 does not deprive this Court of jurisdiction over Petitioners’ 
claims.  The right to seek habeas corpus relief is fundamental to the Constitution’s scheme of 
ordered liberty.  Habeas corpus is “a writ employed to bring a person before a court, most 
frequently to ensure that the party’s imprisonment or detention is not illegal.”  Boumediene, 553 
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U.S. at 737 (quoting BLACK’S LAW DICTIONARY 728 (8th ed. 2004)).  Blackstone called it “the 
most celebrated writ in English law,” (3 WILLIAM BLACKSTONE, COMMENTARIES *129) and 
deemed the Habeas Corpus Act of 1679 “the stable bulwark of our liberties” (1 WILLIAM 
BLACKSTONE, COMMENTARIES *137). 
135. 
Moreover, jurisdiction is not stripped by 8 U.S.C. § 1252(g)’s bar against 
jurisdiction over claims arising from the Attorney General’s exercise of discretion, because this 
non-core habeas petition challenges not a discretionary decision, but Respondents’ legal authority.  
When, as here, “[t]he question before the Court is not why the [Respondents] chose to execute the 
removal order” but is instead focused on “whether the way Respondents acted accords with the 
Constitution and the laws of this country,” § 1252(g) does not bar jurisdiction.  You v. Nielsen, 321 
F. Supp. 3d 451, 457-58 (S.D.N.Y. 2018) (holding that “§ 1252(g) is no bar to jurisdiction” over 
a request for a stay pending challenge of an administrative process). 
Venue 
 
136. 
Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because the 
defendant federal agencies are headquartered in this District.  
137. 
Venue is not controlled by the immediate custodian rule, and the Petitioners’ non-
core habeas claims are all properly brought in this District.  See e.g. S.N.C. v. Sessions, 325 F. 
Supp. 3d 401, 408 (S.D.N.Y. 2018).  
138. 
The immediate custodian rule is “limited [] to “core” petitions challenging present 
physical detention, implicitly leaving open whether the rule applies to “non-core” challenges.  See 
id. (quoting Rumsfeld v. Padilla, 542 U.S. 426, 442-43(2004)).  “[U]nder the governing case law, 
[the Attorney General] is the proper respondent for [“non-core” habeas claims[.]” S.N.C., 325 F. 
Supp. 3d at 410.  
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139. 
This Court has jurisdiction over this claim, as the Attorney General is a named party 
and because venue in this district does not pose an inconvenience for the parties or otherwise 
offend other “traditional venue considerations[.]” Batista-Taveras v. Ashcroft, No. 03 Civ 1968 
(LAK), 2004 U.S. Dist. LEXIS 19136 at *21 (S.D.N.Y. Sept. 22, 2004); S.N.C., 325 F. Supp. 3d 
at 410. 
STATEMENT OF FACTS 
140. 
Petitioners (who are mothers, fathers, and their children) made dangerous journeys 
to the United States, after being subjected to harm and persecution that triggered their flights from 
their home countries to seek protection in the United States.   
141. 
Because of this past trauma, many of the Petitioners suffer from symptoms of post-
traumatic stress disorder (“PTSD”), anxiety, and depression.7  
142. 
After completing their journeys to the United States—which lasted for more than a 
month for some Petitioners—all Petitioners were apprehended and placed in CBP custody.  They 
remained, often for days, in cages and/or cement cells, without access to privacy, showers, beds, 
telephones, pillows, hot meals, or adequate medical attention.  
143. 
Petitioners were eventually moved to Dilley or Berks, where many of them remain 
detained. 
144. 
Some of the Petitioners were released based upon medical conditions but remain in 
custody of Respondents and may be removed from the United States immediately absent an 
administrative stay. 
                                                 
7 Cf. Allen Keller et al., Pre-Migration Trauma Exposure and Mental Health Functioning 
Among Central American Migrants Arriving at the U.S. Border, PLOS (Jan. 10, 2017), 
https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0168692, (PTSD, anxiety, and 
depression reported in Central American migrants). 
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145. 
Against this backdrop, while in immigration custody, the COVID-19 pandemic hit 
the United States and Petitioners’ home countries.   
146. 
On January 31, 2020, the United States Secretary of Health and Human Services 
declared a public health emergency under the Public Health Services Act due to COVID-19.   Press 
Release, U.S. Dep’t of Health & Human Serv., Secretary Azar Declares Public Health Emergency 
for United States for 2019 Novel Coronavirus (Jan. 31, 2020), https://www.hhs.gov/about/news/ 
2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html. 
147. 
On March 13 and 20, 2020, the President of the United States issued two national 
emergency declarations under the National Emergencies Act (Proclamation No. 9994, 2020 DAILY 
COMP. PRES. DOC. 156 (Mar. 13, 2020)), and  under the Stafford Act (Memorandum on Providing 
Federal Support for Governors’ Use of the National Guard to Respond to COVID-19, 2020 DAILY 
COMP. PRES. DOC. 181 (Mar. 22, 2020)) respectively, and on March 18, the President invoked 
emergency powers via Executive Order under the Defense Production Act due to COVID-19 
(Exec. Order No. 13909, 2020 DAILY COMP. PRES. DOC 172 (Mar. 18, 2020)). 
Petitioners Are at Risk for Immediate Deportation 
 
148. 
Upon information and belief, without a stay of removal, Respondents will quickly 
deport all detained Respondents. 
149. 
Upon information and belief, without a stay of removal, Respondents will begin to 
deport all non-detained Respondents. 
The Majority of Petitioners Were Subjected to the Now-Void “Transit Ban” 
 
150. 
On July 16, 2019, the Departments of Justice and Homeland Security jointly 
published an interim final rule entitled “Asylum Eligibility and Procedural Modifications,” 84 Fed. 
Reg. 33,829 (July 16, 2019) (“Transit Ban”).  
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151. 
The Transit Ban renders noncitizens seeking to enter the United States at its 
southern border categorically ineligible for asylum unless they first applied for similar protection 
in a third country they transited through (other than the country they fled) and were rejected there, 
are victims of severe forms of trafficking; or did not pass through any country that is a signatory 
to the Refugee Convention, Refugee Protocol in route to the United States.  See 84 Fed. Reg. at 
33,835.  
152. 
The Transit Ban further provides that noncitizens ineligible for asylum under § 
208.13(c)(4) are automatically and conclusively determined not to have a “credible fear” of 
persecution in their home countries.  See 8 C.F.R. § 208.30(e)(5)(iii). 
153. 
The Transit Ban should not limit a noncitizen’s ability to seek withholding of 
removal under either Section 241(b)(3) of the INA or the Convention Against Torture (“CAT”).  
See 84 Fed. Reg. at 33,834.  It excludes: (1) an alien who, while in transit to the United States, 
applied for and was denied protection for individuals fleeing persecution or torture; (2) an alien 
who is a “victim of a severe form of human trafficking,” 8 C.F.R. § 214.11; or (3) an alien who 
transited only through “a country or countries that were not parties to the 1951 Convention relating 
to the Status of Refugees, the 1967 Protocol, or the CAT.”  84 Fed. Reg. at 33,835. 
154. 
Under the Transit Ban, if an immigration officer determined that a noncitizen 
subject to expedited removal was barred from asylum eligibility, the noncitizen was summarily 
found not to have a credible fear of persecution, typically without any supervisor review as 
required (8 C.F.R. § 208.30(e)(8), see also U.S.C. § 1225(b)(1)(E)(ii)), and informed during the 
CFI interview itself that they were barred from seeking asylum in the United States.  
155. 
The immigration officer then proceeded to determine only if a reasonable fear of 
persecution existed for withholding of removal or CAT protection.   
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156. 
Reasonable fear represents a higher standard than credible fear.  It is defined by 
regulation as “a reasonable possibility that [the applicant] would be persecuted on account of his 
or her race, religion, nationality, membership in a particular social group or political opinion, or a 
reasonable possibility that he or she would be tortured in the country of removal.” 8 C.F.R. 
§ 208.31(c).  
157. 
If the noncitizen did not establish a reasonable fear of persecution during the 
interview to the interviewer’s satisfaction, a written notice of decision was issued, subject to 
review by an immigration judge under the higher standard of reasonable fear (i.e., not the more 
moderate credible fear standard). 
158. 
The Transit Ban renders noncitizens seeking to enter the United States at its 
southern border categorically ineligible for asylum unless they first applied for similar protection 
in a third country they transited through (other than the country they fled) and were rejected there.  
See 84 Fed. Reg. at 33,835.3.  The Transit Ban does not limit a noncitizen’s ability to seek 
withholding of removal under either Section 241(b)(3) of the INA or the Convention Against 
Torture (“CAT”).  See 84 Fed. Reg. at 33,834.  It excludes: (1) an alien who, while in transit to the 
United States, applied for and was denied protection for individuals fleeing persecution or torture; 
(2) an alien who is a “victim of a severe form of human trafficking,” 8 C.F.R. § 214.11; or (3) an 
alien who transited only through “a country or countries that were not parties to the 1951 
Convention relating to the Status of Refugees, the 1967 Protocol, or the CAT.”  84 Fed. Reg. at 
33,835. 
159. 
The only Petitioners who were not subjected to the Transit Ban are: Petitioners 
A.G.P. and her children D.S.G. and A.S.G.; Petitioners C.R.R. and her children I.G.R. and V.G.R.; 
Petitioners E.V.M. a Guatemalan national; Petitioners I.M.V. and her children J.T.M. and D.T.M; 
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Petitioner N.V., a Haitian national, and; Petitioner C.L., a Haitian national, and her minor child 
J.A. 
160. 
The remaining Petitioners were subjected to the Transit Ban and its procedures and 
their final orders of removal resulted from Respondents’ application of the Transit Ban to those 
Petitioners (“Transit Ban Petitioners”). 
161. 
On June 30, 2020, in Capital Area Immigrants’ Rights Coalition v. Trump, Civil 
Action Nos. 19-2117, 19-2530 (TJK), 2020 WL 3542481 (D.D.C. June 30, 2020) (“CAIR”),8 in a 
Memorandum Opinion, id., and accompanying Order (CAIR v. Trump, Case 1:19-cv-02117-TJK, 
Document 71 Filed 06/30/20), Judge Timothy J. Kelly of the District Court of the District of 
Columbia entered an Order vacating the Transit Ban.  
162. 
In CAIR, the plaintiffs—immigrant-services organizations and individual asylum 
applicants who had received negative credible fear determinations based upon the Transit Ban—
alleged, among other things, that the Transit Ban was unlawful for several reasons, including that 
was arbitrary and capricious, and was issued without notice-and-comment procedures required 
under the Administrative Procedure Act (“APA”).  CAIR, 2020 WL 3542481 at *1.   
163. 
The parties cross-moved for summary judgment and Judge Kelly granted plaintiffs’ 
motion and denied the defendants’, holding that “Defendants unlawfully promulgated the [Transit 
Ban] without complying with the APA’s notice-and comment requirements, because neither the 
‘good cause’ nor the ‘foreign affairs function’ exceptions are satisfied on the record here.”  Id. 
164. 
Judge Kelly vacated the Transit Ban in a final, appealable Order.   (CAIR v. Trump, 
Case 1:19-cv-02117-TJK, Document 71 Filed 06/30/20).   
                                                 
8 CAIR was consolidated with I.A. v. Barr, Civ. No. 19-2530 (TJK), 2020 WL 3542481 at *1.   
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165. 
In ordering this remedy, Judge Kelly stated that the “APA commands that courts 
‘hold unlawful and set aside agency action[s]’ taken ‘without observance of procedure required by 
law.’”  CAIR, 2020 WL 3542481 at *1 (citing 5 U.S.C. § 706(2)(D)).  “And the D.C. Circuit has 
held that ‘[f]ailure to provide the required notice and to invite public comment ... is a fundamental 
flaw that “normally” requires vacatur of the rule.’”  Id. at *21 (quoting Heartland Reg’l Med. Ctr. 
v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (citing Sugar Cane Growers Coop. of Fla. v. 
Veneman, 289 F.3d 89, 97–98 (D.C. Cir. 2002)).  “Having found that the Rule was enacted 
unlawfully, the Court sees no reason why it should not be vacated.”  Id. 
166. 
Judge Kelly specifically denied the defendants’ requests for alternative relief: 
Defendants also urge the Court to: limit any relief to the actual parties before the 
Court,” Defs.’ Supp. Br. at 5, pointing to Justice Thomas’s concurrence in Trump 
v. Hawaii, ––– U.S.––––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018), id. at 7. But 
there, Justice Thomas addressed the propriety of nationwide injunctions, Trump, 
138 S. Ct. at 2424–29, which is not the issue here. As the D.C. Circuit has 
explained—and as Defendants concede, see Defs.’ Supp. Br. at 9 n.1—“[w]hen a 
reviewing court determines that agency regulations are unlawful, the ordinary result 
is that the rules are vacated—not that their application to the individual petitioners 
is proscribed.”  Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 
1409 (D.C. Cir. 1998) (alteration in original) (quoting Harmon v. Thornburgh, 878 
F.2d 484, 495 n.21 (D.C. Cir. 1989)); see also O.A. [v. Trump], 404 F. Supp. 3d 
[109, 153 (D.D.C. 2019).]  
 
Id. at *22.  
167. 
“A regulation not promulgated pursuant to the proper notice and comment 
procedures has no ‘force or effect of law’ and therefore is void ab initio.”  United States v. Goodner 
Bros. Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992) (citing Chrysler Corp. v. Brown, 441 U.S. 
281, 313, (1979)); see Chrysler Corp, 441 U.S. at 313 (“Certainly regulations subject to the APA 
cannot be afforded the ‘force and effect of law’ if not promulgated pursuant to the statutory 
procedural minimum found in that Act.”) (citing Morton v. Ruiz, 415 U.S. 199 (1974) & U.S. v. 
Allegheny–Ludlam Steel Corp., 406 U.S. 742, 758, (1972)).   
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168. 
Indeed, “to ‘vacate,’ as the parties should well know, means ‘to annul; to cancel or 
rescind; to declare, to make, or to render, void; to defeat; to deprive of force; to make of no 
authority or validity; to set aside.’”  Action on Smoking & Health v. C.A.B., 713 F.2d 795, 797 
(D.C. Cir. 1983) (citing 91 C.J.S. Vacate (1955) & Stewart v. Oneal, 237 F. 897, 906 (6th Cir. 
1916)). 
169. 
 “An agency rule which violates the APA is void.  Agency action taken under a 
void rule has no legal effect.”  W.C. v. Bowen, 807 F.2d 1502, 1505 (9th Cir. 1987) (citation 
omitted). 
170. 
The Transit Ban Petitioners all received negative credible fear determinations and 
all have final orders of removal because of the unlawfully promulgated Transit Ban.   
171. 
Because of CAIR, the Transit Ban Petitioners have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law.  
172. 
On July 6, 2020, the U.S. Court of Appeals for the Ninth Circuit held the Transit 
Ban unlawful pursuant to the APA and on the merits, affirming the district court’s preliminary 
injunction against its enforcement in East Bay Sanctuary Covenant v. Barr, Case Nos. 19-16487, 
19-16773 (9th Cir. July 6, 2020).  The preliminary injunction in that case is stayed pending further 
review by the Supreme Court. 
Deportation Procedures 
 
173. 
When a family is scheduled for removal, ICE typically informs the family at around 
8:00 p.m. that they will be processed for release from the facility immediately and be placed on a 
flight at around 6:00 a.m. the following morning.   
174. 
Families are then moved to a staging area where they are together with other 
families for hours overnight awaiting transport to the airport or bus station. 
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175. 
This short timeframe often provides families with no opportunity to contact family 
members about their upcoming release to coordinate the details of their return home. 
176. 
During the removal process, individuals and families are frequently shuttled across 
the country among different detention centers, and often confined in close quarters.9   
177. 
Upon release, individuals are entitled to the money in their commissary account, 
which may have been deposited upon arrival or during detention by family members or friends, as 
well as any other personal possessions that were confiscated when they were taken into custody.   
178. 
Often, however, individuals are not provided with their money and/or personal 
possessions, including their cellphones, when they are released.  They are then unable to purchase 
food or tickets for travel back to their homes when they land in their country of origin, and unable 
to contact family for assistance.  
Heightened Dangers from COVID-19 
 
179. 
As of July 8, 2020, there are 11,669,259 confirmed cases of COVID-19 worldwide 
and 539,906 confirmed deaths.10   
180. 
As of July 8, 2020, there are 2,923,432 confirmed cases of COVID-19 in the United 
States and 129,963 confirmed deaths.11 
                                                 
9 Jake Johnston, Exporting COVID-19: ICE Air Conducted Deportation Flights to 11 LAC 
Countries, Flight Data Shows, CENTER FOR ECONOMIC & POLICY RESEARCH (Apr. 27, 2020), 
https://www.cepr.net/exporting-covid-19-ice-air-conducted-deportation-flights-to-11-lac-
countries-flight-data-shows/ (last visited July 8, 2020). 
10 
Coronavirus 
Disease 
(COVID-19) 
Pandemic, 
WORLD 
HEALTH 
ORG., 
https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited July 8, 2020). 
11 Coronavirus Disease (COVID-19) Dashboard, United States of America, WORLD HEALTH ORG., 
https://covid19.who.int/region/amro/country/us (last visited July 8, 2020). 
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181. 
There is currently no vaccine to prevent COVID-19 and the best way to prevent 
illness is to avoid being exposed to this virus. 12 
182. 
The virus is thought to spread mainly from person-to-person such as (a) between 
people who are in close contact with one another (within about 6 feet); and (b) through respiratory 
droplets produced when an infected person coughs, sneezes or talks, because these droplets can 
land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. 13 
183. 
Studies have suggested that COVID-19 may be spread by people who are not 
showing symptoms.14  
184. 
Although it was originally believed that children who contracted COVID-19 did 
not become extremely ill, there are now reports of children hospitalized with a multisystem 
inflammatory disease who have tested positive for COVID-19.15   At least three children have died 
as a result of this multisystem inflammatory disease and new research continues to be published 
describing the ways that the virus can behave in children, which is not always how it behaves in 
adults.16    
 
 
                                                 
12 How to Protect Yourself & Others, CTRS. FOR DISEASE CONTROL AND PREVENTION, 
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited 
July 8, 2020). 
13 Id.  
14 
Clinical 
Questions 
about 
COVID-19: 
Questions 
and 
Answers: 
Transmission, 
https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Transmission (last visited July 8, 
2020) (follow “When is someone infectious?” hyperlink). 
15 Perri Klass, M.D., The Checkup: Rethinking Covid-19 in Children, N.Y. TIMES (May 12, 2020), 
https://www.nytimes.com/2020/05/12/well/family/coronavirus-children-covid-19.html. 
16 Id. 
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Many of Petitioners are Children 
185. 
ICE Guidance on COVID-19 does not require: testing prior to removal; the 
provision of face masks to detainees, or; social distancing during transportation to airports or on 
flights.17 
186. 
There is no systematic testing of detainees for COVID-19 prior to deportation.  
Indeed, ICE told the Miami Herald that the agency would acquire approximately 2,000 tests a 
month “but given the nationwide shortages of testing kits, ‘the agency likely won’t have enough 
to test all aliens scheduled for future removals and will prioritize testing based on evolving 
operational considerations,’ ICE said.”18 
187. 
These inadequate medical screenings have already failed to detect cases in migrants 
being deported in the past few months. 
188. 
In Guatemala, the Health Minister testified in a congressional hearing that one such 
flight arrived with 75% of its passengers infected.19   
189. 
The Guatemalan government estimated that recently returned immigrants from the 
U.S. account for nearly 20% of Guatemala’s 500 COVID-19 cases.20 
                                                 
17 
ICE 
Guidance 
on 
COVID-19, 
U.S. 
IMMIGRATION 
AND 
CUSTOMS 
ENF’T, 
https://www.ice.gov/coronavirus (last visited July 8, 2020). 
18 Monique Madan and Jacqueline Charles, He says he has COVID and has never been to Haiti. 
But 
ICE 
still 
wants 
to 
deport 
him 
there., 
MIAMI 
HERALD 
(May 
8, 
2020), 
https://www.miamiherald.com/news/local/immigration/article242581381.html#storylink=cpy. 
19 Maria Martin, Official Alleges The U.S. Has Deported Many COVID-19-Positive Migrants To 
Guatemala, NPR (Apr. 15, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020 
/04/15/834999661/official-alleges-the-u-s-has-deported-many-covid-19-positive-migrants-to-
guatemala.  
20 Jake Johnston, Exporting COVID-19: ICE Air Conducted Deportation Flights to 11 LAC 
Countries, Flight Data Shows, CENTER FOR ECONOMIC & POLICY RESEARCH, April 27, 2020, 
https://www.cepr.net/exporting-covid-19-ice-air-conducted-deportation-flights-to-11-lac-
countries-flight-data-shows/.  
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190. 
Reports also indicate that recently at least two Mexican and three Haitian deportees 
have also tested positive, yet had been placed on planes and/or buses with other deportees 
susceptible to infection.21   
191. 
It is likely that transports to many other countries have likewise included 
individuals positive for the virus.22 
192. 
In the report, Exporting COVID-19: ICE Air Conducted Deportation Flights to 11 
LAC Countries, Flight Data Shows, The Center for Economic Policy and Research reports:  
While the vast majority of deportations to Mexico take place over land, ICE Air 
flies tens of thousands of people across the country and across the world each year. 
Amid the global pandemic, which has led to countries shutting down air travel and 
closing borders, ICE Air continues to deport thousands of immigrants held in 
detention centers throughout the United States. Those facilities themselves have 
become hotspots of COVID-19 outbreaks, meaning the US is now exporting the 
virus to countries throughout the region…. Since the Trump administration 
declared a national emergency on March 13, one ICE Air contractor has flown at 
least 72 likely deportation flights to 11 Latin America and Caribbean nations — 
including to Brazil and Ecuador, which are suffering the region’s worst outbreaks 
of COVID-19, and which have both experienced an increase in deportation flights 
under the Trump administration…. From March 15 to April 24, ICE Air appears to 
have made 21 deportation flights to Guatemala; 18 to Honduras; 12 to El Salvador; 
six to Brazil; three each to Nicaragua, Ecuador, Haiti, and the Dominican Republic; 
and one each to Colombia and Jamaica. … [T]he Guatemalan government has 
estimated that 20 percent of the country’s confirmed COVID-19 cases are recently 
returned immigrants…. Because detainees are often flown across the country and 
are held in closely confined spaces, it is virtually impossible to adequately isolate 
those who have contracted COVID-19 or to ensure that those deported have not 
been exposed to COVID-19.23 
 
                                                 
21 Kevin Sieff and Nick Miroff, U.S. is deporting infected migrants back to vulnerable countries, 
WASH. POST (April 21, 2020), https://www.washingtonpost.com/world/the_americas/us-is-
deporting-infected-migrants-back-to-vulnerable-countries/2020/04/21/5ec3dcfe-8351-11ea-81a3-
9690c9881111_story.html. 
22 Jake Johnston, Exporting COVID-19: ICE Air Conducted Deportation Flights to 11 LAC 
Countries, Flight Data Shows, CENTER FOR ECONOMIC & POLICY RESEARCH (Apr. 27, 2020), 
https://www.cepr.net/exporting-covid-19-ice-air-conducted-deportation-flights-to-11-lac-
countries-flight-data-shows/. 
23 Id. 
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193. 
To prevent the spread of COVID-19, the Centers for Disease Control and 
Prevention recommends that everyone should: (a) wash hands with soap and water—or use hand 
sanitizer—often, for at least 20 seconds especially after being in a public place, or after blowing 
the nose, coughing or sneezing; (b) avoid close contact with other people, at least 6 feet; (c) avoid 
gathering in groups; (d) stay out of crowded places and avoid mass gatherings; (e) cover the mouth 
and nose with a face cloth when around others, but also continue to keep about 6 feet away from 
others, and; (f) clean and disinfect frequently touched surfaces.24 
194. 
While individuals in removal proceedings always face some danger, Petitioners 
face substantially heightened dangers because of the COVID-19 pandemic.   
195. 
According to ICE reports, as of July 6, 2020, ICE reported 835 cases of COVID-
19 of its current detainee population of 22,579.25    
196. 
Officials admit that due to limited testing, the actual number is likely significantly 
higher.26   
197. 
This is unsurprising, given that detainees frequently lack personal protective 
equipment such as masks and gloves and cannot maintain social distancing.27 
                                                 
24 How to Protect Yourself & Others, CTRS. FOR DISEASE CONTROL AND PREVENTION, 
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited 
July 8, 2020). 
25 
ICE 
Guidance 
on 
COVID-19, 
U.S. 
IMMIGRATION 
AND 
CUSTOMS 
ENF’T, 
https://www.ice.gov/coronavirus (last visited July 8, 2020). 
26 Kevin Sieff and Nick Miroff, U.S. is deporting infected migrants back to vulnerable countries, 
WASH. POST (April 21, 2020), https://www.washingtonpost.com/world/the_americas/us-is-
deporting-infected-migrants-back-to-vulnerable-countries/2020/04/21/5ec3dcfe-8351-11ea-81a3-
9690c9881111_story.html (last visited July 8, 2020). 
27 Patricia Sulbarán Lovera, Coronavirus: Immigration detention centres in crisis, BBC NEWS 
MUNDO (May 1, 2020), https://www.bbc.com/news/world-us-canada-52476131. 
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198. 
Upon information and belief, the government does not provide hand sanitizer to 
detainees while they are in detention centers, and thus it is likely that detainees are not provided 
hand sanitizer during the removal process. 
199. 
While Respondents publicly state that they provide detainees with face masks 
during transport, upon information and belief Respondents do not require detainees to wear them 
or take any measures to enforce the use of face masks during the transfers and flights. 
200. 
Upon information and belief, social distancing is not required on flights, and is 
often not possible.  
201. 
In a letter published on July 6, 2020 in the journal Clinical Infectious Diseases, 
“two scientists from Australia and the U.S. wrote that studies have shown ‘beyond any reasonable 
doubt that viruses are released during exhalation, talking and coughing in microdroplets small 
enough to remain aloft in the air.’ That means people in certain indoor conditions could be at 
greater risk of being infected than was previously thought.”28   
202. 
Accordingly, social distancing is now recognized as critical to prevent COVID-19 
transmission. 
203. 
Respondents do not provide information about measures taken to sanitize the 
vehicles used to transport detainees to staging areas.   
204. 
Thus, Petitioners face a danger of contracting COVID-19 during the deportation 
process by being confined with other detainees in either an airplane or bus, depending on their 
destination. 
                                                 
28 THE ASSOCIATED PRESS, SCIENTISTS URGE WHO TO ACKNOWLEDGE VIRUS CAN 
SPREAD 
IN 
AIR, 
https://www.nbcnews.com/health/health-news/scientists-urge-who-
acknowledge-virus-can-spread-air-n1232991 (last visited July 8, 2020). 
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205. 
Petitioners face the danger of contracting COVID-19 even after they arrive in their 
respective countries of origin, as well as the severe circumstances of inadequate quarantine 
measures, weak healthcare systems, deepening poverty, food insecurity, restrictions on public 
transportation, and strict curfews. 
206. 
Those dangers are heightened due to the COVID-19 pandemic.   
207. 
Pre-COVID-19, nonprofit organizations and government agencies received 
deported families at the airport and provided them with assistance in making phone calls or 
purchasing bus tickets, but these resources have been eliminated during the COVID-19 pandemic.   
208. 
Thus, families arriving without money or means of communication will be left 
stranded in a precarious and dangerous situation upon arrival in their country of origin. 
Country Conditions of Petitioners’ Countries of Origin During the COVID-19 Pandemic 
209. 
In Guatemala, the government declared a “state of calamity” through June 5 
because of the pandemic.29  
210. 
Due to the severity of the situation, it has closed its borders, barring entry to non-
Guatemalans (except for certain specific exceptions) and has instituted a mandatory curfew from 
6:00 pm to 5:00 am each day.30  
211. 
Additionally, there have been reports that deported individuals were told to 
undertake “voluntary” quarantine after arrival without any sort of medical screening.31  
                                                 
29 U.S. EMBASSY IN GUATEMALA, FAQS: HEALTH, SAFETY AND TRAVEL DURING COVID-19 
RESPONSE IN GUATEMALA, p. 2 (July 5, 2020), https://gt.usembassy.gov/alert-covid-19-2/. 
30 Id. at p. 3. 
31 David Toro, Siguen las deportaciones desde Estados Unidos aún con COVID-19, MEDIUM (Mar. 
23, 
2020), 
https://medium.com/@PrensaComunitar/siguen-las-deportaciones-desde-estados-
unidos-a%C3%BAn-con-covid-19-8ec944777524. 
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212. 
The government has also suspended all public transportation within the country, 
impacting Petitioners’ ability to travel to their communities or other necessary destinations, as well 
as preventing their relatives from meeting them upon arrival.32 
213. 
Conditions in Brazil are equally dire. With 1,623,284 confirmed cases and 65,487 
COVID-related deaths as of July 8, 2020, 6:58 pm CEST,33 Brazil “is experiencing widespread 
ongoing transmission” of the virus.34  Due to the poor conditions, Brazil has extended its closure 
banning the entry of foreigners through July 29. .35  
214. 
Ecuador’s health minister, Dr. Juan Carlos Zevallos, called the situation in Ecuador 
“horrifying” and “terrifying.”36  
215. 
Indeed, as of July 8, 2020, 6:58 pm CEST, Ecuador has 63,245 confirmed cases of 
COVID-19, and 4,873 reported deaths resulting from the virus.37  
216. 
The government has restricted movement throughout the country with limited 
exceptions, and imposed a nationwide curfew.38 
                                                 
32 U.S. EMBASSY IN GUATEMALA, FAQS: HEALTH, SAFETY AND TRAVEL DURING COVID-19 
RESPONSE IN GUATEMALA, p. 5 (July 5, 2020), https://gt.usembassy.gov/alert-covid-19-2/. 
33 CTRS. FOR DISEASE CONTROL AND PREVENTION, COVID-19 Travel Recommendations by 
Country, https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html (last 
visited July8, 2020)(query Brazil in the search for a destination field). 
34 
U.S. 
EMBASSY 
& 
CONSULATES 
IN 
BRAZIL, 
COVID-19 
Information, 
https://br.usembassy.gov/covid-19-information/ (last visited July 8, 2020).   
35 
U.S. 
EMBASSY 
& 
CONSULATES 
IN 
BRAZIL, 
COVID-19 
Information, 
https://br.usembassy.gov/covid-19-information/ (last visited July 8, 2020) 
36 Tim Padgett, Ecuador Health Minister: ‘Horrifying’ Coronavirus Plague Better Contained 
Now, WLRN (May 4, 2020), https://www.wlrn.org/post/ecuador-health-minister-horrifying-
coronavirus-plague-better-contained-now#stream/0. 
37 Coronavirus Disease (COVID-19) Dashboard, Ecuador, WORLD HEALTH ORG., 
https://covid19.who.int/region/amro/country/ec (last visited July 8, 2020).   
38 
U.S. 
EMBASSY 
& 
CONSULATE 
IN 
ECUADOR, 
COVID-19 
Information, 
https://ec.usembassy.gov/covid-19-information-ecu-2/ (last visited July 8, 2020). 
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217. 
As of July 8, 2020, 6:58 pm CEST, Mexico has 261,750 confirmed COVID-19 
cases, and 31,119 reported deaths resulting from it.39  
218. 
The Mexican government has announced Phase 3 of the pandemic, meaning 
“widespread community transmission, thousands of cases of infection, and increased numbers of 
patients requiring hospitalization.”40  
219. 
Individuals arriving in Mexico face a high probability of being returned to the 
United States or quarantined in Mexico.41  
220. 
Honduras—the second poorest country in Central America—has 24,665 confirmed 
cases of COVID-19 and 656 reported deaths as of July 8, 2020 6:58 pm CEST.42  
221. 
The country’s health infrastructure is ill-equipped to handle severe cases of 
COVID-19,43 not to mention the severe dengue outbreak Honduras was already experiencing.44  
222. 
Due to a curfew implemented by the Honduran government, grocery stores, gas 
stations, and pharmacies are generally closed throughout the country.45  
                                                 
39 
Coronavirus 
Disease 
(COVID-19) 
Dashboard, 
Mexico, 
WORLD 
HEALTH 
ORG., 
https://covid19.who.int/region/amro/country/mx (last visited July 8, 2020) 
40 U.S. EMBASSY & CONSULATES IN MEXICO, COVID-19 Information for U.S. Citizens in Mexico, 
https://mx.usembassy.gov/u-s-citizen-services/covid-19-information/ (last visited July 8, 2020). 
41 Id. 
42 Coronavirus Disease (COVID-19) Dashboard, Honduras, WORLD HEALTH ORG., 
https://covid19.who.int/region/amro/country/hn (last visited July 88, 2020). 
43 U.S. EMBASSY IN HONDURAS, COVID-19 Information, https://hn.usembassy.gov/covid-19-
information/ (last visited July 8, 2020). 
44 CTRS. FOR DISEASE CONTROL AND PREVENTION, HONDURAS, Travelers’ Health, Honduras, 
Clinician View, https://wwwnc.cdc.gov/travel/destinations/clinician/none/honduras (last visited 
July 8, 2020). 
45 U.S. EMBASSY IN HONDURAS, COVID-19 Curfew, https://hn.usembassy.gov/u-s-citizen-
services/local-resources-of-u-s-citizens/covid-19curfew/ (last visited July 8, 2020). 
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223. 
Due to the pandemic, there have been reports of families being forced to live on the 
streets, being deprived of the little government assistance that is provided.46 
224. 
As of July 8, 2020, 6:58 pm CEST, El Salvador has reported 8,307 confirmed cases 
of COVID-19 and 229 deaths.47   
225. 
El Salvador’s President, Nayib Bukele, announced in March a nationwide 
lockdown policy because of the pandemic, violations of which may result in indefinite detention 
in overcrowded facilities.48 
226. 
 In April, the Salvadoran Supreme Court invalidated the policy, ruling that the 
government could not detain citizens indefinitely without suspicion of crime. Nevertheless, 
President Bukele openly rejected the ruling and continues to enforce the detention policy.49 
227. 
 As of April 13, 4,236 people were being held in 87 containment centers, including 
some detained for violating the mandatory home quarantine, others after returning from abroad, 
and still others for not wearing facemasks (even though the policy does not require them to do 
so).50 
228. 
Haiti is likewise experiencing serious difficulties because of the spread of COVID-
19.  Though Haiti has reported 6,371 confirmed cases of COVID-19 and 113 deaths as of July 8, 
                                                 
46 In already poor Honduras, coronavirus pushes some into homelessness, THOMAS REUTERS 
FOUND. NEWS (Apr. 25, 2020), https://news.trust.org/item/20200424232457-oyu8c. 
47 Coronavirus Disease (COVID-19) Dashboard, El Salvador, WORLD HEALTH ORG., 
https://covid19.who.int/region/amro/country/sv (last visited July 8, 2020). 
48 El Salvador: Police Abuses in Covid-19 Response, HUMAN RIGHTS WATCH (Apr. 15, 2020), 
https://www.hrw.org/news/2020/04/15/el-salvador-police-abuses-covid-19-response/. 
49 Id.; Miranda Cady Hallett, Mass arrests and overcrowded prisons in El Salvador spark fear of 
coronavirus crisis, YAHOO! NEWS (May 6, 2020), https://theconversation.com/mass-arrests-and-
overcrowded-prisons-in-el-salvador-spark-fear-of-coronavirus-crisis-137673. 
50 El Salvador: Police Abuses in Covid-19 Response, HUMAN RIGHTS WATCH (Apr. 15, 2020), 
https://www.hrw.org/news/2020/04/15/el-salvador-police-abuses-covid-19-response/. 
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2020 6:58 pm CEST,51 these figures almost certainly fall far below the true totals as the country 
has a population of nearly 11 million people,52 over half of whom must wait in long lines at 
crowded markets just to get food each day.53   
229. 
Since over half of the population lives on approximately $2 per day, the rise in the 
cost of food means many people within Haiti will have little to no access to sustenance.54  
230. 
In an April 27, 2020 address, President Moise acknowledged the high likelihood 
that “there will be famine” as a result of COVID-19.55  
231. 
The United States Department of State has said that medical facilities within Haiti 
are “scarce and generally substandard,” and that life-threatening emergencies often require 
evacuation outside the country by air ambulance at the patient’s expense.56  
232. 
By some estimates, the country has only 39 physicians, 124 ICU beds, and capacity 
to ventilate just 62 patients within ICUs.57 
 
 
                                                 
51 
Coronavirus 
Disease 
(COVID-19) 
Dashboard, 
Haiti, 
WORLD 
HEALTH 
ORG.,  
https://covid19.who.int/region/amro/country/ht (last visited July 8, 2020). 
52 Countries: Haiti, WORLD HEALTH ORGANIZATION, https://www.who.int/countries/hti/en/ (last 
visited July 8, 2020). 
53 Sam Bojarski, Coronavirus Exposes Precarious Living Conditions in Haiti, HAITIAN TIMES 
https://haitiantimes.com/2020/03/26/coronavirus-exposes-precarious-living-conditions-in-haiti/ 
(last visited July 8, 2020). 
54 Id. 
55 Samuel Louis, Jovenel Moïse Fears Famine in Haiti After Covid-19, HAITIAN TIMES, 
https://haitiantimes.com/2020/04/28/jovenel-moise-fears-famine-in-haiti-after-covid-19/ 
(last 
visited July 8, 2020). 
56 U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, Country Information: Haiti, 
https://travel.state.gov/content/travel/en/international-travel/International-Travel-Country-
Information-Pages/Haiti.html (last visited July 8, 2020) (follow “Health” hyperlink). 
57 Sam Bojarski, Coronavirus Exposes Precarious Living Conditions in Haiti, HAITIAN TIMES 
https://haitiantimes.com/2020/03/26/coronavirus-exposes-precarious-living-conditions-in-haiti/ 
(last visited July 8, 2020). 
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LEGAL STANDARD 
Due Process 
 
233. 
The Due Process Clause of the Fifth Amendment provides that “[n]o person… shall 
be deprived of life, liberty, or property without due process of law….”  U.S. CONST. amend. V.  
234. 
It protects individuals against two types of government action. “Substantive Due 
Process” prevents the government from engaging in conduct that “shocks the conscience,” Rochin 
v. California, 342 U.S. 165, 172 (1952), or interferes with rights “[i]mplicit in the concept of 
ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 324–325 (1937).  
235. 
“Procedural Due Process” ensures that government cannot unfairly and without 
meaningful process deprive a person of life, liberty, or property. Mathews v. Eldridge, 424 U.S. 
319, 334–335 (1976). 
Accardi Doctrine 
 
236. 
Respondents have a duty to follow their own policies particularly when such 
policies are aimed at protecting Petitioners’ due process rights and right to access the courts.  See 
generally United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (establishing agency 
duty to follow self-imposed rules); see also Montilla v. I.N.S., 926 F.2d 162, 167 (2d Cir. 1991) 
(“[W]here the rights of individuals are affected, it is incumbent upon agencies to follow their own 
procedures.” (internal citation omitted)); see also Abdi v. Duke, 280 F. Supp. 3d 373, 389 
(W.D.N.Y. 2017) (“[T]he relevancy of the internal policy is to ascertain whether it pertains to 
individual rights. If so..., that internal policy must be followed.”); accord Damus v. Nielsen, 313 
F. Supp. 3d 317, 338 (D.D.C. 2018) (finding the Accardi doctrine applied to same ICE Directive 
at issue in Abdi and that language “disclaiming [the conferral of] any substantive right does not 
prove otherwise.”). 
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237. 
“[I]t is incumbent upon agencies to follow their own procedures . . . even where 
[they] are possibly more rigorous than otherwise would be required.”); Battle v. FAA, 393 F.3d 
1330, 1336 (D.C. Cir. 2005) (“Accardi has come to stand for the proposition that agencies may 
not violate their own rules and regulations to the prejudice of others.”). 
238. 
Breaches of Accardi’s rule constitute violations of both the APA and the Fifth 
Amendment’s Due Process Clause. 
239. 
Berks and Dilley are both subject to the Family Residential Standards (“FRS”) and 
the Flores settlement. 
240. 
 The FRS require Berks and Dilley to comply with CDC guidelines, just as is 
required in the adult detention facilities, which are governed by National Detention Standards 
(“NDS”) and Performance-Based National Detention Standards (“PBNDS”) which require that 
“Centers for Disease Control and Prevention (CDC) guidelines for the prevention and control of 
infectious and communicable diseases shall be followed.”58   
241. 
Respondents have failed to follow their duty to comply with the FRS, which in turn 
require compliance with CDC guidelines and federal, state and local laws. 
242. 
The CDC’s “COVID-19 Travel Recommendations by Country” guidelines state 
that the “CDC recommends that travelers avoid all nonessential travel to” Guatemala, Honduras, 
El Salvador, Haiti, Mexico, Brazil and Ecuador.59 
                                                 
58 U.S. IMMIGRATION AND CUSTOMS ENF’T, PERFORMANCE-BASED NATIONAL DETENTION 
STANDARDS 
2011, 
257, 
https://www.ice.gov/doclib/detention-
standards/2011/pbnds2011r2016.pdf; U.S. IMMIGRATION AND CUSTOMS ENF’T, NATIONAL 
DETENTION 
STANDARDS 
FOR 
NON-DEDICATED 
FACILITIES, 
1 
(Rev. 
2019), 
https://www.ice.gov/doclib/detention-standards/2019/nds2019.pdf. 
59 CTRS. FOR DISEASE CONTROL AND PREVENTION, COVID-19 Travel Recommendations by 
Country, https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html (last 
visited July 8, 2020) (query each country in “Search for a destination” field). 
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243. 
Respondents have failed to follow these guidelines because the removal of 
Petitioners now is nonessential. 
244. 
The CDC’s “Coronavirus and Travel in the United States” guidelines state: 
Clean your hands often.  Wash your hands often with soap and water 
for at least 20 seconds especially after you have been in a public 
place, or after blowing your nose, coughing, or sneezing. If soap and 
water are not readily available, use a hand sanitizer that contains at 
least 60% alcohol. Cover all surfaces of your hands and rub your 
hands together until they feel dry. 
 
 
Avoid touching your eyes, nose, and mouth. 
 
Avoid close contact with others. 
 
Keep 6 feet of physical distance from others.60 
245. 
Respondents have failed to follow these guidelines because when detainees are 
transported within the United States during the removal process, detainees are not able to keep 6 
feet of physical distance from others and are not provided hand sanitizer.   
246. 
The CDC’s “Interim Guidance on Management of Coronavirus Disease 2019 
(COVID-19) in Correctional and Detention Facilities” recommends that these facilities “[s]uspend 
all transfers of incarcerated/detained persons to and from other jurisdictions and facilities 
(including work release where relevant), unless necessary for medical evaluation, medical 
isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding.”61 
                                                 
60 Coronavirus and Travel in the United States, CTRS. FOR DISEASE CONTROL AND PREVENTION, 
https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html (last visited July 8, 
2020). 
61 CTRS. FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on Management of 
Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, 
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-
correctional-detention.html (last visited July 8, 2020). 
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247. 
Respondents have failed to follow this guidance because the removal of Petitioners 
from the United States has not been suspended and is not necessary for medical evaluation, medical 
isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. 
CLAIMS FOR RELIEF 
COUNT I (ALL PETITIONERS) 
 Removing Petitioners During the COVID-19 Pandemic Violates their Substantive and 
Procedural Due Process Rights (Shocks the Conscience).  
248. 
Petitioners re-allege and incorporate by reference each and every allegation 
contained in the preceding paragraphs as if set forth fully herein. 
249. 
“It is well established that the Fifth Amendment entitles aliens to due process of 
law in deportation proceedings.”  Demore, 538 U.S. at 523 (quoting Reno v. Flores, 507 U.S. 292, 
306 (1993)).  “Freedom from imprisonment—from government custody, detention, or other forms 
of physical restraint—lies at the heart of the liberty” that the Due Process Clause protects. 
Zadvydas, 533 U.S. at 690.  
250. 
“‘Substantive due process’ prevents the government from engaging in conduct that 
‘shocks the conscience,’… or interferes with rights ‘implicit in the concept of ordered liberty.’” 
United States v. Salerno, 481 U.S. 739, 746 (1987) (internal citations omitted).  Thus, “the 
touchstone of due process is protection of the individual against arbitrary action of 
government…whether the fault lies in the denial of fundamental due process fairness [procedural 
due process], …or in the exercise of power without any reasonable justification in the service of a 
legitimate government objective [substantive due process].”  Cty. Sacramento v. Lewis, 523 U.S. 
833, 845–46 (1998) (citations and internal quotations omitted).  
251. 
The current COVID-19 pandemic is unprecedented and presents the possibility of 
severe illness and death for those who contract the disease. 
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66 
 
252. 
There is currently no vaccine to prevent COVID-19 and the best way to prevent 
illness is to avoid being exposed to this virus.  
253. 
The virus is thought to spread mainly from person-to-person such as (a) between 
people who are in close contact with one another (within about 6 feet); (b) through respiratory 
droplets produced when an infected person coughs, sneezes or talks, because these droplets can 
land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.  
254. 
Some recent studies have suggested that COVID-19 may be spread by people who 
are not showing symptoms.  
255. 
There is currently no vaccine to prevent COVID-19 and the best way to prevent 
illness is to avoid being exposed to this virus.  
256. 
To prevent the spread of COVID-19, the CDC recommends that everyone should: 
(a) wash hands with soap and water—or use hand sanitizer—often for at least 20 seconds 
especially after being in a public place, or after blowing the nose, coughing or sneezing; (b) avoid 
close contact with other people, at least 6 feet; (c) avoid gathering in groups; (d) stay out of 
crowded places and avoid mass gatherings; (e) cover the mouth and nose with a face cloth when 
around others, but also continue to keep about 6 feet away from others, and; (f) clean and disinfect 
frequently touched surfaces (“Prevention Requirements”).   
257. 
Because many individuals who had COVID-19 are asymptomatic, the only way to 
know if a person has COVID-19 is to test the person. 
258. 
This possibility of transmission of COVID-19 increases exponentially when 
Prevention Requirements and testing are not implemented or meaningfully followed during the 
removal process.   
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67 
 
259. 
Respondents have failed to meaningfully implement Prevention Requirements and 
testing to prevent transmission of COVID-19 to Petitioners during the removal process.   
260. 
Respondents have engaged in willful, knowing conduct, removing Petitioners from 
the United States without implementing Prevention Requirements. 
261. 
Instead, during the removal process Respondents are placing detainees in confined 
spaces, like cells, buses, and planes, and forcing them into situations where social distancing 
measures are impossible.   
262. 
Respondents’ failure to implement Prevention Requirements and testing during the 
removal process deprive Petitioners of their health, safety, and bodily integrity, by placing them 
at extreme risk of contracting COVID-19.  
263. 
Further, Respondents seek to deport Petitioners to countries during their own 
pandemic-related crises, even though these countries may lack the transportation, housing, and 
medical infrastructure required to adequately deal with such a crisis.   
264. 
Respondents seek to deport Petitioners to their home countries despite knowing 
Petitioners may face persecution because of the COVID-19 pandemic.   
265. 
Petitioners are faced with the possibility that they will contract COVID-19 in the 
United States while moving through the deportation processes initiated and run by Respondents, 
only to be removed to a country that is unable to provide the resources and care necessary to treat 
COVID-19 if they are infected and that may subject them to persecution because of their infection.   
266. 
When the government attempts to force an individual to take anti-psychotic drugs, 
the due process clause prevents them from doing so absent an essential and overriding state 
interest.  United States v. White, 620 F. 3d. 401, 409 (4th Cir. 2010).  Without this state interest, 
such forcible medicating is said to shock the conscience.   
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267. 
If the government cannot force individuals to put medication in their bodies, the 
government should not be able to force individual into a process that exposes their bodies to a 
severe and deadly virus.   
268. 
Given the current pandemic, the removal process employed by Respondents shocks 
the conscience as it forces Petitioners into a removal regime where they face infection, persecution 
upon arrival to their home country, and even death.  
COUNT II (ALL PETITIONERS) 
Removing Petitioners During the COVID-19 Pandemic  
Violates the State-Created Danger Doctrine.  
269. 
Petitioners re-allege and incorporate by reference each and every allegation 
contained in the preceding paragraphs as if set forth fully herein. 
270. 
Substantive due process precludes a state actor from affirmatively acting to create 
or enhance a danger that will ultimately harm an individual.  See Butera v. District of Columbia, 
235 F.3d 637, 649–51 (D.C. Cir. 2001) (citing cases). 
271. 
The State “owes a duty of protection when its agents create or increase the danger 
to an individual.”  Id.; see also Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012) (due process 
was violated where police left detainee in more dangerous neighborhood, away from public 
transportation and without cell phone); Wang v. Reno, 81 F.3d 808, 817 (9th Cir. 1996) (alien 
could not be removed to China where U.S. government convinced him to testify about topic that 
would lead Chinese government to torture and possibly execute him).   
272. 
Due process is implicated when the state actor’s conduct in such a case is “so 
egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”  Butera, 
235 F.3d at 651 (quoting Sacramento, 523 U.S. at 847 n.8). 
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273. 
Respondents’ failure to implement Prevention Requirements and testing during the 
removal of detainees from the United States creates myriad increased risks and dangers to 
Petitioners considering the COVID-19 pandemic.  
274. 
By forcing detainees into confined areas, including buses and planes, without 
adequate screening and testing procedures, and without implementing the Prevention 
Requirements, Respondents substantially increase the risk that the virus will spread during the 
removal process.   
275. 
Respondents thus create or increase Petitioners’ risks not only of infection, but also 
of persecution due to a public perception that they are likely to carry the virus like others that have 
passed through United States removal proceedings. 
276. 
Removal will also place Petitioners in a far more dangerous location than they are 
currently in without means of protection.   
277. 
Petitioners being sent to countries where public transportation has been closed will 
be stranded at the place Respondents release them from custody, without a way to return to their 
communities or meet with relatives. Others will be subject to strict quarantines and in danger of 
unlawful detention, food insecurity, and inadequate healthcare systems.  Notably, these dangers 
are substantially increased due to the COVID-19 pandemic.   
278. 
Respondents are aware of the increased dangers the COVID-19 pandemic presents 
to Petitioners.  Disregarding these risks and affirmatively pursuing removal, given the conditions 
during removal proceedings, likelihood of virus transmission, and dangerous points of release is 
egregious and shocks the conscience.  
279. 
Accordingly, pursuing removal proceedings constitutes a violation of Petitioners’ 
substantive due process rights under the state-created danger doctrine. 
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COUNT III (ALL PETITIONERS) 
Removing Petitioners During the COVID-19 Pandemic  
Violates the Special-Relationship Doctrine 
 
280. 
Petitioners re-allege and incorporate by reference each and every allegation 
contained in the preceding paragraphs as if set forth fully herein. 
281. 
Respondents also owe Petitioners affirmative duties of care and protection arising 
from their special relationship.  See Harvey v. District of Columbia, 798 F.3d 1042, 1050 (D.C. 
Cir. 2015) (citing DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 197 (1989)).  
A special relationship arises between the government and an individual when the government 
“takes a person into its custody and holds him there against his will.”  Harris v. District of 
Columbia, 932 F.2d 10, 14 (D.C. Cir. 1991) (quoting DeShaney, 489 U.S. at 199–200).  This duty 
arises “from the limitation which [Respondents have] imposed on [Petitioners’] to act on [their] 
own behalf.”  DeShaney, 489 U.S. at 200.  This duty of care and protection includes a responsibility 
for Petitioners’ safety, well-being, and medical needs.  LaShawn A. v. Kelly, 990 F.2d 1319, 1325 
(D.C. Cir. 1993); Harris, 932 F.2d at 14. (citing Youngberg v. Romeo, 457 U.S. 307, 314–324 
(1982)). 
282. 
When the government has a special relationship with an individual, “governmental 
deliberate indifference will shock the conscience sufficiently to establish a substantive due process 
violation.”  Harvey, 798 F.3d at 1050 (internal citations omitted). 
283. 
Respondents have detained each of Petitioners involuntarily, thus forming a special 
relationship with Petitioners.  Consequently, Respondents owe Petitioners a heightened duty of 
care and protection.   
284. 
Pursuing Petitioners’ removal will breach Respondents’ duty to care for and protect 
Petitioners.  As discussed supra, Petitioners will face a serious, heightened danger of contracting 
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COVID-19 during the removal process by confinement during transportation.  Because pre-
deportation testing and medical screening procedures are inadequate, Respondents cannot fulfill 
their duty to protect Petitioners from this risk.  Sending Petitioners to their countries of origin also 
places them in substantially more danger than they currently face.  Guatemala, Ecuador, Brazil, 
Mexico, Honduras, El Salvador, Brazil, and Haiti all have reported substantial numbers of 
confirmed COVID-19 cases, and Petitioners will be at risk of infection if required to return.  If 
infected, they will suffer greater peril due to poor country conditions, their likely inability to 
procure effective healthcare, and probable persecution. 
285. 
Respondents are aware of the danger COVID-19 presents to Petitioners.  Because 
they have a special relationship with Petitioners, pursuing removal proceedings with deliberate 
indifference to the COVID-19 Pandemic shocks the conscience. 
286. 
Accordingly, pursuing removal proceedings constitutes a violation of Petitioners’ 
substantive due process rights under the special-relationship doctrine. 
COUNT IV (ALL PETITIONERS) 
 Respondents’ Attempt to Remove Petitioners During the COVID-19  
Pandemic Violates their Own Policies and Regulations in  
Violation of the APA and the Fifth Amendment (Accardi doctrine). 
 
287. 
Petitioners re-allege and incorporate by reference each and every allegation 
contained in the preceding paragraphs as if set forth fully herein. 
288. 
Respondents further had a duty to follow their own policies related to release from 
custody, particularly when such policies are aimed at protecting Petitioners’ due process rights.  
See Accardi, 347 U.S. 260 (establishing agency duty to follow self-imposed rules).  
289. 
As discussed supra, ICE’s protocols for its detainee facilities require facilities to 
provide medical care to individuals in immigration custody, and provide a continuity of care plan, 
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medication, referrals to community-based providers as medically appropriate, and a detailed 
medical care summary, among other things, upon release.  
290. 
As discussed supra, the FRS require compliance with CDC guidelines in Berks and 
Dilley, just as is required in the adult detention facilities, which are governed by NDS and PBNDS 
and require compliance with CDC guidelines for the prevention and control of infectious and 
communicable diseases.  
291. 
The CDC guidelines state that travelers should (a) avoid all nonessential travel to 
Guatemala, Honduras, El Salvador, Haiti, Mexico, Brazil, and Ecuador; (b) use a hand sanitizer 
that contains at least 60% alcohol if soap and water are not available, and; (c) keep 6 feet of 
physical distance from others.  
292. 
CDC Guidelines also provide that detention facilities suspend all transfers of 
incarcerated/detained persons to and from other jurisdictions unless necessary for medical 
evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent 
overcrowding. 
293. 
All the above policies and standards are aimed at protecting Petitioners’ rights to 
due process and violations of these policies constitute a violation of the APA and the Fifth 
Amendment pursuant to the Accardi doctrine.   
294. 
Respondents have failed to comply with any of the department policies, and CDC 
Guidelines, outlined in the FRS discussed above.   
295. 
Respondents have failed to comply with the above referenced policies.  
296. 
Such failure to comply with FRS and CDC Guidelines constitutes a violation of the 
APA and the Fifth Amendment—violating the Accardi doctrine.   
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297. 
Respondents seem woefully underprepared for the effects of the COVID-19 
pandemic on the removal process and as such have been unable to comply with the above 
referenced policies.  
298. 
Such failure to comply with the FRS constitutes a violation of the APA and the 
Fifth Amendment—violating the Accardi doctrine.   
COUNT V (TRANSIT BAN PETITIONERS) 
Removing Petitioners Who Have Unlawful Final Orders of Removal Procured Under the 
Vacated Transit Ban Violates Their Substantive and Procedural Due Process Rights 
(Shocks the Conscience). 
299. 
Petitioners re-allege and incorporate by reference each and every allegation 
contained in the preceding paragraphs as if set forth fully herein. 
300. 
In an Opinion Memorandum and Order dated June 30, 2020, Judge Kelly vacated 
the Transit Ban having found that it was enacted unlawfully.  CAIR, 2020 WL 3542481 at * 22. 
301. 
“A regulation not promulgated pursuant to the proper notice and comment 
procedures has no ‘force or effect of law’ and therefore is void ab initio.”  Goodner Bros. Aircraft, 
Inc., 966 F.2d at 384; see also Chrysler Corp., 441 U.S. at 313, (1979) (“Certainly regulations 
subject to the APA cannot be afforded the ‘force and effect of law’ if not promulgated pursuant to 
the statutory procedural minimum found in that Act.”); W.C., 807 F.2d at 1505 (“An agency rule 
which violates the APA is void.  Agency action taken under a void rule has no legal effect”).   
302. 
The Transit Ban Petitioners all received negative credible fear determinations based 
upon the Transit Ban and all have final orders of removal as a result of those negative credible fear 
determinations.   
303. 
Because of CAIR, the Transit Ban Petitioners have unlawful final orders of removal 
procured under the vacated Transit Ban, which no longer has the force and effect of law.  
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304. 
Respondents’ attempts to deport Transit Ban Petitioners, who have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law, violate their procedural due process rights under the Fifth Amendment. 
305. 
Respondents’ attempts to deport Transit Ban Petitioners, who have unlawful final 
orders of removal procured under the vacated Transit Ban, which no longer has the force and effect 
of law, violate their substantive due process rights under the Fifth Amendment and shock the 
conscience.  
COUNT VI (TRANSIT BAN PETITIONERS) 
Declaratory Judgment 
 
306. 
The Petitioners re-allege and incorporate by reference each and every allegation 
contained in the preceding paragraphs as if set forth fully herein. 
307. 
Transit Ban Petitioners seek a declaration that Respondents cannot remove Transit 
Ban Petitioners until they have valid and lawful final orders of removal. 
308. 
Transit Ban Petitioners have suffered an injury in fact because Respondents seek to 
deport them without lawful final orders of removal.  
309. 
The Transit Ban Petitioners’ injuries are caused by Respondents’ unconstitutional 
and unlawful conduct. 
310. 
It is likely Transit Ban Petitioners’ injuries will be redressed by a judgment 
declaring that Respondents cannot remove Transit Ban Petitioners until they have been provided 
a lawful process. 
 
 
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PRAYER FOR RELIEF 
WHEREFORE, Petitioners request that the Court grant the following relief: 
1. 
Assume jurisdiction over this matter; 
2. 
Temporarily stay Petitioners’ removal from the United States pending its adjudication of 
this Petition;  
3. 
Declare that the unreasonably unsafe process intended to remove Petitioners during the 
COVID-19 pandemic is unlawful;  
4. 
Declare Respondents cannot remove Transit Ban Petitioners until they have been 
provided a lawful process; 
5. 
Declare that removal of Petitioners during the current COVID-19 pandemic violates the 
Due Process Clause of the Fifth Amendment, the INA, APA, and federal regulations until 
Respondents can demonstrate that they have complied with the law including but not 
limited to compliance with the FRS, and CDC Guidelines. 
6. 
Order a stay of removal until further order of this Court;  
7. 
Award Petitioners costs and reasonable attorneys’ fees under the Equal Access to Justice 
Act; and  
8. 
Order such other relief as this Court may deem just and proper.  
Dated:     9th day of July, 2020. 
Respectfully Submitted, 
 
                    
By: /s/ Steven G. Barringer 
Steven G. Barringer (D.C. Bar No. 375373) 
GREENBERG TRAURIG, LLP 
2101 L Street, NW, Suite 1000 
Washington, DC 20037 
Telephone: (202) 331-3108   
Facsimile: (202) 261-0114  
Email: barringers@gtlaw.com 
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Caroline J. Heller (Appearing pro hac vice) 
GREENBERG TRAURIG LLP 
200 Park Ave 
New York, NY 10166 
Telephone: (212) 801-9200 
Facsimile: (212) 801-6400 
Email: hellerc@gtlaw.com 
 
Gregory P. Copeland (D.D.C. Bar # NY0311) 
Sarah T. Gillman (D.D.C. Bar # NY0316) 
RAPID DEFENSE NETWORK 
11 Broadway, Suite 615 
New York, NY 10004-1490 
Telephone: (212) 843-0910 
Facsimile: (212) 257-7033 
Email: gregory@defensenetwork.org  
Email: sarah@defensenetwork.org 
 
ATTORNEYS FOR PETITIONERS 
 
                      
 
 
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VERIFICATION PURSUANT TO 28 U.S.C. §2242 
I am submitting this verification on behalf of the Petitioners because I am one of the 
Petitioners’ attorneys. I have discussed with the Petitioners the events described in this Petition. 
On the basis of those discussions, I hereby verify that the statements made in the attached 
Petition are true and correct to the best of my knowledge. 
Date:   July 9, 2020 
 
 
/s/ Steven G. Barringer 
Steven G. Barringer (D.C. Bar No. 375373) 
GREENBERG TRAURIG, LLP 
2101 L Street, NW, Suite 1000 
Washington, DC 20037 
Telephone: (202) 331-3108   
Facsimile: (202) 261-0114  
Email: barringers@gtlaw.com 
 
Caroline J. Heller (Appearing pro hac vice) 
GREENBERG TRAURIG LLP 
200 Park Ave 
New York, NY 10166 
Telephone: (212) 801-9200 
Facsimile: (212) 801-6400 
Email: hellerc@gtlaw.com 
 
Gregory P. Copeland (D.D.C. Bar # NY0311) 
Sarah T. Gillman (D.D.C. Bar # NY0316) 
RAPID DEFENSE NETWORK 
11 Broadway, Suite 615 
New York, NY 10004-1490 
Telephone: (212) 843-0910 
Facsimile: (212) 257-7033 
Email: gregory@defensenetwork.org 
Email: sarah@defensenetwork.org 
 
ATTORNEYS FOR PETITIONERS 
 
 
 
 
 
 
 
 
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EXHIBIT “2” 
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D.A.M. v. Barr, --- F.Supp.3d ---- (2020)
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1
KeyCite Blue Flag – Appeal Notification
 
Appeal Filed by D.A.M., ET AL v. WILLIAM BARR, ET AL, D.C.Cir.,
September 15, 2020
2020 WL 5525056
Only the Westlaw citation is currently available.
United States District Court, District of Columbia.
D.A.M., et al., Petitioners,
v.
William BARR in his official
capacity as Attorney General of the
United States, et al., Respondents.
Case No. 20-cv-1321 (CRC)
|
Signed 09/15/2020
Synopsis
Background: Unsuccessful petitioners for asylum, whose
petitions for asylum had been denied pursuant to an interim
rule known as the “Transit Ban,” which generally rendered
migrants seeking admission to the United States at the border
with Mexico categorically ineligible for asylum unless they
first applied for and were denied similar protection in a third
country through which they traveled, sought a writ of habeas
corpus and a temporary restraining order (TRO) preventing
Immigration and Customs Enforcement (ICE) from carrying
out their removal during the COVID-19 pandemic. After
denial of the TRO motion, but while the habeas petition was
still pending, another court in the district vacated the Transit
Ban, finding that it was improperly promulgated under the
Administrative Procedure Act (APA), 2020 WL 3542481.
Petitioners then filed a second TRO motion to block their
imminent deportation, which motion was based on contention
that the vacatur of the Transit Ban made it unlawful for the
government to remove them without affording them all the
procedures that were available to asylum seekers prior to the
Transit Ban's issuance.
[Holding:] The District Court, Christopher R. Cooper, J., held
that Immigration and Nationality Act (INA) section barring
judicial review of any claim arising from or relating to the
implementation or operation of expedited removal orders
deprived district court of jurisdiction.
Motion denied; administrative stay of petitioners' removals
lifted.
See also 2020 WL 4218003, 2020 WL 1984309, and 2020
WL 4201635.
West Headnotes (19)
[1]
Injunction
A temporary restraining order (TRO) is an
extraordinary remedy and should be granted
sparingly.
[2]
Injunction
To obtain a temporary restraining order (TRO),
the moving party must show: (1) that he is likely
to succeed on the merits of his claim; (2) that he is
likely to suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities
tips in his favor; and (4) that a TRO is in the
public interest.
[3]
Injunction
An absence of irreparable injury is fatal to a
motion for a temporary restraining order (TRO).
[4]
Federal Courts
Courts evaluate whether they have jurisdiction
through the lens of the standard applicable at
each stage of litigation.
[5]
Injunction
A party who fails to show a substantial likelihood
of standing is not entitled to a temporary
restraining order (TRO).
[6]
Administrative Law and Procedure
In assessing its jurisdiction, the court begins with
the presumption that agency action is judicially
reviewable.
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[7]
Aliens, Immigration, and Citizenship
INA section forbidding judicial review of the
application to individuals of the INA section on
inspection of applicants for admission did not
deprive district court of jurisdiction over action
by unsuccessful petitioners for asylum, whose
petitions for asylum had been denied pursuant
to an interim rule known as the “Transit Ban,”
which generally rendered migrants seeking
admission to the United States at the border
with Mexico categorically ineligible for asylum
unless they first applied for and were denied
similar protection in a third country through
which they traveled, for a temporary restraining
order (TRO) and habeas relief due to another
court's vacatur of the Transit Ban; petitioners'
claim was neither an attempt to relitigate
individual credible-fear determinations nor a
facial challenge to the Transit Ban. Immigration
and Nationality Act § 242, 8 U.S.C.A. § 1252(a)
(2)(A)(iii).
[8]
Aliens, Immigration, and Citizenship
Vacatur of interim rule known as the “Transit
Ban,” which generally rendered migrants
seeking admission to the United States at
the border with Mexico categorically ineligible
for asylum unless they first applied for and
were denied similar protection in a third
country through which they traveled, did not
automatically extinguish removal orders issued
to unsuccessful petitioners for asylum, whose
petitions had been denied pursuant to the Transit
Ban, as relevant to determining district court's
jurisdiction over petitioners' action for habeas
relief and a temporary restraining order (TRO)
to block their imminent deportation. Immigration
and Nationality Act § 242, 8 U.S.C.A. § 1252(a)
(2)(A).
[9]
Aliens, Immigration, and Citizenship
A judicial order vacating an agency rule does
not automatically void every decision the agency
made pursuant to the invalid rule.
[10]
Administrative Law and Procedure
When a court vacates an agency rule, the vacatur
applies to all regulated parties, not only those
formally before the court.
[11]
Aliens, Immigration, and Citizenship
INA section barring judicial review of any claim
arising from or relating to the implementation or
operation of expedited removal orders deprived
district court, unless an exception applied,
of jurisdiction over action by unsuccessful
petitioners for asylum for a temporary restraining
order (TRO) and habeas relief due to vacatur of
interim rule known as the “Transit Ban,” which
generally rendered migrants seeking admission
to the United States at the border with Mexico
categorically ineligible for asylum unless they
first applied for and were denied similar
protection in a third country through which they
traveled and which was the basis for denial of
the asylum petitions; vacatur of Transit Ban did
not extinguish petitioners' removal orders, and
petitioners were challenging the implementation
or operation of the removal orders. Immigration
and Nationality Act § 242, 8 U.S.C.A. § 1252(a)
(2)(A)(i).
[12]
Aliens, Immigration, and Citizenship
INA section depriving courts of jurisdiction to
hear any cause or claim by or on behalf of
any alien arising from the decision or action by
the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders
applies to selective enforcement claims where
a noncitizen accuses the government of
discrimination in choosing among otherwise
lawful deportations to pursue; but if the
government tries to remove a noncitizen under
circumstances where removal is not within
the Attorney General's prosecutorial discretion,
the particular INA section does not apply.
Immigration and Nationality Act § 242, 8
U.S.C.A. § 1252(g).
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[13]
Aliens, Immigration, and Citizenship
INA section allowing courts jurisdiction over
cases concerning whether the petitioner was
ordered removed, which section was an
exception to INA section barring judicial review
of any claim arising from or relating to
the implementation or operation of expedited
removal orders, was not a basis to find
that district court had jurisdiction over action
by unsuccessful petitioners for asylum for a
temporary restraining order (TRO) and habeas
relief due to vacatur of interim rule known
as the “Transit Ban,” which generally rendered
migrants seeking admission to the United
States at the border with Mexico categorically
ineligible for asylum unless they first applied
for and were denied similar protection in a third
country through which they traveled and which
was the basis for denial of the asylum petitions;
there was no sound reason to conclude that
vacatur of Transit Ban also vacated petitioners'
removal orders. Immigration and Nationality Act
§ 242, 8 U.S.C.A. §§ 1252(a)(2)(A), 1252(e).
[14]
Aliens, Immigration, and Citizenship
Application of INA section barring judicial
review of any claim arising from or relating to
the implementation or operation of expedited
removal orders to preclude district court from
having jurisdiction over action by unsuccessful
petitioners for asylum for a temporary restraining
order (TRO) blocking removal and habeas
relief due to vacatur of interim rule known
as the “Transit Ban,” which generally rendered
migrants seeking admission to the United
States at the border with Mexico categorically
ineligible for asylum unless they first applied
for and were denied similar protection in a
third country through which they traveled and
which was the basis for denial of the asylum
petitions, did not violate Constitution's provision
governing the suspension of the writ of habeas
corpus. U.S. Const. art. 1, § 9, cl. 2; Immigration
and Nationality Act § 242, 8 U.S.C.A. § 1252(a)
(2)(A).
[15]
Aliens, Immigration, and Citizenship
Unsuccessful petitioners for asylum, whose
petitions for asylum had been denied pursuant
to an interim rule known as the “Transit Ban,”
which generally rendered migrants seeking
admission to the United States at the border
with Mexico categorically ineligible for asylum
unless they first applied for and were denied
similar protection in a third country through
which they traveled, demonstrated that they
would suffer irreparable harm in the absence of
a temporary restraining order (TRO) blocking
their removal following vacatur of the Transit
Ban; petitioners had a well-founded fear that
they, after removal, would be unable to return to
the United States. Immigration and Nationality
Act §§ 208, 235, 8 U.S.C.A. §§ 1158(a)(1),
1225(b).
[16]
Injunction
In a case against the government for a temporary
restraining order (TRO), the TRO factors of the
balance of equities and the public interest merge.
[17]
Aliens, Immigration, and Citizenship
Balance of equities and public interest weighed
slightly in favor of granting temporary
restraining order (TRO) blocking removal of
unsuccessful petitioners for asylum, whose
petitions for asylum had been denied pursuant
to a since-vacated interim rule known as
the “Transit Ban,” which generally rendered
migrants seeking admission to the United
States at the border with Mexico categorically
ineligible for asylum unless they first applied
for and were denied similar protection in a
third country through which they traveled; a
TRO blocking removal pending further asylum
proceedings would decrease risk of petitioners
being erroneously deprived of asylum.
[18]
Aliens, Immigration, and Citizenship
As relevant to a determining if a temporary
restraining order (TRO) is warranted, there is
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always a public interest in prompt execution
of removal orders because the continued
presence of an noncitizen lawfully deemed
removable undermines the streamlined removal
proceedings Congress established.
[19]
Aliens, Immigration, and Citizenship
As relevant to a determining if a temporary
restraining order (TRO) is warranted, there
is a public interest in preventing noncitizens
from being wrongfully removed, particularly to
countries where they are likely to face substantial
harm.
Attorneys and Law Firms
Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense
Network, New York, NY, Steven G. Barringer, Greenberg
Traurig, P.A., Washington, DC, for Petitioners D.A.M., a
Minor, J.S.P., L.O.R., J.S.M., S.L.V.
Caroline Heller, Pro Hac Vice, Greenberg Traurig P.A.,
Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense
Network, New York, NY, Steven G. Barringer, Greenberg
Traurig, P.A., Washington, DC, for Petitioner All Plaintiffs.
Christopher Charles Hair, Erez Reuveni, U.S. Attorney's
Office for the District of Columbia, Washington, DC, for
Respondents.
MEMORANDUM OPINION
CHRISTOPHER R. COOPER, United States District Judge
*1  Petitioners in this case are asylum seekers from several
countries who were issued orders of expedited removal
after entering the United States. Most of the petitioners
were denied asylum pursuant to an interim rule known as
the “Transit Ban.” Petitioners originally sought a writ of
habeas corpus and a temporary restraining order (“TRO”)
preventing Immigration and Customs Enforcement (“ICE”)
from carrying out their removal during the COVID-19
pandemic. Doing so, petitioners argued, would expose them
to attendant health risks in violation of their substantive
due process rights. The Court denied the TRO motion.
While the habeas petition was pending before this Court,
however, another court in this district vacated the Transit
Ban, finding that it was improperly promulgated under
the Administrative Procedure Act (“APA”). Petitioners then
amended their habeas petition, adding a claim that the vacatur
of the Transit Ban makes it unlawful for the government to
remove them without affording them all the procedures that
were available to asylum seekers prior to the Transit Ban's
issuance. Petitioners have now filed a second TRO motion to
block their imminent deportation on that basis.
In the abstract, there may well be merit to petitioners’
contention that deporting them based on removal orders
issued under the now-vacated Transit Ban would violate their
due process rights. However, the Court concludes that it very
likely lacks jurisdiction to rule on this issue. Petitioners’
claim is ultimately a challenge to the implementation of their
final orders of expedited removal. With limited exceptions
that do not apply here, Congress has specifically barred such
claims under 8 U.S.C. § 1252, the section of the Immigration
and Nationality Act (“INA”) limiting judicial review of
removal orders. That policy choice is consistent with the
Suspension Clause of the Constitution, even if it sometimes
produces troubling results. Petitioners therefore are not likely
to succeed on the merits of their Transit Ban claims, and
the other TRO factors do not outweigh their failure to show
a likelihood of success. Accordingly, the Court will deny
the pending TRO motion and lift the administrative stay
of removal that the Court imposed while the motion was
pending.
I. Background
Much of the background relevant to this case was set forth
in an earlier Memorandum Opinion denying petitioners’ first
TRO motion. See D.A.M. v. Barr (“D.A.M. I”), No. 20-
cv-1321 (CRC), ––– F.Supp.3d ––––, 2020 WL 4218003
(D.D.C. July 23, 2020). Here, the Court will review only what
is necessary for purposes of the present motion.
A. Petitioners’ Administrative Proceedings
Petitioners are families from Guatemala, Honduras, El
Salvador, Haiti, Mexico, Ecuador, Brazil, Colombia, Chile,
Nicaragua, and Peru. They traveled to the U.S. without
valid entry documents and asserted that they were seeking
protection from persecution in their home countries.
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Upon their arrival in the U.S., petitioners were placed into
expedited removal proceedings under 8 U.S.C. § 1225(b). In
the expedited removal process, arriving noncitizens without
valid entry documents who indicate no intention to apply
for asylum or fear of persecution are issued orders of
removal “without further hearing or review.” 8 U.S.C. §
1225(b)(1)(A)(i). Those who do seek asylum or express
fear of persecution are interviewed by an asylum officer.
Id. § 1225(b)(1)(A)(ii). The asylum officer determines
whether the noncitizen has demonstrated a “credible fear
of persecution”—i.e., “a significant possibility ... that the
alien could establish eligibility for asylum.” Id. § 1225(b)
(1)(B)(v). If the asylum officer finds no credible fear, the
noncitizen is denied asylum and issued an order of removal,
which is subject to expedited review by an immigration judge.
Id. § 1225(b)(1)(B)(iii). In addition to pursuing asylum,
noncitizens may seek withholding of removal under § 241(b)
(3)(B) of the INA or the Convention Against Torture (“CAT”).
See 8 C.F.R. § 1208.16(a). But to obtain withholding of
removal on those bases, noncitizens must meet a significantly
higher standard than “credible fear.” Specifically, noncitizens
seeking withholding of removal under the CAT must show
that they are “more likely than not” to be tortured if removed.
Id. § 1208.16(c)(2). Those seeking withholding of removal
under § 241(b)(3) of the INA similarly must show that
they are “more likely than not” to be persecuted on a
protected ground in the future, or that they have suffered such
persecution in the past. Id. § 1208.16(b).
*2  Petitioners here were determined to lack a credible fear
of persecution. However, the process through which most of
the petitioners received these determinations differed from the
usual process under 8 U.S.C. § 1225(b). Specifically, most of
the petitioners were subjected to the so-called Transit Ban,
an interim rule jointly issued last year by the Department of
Homeland Security (“DHS”) and the Department of Justice
(“DOJ”).1 With limited exceptions, the Transit Ban rendered
migrants seeking admission to the U.S. at the border with
Mexico categorically ineligible for asylum unless they first
applied for and were denied similar protection in a third
country through which they traveled. Asylum Eligibility and
Procedural Modifications, 84 Fed. Reg. 33,829, 33,835 (July
16, 2019). Therefore, for petitioners covered by the Transit
Ban, asylum officers automatically made negative credible-
fear determinations, regardless of how likely it appeared
that those petitioners would face persecution after removal.
Petitioners thus faced expedited removal unless they could
satisfy the higher standard for withholding of removal under
INA § 241(b)(3) or the CAT.
Ultimately, each petitioner was issued an order of expedited
removal. Many of them are now being detained by ICE at
either the South Texas Family Residential Facility in Dilley,
Texas or the Berks County Residential Center in Leesport,
Pennsylvania. Others have been released for medical or other
reasons.
B. Procedural History
1. Surrounding Litigation
Two other recent actions in this district provide necessary
context for the present suit.
a. CAIR v. Trump
Shortly after DHS and DOJ promulgated the Transit Ban,
immigrant-services organizations filed a lawsuit challenging
the interim rule under the APA. The plaintiffs claimed that the
Transit Ban was arbitrary and capricious, that it violated the
INA, and that it was improperly issued without notice-and-
comment procedures. Capital Area Immigrants’ Rights Coal.
v. Trump (“CAIR”), No. 19-cv-2117 (TJK), ––– F.Supp.3d
––––, ––––, 2020 WL 3542481, at *1 (D.D.C. Jun. 30, 2020).
In June 2020, Judge Timothy Kelly granted summary
judgment for the plaintiffs, finding that the government's
failure to advance the interim rule through notice-and-
comment procedures rendered it invalid under the APA.
Id. As a remedy, Judge Kelly vacated the Transit Ban. In
doing so, he rejected the government's argument that the
court should limit any relief to the parties in CAIR. Id. at
––––, 2020 WL 3542481 at *22. He also concluded that
vacatur of the interim rule would “not result in prohibitively
disruptive consequences,” partly because the southern border
was already “effectively closed” to new asylum seekers due to
the COVID-19 pandemic. Id. The government has appealed
Judge Kelly's ruling to the D.C. Circuit. Notice of Appeal,
Capital Area Immigrants’ Rights Coal. v. Trump, No. 19-
cv-2117 (TJK) (D.D.C. Aug. 28, 2020).
b. M.M.V. v. Barr
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Last year, a group of plaintiffs including some of the
petitioners here filed a lawsuit challenging what they
described as regulations, directives, and procedures adopted
to implement the Transit Ban. See M.M.V. v. Barr (“M.M.V.
I”), No. 19-cv-2773 (ABJ), ––– F.Supp.3d ––––, ––––, 2020
WL 1984309, at *1 (D.D.C. Apr. 27, 2020). They invoked
the court's jurisdiction under 8 U.S.C. § 1252(e)(3), which
authorizes federal court challenges to “written” policies
“implementing” the INA's expedited removal provisions
under certain circumstances. The case was initially assigned
to Judge Kelly as related to CAIR. However, Judge Kelly
determined that the cases were not related, based in part on the
M.M.V. plaintiffs’ representation that their complaint did not
challenge the Transit Ban itself. Order at 2, M.M.V. v. Barr,
No. 19-cv-2773 (TJK) (D.D.C. Sept. 25, 2019). M.M.V. was
then randomly reassigned to Judge Amy Berman Jackson.
*3  In April 2020, Judge Jackson dismissed the bulk of the
plaintiffs’ claims, finding that most of the alleged policies that
they challenged were not written and that the INA stripped
the court of jurisdiction to review unwritten policies. M.M.V.
I, ––– F.Supp.3d at –––– – ––––, 2020 WL 1984309, at *10-
*19. She also denied several motions to join the suit by would-
be plaintiffs (also petitioners here) because they either were
not subject to the one written (and thus reviewable) policy or
failed to challenge it within sixty days of its implementation,
as required by the statute. Id. at –––– – ––––, 2020 WL
1984309 at *20-*22.
Judge Jackson's ruling is now pending on appeal. The D.C.
Circuit denied an emergency motion to stay the plaintiffs’
removals during the appeal. Order, M.M.V. v. Barr, No.
20-5106, 2020 WL 2515998 (D.C. Cir. May 15, 2020) (per
curiam).
While the appeal in M.M.V. was pending, Judge Kelly
issued his summary judgment decision in CAIR vacating
the Transit Ban. The M.M.V. plaintiffs then asked Judge
Jackson to issue an indicative ruling that, if the case were
remanded from the D.C. Circuit, the district court would
“reconsider its jurisdiction in light of the Transit Ban's
vacatur.” Mot. for Indicative Ruling at 5, M.M.V. v. Barr,
No. 19-cv-2773 (ABJ) (D.D.C. July 20, 2020). She declined.
Assuming for argument's sake that the vacatur of the Transit
Ban also nullified all procedures adopted to implement it,
as the plaintiffs argued, Judge Jackson concluded that this
development would not cure the jurisdictional defect she had
identified. On the contrary, it “would leave the Court with
nothing to review.” Order at 4-5, M.M.V. v. Barr, No. 19-
cv-2773 (ABJ) (D.D.C. Aug. 19, 2020).2
2. Proceedings in this Case
Petitioners filed this petition for habeas corpus and complaint
on May 18, 2020, one business day after the D.C. Circuit
denied an emergency stay and cleared the way for ICE to
deport the M.M.V. plaintiffs. The petition and complaint, as
originally filed, alleged that the government would violate
the Constitution and the APA by removing petitioners during
the COVID-19 pandemic and exposing them to the attendant
health risks. See Pet'n & Compl. Petitioners immediately
moved for a TRO to halt their deportation. Mot. for TRO, ECF
No. 6.
The initial TRO motion was pending when Judge Kelly
vacated the Transit Ban in CAIR. Petitioners promptly
amended their habeas petition and complaint to add a claim
that those petitioners who were subjected to the Transit Ban
did not have lawful orders of removal and thus could not
be removed without further process. Am. Pet'n & Compl. ¶¶
299-310. Petitioners did not, however, seek to amend their
pending TRO motion to add their new claim as a ground for
emergency relief.
On July 23, 2020, this Court denied the initial TRO motion,
finding that the claims underlying that motion were unlikely
to succeed on the merits. The Court separately analyzed two
types of claims petitioners raised: claims challenging the
conditions they would face during their removal and claims
based on the conditions they would face in their countries
of origin after removal. As to the former, the Court found
that it likely had jurisdiction, but that petitioners did not
carry their burden to show that the government would likely
violate the Fifth Amendment or the APA by exposing them
to the dangers inherent in removal during the pandemic.
D.A.M. I, ––– F.Supp.3d at ––––, 2020 WL 4218003, at
*10. As to the latter claims, the Court concluded that it
likely lacked jurisdiction under 8 U.S.C. § 1252(g), which
generally bars claims “arising from the decision or action by
the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders.” As the Court explained,
the government's “decision to return petitioners to their home
countries” despite the alleged dangers in those countries “is
part and parcel of ICE's discretionary, unreviewable decision
to execute their expedited removal orders.” D.A.M. I, –––
F.Supp.3d at ––––, 2020 WL 4218003, at *10. “[F]or similar
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reasons,” the Court found that 8 U.S.C. § 1252(a)(2)(A)
(i)—which generally bars claims “arising from or relating to
the implementation or operation of an order of [expedited]
removal”—likely provided an additional basis to find that
that Court lacked jurisdiction over petitioners’ home-country-
conditions claims. Id. at –––– n.18, 2020 WL 4218003 at *10
n.18.
*4  Within hours of that ruling, petitioners filed the instant
TRO motion, now seeking to stay their removals in light of the
vacatur of the Transit Ban. The Court administratively stayed
petitioners’ removals pending the resolution of this motion.
Min. Order (July 23, 2020).
On August 6, the Court held a hearing on the motion by
videoconference. During the hearing, the Court invited the
parties to file supplemental briefs regarding Patel v. Barr, No.
20-cv-922, ––– F.Supp.3d ––––, 2020 WL 4282051 (E.D. Pa.
July 27, 2020), a recent decision holding that, notwithstanding
CAIR, 8 U.S.C. § 1252 barred an action challenging the
government's denial of asylum to three noncitizens under
the Transit Ban. The parties timely filed those supplemental
briefs, and the second TRO motion is now ripe for resolution.
II. Legal Standards
[1]
 [2]
 [3] “A TRO is an extraordinary remedy and should
be granted sparingly.” Basel Action Network v. Mar. Admin.,
285 F. Supp. 2d 58, 60 (D.D.C. 2003). To obtain a TRO, the
moving party must show: (1) that he is likely to succeed on the
merits of his claim; (2) that he is likely to suffer irreparable
harm in the absence of preliminary relief; (3) that the balance
of equities tips in his favor; and (4) that a TRO is in the
public interest. See Winter v. Nat. Res. Def. Council, 555
U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); Hall
v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) (“The
same standard applies to both temporary restraining orders
and to preliminary injunctions.”). An absence of irreparable
injury is fatal to a TRO motion. Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
The D.C. Circuit has suggested, without holding, that the
failure to establish a likelihood of success on the merits
also categorically forecloses preliminary relief. Sherley v.
Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011).
[4]
 [5]
Before reaching the merits, the Court should ensure
that it has jurisdiction to consider petitioners’ claims. Courts
evaluate whether they have jurisdiction through the lens of
the standard applicable at each stage of litigation. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992). For example, “a party who fails to show
a ‘substantial likelihood’ of standing is not entitled to a”
temporary restraining order. Food & Water Watch, Inc. v.
Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (citation omitted).
“That same reasoning ... extends to other jurisdictional
prerequisites.” Cal. Ass'n of Private Postsecondary Schs. v.
DeVos, 344 F. Supp. 3d 158, 167 (D.D.C. 2018). Thus, “[a]s
part of establishing a likelihood of success on the merits, the
[petitioners] must first demonstrate a likelihood of success
in establishing jurisdiction.” Make the Rd. N.Y. v. Wolf, 962
F.3d 612, 623 (D.C. Cir. 2020).
III. Analysis
A. Likelihood of Success on the Merits
To establish a likelihood of success on the merits, petitioners
must first show that the Court likely has jurisdiction to grant
the ultimate relief they seek.
[6]
In assessing its jurisdiction, the Court begins with the
presumption that agency action is judicially reviewable. Id.
at 623-24. Even so, petitioners face a formidable challenge
in establishing jurisdiction because 8 U.S.C. § 1252, which
governs judicial review of removal orders, “is one of the most
comprehensive jurisdiction-stripping statutes in the United
States Code.” D.A.M. I, ––– F.Supp.3d at ––––, 2020 WL
4218003, at *10.
*5  Petitioners make essentially three arguments in their
effort to establish jurisdiction. First, they argue that their
claim does not fall within the scope of 8 U.S.C. § 1252(a)(2)
(A)—which, except for a limited number of claims described
in 8 U.S.C. § 1252(e), bars judicial review of any claim
“arising from or relating to the implementation or operation
of” expedited removal orders. As a result, petitioners assert,
this case should be treated as an ordinary habeas petition
within the Court's federal-question jurisdiction. Second, they
argue that if their claim does fall within the scope of §
1252(a)(2)(A), the Court nevertheless has jurisdiction under
§ 1252(e) because the claim involves a determination of
whether petitioners’ removal orders were validly issued,
which § 1252(e) permits. Third, they argue that, insofar as §
1252 does purport to deprive the Court of jurisdiction over the
claim at issue here, it violates the Suspension Clause of the
Constitution, which prohibits Congress from limiting certain
types of habeas claims except in extraordinary circumstances.
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The Court cannot accept any of these arguments and therefore
finds that it likely lacks jurisdiction.
1. Section 1252(a)(2)(A)
Petitioners’ principal argument is that the jurisdiction-
stripping provisions of § 1252 do not cover their claim, so the
Court can exercise jurisdiction without resorting to § 1252(e)
or the Suspension Clause. The Court disagrees. Petitioners’
claim falls within the scope of § 1252(a)(2)(A),3 and therefore
the Court has no jurisdiction unless specifically granted by §
1252(e) or guaranteed by the Constitution.
[7]
Section 1252(a)(2)(A) limits judicial review of orders
of expedited removal issued under 8 U.S.C. § 1225(b)(1). It
provides in relevant part:
(2) Matters not subject to judicial review.
(A) 
Review 
relating 
to 
section 
1225(b)(1).
Notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of title 28, or
any other habeas corpus provision, and sections 1361
and 1651 of such title, no court shall have jurisdiction
to review—
(i) except as provided in [8 U.S.C. § 1252(e)],
any individual determination or to entertain any
other cause or claim arising from or relating to the
implementation or operation of an order of removal
pursuant to [8 U.S.C. § 1225(b)(1)].
8 U.S.C. § 1252(a)(2)(A)(i).4
*6  As the Court has explained, § 1252(a)(2)(A) “gives
the government virtually unreviewable authority to decide
whether and when to implement the petitioners’ removal
orders.” D.A.M. I, ––– F.Supp.3d at ––––, 2020 WL
4218003, at *8. But, petitioners argue that § 1252(a)(2)(A)
does not apply here because they are not challenging the
implementation or operation of their removal orders. Instead,
petitioners say, “their Due Process Claims are collateral
challenges to unconstitutional practices and policies used by
Respondents in seeking to remove the Transit Ban Petitioners
from the United States prior to the exhaustion of their right
to any form of constitutionally adequate lawful process.”
Reply 5-6. More specifically, their claim is that because CAIR
vacated the Transit Ban, they have procedural and substantive
due process rights to access the congressionally created pre-
removal process they would have received if the Transit Ban
had never existed. Id.
[8]
To determine whether § 1252(a)(2)(A) applies to this
claim, the Court must first answer a threshold question: Are
there currently existing orders of removal as to petitioners?
Petitioners’ position on this question is something of a
moving target. Their briefs sometimes suggest that they do
not have outstanding removal orders because CAIR wiped
those orders out of legal existence. See Mot. for TRO (“TRO
II Mot.”), ECF No. 35 at 14 (“[T]he Transit Ban Petitioners
do not seek to either vacate their removal orders (which
have been vacated pursuant to CAIR), but rather, they contest
their removal until they engage in meaningful process to
which they are entitled.”); Pet'rs’ Suppl. Mem. 3 (“Because,
in effect, the Transit Ban Petitioners have no negative credible
fear determinations, much less review by an Immigration
Judge, their orders of removal are not final or executable,
and do not justify removal.”). Elsewhere, petitioners appear
to concede that they do have removal orders outstanding. See
Pet'rs’ Suppl. Mem. 2 (“Respondents ... erroneously assert[ ]
that the Transit Ban Petitioners have asked this Court to
rule ‘that their orders must be deemed void[.]’ That is a
mischaracterization of their claims.” (quoting Resp'ts’ Suppl.
Mem. 4)).
After careful consideration, the Court is persuaded that
petitioners’ removal orders do still exist in a legal sense.
Insofar as petitioners argue otherwise, they read too much into
the vacatur of the Transit Ban. Judge Kelly did not specify
that his judgment would vacate existing orders of removal
procured under the Transit Ban. See CAIR, ––– F.Supp.3d
––––, 2020 WL 3542481. He did decline to limit the scope of
relief to the parties before him, id. at ––––, 2020 WL 3542481
at *22, but it does not necessarily follow that Judge Kelly
meant to set aside every removal order previously procured
under the Transit Ban, which the government estimates to
number into the thousands. See Hearing Tr., ECF No. 43
at 24. Indeed, some language in the opinion suggests that
Judge Kelly's focus was on how vacating the rule would
affect future agency adjudications, not past ones. See CAIR,
––– F.Supp.3d at ––––, 2020 WL 3542481 at *22 (“[T]hat
recent pandemic-related administrative action appears to have
effectively closed the southern border indefinitely to aliens
seeking asylum only underscores that vacatur of the Rule will
not result in prohibitively disruptive consequences.”).
[9]
Nor do general administrative law principles compel the
conclusion that petitioners’ removal orders no longer exist.
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On the contrary, a judicial order vacating an agency rule
does not automatically void every decision the agency made
pursuant to the invalid rule. A recent immigration case from
this district illustrates the point. In L.M.-M. v. Cuccinelli,
Judge Randolph D. Moss vacated certain U.S. Citizenship
and Immigration Services policy directives on asylum. 442 F.
Supp. 3d 1, 34 (D.D.C. 2020). Judge Moss then proceeded
to a separate analysis of whether to vacate removal orders
issued to individual noncitizens under the invalid directives.
He concluded that the plaintiffs’ own removal orders should
be vacated, but specifically declined to vacate the removal
orders of similarly situated nonparties. Id. at 36-37. This result
would make little sense if the vacatur of the policy directives
automatically voided all removal orders issued under those
directives.
*7  Courts in non-immigration cases similarly distinguish
between vacating a rule and vacating agency action taken
under that rule. See, e.g., Waterkeeper Alliance, Inc. v.
Wheeler, No. 18-cv-2230 (JDB), ––– F.Supp.3d ––––, ––––
– ––––, 2020 WL 1873564, at *6-*7 (D.D.C. Apr. 15,
2020) (partially vacating EPA approval of state regulatory
program after the D.C. Circuit separately vacated an EPA
policy that was essential to the approval); Western Watersheds
Project v. Zinke, 441 F. Supp. 3d 1042, 1085-89 (D. Idaho
2020) (vacating a Bureau of Land Management policy, then
separately analyzing whether lease sales conducted under the
vacated policy should themselves be vacated); cf. Daimler
Trucks N. Am. LLC v. EPA, 745 F.3d 1212, 1215 (D.C.
Cir. 2013) (noting that after the D.C. Circuit vacated an
EPA interim rule, engine manufacturers litigated a separate
case about whether certificates the EPA had issued under the
invalid rule should be vacated).
[10]
As petitioners emphasize, see Reply 13-16, the law is
clear that when a court vacates an agency rule, the vacatur
applies to all regulated parties, not only those formally before
the court. For example, in O.A. v. Trump, Judge Moss
rejected the government's suggestion that his vacatur of a
rule restricting asylum should be limited to the plaintiffs
in the case. 404 F. Supp. 3d 109, 153 (D.D.C. 2019). As
he explained, “that contention is both at odds with settled
precedent and difficult to comprehend. The D.C. Circuit has
‘made clear that [w]hen a reviewing court determines that
agency regulations are unlawful, the ordinary result is that the
rules are vacated—not that their application to the individual
petitioners is proscribed.’ ” Id. (quoting Nat'l Mining Ass'n
v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C.
Cir. 1998)); see also Make the Rd. N.Y. v. McAleenan, 405 F.
Supp. 3d 1, 68 (D.D.C. 2019) (the practice of applying vacatur
beyond the litigants “reflects a common-sense understanding
of what it means for a court to determine, at the conclusion
of a case, that a formerly binding legal act of one of the
parties is null and void”), rev'd on other grounds sub nom.
Make the Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020).
The universal nature of vacatur means that after a court
vacates an agency rule, the agency may not apply that rule
to anyone in subsequent adjudicative decisions, even if those
adjudications involve facts that predate the vacatur. See Nat'l
Fuel Gas Supply Corp. v. FERC, 59 F.3d 1281, 1289 (D.C.
Cir. 1995) (“Just as an Article III court may not issue an
advisory decision, it may not issue a decision for less than all
seasons, for some citizens and not others, as an administrator
shall later decide.”).
But it is one thing to say that vacatur protects everyone from
having an invalid rule applied to them in future adjudications,
and quite another to say that vacatur erases from legal
existence all past adjudications under the vacated rule. Cf.
Heartland By-Products, Inc. v. United States, 568 F.3d 1360,
1366-67 (Fed. Cir. 2009) (court's holding applies going
forward, even to facts that predate the holding, but that “does
not mean that final judicial or administrative decisions are
to be reopened” if inconsistent with the new precedent).
Petitioners would blur this distinction, but there is little, if any,
precedent for doing so. While petitioners quote liberally from
recent immigration cases in this district, see Reply 13-16,
those cases do not address whether vacatur of an agency rule
automatically voids agency decisions separate from the rule
itself. They merely reaffirm the long-held understanding that
once a rule is vacated, it is vacated for everyone. See O.A.,
404 F. Supp. 3d at 153; Make the Rd. N.Y. v. McAleenan,
405 F. Supp. 3d at 71 (rejecting argument that, after vacatur,
the agency should be allowed to “apply the invalid rule with
respect to any person who is not the individual who filed the
legal action that is before the Court”). Similarly, petitioners
cite a line of cases for the proposition that “[w]hen a court
vacates an agency's rules, the vacatur restores the status quo
before the invalid rule took effect.” TRO II Mot. 18-19
(quoting Env't Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C.
2004) and collecting similar cases). But in each of these cases,
vacatur simply restored the prior regulatory status quo; the
invalid rule was eliminated and replaced by any preexisting
rule it had superseded. See, e.g., Env't Def., 329 F. Supp.2d
at 64 (vacatur of EPA rules restored the prior absence of such
rules); Nat'l Parks Conservation Ass'n v. Jewell, 62 F. Supp.
3d 7, 21 (D.D.C. 2014) (vacatur of rule would restore previous
rule).
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*8  Perhaps the case that comes the closest to endorsing
petitioners’ understanding of vacatur is W.C. v. Bowen,
807 F.2d 1502 (9th Cir. 1987). There, a class of Social
Security claimants claimed that they received adverse agency
decisions pursuant to an invalid rule. The Ninth Circuit agreed
that the plaintiffs’ decisions were issued under a rule that
violated the APA. Id. at 1505. The court therefore upheld
an order vacating the class members’ adverse decisions. Id.
at 1506. In doing so, the court stated that “[a]gency action
taken under a void rule has no legal effect.” Id. at 1505. In
isolation, this language would appear to provide some support
for the view that vacatur of a rule voids all actions taken
under the rule. But as a whole, W.C. is better understood
to stand for the uncontroversial proposition that, when a
court with jurisdiction finds that the plaintiffs before it were
harmed by an agency decision issued under an illegal rule,
the court should vacate that wrongful decision as a remedy.
See id. at 1505-06 (framing the issue as one of remedy).
The Court will not adopt the most literal reading of the
isolated sentence from W.C. that petitioners quote, especially
since that reading would conflict with more recent persuasive
authority. See, e.g., L.M.-M., 442 F. Supp. 3d at 36-37;
Waterkeeper Alliance, ––– F.Supp.3d at –––– – ––––, 2020
WL 1873564, at *6-*7; Western Watersheds Project, 441 F.
Supp. 3d at 1085-89.
In sum, Judge Kelly's order vacating the Transit Ban means
the government cannot issue any more orders of removal
under that rule, but it does not mean that petitioners’ removal
orders (along with thousands of others) were automatically
extinguished by operation of his judgment.
[11]
Having found that petitioners still have outstanding
removal orders, the Court has little difficulty concluding
that their claim falls within the ambit of § 1252(a)(2)
(A). In challenging the government's plan to deport them
pursuant to their final orders of removal with allegedly
inadequate process, petitioners necessarily challenge “the
implementation or operation” of those orders. 8 U.S.C.
§ 1252(a)(2)(A)(i); see also Patel, ––– F.Supp.3d at
––––, 2020 WL 4282051, at *4 (claim that government
wrongfully applied the Transit Ban in determining petitioner's
asylum eligibility and issuing removal order “is not
‘collateral’ to the removal order because ... regardless of
its basis, [it] necessarily challenges the removal order”);
Castro v. DHS, 835 F.3d 422, 428 n.8, 430-34 (3d
Cir. 2016) (Section 1252(a)(2)(A) barred habeas petitions
seeking to block expedited removal where asylum officers
allegedly committed procedural errors and applied the
wrong substantive standard for credible fear); id. at 431-32
(collecting cases similarly interpreting § 1252’s limits on
review of expedited removal).
It makes no difference to frame the claim as a challenge
to the “process” preceding petitioners’ removal, rather than
the removal itself. All procedural due process claims target
an alleged failure to provide adequate process, but they do
so in order to prevent the wrongful deprivation of some
substantive interest in life, liberty, or property. See Orton
Motor, Inc. v. HHS, 884 F.3d 1205, 1215 (D.C. Cir. 2018).
The constitutionally protected interest at risk of deprivation
here is petitioners’ liberty interest in not being deported—that
is, not having their orders of removal implemented. Nor does
the fact that petitioners raise a substantive due process theory
put them beyond the reach of § 1252(a)(2)(A). The action that
petitioners characterize as a substantive due process violation
is “Respondents’ unjustified and unlawful decision to proceed
with removal” at this time—in other words, respondents’
implementation of their removal orders. TRO II Mot. 21.
The conclusion that § 1252(a)(2)(A) applies to petitioners’
Transit Ban claim is fully consistent with this Court's
reasoning in D.A.M. I. There, the Court found that § 1252(a)
(2)(A) likely did not bar challenges to the physical conditions
petitioners would face during the removal process, because
such claims “do not challenge the fact of their removals.”
––– F.Supp.3d at ––––, 2020 WL 4218003, at *8. However,
petitioners’ claims related to the conditions in their home
countries likely did fall within the scope of § 1252(a)(2)(A),
because “these claims could be said to challenge the fact of
deportation.” Id. at –––– n.18, 2020 WL 4218003 at *10 n.18.
Petitioners’ Transit Ban claim similarly challenges the fact of
their removal.
*9  [12]
For the same reason, the present motion is
distinguishable from other cases petitioners cite in which
courts exercised jurisdiction over challenges to governmental
conduct that was collateral to removal itself. For example,
in You v. Nielsen, the court had jurisdiction because “the
habeas petition [did] not challenge the discrete decision to
remove” the petitioner, but the government's conduct in
connection with the removal process—specifically, its choice
to arrest and detain the petitioner at his green card interview,
years after his removal order was issued. 321 F. Supp.
3d 451, 455-57 (S.D.N.Y. 2018). As the court explained,
“Respondents are empowered to remove Petitioner at their
discretion. But they cannot do so in any manner they please.”
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Id. at 457; see also Jennings v. Rodriguez, ––– U.S. ––––,
138 S. Ct. 830, 839-40, 200 L.Ed.2d 122 (2018) (plurality)
(finding jurisdiction over challenge to prolonged immigration
detention, where the challengers were “not asking for review
of an order of removal; ... challenging the decision to detain
them in the first place or to seek removal; [or] challenging
any part of the process by which their removability will be
determined”); Michalski v. Decker, 279 F. Supp. 3d 487,
495 (S.D.N.Y. 2018) (detention “is independent from the
decision or action to commence a removal proceeding” and
therefore reviewable).5 Unlike in those cases, petitioners here
claim that the government may not lawfully implement their
removal orders, not merely that the government's preferred
“manner” of removal is defective. You, 321 F. Supp. 3d at 457.
*10  In sum, petitioners’ claim seeks to prevent their orders
of removal from being implemented. Section 1252(a)(2)(A)
squarely applies to such a claim.
2. Section 1252(e)
[13]
The Court's conclusion that § 1252(a)(2)(A) applies to
petitioners’ claim does not end the jurisdictional inquiry. The
Court may still have jurisdiction if § 1252(e) specifically
authorizes the claim. See Make the Rd. N.Y. v. Wolf, 962 F.3d
at 626 (noting that romanettes (i), (ii), and (iv) of § 1252(a)(2)
(A) “expressly reserve jurisdiction ‘as provided in subsection
(e)’ ”). However, the Court concludes that petitioners’ claim
likely falls outside § 1252(e) and is therefore barred.
Section 1252(e) provides in relevant part:
(2) Habeas corpus proceedings. Judicial review of any
determination made under section 1225(b)(1) of this title
is available in habeas corpus proceedings, but shall be
limited to determinations of—
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under
such section, and
(C) whether the petitioner can prove by a preponderance
of the evidence that the petitioner is an alien lawfully
admitted for permanent residence, has been admitted
as a refugee under section 1157 of this title, or has
been granted asylum under section 1158 of this title,
such status not having been terminated, and is entitled
to such further inquiry as prescribed by the Attorney
General pursuant to section 1225(b)(1)(C) of this title.
[...]
(5) Scope of inquiry. In determining whether an alien has
been ordered removed under section 1225(b)(1) of this
title, the court's inquiry shall be limited to whether such
an order in fact was issued and whether it relates to the
petitioner. There shall be no review of whether the alien
is actually inadmissible or entitled to any relief from
removal.
8 U.S.C. § 1252(e).6
Petitioners argue that § 1252(e)(2)(B) supplies jurisdiction,
citing this Court's decision in Dugdale v. CBP, 88 F. Supp.
3d 1 (D.D.C. 2015). In Dugdale, the petitioner claimed that
his expedited removal order was invalid because it was not
signed by a CBP supervisor as required by the applicable
regulations. Id. at 6. The Court held that it had jurisdiction
to consider this claim under § 1252(e)(2)(B) because “a
determination of whether a removal order ‘in fact was issued’
fairly encompasses a claim that the order was not lawfully
issued due to some procedural defect.” Id. According to
petitioners, this case is analogous:
*11  Here the Transit Ban is void ab initio, thus the
credible fear determinations and subsequent review by
an Immigration Judge required for a valid final order of
removal, predicated on the heightened standard of the
Transit Ban, are similarly void ab initio. Because, in
effect, the Transit Ban Petitioners have no negative credible
fear determinations, much less review by an Immigration
Judge, their orders of removal are not final or executable,
and do not justify removal.
Pet'rs’ Suppl. Mem. 3.
The Court disagrees. CAIR may well provide a basis to
argue that petitioners’ removal orders were unlawfully issued.
But § 1252(e)(2)(B), as interpreted in Dugdale, demands
more: petitioners must raise a claim that their removal orders
were, as a matter of law, not issued. See Castro, 835 F.3d
at 433 (distinguishing Dugdale because, unlike the purported
procedural defect there, alleged inadequacies in the credible-
fear process preceding an expedited removal order are not
even “arguably related to the question whether a removal
order ‘in fact was issued’ ”). Petitioners cannot shoehorn their
claim into this narrow opening. As discussed above, there is
no sound reason to conclude that when Judge Kelly vacated
the Transit Ban, he also intended to vacate petitioners’ final
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orders of removal, or that his judgment automatically had that
effect.
Unlike Dugdale, this case is about whether the government
may lawfully implement the removal orders it has issued,
not whether it issued those orders at all. Section 1252(e)(2)
(B) provides no jurisdiction over such a claim. The INA thus
prohibits this Court from ruling on petitioners’ claim.
3. Suspension Clause
[14]
Finally, petitioners argue that if the INA does purport to
strip the Court of jurisdiction over their claim, it violates the
Suspension Clause of the Constitution. This argument must
fail because it conflicts with controlling precedent.
The Suspension Clause prohibits the political branches from
“suspend[ing]” the writ of habeas corpus “unless when in
Cases of Rebellion or Invasion the public Safety may require
it.” U.S. Const. art. I, § IX, cl. 2. The Supreme Court recently
considered the application of the Clause in circumstances
similar to those here. In DHS v. Thuraissigiam, an asylum
seeker who had received an expedited removal order filed
a habeas petition, challenging the process by which the
government reached his negative credible-fear determination
and seeking “a new opportunity to apply for asylum and
other forms of applicable relief.” ––– U.S. ––––, 140 S. Ct.
1959, 1967-68, 207 L.Ed.2d 427 (2020) (citation omitted).
The Court held that Congress could bar this claim because the
Suspension Clause does not apply to a habeas petition seeking
“to obtain additional administrative review of [an] asylum
claim and ultimately to obtain authorization to stay in this
country.” Id. at 1963. The Court explained that “the historic
core of habeas” consisted of claims challenging a person's
physical confinement. Id. at 1970-75. While reserving the
question of whether the Suspension Clause provides any
protection beyond “the scope of the writ as it existed in 1789,”
id. at 1969 n.12, the Court made clear that the Clause may not
be used to “extend the writ of habeas corpus far beyond its
scope when the Constitution was drafted and ratified.” Id. at
1963 (citation omitted).
Thuraissigiam forecloses petitioners’ Suspension Clause
argument. As petitioners admit, they are bringing “ ‘non-
core’ [habeas] claims because they do not seek release from
custody, but rather challenge Respondents’ legal authority
to deport them prior to the exhaustion of their legal right
to seek asylum.” TRO II Mot. 15. That describes precisely
the type of habeas claim that Thuraissigiam found to be “far
beyond” the writ's historic scope and therefore outside the
Suspension Clause's protection. 140 S. Ct. at 1963 (rejecting
application of Suspension Clause to petition seeking “to
obtain additional administrative review of [an] asylum claim
and ultimately to obtain authorization to stay in this country”).
While Petitioners say they do not seek an “order directing
Respondents to provide them with a new opportunity to apply
for asylum,” Reply 6 (emphasis added), they expressly seek
a declaratory judgment to the same effect. See Am. Pet'n
& Compl. 75 (asking the Court to “[d]eclare Respondents
cannot remove Transit Ban Petitioners until they have been
provided a lawful process”). The declaration petitioners seek
is no closer to the habeas heartland than the relief sought in
Thuraissigiam.
*12  Petitioners argue that this case differs from
Thuraissigiam because here, petitioners contend that the
Suspension Clause is not strictly limited to the scope of the
writ in 1789—a proposition that the Thuraissigiam Court
neither endorsed nor rejected. Reply 6, 10. True enough.
See Thuraissigiam, 140 S. Ct. at 1969 n.12; id. at 1969
(parties agreed there was no need for the Court to analyze
whether Suspension Clause protection exceeds the scope of
the circa-1789 writ). But even if Thuraissigiam leaves room
for some constitutionally protected habeas claims outside the
writ's historical core, it squarely rules out this claim as a
candidate for Suspension Clause protection. See id. at 1969
n.12 (stating that “the writ has never encompassed” claims
seeking an opportunity for further administrative review
of asylum claims (emphasis added)). Whatever support
petitioners’ argument might have in the pre-Thuraissigiam
case law, it must be rejected today.7
Accordingly, Congress's choice to deprive the Court of
jurisdiction over petitioners’ claim does not implicate the
Suspension Clause, and the Court likely lacks jurisdiction
to rule on petitioners’ claim. The Court appreciates the
harshness of this result. Many reasonable people will find it
troubling that the judicial branch should be powerless to stop
the Executive from deporting asylum seekers who received
credible-fear determinations under a rule that a federal district
court has found to have been illegally issued. But Congress's
policy of severely restricting litigation related to removal
orders makes no exception for troubling cases. See Khan
v. Holder, 608 F.3d 325, 329 (7th Cir. 2010) (“To say that
this [expedited removal] procedure is fraught with risk of
arbitrary, mistaken, or discriminatory behavior ... is not,
however, to say that courts are free to disregard jurisdictional
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limitations.”); accord Castro, 835 F.3d at 433. Nor is the Court
free to interpret the Suspension Clause to supply jurisdiction
wherever fairness may call for it.
Because the Court concludes that it lacks jurisdiction,
Petitioners cannot show a likelihood of success on the merits.
While the D.C. Circuit has suggested that the failure to
establish likelihood of success on the merits categorically
forecloses preliminary relief, see Sherley, 644 F.3d at 393, the
Court will nonetheless proceed to analyze the remaining TRO
factors, beginning with irreparable harm.
B. Irreparable Harm
[15]
To justify a TRO, petitioners must show that it is
“likely,” not merely possible, that they will suffer irreparable
harm in the absence of this relief. Winter, 555 U.S. at 20,
129 S.Ct. 365. Petitioners have made a sufficient showing to
satisfy this requirement.
Deportation pursuant to a removal order is “not categorically
irreparable,” because some deported noncitizens may still
have a realistic opportunity to contest their removal post
hoc and return to the United States if successful. Nken v.
Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550
(2009). Here, however, the harm petitioners seek to avoid is
not merely that they will be removed from the country; they
fear that after removal, they will find themselves unable to
return, even if they ultimately succeed in showing that their
deportation was wrongful. See Reply 20.
*13  This fear is well-founded. Once deported, petitioners
will not be able to participate from abroad in whatever further
asylum process they might currently be owed. See 8 U.S.C.
§ 1158(a)(1) (asylum applicants must be “physically present”
in the U.S.); 8 U.S.C. § 1225(b) (providing procedures for
asylum seekers arriving in the U.S.). In theory, petitioners
could continue litigating this case after removal, and if they
won, the Court could order the government to transport them
back to the U.S. for new credible-fear interviews. Cf. Nken,
556 U.S. at 435, 129 S.Ct. 1749. But, assuming such a
remedy would be logistically feasible, petitioners are unlikely
to obtain it. That is so because, as discussed at length above,
the Court lacks jurisdiction to grant petitioners any relief on
their Transit Ban claim, even if it agrees with their argument
on the merits. In other words, petitioners might have an
abstract legal right to be present in the U.S. for new credible-
fear interviews, but the court cannot vindicate that right by
ordering the government to transport petitioners back to the
U.S. after their removals.8
Therefore, if petitioners want to return to U.S. soil, they
will almost certainly need to do so without the government's
help. This will not be easy. As petitioners allege in their
verified amended habeas petition and complaint, and the
government has not contested, they arrived in the U.S. only
after surviving “dangerous journeys” with their children.
Am. Pet'n & Compl. ¶ 140. That petitioners were able
to make these journeys once is no guarantee that they
will be able to do so again. Moreover, as Judge Kelly
observed in CAIR, “recent pandemic-related administrative
action appears to have effectively closed the southern border
indefinitely to aliens seeking asylum.” ––– F.Supp.3d at ––––,
2020 WL 3542481, at *22 (citing, inter alia, 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. 31,503 (May 26, 2020)); see also
Notification of Temporary Travel Restrictions Applicable to
Land Ports of Entry and Ferries Service Between the United
States and Mexico, 85 Fed. Reg. 51,633 (Aug. 21, 2020). All
told, it is almost certain that if petitioners are deported, they
will not be able to reenter the U.S. anytime soon.9
*14  Petitioners have therefore shown a strong likelihood
that if the Court denies the TRO and allows the government
to carry out their removals, they will be unable to
return, regardless of whether they are legally owed an
opportunity to continue seeking asylum from inside the
U.S. Effectively permanent removal from the U.S. would
constitute irreparable injury.
C. Balance of the Equities and the Public Interest
[16]
 [17]
Two TRO factors remain to consider: the balance
of equities and the public interest. In a case against
the government, these factors merge. See Pursuing Am.’s
Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). Here,
there are equities and public interests to balance on both sides.
[18]
On the government's side, “[t]here is always a public
interest in prompt execution of removal orders” because
“[t]he continued presence of an alien lawfully deemed
removable undermines the streamlined removal proceedings
[Congress] established.” Nken, 556 U.S. at 436, 129 S.Ct.
1749 (quoting Reno, 525 U.S. at 490, 119 S.Ct. 936). That
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interest is somewhat diminished here because petitioners “are
not being removed because they violated the law.” M.M.V.
v. Barr (“M.M.V. II”), No. 19-cv-2773 (ABJ), ––– F.Supp.3d
––––, ––––, 2020 WL 2119744, at *3 (D.D.C. May 1, 2020);
see also M.M.V. I, ––– F.Supp.3d at ––––, 2020 WL 1984309,
at *1 (noting that asylum seekers such as petitioners are
not “illegal immigrants”). Similarly, the government's interest
is arguably undercut when it seeks to remove noncitizens
whose “asylum petitions have been denied under troubling
circumstances.” M.M.V. II, ––– F.Supp.3d at ––––, 2020 WL
2119744, at *3. As the Court has already noted, reasonable
observers could find it troubling that petitioners are being
removed pursuant to orders procured under the now-vacated
Transit Ban. Nevertheless, a TRO would implicate the
government's legitimate interest in effectuating Congress's
policy choice to expedite the removals of noncitizens who are
denied asylum after being apprehended at the border without
valid entry papers. See 8 U.S.C. § 1225(b).
[19]
On petitioners’ side, there is a “public interest
in preventing aliens from being wrongfully removed,
particularly to countries where they are likely to face
substantial harm.” Nken, 556 U.S. at 436, 129 S.Ct. 1749.
Because it likely lacks jurisdiction, the Court expresses no
opinion on whether it is wrongful for the government to
remove petitioners at this time, much less whether petitioners
face a sufficient likelihood of harm in their home countries
to warrant asylum. But it is clear that a TRO blocking
petitioners’ removals pending further asylum proceedings
would decrease the risk of petitioners being erroneously
deprived of asylum and thus subjected to danger after
removal. Petitioners and the public have an interest in
minimizing that risk.
Based on these considerations, the balance of equities and the
public interest tend to support petitioners. However, the Court
cannot say that these TRO factors weigh strongly in either
direction.
* * *
The Court has found that petitioners will likely suffer
irreparable harm in the absence of a TRO, and that the balance
of equities and the public interest weigh slightly in their favor.
However, petitioners are unlikely to succeed on the merits,
and the balance of equities and the public interest do not
“clearly favor[ ] granting the injunction.” Davis v. Pension
Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)
(citation omitted). The Court therefore must decline to enter
a TRO.
IV. Conclusion
*15  For the foregoing reasons, the Court will deny
Petitioners’ second Motion for Temporary Restraining
Order (ECF No. 35) and lift the administrative stay of
petitioners’ removals. A separate Order shall accompany this
Memorandum Opinion.
All Citations
--- F.Supp.3d ----, 2020 WL 5525056
Footnotes
1
Petitioners refer to those of them who were subjected to the Transit Ban as the “Transit Ban Petitioners.” For convenience,
this Memorandum Opinion generally refers to the Transit Ban Petitioners simply as “petitioners,” except where it is
necessary to distinguish them from the few petitioners who were not subjected to the Transit Ban.
2
Aside from this case and M.M.V., there is at least one more pending case in this district involving some of the
petitioners here. Some of the petitioners are plaintiffs in a lawsuit before Judge James E. Boasberg, alleging that ICE is
unconstitutionally failing to protect detainees in three family residential centers from COVID-19. See O.M.G. v. Wolf, No.
20-cv-786 (JEB), ––– F.Supp.3d ––––, ––––, 2020 WL 4201635, at *2 (D.D.C. July 22, 2020). Judge Boasberg denied
the plaintiffs’ motion for a preliminary injunction requiring their release. Id. at ––––, 2020 WL 4201635 at *13.
3
The parties also dispute whether petitioners’ claim is covered by § 1252(g), which prohibits courts from hearing any claim
“arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders.” 8 U.S.C. § 1252(g). Because the Court finds that §§ 1252(a)(2)(A) and 1252(e) likely bar petitioners’
claim, it is not necessary to decide whether § 1252(g) also deprives the Court of jurisdiction.
4
Section 1252(a)(2)(A) goes on to strip courts of jurisdiction to review
(ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of [8 U.S.C.
§ 1225(b)(1)],
(iii) the application of such section to individual aliens, including the determination made under [8 U.S.C. § 1225(b)
(1)(B)], [and]
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(iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement
the provisions of [8 U.S.C. § 1225(b)(1)].
8 U.S.C. § 1252(a)(2)(A)(ii)-(iv).
At the hearing on the present motion, government counsel argued that § 1252(a)(2)(A)(iii) bars petitioners’ claim. Hearing
Tr. 59. The Court disagrees. Section 1252(a)(2)(A)(iii) “forbids review of individual aliens’ credible-fear determinations,
not suits ... that challenge credible-fear policies on their face.” Grace v. Barr, 965 F.3d 883, 892 (D.C. Cir. 2020). Strictly
speaking, petitioners’ claim here is neither an attempt to relitigate individual credible-fear determinations nor a facial
challenge to the Transit Ban. But their claim has much more in common with the latter category than the former. At bottom,
petitioners argue they cannot be removed because their removal orders were issued pursuant to a now-invalidated
agency policy. Like the asylum seekers who successfully invoked the court's jurisdiction in Grace, petitioners here are
not asking the Court to “examine how USCIS officers ‘appl[ied]’ the challenged policies ‘to individual aliens.’ ” Id. at 893
(quoting 8 U.S.C. § 1252(a)(2)(A)(iii)).
5
The courts in these cases did not directly analyze § 1252(a)(2)(A), focusing instead on other jurisdiction-stripping
provisions that were more relevant to the facts presented. But to the extent these cases distinguish collateral challenges
to the government's conduct in connection with removal (which courts may review) from challenges to removal itself (over
which courts lack jurisdiction), their logic applies in the § 1252(a)(2)(A) context. See D.A.M. I, ––– F.Supp.3d at ––––
– ––––, 2020 WL 4218003, at *7-*8.
There is, however, an important difference between § 1252(a)(2)(A) and § 1252(g), the jurisdiction-stripping provision at
issue in several of the cases petitioners cite. Section 1252(g) provides that, with limited exceptions, “no court shall have
jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8
U.S.C. § 1252(g). This subsection applies “only to three discrete actions”—commencing proceedings, adjudicating cases,
and executing removal orders—“that the Attorney General may take,” or decline to take, as a matter of prosecutorial
discretion. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999); see
also D.A.M. I, ––– F.Supp.3d at ––––, 2020 WL 4218003, at *9 (applying § 1252(g) to claims that “directly implicate[ ] the
government's discretionary authority to return noncitizens to their native countries”). For example, § 1252(g) applies to
selective enforcement claims, where a noncitizen accuses the government of discrimination in choosing among otherwise
lawful deportations to pursue. Reno, 525 U.S. at 485, 119 S.Ct. 936. By contrast, if the government tries to remove a
noncitizen under circumstances where removal is not within the Attorney General's prosecutorial discretion, § 1252(g)
does not apply. See Arce v. United States, 899 F.3d 796, 800 (9th Cir. 2018) (where government removed noncitizen
in direct violation of a court order, § 1252(g) did not bar review because “his claims arise not from the execution of the
removal order, but from the violation of [the] court's order,” an act beyond the Attorney General's authority); Fatty v.
Nielsen, NO. C17-1535-MJP, 2018 WL 3491278, at *2 (W.D. Wash. July 20, 2018) (Section 1252(g) does not bar review
of “collateral legal and constitutional challenges to the process by which the government seeks to remove” a noncitizen);
Calderon v. Sessions, 330 F. Supp. 3d 944, 954 (S.D.N.Y. 2018) (challenge to government's “legal authority” to proceed
with removal “when the subject of the removal order also has a right to seek relief made available by the DHS” not barred
by § 1252(g)).
Section 1252(a)(2)(A), by contrast, “makes abundantly clear that” courts have no jurisdiction to review any challenge to
the implementation of an expedited removal order, except as provided in § 1252(e). Castro, 835 F.3d at 426-27. In this
sense, § 1252(a)(2)(A) is broader than § 1252(g), so the case law finding § 1252(g) inapplicable to removals outside the
Attorney General's prosecutorial discretion is not fully transferable to the § 1252(a)(2)(A) context.
6
Another subparagraph of § 1252(e) authorizes suits challenging regulations and written policies regarding the expedited-
removal statute, but requires such suits to be brought within 60 days of when the challenged regulation or policy is first
implemented. 8 U.S.C. § 1252(e)(3). All parties agree that § 1252(e)(3) provides no basis for jurisdiction in this case.
If anything, the existence of § 1252(e)(3) further bolsters the Court's conclusion that the INA likely bars petitioners’ claim.
In adopting § 1252(e)(3), Congress created an opportunity for noncitizens to challenge their expedited removal orders
based on the alleged illegality of an agency rule—but only within the 60-day limitations period. The plaintiffs in M.M.V.—
including some of the petitioners here—expressly chose not to challenge the Transit Ban directly under § 1252(e)(3).
By entertaining petitioners’ claim that their removal orders cannot be carried out because they were procured under the
Transit Ban, the Court would effectively license an end run around § 1252(e)(3)’s 60-day deadline for claims along these
lines.
7
Petitioners note that Thuraissigiam did not overrule INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347
(2001). Reply 9. But they fail to identify any specific legal principle from St. Cyr that survives and overcomes the effect
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 96 of 104

D.A.M. v. Barr, --- F.Supp.3d ---- (2020)
 © 2020 Thomson Reuters. No claim to original U.S. Government Works.
16
of Thuraissigiam on this case. Petitioners also rely on Sean B. v. McAleenan, 412 F. Supp. 3d 472 (D.N.J. 2019). To the
extent that case suggests that the Suspension Clause empowers courts to halt a deportation so that a noncitizen can
take advantage of an administrative review process where 8 U.S.C. § 1252 otherwise bars judicial intervention, see Sean
B., 412 F. Supp. 3d at 491, it has lost its persuasive value in the wake of Thuraissigiam.
8
By contrast, the petition for review of the removal order in Nken faced no insurmountable jurisdictional hurdle. In fact,
the Fourth Circuit exercised jurisdiction and granted the petition on remand from the Supreme Court. Nken v. Holder,
585 F.3d 818, 823 (4th Cir. 2009).
9
The government has suggested that after being deported, petitioners may apply for refugee status from abroad, offering
them an opportunity to return to the U.S. if they meet the legal criteria for asylum. Hearing Tr. 58. But the refugee program
provides nothing close to a guarantee that petitioners will be able to return to the U.S., even assuming they qualify for
protection. To begin, persons seeking refugee status generally must be outside their country of nationality. See 8 U.S.C.
§ 1101(a)(42). In other words, after being deported to their countries of origin, petitioners would likely need to flee to
some other country before applying for refugee status. Next, a prospective refugee who wants to resettle in the U.S.
must receive a referral to the U.S. Refugee Admissions Program (USRAP). Refugees, U.S. Citizenship & Immigration
Servs., https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees (last updated May 7, 2020). Most successful
referrals to the USRAP come from the office of the United Nations High Commissioner for Refugees (UNHCR). Dep't
of Homeland Sec., Annual Flow Report, Refugees and Asylees: 2017 3 (2019), https://www.dhs.gov/sites/default/files/
publications/Refugees_Asylees_2017.pdf. But, UNHCR does not allow prospective refugees to choose their country of
resettlement; UNHCR itself decides which country, if any, should receive the referral for resettlement. Information on
UNHCR Resettlement, United Nations High Comm'r for Refugees, https://www.unhcr.org/en-us/information-on-unhcr-
resettlement.html (last visited Sept. 12, 2020). And even if a prospective refugee is fortunate enough to be referred for
resettlement in the U.S., there is no assurance that the government will grant admission. Only a finite number of refugees
per year may be admitted. 8 U.S.C. § 1157.
End of Document
© 2020 Thomson Reuters. No claim to original U.S.
Government Works.
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 97 of 104

EXHIBIT “3” 
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 98 of 104

DECLARATION OF BRIDGET CAMBRIA, ESQ. 
 
I, Bridget Cambria, declare that the following information is true and correct to the best 
of my knowledge and belief: 
 
1. 
My name is Bridget Cambria, Esq. and I am an attorney with, and the 
Executive Director of, Aldea – The People’s Justice Center (“Aldea”), a non-
profit located in Reading, Pennsylvania in the County of Berks. Our 
organization, Aldea, offers universal representation to families detained at the 
Berks County Residential Center in Leesport, Pennsylvania. In the last five 
years, we have represented more than one thousand parents and children who 
have been detained in family detention in the Berks County Residential Center 
(“BCRC”). 
 
2. 
Our organization currently represents two families at the Berks Country 
Residential Center for immigration purposes who are Plaintiffs in the instant 
intervention request. They include parents and children ages two years old and 
three years old. The removal of these parents and children are imminent.  They 
are currently without a stay of removal and can be removed at any time. 
 
3. 
They are subject to orders of removal which were obtained pursuant to fear 
interviews conducted under the third country-transit asylum eligibility bar, 8 
C.F.R. § 1208.13(c)(4) (the “Rule). Each parent and child were denied the right 
to request asylum in the United States pursuant to 8 § U.S.C. 1158 as a direct 
result of the application of the Rule regulation. Therefore, they have never 
received credible fear interviews under the standards at 8 C.F.R. § 208.30 
which require “significant possibility … the alien can establish eligibility for 
asylum,” requiring only some chance of demonstrating at least a ten percent 
chance of persecution or harm. 
 
4. 
Pursuant to the Rule regulation, my clients were required to establish 
“reasonable fear” which is a far higher burden than credible fear and is usually 
applied only to those persons deemed an aggravated felon or a person who is 
subject to a prior order of removal.  However, reasonable fear interviews have 
a number of protections that my clients were not afforded under the statute and 
regulations such as the right to obtain counsel prior to the interview and a 
proper orientation explaining proper legal standards. 
 
5. 
The credible fear process in expedited removal involves review by an 
immigration judge. In my clients’ cases, their review by the immigration judge 
was also pursuant to the heightened “reasonable fear” standard mandated by 
the Rule regulation. Their final orders of removal are based on the application 
of an unlawfully heightened standard that has now been vacated, but the 
government refuses to process them under the correct legal standard. 
 
6. 
Neither Immigrations and Customs Enforcement (“ICE”) nor the staff at BCRC 
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 99 of 104

provide any notice to the families’ attorneys as to when ICE intends to remove 
a family will.  We have requested notice prior to removal both from ICE and 
BCRC and both refuse to provide this information.  We learn that ICE has 
removed a family only when we attempt to communicate with the family 
concerning their case and are told that they are no longer at the facility. 
 
7. 
Once the removal process begins, ICE takes the families from BCRC and 
transfers them to a staging ground for removal by plane.  They are then 
comingled with other detained persons subject to removal.  Without a stay of 
removal, the deportation of these parents and children can happen at any 
moment.  
 
8. 
The removal of these families, if effectuated, will occur as a direct result of the 
third country-transit asylum eligibility bar. Immigration authorities were made 
aware that this bar was unlawful pursuant to Capital Area Immigrants’ Rights 
(CAIR) Coalition et. al. v. Trump, No. 19-2117 (TJK), 1:19-cv-02117-TJK, 
Doc. 72 (D.C. Dist. Ct. Jun. 30, 2020); I.A. v. Barr, No. 19-2530 (TJK), 1:19-
cv-02117-TJK, Doc. 72 (D.C. Dist. Ct. Jun. 30, 2020).  
 
9. 
Despite the change in law, on information and belief, immigration authorities 
still intend to effectuate our client families’ removal based on an order received 
pursuant to the unlawfully heightened standard in the now vacated Rule. That 
removal can happen at any moment. Based on my experience and my clients’ 
countries of origin, I expect the government to begin action to remove them 
immediately if not within days. 
 
10. 
If removal is effectuated for these families, they fear physical harms, sexual 
harms, psychological harms and torture based on their status as women, as 
children, based on their familial associations and their political opinions. They 
fear being killed, physical beatings and torture, sexual assaults and rape, 
kidnappings and other harms. Because they were subject to the Rule, and 
barred from requesting asylum, they have been completely denied the right to 
seek asylum or to be protected from refoulement.  
 
 
I declare under penalty of perjury under the laws of the United States of America that the 
foregoing is true and correct pursuant to 28 U.S.C. ¶ 1746. 
 
 
Date: October 16, 2020 
 
 
 
___________________________ 
 
 
 
 
 
 
 
Bridget Cambria, Esq.  
 
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 100 of 104

EXHIBIT “4” 
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 101 of 104

DECLARATION OF SHALYN FLUHARTY 
I, Shalyn Fluharty, hereby declare under penalty of perjury as prescribed in 28 U.S.C. § 1746: 
 
1. I direct the Proyecto Dilley, formerly known as the Dilley Pro Project and CARA Pro 
Bono Project, in Dilley, Texas. In this capacity, I oversee a team of attorneys and full-
time paralegals, and a rotating group of volunteers, who provide legal services on 
behalf of asylum-seeking families who are detained at the South Texas Family 
Residential Center. I have been practicing law since 2010, and my practice has 
focused on representing detained unaccompanied immigrant children and detained 
immigrant families before the Executive Office of Immigration Review (“EOIR”) and 
the Department of Homeland Security (“DHS”). 
 
2. Proyecto Dilley represents the proposed plaintiff-intervenors in this matter in their 
immigration proceedings. Each proposed plaintiff-intervenor has a final order of 
expedited removal that is based upon a negative credible fear finding issued 
subsequent to the application of 8 C.F.R. § 1208.13(c)(4), the third country-transit 
asylum eligibility bar (the “Rule). Proposed plaintiff-intervenors have not had their 
claims adjudicated in alignment with the legal standard or procedural protections that 
are required in credible fear proceedings, and instead, were subjected to the 
heightened “reasonable fear” standard.  
 
3. Based upon my experience representing proposed plaintiff-intervenors, absent a 
Court ordered stay, ICE will likely commence removal of the proposed plaintiffs-
intervenors from the United States despite the fact that their negative fear findings 
are based upon the application of the Rule on October 17, 2020.  Capital Area 
Immigrants’ Rights (CAIR) Coalition et. al. v. Trump, No. 19-2117 (TJK), 1:19-cv-
02117-TJK, Doc. 72 (D.C. Dist. Ct. Jun. 30, 2020); I.A. v. Barr, No. 19-2530 (TJK), 
1:19-cv-02117-TJK, Doc. 72 (D.C. Dist. Ct. Jun. 30, 2020). Proposed plaintiff-
intervenors were recently clustered together in the same “neighborhood” within the 
facility. ICE regularly moves families within the facility when preparing them for 
removal. Additionally, today, October 16, 2020, ICE spoke with proposed plaintiff-
intervenors to secure contact information for the person who will receive them when 
they are removed and advised proposed plaintiff-intervenors that this person should 
be immediately ready to receive them.    
 
4. The proposed plaintiff-intervenors fear death, torture, rape and other extreme cruelty 
and harm upon return to their countries of origin. Although the removal of each 
proposed plaintiff-intervenor will permanently jeopardize their ability to seek asylum 
in the United States, plaintiff-intervenors primary fear is the irreversible physical 
harm they will face if deported. 
 
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5. The government has the ability and intention to execute the removal of the proposed 
plaintiff-intervenors with tremendous speed. I am aware that the government has 
removed families from Dilley in less than 24 hours after a court ordered stay was 
dissolved.  
 
6. In fact, this happened to numerous plaintiffs in M.M.V. v. Barr who were removed 
during a two-day gap in federal court stays of removal.  Even some M.M.V. plaintiffs 
who were covered by stays of removal were removed subsequent to the issuance of 
the stay of removal.   
 
7. Based upon information and belief, ICE operates daily removal flights from South 
Texas to many Central America countries. When ICE seeks to remove a family and 
ICE does not have an ICE-contracted flight immediately available, it regularly books 
commercial flights out of the Houston or San Antonio airports, transporting families 
by vehicle to the airport in the middle of the night. This allows ICE to effectuate 
removal for families who will be removed to any country, within a day’s notice.  
 
8. With the exception of families who are removed to El Salvador, ICE provides no 
notice to counsel or families prior to their removal. Typically, families are informed 
late at night – after 8 p.m., and most commonly around 10 p.m. – that they will be 
removed the following morning. Removal flights typically depart around 6:00 a.m.  
 
9. Families most commonly learn that they are being removed less than 12 hours prior to 
their removal when they are directed to immediately pack up their belongings and 
moved to a staging area, isolated from other detained individuals. During the staging 
period, families are unable to come to the legal visitation trailer and have limited 
access to the phone. In the overwhelming majority of cases, families who are staged 
for removal are unable to make contact with Proyecto Dilley prior to removal; rather, 
we learn that the family has been removed after they arrive in their country of origin 
for the first time.   
 
10. Based upon information and belief, the removal of all proposed plaintiff-intervenors 
is imminent. Absent the issuance of a stay of removal, proposed plaintiff-intervenors 
will be removed without the opportunity to have their claims properly and fully 
considered under the correct legal standard.  
 
 
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Pursuant to 28 U.S.C. Section 1746, I declare under penalty of perjury under the laws of the 
United States of America that the foregoing is true and correct.  
Executed on October 16, 2020 in Ft. Myers, Florida. 
 
 
 
Case 4:19-cv-04073-JST   Document 95-1   Filed 10/16/20   Page 104 of 104

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