Court filing

Emergency Motion for Stay Pending Appeal — Huisha-Huisha v. Mayorkas

Filed September 17, 2021 in Nancy Huisha-Huisha v. Alejandro Mayorkas; one of 56 filings from this case.

Record facts

Court	U.S. Court of Appeals for the D.C. Circuit
Filed	2021-09-17

U.S. Court of Appeals for the D.C. Circuit · No. 1:21-cv-00100-EGS · Doc. 123 · 2021-09-17 · Docket on CourtListener

Full text

[ORAL ARGUMENT NOT YET SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NANCY GIMENA HUISHA-HUISHA, on behalf of
herself and others similarly situated,

Plaintiffs-Appellees,

ALEJANDRO MAYORKAS, Secretary of Homeland
Security, et al.,

Defendants-Appellants.

No. 21-5200

EMERGENCY MOTION FOR STAY PENDING APPEAL AND FOR AN
ADMINISTRATIVE STAY PENDING DISPOSITION OF THE STAY
MOTION
BRIAN M. BOYNTON
Acting Assistant Attorney General

CHANNING PHILLIPS
Acting United States Attorney

SHARON SWINGLE
JOSHUA WALDMAN
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0236
joshua.waldman@usdoj.gov
USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 1 of 126

INTRODUCTION AND SUMMARY OF ARGUMENT
Defendants respectfully move for a stay pending appeal of a preliminary
injunction issued yesterday by the district court. The district court has granted a
temporary stay until September 30, 2021, but the government respectfully requests
that the Court issue an administrative stay pending its resolution of the motion for
a stay pending appeal.
The preliminary injunction prohibits the government from implementing a
vital public health measure designed to protect against the uncontrolled spread of
COVID-19. Just seven weeks ago, the Director of the U.S. Centers for Disease
Control and Prevention (CDC) again exercised longstanding authority under 42
U.S.C. § 265 (Section 265) to temporarily suspend the right to introduce into the
United States certain noncitizens traveling from Mexico and Canada, regardless of
their country of origin, who would otherwise be held in congregate settings in
Ports of Entry or U.S. Border Patrol stations at or near the U.S. border (“covered
noncitizens”). Re-asserting authority that has been invoked by CDC since the
beginning of the pandemic, the CDC Director determined that in light of the public
health risks inherent in holding covered noncitizens in these congregate settings, it
is imperative to continue to suspend the right to introduce such covered
noncitizens, including expelling covered noncitizens as quickly as possible.
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The injunction prohibits the U.S. Government from exercising authority
under the CDC order to expel noncitizens who come to the U.S. as a family unit.
Instead of being able to expel those noncitizens quickly, as is the case for single
adults subject to the order, the government must hold them in congregate settings
at or near the border– facilities that are not equipped for physical distancing,
quarantine, or isolation in the best of circumstances, and that are now significantly
over-capacity – while conducting immigration processing. Preventing expulsion
will increase the risk of COVID-19 transmission to U.S. Customs and Border
Protection (CBP) personnel, plaintiffs themselves, other noncitizens, and the U.S.
population at large. Decl. of David Shahoulian, Addendum (Add.) 62-63 ¶ 3. The
likely increase in transmission arising from the injunction also has the potential to
further burden local healthcare systems and strain healthcare resources already
stressed by the ongoing effects of COVID-19. Add.63-64 ¶ 6.
The district court’s injunction is based on a cramped understanding of
CDC’s Section 265 authority that all but eviscerates CDC’s ability to contain the
risk of transmission of communicable diseases at the border. The court ruled that
CDC’s authority to “prohibit * * * the introduction of persons” from a foreign
country does not include the authority to expel such persons if they manage to set
foot on U.S. soil. Add. 39, 41. Under that ruling, any noncitizen who crosses into
the United States over the nearly 6,000 miles of land border with Canada and
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Mexico is outside the government’s power under Section 265, even if the
noncitizen is stopped just one step over the border and, most importantly,
regardless of the risk of transmission they pose. Neither the statute’s text, purpose,
or history, nor common sense, supports that interpretation.
In addition to being legally erroneous, the district court’s order threatens
irreparable harm to the government and the public at large, particularly given the
emergence of the highly transmissible Delta variant and the historic surge of
southwest border encounters. Add.66, 68 ¶¶ 13, 18. Congress charged CDC with
making public-health judgments about how best to protect the country during a
pandemic. A stay pending appeal is necessary so the government can continue to
apply that expert judgment. Any harm to the plaintiffs resulting from a stay could
be minimized if the appeal is briefed and considered on an expedited schedule.
This Court previously granted a stay pending appeal in a similar case
involving the application of the CDC order to unaccompanied noncitizen children.
P.J.E.S. v. Mayorkas, D.C. Cir. No. 20-5357, Document #1882899 (Jan. 29, 2021).
The government respectfully suggests that a stay is likewise warranted here.1

1 The government moved in district court for a stay pending appeal, as well
as a 14-day administrative stay. Dkt. 76 at 36. The district court ruled that it
would not stay its preliminary injunction pending appeal, but granted a 14-day
administrative stay. Add.58, 61. Plaintiffs oppose a stay.
The parties have agreed to a briefing schedule for this stay motion, under
which plaintiffs will file their opposition on September 23 and the government will
file its reply on September 27, 2021.
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STATEMENT
I.
Background
The federal government has long had the authority to take actions to prevent
the spread of communicable diseases. In 1893, Congress authorized the Executive
Branch to enact rules to prevent the introduction of contagious or infectious
diseases from foreign countries into the United States. Act of Feb. 15, 1893, ch.
114, § 7, 27 Stat. 449, 452. In 1944, Congress enacted the Public Health Service
Act, which authorizes the Secretary of Health and Human Services (HHS) to
“prohibit, in whole or part, the introduction of persons and property” “into the
United States” to “avert” the “serious danger of the introduction of” a
“communicable disease,” “[w]henever the [Secretary] determines that” it is
“required in the interest of the public health.” 42 U.S.C. § 265.
In March 2020, in light of the unprecedented COVID-19 pandemic, HHS
and CDC issued an interim final rule under Section 265 to provide a procedure for
the CDC Director to temporarily suspend the introduction of certain persons into
the United States. 85 Fed. Reg. 16,559 (Mar. 24, 2020). The rule’s preamble
explained that international travel increases the risk of communicable disease
transmission into and through the United States, particularly “when travelers are in
congregate settings.” Id. at 16,560. The rule defined “introduction into the United
States of persons” to mean “the movement of a person from a foreign country” into
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the United States “so as to bring the person into contact with persons in the United
States * * * in a manner that the Director determines to present a risk of
transmission of a communicable disease to persons or property, even if the
communicable disease has already been introduced, transmitted, or is spreading
within the United States.” Id. at 16,566. CDC’s definition was intended to “clarify
that ‘introduction’ can encompass those who have physically crossed a border of
the United States and are in the process of moving into the interior.” Id. at 16,563.
The rule does not apply to U.S. citizens or lawful permanent residents. Id. at
16,567; see 42 C.F.R. § 71.40(f).
In March 2020, the CDC Director issued an Order pursuant to the March
2020 rule that temporarily suspended the introduction of certain noncitizens
traveling from Canada and Mexico into the United States. 85 Fed. Reg. 17,060
(Mar. 26, 2020). The Order applied to “covered aliens,” defined as persons
“traveling from Canada or Mexico (regardless of their country of origin) who
would otherwise be introduced into a congregate setting” at or near the border,
“typically aliens who lack valid travel documents.” Id. at 17,061. The CDC Order
explained that, under typical procedures, covered aliens may spend hours or days
in congregate settings while undergoing immigration processing and that Ports of
Entry and U.S. Border Patrol stations are “not designed for, and are not equipped
to, quarantine, isolate, or enable social distancing by persons who are or may be
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infected with COVID-19.” Id. at 17,061, 17,066. The Order also explained that
holding covered noncitizens in congregate settings risks the spread of COVID-19
to CBP personnel and further transmission of COVID-19 to the U.S. population,
with a concomitant increased strain on the U.S. healthcare system and supply
chain. Id. at 17,061.
In September 2020, HHS and CDC published a final rule. 85 Fed. Reg.
56,424 (Sept. 11, 2020) (codified at 42 C.F.R. § 71.40). The CDC Director
subsequently issued a new Order suspending the introduction of covered
noncitizens into the United States, for reasons that substantially tracked the March
2020 Order. 85 Fed. Reg. 65,806, 65,807-08 (Oct. 16, 2020).
On February 11, 2021, CDC announced that it would temporarily except
from expulsion unaccompanied noncitizen children encountered in the United
States, pending its reassessment of the Order. CDC explained that the COVID-19
pandemic continues to be highly dynamic, and that it was in the process of
reassessing the overall public-health risk at the United States’ borders and the
Order based on the most current information. 86 Fed. Reg. 9,942.
On July 22, CDC announced that it was confirming the exception of
unaccompanied noncitizen children from the Order, because there is infrastructure
in place to manage the public health risks posed by introduction of these children,
who are typically placed into HHS Office of Refugee Resettlement (ORR) custody,
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and in light of the humanitarian concerns posed by expelling unaccompanied
noncitizen children. See 86 Fed. Reg. 38,717 (July 22, 2021).
In August 2021, CDC issued a new Order, which replaced and superseded
the previous Orders. Add.72-95; 86 Fed. Reg. 42,828 (Aug. 5, 2021) (CDC
Order). The CDC Order explains that, “[u]pon reassessment of the current
situation with respect to the pandemic and the situation at the U.S. borders, CDC
finds that an Order” temporarily suspending the right to introduce certain
noncitizens traveling from Canada and Mexico, regardless of their country of
origin, into the United States “remains necessary” for single adults and family
units, subject to recurring 60-day reviews. Add.74. CDC made this determination
after an updated public health assessment that evaluated numerous considerations,
including the particular risks of COVID-19 transmission in congregate settings at
U.S. Department of Homeland Security (DHS) facilities, Add.79, the limited
ability to maintain physical distancing and cohorting given capacity constraints,
Add.83-84, the significant increase in CBP encounters that has caused DHS
facilities to exceed capacity, Add.84, the emergence of the highly transmissible
Delta variant, Add.78, and the increase in community transmission and
hospitalizations along the U.S.-Mexico border, Add.75, 82-83. The Order also
reaffirmed that the exception of unaccompanied noncitizen children was justified
given, among other things, the unique care for children by ORR and the greater
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ability of the government to implement appropriate COVID-19 measures for this
population.2
II.
Facts and District Court Proceedings
Plaintiffs brought suit on behalf of a putative class of noncitizen family units
who are or will be subjected to the CDC Order. Dkt. 57-1 at 8. As relevant here,
plaintiffs asserted that the Order exceeds CDC’s Section 265 authority. Dkt. 22, at
17-20. Plaintiffs moved for class certification and a classwide preliminary
injunction. Dkt. 57-1.
The case was held in abeyance for several months as the parties engaged in
settlement discussions. See, e.g., Dkts. 87, 111; Minute Orders dated Feb. 23,
2021, July 19, 2021. When discussions reached an impasse, the parties resumed
litigation. Dkt. 112.
On September 16, 2021, the district court granted provisional class
certification and a classwide preliminary injunction. Dkt. 123. The district court

2 CDC explained that, after intake processing, unaccompanied noncitizen
children are referred to ORR, Add.83 n.68, which has “established a robust
network of care facilities that provide testing and medical care and institute
COVID-19 mitigation protocols, including vaccination for personnel and eligible
[unaccompanied noncitizen children],” Add.88. In addition, “[unaccompanied
noncitizen children] released to a vetted sponsor or placed in a[n] . . . ORR shelter
do not pose a significant level of risk for COVID-19 spread into the community,”
because they are “released only after having undergone testing, quarantine and/or
isolation, and vaccination when possible, and their sponsors are provided with
appropriate medical and public health direction.” Add.88.
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concluded that Section 265 likely does not authorize the government to expel
noncitizens once they have crossed the border into the United States, reasoning that
“[e]ven accepting that the phrase, ‘prohibit[ing] * * * the introduction of,’ means
‘intercepting’ or ‘preventing,’” “[e]xpelling persons” “is entirely different from
interrupting, intercepting, or halting the process of introduction.” Add.41. The
court found it significant that Section 265 does not expressly confer the authority
to “expel” or “remove” or use a similar word, as statutes in the immigration
context do. Add.34-36. The district court further reasoned that Section 265’s
neighboring statutory provisions reference “quarantine” and similar measures but
do not explicitly authorize expulsion, “suggesting that the CDC’s powers were
limited to quarantine and containment.” Add.37. The district court held that
CDC’s interpretation of “introduction” – to include the movement of person from a
foreign country, even after crossing the border, that brings the person into contact
with person in the United States in a manner that presents a risk of transmission of
a communicable disease – is not entitled to Chevron deference, either because the
statutory text is unambiguous, or because the agency’s interpretation did not
implicate its scientific and technical expertise. Add.42-43.
Finally, the court concluded that the remaining preliminary injunction
factors weigh in favor of plaintiffs. Add.43-57. The court enjoined the
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government from expelling class members from the United States under the CDC
Orders. Add.58, 60.
ARGUMENT
The propriety of a stay pending appeal turns on: “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418,
426 (2009). That standard is met here.
I.
The Government is Likely to Succeed on the Merits.
The government is likely to succeed on the merits, as demonstrated by this
Court’s stay pending appeal in a similar case in which the same district court
enjoined the government from expelling a putative class of unaccompanied
noncitizen children under the CDC’s prior order. See supra at 3. The district
court’s reasoning in this case follows, and expressly relies upon, the same
preliminary injunction stayed by this Court. Add.35, 38, 41-43.
The district court erroneously concluded that the CDC Order exceeds the
agency’s statutory authority. Section 265 authorizes CDC “to prohibit, in whole or
in part, the introduction of persons and property” from a foreign country
“[w]henever” the agency “determines” that such introduction presents a “serious
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danger” of introducing “any communicable disease * * * into the United States,”
and the prohibition “is required in the interest of the public health.” The district
court reasoned the words “prohibit * * * the introduction” authorize CDC to
“stop[] something before it begins,” but not to “remedy[] it afterwards.” Add.41.
In its view, if covered noncitizens illegally enter the country or present at a Port of
Entry, the government is powerless to expel those persons from the United States.
That interpretation should be rejected for multiple reasons.
As an initial matter, an “introduction” into the United States is a continuing
process that does not stop at the border. DHS v. Thuraissigiam, 140 S. Ct. 1959,
1982 (2020) (“an alien who is detained shortly after unlawful entry cannot be said
to have ‘effected an entry’”). As CDC’s March 2020 rule noted, the “introduction”
of a person into the U.S. is not completed merely because that person crosses a line
on a map. See 85 Fed. Reg. at 16,563; 42 C.F.R. § 71.40(b)(1). Understood in
light of the purpose of Section 265, the term “introduction” covers the process of
becoming part of the population and coming into contact with others to whom a
disease can be spread. See id. at 16,566 (defining “introduction into the United
States of persons” to mean “the movement of a person from a foreign country” into
the United States “so as to bring the person into contact with persons in the United
States * * * in a manner that the Director determines to present a risk of
transmission of a communicable disease”). The district court’s reasoning – that
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Section 265 does not authorize the CDC to “remedy” an introduction “afterward,”
Add.41 – incorrectly assumes that noncitizens who have “crossed the border” have
already completed their introduction into the United States, Add.39, and that
moving those person into U.S.-run detention facilities cannot constitute part of the
introduction.
The district court also erred in concluding that CDC’s authority to prohibit
the “introduction” of a person does not include the authority to expel that person if
he or she is encountered after crossing the border. Add.41. There can be little
doubt that turning noncitizens around and sending them back across the border is
an effective way of prohibiting the introduction of a person who may carry a
communicable disease into the United States and to the population at large, who
may then become infected. A statute prohibiting persons from entering certain
protected areas is most naturally read to include both the power to prevent persons
from entering in the first instance and the power to expel them if they mistakenly
or surreptitiously enter in contravention of that prohibition. For example, the
authority to “prevent [a dangerous] individual from boarding an aircraft,” 49
U.S.C. § 114(h)(3)(B), is most naturally understood to authorize the individual’s
removal from the aircraft if he or she somehow manages to enter the plane or
jetway. That is why, for example, CDC’s authority to “suspend the entry” of
certain property pursuant to 42 C.F.R. § 71.63(a), which is also promulgated under
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Section 265, includes the authority to “re-export[]” such property, 82 Fed. Reg.
6890, 6929 (Jan. 19, 2017). Under the district court’s erroneous view, an agency
authorized to promulgate rules prohibiting any conduct would be without authority
to halt a continuing violation, but could only try to prevent the violation from
commencing in the first place.
The district court’s rigid reading disregards statutory context. Section 265
seeks “to avert” the “serious danger of the introduction * * * into the United
States” of “any communicable disease in a foreign country” “in the interest of the
public health” if that “danger is so increased by the introduction of persons * * *
from such country.” 42 U.S.C. § 265. The need to prevent the spread of a
communicable disease is in no way diminished by the fact that a noncitizen has
arrived at a Port of Entry, or crossed the border unlawfully. See 85 Fed. Reg. at
16,560, 16,563 (noting the “further introduction of COVID-19 into the United
States” that can occur if “infected persons walk[] across the land border”). The
district court – opining that the statute’s public-health purpose “is beside the
point,” Add.42 – offered no sound reason why Congress would have intended for
CDC to be rendered toothless in those circumstances.
That point is underscored by Congress’s use of the word “into” when
addressing the “serious danger of the introduction of such disease into the United
States” that is “increased by the introduction of persons * * * from such country.”
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42 U.S.C. § 265 (emphasis added). The word “into” means “[t]o the inside or
interior of,” American Heritage Dictionary 934 (3d ed. 1992), indicating that
Congress was concerned not only with stopping the communicable disease, and the
persons and property carrying it, before they cross the border, but also with
preventing further introduction of the disease, or the person or property, into the
interior of the country. The phrase “introduction * * * into” is also commonly
used to describe the placement of a species or disease into an existing population,
where it then would have a continuing presence. Id. at 946 (defining “introduce”
as “[t]o bring in and establish in a new place or environment: exotic plants that
had been introduced from the jungle”). Expulsion is thus one method of
prohibiting the “introduction” of persons or preventing the introduction of disease
“into” the United States.
The district court also reasoned that “Section 265 simply contains no
mention of the word ‘expel’ – or any synonyms thereof – within its text,” which it
found “significant,” “particularly when read in conjunction with * * * statutes
governing immigration.” Add.34, 36. But Section 265 is a public-health
provision, and hence the absence of the terminology prevalent in immigration law
is not especially significant even if its absence might be meaningful in the
immigration context. Russello v. United States, 464 U.S. 16, 25 (1983)
(“Language in one statute usually sheds little light upon the meaning of different
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language in another statute.”). Nor would such words have been necessary,
because the authority to “prohibit * * * the introduction of persons” to prevent the
introduction of disease “into” the United States is most naturally read to include
both the power to prevent persons from entering in the first instance and the power
to expel them if they mistakenly or surreptitiously enter and continue to move into
the country and its population. See supra at 12-13.
The district court similarly reasoned that the express enumeration of certain
authorities in Section 265’s neighboring provisions – such as quarantine,
apprehension, and detention, Add.36-38 – implicitly forecloses CDC from taking
other actions not “expressly mentioned.” Add.37. But that again ignores that
Section 265 expressly authorizes the CDC to prevent the introduction of
individuals into the country, which logically encompasses the power to restore the
status quo ante. The enumeration of certain penalties that may be imposed for
various types of violations under a range of different public health provisions, see
42 U.S.C. § 271, says nothing about whether the CDC can use expulsion to
implement the basic authority to prevent introduction of individuals and disease
among the population. In any event, Section 265 was meant to address
extraordinary and unprecedented public health emergencies. It delegates flexible
authority to scientific and public-health experts so they may avert the introduction
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of communicable diseases, in recognition of the fact that a legislative body cannot
predict what the most effective public-health mitigation measures might be.
Moreover, Congress enacted Section 265 to expand the government’s
authority beyond the power to quarantine. In 1893, Congress conferred the
authority to prohibit the introduction of persons “notwithstanding the quarantine
defense,” 27 Stat. at 452, making it clear that the authority to prohibit the
introduction of persons was different from, and in addition to, the authority to
quarantine.3 And Section 265 is entitled “Suspension of Entries and Imports from
Designated Places,” 58 Stat. at 704 (emphasis added), making clear that the
provision included authority to suspend the entry of persons into the United States
altogether. See Almendarez–Torres v. United States, 523 U.S. 224, 234 (1998)
(“[T]he title of a statute and the heading of a section are tools available for the
resolution of a doubt about the meaning of a statute.”).4

3 Congress removed the “notwithstanding the quarantine defense” language
when it recodified the statute in 1944, 58 Stat. at 704, but in doing so Congress
specified that its recodification was “merely a restatement of the laws” then
existing. H.R. Rep. No 78-1364 at 1-3, 25 (1944).

4 Unlike Section 264(a), in which the scope of CDC’s authority to “prevent
the introduction” of communicable disease is informed by the expressly
enumerated powers listed in the very next sentence of the same subsection, the
enumerated mitigation measures relied upon by the district court appear in
different statutory sections. Compare Alabama Assn. of Realtors v. DHS, 2021
WL 3783142 at *3 (S. Ct. 2021). In addition, Congress made clear that Section
265 was intended to expand the CDC’s authority beyond the express measure of
quarantine listed elsewhere in the Public Health Service Act.
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At a minimum, CDC’s interpretation of Section 265 is entitled to deference
under Chevron v. NRDC, 467 U.S. 837 (1984). For the reasons explained above,
the district court erred in holding “Section 265 is not ambiguous” and therefore it
“need not reach step two of the Chevron analysis.” Add.42. The district court
held, in the alternative, that deference is unwarranted because CDC’s statutory
interpretation does not implicate the agency’s “scientific and technical expertise.”
Add.42. This holding is incorrect as a matter of both law and fact. CDC
indisputably administers Section 265, and the challenged Order carries the force of
law and was issued under the authority of an Interim Final Rule or Final Rule
promulgated in accordance with the APA—which is sufficient to warrant Chevron
deference. Encino Motorcars v. Navarro, 136 S. Ct. 2117, 2125 (2016). And
CDC explained that its interpretation of “introduction” was rooted in its scientific
public-health judgment that “those who have physically crossed a border of the
United States and are in the process of moving into the interior * * * present a risk
of transmission of a communicable disease,” and may potentially spread
“communicable disease into the United States.” 85 Fed. Reg. at 16,563, 16,567.
CDC analyzed the risk of COVID-19 spreading from Canada and Mexico,
explaining that “[a]s the Delta variant continues to spread, both the United States
and Mexico are experiencing high or substantial incidence rates,” with “a 91.0%
increase in new cases over the past week” in the U.S., a 30.2% increase in Mexico,
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and a 14.8% increase in Canada. Add.75. These are precisely the kinds of
judgments based on scientific and technical public-health expertise for which
judicial deference is warranted.
II.
The Remaining Factors Support A Stay.

The preliminary injunction threatens irreparable harm to the government and
the public at large.

The CDC Order is intended to prevent irreparable harm to the public by
reducing the transmission of COVID-19 in circumstances that pose a particular
risk. Noncitizens may spend hours or days in congregate settings while
undergoing immigration processing, and space constraints at Ports of Entry and
U.S. Border Patrol stations “preclude implementation of cohorting and . . .
quarantine and isolation.” Add.83, 87. Holding covered noncitizens in congregate
settings risks the spread of COVID-19 to CBP personnel and further transmission
of COVID-19 to the U.S. population, with a concomitant increased strain on the
U.S. healthcare system and supply chain. Add.79-80, 82-83; see also Add.86-87.
“This risk has recently increased due to the spread of the highly transmissible
COVID-19 Delta variant.” Add.66 ¶ 13. The rates at which encountered
noncitizens are testing positive for COVID-19 has increased significantly in recent
weeks. Id. Contrary to the district court’s view, Add.56, vaccines and testing do
not sufficiently mitigate the problem. Many covered noncitizens originate from
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countries with “markedly lower vaccination rates,” and the Delta variant also
increases the risk of breakthrough infections. Add.78, 81. Likewise, “testing for
noncitizens at CBP holding facilities is very limited” and the majority of testing
would require transportation to an off-site facility, thus increasing the risk of
spreading COVID-19. Add.87.
Additionally, the injunction risks straining CBP’s already-limited capacity.
DHS was, as of July, expelling only 15% of family units encountered, due in large
part to foreign government restrictions that preclude the expulsion of additional
family units. Add.86 & n.80. (CBP also continues to expel over 80% of single
adults, for an average of more than 3,000 per day. Add.86 & n.81.) An injunction
requiring DHS to process even an additional 15% of families pursuant to Title 8
would put enormous strain on the system and would endanger public health. CBP
has seen a historic surge in southwest border encounters in recent months. Add.67-
68 ¶ 17. In May and June, CBP recorded over 180,000 and 188,000 encounters
respectively, at the southwest border. Add.68 ¶ 18. During this period, CBP
encountered more than 6,000 individuals per day, including about 1,650
individuals in family units. Id. “These constitute the highest numbers of monthly
encounters recorded by CBP in more than twenty years.” Id. The numbers of
family units seeking to cross the border, are, according to DHS predictions, likely
to grow as a result of the injunction. Id. ¶ 23.
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This is particularly problematic because CBP’s already-limited capacity has
been greatly reduced due to COVID-19 protocols. Add.67 ¶ 16. Although DHS
has worked since January 2021 to build capacity and improve processing, Add.64-
66 ¶¶ 7-12, DHS “lacks sufficient capacity to safely hold and process all
individuals seeking to enter the United States,” Add.63 ¶ 5. Border facilities are
currently expected to operate at only 25-50% capacity, depending on individual
facility infrastructure and type. Add.68 ¶ 18. Many CBP facilities “are already
over that capacity—many even significantly so, even with the CDC Order in
place.” Id. As of August 1, CBP was at 389% of its overall COVID-19-adjusted
capacity along the southwest border. Add.69 ¶ 21. CBP had 17,778 noncitizens in
custody at U.S. Border Patrol facilities, despite a COVID-19-adjusted capacity of
4,706. Id.
As the government’s declarant explained, the “capacity challenges are
particularly acute with respect to families.” Add.63 ¶ 5. Monthly family
encounter rates have been increasing since April 2020, rising from 738 encounters
in April 2020 to over 75,000 in July 2021. Add.70 ¶ 23. The injunction requires
DHS to process family units under the immigration procedures of Title 8, which
requires additional staff and space due to increased processing times. Add.70 ¶ 24.
Processing a family unit under the CDC Order typically takes 10 to 15 minutes and
is largely conducted outdoors, while processing a family under Title 8 can take 1.5
USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 21 of 126

to 3 hours and is generally conducted indoors. Id. The preliminary injunction will
thus require DHS to hold significantly increased numbers of individuals in
congregate settings. Id. Post-processing, DHS “would effectively need to release
a growing number of families into border communities, which risks overwhelming
the local testing, isolation, and quarantine infrastructure DHS has worked to create
and will thus burden local healthcare systems and strain healthcare resources.”
Add.63-64 ¶ 6.
Moreover, even with the CDC Order in place, DHS can process families
with a particular humanitarian need under Title 8, as the CDC Order allows for
case-by-case exceptions. Add.93-94; see also Add.65 ¶ 11. As of the beginning of
August, more than 16,000 individuals have been processed into the United States
under that exception. Id. Maintaining the Order still allows for the exercise of
discretion to address humanitarian needs, whereas requiring DHS to process all
families under Title 8 will unduly strain already severely overburdened facilities,
irrespective of the public-health conditions on the ground.
Congress authorized the CDC Director to make public-health
determinations, and the CDC Director determined that the introduction of certain
noncitizens into the United States during the pandemic is dangerous to the public
health. “‘Any time a [government] is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form of irreparable
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injury.’” Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in
chambers). That is especially true where the decisions of public officials entrusted
with “the safety and the health of the people” in “areas fraught with medical and
scientific uncertainties” are “second-guess[ed] by an unelected federal judiciary,”
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (2020)
(mem.) (Roberts, C.J., concurring) (alteration and quotation marks omitted),
particularly where, as here, the district court’s opinion did not rest on constitutional
grounds. The district court’s contrary view – that it is “well-established” that
agency action exceeding its statutory authority “consistute[]s irreparable injury,”
Add.46 – was not supported by citation to any precedent of this Court, or any other
appellate court.
The government respectfully recommends that the Court consider this case
on an expedited schedule and suggests that the balance of equities favors a stay
pending appeal.
CONCLUSION

For the foregoing reasons, this Court should enter (1) an administrative stay
of the district court’s order while this motion is considered and (2) a stay of the
order pending appeal.
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Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

SHARON SWINGLE

/s/ Joshua Waldman
JOSHUA WALDMAN
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0236
joshua.waldman@usdoj.gov

September 2021
USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 24 of 126

CERTIFICATE AS TO PARTIES, RULINGS,
AND RELATED CASES

Defendants-Appellants submit the following Certificate as to Parties,
Rulings, and Related Cases in the above-captioned matter pursuant to Circuit Rule
27(a)(4).
1. Parties and Amici.
The named Plaintiffs are Nancy Gimena Huisha-Huisha, and her minor child
I.M.C.H.; Valeria Macancela Bermejo, and her minor daughter, B.A.M.M.; Josaine
Pereira-De Souza, and her minor children H.N.D.S.; E.R.P.D.S.; M.E.S.D.S.;
H.T.D.S.D.S.; Martha Liliana Taday-Acosta, and her minor children D.J.Z.; J.A.Z.;
Julien Thomas, Fidette Boute, and their minor children D.J.T.-B.; T.J.T.-B.; and
Romilus Valcourt, Bedapheca Alcante, and their minor child, B.V.-A.; on behalf of
themselves and others similarly situated. Minor children are proceeding under
pseudonyms pursuant to Federal Rule of Civil Procedure 5.2(a).
The named Defendants in the district court were David Pekoske, in his official
capacity as Acting Secretary of Homeland Security; Troy Miller, in his official capacity
as the Acting Commissioner Of U.S. Customs and Border Protection; William A.
Ferrara, in his official capacity as Executive Assistant Commissioner, CBP Office of
Field Operations; Rodney S. Scott, in his official capacity as Chief of U.S. Border
Patrol; Tae D. Johnson, in his official capacity as Acting Director of U.S. Immigration
and Customs Enforcement; Norris Cochran, in his official capacity as Acting Secretary
USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 25 of 126

of Health and Human Services; and Dr. Rochelle P. Walensky, in her official capacity
as Director of the Centers for Disease Control and Prevention.
Pursuant to Federal Rule of Appellate Procedure 43(c), Alejandro Mayorkas, in
his official capacity as Secretary of Homeland Security should replace David Pekoske,
and Xavier Becerra, in his official capacity as Secretary of the Department of Health
and Human Services should replace Norris Cochran.
Appearing as amici in the district court were (1) Scholars of Refugee and
Immigration Law (including Professors T. Alexander Aleinikof, Deborah Anker, James
C. Hathaway, and Gerald L. Neuman); (2) International Refugee Assistance Project;
and (3) Historians (including Alan Kraut, Carl Bon Tempo, Nancy Foner, Maria
Cristina Garcia, David A. Gerber, Adam Goodman, Torrie Hester, Hidetaka Hirota,
Philip Kasinitz, S. Deborah Kang, Julia Rose Kraut, Erika Lee, Julian Lim, Maddalena
Marinari, Howard Markel, Deirdre Moloney, Lucy E. Salyer, and Yael Schacher).
2. Rulings Under Review.

The notice of appeal seeks this Court’s review of the district court’s order,
dated September 16, 2021, granting a preliminary injunction and provisionally
granting class certification.
3. Related Cases.
There are no related cases within the meaning of D.C. Circuit Rule
28(a)(1)(C). P.J.E.S. v. Mayorkas, D.C. Cir. No. 20-5357, does not involve the
USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 26 of 126

same parties as this case, but involves a challenge to the U.S. Centers for Disease
Control and Prevention’s Order under 42 U.S.C. § 265 by a provisionally-certified
class consisting of all unaccompanied noncitizen children who (1) are or will be
detained in U.S. government custody in the United States, and (2) are or will be
subjected to expulsion from the United States under the CDC Order Process,
pursuant to the CDC Order.

/s/ Joshua Waldman
JOSHUA WALDMAN

USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 27 of 126

CERTIFICATE OF COMPLIANCE
I hereby certify that this motion satisfies the type-volume limitation in Rule
27(d)(2)(A) because it contains 5200 words. This motion also complies with the
typeface and type-style requirements of Rule 32(a)(5) and Rule 32(a)(6) because it
was prepared using Microsoft Word 2016 in Times New Roman 14-point font, a
proportionally spaced typeface.

/s/ Joshua Waldman
JOSHUA WALDMAN

USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 28 of 126

CERTIFICATE OF SERVICE
I hereby certify that on September 17, 2021, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the District of Columbia Circuit by using the appellate CM/ECF system.
Participants in the case are registered CM/ECF users, and service will be
accomplished by the appellate CM/ECF system.

/s/ Joshua Waldman
JOSHUA WALDMAN

USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 29 of 126

Addendum

USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 30 of 126

Table of Contents
Page

Memorandum Opinion, Huisha-Huisha v. Mayorkas,

No. 1:21-cv-100 (D.D.C. Sept. 16, 2021, 2021), Dkt. 123 ..................... Add.1

Order, Huisha-Huisha v. Mayorkas,

No. 1:21-cv-100 (D.D.C. Sept. 16, 2021), Dkt. 122 ............................. Add.59

Declaration of David Shahoulian, Huisha-Huisha v. Mayorkas,

No. 1:21-cv-100 (D.D.C. Aug. 6, 2021), Dkt. 116 ................................ Add.62

Order Suspending the Right to Introduce Certain Persons from

Countries Where a Quarantinable Commuicable Disease Exists,

86 Fed. Reg. 42,828 (Aug. 5, 2021) ...................................................... Add.72

USCA Case #21-5200 Document #1914728 Filed: 09/17/2021 Page 31 of 126

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NANCY GIMENA HUISHA-HUISHA, et
al.,
Plaintiffs,
v.
ALEJANDRO MAYORKAS, in his
official capacity as Secretary
of Homeland Security, et al.,
Defendants.
Civ. Action No. 21-100(EGS)
MEMORANDUM OPINION
Plaintiffs—a group of asylum-seeking families who fled to
the United States—bring this lawsuit against Alejandro Mayorkas,1
in his official capacity as Secretary of Homeland Security, and
various other federal government officials (“Defendants” or the
“government”) for violations of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq.; the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101, et seq.; the Foreign
Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C.
§ 1231 note; and the Public Health Service Act of 1944, 42 U.S.C
§ 201, et seq. Pending before the Court are Plaintiffs’ Motion
for Class Certification and Motion for Classwide Preliminary
1 Alejandro Mayorkas is substituted pursuant to Federal Rule of
Civil Procedure 25(d).
Case 1:21-cv-00100-EGS Document 123 Filed 09/16/21 Page 1 of 58
Add.1
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2
Injunction. See Pls.’ Mot. Class Cert., ECF No. 23-1; Mem. Supp.
Pls.’ Mot. Classwide Prelim. Inj. (“Pls.’ Mot. Prelim. Inj.”),
ECF No. 57-1.2 Upon careful consideration of the motions, the
responses, and replies thereto, the applicable law, and the
entire record, the Court GRANTS Plaintiffs’ Motion for Class
Certification and GRANTS Plaintiffs’ Motion for Classwide
Preliminary Injunction.3
I.
Background
A. Factual Background
1.
The U.S. Asylum Process
“For almost a century, Congress has recognized that
citizens of foreign states are sometimes forced to flee from
persecution in their home countries, and it has been the policy
of the United States government that this country ought to serve
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF page number, not the page
number of the filed document.
3 On August 11, 2021, Defendants filed a motion for oral argument
on Plaintiffs’ motion for preliminary injunction. See Mot. Oral
Argument, ECF No. 117. Pursuant to Local Civil Rule 65(d), “[o]n
request of the moving party together with a statement of the
facts which make expedition essential, a hearing on an
application for preliminary injunction shall be set by the Court
no later than 21 days after its filing, unless the Court earlier
decides the motion on the papers or makes a finding that a later
hearing date will not prejudice the parties.” Here, while
Plaintiffs filed their motion on February 5, 2021, briefing on
the motion was stayed until August 5, 2021. See Min. Order (Aug.
5, 2021). Thus, the Court finds that there is no prejudice to
the parties in declining to hold a hearing on Plaintiffs’ motion
and shall instead decide the motion on the papers. Defendants’
motion for oral argument is therefore denied.
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Add.2
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as a place of refuge for persons who are in such distress.”
Kiakombua v. Wolf, 498 F. Supp. 3d 1, 11-12 (D.D.C. 2020). In
keeping with this policy, Congress has codified various
procedures governing how the United States evaluates and
processes the admission requests of refugees. As relevant here,
there are three primary protections for asylum seekers in place
under current immigration laws.
First, in 1980, Congress passed the Refugee Act, Pub. L.
No. 96-212, 94 Stat. 102, which amended the INA, Pub. L. No. 82-
414, 66 Stat. 163 (1952) (codified as amended in sections of 8
U.S.C.). The Refugee Act created a statutory procedure for
refugees seeking asylum and established the standards for
granting such requests. The INA currently governs this
procedure, and it provides that “[a]ny alien who is physically
present in the United States or who arrives in the United States
(whether or not at a designated port of arrival . . . ),
irrespective of such alien’s status, may apply for asylum.” 8
U.S.C. § 1158(a)(1). The Attorney General is granted the
discretion to grant asylum. Id. § 1158 (b)(1)(A). However, that
relief can only be granted if the alien is a “refugee,” as
defined by federal law. Id. Pursuant to the INA, a “refugee” is
“any person who is outside any country of such person’s
nationality” and who is “unable or unwilling to return to . . .
that country because of persecution or a well-founded fear of
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Add.3
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4
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
Id. § 1101(a)(42)(A). “Thus, the ‘persecution or well-founded
fear of persecution’ standard governs the Attorney General’s
determination [of] whether an alien is eligible for asylum.” INS
v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987). Furthermore, even
when a noncitizen is subject to a rapid expulsion process known
as “expedited removal” because they fit within an established
category of persons who can be summarily removed without full
hearings or other process, such noncitizen can only be so
removed if she does not have “an intention to apply for asylum
under [8 U.S.C. § 1158] or a fear of persecution.” 8 U.S.C. §
1225(b)(1)(A)(i).
Second, at the same time the Refugee Act of 1980
established the asylum process, it amended the statutory scheme
governing a related form of relief—“withholding of deportation”—
to remove the Attorney General’s discretion to decide whether to
grant that form of relief. Cardoza-Fonseca, 480 U.S. at 428–29.
As amended by the 1980 Act, the INA “requires the Attorney
General to withhold deportation of an alien who demonstrates
that his ‘life or freedom would be threatened’ on account of one
of [a list of factors] if he is deported.” Id. at 423. A grant
of withholding is mandatory if the individual meets the
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Add.4
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statutory criteria. INS v. Aguirre-Aguirre, 526 U.S. 415, 420
(1999).
Third, Article 3 of the Convention Against Torture (“CAT”)
provides that “[n]o State Party shall expel, return (‘refouler’)
or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.” Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Art.
3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1456
U.N.T.S. 114. Congress has implemented Article 3 of CAT as part
of the Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”). Omar v. McHugh, 646 F.3d 13, 17 (D.C. Cir. 2011).
FARRA further declares it “the policy of the United States not
to expel, extradite, or otherwise effect the involuntary return
of any person to a country in which there are substantial
grounds for believing the person would be in danger of being
subjected to torture.” Id. (quoting Pub.L. No. 105–277, § 2242,
112 Stat. 2681–761, 822 (1998) (codified at 8 U.S.C. § 1231
note).
2.
COVID-19 Pandemic and the CDC Orders
Since 1893, federal law has provided federal officials with
the authority to stem the spread of contagious diseases from
foreign countries by prohibiting, “in whole or in part, the
introduction of persons and property from such countries.” Act
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Add.5
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6
of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452 (“1893
Act”). Under current law:
Whenever the Surgeon General determines that
by reason of the existence of any communicable
disease in a foreign country there is serious
danger of the introduction of such disease
into the United States, and that this danger
is so increased by the introduction of persons
or
property
from
such
country
that
a
suspension of the right to introduce such
persons and property is required in the
interest of the public health, the Surgeon
General,
in
accordance
with
regulations
approved by the President, shall have the
power to prohibit, in whole or in part, the
introduction of persons and property from such
countries or places as he shall designate in
order to avert such danger, and for such
period of time as he may deem necessary for
such purpose.
42 U.S.C. § 265 (“Section 265”). In 1966, the Surgeon General’s
Section 265 authority was transferred to the Department of
Health and Human Services (“HHS”), which in turn delegated this
authority to the Centers for Disease Control and Prevention
(“CDC”) Director. See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 503
(D.D.C. 2020); 31 Fed. Reg. 8855 (June 25, 1966), 80 Stat. 1610
(1966).
On March 20, 2020, as the COVID-19 virus spread globally,
HHS issued an interim final rule pursuant to Section 265 that
aimed to “provide[] a procedure for CDC to suspend the
introduction of persons from designated countries or places, if
required, in the interest of public health.” Interim Final Rule,
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Add.6
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Control of Communicable Diseases; Foreign Quarantine: Suspension
of Introduction of Persons Into United States From Designated
Foreign Countries or Places for Public Health Purposes, 85 Fed.
Reg. 16559-01, 2020 WL 1330968, (March 24, 2020) (“Interim Final
Rule”). Pursuant to the Interim Final Rule, the CDC Director
could “suspend the introduction of persons into the United
States.” Id. at 16563. The Interim Final Rule stated, in
relevant part:
(1) Introduction into the United States of
persons from a foreign country (or one or more
political subdivisions or regions thereof) or
place means the movement of a person from a
foreign country (or one or more political
subdivisions or regions thereof) or place, or
series of foreign countries or places, into
the United States so as to bring the person
into contact with persons in the United
States, or so as to cause the contamination of
property in the United States, in a manner
that the Director determines to present a risk
of transmission of a communicable disease to
persons or property, even if the communicable
disease
has
already
been
introduced,
transmitted, or is spreading within the United
States;
(2) Serious danger of the introduction of such
communicable disease into the United States
means the potential for introduction of
vectors of the communicable disease into the
United States, even if persons or property in
the United States are already infected or
contaminated with the communicable disease;
and
(3) The term “Place” includes any location
specified by the Director, including any
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carrier, as that term is defined in 42 CFR
71.1, whatever the carrier’s nationality.
Id. at 16566-67.
The CDC’s Interim Rule went into effect immediately. Id. at
16565. The CDC explained that, pursuant to 5 U.S.C. 553(b)(3)(B)
of the APA, HHS had concluded that there was “good cause” to
dispense with prior notice and comment. Id. Specifically, the
CDC stated that “[g]iven the national emergency caused by COVID-
19, it would be impracticable and contrary to the public health—
and, by extension, the public interest—to delay these
implementing regulations until a full public notice-and-comment
process is completed.” Id.
Pursuant to the Interim Final Rule, the CDC Director issued
an order suspending for 30 days the introduction of “covered
aliens,” which he defined as “persons traveling from Canada or
Mexico (regardless of their country of origin) who would
otherwise be introduced into a congregate setting in a land Port
of Entry [(“POE”)] or Border Patrol station at or near the
United States borders with Canada and Mexico.” Notice of Order
Under Sections 362 and 365 of the Public Health Service Act
Suspending Introduction of Certain Persons From Countries Where
a Communicable Disease Exists, 85 Fed. Reg. 17060-02, 17061,
2020 WL 1445906 (March 26, 2020) (“March 2020 Order”). The March
2020 Order declared that “[i]t is necessary for the public
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health to immediately suspend the introduction of covered
aliens” and “require[d] the movement of all such aliens to the
country from which they entered the United States, or their
country of origin, or another location as practicable, as
rapidly as possible.” Id. at 17067. The CDC Director then
“requested that [the Department of Homeland Security (“DHS”)]
implement th[e] [March 2020 Order] because CDC does not have the
capability, resources, or personnel needed to do so.” Id. The
CDC Director also noted that U.S. Customs and Border Protection
(“CBP”), a federal law enforcement agency of DHS, had already
“developed an operational plan for implementing the order.” Id.
Soon thereafter, the CBP issued a memorandum on April 2,
2020 establishing its procedures for implementing the March 2020
Order. See Ex. E to Cheung Decl. (“CAPIO Memo”), ECF No. 57-5 at
15; see also Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 14-15. The
CAPIO Memo instructed that agents may determine whether
individuals are subject to the CDC’s order “[b]ased on training,
experience, physical observation, technology, questioning and
other considerations.” CAPIO Memo, ECF No. 57-5 at 15. If an
individual was determined to be subject to the order, they were
to be “transported to the nearest POE and immediately returned
to Mexico or Canada, depending on their point of transit.” Id.
at 17. Those who are “not amenable to immediate expulsion to
Mexico or Canada, will be transported to a dedicated facility
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for limited holding prior to expulsion” to their home country.
Id. The CAPIO Memo “provide[d] no instructions on medical
screenings or other procedures for determining whether a covered
noncitizen may have COVID-19.” Am. Compl., ECF No. 22 ¶ 60.
On April 22, 2020, the March 2020 Order was extended for an
additional 30 days. See Extension of Order Under Sections 362
and 365 of the Public Health Service Act; Order Suspending
Introduction of Certain Persons From Countries Where a
Communicable Disease Exists, 85 Fed. Reg. 22424-01, 2020 WL
1923282 (April 22, 2020) (“April 2020 Order”). The order was
then extended again on May 20, 2020 until such time that the CDC
Director “determine[s] that the danger of further introduction
of COVID-19 into the United States has ceased to be a serious
danger to the public health.” Amendment and Extension of Order
Under Sections 362 and 365 of the Public Health Service Act;
Order Suspending Introduction of Certain Persons From Countries
Where a Communicable Disease Exists, 85 Fed. Reg. 31503-02,
31504, 2020 WL 2619696 (May 26, 2020) (“May 2020 Order”).
On September 11, 2020, the CDC published its final rule.
See Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of
Introduction of Persons Into United States From Designated
Foreign Countries or Places for Public Health Purposes, 85 Fed.
Reg. 56424-01, 2020 WL 5439721, (Sept. 11, 2020) (Effective
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October 13, 2020) (“Final Rule”). The Final Rule “defin[ed] the
phrase to ‘[p]rohibit, in whole or in part, the introduction
into the United States of persons’ to mean ‘to prevent the
introduction of persons into the United States by suspending any
right to introduce into the United States, physically stopping
or restricting movement into the United States, or physically
expelling from the United States some or all of the persons.’”
Id. at 56445. The CDC Director then replaced the March, April,
and May 2020 Orders with a new order on October 13, 2020. Order
Suspending the Right To Introduce Certain Persons From Countries
Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg.
65806, 65808 (Oct. 16, 2020) (“October 2020 Order”).
On August 2, 2021, the CDC issued its most recent order,
“Public Health Assessment and Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists,” which replaced and superseded the
October 2020 Order. See Public Health Assessment and Order
Suspending the Right to Introduce Certain Persons from Countries
Where a Quarantinable Communicable Disease Exists (Aug. 2,
2021), Attach. A to Notice CDC Public Health Order (“August 2021
Order”), ECF No. 114. The August 2021 Order states that “CDC has
determined that an Order under 42 U.S.C. § 265 remains necessary
to protect U.S. citizens, U.S. nationals, lawful permanent
residents, personnel and noncitizens at the ports of entry (POE)
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and U.S. Border Patrol stations, and destination communities in
the United States during the COVID-19 public health emergency.”
Id. at 5. Thus, the August 2021 Order continues to prohibit the
introduction of “covered noncitizens”—which is defined to
include “family units”—into the United States along the U.S.
land and adjacent coastal borders. Id. at 7. The Court will
refer to the process developed by the CDC and implemented by the
August 2021 Order as the “CDC Order” or the “Title 42 Process.”
3.
CDC Order’s Effect on Asylum Seekers
Plaintiffs and the proposed class member are families from
countries “that are among the most dangerous in the world due to
gang, gender, family membership, and other identity-based
violence.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 31.
Plaintiffs are currently detained and in the custody of DHS. Am.
Compl., ECF No. 22 ¶¶ 14-19. As such, they are subject to
expulsion from the United States pursuant to the CDC Order.
Plaintiffs assert that prior to the Title 42 Process, and
“pursuant to longstanding immigration statutes protecting asylum
seekers, Plaintiffs were entitled to assert claims for asylum
and related forms of humanitarian protection, and to procedures
Congress established to ensure the fair determination of their
right to remain in the United States.” Id. ¶ 4. Plaintiffs claim
that if they and others like them are expelled pursuant to the
CDC Order, they “would face grave danger in their home
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13
countries.” Id. ¶ 10. According to Plaintiffs, “Defendants
subjected approximately 21,500 members of families to the Title
42 Process between March and December 2020.” Pls.’ Mot. Class
Cert., ECF No. 23-1 at 10.
B. Procedural History
1.
Related Litigation
On November 18, 2020, this Court adopted Magistrate Judge
Harvey’s Report and Recommendation, provisionally granted the
plaintiff’s motion to certify class, and issued a preliminary
injunction barring enforcement of the Title 42 Process as to
unaccompanied minors in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492,
520-22 (D.D.C. 2020). The Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) later stayed the preliminary
injunction pending appeal. Order, P.J.E.S. v. Mayorkas, No. 20-
5357 (D.C. Cir. Jan. 29, 2021).
In February 2021, the CDC issued a notice “temporarily
except[ing] . . . unaccompanied noncitizen children” from
expulsion under the Title 42 Process. CDC, Notice of Temporary
Exception from Expulsion of Unaccompanied Noncitizen Children
Encountered in the United States Pending Forthcoming Public
Health Determination, 86 Fed. Reg. 9942-01, 2021 WL 600683 (Feb.
11, 2021). The notice stated that CDC was “in the process of
reassessing” the Title 42 Order and that the temporary exception
for unaccompanied minors would “remain in effect until CDC has
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completed its public health assessment and published any notice
or modified Order.” Id. Magistrate Judge Harvey and the D.C.
Circuit granted the parties’ motion to hold the case in abeyance
on February 24, 2021. See Min. Order (Feb. 24, 2021); Order,
P.J.E.S. v. Mayorkas, No. 20-5357 (D.C. Cir. Mar. 2, 2021).
In July 2021, the CDC issued an order “except[ing]
unaccompanied noncitizen children . . . from the [CDC’s] October
[13, 2020] Order.” See Order Under Sections 362 & 365 of the
Public Health Service Act (42 U.S.C. 265, 268) and 42 CFR 71.40;
Public Health Determination Regarding an Exception for
Unaccompanied Noncitizen Children From the Order Suspending the
right to Introduce Certain Persons From Countries Where a
Quarantinable Communicable Disease Exists, 86 Fed. Reg. 38717,
38718 (July 22, 2021). The CDC explained that the July 16 Order
“supersede[s]” the notice issued on February 11, 2021. Id. at
38720. On August 2, 2021 the CDC issued another order that
superseded the October 2020 Order. Public Health Reassessment
and Order Suspending the Right To Introduce Certain Persons From
Countries Where a Quarantinable Communicable Disease Exists, 86
Fed. Reg. 42828-02 (Aug. 5, 2021). The July 16 Order was “made a
part of [the August 2021 Order] and incorporated by reference as
if fully set forth” in the August 2021 Order. Id. at 42829 n.5.

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2.
Proceedings in this Case
Plaintiffs filed this action on January 12, 2021. See
Compl., ECF No. 1. The same day, Plaintiffs filed an emergency
motion to stay their removal from the United States, and
Defendants orally objected to Plaintiffs’ request during the
hearing on the motion. See Pls.’ Emergency Mot. Stay Removal,
ECF No. 5. The Court entered a Minute Order granting Plaintiffs’
emergency motion over objection “[i]n view of the arguments
presented by Plaintiffs in their motion, the representations
made by the Government, and for the reasons stated on the record
at the January 12, 2021 Status Conference.” Min. Order (Jan. 12,
2021). The Court also granted thirteen subsequent emergency
motions to stay the removal of other families on January 19,
2021; January 27, 2021; January 29, 2021; February 1, 2021;
February 4, 2021; February 5, 2021; February 6, 2021; February
9, 2021; February 18, 2021; February 19, 2021; and February 22,
2021. See Min. Orders (Jan. 19, 2021; Jan. 27, 2021; Jan. 29,
2021; Feb. 1, 2021; Feb. 4, 2021; Feb. 5, 2021; Feb. 6, 2021;
Feb. 9, 2021; Feb. 18, 2021; Feb. 19, 2021; Feb. 22, 2021).
Plaintiffs filed a motion for class certification on
January 28, 2021, see Mot. Certify Class, ECF No. 23; and they
filed a motion for preliminary injunction on February 5, 2021,
see Mot. Prelim. Inj., ECF No. 57. Defendants filed a combined
opposition to both motions on February 17, 2021. See Defs.’
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Opp’n, ECF No. 76. On February 23, 2021, the Court granted the
parties’ joint motion to hold in abeyance Plaintiffs’ motions
for class certification and classwide preliminary injunction.
Min. Order (Feb. 23, 2021). The motions were held in abeyance
until August 5, 2021, when the Court granted the parties’ motion
for a briefing schedule on Plaintiffs’ motions. Min. Order (Aug.
5, 2021). On August 6, 2021, Defendants filed a supplemental
declaration in support of their combined opposition. See
Shahoulian Decl., ECF No. 116. Plaintiffs filed their combined
reply brief on August 11, 2021. See Pls.’ Reply, ECF No. 118.
The motions are now ripe for the Court’s adjudication.
II.
Legal Standard
“A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [2]
that he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his
favor, and [4] that an injunction is in the public interest.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration
in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011)). Where the federal government is the opposing
party, the balance of equities and public interest factors
merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A
preliminary injunction is an “extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled
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to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008) (citation omitted). “The purpose of a
preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be
held.” Univ. of Tex. V. Camenisch, 451 U.S. 390, 395 (1981). In
this Circuit, the four factors have typically been evaluated on
a “sliding scale,” such that if “the movant makes an unusually
strong showing on one of the factors, then it does not
necessarily have to make as strong a showing on another factor.”
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92
(D.C. Cir. 2009).
In the wake of the Supreme Court’s decision in Winter v.
Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C.
Circuit has suggested that a positive showing on all four
preliminary injunction factors may be required.” Holmes v. FEC,
71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644
F.3d at 393 (“[W]e read Winter at least to suggest if not to
hold that a likelihood of success is an independent,
freestanding requirement for a preliminary injunction.”)
(citation and quotation marks omitted)). Nonetheless, “the
Circuit has had no occasion to decide this question because it
has not yet encountered a post-Winter case where a preliminary
injunction motion survived the less rigorous sliding-scale
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analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C.
2014).
III.
Analysis
A. Plaintiffs’ Motion for Class Certification
“The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
(quotation marks omitted). Rule 23(a) establishes four
requirements for class certification: (1) that “the class is so
numerous that joinder of all members is impracticable”; (2) that
“there are questions of law or fact common to the class”; (3)
that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class”; and (4) that
“the representative parties will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a). In addition
to satisfying Rule 23(a), a putative class must also meet one of
the Rule 23(b) requirements. Here, Plaintiffs seek certification
under Rule 23(b)(2), claiming that Defendants have “acted or
refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.” Pls.’ Mot.
Class Cert., ECF No. 23-1 at 8 (quoting Fed. R. Civ. P.
23(b)(2)).
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“The party seeking certification bears the burden of
persuasion, and must show that the putative class[] meet[s] the
requirements of Rule 23 by a preponderance of the evidence.”
Garnett v. Zeilinger, 301 F. Supp. 3d 199, 204 (D.D.C. 2018)
(citing Hoyte v. District of Columbia, 325 F.R.D. 485, 491
(D.D.C. 2017)). To carry that burden, Plaintiffs must
“affirmatively demonstrate . . . compliance with the Rule—that
is, [they] must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact,
etc.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
The Court must undertake a “rigorous analysis” to confirm that
the requirements of Rule 23 have been satisfied. Gen. Tel. Co.
of S.W. v. Falcon, 457 U.S. 147, 161 (1982).
Pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(2), Plaintiffs have sought certification of the following
class: “All noncitizens who (1) are or will be in the United
States; (2) come to the United States as a family unit composed
of at least one child under 18 years old and that child’s parent
or legal guardian; and (3) are or will be subjected to the Title
42 Process.” Pls.’ Mot. Class Cert., ECF No. 23-1 at 7. For the
reasons discussed below, the Court finds that Plaintiffs meet
all of Rule 23(a) and Rule 23(b)(2)’s requirements. As
Defendants’ sole challenge to Plaintiffs’ class certification
motion is that the term “Title 42 Process” is not adequately
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defined, Defs.’ Opp’n, ECF No. 76 at 16; the Court shall first
address the sufficiency of the class definition before briefly
analyzing the remaining Rule 23(a) and Rule 23(b)(2)
requirements.
1.
Class Definition
“[I]t is far from clear that there exists in this
[D]istrict a requirement that a class . . . must demonstrate
ascertainability to merit certification.” Ramirez v. USCIS, 338
F. Supp. 3d 1, 48 (D.D.C. 2018); see also Hoyte v. District of
Columbia, 325 F.R.D. 485, 489 n.3 (D.D.C. 2017) (noting that
“[t]he ascertainability requirement, while adopted by some
courts in this district, has been recently disavowed by four
federal appellate courts” and explaining that “the D.C. Circuit
has not opined on the requirement”). However, the requirement of
“definiteness” has been imposed by some courts as an “implied
requirement” for class certification, in addition to the express
requirements in Rule 23. See DL v. District of Columbia, 302
F.R.D. 1, 17 (D.D.C. 2013). This “common-sense requirement,”
Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998); is
designed primarily to ensure the proposed class is
administratively manageable, see Hartman v. Duffey, 19 F.3d
1459, 1471 (D.C. Cir. 1994). “It is not designed to be a
particularly stringent test, but plaintiffs must at least be
able to establish that ‘the general outlines of the membership
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of the class are determinable at the outset of the litigation.’”
Pigford, 182 F.R.D. at 346 (quoting 7A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1760 at 118).
“[W]here the plaintiff seeks certification of an injunctive
class pursuant to Rule 23(b)(2), ‘actual membership of the class
need not . . . be precisely delimited’ because such cases will
not require individualized notice, opt-out rights, or individual
damage assessments, and the defendant will be required to comply
with the relief ordered no matter who is in the class.’” Brewer
v. Lynch, No. 08-1747, 2015 WL 13604257, at *6 (D.D.C. Sept. 30,
2015). In those cases, the definiteness requirement is satisfied
as long as plaintiffs can establish the “existence of a class”
and propose a class definition that “accurately articulates ‘the
general demarcations’ of the class of individuals who are being
harmed by the alleged deficiencies.” See, e.g., Kenneth R. v.
Hassan, 293 F.R.D. 254, 264 (D.N.H. 2013); see also DL, 302
F.R.D. at 17 (“Because the rationale for precise
ascertainability is inapposite in the 23(b)(2) context, . . . it
is not required in cases such as this where only injunctive
relief is sought and notice is not required.”).
Defendants contend that Plaintiffs have failed to establish
that the proposed class satisfies the requirements of Rule 23(a)
and Rule 23(b)(2) because the phrase “Title 42 Process” is not
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22
defined within the class definition. Defs.’ Opp’n, ECF No. 76 at
16.
They argue that, due to the lack of a definition,
“Plaintiffs have not established that the conduct they seek to
enjoin or declare unlawful will be ‘as to all of the class
members or as to none of them.’” Id. (quoting Fed. R. Civ. P.
23(b)(2)). While Defendants concede that “it is no secret that
Plaintiffs challenge the ‘practice of summary expulsion under
the Title 42 Process’ and the alleged lack of access to asylum,”
they argue that the Amended Complaint and Class Certification
Motion include statements that suggest that the “class
definition might include practices that Plaintiffs do not
challenge as unlawful.” Id. at 17. Specifically, Defendants note
that Plaintiffs refer to the “Title 42 Process” as a “system
established in a set of agency documents—a new regulation,
several orders, and an implementation memo,” and that the
Amended Complaint states that, “[a]mong other things, the Title
42 Process authorizes the summary expulsion of noncitizens,
including vulnerable families seeking asylum in this country,
without any of the procedural protections guaranteed by
Congress.” Id. (quoting Am. Compl., ECF No. 22 ¶¶ 1, 3) (cleaned
up).
The Court disagrees. As an initial matter, the Court notes
that a “vague and ambiguous class definition” is not
automatically “fatal[]” to a motion for class certification.
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23
Defs.’ Opp’n, ECF No. 76 at 15-17. The case law is clear that
the mere existence of a problematic class definition does not
automatically mandate denial of class certification. See Brewer,
2015 WL 13604257, at *7. Rather, “[w]hen appropriate, district
courts may redefine classes . . . sua sponte prior to
certification.” Borum v. Brentwood Village, LLC, 324 F.R.D. 1, 8
(D.D.C. 2018); see also Wagner v. Taylor, 836 F.2d 578, 589-90
(D.C. Cir. 1987) (stating that district courts may “exercise . .
. broad discretion to redefine and reshape the proposed class to
the point that it qualifies for certification under Rule 23”).
Here, however, the proposed class is not so poorly defined
as to require sua sponte redefinition by the Court. First,
Plaintiffs’ amended complaint, motions, and reply brief each set
forth a fairly descriptive definition of the Title 42 Process as
referring to the practice of summarily expelling asylum-seeking
families since late March 2020. See Pls.’ Mot. Class Cert., ECF
No. 23-1 at 7 (“A class action lawsuit is appropriate to
challenge Defendants’ unlawful practice of summarily expelling
vulnerable families with minor children under their shadow
deportation system, referred to here as the ‘Title 42 Process’
or ‘Title 42 Policy.’”); Pls.’ Mot. Prelim. Inj., ECF No. 57-1
at 9 (“Defendants moved to summarily deport [Plaintiffs] based
on an unprecedented and unlawful expulsion process, invoking the
public health powers of the Centers for Disease Control and
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Prevention (‘CDC’), specifically 42 U.S.C. § 265 (the ‘Title 42
Process’).”); Pls.’ Reply, ECF No. 118 at 29 (“Plaintiffs have
identified and challenged ‘a uniform policy or practice’ of
‘expulsion,’ and sought relief enjoining application of the
challenged CDC orders to the class.”); Am. Compl., ECF No. 22 ¶
3 (“Among other things, the Title 42 Process authorizes the
summary expulsion of noncitizens, including vulnerable families
seeking asylum in this country, without any of the procedural
protections guaranteed by Congress—even if the families show no
signs of having COVID-19.”).
Second, although Plaintiffs do use the phrase “among other
things” in one sentence within their Amended Complaint,
Defendants’ argument is weakened by their own acknowledgment
that the focus of this litigation is the “‘practice of summary
expulsion under the Title 42 Process’ and the alleged lack of
access to asylum.” Defs.’ Opp’n, ECF No. 76 at 16.
And third, Defendants’ reliance on the Seventh Circuit case
Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008), is misplaced.
In Rahman, the plaintiffs sought to certify a class of citizens
defined as “[a]ll United States citizens who now are and/or in
the future will be subjected to detentions upon reentry to the
United States as a result of defendants’ contested policies,
practices and customs.” Id. at 625. However, the class
definition did not specify what “defendants’ contested policies,
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practices and customs” were. Id. The Seventh Circuit therefore
denied the plaintiffs’ motion to certify, explaining that “[a]
class of all persons now or in the future subject to unspecified
practices may have nothing to do with the named representatives’
injuries, or what caused them.” Id. at 626. The court also noted
that the undefined class was “hard to evaluate” and
“incompatible” with the “typicality” requirement. Id. at 627.
Here, Defendants argue that Plaintiffs’ class definition
“suffers from similar infirmities.” Defs.’ Opp’n, ECF No. 76 at
16. But not only is Rahman non-binding on this Court, it is also
distinguishable on the facts. Significantly, though Plaintiffs
refer to the “Title 42 Process” generally as a “system
established in a set of agency documents—a new regulation,
several orders, and an implementation memo,” id. at 17;
Plaintiffs’ Amended Complaint and motions briefing also
separately identify and describe each regulation, order, and
memo. See, e.g., Am. Compl., ECF No. 22 ¶¶ 41-66. Thus, unlike
in Rahman, the Court is able to easily evaluate the application
of specific policies and procedures on the proposed class
members, and any “administrative feasibility requirement” is
satisfied because identifying the class members under this
definition would not require much, if any, individual factual
inquiry. See Brewer, 2015 WL 13604257, at *6.

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2.
Rule 23(a) Requirements
a. Numerosity
Because of the general rule in favor of confining
litigation to the named parties only, a class action is
appropriate only when “the class is so numerous that joinder of
all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
Although Plaintiffs need not clear any “specific threshold,” as
a general benchmark, “courts in this jurisdiction have observed
that a class of at least forty members is sufficiently large to
meet this requirement.” Taylor v. D.C. Water & Sewer Auth., 241
F.R.D. 33, 37 (D.D.C. 2007). Plaintiffs may satisfy the
requirement by supplying estimates of putative class members,
see Pigford, 182 F.R.D. at 347–48; “[s]o long as there is a
reasonable basis for the estimate provided,” Kifafi v. Hilton
Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999).
Here, Defendants do not dispute that the proposed class
satisfies the numerosity requirement. Plaintiffs have provided
evidence that, between March 2020 and December 2020,
approximately 21,515 members of family units4 were subject to the
CDC Order and its previous iterations, see Kang Decl., ECF No.
23-2 ¶ 4; and that, between April 2020 and December 2020,

4 The CBP defines a “family unit” as “the number of individuals
(either a child under 18 years old, parent or legal guardian)
apprehended with a family member.” See Kang Decl., ECF No. 23-2
¶ 3.
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“approximately 21,018 members of family units (81%) were
expelled under Title 42,” id. ¶ 6. Accordingly, the Court finds
that the numerosity requirement is met. See O.A. v. Trump, 404
F. Supp. 3d 109, 155 (D.D.C. 2019) (finding numerosity
established by evidence in the administrative record estimating
that the class consisted of “thousands of migrants who have
crossed and will cross the United States’ southern border
outside ports of entry”).
b. Commonality
A plaintiff seeking class certification must also establish
that “there are questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). This requires more than the
identification of the purported violation of the same provision
of law. See DL v. District of Columbia, 713 F.3d 120, 127–30
(D.C. Cir. 2013) (vacating an order certifying a class composed
of students who were purportedly each denied a free appropriate
public education on the ground that plaintiffs had identified
only sufferers of a violation of the same provision of law and
had not met the commonality requirement). Instead, the claims
must depend on “a common contention [that] is capable of
classwide resolution—which means that determination of its truth
or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.” Wal–Mart Stores, 564
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U.S. at 350. “Even a single common question will do.” Id. at 359
(cleaned up).
As the D.C. Circuit has explained, commonality is satisfied
where there is “a uniform policy or practice that affects all
class members.” DL, 713 F.3d at 128; see also O.A., 404 F. Supp.
3d at 156 (finding commonality satisfied where “[a]ll members of
the proposed class, and all of the proposed class
representatives, face the same threat of injury” and where
“[a]ll challenge the same Rule on the same grounds, and all seek
the same remedy—invalidation of the Rule”). Here, Plaintiffs are
challenging the lawfulness of the Title 42 Process, which is a
uniform policy that applies to each Plaintiff and all members of
the proposed class. Moreover, “[n]ot only do all class members
present the same challenge to the policy, but there also is no
evident variation among them concerning their ultimate
entitlement to relief: if any person in the class has a
meritorious claim, they all do.” J.D. v. Azar, 925 F.3d 1291,
1321 (D.C. Cir. 2019). The Court can, therefore, conclude that
“common questions of law and fact” unite the class members’
claims. Damus v. Nielsen, 313 F. Supp. 3d 317, 332 (D.D.C. 2018)
(finding that “the allegation that the five ICE Field Officers
are no longer providing the ‘individualized determinations’ of
parole eligibility and procedural protections required by the
Parole Directive” satisfied the commonality requirement).
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c. Typicality
A class representative satisfies the typicality requirement
if the representative’s “claims are based on the same legal
theory as the claims of the other class members” and her
“injuries arise from the same course of conduct that gives rise
to the other class members’ claims.” Bynum, 214 F.R.D. at 35.
Put another way, a representative’s claims are typical of those
of the class when “[t]he plaintiffs allege that their injuries
derive from a unitary course of conduct by a single system.”
Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Here,
Plaintiffs and all members of the proposed class face the same
injury: the threat of expulsion pursuant to the Title 42
Process. All challenge the same policy on the same grounds, and
all seek the same remedy—invalidation of the Title 42 Process.
Thus, the typicality requirement is met.
d. Adequacy
“The adequacy requirement aims to ensure that absent class
members will not be bound by the outcome of a suit in which they
were not competently and fairly represented.” J.D., 925 F.3d at
1312. “Adequacy embraces two components: the class
representative (i) ‘must not have antagonistic or conflicting
interests with the unnamed members of the class’ and (ii) ‘must
appear able to vigorously prosecute the interests of the class
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through qualified counsel.’” Id. (quoting Twelve John Does v.
District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)).
Defendants also do not dispute that Plaintiffs have
satisfied the adequacy requirement. First, Defendants have not
identified—and the Court is unaware of—any interest Plaintiffs
have that is antagonistic to or conflicts with the putative
class members. Rather, courts have found that where, as here,
the plaintiffs “seek identical relief for all class members, . .
. there are no conflicting interests that might derail
certification on this prong.” Coleman ex rel. Bunn v. District
of Columbia, 306 F.R.D. 68, 84 (D.D.C. 2015). Second, the Court
concludes that Plaintiffs’ current counsel are “willing and have
the ability vigorously to litigate this case and to protect the
interests of absent class members.” O.A., 404 F. Supp. 3d at
157.
3.
Rule 23(b)(2) Requirement
Having determined that Plaintiffs meet the requirements of
Rule 23(a), the Court must next determine whether they meet the
requirements of Rule 23(b)(2). Rule 23(b)(2) applies if “the
party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The
key to the (b)(2) class is the indivisible nature of the
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injunctive or declaratory remedy warranted—the notion that the
conduct is such that it can be enjoined or declared unlawful
only as to all of the class members or as to none of them.” Wal-
Mart, 564 U.S. at 360 (internal quotation marks and citations
omitted). Rule 23(b)(2) imposes “two requirements: (1) that
defendant’s actions or refusal to act are ‘generally applicable
to the class’ and (2) that plaintiffs seek final injunctive
relief or corresponding declaratory relief on behalf of the
class.” Bynum, 214 F.R.D. at 37.

Plaintiffs have satisfied both requirements here. The
relief Plaintiffs seek—among other things, a declaration that
the Title 42 Process is unlawful and an injunction prohibiting
Defendants from applying the Title 42 Process to Plaintiffs and
proposed class members—is “generally applicable to the class”
and is indivisible. See Damus, 313 F. Supp. 3d at 334–35
(finding Rule 23(b)(2) satisfied where plaintiffs were not
asking the court “to remedy discrete errors in their parole
determinations,” but rather “only . . . address an alleged
systematic harm”); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 182
(D.D.C. 2015) (finding Rule 23(b)(2) satisfied where plaintiffs
sought to enjoin ICE from consideration of particular factor in
making detention determination). Plaintiffs also do not seek
individualized relief, and thus this is not a case where “each
individual class member would be entitled to a different
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32
injunction or declaratory judgment against the defendant.” Wal–
Mart, 564 U.S. at 360; see also Ramirez, 338 F. Supp. 3d at 48
(finding Rule 23(b) satisfied where plaintiffs “d[id] not seek a
court order mandating any particular outcome with respect to any
particular [individual plaintiff]”).
For all these reasons, the Court grants Plaintiffs’ motion
for class certification.
B. Plaintiffs’ Motion for Preliminary Injunction
1. Plaintiffs Are Likely to Succeed on the
Merits
Plaintiffs argue that the CDC Orders instituting the Title
42 Process exceed the authority granted by Congress pursuant to
Section 265 because “[n]othing in [Section] 265, or Title 42
more generally, purports to authorize any deportations, much
less deportations in violation of” statutory procedures and
humanitarian protections, including the right to seek asylum.
Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 17-18. The Court agrees
and finds that Plaintiffs have shown that they are likely to
succeed on the merits of their claim.
Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984), provides the framework for reviewing an
agency’s interpretation of a statute that the agency is charged
with administering. See 467 U.S. at 837. The first step in this
review process is for the court to determine “whether Congress
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33
has directly spoken to the precise question at issue.” Id. at
842. “If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Id. at 842–
43. In determining whether the statute unambiguously expresses
the intent of Congress, the court should use all the
“traditional tools of statutory construction,” including looking
to the text and structure of the statute, as well as its
legislative history, if appropriate. See id. at 843 n.9; see
also Bell Atlantic Tel. Co. v. FCC, 131 F.3d 1044, 1047 (D.C.
Cir. 1997). If the court concludes that the statute is either
silent or ambiguous with respect to the precise question at
issue, the second step of the court’s review process is to
determine whether the interpretation proffered by the agency is
“based on a permissible construction of the statute.” Chevron,
467 U.S. at 843. The court must defer to agency interpretations
that are not “arbitrary, capricious, or manifestly contrary to
the statute.” Id. at 844.
The Court’s analysis begins with the statutory text. See S.
Cal. Edison Co. v. FERC, 195 F.3d 17, 22-23 (D.C. Cir. 1999).
Here, Section 265 states in full:
Whenever the Surgeon General determines that
by reason of the existence of any communicable
disease in a foreign country there is serious
danger of the introduction of such disease
into the United States, and that this danger
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is so increased by the introduction of persons
or
property
from
such
country
that
a
suspension of the right to introduce such
persons and property is required in the
interest of the public health, the Surgeon
General,
in
accordance
with
regulations
approved by the President, shall have the
power to prohibit, in whole or in part, the
introduction of persons and property from such
countries or places as he shall designate in
order to avert such danger, and for such
period of time as he may deem necessary for
such purpose.
42 U.S.C. § 265.
As Plaintiffs point out, Section 265 simply contains no
mention of the word “expel”—or any synonyms thereof—within its
text. See Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 18. The lack
of express terms within the statute is significant: even “broad
rulemaking power must be exercised within the bounds set by
Congress,” Merck & Co. v. U.S. Dep’t of Health & Human Servs.,
385 F. Supp. 3d 81, 92, 94 (D.D.C. 2019), aff’d, 962 F.3d 531
(D.C. Cir. 2020) (stating that “agencies are ‘bound, not only by
the ultimate purposes Congress has selected, but by the means it
has deemed appropriate, and prescribed, for the pursuit of those
purposes’”); and the CDC “does not [have the] power to revise
clear statutory terms,” Util. Air Reg. Grp. v. EPA, 573 U.S.
302, 327 (2014).
Indeed, particularly where the statute in question regards
such a “severe ‘penalty’” as deportation, Padilla v. Kentucky,
559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United
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States, 149 U.S. 698, 740 (1893)); the Court is loathe to
recognize an implied power of forced removal from the country,
see Util. Air Reg. Grp., 573 U.S. at 324 (“We expect Congress to
speak clearly if it wishes to assign to an agency decisions of
vast ‘economic and political significance.’”). Rather, as this
Court explained in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 512
(D.D.C. 2020), “when Congress wants to grant the power to expel
individuals out of the United States, it does so plainly.”
P.J.E.S., 502 F. Supp. 3d at 512; see, e.g., 8 U.S.C. §
1225(b)(2)(A), (C) (allowing an alien who has arrived on land
from a contiguous country and who is “not clearly and beyond a
doubt entitled to be admitted” to be “return[ed] . . . to that
territory pending a proceeding”); id. § 1231(a)(1)(A) (“Except
as otherwise provided in this section, when an alien is ordered
removed, the Attorney General shall remove the alien from the
United States within a period of 90 days . . . .”); 18 U.S.C. §
3186 (authorizing a fugitive from another country found in the
United States to be “take[n] . . . to the territory of such
foreign government” by an agent of that government). Moreover,
“Congress has made clear when public health concerns merit
disallowing a non-citizen to remain in the United States.”
P.J.E.S., 502 F. Supp. 3d at 539; see 8 U.S.C. § 1182(a)(1)
(providing that “aliens who are inadmissible” are those
determined “to have a communicable disease of public health
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significance”); id. § 1222 (providing for medical detention and
examination as part of immigration processing). As the Supreme
Court “ha[s] stated time and again[,] . . . courts must presume
that a legislature says in a statute what it means and means in
a statute what it says there.” Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253–54 (1992) (citations omitted); see also FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (“The
classic judicial task of reconciling many laws enacted over
time, and getting them to make sense in combination, necessarily
assumes that the implications of a statute may be altered by the
implications of a later statute.” (internal quotation marks
omitted)). And here, the plain language of Section 265,
particularly when read in conjunction with the above statutes
governing immigration under Title 8 of the U.S. Code, evinces no
intention to grant the Executive the authority to expel or
remove persons from the United States.
The Court also finds that the plain text of Section 265 is
supported by the statutory context. See Brown & Williamson
Tobacco Corp., 529 U.S. at 132-33 (2000) (“It is a ‘fundamental
canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the
overall statutory scheme.’” (quoting Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989))). For example, in Section
271, Congress provided for specific “penalties” for those
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persons who or vessels that violated public health regulations
prescribed under the relevant sections, including Section 265.
42 U.S.C. § 271. For individuals, Section 271 states that any
violation “shall be punished by a fine of not more than $1,000
or by imprisonment for not more than one year, or both.” Id. §
271(a). Removal from the United States, however, is not included
as a penalty. Moreover, Section 271 refers to the regulations
prescribed under Section 265 and others as “quarantine laws,”
further suggesting that the CDC’s powers were limited to
quarantine and containment. Id. § 271 (emphasis added).
Neither does neighboring Section 264 contemplate the
removal of persons from the United States. Section 264
authorizes the Secretary to use various public health measures
to “prevent the introduction, transmission, or spread of
communicable diseases.” 42 U.S.C. § 264. Although Defendants
rely on Section 264 as evidence of the Secretary’s “sweeping
authority to protect the country from potentially devastating
communicable diseases,” Defs.’ Opp’n, ECF No. 76 at 23; the
provision only mentions regulations that provide for the
“apprehension, detention, examination, or conditional release of
individuals” if the individual is “coming into a State or
possession from a foreign country or possession.” 42 U.S.C. §
264(c). Again, the authority to remove is not mentioned. “That
is, in a section where one would expect the term to appear—where
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Congress has delineated the government’s power to prevent the
spread of contagious disease from individuals coming into the
United States from a foreign country—it does not.” P.J.E.S., 502
F. Supp. 3d at 537-38.
Furthermore, even beyond Sections 264 and 271, the statute
as a whole does not contain “a word about the power of the [CDC]
to expel anyone who has come into the country.” Id. at 513-14
(citing 42 U.S.C., Chap. 6A, Subchap. II, Part G (entitled
“Quarantine and Inspection”)); 42 U.S.C. § 267 (entitled
“Quarantine stations, grounds, and anchorages”); id. § 268
(entitled “Quarantine duties of consular and other officers”);
id. § 270 (entitled “Quarantine regulations governing civil air
navigation and civil aircraft”); id. § 271 (entitled “Penalties
for violation of quarantine laws”); id. § 272 (entitled
“Administration of oaths by quarantine officers”). Rather, the
statutory scheme reflects Congress’s focus on the public’s
health, authorizing the CDC to create regulations that allow for
the “apprehension, detention, examination, or conditional
release of individuals” entering from foreign countries to stop
the spread of communicable diseases from those countries, id. §
264; and then in times of serious danger, to halt the
“introduction of persons” from designated foreign countries, id.
§ 265.
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39
Defendants argue, however, that the findings above
“ignore[] the purely public health purpose of the statute,”
because “[t]he absence of the terms ‘expel’ or ‘removal’ has no
special significance in the public health context even if its
absence might be meaningful in the immigration context.” Defs.’
Opp’n, ECF No. 76 at 19-20. They further contend that Section
265’s phrase “prohibit[ing] . . . the introduction” does not
demonstrate that Congress intended to limit the Executive’s
authority at “stopping a person precisely at the Nation’s
borders.” Id. at 18. Instead, “the term ‘introduction’ refers to
a continuing process and is most naturally read to extend beyond
a person’s immediate physical crossing of the border,” and “to
‘prohibit . . . the introduction’ naturally means to intercept
or prevent such a process.” Id. at 18-19. Thus, in Defendants’
view, “the Section 265 authority includes intercepting and
halting persons who have already crossed the border—but who are
in the process of being introduced—into the United States.” Id.
at 19.
Defendants arguments are unpersuasive. First, regardless of
whether the words “expel” or “remove” are specific to the
immigration context, Defendants do not explain the lack of
synonyms of either word within the statute. Moreover, “[i]t is a
fundamental principle of statutory interpretation that absent
provision[s] cannot be supplied by the courts.” Rotkiske v.
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40
Klemm, 140 S. Ct. 355, 360–61 (2019) (internal citations and
quotation marks omitted) (alteration in original). “[W]hen
Congress wants to mandate [certain] procedures[,] it knows
exactly how to do so.” Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1626 (2018). In view of current immigration laws, which
speak to deportation by using words such as “remove” and
“return,” see 8 U.S.C. § 1182(d)(3)(A) (“The Attorney General
shall prescribe conditions . . . to . . . return . . .
inadmissible aliens . . . .” (emphasis added)); id. § 1182(h)(2)
(“No waiver shall be granted . . . for a period of not less than
7 years immediately preceding the date of initiation of
proceedings to remove the alien from the United States.”
(emphasis added)); this Court recognizes, as have other courts
in this District, that “[t]here’s a serious question about
whether [Section 265’s] power includes the power . . . to remove
or exclude persons who are already present in the United
States,” Hr’g Tr., J.B.B.C. v. Wolf, No. 20-cv-1509, ECF No. 39
at 50 (June 26, 2020). Put simply, the “fact that Congress did
not use [words such as ‘return’ or ‘remove’] . . . suggests at a
minimum that the power to remove is not granted by [S]ection
265.” Id.5
5 Citing to dicta in Russello v. United States, 464 U.S. 16, 25
(1983), the government argues that “language in one statute
usually sheds little light upon the meaning of different
language in another statute.” Defs.’ Opp’n, ECF No. 76 at 19-20.
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Second, even accepting the government’s position that the
phrase “prohibit . . . the introduction of” means “to intercept
or prevent” the “process” of introduction, Defs.’ Opp’n, ECF No.
76 at 18-19; this phrase also does not encompass expulsion from
the United States, nor do any of the definitions provided by the
Government contain the word “expel” or synonyms thereof. Rather,
to “prohibit . . . the introduction of” merely means that the
process of introduction can be halted. And “[e]xpelling persons,
as a matter of ordinary language, is entirely different from
interrupting, intercepting, or halting the process of
introduction.” P.J.E.S., 502 F. Supp. at 512; see also id. at
536 (finding that the Merriam-Webster Dictionary definitions of
“prohibit,” “intercept,” and “prevent” each “connote stopping
something before it begins, rather than remedying it
afterwards”). In other words, “interrupting, intercepting, or
halting the process of introduction does [not] inexorably lead
to expulsion.” Id. at 512.

However, the Supreme Court routinely points to other statutes as
evidence that Congress knows how to legislate in particular
ways. See Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“A
textual judicial supplementation is particularly inappropriate
when, as here, Congress has shown that it knows how to adopt the
omitted language or provision. Congress has enacted statutes
that expressly include the language [the petitioner] asks us to
read in . . . .”); Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1626 (2018) (explaining that “when Congress wants to mandate
[certain] procedures[,] it knows exactly how to do so,” and
“Congress has spoken often and clearly” to the issue in other
statutes).
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The Government next contends that, “rather than specifying
that the power to prohibit the introduction of persons is
limited to the Nation’s borders,” Congress expressly delegated
the power to issue regulations that accomplish Section 265’s
purpose. Defs.’ Opp’n, ECF No. 76 at 20. But the government's
argument is beside the point; if Section 265 does not provide
the authority to expel persons, then it does not delegate the
authority to issue regulations to expel persons. In addition,
the Court also notes that the legislative history cited by the
government—that Section 265’s predecessor statute would have
given the President the power to suspend “immigration,” see
Defs.’ Opp’n, ECF No. 76 at 22—does not provide support for its
position that Section 265 authorizes it to expel persons.
Finally, in view of the above discussion and finding that
Section 265 is not ambiguous, the Court need not reach step two
of the Chevron analysis. However, even if the statute was
ambiguous, deference would not be justified. First, “the
‘reconciliation’ of distinct statutory regimes ‘is a matter for
the courts,’ not agencies,” Epic Sys., 138 S. Ct. at 1629
(quoting Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659, 685-86
(1975)); and here, “[t]he question for this claim is purely
legal: does Section 265 authorize expulsions from the United
States, or does it not?” P.J.E.S., 502 F. Supp. 3d at 544 n.15.
And while the government contends that the interpretation of
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“introduction” is within the Secretary’s expertise, see Defs.’
Opp’n, ECF No. 76 at 33-34; the Court disagrees. “The CDC’s
‘scientific and technical knowledge’ . . . has no bearing on
that question of statutory interpretation.” P.J.E.S., 502 F.
Supp. 3d at 544 n.15. Moreover, government has not explained how
its scientific and technical expertise would lead it to
interpret “introduction” to encompass “expulsion.” Cf. Kisor v.
Wilkie, 139 S. Ct. 2400, 2416 (2019) (noting that “[a] court
must make an independent inquiry into whether the character and
context of the agency interpretation entitled it to controlling
weight”); see also NRDC v. Daley, 209 F.3d 747, 755-56 (D.C.
Cir. 2000) (“The Service cannot rely on ‘reminders that its
scientific determinations are entitled to deference’ in the
absence of reasoned analysis ‘to cogently explain’ why its
additional recommended measures satisfied the Fishery Act’s
requirements.”). Accordingly, the CDC is not entitled to
deference with respect to its interpretation.6
2. Plaintiffs Face Irreparable Injury
“The failure to demonstrate irreparable harm is ‘grounds
for refusing to issue a preliminary injunction, even if the

6 Because the Court finds that Title 42 does not authorize
expulsion, the Court need not address Plaintiffs’ additional
arguments that Section 265 was designed to regulation
transportation or that, even if Section 265 authorized
expulsions, the Title 42 Process would violate the immigration
statutes. See Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at 21, 27.
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other three factors . . . merit such relief.’” Nat’l Mining
Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (RBW)
(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d
290, 297 (D.C. Cir. 2006)). “In this Circuit, a litigant seeking
a preliminary injunction must satisfy ‘a high standard’ for
irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting
Chaplaincy of Full Gospel Churches, 454 F.3d at 297). The movant
must demonstrate that it faces an injury that is “both certain
and great; it must be actual and not theoretical,” and of a
nature “of such imminence that there is a clear and present need
for equitable relief to prevent irreparable harm.” Wis. Gas Co.
v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and
emphasis omitted).

Plaintiffs contend that they are likely to suffer
irreparable harm if they are expelled without the opportunity to
seek humanitarian relief pursuant to the Title 42 Process. Pls.’
Mot. Prelim. Inj., ECF No. 57-1 at 31. Plaintiffs have presented
as evidence United States Department of State reports and
multiple declarations asserting that the home countries of the
proposed class members “are among the most dangerous in the
world due to gang, gender, family membership, and other
identity-based violence.” Id. at 32. The declarations submitted
to the Court specify in detail Plaintiffs’ fear of violence,
persecution, and other victimization if they are removed, yet
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they remain subject to the Title 42 Process and face the threat
of removal prior to receiving any of the protections the
immigration laws provide. See, e.g., Sealed Decl., ECF No. 9;
Sealed Decl., ECF No. 17; Sealed Decl., ECF No. 27; Sealed
Decl., ECF No. 32; Sealed Decls., ECF Nos. 63-67; Sealed Decl.,
ECF No. 70; Sealed Decls., ECF Nos. 84; Sealed Decls., ECF No.
88-89. Plaintiffs further assert that many of the families “are
expelled to Mexico, where they are often victimized by criminal
cartels and gang members and face numerous barriers to finding
safe places to shelter.” Pls.’ Mot. Prelim. Inj., ECF No. 57-1
at 33. Defendants do not dispute the potential harms that
Plaintiffs could face if removed from the United States.

The Court finds that Plaintiffs have sufficiently shown
they will likely suffer irreparable harm absent a preliminary
injunction. Plaintiffs’ alleged injuries would likely be “beyond
remediation.” Chaplaincy of Full Gospel Churches, 454 F.3d at
297. First, pursuant to the Title 42 Process, Plaintiffs and the
proposed class members face the prospect of expulsion without
any opportunity to apply for asylum or withholding of removal.
And once expelled from the United States and outside the
jurisdiction of the Court, a judicial remedy may be unavailable.
See Doe v. Mattis, 928 F.3d 1, 22 (D.C. Cir. 2019) (finding
irreparable harm likely to flow from the transfer of a dual
citizen detained in Iraq to an unidentified third country
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because he would then be in the custody of that third country
“without any continuing oversight by—or recourse to—the United
States”); P.J.E.S., 502 F. Supp. 3d at 545; Tefel v. Reno, 972
F. Supp. 608, 619–20 (S.D. Fla. 1997) (“[T]he Court finds . . .
that Plaintiffs and class members would suffer irreparable harm
if they are deported to their native countries after having been
denied an opportunity to have a hearing on their claims for
suspension of deportation.”); Velasquez v. Velasquez, No. 14-cv-
1688, 2014 WL 7272934, at *5 (E.D. Va. Dec. 15, 2014) (finding
irreparable harm where children could be removed from
jurisdiction because that would “frustrate the effort of th[e]
Court in resolving the [dispute]”). Second, members of the
proposed class also do not seek monetary compensation for their
injuries; instead, they seek injunctive and declaratory relief
invalidating the Title 42 Process. Unlike economic harm, the
harm resulting from expulsion from the United States pursuant to
an unlawful policy likely cannot be remediated after the fact.
Cf. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295
(D.C. Cir. 2009) (explaining that economic losses are typically
not irreparable because compensation can be awarded after a
merits determination).

In addition, “[i]t is well-established that acts by
[g]overnment agencies in derogation of statutory rights of the
public or certain individual members of the public can
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constitute irreparable injury.” Kirwa v. U.S. Dep’t of Def., 285
F. Supp. 3d 21, 42 n.22 (D.D.C. 2017) (quoting Gates v.
Schlesinger, 366 F. Supp. 797, 800 (D.D.C. 1973)). Here, the
Court has explained that Section 265 likely does not authorize
expulsion, thereby denying the proposed class members’ the
opportunity to seek humanitarian benefits pursuant to the
immigration statutes.
Defendants argue, however, that the “inherently
individualized nature” of Plaintiffs’ potential harms does not
demonstrate that the harms are “likely” to occur in the absence
of a preliminary injunction. Defs.’ Opp’n, ECF No. 76 at 35. But
while the decision whether to eventually grant asylum to
individuals is undoubtedly fact-intensive, as explained above,
Plaintiffs have provided ample unrebutted evidence demonstrating
that they are collectively deprived of certain statutory
procedures to seek protection under the Title 42 Process, and
they face real threats of violence and persecution if they were
to be removed from the United States. See, e.g., Neusner Decl.,
ECF No. 118-4 ¶ 8; Harbury Decl., ECF No. 118-5 ¶¶ 1, 10; Arvey
Decl, ECF No. 118-7 ¶ 16; Pinheiro Decl., ECF No. 118-7 ¶ 37;
Suppl. Levy Decl., ECF No. 118-3 ¶ 16; Rivas Decl., ECF No. 118-
11 ¶ 16. In addition, as Plaintiffs point out, “Defendants offer
no evidence that class members face materially disparate dangers
once expelled.” Pls.’ Reply, ECF No. 118 at 20. As other courts
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have noted, “similar showings” of “bona fide clams for
humanitarian relief, including fear of persecution on the basis
of protected characteristics,” have been found to be “sufficient
to demonstrate irreparable injury.” P.J.E.S., 502 F. Supp. 3d at
544 (citing cases); see also J.B.B.C. v. Wolf, No. 20-cv-1509,
2020 WL 6041870, at *2 (D.D.C. June 26, 2020) (stating that
sealed “declaration describing the possible harms that would
result from plaintiff’s return to Honduras” was sufficient);
Devitri v. Cronen, 289 F. Supp. 3d 287, 296-97 (D. Mass. 2018)
(finding unrebutted evidence showing threat of persecution or
torture if deported established likely irreparable harm, despite
“no individualized evidence concerning the specific threats each
Petitioner faces in Indonesia”); Grace v. Whitaker, 344 F. Supp.
3d 96, 146 (D.D.C. 2018), aff’d in part, rev’d in part on other
grounds sub nom., Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020)
(“[P]laintiffs credibly alleged at their credible fear
determinations that they feared rape, pervasive domestic
violence, beatings, shootings, and death in their countries of
origin. Based on plaintiffs’ declarations attesting to such
harms, they have demonstrated that they have suffered
irreparable injuries.”); Orantes-Hernandez v. Meese, 685 F.
Supp. 1488, 1504–05 (C.D. Cal. 1988) (finding that plaintiffs
would suffer irreparable harm if they were summarily removed
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without being afforded the opportunity to exercise their right
to apply for asylum).
Defendants also contend that “the [g]overnment’s
implementation of the Order provides a process for determining a
covered alien’s claim for protection under the Convention
Against Torture. Thus, Plaintiffs would not be expelled without
some opportunity to seek humanitarian relief.” Defs.’ Opp’n, ECF
No. 76 at 35. However, Defendants do not dispute that Plaintiffs
and proposed class members would still be deprived of the
protections and procedures provided for under the immigration
statutes. See id.
Plaintiffs have thus shown a likelihood of suffering
irreparable harm.
3. The Balance of the Equities and Public
Interest Favors an Injunction
The balance-of-equities factor directs the Court to
“balance the competing claims of injury and . . . consider the
effect on each party of the granting or withholding of the
requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting
Winter, 555 U.S. at 24). “When the issuance of a preliminary
injunction, while preventing harm to one party, causes injury to
the other, this factor does not weigh in favor of granting
preliminary injunctive relief.” Id.; see also Serono Labs., Inc.
v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast,
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the balance of equities may favor a preliminary injunction that
serves only “to preserve the relative positions of the parties
until a trial on the merits can be held.” Rufer v. FEC, 64 F.
Supp. 3d 195, 206 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at
395). “The purpose of . . . interim relief is not to
conclusively determine the rights of the parties, . . . but to
balance the equities as the litigation moves forward. In
awarding a preliminary injunction a court must also ‘conside[r]
. . . the overall public interest’. . . .” Trump v. Int’l
Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (second
alteration in original) (citations omitted).
Plaintiffs contend that issuing a preliminary injunction
“would not substantially injure the government and would be
consistent with public health” because (1) “families who come to
the border . . . can be processed quickly by Border Patrol
agents and released to sponsors in the interior,” where they can
quarantine and be subject to local health restrictions; (2)
“insofar as Defendants choose to detain families upon their
apprehension at the border, Defendants operate family detention
facilities where the family can be housed together,” as well as
tested and quarantined; and (3) “Defendants keep many families
in custody for weeks before expulsion,” where the families are
tested for COVID-19. Pls.’ Mot. Prelim. Inj., ECF No. 57-1 at
34-35. Defendants, in opposition, argue that “an injunction will
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increase the risk of COVID-19 transmission, which for some could
have deadly consequences, and undoing the mitigation measures
put in place by the Order is not in the public interest.” Defs.’
Opp’n, ECF No. 76 at 36.
Here, the Court ultimately finds that the balance of the
equities and the public interest weigh in favor of an
injunction.
First, “[t]here is generally no public interest in the
perpetuation of unlawful agency action.” League of Women Voters
of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016); see also
Ramirez v. ICE, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (“The public
interest surely does not cut in favor of permitting an agency to
fail to comply with a statutory mandate.”); R.I.L-R, 80 F. Supp.
3d at 191 (“The Government ‘cannot suffer harm from an
injunction that merely ends an unlawful practice or reads a
statute as required to avoid constitutional concerns.’”). As
explained above, the Court has determined that Plaintiffs are
likely to succeed on their claim that the Title 42 Process is
unlawful. Accordingly, because “there is an overriding public
interest . . . in the general importance of an agency’s faithful
adherence to its statutory mandate,” Jacksonville Port Auth. v.
Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court finds that
Plaintiffs likelihood of success “is a strong indicator that a
preliminary injunction would serve the public interest,” Newby,
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838 F.3d at 12; see also A.B.-B. v. Morgan, No. 20-cv-846, 2020
WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and
public can have little interest in executing removal orders that
are based on statutory violations . . . .”).
Second, “the public has an interest in ‘ensuring that we do
not deliver aliens into the hands of their persecutors,’ Leiva-
Perez [v. Holder], 640 F.3d [962,] 971 [(9th Cir. 2011)], and
‘preventing aliens from being wrongfully removed, particularly
to countries where they are likely to face substantial harm,’
Nken, 556 U.S. at 436.” East Bay Sanctuary Covenant v. Biden,
993 F.3d 640, 678 (9th Cir. 2021). Here, the Title 42 Process
deprives Plaintiffs and the proposed class members of an
opportunity to seek humanitarian protections under the asylum
and withholding of removal statutes. Proceeding to the merits of
this litigation without preliminary injunctive relief thus
“risks [P]laintiffs being returned to home countries where they
face significant risk of physical harm.” A.B.-B., 2020 WL
5107548, at *9. Defendants do not question that Plaintiffs face
substantial harm if returned to their countries of origin.
Accordingly, “[t]hese life-or-death consequences weigh heavily
in favor of preliminary injunctive relief.” Id.; see also
Devitri, 289 F. Supp. 3d at 297 (D. Mass. 2018) (“The public’s
interest in providing due process for non-citizens to ensure
that they are not removed to a country where they will be
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persecuted is an extremely weighty one.”); Chaudhry v. Barr, No.
19-cv-00682, 2019 WL 2009307, at *4 (E.D. Cal. May 7, 2019)
(“[T]here is . . . ‘a public interest in preventing aliens from
being wrongfully removed, particularly to countries where they
are likely to face substantial harm.’” (quoting Sied v. Nielsen,
No. 17-cv-06785, 2018 WL 1142202, at *27 (N.D. Cal. Mar. 2,
2018))).
Defendants argue, however, that “an injunction will
increase the risk of COVID-19 transmission, which for some could
have deadly consequences, and undoing the mitigation measures
put in place by the Order is not in the public interest.” Defs.’
Opp’n, ECF No. 76 at 36. According to Defendants, (1) “CBP
facilities ‘are not structured or equipped for quarantine or
isolation for COVID-19’”; (2) “[t]he numbers of aliens and the
size and capacity of the congregate holding areas are not at all
conducive to effective social distancing”; and (3) “CBP is not
equipped to provide on-site care to infected persons.” Id.
(quoting March Order at 14; Final Rule, 85 Fed Reg. at 56,433).
Due to these constraints, Defendants fear that U.S. Border
Patrol’s facilities “may rapidly become overcrowded” if the
Title 42 Process is rescinded. Id. But despite the government’s
warnings regarding the capacity of its facilities and staff, the
fact remains that “86% of families arriving at the southwest
border are already allowed into the United States and processed
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for regular removal proceedings.” Pls.’ Reply, ECF No. 118 at
22. Moreover, although Defendants have expressed concerns
regarding its inability to provide for quarantine space or
“effective social distancing” if the Title 42 Process were not
in effect, expulsion pursuant to the CDC Orders still results in
“plac[ing] families on crowded planes and buses from the Rio
Grande Valley,” without first testing the individuals and
isolating those who test positive, and transporting them “to
other locations in Texas, or places as far away as Arizona and
San Diego,” before expelling them or releasing them into the
United States. Pls.’ Reply, ECF No. 118 at 25.
Citing an increased number of “enforcement encounters” from
April 2020 to January 2021, Defendants further contend that an
injunction in this case could “create a ‘pull factor’ leading to
additional attempts to enter the United States and in turn more
apprehensions.” Defs.’ Opp’n, ECF No. 76 at 37 (citing Miller
Decl., ECF No. 76-2 ¶ 16). However, as Plaintiffs point out,
Defendants’ only evidence in support of their prediction is “a
16% increase in encounters of unaccompanied children in the
weeks after entry of this Court’s injunction in P.J.E.S. in
November 2020,” which was actually “part of a larger upward
trend that predated the injunction by many months—and it was
smaller than the percentage increase for each month from April
to October 2020, when Title 42 was being enforced against
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unaccompanied children.” Pls.’ Reply, ECF No. 118 at 26 (citing
Menjívar Decl., ECF No. 118-23 ¶ 15). Moreover, though
Defendants contend that there has been a “historic” level of
enforcement encounters at the border, the statistics Defendants
cite “overstate the number of unique individuals arriving at the
border.” Reichlin-Melnick Decl., ECF No. 118-18 ¶¶ 15-16. For
example, Plaintiffs have provided evidence that, after the
implementation of the Title 42 Process, the recidivism rate of
individuals crossing the border increased from less than 7% to
40%. Id. ¶ 11. In other words, under the Title 42 regime,
individuals seeking an asylum hearing have attempted to cross
the border multiple times, “sometimes 10 times or more, and each
attempt is counted as a new ‘encounter.’” Pls.’ Reply, ECF No.
118 at 22. Such evidence casts doubt on Defendants’ claims that
an injunction in this matter would create a “pull factor.” See
Flores v. Sessions, No. 85-cv-4544, 2018 WL 4945000, at *2 (C.D.
Cal. July 9, 2018) (finding argument that border crossings would
surge due to court order lacked merit).
Defendants also note that “the pandemic has taken a toll on
the CBP workforce,” with many CBP employees contracting COVID-19
and several others dying from the virus. Defs.’ Opp’n, ECF No.
76 at 37 (citing Miller Decl., ECF No. 76-2 ¶ 18). Defendants
assert that “[w]ith personnel on sick leave or quarantining, the
ability of CBP to perform its functions is diminished.” Id.
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(citing Miller Decl., ECF No. 76-2 ¶ 14). The loss of life
resulting from COVID-19 contraction is undeniably tragic, and
the Court agrees that “promoting public health—especially during
a pandemic—is in the public interest.” Nat’l Immigration Project
of Nat’l Lawyers Guild v. Exec. Off. of Immigration Review, 456
F. Supp. 3d 16, 34 (D.D.C. 2020). However, Defendants provide no
evidence that the CBP employees who tested positive for COVID-19
contracted the virus from any of the asylum seekers crossing the
border into the United States. And, significantly, since
Defendants filed its opposition brief in this matter, vaccines
protecting against the risk of serious disease and
hospitalization have become widely available in the United
States. See Pls.’ Reply, ECF No. 118 at 25. The Court does not
doubt that a preliminary injunction issued in this matter would
force the government “to make difficult decisions about
allocation of resources to mitigate the risks caused by COVID-
19.” P.J.E.S., 502 F. Supp. 3d at 549. But in view of the wide
availability of testing, vaccines, and other minimization
measures, the Court is not convinced that the transmission of
COVID-19 during border processing cannot be significantly
mitigated. Indeed, the government has successfully implemented
mitigation measures with regard to processing unaccompanied
minors in order to minimize risk of COVID-19 transmission. See
Pls.’ Reply, ECF No. 118 at 21-22.
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Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.
4. The Court Will Not Require Plaintiffs to
Post a Bond
Federal Rule of Civil Procedure 65(c) provides that “[t]he
court may issue a preliminary injunction . . . only if the
movant gives security in an amount that the court considers
proper to pay the costs and damages sustained by any party found
to have been wrongfully enjoined.” Fed. R. Civ. P. 65(c).
“Courts in this Circuit have found the Rule ‘vest[s] broad
discretion in the district court to determine the appropriate
amount of an injunction bond,’ including the discretion to
require no bond at all.” Simms v. District of Columbia, 872 F.
Supp. 2d 90, 107 (D.D.C. 2012) (quoting DSE, Inc. v. United
States, 169 F.3d 21, 33 (D.C. Cir. 1999)) (internal citation
omitted). Here, Plaintiffs are families allegedly fleeing
persecution in their home country and do not have the ability to
post a bond. Additionally, they are seeking to vindicate
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important procedures and protections under the immigration laws.
Accordingly, the Court will waive the requirement for an
injunction bond. See id.
5. The Court Shall Stay the Preliminary
Injunction
Defendants request that the Court stay its Order enjoining
the Title 42 Process for 14 days “to give Defendants sufficient
time to explore their appellate options.” Defs.’ Opp’n, ECF No.
76 at 39. Plaintiffs do not oppose Defendants’ request. Pls.’
Reply, ECF No. 118 at 30. Accordingly, the Court shall stay its
Order for 14 days from the date of its entry. However, the Court
declines to stay this decision pending appeal for substantially
the same reasons as those articulated in this Opinion.
IV.
Conclusion
For the foregoing reasons, the Court GRANTS Plaintiffs’
Motion for Class Certification, ECF No. 23, and GRANTS
Plaintiffs’ Motion for Preliminary Injunction, ECF No. 57. The
preliminary injunction shall be stayed for 14 days. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan

United States District Judge

September 16, 2021
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NANCY GIMENA HUISHA-HUISHA, et
al.,

Plaintiffs,

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

Defendants.

Civ. Action No. 21-100(EGS)

ORDER

For the reasons stated in the accompanying Memorandum
Opinion, it is hereby

ORDERED that Plaintiffs’ Motion for Class Certification is
GRANTED; and it is further
ORDERED that the Court certifies a class pursuant to Rules
23(a) and 23(b)(2) of the Federal Rules of Civil Procedure
consisting of all noncitizens who: (1) are or will be in the
United States; (2) come to the United States as a family unit
composed of at least one child under 18 years old and that
child’s parent or legal guardian; and (3) are or will be
subjected to the Title 42 Process; and it is further
ORDERED that Plaintiffs Nancy Gimena Huisha-Huisha and her
minor child I.M.C.H.; Valeria Macancela Bermejo and her minor
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2
daughter, B.A.M.M.; Josaine Pereira-De Souza and her minor
children H.N.D.S.; E.R.P.D.S.; M.E.S.D.S.; H.T.D.S.D.S.; Martha
Liliana Taday-Acosta and her minor children D.J.Z.; J.A.Z.;
Julien Thomas, Fidette Boute, and their minor children D.J.T.-
B.; T.J.T.-B.; and Romilus Valcourt, Bedapheca Alcante, and
their minor child, B.V.-A., are appointed as Class
Representatives; and it is further
ORDERED that ACLU Immigrants’ Rights Project is appointed
Lead Class Counsel, and the Texas Civil Rights Project, the ACLU
of Texas, the ACLU of the District of Columbia, the Refugee and
Immigrant Center for Legal Education and Legal Services
(RAICES), the Center for Gender & Refugee Studies, and Oxfam
America are appointed as Class Counsel; and it is further

ORDERED that Defendants’ Motion for Oral Argument is
DENIED; and it is further
ORDERED that Plaintiffs’ Motion for Preliminary Injunction
is GRANTED; and it is further

ORDERED that, pursuant to this Order, Defendants are HEREBY
ENJOINED from applying the Title 42 Process, including the CDC’s
August 2021 Order, to the Class Members; and it is further

ORDERED that this Order shall be stayed for 14 days from
the date of its entry; and it is further
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ORDERED that any request to stay this Order pending appeal
will be denied for the reasons stated in the accompanying
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 16, 2021
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1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NANCY GIMENA HUISHA-HUISHA, on
behalf of herself and others similarly situated,
Plaintiffs,
v.
ALEJANDRO MAYORKAS, Secretary of
Homeland Security, et al.,
Defendants.
Civ. A. No. 21-100 (EGS)
DECLARATION OF DAVID SHAHOULIAN
I, David Shahoulian, pursuant to 28 U.S.C. § 1746 and based upon my personal knowledge,
as well as documents and information made known or available to me from official records and
reasonably relied upon in the course of my employment, hereby declare as follows:
1. I am the Assistant Secretary for Border and Immigration Policy at the Department of
Homeland Security (DHS or Department) and have been in this role since January 20, 2021. I
previously served as Deputy General Counsel at DHS from June 29, 2014 to January 19, 2017.
2. I submit this declaration to alert the Court to the adverse consequences of a preliminary
injunction prohibiting the Government from applying the Centers for Disease Control and
Prevention’s (CDC) Order Suspending the Right to Introduce Certain Persons from Countries
where a Quarantinable Communicable Disease Exists [“CDC Order”], 85 Fed. Reg. 65806 (Oct.
16, 2020), or any similar order, to the putative class in this case.
3. As explained in more detail below, the United States is currently encountering record
numbers of noncitizens, including families, at the border. These encounter rates have strained
DHS operations and caused border facilities to be filled beyond their normal operating capacity,
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impacting the ability to employ social distancing in these congregate settings. At the same time,
DHS is also experiencing significantly increased rates of noncitizens testing positive for COVID-
19. In light of these and other considerations, enjoining the application of the CDC Order to
families would exacerbate overcrowding at DHS facilities and create significant public health
risks.
4. Since January 2021, the Department has engaged in extensive efforts to increase its
capacity to safely process asylum seekers and other noncitizens. Among other things, DHS has
worked tirelessly to build capacity and to create innovative new approaches to allow asylum
seekers and other noncitizens to be processed in a manner that ensures their health and safety, and
that of DHS officers and the American public. Those efforts—which are the product of extensive
collaboration with other U.S. Government agencies, foreign governments, and non-governmental
organization (NGO) partners—have been successful in significant respects as detailed below.
5. The Department lacks sufficient capacity to safely hold and process all individuals seeking
to enter the United States during the global pandemic if the U.S. Government were restricted in its
ability to implement the CDC Order. These capacity challenges are particularly acute with respect
to families. DHS continues to have severely limited capacity to hold and process families, and the
current migrant surge and ongoing pandemic have only compounded these issues.
6. If the CDC Order is enjoined with respect to families, the increased number of families
seeking to enter the United States would each require additional processing related to admissibility,
which would in turn require them to be held for longer periods in increasingly crowded conditions.
Moreover, due to such conditions and other capacity constraints, DHS would effectively need to
release a growing number of families into border communities, which risks overwhelming the local
testing, isolation, and quarantine infrastructure DHS has worked to create and will thus burden
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3
local healthcare systems and strain healthcare resources. An injunction restricting implementation
of the current CDC Order as to families will result in an immediate increased risk of harm from
COVID-19 for noncitizens in DHS custody, DHS personnel, and potentially the public.
I.
The U.S. Government’s Efforts to Build Capacity and Improve Processing
7. Since January 2021, the U.S. Government has engaged in extensive and varied efforts to
improve the immigration processing systems at the border, while also dealing with challenges
presented by the COVID-19 pandemic and the current influx of noncitizens seeking refuge in the
United States.
8. First, the Government has worked to significantly increase its ability to safely process and
house individuals encountered between ports of entry after crossing into the United States. U.S.
Customs and Border Protection (CBP) and the Department of Health and Human Services, for
example, have stood up numerous emergency facilities in the United States (and retrofitted existing
ones) to increase their ability to safely hold and process individuals—particularly unaccompanied
children (UCs) and families—encountered after crossing between ports of entry. U.S. Immigration
and Customs Enforcement (ICE) has transitioned existing facilities for the processing and testing
of families, and it has entered into a contract with a non-profit social service organization to add
over 1,200 additional beds to ICE’s family housing capacity. And the Department has transferred
hundreds of personnel from various component agencies around the country to the southwest
border to assist with the processing and care of individuals encountered at the border.
9. Second, the Department has also taken significant steps to develop systems to facilitate
testing, isolation, and quarantine of those individuals who are not immediately returned to their
home countries after encounter. Across most of the southwest border, these systems were
developed by DHS in coordination with state and local jurisdictions, non-governmental
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organizations, and other private entities. In the Del Rio sector, where there is limited non-
governmental organization capacity, the Department set up a system for testing and non-
congregate sheltering involving private contractors and ICE family facilities. Due to infrastructure
and resource limitations, it is not feasible to replicate this latter system across the border.
10. Third, the U.S. Government also engaged in several lines of effort to improve its capacity
to safely process asylum seekers and other individuals through U.S. ports of entry. For example,
the U.S. Government—in collaboration with international organizations and domestic non-
governmental organizations—rapidly developed an innovative system to register, test, and
transport certain individuals previously returned to Mexico pursuant to the Migrant Protection
Protocols (MPP) for safe and orderly processing into the United States through various ports of
entry at the southwest border. To date, the U.S. Government has processed approximately 13,000
individuals, including many families, pursuant to its Title 8 authorities through this program.
11. The U.S. Government has also engaged with international humanitarian organizations and
non-governmental organizations to establish similar streamlined systems for the U.S. processing
of other individuals, particularly families, who may qualify for an exception to the CDC Order for
humanitarian reasons. Under these systems, non-governmental organizations identify and refer
families and other individuals in vulnerable situations in Mexico to DHS for possible exception
from expulsion, based on the totality of the circumstances, on a case-by-case basis, as determined
by DHS in accordance with the CDC Order. Once they test negative for COVID-19, such
individuals may be processed pursuant to Title 8 authorities at designated ports of entry. To date,
over 16,000 individuals have been processed into the United States through these CDC-authorized
processes.
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12. DHS is committed to continuing to use mechanisms like those described above to allow
the safe processing of vulnerable families under Title 8 for as long as Title 42 remains applicable
to families.
II.
An Injunction Would Result in Severe Capacity Limitations Endangering Non-
Citizens, DHS Employees, and Others

13. Despite the U.S. Government’s efforts to build safe processing capacity, DHS’s application
of the CDC Order remains necessary, while the pandemic continues, to prevent COVID-19
exposure risks to DHS personnel, individuals seeking entry to the United States, and border
communities. This risk has recently increased due to the recent spread of the highly transmissible
COVID-19 Delta variant. The rates at which encountered noncitizens are testing positive for
COVID-19 have increased significantly in recent weeks. And although the rate of infection among
CBP officers had been declining, this rate recently began increasing again, even though the
percentage of officers and agents who have been fully vaccinated has grown significantly since
January. This has led to increasing numbers of CBP personnel being isolated and hospitalized.
14. Unlike at ports of entry, where DHS can better manage the volume and rate at which
individuals are processed, there is substantially less ability to manage or control the volume and
rate of encounters that may occur between the ports. Without the CDC Order, DHS would likely
encounter increased numbers of families crossing the border between the ports of entry. And the
Department would be faced with processing all such families under Title 8—which is significantly
more extensive and time consuming than Title 42 processing—regardless of the number of
individuals encountered on a given day. DHS must often transport such noncitizens in passenger
vehicles, including from remote locations, to U.S. Border Patrol stations or other CBP facilities
for additional processing in congregate settings. Each of these interactions—encounter, custody,
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6
transportation, and holding in congregate setting—increases the risks of COVID-19 exposure and
transmission.
15. As noted in the CDC Order itself, CBP facilities are designed for short-term holding and
initial processing, generally prior to transfer to another agency, such as ICE or the Office of
Refugee Resettlement (ORR) within HHS, which houses UCs until they can safely be placed with
sponsors. They are not designed to hold individuals for extended periods of time, particularly
during a pandemic when social distancing and isolation are needed to limit the spread of disease.
The congregate nature of these facilities restricts the ability to quarantine, isolate, and enable social
distancing by persons who are or may be infected with COVID-19. As these CBP facilities become
overcrowded during a surge, bottlenecks in immigration processing develop, along with
bottlenecks in ICE transportation, detention capacity for families and single adults, and ORR
capacity for UCs. As a result, noncitizens’ length of stay in DHS custody extends significantly.
16. Moreover, CBP’s already limited border processing capacity has been greatly reduced
through the implementation of public-health protocols designed to mitigate COVID-19
transmission. Under current protocols, CBP aims to maintain 25 percent capacity at many of its
facilities, and up to 50 percent capacity at specialized central processing centers and soft sided
facilities. Loss of the ability to expel families pursuant to the CDC Order will directly contribute
to the Department’s inability to maintain critical COVID-19 capacity controls.
17. Importantly, the ability to expel certain covered noncitizens under the CDC Order does not
result in the expulsion of every individual encountered at the border; DHS must still process
noncitizens not covered by the Order, noncitizens excepted from the Order on a case-by-case basis,
and noncitizens for whom expulsion is not available for other reasons. Due to a variety of factors,
including an historic surge in southwest border encounters in recent months, CBP has been
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encountering a significant and growing number of individuals who must be held for processing in
congregate facilities.
18. In May and June 2021, for example, CBP recorded over 180,000 and 188,000 encounters,
respectively, at the southwest border. During this period, CBP encountered over 6,000 individuals
per day, including about 500 UCs and 1,650 individuals in family units. These constitute the
highest numbers of monthly encounters recorded by CBP in more than twenty years, including
during previous surges when the Department was not constrained by COVID-19 capacity
considerations. As noted above, due to COVID-19-related guidance, border facilities are currently
expected to operate at only 25 to 50 percent capacity, depending on individual facility
infrastructure and facility type. Due to this combination of factors, many CBP facilities are already
over that capacity—many significantly so, even with the CDC Order in place.
19. Based on preliminary data, the number of border encounters continued to increase in July
2021. Over the first 29 days of July, CBP encountered an average of 6,779 individuals per day,
including 616 unaccompanied children and 2,583 individuals in family units. Overall, according
to preliminary data, CBP is likely to have encountered about 210,000 individuals in July, the
highest monthly encounter number since Fiscal Year 2000. July also likely included a record
number of unaccompanied child encounters, exceeding 19,000, and the second-highest number of
family unit encounters, at around 80,000.
20. Moreover, these historic encounter levels have not been evenly distributed across the
southwest border. Two Border Patrol sectors—Rio Grande Valley (RGV) and Del Rio—have
experienced a disproportionate amount of these encounters. For example, the RGV sector alone
saw over 51,000 and 59,000 encounters in May and June 2021, respectively; and based on
preliminary data, there appear to have been about 78,000 RGV encounters in July. These two
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sectors have also experienced a disproportionate amount—about 71 percent—of family
encounters. As a result, facilities in these two sectors have been significantly more over-capacity
relative to others.
21. As of August 1, 2021, the U.S. Border Patrol was at 389 percent of its overall COVID-19
adjusted capacity along the southwest border. On that date, the Border Patrol had 17,778
noncitizens in custody (2,233 of whom were UCs) at its Border Patrol facilities, despite a COVID-
19 adjusted capacity of 4,706. More specifically, the Border Patrol was over capacity in seven of
its nine southwest border sectors. As of August 1, the RGV sector—which has been the epicenter
of the current surge—was holding 10,002 noncitizens and was thus 783 percent over its COVID-
19 adjusted capacity of 1,278 and 287 percent over its normal, non-adjusted capacity of
3,485. Within RGV, noncitizen families and UCs are primarily transferred to a temporary
processing facility in Donna, Texas in the RGV, which has a normal operating capacity of 1,625
and a COVID-19 adjusted capacity of 813 based on CDC recommended guidelines. Within nine
days of this facility opening on February 9, 2021, it had already exceeded its normal non-COVID-
19 operating capacity with more than 1,000 noncitizens in custody. As of August 1, this facility
was operating at 446 percent of its COVID-19 adjusted capacity, and 223 percent of its normal
non-COVID-19 operating capacity, with 3,623 noncitizens in custody.
22. These capacity figures are extremely worrisome, particularly because of the continued
spread of the highly transmissible Delta variant. Overcrowding challenges DHS’s ability to
effectively execute many of its core public health mitigation and countermeasure activities.
Additionally, higher rates of COVID-19 transmission within a DHS facility could quickly impede
the Department’s ability to utilize that facility’s maximum capacity, further lowering the overall
processing and holding capacity along the southwest border. Indeed, the Department’s operations
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have already been impacted by significantly increased positivity rates among individuals in its
facilities, including families.
23. Monthly family encounter rates have generally been increasing since April 2020, rising
100-fold from 738 encounters in April 2020 to over 75,000 in July 2021. Due to the impacts of
the current pandemic, and the deteriorating economic conditions and increasing instability in the
region from which the migrants originate, such encounters may increase further in the coming
months. Based on current trends, the Department expects that total encounters this fiscal year are
likely to be the highest ever recorded. The Department also expects that these numbers will climb
even higher if the CDC Order is enjoined.
24. If an injunction is issued with respect to families, DHS will be required to process
additional families under Title 8, requiring additional staff and space due to increased processing
times. Processing a family under Title 42 typically takes 10 to 15 minutes and is largely conducted
outdoors, while processing a family for Title 8 can take 1.5 to 3 hours and is generally conducted
indoors. Processing all families under Title 8 will thus generally require DHS to hold significantly
increased numbers of individuals in a variety of congregate settings, including during
transportation to Border Patrol stations or other CBP facilities, and to process them at such
facilities. Because many Border Patrol stations and other CBP facilities along the southwest border
are already over operating capacity, increasing the number of individuals required to be held at
such facilities would further limit the ability to employ social distancing and other COVID-19
related countermeasures.
25. The CDC has determined that the expulsion of certain noncitizens is necessary to protect
public health because DHS is simply unable to process all noncitizen families safely under current
circumstances, and particularly in the event of a large-scale influx. Enjoining DHS’s
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implementation of the CDC Order as to families would therefore endanger noncitizens in DHS
facilities, DHS personnel, and ultimately the general public.

*
26. The United States has been built by generations of immigrants in search of refuge. In line
with that tradition, the Department is committed to ensuring that asylum seekers and other
noncitizens seeking protection are treated with dignity and compassion. At the same time, the
ongoing COVID-19 pandemic presents complex and dynamic challenges relating to public health
that limit the Department’s ability to process all such individuals safely under normal procedures.
These challenges have been greatly exacerbated by the rise in novel COVID-19 variants, including
the Delta variant. The Department continues to work tirelessly to address those challenges as they
emerge and implement procedures as needed to promote the health and safety of noncitizens, DHS
personnel, border communities, and the American public. During this period and given the unique
public health danger posed by the ongoing pandemic, implementation of the CDC Order is critical
to preventing overcrowding and the spread of infection within DHS facilities.

Executed on August 2, 2021.

_______________________________________
David Shahoulian
Assistant Secretary for Border and Immigration Policy
U.S. Department for Homeland Security

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1
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)
ORDER UNDER SECTIONS 362 & 365 OF THE PUBLIC HEALTH SERVICE ACT
(42 U.S.C. §§ 265, 268) and 42 CFR 71.40
PUBLIC HEALTH REASSESSMENT
AND
ORDER SUSPENDING THE RIGHT TO INTRODUCE
CERTAIN PERSONS FROM COUNTRIES
WHERE A QUARANTINABLE COMMUNICABLE DISEASE EXISTS
Executive Summary
The Centers for Disease Control and Prevention (CDC), a component of the U.S. Department of
Health and Human Services (HHS), is hereby replacing and superseding the Order Suspending the Right
to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists,
issued on October 13, 2020 (October Order). The instant Order continues the suspension of the right to
introduce “covered noncitizens,” as defined herein,1 into the United States along the U.S. land and
adjacent coastal borders. In recognition of the specific COVID-19 mitigation measures available in
facilities providing care for Unaccompanied Noncitizen Children (UC), CDC excepted UC from the
October Order on July 16, 2021 (July Exception) and continues that exception herein.2 Following an
assessment of the current status of the COVID-19 public health emergency and the situation in
congregate settings where noncitizens seeking to enter the United States are processed and held, CDC
has determined that an Order remains appropriate at this time for all other covered noncitizens as
described herein. As outlined below, CDC is continuing an exception for individuals on a case-by-case
basis, based on the totality of the circumstances, and is incorporating an additional exception for
programs approved by the U.S. Department of Homeland Security (DHS) that incorporate appropriate
COVID-19 mitigation protocols as recommended by CDC.
CDC has determined that an Order under 42 U.S.C. § 265 remains necessary to protect U.S.
citizens, U.S. nationals, lawful permanent residents, personnel and noncitizens at the ports of entry
(POE) and U.S. Border Patrol stations, and destination communities in the United States during the
COVID-19 public health emergency. This Order reflects the current, highly dynamic conditions
regarding COVID-19, including variants of concern and levels of vaccination, as well as evolving
circumstances specific to the U.S. borders. As facts change, CDC may further modify the Order. This
Order will remain in place until either the expiration of the Secretary of HHS’ declaration that COVID-
19 constitutes a public health emergency, or the CDC Director determines that the danger of further
introduction of COVID-19 into the United States has declined such that continuation of the Order is no
longer necessary to protect public health, whichever occurs first. The circumstances necessitating the
Order will be reassessed at least every 60 days.

1 See infra Section III.A.
2 Public Health Determination Regarding an Exception for Unaccompanied Noncitizen Children from Order Suspending the
Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, Centers for
Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf
(July 16, 2021); see 86 Fed. Reg. 38717 (July 22, 2021). The July Exception relating to UC is hereby made a part of this
Order and incorporated by reference as if fully set forth herein.
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Outline of Reassessment and Order
I.
Background
A. Current Status of COVID-19 Public Health Emergency
B. Public Health Factors Related to COVID-19
1. Manner of COVID-19 Transmission
2. Emerging Variants of the SARS-CoV-2 Virus
3. Risks of COVID-19 Transmission Specific to Congregate Settings
4. Availability of Testing, Vaccines, and Other Mitigation Measures
5. Impact on U.S. Communities and Healthcare Resources
II. Public Health Reassessment
A. Immigration Processing and Public Health Impacts
B. Public Health Assessment of Single Adults and Family Units
C. Comparison to Unaccompanied Noncitizen Children
D. Summary of Findings
III. Legal Basis for the Order
IV. Issuance and Implementation of the Order
A. Covered Noncitizens
B. Exceptions
C. APA, Review, and Termination
I.
Background
Coronavirus disease 2019 (COVID-19) is a quarantinable communicable disease3 caused by the
SARS-CoV-2 virus. As part of U.S. government efforts to mitigate the introduction, transmission, and
spread of COVID-19, CDC issued an Order on October 13, 2020 (October Order), replacing an Order
3 Quarantinable communicable diseases are any of the communicable diseases listed in Executive Order, as provided under §
361 of the Public Health Service Act (42 U.S.C. § 264). 42 CFR 71.1. The list of quarantinable communicable diseases
currently includes cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers
(Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named), severe acute respiratory
syndromes (including Middle East respiratory syndrome and COVID-19), and influenza caused by novel or reemergent
influenza viruses that are causing, or have the potential to cause, a pandemic. See Exec. Order 13295, 68 Fed. Reg. 17255
(Apr. 4, 2003), as amended by Exec. Order 13375, 70 Fed. Reg. 17299 (Apr. 1, 2005) and Exec. Order 13674, 79 Fed. Reg.
45671 (July 31, 2014).
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3
initially issued on March 20, 2020 (March Order),4 suspending the right to introduce5 certain persons
into the United States from countries or places where the quarantinable communicable disease exists in
order to protect the public health from an increase in risk of the introduction of COVID-19. The October
Order applied specifically to covered noncitizens who would otherwise be introduced into a congregate
setting in land or coastal POE or U.S. Border Patrol stations at or near the U.S. borders6 with Canada
and Mexico. On February 17, 2021, CDC published a notice announcing the temporary exception of
unaccompanied noncitizen children (UC)7 encountered in the United States from the October Order.8
The exception of UC from the October Order was confirmed with the publication of the July Exception.9
POE and U.S. Border Patrol stations are operated by U.S. Customs and Border Protection (CBP),
an agency within DHS. The March and October Orders were intended to reduce the risk of COVID-19
introduction, transmission, and spread in POE and U.S. Border Patrol stations by significantly reducing
the number and density of covered noncitizens held in these congregate settings, thereby reducing risks
to U.S. citizens and residents, DHS/CBP personnel and noncitizens at the facilities, and the healthcare
systems in local communities overall. Because of the congregate nature of these facilities and the
sustained community transmission of COVID-19, including the highly transmissible B.1.617.2 (Delta)
variant, in both the United States and migrants’ countries of origin and transit, at this time, there
continues to be a high risk of COVID-19 outbreaks in these facilities following the introduction of an
infected person. Upon reassessment of the current situation with respect to the pandemic and the
situation at the U.S. borders, CDC finds an Order under 42 U.S.C. § 265 for Single Adults (SA)10 and
Family Units (FMU)11 remains necessary at this time, as discussed in detail below. CDC also recognizes
the availability of testing, vaccines, and other mitigation protocols can minimize risk in this area. As the
ability of DHS facilities to employ mitigation measures to address the COVID-19 public health
emergency increases, CDC anticipates additional lifting of restrictions.
4 Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease
Exists, 85 Fed. Reg. 65806 (Oct. 16, 2020). The October Order replaced the Order Suspending Introduction of Certain
Persons from Countries Where a Communicable Disease Exists, issued on March 20, 2020 (March Order), and subsequently
extended and amended. Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending
Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060 (Mar. 26, 2020);
Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain
Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 22424 (Apr. 22, 2020); Amendment and
Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain
Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31503 (May 26, 2020).
5 Suspension of the right to introduce means to cause the temporary cessation of the effect of any law, rule, decree, or order
pursuant to which a person might otherwise have the right to be introduced or seek introduction into the United States. 42
CFR 71.40(b)(5).
6 When U.S. Customs and Border Protection (CBP) or the U.S. Department of Homeland Security (DHS) partner agencies
encounter noncitizens off the coast closely adjacent to the land borders, it transfers the noncitizens for processing in POE or
U.S. Border Patrol stations closest to the encounter. Absent the October Order, such noncitizens would be held in the same
congregate settings and holding facilities as any encounters along the land border, resulting in similar public health concerns
related to the introduction, transmission, and spread of COVID-19.
7 As stated in the July Exception, CDC’s understanding is that UC are a class of individuals similar to or the same as those
individuals who would be considered “unaccompanied alien children” (see 6 U.S.C. § 279) for purposes of HHS Office of
Refugee Resettlement custody, were DHS to make the necessary immigration determinations under Title 8 of the U.S. Code.
86 Fed. Reg. 38717, 38718 at note 4.
8 Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children Pending Forthcoming Public
Health Determination, 86 Fed. Reg. 9942 (Feb. 17, 2021).
9 Supra note 2.
10 A single adult (SA) is any noncitizen adult 18 years or older who is not an individual in a “family unit,” see infra note 11.
11 An individual in a family unit (FMU) includes any individual in a group of two or more noncitizens consisting of a minor
or minors accompanied by their adult parent(s) or legal guardian(s). Any statistics regarding FMU count the number of
individuals in a family unit rather than counting the groups.
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A.
Current Status of COVID-19 Public Health Emergency
Since late 2019, SARS-CoV-2, the virus that causes COVID-19, has spread throughout the
world, resulting in a pandemic. As of July 28, 2021, there have been over 195 million confirmed cases
of COVID-19 globally, resulting in over 4.1 million deaths.12 The United States has reported over 34
million cases resulting in over 609,000 deaths due to the disease13 and is currently averaging around
61,976 new cases of COVID-19 a day as of July 27, 2021 with high community transmission.14
Although several of the key indicators of transmission and spread of COVID-19 in the United States
improved during the first half of 2021, variants of concern, particularly the more transmissible Delta
variant, have driven a stark increase in COVID-19 cases, hospitalizations, and deaths. COVID-19 cases
increased approximately 400% between June 19 and July 28, 2021.15
Many countries have begun widespread vaccine administration; however, 78 countries continue
to experience high or substantial incidence rates (>50 cases per 100,000 people in the last seven days)
and 123 countries, including the United States, are experiencing an increasing incidence of reported new
cases.16 It is imperative that individuals and communities stay vigilant and that vaccination and other
COVID-19 mitigation efforts are maintained. As the Delta variant continues to spread, both the United
States and Mexico are experiencing high or substantial incidence rates with 137.9 and 68.6 daily cases
per 100,000 persons over a seven-day average, respectively; in Canada, the incidence rate is 8.0. The
United States saw a 91.0% increase in new cases over the past week, Mexico experienced a 30.2%
increase in new cases. During the same time period, the incidence rate in Canada increased by 14.8%.17
COVID-19 was first declared a public health emergency in January 202018 and the U.S.
government and CDC have implemented a number of COVID-19 mitigation and response measures
since that time. Many of these mitigation measures have involved restrictions on international travel and
migration.19 Other measures have focused on recommending and enforcing COVID-19 mitigation
12 Coronavirus disease (COVID-19) pandemic, World Health Organization, https://covid19.who.int/ (last visited July 28,
2021).
13 COVID Data Tracker, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#datatracker-
home (last visited July 28, 2021).
14 United States COVID-19 Cases, Deaths, and Laboratory Testing (NAATs) by State, Territory, and Jurisdiction, Centers for
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#cases_community (last visited July 28, 2021).
15 Christie A, Brooks JT, Hicks LA, et al. Guidance for Implementing COVID-19 Prevention Strategies in the Context of
Varying Community Transmission Levels and Vaccination Coverage. MMWR Morb Mortal Wkly Rep. ePub: 27 July 2021.
DOI: http://dx.doi.org/10.15585/mmwr.mm7030e2.
16 See Global Trends, Epidemic Curve trajectory Classification, WHO, as reported at https://covid.cdc.gov/covid-data-
tracker/#global-trends (last visited July 28, 2021).
17 Low/Moderate incidence describes <50 cases per 100,000 people during the past 7 days. Increasing or Decreasing
incidence is based on the percentage change in the number of cases reported in the past 7 days compared to the 7 days prior
to that (Increasing: >0% change, Decreasing: <0% change).
18 Determination that a Public Health Emergency Exists, U.S. Department of Health and Human Services (Jan. 31, 2020),
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last visited July 21, 2021). The public
health emergency determination has been subsequently renewed at 90-day intervals, most recently on July 28, 2021. See
https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-19July2021.aspx (last visited July 28, 2021).
19 The President issued proclamations suspending entry into the United States of immigrants or nonimmigrants who were
physically present within a number of countries during the 14-day period preceding their entry or attempted entry into the
U.S. See Proclamation 9984 (Jan. 31, 2020); Proclamation 9992 (Feb. 28, 2020); Proclamation 10143 (Jan. 25, 2021); and
Proclamation 10199 (Apr. 30, 2021). Since March 2020, Canada and Mexico have joined with the U.S. to restrict non-
essential travel along land borders to prevent the introduction and spread of the virus that causes COVID-19; these
restrictions are in place until at least August 21, 2021. Notification of Temporary Travel Restrictions Applicable to Land
Ports of Entry and Ferries Service Between the U.S. and Canada, 86 Fed. Reg. 38556 (July 22, 2021); Notification of
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efforts, including physical distancing and mask-wearing.20 Recent concerns regarding the spread of the
Delta variant prompted CDC to release updated guidance calling for vaccinated persons to wear a mask
indoors in public when in an area of substantial or high transmission.21 Furthermore, CDC recommends
that all individuals, including those fully vaccinated, continue to wear a well-fitted face mask in
correctional and detention facilities.22
B.
Public Health Factors Related to COVID-19
As directed by Executive Order,23 CDC conducted a comprehensive reassessment of the October
Order to determine whether the suspension of the right to introduce certain persons into the United
States remains necessary in light of the current circumstances, including the evolving understanding of
the epidemiology of COVID-19 variants and available mitigation measures including testing and
vaccination.24 In conducting this reassessment, CDC examined a number of public health factors, and
evaluated how these factors impact POE and U.S. Border Patrol stations and the personnel and
noncitizens in those facilities. CDC also scrutinized whether the potential impacts varied by category of
noncitizen: SA, FMU, and UC. In carrying out its reassessment, CDC evaluated the following public
health factors: (1) the manner of COVID-19 transmission, including asymptomatic and pre-symptomatic
transmission; (2) the emerging variants of the SARS-CoV-2 virus; (3) the risks specific to the type of
facility or congregate setting; (4) the availability of testing and vaccines and the applicability of other
mitigation efforts; and (5) the impact on U.S. communities and healthcare resources. CDC views this
public health reassessment as setting forth a roadmap toward the safe resumption of normal processing
of arriving noncitizens, taking into account COVID-19 concerns and immigration facilities’ ability to
implement mitigation measures.
Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the U.S. and Mexico, 86 Fed.
Reg. 38554 (July 22, 2021). CDC has also issued orders to mitigate risk of further introducing and spreading SARS CoV-2
and its variants into the United States. See Framework for Conditional Sailing and Initial Phase COVID-19 Testing
Requirements for Protection of Crew, 85 Fed. Reg. 70153 (Nov. 4, 2020) (outlining the process for the phased resumption of
cruise ship passenger operations); Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of
Recovery from COVID-19 for all Airline or Other Aircraft Passengers Arriving into the U.S. from Any Foreign Country, 86
Fed. Reg. 7387 (Jan. 28, 2021); and COVID-19 Travel Recommendations by Destination, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html#travel-1 (last updated July
26, 2021) (COVID-19-related travel recommendations, including 62 Level 4 Travel Health Notices for countries with very
high COVID-19 rates).
20 CDC’s Order requiring the wearing of face masks by travelers while on a conveyance entering, traveling within, or
departing the United States and in U.S. transportation hubs remains in place for all travelers at indoor settings on public
transportation conveyances and at transportation hubs, regardless of vaccination. Requirement for Persons to Wear Masks
While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025 (Feb. 3, 2021). See Requirement for Face Masks on
Public Transportation Conveyances and at Transportation Hubs, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html (last updated June 10, 2021).
21 Supra note 15 (CDC also recommends fully vaccinated persons consider wearing a mask regardless of transmission level if
they or someone in their household is immunocompromised or at increased risk for severe disease, or if someone in their
household is unvaccinated (including children currently ineligible for vaccination)); see also infra page 11, section 5
(discussion of “high” and “substantial transmission”).
22 Interim Public Health Recommendations for Fully Vaccinated People, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html (last updated May 28, 2021).
23 Exec. Order 14010, “Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage
Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the
United States Border,” 86 Fed. Reg. 8267 (Feb. 2, 2021).
24 CDC’s reassessment of the public health situation with respect to covered noncitizens and border facilities relies upon
information and data provided by DHS, CBP, and HHS’ Office of Refugee Resettlement, including information regarding
those entities’ policies and practices.
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1.
Manner of COVID-19 Transmission
SARS-CoV-2, the virus that causes COVID-19, spreads mainly from person-to-person
through respiratory fluids released during exhalation, such as when an infected person coughs,
sneezes, or talks. Exposure to these respiratory fluids occurs in three principal ways: (1) inhalation of
very fine respiratory droplets and aerosol particles, (2) deposition of respiratory droplets and particles
on exposed mucous membranes in the mouth, nose, or eye by direct splashes and sprays, and (3)
touching mucous membranes with hands that have been soiled either directly by virus-containing
respiratory fluids or indirectly by touching surfaces with virus on them.25 Spread is more likely when
people are in close contact with one another (within about 6 feet), especially in crowded or poorly
ventilated indoor settings. Unvaccinated persons with asymptomatic and pre-symptomatic infection
are significant contributors to community SARS-CoV-2 transmission and occurrence of COVID-19.26
Asymptomatic cases are currently believed to represent roughly 30% of all COVID-19 infections and
the infectiousness of asymptomatic individuals is believed to be about 75% of the infectiousness of
symptomatic individuals. CDC’s current best estimate is that 50% of infections are transmitted prior
to symptom onset (pre-symptomatic transmission).27 Although rare, as discussed below, breakthrough
infections may occur in vaccinated individuals. Due to the variety of source of spread – transmission
by asymptomatic, pre-symptomatic, symptomatic, and vaccinated individuals – testing is critical to
identify those infected with COVID-19.
Among those who are not vaccinated, serious COVID-19 illness necessitating treatment occurs
with greater frequency in older adults and those with certain pre-existing conditions.28 Although
children can be infected with SARS-CoV-2, get sick from COVID-19, and spread the virus to others,
when compared with adults, children and adolescents who have COVID-19 are more commonly
asymptomatic or have mild, non-specific symptoms. Children are less likely to develop severe illness or
die from COVID-19.29 They typically present with mild symptoms, if any, and have a good prognosis,
recovering within one to two weeks after disease onset.30

25 Scientific Brief: SARS-CoV-2 Transmission, Centers for Disease Control and Prevention (May 7, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html; Science Brief: SARS-CoV-
2 and Surface (Fomite) Transmission for Indoor Community Environments, Centers for Disease Control and Prevention (Apr.
5, 2021), https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html.
26 Moghadas SM, Fitzpatrick MC, Sah P, et al. The implications of silent transmission for the control of COVID-19
outbreaks. Proc Natl Acad Sci U S A. 2020;117(30):17513-17515.10.1073/pnas.2008373117, available at
https://www.ncbi.nlm.nih.gov/pubmed/32632012; Johansson MA, Quandelacy TM, Kada S, et al. SARS-CoV-2
Transmission From People Without COVID-19 Symptoms. Johansson MA, et al. JAMA Netw Open. 2021
January4;4(1):e2035057. doi: 10.1001/jamanetworkopen.2020.35057.
27 COVID-19 Pandemic Planning Scenarios, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-scenarios.html (last visited July 28, 2021).
28 People at Increased Risk and Other People Who Need to Take Extra Precautions, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last updated Apr. 20, 2021).
29 Science Brief: Transmission of SARS-CoV-2 in K-12 Schools and Early Care and Education Programs – Updated, Centers
for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/science/science-
briefs/transmission_k_12_schools.html (last updated July 9, 2021).
30 See Leeb RT, Price S, Sliwa S, et al. COVID-19 Trends Among School-Aged Children — United States, March 1–
September 19, 2020. MMWR Morb Mortal Wkly Rep 2020;69:1410–1415. DOI:
http://dx.doi.org/10.15585/mmwr.mm6939e2; Leidman E, Duca LM, Omura JD, Proia K, Stephens JW, Sauber-Schatz EK.
COVID-19 Trends Among Persons Aged 0–24 Years — United States, March 1–December 12, 2020. MMWR Morb Mortal
Wkly Rep 2021;70:88–94. DOI: http://dx.doi.org/10.15585/mmwr.mm7003e1; Rankin DA, Talj R, Howard LM, Halasa NB.
Epidemiologic trends and characteristics of SARS-CoV-2 infections among children in the United States. Curr Opin Pediatr.
2021 Feb 1;33(1):114-121. doi: 10.1097/MOP.0000000000000971. PMID: 33278112; PMCID: PMC8011299; and
Castagnoli R, Votto M, Licari A, et al. Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) Infection in

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2.
Emerging Variants of the SARS-CoV-2 Virus
Like all viruses, SARS-CoV-2 constantly changes through mutation as it circulates, resulting in
new virus variants over time.31 Unchecked transmission of SARS-CoV-2 may result in increased viral
mutations and the emergence of new variants. New variants of SARS-CoV-2 have emerged globally,32
several of which have been identified as variants of concern,33 including the Alpha, Beta, Gamma, and
Delta variants. These variants of concern have evidence of an increase in transmissibility and more
severe disease, which may lead to higher incidence, hospitalization, and death rates among exposed
persons.34 Furthermore, findings suggest variants may reduce levels of neutralization by antibodies
generated during previous infection or vaccination, resulting in reduced effectiveness of treatments or
vaccines, or increased diagnostic detection failures.35 The ultimate concern is a variant that substantially
decreases the effectiveness of available vaccines against severe or deadly disease.
Currently, the Delta variant is the predominant SARS-CoV-2 strain circulating in the United
States, accounting for over 82% of cases as of July 17, 2021.36 Of critical significance for this Order, the
Delta variant has demonstrated increased levels of transmissibility among unvaccinated persons and
might increase the risk of vaccine breakthrough infections in the absence of other mitigation strategies. 37
For the unvaccinated, Delta remains a formidable threat and rates of infection of the Delta variant are
growing more rapidly in U.S. counties with lower vaccination rates.38 Available evidence suggests all
three vaccines currently authorized for emergency use in the United States provide significant protection
against variants circulating in the United States.39 However, a small proportion of people who are fully
vaccinated may become infected with the Delta variant (known as breakthrough infection); emerging
evidence suggests that fully vaccinated persons who do become infected with the Delta variant are at
risk for transmitting it to others.40

Children and Adolescents: A Systematic Review. JAMA Pediatr. 2020;174(9):882–889.
doi:10.1001/jamapediatrics.2020.1467.
31 About Variants of the Virus that Causes COVID-19, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html (last updated Apr. 2, 2021).
32 Abdool Karim SS, de Oliveira T. New SARS-CoV-2 Variants - Clinical, Public Health, and Vaccine Implications
[published online ahead of print, 2021 Mar 24]. N Engl J Med. 2021;10.1056/NEJMc2100362. doi:10.1056/NEJMc2100362
33 Id.
34 Dougherty K, Mannell M, Naqvi O, Matson D, Stone J. SARS-CoV-2 B.1.617.2 (Delta) Variant COVID-19 Outbreak
Associated with a Gymnastics Facility — Oklahoma, April–May 2021. MMWR Morb Mortal Wkly Rep 2021;70:1004–
1007. DOI: http://dx.doi.org/10.15585/mmwr.mm7028e2 (describing a B.1.617.2 (Delta) Variant COVID-19 outbreak
associated with a gymnastics facility and finding that the Delta variant is highly transmissible in indoor sports settings and
households, which might lead to increased incidence rates).
35 SARS-CoV-2 Variant Classifications and Definitions, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html#Concern (last updated June 29, 2021).
36 Variant Proportions, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#variant-
proportions (citing data for the two-week interval ending July 17, 2021).
37 About Variants of the Virus that Causes COVID-19, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last updated June 28, 2021).
38 COVID Data Tracker Weekly Review, Interpretive Summary for July 23, 2021, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html (attributing rising numbers of
COVID-19 cases in nearly 90% of U.S. jurisdictions to the rapid spread of the Delta variant).
39 Science Brief: COVID-19 Vaccines and Vaccination, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinated-people.html (last updated May 27,
2021). Other vaccines, particularly the one manufactured by AstraZeneca, show reduced efficacy against infection with
certain variants but may still protect against severe disease; at the time of the issuance of this Order, the FDA has not
authorized the AstraZeneca COVID-19 vaccine for use in the United States.
40 Supra note 15.
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CDC continues to monitor the situation and may adapt recommendations based on the
epidemiology of variants of concern. Given the transmissibility of variant strains and the continued
emergence of new variants, ongoing monitoring of vaccine effectiveness is needed to identify mutations
that could render vaccines most commonly used in the United States less effective against more
transmissible variants.41
3.
Risks of COVID-19 Transmission Specific to Congregate Settings
Given the manner of transmission, including asymptomatic or pre-symptomatic transmission,
the risk of spreading COVID-19 is particularly pronounced among those who are unvaccinated,
partially vaccinated, or vaccinated with less effective vaccines.42 This risk is acutely present in
congregate settings, where a number of people reside, meet, or gather in close proximity for either a
limited or extended period of time.43 Facilities must often carefully weigh the risks of increased
transmission not only in the facilities, but also in the local community, due to secondary transmission.
These congregate facilities must also consider individual facility and community characteristics (e.g.,
ability to maintain physical distancing, compliance with universal mask-use policies, ability to
properly ventilate, proportion of staff and occupants vaccinated, numbers of those who are at
increased risk for severe illness from COVID-19, the availability of resources for broad-based
vaccination, testing, and outbreak response, and level of community transmission).44
Congregate settings, particularly detention facilities with limited ability to provide adequate
physical distancing and cohorting, have a heightened risk of COVID-19 outbreaks.45 CDC has long
recognized the risks specific to such settings, including homeless shelters, detention centers, schools,
and workplaces and has provided a number of guidance documents to address the concerns in such
spaces. Specifically, CDC developed interim guidance for law enforcement agencies that have
custodial authority for detained populations, including civil and pre-trial detention settings. Among
the recommendations are physical distancing strategies, isolation of individuals with confirmed or
suspected COVID-19, quarantine of close contacts, cohorting of individuals when space is limited,
testing, healthcare evaluations for individuals with suspected COVID-19, clinical care as needed for
41 See About Variants of the Virus that Causes COVID-19, supra note 37.
42 Vaccines with effectiveness of less than 50% against wildtype strains of COVID-19 are considered less effective.
43 Notably, COVID-19 has disproportionately affected persons in congregate settings and high-density workplaces.
Studies conducted prior to the availability of vaccines showed that a single introduction of SARS-CoV-2 into a facility
can result in a widespread outbreak. Lehnertz NB, Wang X, Garfin J, Taylor J, Zipprich J, VonBank B, et al.
Transmission Dynamics of Severe Acute Respiratory Syndrome Coronavirus 2 in High-Density Settings, Minnesota,
USA, March–June 2020. Emerg Infect Dis. 2021;27(8):2052-2063. https://doi.org/10.3201/eid2708.204838. Whole
genome sequencing of samples taken following an outbreak at a correctional facility demonstrated that 92.2% of the
samples taken from patients were genetically related, indicating that a single case had likely led to the infection of 48
individuals. Similarly, phylogenetic analysis established that 29.6% of cases from an outbreak at a second correctional
facility were closely related and genetically identical, indicating that the index case had led to the infection of
approximately 60 others.
44 See Recommendations for Quarantine Duration in Correctional Facilities, Centers for Disease Control and Prevention,,
https://www.cdc.gov/coronavirus/2019-ncov/community/quarantine-duration-correctional-facilities.html (last visited July 28,
2021).
45 Since March 31, 2020, the U.S. Federal Bureau of Prisons and state departments of corrections have together recorded
416,854 COVID-19 cases among residents and 108,945 cases among staff in correctional and detention facilities, resulting in
2,911 deaths. Confirmed COVID-19 Cases and Deaths in U.S. Correctional and Detention Facilities by State, Centers for
Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#correctional-facilities (last visited July 28, 2021).
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individuals with confirmed or suspected COVID-19, and addressing specific considerations for
people who are at increased risk for severe illness.46
Vaccine coverage in congregate settings varies and infection risk is greater where there is
sustained community transmission.47 In light of this, CDC strongly recommends vaccination against
COVID-19 for everyone who is eligible, including people who are incarcerated or detained and staff
at correctional and detention facilities.48 CDC is discussing additional guidance with DHS,
highlighting the key metrics to consider before modifying COVID-19 prevention and mitigation
measures in facilities that hold or detain migrants.49
4.
Availability of Testing, Vaccines, and Other Mitigation Measures
The potential for asymptomatic and pre-symptomatic transmission makes testing an essential
part of COVID-19 mitigation protocols. With the additional testing capacity available through antigen
tests, rapid testing can be implemented to identify infected persons so they can be isolated until they no
longer pose a risk of spreading infections and their close contacts can be identified and quarantined.50
Testing is especially important in congregate settings where even a single asymptomatic case can trigger
an outbreak that may quickly exceed a facility’s capacity to isolate and quarantine residents.
Furthermore, if personnel are infected or exposed, the number of available staff members may be
reduced, further stressing facility operations. Testing facility residents and personnel can help facilitate
prompt mitigation actions.
COVID-19 vaccines are now widely available in the United States, and vaccination is
recommended for all people 12 years of age and up. Three COVID-19 vaccines are currently authorized
by the U.S. Food and Drug Administration (FDA) for emergency use: two mRNA vaccines (produced
by Pfizer-BioNTech and Moderna) and one viral vector vaccine (produced by Johnson &
Johnson/Janssen), each of which has been determined to be safe and effective against COVID-19. As of
July 28, 2021, over 163 million people in the United States (57.6% of the population 12 years or older)
have been fully vaccinated and over 189 million people in the United States (66.8% of the population 12
years or older) have received at least one dose.51 After substantial vaccine uptake in the first months of
46 See Guidance for Correctional & Detention Facilities, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html (last
updated June 9, 2021).
47 Falk A, Benda A, Falk P, Steffen S, Wallace Z, Høeg TB. COVID-19 Cases and Transmission in 17 K–12 Schools —
Wood County, Wisconsin, August 31–November 29, 2020. MMWR Morb Mortal Wkly Rep 2021;70:136–140. DOI:
http://dx.doi.org/10.15585/mmwr.mm7004e3. See also Link-Gelles R, DellaGrotta AL, Molina C, et al. Limited Secondary
Transmission of SARS-CoV-2 in Child Care Programs — Rhode Island, June 1–July 31, 2020. MMWR Morb Mortal Wkly
Rep 2020;69:1170–1172. DOI: http://dx.doi.org/10.15585/mmwr.mm6934e2.
48 COVID-19 Vaccine FAQs in Correctional and Detention Centers, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/vaccine-faqs.html (last updated June 1, 2021).
49 See CDC memo to DHS “Considerations for modifying COVID-19 prevention and mitigation measures in Department of
Homeland Security migrant holding facilities in response to declining transmission,” Centers for Disease Control and
Prevention (last updated June 11, 2021).
50 See COVID-19 Testing and Diagnostics Working Group (TDWG). U.S. Department of Health and Human Services,
https://www.hhs.gov/coronavirus/testing/testing-diagnostics-working-group/index.html (last visited July 28, 2021) (defining
the role of the COVID-19 TDWG, which develops testing-related guidance and provides targeted investments to expand the
available testing supply and maximize testing capacity).
51 COVID-19 Vaccinations in the United States, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-
data-tracker/#vaccinations (last updated July 28, 2021).
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2021, however, vaccination uptake has plateaued, particularly in those under the age of 65 years. 52 The
combination of reduced vaccine uptake and the extreme transmissibility of the Delta variant has resulted
in rising numbers of COVID-19 cases, primarily and disproportionately affecting the unvaccinated
population.
The availability of COVID-19 vaccines is rising globally but still dwarfed by the rates of
vaccination in the United States and a handful of other countries.53 Countries of origin for the majority
of incoming covered noncitizens have markedly lower vaccination rates.54 Given this, the increased
movement of typically unvaccinated covered noncitizens into the United States presents a heightened
risk of morbidity and mortality to this population due to the congregate holding facilities at the border
and the practical constraints on implementation of mitigation measures in such facilities. Outbreaks in
these settings increase the serious danger of further introduction, transmission, and spread of COVID-19
and variants into the country.
CDC is aware of a rising number of breakthrough SARS-CoV-2 infections55 in vaccinated
individuals; even without variants of concern, more vaccine breakthroughs are to be expected due to
the rising number of vaccinated individuals. While the vaccines currently authorized by the FDA are
successful in mitigating severe illness from the highly transmissible Delta variant, infection and even
mild to moderate illness has been documented in a small percentage of vaccinated persons. 56 The
emergence of these more transmissible variants increases the urgency to expand vaccination coverage
for everyone and especially those in densely populated congregate settings.57 Public health agencies
and other organizations must collaboratively monitor the status of the pandemic in their communities.
As widespread vaccination efforts continue, ongoing use of the full panoply of mitigation measures is
nevertheless especially important in congregate settings and remains key to slowing introduction,
transmission, and spread of COVID-19.
52 Diesel J, Sterrett N, Dasgupta S, et al. COVID-19 Vaccination Coverage Among Adults — United States, December 14,
2020–May 22, 2021. MMWR Morb Mortal Wkly Rep 2021;70: 922–927. DOI:
http://dx.doi.org/10.15585/mmwr.mm7025e1. The study found that the lowest vaccination coverage and the intent to be
vaccinated among adults aged 18–24 years, non-Hispanic Black adults, and individuals with less education, no insurance, and
lower household incomes. Concerns about vaccine safety and effectiveness were commonly cited barriers to vaccination. See
also supra note 15 (finding that vaccine uptake has slowed nationally with wide variation in coverage by state (range =
33.9%–67.2%) and by county (range = 8.8%–89.0%)).
53 See “PAHO Director calls for fair and broad access to COVID-19 vaccines for Latin America and the Caribbean,” Pan
American Health Organization, https://www.paho.org/en/news/7-7-2021-paho-director-calls-fair-and-broad-access-covid-19-
vaccines-latin-america-and (July 7, 2021) (noting the discrepancies in vaccine availability coverage among North, Central,
and South American countries).
54 Thus far in 2021, Ecuador, El Salvador, Guatemala, Honduras, and Mexico constitute the top five countries of origin for
covered noncitizens. Rates of vaccination for each country are as follows: Ecuador: 11% fully vaccinated, 30% only partly
vaccinated; El Salvador: 22% fully vaccinated, 17% only partly vaccinated; Guatemala: 1.6% fully vaccinated, 5.3% only
partly vaccinated; Honduras: 1.8% fully vaccinated, 12% only partly vaccinated; Mexico: 18% fully vaccinated, 14% only
partly vaccinated, https://ourworldindata.org/covid-vaccinations (last visited July 24, 2021).
55 A vaccine breakthrough infection is defined as the detection of SARS-CoV-2 RNA or antigen in a respiratory specimen
-authorized COVID-19 vaccine. COVID-
19 Vaccine Breakthrough Infections Reported to CDC — United States, January 1–April 30, 2021. MMWR Morb Mortal
Wkly Rep 2021;70:792–793. DOI: http://dx.doi.org/10.15585/mmwr.mm7021e3.
56 COVID-19 Vaccine Breakthrough Case Investigation and Reporting, Centers for Disease Control and Prevention,
https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-cases.html (last updated July 15, 2021).
57 Supra at note 55.
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5.
Impact on U.S. Communities and Healthcare Resources
COVID-19 cases are on the rise in nearly 90% of U.S. jurisdictions, and multiple outbreaks are
occurring in parts of the country that have low vaccination coverage. A person’s risk for SARS-CoV-2
infection is directly related to the risk for exposure to infectious persons, which is largely determined by
the extent of SARS-CoV-2 circulation in the surrounding community. Emerging evidence regarding the
Delta variant finds that it is more than two times as transmissible as the original strains of SARS-CoV-2
circulating at the start of the pandemic. In light of this, CDC recommends assessing the level of
community transmission using, at a minimum, two metrics: new COVID-19 cases per 100,000 persons
in the last 7 days and percentage of positive SARS-CoV-2 diagnostic nucleic acid amplification tests in
the last 7 days. For each of these metrics, CDC classifies transmission values as low, moderate,
substantial, or high. At the time of this Order’s issuance, over 70% of the U.S. counties along the U.S.-
Mexico border were classified as experiencing high or substantial levels of community transmission. 58
In areas of substantial or high transmission, CDC recommends community leaders encourage
vaccination and universal masking in indoor public spaces in addition to other layered prevention
strategies to prevent further spread.
Between March and June 2021, rates of hospitalization due to COVID-19 decreased
dramatically, easing long endured pressures on the U.S. healthcare system. However, in July 2021, with
the rise of the Delta variant, the seven-day average for new hospital admissions in the United States
increased 35.8% over the prior seven-day period.59 Rates of hospitalization are rising most sharply in
areas with low vaccination coverage.60 CDC recommends continuous monitoring of the availability of
staffed inpatient and intensive care unit beds, as data on usage of clinical care resources to manage
patients with COVID-19 reflect underlying community disease incidence. This information can signal
when urgent implementation of layered prevention strategies might be necessary to prevent overloading
local and regional health care systems. Strains on critical care capacity can increase COVID-19
mortality while decreasing the availability and use of health care resources for non-COVID-19 related
medical care.61 Increased hospital admissions are forecasted in the coming weeks as the Delta variant
continues to predominate.62
The rapid spread of the highly transmissible Delta variant is leading to worrisome trends in
healthcare and community resources. Signs of stress are already present in the southern regions of the

58 Of the 22 U.S. counties along the U.S.-Mexico border, 13 counties are experiencing high levels of community transmission
(San Diego County, CA; Hidalgo County, NM; Presidio County, TX; Brewster County, TX; Terrell County, TX; Val Verde
County, TX; Kinney County, TX; Maverick County, TX; Webb County, TX; Zapata County, TX; Starr County, TX; Hidalgo
County, TX; and Cameron County, TX) and four counties are experiencing substantial levels of community transmission
(Imperial County, CA; Pima County, AZ; Santa Cruz County, AZ; and Luna County, NM;). Five counties are experiencing
moderate levels of community transmission (Yuma County, AZ; Cochise County, AZ; Dona Ana County, NM; El Paso
County, TX; and Hudspeth County, TX). No counties along the border are experiencing low levels of community
transmission. COVID-19 Integrated County View, Centers for Disease Control and Prevention, https://covid.cdc.gov/covid-
data-tracker/#county-view (last updated July 28, 2021).
59 COVID Data Tracker Weekly Review, Interpretive Summary for July 16, 2021, Centers for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/07162021.html (last visited July
28, 2021).
60 COVID Data Tracker Weekly Review, Interpretive Summary for July 9, 2021, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/07092021.html.
61 Supra note 15.
62 COVID-19 Forecasts: Hospitalizations, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/science/forecasting/hospitalizations-forecasts.html (last updated July 21, 2021).
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United States.63 Ultimately, the flow of migration directly impacts not only border communities and
regions, but also destination communities and the healthcare resources of both. In light of this, the
totality of the U.S. community transmission, health system capacity, and public health capacity, as well
as local capacity to implement mitigation protocols, are important considerations when reassessing the
need for this Order.64
II. Public Health Reassessment
A.
Immigration Processing and Public Health Impacts
Noncitizens arriving in the United States who lack proper travel documents, whose entry is
otherwise contrary to law, or who are apprehended at or near the border seeking to unlawfully enter the
United States between POE are normally subject to initial immigration processing by CBP in POE
facilities and U.S. Border Patrol stations. Absent CDC’s issuance of an order under 42 U.S.C. § 265
directing otherwise, immigration processing takes place pursuant to Title 8 of the U.S. Code. Although
some number of inadmissible noncitizens present at POE, the vast majority are encountered by CBP
between POE.65 Upon such encounters, Border Patrol agents conduct an initial field assessment and
transport the individuals to a CBP facility for intake processing.66
CBP facilities are designed to provide this short-term intake processing and are thus space-
constrained.67 While undergoing intake processing under Title 8 at CBP facilities, noncitizens are
regularly held in close proximity to one another anywhere from several hours to several days.
Depending on the outcome of intake processing, a noncitizen is generally referred to the DHS’
Immigration and Customs Enforcement (ICE), where they are often subject to longer-term detention 68.69
Compared to CBP facilities, ICE facilities have space allocations similar to traditional long-term
correctional facilities. Still, during migratory surges, capacity constraints hinder CBP and ICE
operations and facilities alike. If downstream ICE operations and facilities reach capacity limits, ICE
may be unable to take custody of additional noncitizens in a timely manner. When this movement of
noncitizens from CBP to ICE custody is impeded or delayed, noncitizens may remain in CBP’s densely
populated, short-term holding facilities for much longer periods. Of note, the United States is currently
experiencing such a migratory surge of noncitizens attempting to enter the country at and between POE
63 See COVID Data Tracker: New Hospital Admissions, https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions
(last updated July 22, 2021) (showing HHS Regions 4, 6, and 9, encompassing all southern states, experiencing increased
rates of new admissions of COVID-19-confirmed patients).
64 See Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, Centers for Disease
Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/community-mitigation.html (last visited
May 6, 2021).
65 Fiscal year to date, 96% (1,076,242 of 1,119,204) of encounters of noncitizens occurred between POE.
66 CBP facilities include POE, U.S. Border Patrol stations, and facilities managed by the Office of Field Operations.
67 CBP facilities were designed for the immediate processing of persons and are statutorily designated as short-term (less than
72 hours) holding facilities. 6 U.S.C. § 211(m).
68 FMU transferred to ICE custody are generally held at a Family Staging Center (FSC). Following intake processing, UC are
referred to the Office of Refugee Resettlement (ORR) within HHS’ Administration for Children and Families (ACF) for care.
69 While CBP policies regarding transfer and release decisions are the same across the Southwest Border, implementation
varies based on local CBP capacity, and ICE capacity.
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at the southern border.70 DHS has already recorded more encounters this fiscal year to date than the
approximate 977,000 encounters in the whole of FY 2019.71
CBP has implemented a variety of mitigation efforts to prevent the spread of COVID-19 in
POE and U.S. Border Patrol facilities based on the infection prevention strategy referred to as the
hierarchy of controls.72 CBP has invested in engineering upgrades, such as installing plexiglass
dividers in facilities where physical distancing is not possible and enhancing ventilation systems. All
CBP facilities adhere to CDC guidance for cleaning and disinfection. Surgical masks are provided to
all persons in custody and are changed at least daily and if or when they become wet or soiled.
Personal protective equipment (PPE) and guidance are regularly provided to CBP personnel.
Recognizing the value of vaccination, CBP is encouraging vaccination among its workforce. All
noncitizens brought into CBP custody are subject to health intake interviews, including COVID-19
screening questions and temperature checks. If a noncitizen in custody displays symptoms of COVID-
19 or has a known exposure, CBP facilitates referral to the local healthcare system for testing. Finally,
in the event CBP decides to release a noncitizen prior to removal proceedings, the agency has
coordinated with local governments and non-governmental organizations to arrange COVID-19
testing at release.73
In addition to these mitigation measures, enhanced physical distancing and cohorting remain
key to preventing transmission and spread of COVID-19, particularly in congregate settings. To
address this, as the pandemic emerged, CBP greatly reduced capacity in their holding facilities. While
U.S. Border Patrol facilities along the southern border currently have a non-pandemic total holding
capacity of 14,553 individuals, implementation of mitigation measures led to a 50-75% reduction in
holding capacity depending on the design of a given facility, resulting in COVID-constrained holding
capacity of 4,706.74 However, the current surge has caused CBP to exceed COVID-constrained
capacity and routinely exceed its non-COVID capacity.75 From July 3 to July 24, 2021, CBP
encountered an average of 3,573 SA and 2,479 FMU daily, over a 21-day period, even with the CDC
Order in place. This extreme population density and the resulting increased time spent in custody by
noncitizens presents a serious risk of increased COVID-19 transmission in CBP facilities.
CBP faces unique challenges in implementing certain COVID-19 mitigation measures. All
individuals encountered by U.S. Border Patrol must be processed in CBP facilities. Not only does this
involve close and often continuing contact between CBP personnel and noncitizens, but CBP is further
constrained by requirements separate noncitizens within its holding facilities according to specific
70 According to data from DHS, encounters at the southern border have been rising since April 2020 due to several factors,
including ongoing violence, insecurity, and famine in the Northern Triangle countries of Central America (El Salvador,
Honduras, Guatemala).
71 Southwest Land Border Encounters, U.S. Customs and Border Protection, available at
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited July 28, 2021).
72 Hierarchy of Controls, Centers for Disease Control and Prevention, available at
https://www.cdc.gov/niosh/topics/hierarchy/default.html (last visited July 6, 2021). The hierarchy of controls is used as a
means of determining how to implement feasible and effective control solutions. The hierarchy is outlined as: (1) Elimination
(physically remove the hazard); (2) Substitution (replace the hazard); (3) Engineering Controls (isolate people from the
hazard); (4) Administrative Controls (change the way people work); and (5) PPE (protect people with Personal Protective
Equipment).
73 This is also true of ICE facilities.
74 Similarly, the operational holding capacity for SA in ICE facilities was reduced by 30% from a regular total capacity of
56,888 beds to 39,821 beds.
75 Non-COVID-19 holding capacity was exceeded as recently as July 25, 2021.
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permutations.76 These cohorting requirements significantly complicate CBP’s ability to address COVID-
19-related risks, as CBP facility capacity to accommodate COVID-19 mitigation protocols may not
always align with the makeup of the incoming population of noncitizens and the categorical separations
required of DHS.
Immigration Processing under Title 8 of the U.S. Code
The vast majority of noncitizens attempting to enter the United States without proper travel
documents are SA; SA account for 68% of overall CBP encounters this fiscal year as of July 26, 2021.
Under normal Title 8 immigration processes, SA are transferred to ICE custody pending removal
proceedings. As noted above, absent expulsions directed by an order under 42 U.S.C. § 265, SA
presenting at POE or attempting entry between POE would be processed and held in CBP facilities
while awaiting transfer to ICE. Generally, CBP only releases SA into U.S. communities as a last resort,
due to severe overcrowding and when all possible detention options have been explored.
A smaller percentage, 23%, of noncitizens encountered by CBP are members of an FMU.77 As
with SA, CBP has limited capacity to hold FMU. Under Title 8, due to court-ordered restrictions that
largely prohibit the long-term detention of families, FMU are generally released from DHS custody
pending removal proceedings. Prior to release, some FMU are transferred from CBP custody to Family
Staging Centers (FSC) operated by ICE. Only a limited number of FMU may be held in an FSC, and
time in custody for an FMU is generally about 2-3 days before being released. FSC capacity is further
limited by COVID-19 mitigation protocols.78
Releasing FMU to communities necessitates robust testing, vaccination where possible, and
careful attention to consequence management (e.g., facilities for isolation and quarantine). DHS has
partnered with state and local agencies and non-governmental organizations to facilitate COVID-19
testing of FMU upon release from CBP custody. Pursuant to these arrangements, CBP generally
transports FMU to release locations where partner agencies and organizations are on-site to provide
testing and facilitate consequence management. Although the implementing partners and their capacities
(including for consequence management such as housing) vary, the objectives are constant. These
resources, however, are limited. They are already stretched thin, and certainly not available for all FMU
who would be processed under Title 8 in the absence of an order issued under 42 U.S.C. § 265. DHS has
committed to supporting and, where possible, expanding these efforts, including exploring the
incorporation of vaccination into this model. CDC strongly supports DHS efforts that include broad-
based testing and vaccination.
Immigration Processing with an Order under 42 U.S.C. 265
Following the issuance of the March and October Orders, covered noncitizens apprehended at or
near U.S. borders, regardless of their country of origin, generally were expelled to Mexico or Canada,
whichever they entered from, via the nearest POE, or to their country of origin. Where possible, SA and

76 For example, criminal cases must be held separately from administrative cases, SA must be separated by gender identity,
FMU and UC must be separated from SA, and all vulnerable individuals must be protected from harm.
77 Thus far this fiscal year, as of July 26, 2021.
78 The total capacity for these FSCs is 3,230. However, due to COVID-19 mitigation protocols and family composition
limitations, current operational capacity for the FSCs is approximately 2,400. In July 2021, due to an influx of single adults at
the SWB, ICE ceased intake of family units at one of the FSCs and began to transition the facility to hold single adults. With
this transition, the remaining COVID-limited FSC capacity for family units is approximately 1,800. Additionally, ICE has
procured 1,200 additional beds at Emergency Family Staging Centers (EFSCs); this bed space is not limited by family
composition or COVID-19.
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FMU eligible for expulsion based on the March and October Orders have been processed pursuant to the
Title 42 authority, unless a case-by-case exception was made by DHS.79
Even with the March and October Orders in place, a significant percentage of FMU were unable
to be expelled pursuant to the order, given a range of factors, including, most notably, restrictions
imposed by foreign governments.80 For example, the Mexican government has placed certain
nationality- and demographic-specific restrictions on the individuals it will accept for return via the Title
42 expulsion process. With limited exceptions, the Mexican government will only accept the return of
Mexican and Northern Triangle nationals. Moreover, along sections of the border, Mexican officials
refuse to accept the return of any non-Mexican family with children under the age of seven, greatly
reducing DHS’ ability to expel FMU. In addition, many countries impose travel requirements, including
COVID-19 testing, consular interviews, and identity verification that can delay repatriation. These
added requirements often make prompt expulsion a practical impossibility. Conversely, DHS continues
to be able to process the majority of SA under Title 42.81 In those cases where Title 42 processing is not
possible, SA and FMU are instead processed pursuant to Title 8. Processing noncitizens and issuing a
Notice to Appear under Title 8 processes takes approximately an hour and a half to two hours per
person. Conversely, processing an individual for expulsion under the CDC order takes roughly 15
minutes and generally happens outdoors.
The March and October Orders permitted noncitizens to be promptly returned to their country of
origin, rather than being transferred to ICE custody or released into the United States, resulting in
noncitizens spending shorter amounts of time in custody at CBP facilities. However, as the number of
noncitizens attempting to enter the United States has surged and as individuals cannot be expelled
pursuant to Title 42 given the restrictions in place, the time in custody at CBP facilities has increased for
SA and FMU, even with the October Order in place. As of July 29, 2021, the current average time in
custody at CBP facilities for SA not subject to expulsion under the October Order is 50 hours. FMU
currently spend an average of 62 hours in CBP custody prior to release or transfer to ICE. If the CDC
Order were not in place, both SA and FMU time in custody would likely increase significantly.
B.
Public Health Assessment of Single Adults and Family Units
Implementation of CDC’s March and October Orders significantly reduced the length of time
covered noncitizen SA and FMU are held in congregate settings at POE and U.S. Border Patrol stations,
as well as in the ICE facilities that subsequently hold noncitizens.82 By reducing congestion in these
facilities, the Orders have helped lessen the introduction, transmission, and spread of COVID-19 among
border facilities and into the United States while also decreasing the risk of exposure to COVID-19 for
79 Some countries have put in place limitations that make expulsion pursuant to Title 42 inapplicable. The October Order
excepted covered noncitizens “who must test negative for COVID-19 before they are expelled to their home country” and
several countries refuse to accept the return of SA and FMU and other individuals unless DHS first secures a negative test
result for each individual to be returned. These noncitizens are thus not covered by the prior Order and thus cannot be
expelled pursuant to Title 42. See 85 Fed. Reg. at 65,807.
80 Only 33% of FMU encountered fiscal year to date have been expelled under Title 42 and this percentage has fallen over
time. In June 2021, only 14% of FMU were expelled under Title 42, an average of approximately 300 per day.
81 Fiscal year to date, 89% of SA have been expelled under Title 42. This percentage has fallen slightly as the constraints on
expelling individuals have increased. In June 2021, 82% of SA were expelled under Title 42, an average of over 3,000 per
day.
82 For example, when processing noncitizens under Title 8, prior to referral to ICE or release into the community, CBP
generally issues the noncitizen a “Notice to Appear” (also called an I-862), which is a charging document that initiates
removal proceedings against the noncitizen and may include a court date or direct the noncitizen to report to an ICE office to
receive a court date.
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DHS personnel and others in the facilities. Implementation of the Orders has mitigated the potential
erosion of DHS operational capacity due to COVID-19 outbreaks. The reduction in the number of SA
and FMU held in these congregate settings continues to be a necessary mitigation measure as DHS
moves towards the resumption of normal border operations.
The availability of testing, vaccination, and other mitigation measures83 at migrant holding
facilities must also be considered. While downstream ICE facilities may have greater ability to provide
these measures, CBP cannot appropriately execute consequence management measures to minimize
spread or transmission of COVID-19 within its facilities. Space constraints, for example, preclude
implementation of cohorting and consequence management such as quarantine and isolation. Covered
noncitizens housed in congregate settings who may be infected with COVID-19 may ultimately increase
community transmission rates in the United States, especially among susceptible populations (i.e., non-
immune, under-vaccinated, and non-vaccinated persons). Mitigation measures, especially testing and
vaccination, must be considered for the noncitizens being held, as well as for facility personnel. On-site
COVID-19 testing for noncitizens at CBP holding facilities is very limited and the majority of testing
takes place off-site. For example, if a noncitizen is transported to a community healthcare facility for
medical care, testing is provided based on local protocols. Once transferred to ICE custody, testing for
SA and FMU is more widely available.
Although COVID-19-related healthcare resources have substantially improved since the October
Order was issued, emerging variants and the potential for a future vaccine-resistant variant mean the
possible impacts on U.S. communities and local healthcare resources in the event of a COVID-19
outbreak at CBP facilities cannot be ignored. The introduction, transmission, and spread of SARS-CoV-
2—including its variants—among covered noncitizens during processing and holding at congregate CBP
settings remain a significant concern to the noncitizens, CBP personnel, as well as the community at
large in light of transmission to unvaccinated individuals and the potential for breakthrough cases. Of
particular note, POE and U.S. Border Patrol stations are ill-equipped to manage an outbreak and these
facilities are heavily reliant on local healthcare systems for the provision of more extensive medical
services to noncitizens.84 Transfers to local healthcare systems for care could strain local or regional
healthcare resources. Reliance on healthcare resources in border and destination communities may
increase the pressure on the U.S. healthcare system and supply chain during the current public health
emergency.85 Of note, hospitalization rates are once again soaring nationally as the Delta variant spreads
and the vaccination rate of the public lags. Ensuring the continued availability of healthcare resources is
a critical component of the federal government’s overall public health response to COVID-19.
Given the nature of COVID-19, there is no zero-risk scenario, particularly in congregate settings
and with variants as transmissible as that of Delta in high circulation in the country. The ongoing
pandemic presents complex and dynamic challenges relating to public health that limit DHS’ ability to
process noncitizens safely under normal Title 8 procedures. Processing a noncitizen under Title 8 can

83 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,
Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
detention/guidance-correctional-detention.html#correctional-facilities (last visited July 28, 2021).
84 See CBP Directive No. 2210-004, U.S. Customs and Border Protection,
https://www.cbp.gov/sites/default/files/assets/documents/2019-Dec/CBP_Final_Medical_Directive_123019.pdf (Dec. 30,
2019). Many of the U.S. Border Patrol stations and POE facilities are located in remote areas and do not have ready access to
local healthcare systems (which typically serve small, rural populations and have limited resources). 85 Fed. Reg. 56424,
56433. See also Abubakar I, Aldridge RW, Devakumar D, et al. The UCL-Lancet Commission on Migration and Health: the
health of a world on the move. Lancet. 2018;392(10164):2606-2654. doi:10.1016/S0140-6736(18)32114-7.
85 See COVID-19 State Profile Report - Combined Set, HealthData.gov, https://healthdata.gov/Community/COVID-19-State-
Profile-Report-Combined-Set/5mth-2h7d (last updated July 28, 2021).
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take up to eight times as long as processing a noncitizen under Title 42. Importantly, longer processing
times result in longer exposure times to a heightened risk of COVID-19 transmission for both
noncitizens and CBP personnel. Amid the ongoing migrant surge, both the COVID-19-reduced capacity
and higher non-COVID holding capacity limits have been exceeded in CBP facilities. Complete
termination of any order under 42 U.S.C. § 265 would increase the number of noncitizens requiring
processing under Title 8, resulting in severe overcrowding and a high risk of COVID-19 transmission
among those held in the facilities and the CBP workforce, ultimately burdening the local healthcare
system.86
All of this is of particular concern as the Delta variant continues to drive an increase in COVID-
19 cases. While scientists learn more about Delta and other emerging variants, rigorous and increased
compliance with public health mitigation strategies is essential to protect public health.87 Reducing the
further introduction, transmission, and spread of these variants and future variants of concern into the
United States is key to defeating COVID-19. CDC has concluded that SA and FMU should continue to
be subject to the Order at this time pending further improvements in the public health situation.
C.
Comparison to Unaccompanied Noncitizen Children
As discussed in the July Exception, UC are differently situated than SA and FMU. The
Government has greater ability to care for UC while implementing appropriate COVID-19 mitigation
measures. ORR has established a robust network of care facilities that provide testing and medical care
and institute COVID-19 mitigation protocols, including vaccination for personnel and eligible UC. In
light of these considerations, there is very low likelihood that processing UC in accordance with existing
Title 8 procedures will result in undue strain on the U.S. healthcare system or healthcare resources.
Moreover, UC released to a vetted sponsor or placed in a temporary or licensed ORR shelter do not pose
a significant level of risk for COVID-19 spread into the community. UC are released only after having
undergone testing, quarantine and/or isolation, and vaccination when possible, and their sponsors are
provided with appropriate medical and public health direction. CDC thus finds that, at this time,88 there
is appropriate infrastructure in place to protect the children, caregivers, and local and destination
communities from elevated risk of COVID-19 transmission. CDC believes the COVID-19-related public
health concerns associated with UC introduction can be adequately addressed without UC being subject
to this Order. As outlined in the July Exception and incorporated herein, CDC is fully excepting UC
from this Order. The number of UC entering the United States is smaller than both the number of SA89
and of FMU. Whereas UC can be excepted from the Order without posing a significant public health
risk, the same is not true of SA and FMU, as described above.
D.
Summary of Findings
Upon review of the various public health factors outlined above and in consideration of the
circumstances at DHS facilities, it is CDC’s assessment that suspending the right to introduce covered
noncitizen SA and FMU who would otherwise be held at POE and U.S. Border Patrol stations remains

86 Throughout the course of the COVID-19 pandemic, CDC has observed numerous outbreaks in similar congregate settings.
See FAQs for Correctional and Detention Facilities, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html (last visited Apr. 15, 2021).
87 About Variants of the Virus that Causes COVID-19, Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html (last updated Apr. 2, 2021).
88 This situation could change based on an increased influx of UC, changes in COVID-19 infection dynamics among UC, or
unforeseen reductions in housing capacity.
89 Note, the total number of SA encounters may include repeat encounters with SA who attempt entry again following
expulsion.
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necessary as the United States continues to combat the COVID-19 public health emergency. In making
this determination, CDC has considered various possible alternatives (including but not limited to
terminating the application of an order under 42 U.S.C. § 265 for some or all SA and FMU, modifying
the availability of exceptions for individual SA and FMU in an order under 42 U.S.C. § 265, and
reissuing an order under 42 U.S.C. § 265 for some or all UC); but for the reasons discussed herein, CDC
finds that the continued suspension of the right to introduce SA and FMU under the terms set forth
herein, combined with the exception for UC, is appropriate at this time. This temporary suspension
pending further improvements in the public health situation and greater ability to implement COVID-19
mitigation measures in migrant holding facilities will slow the influx of noncitizens into environments at
higher risk for COVID-19 transmission and spread.
DHS has indicated a commitment to restoring border operations in a manner that complies with
applicable COVID-19 mitigation protocols while also accounting for other public health and
humanitarian concerns. In light of available mitigation measures, and with DHS’ pledge to expand
capacity in a COVID-safe manner similar to expansions undertaken by HHS and ORR to address UC
influx, CDC believes that the gradual resumption of normal border operations under Title 8 is feasible.
With careful planning, this may be initiated in a stepwise manner that complies with COVID-19
mitigation protocols. HHS and CDC intend to support DHS in this effort and continues to work with
DHS to provide technical guidance on COVID-19 mitigation strategies for their unique facilities and
populations.90 CDC understands that DHS intends to continue exercising case-by-case exceptions for
individual SA and FMU based on a totality of the circumstances as CDC transitions away from this
Order. CDC is also providing an additional exception to permit DHS to except noncitizens participating
in a DHS-approved program that incorporates pre-processing COVID-19 testing in Mexico of the
noncitizens, prior to their safe and orderly entry to the U.S. via ports of entry. Based on the
incorporation of relevant COVID-19 mitigation measures in such programs, in consultation with CDC,
CDC believes such an exception is consistent with its legal authorities and in the public health interest.
II.
Legal Basis for this Order under Sections 362 and 365 of the Public Health Service Act and
42 C.F.R. § 71.40
CDC is issuing this Order pursuant to sections 362 and 365 of the Public Health Service Act (42
U.S.C. §§ 265, 268) and the implementing regulation at 42 C.F.R. § 71.40. In accordance with these
authorities, the CDC Director is permitted to prohibit, in whole or in part, the introduction into the
United States of persons from designated foreign countries (or one or more political subdivisions or
regions thereof) or places, only for such period of time that the Director deems necessary to avert the
serious danger of the introduction of a quarantinable communicable disease, by issuing an Order in
which the Director determines that:
(1) By reason of the existence of any quarantinable communicable disease in a foreign country
(or one or more political subdivisions or regions thereof) or place there is serious danger of
the introduction of such quarantinable communicable disease into the United States; and

90 CDC has advised DHS on best practices with regard to testing noncitizens at the point they are released to U.S.
communities to await further immigration proceedings. In addition to enforcing physical distancing (as practicable), mask-
wearing, and testing for both noncitizens and personnel alike in POE and U.S. Border Patrol stations, CDC advises
vaccination of DHS/CBP personnel to further reduce the risk of COVID-19 introduction, transmission, and spread in
facilities and communities and protect the federal workforce. Widespread vaccination of federal employees and other
personnel in congregate settings at POE and U.S. Border Patrol stations is another layer of the strategy that will lead to the
normalization of border operations.
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(2) This danger is so increased by the introduction of persons from such country (or one or more
political subdivisions or regions thereof) or place that a suspension of the right to introduce
such persons into the United States is required in the interest of public health.91
CDC has authority under Section 362 and the implementing regulation to issue this Order to
mitigate the further spread of COVID-19 disease, especially as the need to prevent proliferation of
COVID-19 disease related to SARS-CoV-2 virus variants is heightened while vaccination efforts
continue. Section 362 and the implementing regulation provide the Director with a public health tool to
suspend introduction of persons not only to prevent the introduction of a quarantinable communicable
disease, but also to aid in continued efforts to mitigate spread of that disease.92
The term “introduction into the United States” is defined in 42 C.F.R. § 71.40 as “the movement
of a person from a foreign country (or one or more political subdivisions or regions thereof) or place, or
series of foreign countries or places, into the United States so as to bring the person into contact with
persons or property in the United States, in a manner that the Director determines to present a risk of
transmission of a quarantinable communicable disease to persons, or a risk of contamination of property
with a quarantinable communicable disease, even if the quarantinable communicable disease has already
been introduced, transmitted, or is spreading within the United States.” 42 C.F.R. § 71.40(b)(1).
Similarly, the term “serious danger of the introduction of such quarantinable communicable disease into
the United States” is defined as, “the probable introduction of one or more persons capable of
transmitting the quarantinable communicable disease into the United States, even if persons or property
in the United States are already infected or contaminated with the quarantinable communicable disease.”
42 C.F.R. § 71.40(b)(3).
In promulgating § 71.40, CDC and HHS noted that “‘introduction’ does not necessarily conclude
the instant that a person first steps onto U.S. soil. The introduction of a person into the United States can
occur not only when a person first steps onto U.S. soil, but also when a person on U.S. soil moves
further into the United States, and begins to come into contact with persons or property in ways that
increase the risk of transmitting the quarantinable communicable disease.”93 This language recognizes
that many quarantinable communicable diseases, including COVID-19, may be spread by infected
individuals who are asymptomatic and therefore unaware that they are capable of transmitting the
disease. Even when a communicable disease is already circulating within the United States, prevention
and mitigation of continued transmission of the virus is nevertheless a key public health measure. In this
case, although COVID-19 has already been introduced and is spreading within the United States, this
Order serves as an important disease-mitigation tool to protect public health. This is particularly true as
new variants of the virus continue to emerge. By continuing to suspend the introduction of persons from
foreign countries into the United States, this Order will help minimize the spread of variants and their
ability to accelerate disease transmission.
Section 71.40(b)(2) defines “[p]rohibit, in whole or in part, the introduction into the United
States of persons” in Section 362 as “to prevent the introduction of persons into the United States by
suspending any right to introduce into the United States, physically stopping or restricting movement
into the United States, or physically expelling from the United States some or all of the persons.” See
also 42 U.S.C. § 265 (authorizing the prohibition when the danger posed by the communicable disease
“is so increased by the introduction of persons from such country . . . or place that a suspension of the
91 42 U.S.C. § 265; 42 CFR 71.40.
92 85 Fed. Reg. 56424 at 56425-26.
93 Id. at 56425.
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right to introduce such persons into the United States is required in the interest of public health”).
Pursuant to that provision, this Order permits expulsion of persons covered by it, as did the prior Orders
issued under this authority.94 CDC recognizes that expulsion is an extraordinary action but, as explained
in the Final Rule, the power to expel is critical where neither HHS/CDC, nor other Federal agencies, nor
state or local governments have the facilities and personnel necessary to quarantine, isolate, or
conditionally release the number of persons who would otherwise increase the serious danger of the
introduction of a quarantinable communicable disease into the United States.95 In those situations, the
rapid expulsion of persons from the United States may be the most effective public health measure that
HHS/CDC can implement within the finite resources of HHS/CDC and its Federal, State, and local
partners.96
As stated in the Final Rule for 42 C.F.R. § 71.40, CDC “may, in its discretion, consider a wide
array of facts and circumstances when determining what is required in the interest of public health in a
particular situation . . . includ[ing]: the overall number of cases of disease; any large increase in the
number of cases over a short period of time; the geographic distribution of cases; any sustained
(generational) transmission; the method of disease transmission; morbidity and mortality associated with
the disease; the effectiveness of contact tracing; the adequacy of state and local healthcare systems; and
the effectiveness of state and local public health systems and control measures.”97 Other factors noted in
the Final Rule are the potential for disease spread among persons held in congregate settings,
specifically during processing and holding at CBP facilities, and the potential for disease spread to the
community at large.98
As stated in 42 C.F.R. § 71.40, this Order does not apply to U.S. citizens, U.S. nationals, lawful
permanent residents, members of the armed forces of the United States and associated personnel if the
Secretary of Defense provides assurance to the Director that the Secretary of Defense has taken or will
take measures such as quarantine or isolation, or other measures maintaining control over such
individuals, to prevent the risk of transmission of the quarantinable communicable disease into the
United States, and U.S. government employees or contractors on orders abroad, or their accompanying
family members who are on their orders or are members of their household, if the Director receives
assurances from the relevant head of agency and determines that the head of the agency or department
has taken or will take measures such as quarantine or isolation, to prevent the risk of transmission of a
quarantinable communicable disease into the United States.99
In addition, this Order does not apply to those classes of persons excepted by the CDC Director.
Including exceptions in the Order is consistent with Section 362 and 42 C.F.R. § 71.40, which permit the
prohibition of introduction into the United States to be “in whole or in part.” As explained in the Final
Rule for section 71.40, this language is intended to allow the Director to narrowly tailor the use of the
authority to what is required in the interest of public health.100 Pursuant to this capability, CDC is
therefore excepting specific categories of persons from the Order, as described herein.

94 See id. at 56425, 56433.
95 Id. at 56425, 56445-46.
96 Id. at 56425.
97 Id. at 56444.
98 Id. at 56434. Strain on healthcare systems was also cited as a factor in the Final Rule, specifically the additional strain that
noncitizen migrant healthcare needs may place on already overburdened systems; the Final Rule described the reduction of
this strain as a result of CDC’s previously issued orders. Id. at 56431.
99 42 CFR 71.40(e) and (f).
100 85 Fed. Reg. 56424, 56444.
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As required by Section 362, this Order will be in effect only for as long as it is needed to avert
the serious danger of the introduction, transmission, and spread of COVID-19 into the United States and
will be terminated when the continuation of the Order is no longer necessary to protect the public health.
Finally, as directed by 42 C.F.R. § 71.40(c), the Order sets out the following:
(1) The foreign countries (or one or more political subdivisions or regions thereof) or places
from which the introduction of persons is being prohibited;
(2) The period of time or circumstances under which the introduction of any persons or class of
persons into the United States is being prohibited;
(3) The conditions under which that prohibition on introduction will be effective, in whole or in
part, including any relevant exceptions that the Director determines are appropriate;
(4) The means by which the prohibition will be implemented; and
(5) The serious danger posed by the introduction of the quarantinable communicable disease in
the foreign country or countries (or one or more political subdivisions or regions thereof) or
places from which the introduction of persons is being prohibited.
III.
Issuance and Implementation of Order
Based on the foregoing public health reassessment, I hereby issue this Order pursuant to Sections
362 and 365 of the Public Health Service (PHS) Act, 42 U.S.C. §§ 265, 268, and their implementing
regulations under 42 CFR part 71,101 which authorize the CDC Director to suspend the right to introduce
persons into the United States when the Director determines that the existence of a quarantinable
communicable disease in a foreign country or place creates a serious danger of the introduction of such
disease into the United States and the danger is so increased by the introduction of persons from the
foreign country or place that a temporary suspension of the right of such introduction is necessary to
protect public health. This Order hereby replaces and supersedes the Order Suspending the Right to
Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, issued
on October 13, 2020 (October Order)102 and affirms and incorporates the exception for UC published in
the July Exception, such that UC are excepted from this Order.103
This Order addresses the current status of the COVID-19 public health emergency and ongoing
public health concerns, including virus transmission dynamics, viral variants, mitigation efforts, the
public health risks inherent to high migration volumes, low vaccination rates among migrants, and
crowding of immigration facilities. In making this determination, I have considered myriad facts,
including the congregate nature of border facilities and the high risk for COVID-19 outbreaks –
especially now with the predominant, more transmissible Delta variant – presented following the
introduction of an infected person, as well as the benefits of reducing such risks. I have also considered
epidemiological information, including the viral transmissibility and asymptomatic transmission of
COVID-19, the epidemiology and spread of SARS-CoV-2 variants, the morbidity and mortality
associated with the disease for individuals in certain risk categories, as well as public health concerns
with crowding at border facilities and resultant risk of transmission of additional quarantinable
communicable diseases. I am issuing this Order to preserve the health and safety of U.S. citizens, U.S.
nationals, and lawful permanent residents, and personnel and noncitizens in POE and U.S. Border Patrol

101 Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of
Introduction of Persons into United States from Designated Foreign Countries or Places for Public Health Purposes, 85 Fed.
Reg. 56424 (Sept. 11, 2020); 42 CFR 71.40.
102 Supra note 4.
103 Supra note 3.
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stations by reducing the introduction, transmission, and spread of the virus that causes COVID-19,
including new and existing variants, in congregate settings where covered noncitizens would otherwise
be held while undergoing immigration processing, including at POE and U.S. Border Patrol stations at
or near the U.S. land and adjacent coastal borders.
Based on an assessment of the current COVID-19 epidemiologic landscape and the U.S.
government’s ongoing efforts to accommodate UC, CDC does not find public health justification for this
Order to apply with respect to UC, as outlined in the July Exception. Although CDC finds that, at this
time, this Order should be applicable to FMU, CDC notes that there are fewer FMU than SA unlawfully
entering the United States and many FMU are already being processed pursuant to Title 8 versus Title
42 given a variety of practical and other limitations on immediately expelling FMU. DHS has indicated
that it plans to continue to partner with state and local agencies and nongovernmental organizations to
provide testing, consequence management, and eventually vaccination to FMU who are determined to
be eligible for Title 8 processing. CDC considers these efforts to be a critical risk reduction measure and
encourages DHS to evaluate the potential expansion of such COVID-19 mitigation programs for FMU
such that they may be excepted from this Order in the future. Although vaccination programs are not
available at this time, CDC encourages DHS to develop such programs as quickly as practicable. While
the migration of SA and FMU into the United States during the COVID-19 public health emergency
continues and given the inherent risks that accompany holding these groups in crowded congregate
settings with insufficient options for effective mitigation, CDC finds the public health justification for
this Order is sustained at this time.
DHS has indicated that it is committed to restoring border operations and facilitating arrivals to
the United States in a manner that comports with CDC’s recommended COVID-19 mitigation protocols.
Given the recent migrant surge, DHS believes that an incremental approach is the best way to
recommence normal border operations while ensuring health and safety concerns are addressed. To this
end, DHS will work to establish safe, efficient, and orderly processes that are consistent with appropriate
health and safety protocols and the epidemiology of the COVID-19 pandemic, in consultation with
CDC.
CDC’s expectation is that although this Order will continue with respect to SA and FMU, DHS
will use case-by-case exceptions based on the totality of the circumstances where appropriate to except
individual SA and FMU in a manner that gradually recommences normal migration operations as
COVID-19 health and safety protocols and capacity allows. DHS will consult with CDC to ensure that
the standards for such exceptions are consistent with current CDC guidance and public health
recommendations. Based on this incorporation of relevant COVID-19 mitigation measures, CDC
believes it is consistent with the legal authorities and in the public health interest to continue the use of
case-by-case exceptions as a step towards the resumption of normal border operations under Title 8.
Additionally, DHS is working in coordination with nongovernmental organizations, state and local
health departments, and other relevant facilitating organizations and entities as appropriate to develop
DHS-approved processes that include pre-entry COVID-19 testing. Additional public health mitigation
measures, such as maintaining physical distancing and use of masks, testing, and isolation and
quarantine as appropriate, are included in such processes. DHS has documented these processes and
shared them with CDC. CDC has consulted with DHS to ensure that the processes appropriately address
public health concerns and align with relevant CDC COVID-19 mitigation protocols. Based on these
plans and processes, CDC believes it is consistent with legal authorities and in the public health interest
to permit an exception for noncitizens in such DHS-approved processes to allow for safe and orderly
entry into the United States.
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A.
Covered Noncitizens
This Order applies to persons traveling from Canada or Mexico (regardless of their country of
origin) who would otherwise be introduced into a congregate setting in a POE or U.S. Border Patrol
station at or near the U.S. land and adjacent coastal borders subject to certain exceptions detailed below;
this includes noncitizens who do not have proper travel documents, noncitizens whose entry is otherwise
contrary to law, and noncitizens who are apprehended at or near the border seeking to unlawfully enter
the United States between POE. For purposes of this Order, I refer to persons covered by the Order as
“covered noncitizens.”
B.
Exceptions
This Order does not apply to the following:
U.S. citizens, U.S. nationals, and lawful permanent residents;104
Members of the armed forces of the United States and associated personnel, U.S. government
employees or contractors on orders abroad, or their accompanying family members who are
on their orders or are members of their household, subject to required assurances;105
Noncitizens who hold valid travel documents and arrive at a POE;
Noncitizens in the visa waiver program who are not otherwise subject to travel restrictions
and arrive at a POE;
Unaccompanied Noncitizen Children;106
Noncitizens who would otherwise be subject to this Order, who are permitted to enter the
U.S. as part of a DHS-approved process, where the process approved by DHS has been
documented and shared with CDC, and includes appropriate COVID-19 mitigation protocols,
per CDC guidance; and
Persons whom customs officers determine, with approval from a supervisor, should be
excepted from this Order based on the totality of the circumstances, including consideration
of significant law enforcement, officer and public safety, humanitarian, and public health
interests. DHS will consult with CDC regarding the standards for such exceptions to help
ensure consistency with current CDC guidance and public health recommendations.
C.
APA, Review, and Termination
This Order shall be immediately effective. I consulted with DHS and other federal departments
as needed before I issued this Order and requested that DHS continue to aid in the enforcement of this
Order because CDC does not have the capability, resources, or personnel needed to do so.107 As part of
the consultation, DHS developed operational plans for implementing this Order. CDC has reviewed
these plans and finds them to be consistent with the language of this Order directing that covered
noncitizens spend as little time in congregate settings as practicable under the circumstances. In my
view, DHS’s assistance with implementing the Order is necessary, as CDC’s other public health tools
104 42 CFR 71.40(f).
105 42 CFR 71.40(e)(1) and (3).
106 As excepted pursuant to the Public Health Determination Regarding an Exception for Unaccompanied Noncitizen
Children from Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists. 86 Fed. Reg. 38717 (July 22, 2021).
107 42 U.S.C. § 268; 42 CFR 71.40(d).
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are not viable mechanisms given CDC resource and personnel constraints, the large numbers of covered
noncitizens involved, and the likelihood that covered noncitizens do not have homes in the United
States.108
This Order is not a rule subject to notice and comment under the Administrative Procedure Act
(APA). Even if it were, notice and comment and a delay in effective date are not required because there
is good cause to dispense with prior public notice and the opportunity to comment on this Order and a
delayed effective date. Given the public health emergency caused by COVID-19, it would be
impracticable and contrary to public health practices and the public interest to delay the issuing and
effective date of this Order with respect to all covered noncitizens. In addition, this Order concerns
ongoing discussions with Canada and Mexico on how best to control COVID-19 transmission over our
shared borders and therefore directly “involve[s] . . . a . . . foreign affairs function of the United
States;”109 thus, notice and comment and a delay in effective date are not required.
This Order shall remain effective until either the expiration of the Secretary of HHS’ declaration
that COVID-19 constitutes a public health emergency, or I determine that the danger of further
introduction, transmission, or spread of COVID-19 into the United States has ceased to be a serious
danger to the public health and continuation of this Order is no longer necessary to protect public health,
whichever occurs first. At least every 60 days, the CDC shall review the latest information regarding the
status of the COVID-19 public health emergency and associated public health risks, including migration
patterns, sanitation concerns, and any improvement or deterioration of conditions at the U.S. border, to
determine whether the Order remains necessary to protect public health. Upon determining that the
further introduction of COVID-19 into the United States is no longer a serious danger to the public
health necessitating the continuation of this Order, I will publish a notice in the Federal Register
terminating this Order. I retain the authority to modify or terminate the Order, or its implementation, at
any time as needed to protect public health.
In testimony whereof, the Director, Centers for Disease Control and Prevention, U.S.
Department of Health and Human Services, has hereunto set her hand at Atlanta, Georgia, this 2nd day
of August, 2021.
__________________________
Rochelle P. Walensky, MD, MPH
Director
Centers for Disease Control and Prevention
108 CDC relies on the Department of Defense, other federal agencies, and state and local governments to provide both
logistical support and facilities for federal quarantines. CDC lacks the resources, manpower, and facilities to quarantine
covered noncitizens.
109
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