Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 1 of 50
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
`
`P.J.E.S.,
`a minor child, by and through
`his father and next friend,
`Mario Escobar Francisco,
`on behalf of himself and
`others similarly situated,
`
`Plaintiffs,
`
`v.
`
`
`
`
`
` Civ. Action No. 20-2245 (EGS)
`
`
`CHAD F. WOLF,
`Acting Secretary of
`Homeland Security, et al.,
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION
`
`Plaintiff P.J.E.S., a 15-year-old minor from Guatemala who
`
`entered the United States as an unaccompanied minor in August
`
`2020, brings this action against Chad F. Wolf in his official
`
`capacity as Acting Secretary of Homeland Security and various
`
`other federal government officials (“Defendants” or the
`
`“Government”) for violations of the Administrative Procedure Act
`
`(“APA”), 5 U.S.C. § 701 et seq.; the Trafficking Victims
`
`Protection Reauthorization Act (“TVPRA”), 8 U.S.C. § 1232; the
`
`Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
`
`seq.; and the Foreign Affairs Reform and Restructuring Act of
`
`1998 (“FARRA”), 8 U.S.C. § 1231 NOTE.
`
`Pending before the Court are Plaintiff’s motion for class
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
`
`P.J.E.S.,
`a minor child, by and through
`his father and next friend,
`Mario Escobar Francisco,
`on behalf of himself and
`others similarly situated,
`
`Plaintiffs,
`
`v.
`
`
`
`
`
` Civ. Action No. 20-2245 (EGS)
`
`
`CHAD F. WOLF,
`Acting Secretary of
`Homeland Security, et al.,
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION
`
`Plaintiff P.J.E.S., a 15-year-old minor from Guatemala who
`
`entered the United States as an unaccompanied minor in August
`
`2020, brings this action against Chad F. Wolf in his official
`
`capacity as Acting Secretary of Homeland Security and various
`
`other federal government officials (“Defendants” or the
`
`“Government”) for violations of the Administrative Procedure Act
`
`(“APA”), 5 U.S.C. § 701 et seq.; the Trafficking Victims
`
`Protection Reauthorization Act (“TVPRA”), 8 U.S.C. § 1232; the
`
`Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
`
`seq.; and the Foreign Affairs Reform and Restructuring Act of
`
`1998 (“FARRA”), 8 U.S.C. § 1231 NOTE.
`
`Pending before the Court are Plaintiff’s motion for class
`
`
`
`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 2 of 50
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`certification (“Pl.’s Cert. Mot.”), ECF No. 21, and motion for a
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`classwide preliminary injunction (“Pl.’s Prelim. Inj. Mot.”),
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`ECF No. 15. Magistrate Judge Harvey’s Report and Recommendation
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`(“R. & R.”) recommends that this Court provisionally grant the
`
`motion for class certification and grant the motion for
`
`preliminary injunction and . See R. & R., ECF No. 65 at 2.
`
`The Government has objected to several of Magistrate Judge
`
`Harvey’s recommendations. See Gov’t’s Objs., ECF No. 69. Raising
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`no objections to the R. & R., Plaintiff asks this Court to adopt
`
`Magistrate Judge Harvey’s recommendations to grant both motions.
`
`See Pl.’s Resp. to Pl.’s Objs. (“Pl.’s Resp.”), ECF No. 72 at 7.
`
`Upon careful consideration of the R. & R., the Government’s
`
`objections, Plaintiff’s response, and the relevant law, the
`
`Court hereby ADOPTS the R. & R., ECF No. 65, PROVISIONALLY
`
`GRANTS Plaintiff’s (1) Motion to Certify Class, ECF No. 2, and
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`GRANTS Plaintiff’s (2) Motion for Preliminary Injunction, ECF
`
`No. 15.
`
`I.
`
`Background
`
`
`
`The factual background and procedural history in this case
`
`are set forth in the R. & R. See R. & R., ECF No. 65 at 3-15.2
`
`
`1 When citing electronic filings throughout this Opinion, the
`Court cites to the ECF header page number, not the page number
`of the filed document.
`2 The Court accepts as true the allegations in the operative
`complaint for purposes of deciding this motion, and construes
`them in Plaintiff’s favor. See Baird v. Gotbaum, 792 F.3d 166,
`
`2
`
`
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`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 3 of 50
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`A. Factual Background
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`1. Pre-COVID-19 Pandemic
`
`Prior to the current COVID-19 pandemic and pursuant to the
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`TVPRA, unaccompanied children who entered the United States and
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`were nationals of countries that do not share a border with the
`
`United States were required to be transferred to the care and
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`custody of the Department of Health and Human Services’ (“DHH”)
`
`Office of Refugee Resettlement (“ORR”), within 72 hours of their
`
`detainment, for placement in the “least restrictive setting that
`
`is in the best interest of the child.” 8 U.S.C. § 1232(b).
`
`Unaccompanied children from countries that share borders with
`
`the United States were initially screened to determine that the
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`unaccompanied child: (1) was not a victim of trafficking; (2)
`
`did not have “a credible fear of persecution”; and (3) was “able
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`to make an independent decision” about their admission into the
`
`United States. Id. § 1232(a)(2)(A). Absent these determinations,
`
`the unaccompanied child was also transferred to the care and
`
`custody of ORR. Id. § 1232(a)(3). These unaccompanied children
`
`also had access to “counsel to represent them in legal
`
`proceedings or matters and protect them from mistreatment,
`
`exploitation, and trafficking,” id. § 1232(c)(5); and some were
`
`
`169 n.2 (D.C. Cir. 2015). The Government does not object to
`Magistrate Judge Harvey’s recitation of the alleged facts.
`See generally, Gov’t’s Objs., ECF No. 69.
`
`3
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`provided “independent child advocates . . . to effectively
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`advocate for the[ir] best interest.” Id. § 1232(c)(6).
`
`In addition, all unaccompanied children retained their
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`rights under the INA to (1) apply for asylum, id. § 1158(a)(1);
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`contest their removal to a country where their “life or freedom
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`would be threatened . . . because of [their] race, religion,
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`nationality, membership in a particular social group, or
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`political opinion,” id. § 1231(b)(3) (“withholding of removal”);
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`or, pursuant to FARRA, (3) make a case that “he or she would be
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`tortured if removed to the proposed country of removal.” Id. §
`
`1231 Note.
`
`2. COVID-19 Pandemic and CDC Orders
`
`Since 1893, federal law has provided federal officials with
`
`the authority to stem the spread of contagious diseases from
`
`foreign countries by prohibiting, “in whole or in part, the
`
`introduction of persons and property from such countries.” Act
`
`of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452, ECF No.
`
`15-5 at 5 (“1893 Act”). Under current law,
`
`Whenever the Surgeon General determines that
`by reason of the existence of any communicable
`disease in a foreign country there is serious
`danger of the introduction of such disease
`into the United States, and that this danger
`is so increased by the introduction of persons
`or property from such country that a
`suspension of the right to introduce such
`persons and property is required in the
`interest of the public health, the Surgeon
`General, in accordance with regulations
`
`4
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`approved by the President, shall have the
`power to prohibit, in whole or in part, the
`introduction of persons and property from such
`countries or places as he shall designate in
`order to avert such danger, and for such
`period of time as he may deem necessary for
`such purpose.
`
`42 U.S.C. § 265 (“Section 265”). In 1966, “the Surgeon General’s
`
`§ 265 authority was transferred” to HHS, which in turn
`
`“delegated this authority to the [Centers for Disease Control
`
`(“CDC”)] in 2001 and [t]he President’s functions under § 265
`
`were assigned to the Secretary of HHS in a 2003 executive
`
`order.” Compl., ECF No. 1 at 13 n.2.
`
`On March 24, 2020, as the COVID-19 virus spread throughout
`
`the country, the CDC issued a new regulation, pursuant to
`
`Section 265, aiming to “provide[] a procedure for CDC to suspend
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`the introduction of persons from designated countries or places,
`
`if required, in the interest of public health.” Control of
`
`Communicable Diseases; Foreign Quarantine: Suspension of
`
`Introduction of Persons Into United States From Designated
`
`Foreign Countries or Places for Public Health Purposes, 85 Fed.
`
`Reg. 16559-01, 2020 WL 1330968, (March 24, 2020) (“Interim
`
`Rule”). The Interim Rule created Section 71.40 to “enable the
`
`CDC Director to suspend the introduction of persons into the
`
`United States” and stated, in relevant part,
`
`(b) For purposes of this section:
`
`
`(1) Introduction into the United States
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`5
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`of persons from a foreign country (or one
`or more political subdivisions or regions
`thereof) or place means the movement of
`a person from a foreign country (or one
`or more political subdivisions or regions
`thereof) or place, or series of foreign
`countries or places, into the United
`States so as to bring the person into
`contact with persons in the United
`States, or so as to cause the
`contamination of property in the United
`States, in a manner that the Director
`determines to present a risk of
`transmission of a communicable disease to
`persons or property, even if the
`communicable disease has already been
`introduced, transmitted, or is spreading
`within the United States;
`
`(2) Serious danger of the introduction of
`such communicable disease into the United
`States
`means
`the
`potential
`for
`introduction
`of
`vectors
`of
`the
`communicable disease into the United
`States, even if persons or property in
`the United States are already infected or
`contaminated with the communicable
`disease; and
`
`(3) The term “Place” includes any
`location specified by the Director,
`including any carrier, as that term is
`defined in 42 CFR 71.1, whatever the
`carrier's nationality.
`
`
`Id. at 16566-67. The CDC’s Interim Rule was made effective
`
`immediately, “without advance notice and comment,” Compl., ECF
`
`No. 1 at 13 ¶ 50; though the CDC explained that “[p]ursuant to 5
`
`U.S.C. 553(b)(3)(B),” of the APA, HHS “conclude[d] that there
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`[was] good cause to dispense with prior public notice and the
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`opportunity to comment on this rule before finalizing this
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`6
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`rule.” Interim Rule at 16564. Specifically, the CDC stated that
`
`“[g]iven the national emergency caused by COVID-19, it would be
`
`impracticable and contrary to the public health—and, by
`
`extension, the public interest—to delay these implementing
`
`regulations until a full public notice-and-comment process is
`
`completed.” Id. at 16565. Finally, noting that Section 265
`
`applied to “persons” in general, the CDC declared that the
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`“interim final rule [would] not apply to U.S. citizens or lawful
`
`permanent residents . . . [because the] CDC believes that, at
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`present, quarantine, isolation, and conditional release, in
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`combination with other authorities, while not perfect solutions,
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`can mitigate any transmission or spread of COVID-19 caused by
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`the introduction of U.S. citizens or lawful permanent residents
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`into the United States.” Id. at 16564.
`
`
`
`Pursuant to the Interim Rule, the CDC Director issued an
`
`order suspending the introduction of “covered aliens” which he
`
`defined as “persons traveling from Canada or Mexico (regardless
`
`of their country of origin) who would otherwise be introduced
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`into a congregate setting in a land Port of Entry [(“POE”)] or
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`Border Patrol station at or near the United States borders with
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`Canada and Mexico” for a period of 30 days. Notice of Order
`
`Under Sections 362 and 365 of the Public Health Service Act
`
`Suspending Introduction of Certain Persons From Countries Where
`
`a Communicable Disease Exists, 85 Fed. Reg. 17060-02, 2020 WL
`
`7
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`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 8 of 50
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`1445906 (March 26, 2020) (“March Order”). The CDC Director found
`
`the March Order necessary because the public health risks
`
`include[d] transmission and spread of COVID-
`19 to [U.S. Customs and Border Protection
`(“CBP”)] personnel, U.S. citizens, lawful
`permanent residents, and other persons in the
`POEs and Border Patrol stations; further
`transmission and spread of COVID-19 in the
`interior; and the increased strain that
`further transmission and spread of COVID-19
`would put on the United States healthcare
`system and supply chain during the current
`public health emergency.
`
`Id. at 17061. In a section titled “Determination and
`
`Implementation,” the March Order declared that “[i]t is
`
`necessary for the public health to immediately suspend the
`
`introduction of covered aliens” and “require[d] the movement of
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`all such aliens to the country from which they entered the
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`United States, or their country of origin, or another location
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`as practicable, as rapidly as possible.” Id. at 17067. The CDC
`
`Director then “requested that DHS implement th[e] [March Order]
`
`because CDC does not have the capability, resources, or
`
`personnel needed to do so” and then notes that “CBP [had
`
`already] developed an operational plan for implementing the
`
`order.” Id. In April, the March Order was extended another 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)
`
`8
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`(“April Order”). The March Order was extended again on May 20,
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`2020 and amended to “clarify that it applies to all land and
`
`coastal [POEs] and Border Patrol stations at or near the United
`
`States' border with Canada or Mexico that would otherwise hold
`
`covered aliens in a congregate setting.” 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 Order”).
`
`The May Order also extended the duration of the order until the
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`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,” though the CDC would
`
`still conduct a recurring 30-day review. Id. Finding that: (1)
`
`the CDC Order had “significantly mitigated the specific public
`
`health risk identified in the initial Order by significantly
`
`reducing the population of covered aliens held in congregate
`
`settings in POEs and Border Patrol stations,” id. at 31505; and
`
`(2) “due to their lack of legal immigration status, there is
`
`significant uncertainty that covered aliens would be able to
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`effectively self-quarantine, self-isolate, or otherwise comply
`
`with existing social distancing guidelines, if they were
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`conditionally released,” id. at 31508; the CDC Director
`
`requested that DHS “continue to implement the operational plan
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`9
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`developed to carry out the” March and April Orders, id. The
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`Court will refer to the process developed by the CDC and
`
`implemented by the March, April, and May Orders as the “CDC
`
`Orders.”3
`
`
`
`As noted above, the CBP had already developed its plan to
`
`implement the March Order and issued a memorandum on April 2,
`
`2020 establishing its procedures for implementing the order. See
`
`Compl., ECF No. 1 at 17 ¶ 65; see also COVID-I9 CAPIO, ECF No.
`
`15-5 at 15 (“CAPIO Memo”). Specifically, the CAPIO Memo
`
`instructed that when implementing the CDC Orders, agents may
`
`determine whether individuals are subject to the CDC Orders
`
`“Based on training, experience, physical observation,
`
`technology, questioning and other considerations.” CAPIO Memo,
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`ECF No. 15-5 at 15. If an individual was determined to be
`
`subject to the CDC Orders, 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. The CAPIO Memo,
`
`“provide[d] no instructions on medical screenings or other
`
`procedures for determining whether a covered noncitizen may have
`
`COVID-19,” Compl., ECF No. 1 at 17 ¶ 68; and did “not exempt
`
`minors from forcible expulsion,” id. at 18 ¶ 69.
`
`
`3 Plaintiff refers to the process under 42 U.S.C. § 265 as the
`“Title 42 Process,” see Pl.’s Prelim. Inj. Mot., ECF No. 15;
`while the Government refers to it as the “CDC Order.” See
`Gov’t’s Combined Opp’n, ECF No. 42 at 12.
`
`10
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`
`
`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
`
`October 13, 2020) (“Final Rule”). The Final Rule, which
`
`references this case but makes no changes to its determinations
`
`and findings as relevant for this action, see id. at 56437,
`
`states “[i]t has long been recognized that ‘where a general
`
`power is conferred or duty enjoined, every particular power
`
`necessary for the exercise of the one, or the performance of the
`
`other, is also conferred.’” Id. at 56445. It further states that
`
`“HHS/CDC identifies particular powers that it may exercise under
`
`[Section 265] by defining 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
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`some or all of the persons.’” Id.
`
`3. CDC Orders’ Effect on Plaintiff
`
`Plaintiff is a 16-year-old boy from Guatemala, who entered
`
`the United States in August 2020, was apprehended by CBP and
`
`11
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`
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`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 12 of 50
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`initially held in CBP custody in McAllen, Texas, before he was
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`made subject to expulsion pursuant to the CDC Orders and CAPIO
`
`Memo. See id. at 19 ¶¶ 77, 81. His father lives in the United
`
`States and has a pending immigration case. See id. ¶ 78.
`
`Plaintiff is from “an indigenous Mayan family” and alleges to
`
`have (1) “experienced severe persecution in Guatemala” due to
`
`his father’s political opinions; and (2) had his life threatened
`
`due to his refusal to join a gang. Id. ¶ 79. He states that, if
`
`he is “allowed to remain in the United States, he could live
`
`with his father . . . or another suitable sponsor.” Id. ¶ 84.
`
`Further, Plaintiff asserts that, “even if [he is] required to
`
`first reside for a short time in a[n] ORR children[’s] shelter,
`
`he could do so safely . . . [because] ORR facilities [] have
`
`experience with communicable diseases . . . [and] are currently
`
`well under capacity, [which would allow for] social distancing
`
`and quarantine[ing].” Id. at 20 ¶ 85. Plaintiff alleges that,
`
`instead of remaining in CBP custody, he “could have been
`
`transferred directly to his father or another sponsor or to an
`
`ORR shelter, [and] he would [have] pose[d] minimal, if any,
`
`additional risk to border agents.” Id. ¶ 88. On August 14, 2020,
`
`after Plaintiff filed this action and a motion for class
`
`certification, the Government exempted him from the CDC Orders.
`
`See Escobar Francisco Decl., ECF No. 14-1 at 2 ¶ 11.
`
`
`
`12
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`4. CDC Orders’ General Effect on Unaccompanied Children
`
`Plaintiff alleges that unaccompanied children have “been
`
`required to remain in DHS custody longer than the time it would
`
`have taken to transfer them to their family members or to an ORR
`
`facility,” Compl., ECF No. 1 at 20 ¶ 89; and that “arranging for
`
`air transport to deport individuals will generally take longer
`
`than time in which DHS must transfer children to ORR or family
`
`members.” Id. at 21 ¶ 90. He further alleges that some
`
`unaccompanied “children are held for days or weeks in hotels
`
`[as] they await flights back to their home countries, [while]
`
`[o]thers are detained in CBP facilities near the border,
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`reportedly held in cage-like settings with other children.” Id.
`
`¶ 91. Finally, Plaintiff states,
`
`Unaccompanied children subject to the [CDC
`Orders] face numerous problems accessing legal
`representation. Because children can be
`expelled under Title 42 in a matter of days,
`the child or any family member who obtains
`information about the child has only a limited
`amount of time in which to advocate for the
`child. And because the [] Process [pursuant to
`the CDC Orders] has operated largely in
`secret, its rules and procedures have remained
`opaque to children, their parents, and any
`lawyers and advocates who seek to help them.
`Unaccompanied children are also unable, by
`reason of their youth, to advocate effectively
`for themselves, especially when detained in
`custodial settings by government officers.
`Many do not speak English, and lack even a
`basic comprehension of the U.S. legal system.
`Their relatives are similarly not well-
`situated to help navigate this process,
`especially given the time constraints; many
`
`13
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`children are from families in which few
`members have had significant formal schooling,
`much less any fluency in English.
`
`Id. at 21-22 ¶ 93. At the time he filed his motion for
`
`preliminary injunction, Plaintiff alleged that the DHS had
`
`“already expelled at least 2,000 unaccompanied children pursuant
`
`to the CDC Order[s],” Pl.’s Prelim. Inj. Mem., ECF No. 15-1 at
`
`10; but Plaintiff now alleges that the number of expelled
`
`unaccompanied children had “exceeded 13,000 by the end of
`
`October.” Pl.’s Notice of November 17, 2020, ECF No. 78.4
`
`B. Procedural Background
`
`Plaintiff filed this action on August 14, 2020, see Compl.,
`
`ECF No. 1; and a motion for class certification, see Pl.’s Cert.
`
`Mot., ECF No. 2, that same day. On August 20, 2020, Plaintiff
`
`filed a motion for a classwide preliminary injunction. See Pl.’s
`
`Prelim. Inj. Mot., ECF No. 15. The Government filed its Combined
`
`Opposition to Plaintiff’s Motions for Class Certification and
`
`for Classwide Preliminary Injunction (“Gov’t’s Combined Opp’n”)
`
`on September 8, 2020, see Gov’t’s Combined Opp’n, ECF No. 42;
`
`and Plaintiff filed his Combined Reply Memorandum in Support of
`
`Motions for Classwide Preliminary Injunction and Class
`
`
`4 Citing to Hamed Aleaziz, Border Officials Turned Away
`Unaccompanied Immigrant Children More Than 13,000 Times Under
`Trump’s Pandemic Policy, BuzzFeed News (Oct. 28, 2020),
`https://www.buzzfeednews.com/article/hamedaleaziz/border-
`officials-turned-away-unaccompanied-immigrants.
`
`14
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`Certification (“Pl.’s Combined Reply”) on September 15, 2020.
`
`Pl.’s Combined Reply, ECF No. 52.
`
`Magistrate Judge Harvey, having been referred Plaintiff’s
`
`motions and this case for full case management, issued his R. &
`
`R. on September 25, 2020. See R. & R., ECF No. 65; see also
`
`Sept. 6, 2020 Min. Order. The Government submitted objections to
`
`the R. & R. on October 2, 2020, see Gov’t’s Objs., ECF No. 69;
`
`Plaintiff filed his Response to the Government’s Objections on
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`October 9, 2020, see Pl.’s Resp., ECF No. 72; and the Government
`
`filed its Reply to Plaintiff’s Response to the Government’s
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`Objections (“Gov’t’s Objs. Reply”) on October 14, 2020, see
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`Gov’t’s Objs. Reply, ECF No. 75. The objections are ripe and
`
`ready for the Court’s adjudication.
`
`II.
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`Legal Standards
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`A. Objections to a Magistrate Judge’s Report and
`Recommendation
`
`Pursuant to Federal Rule of Civil Procedure 72(b), a party
`
`may file specific written objections once a magistrate judge has
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`entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
`
`A district court “may accept, reject or modify the recommended
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`disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
`
`636(b)(1) (“A judge of the court may accept, reject, or modify,
`
`in whole or in part, the findings or recommendations made by the
`
`magistrate judge.”). A district court “must determine de novo
`
`15
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`
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`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 16 of 50
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`any part of the magistrate judge’s disposition that has been
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`properly objected to.” Fed. R. Civ. P. 72(b)(3).“If, however,
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`the party makes only conclusory or general objections, or simply
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`reiterates his original arguments, the Court reviews the [R. &
`
`R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d
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`86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly
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`erroneous standard, the magistrate judge’s decision is entitled
`
`to great deference” and “is clearly erroneous only if on the
`
`entire evidence the court is left with the definite and firm
`
`conviction that a mistake has been committed.” Buie v. D.C., No.
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`CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019)
`
`(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009))
`
`(internal quotation marks omitted).
`
`Objections must “specifically identify the portions
`
`of the proposed findings and recommendations to which objection
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`is made and the basis for objection.” LCvR 72.3(b).“[O]bjections
`
`which merely rehash an argument presented to and considered by
`
`the magistrate judge are not ‘properly objected to’ and are
`
`therefore not entitled to de novo review.” Shurtleff v. EPA, 991
`
`F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
`
`08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30,2009)).
`
`B. Preliminary Injunction
`
`“A plaintiff seeking a preliminary injunction must
`
`establish [1] that he is likely to succeed on the merits, [2]
`
`16
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`
`
`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 17 of 50
`
`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
`
`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
`
`17
`
`
`
`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 18 of 50
`
`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
`
`analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C.
`
`2014).
`
`III.
`
`Analysis
`
`
`
`Before proceeding to its analysis, the Court observes that
`
`another court in this District recently examined CBP’s new
`
`process pursuant to the CDC Orders, in a case with facts similar
`
`to those before this Court. In J. B. B. C. v. WOLF, et al.,
`
`Docket No. 20-cv-1509 (D.D.C. filed June 9, 2020), the
`
`plaintiff, a 16-year-old boy from Honduras, whose father also
`
`lives in the United States and had a pending asylum case, was
`
`apprehended by CBP when he entered the country near El Paso,
`
`Texas and made subject to expulsion pursuant to the CDC Orders
`
`and CAPIO Memo. J. B. B. C. Compl., Dkt No. 20-cv-1509, ECF No.
`
`1 at 19-20 ¶¶ 76-80. At the time he filed his complaint, the
`
`plaintiff in J. B. B. C., had been in a hotel for five days as
`
`18
`
`
`
`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 19 of 50
`
`CBP moved under the new process to place him on a flight to
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`Honduras. Id. ¶¶ 83-84. Since his expulsion was imminent, he
`
`filed a motion for temporary restraining order (“T.R.O.”) that
`
`same day, presenting many of the same arguments as presented in
`
`this case. See generally, J. B. B. C. Emergency Mot. for T.R.O.,
`
`ECF No. 2. At a June 24, 2020 hearing, Judge Nichols granted the
`
`TRO, finding that the J. B. B. C. plaintiff was likely to
`
`succeed on the merits. J. B. B. C. Hr’g Tr., Dkt No. 20-cv-1509,
`
`ECF No. 39 at 49-50.
`
`Specifically, Judge Nichols found that: (1) Section 265 does
`
`not grant the CDC Director the power to return or remove, in
`
`light of the fact that immigration statutes directly “reference
`
`the power to return or to remove,” id. at 50; (2) Section 265
`
`“should be harmonized, to the maximum extent possible, with
`
`immigration statutes,” id.; and (3) the CDC Director is not
`
`entitled to deference under Chevron, USA, Inc. v. Nat. Res. Def.
`
`Council, Inc., 467 U.S. 837, 842-43 (1984), because Section 265
`
`must be “read in light of statutes that the CDC Director quite
`
`plainly has no special expertise regarding and . . . the order
`
`does very little by way of an analysis of what exactly the power
`
`to prohibit the introduction of persons and property means,” id.
`
`at 51-50. Notably, after Judge Nichols’s ruling, the Government
`
`transferred the J. B. B. C. plaintiff to ORR, noting that he
`
`would “no longer be subject to the challenged CDC Order” and
`
`19
`
`
`
`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 20 of 50
`
`claimed that the case was moot. J. B. B. C. Notice to Ct., Dkt
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`No. 20-cv-1509, ECF No. 41 at 1. When the J. B. B. C. plaintiff
`
`filed an amended complaint, adding another plaintiff, E.Y.E., a
`
`15-year-old boy from Guatemala, who claimed to be escaping an
`
`abusive grandfather and aunt, and who had siblings in the United
`
`States who had been granted asylum the previous year based on
`
`similar claims, the Government excepted him from the CDC Orders
`
`as well. See J. B. B. C. Mot. to Dismiss, Dkt No. 20-cv-1509,
`
`ECF No. 47 at 9. The J. B. B. C. plaintiffs then voluntarily
`
`dismissed the case. See J. B. B. C. Notice of Voluntary
`
`Dismissal, Dkt No. 20-cv-1509, ECF No. 48.
`
`A. Plaintiff’s Motion for Class Certification
`
`Pursuant to Federal Rules of Civil Procedure 23(a) and
`
`23(b)(2), Plaintiff has sought certification of the following
`
`class: 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 the Title 42 Process (“Subject
`
`Class”). Pl.’s Cert. Mot., ECF No. 2 at 1.
`
`Magistrate Judge Harvey found that Plaintiff’s motion for
`
`class certification should be provisionally granted because
`
`Plaintiff met the: (1) numerosity requirement by providing
`
`evidence that almost 6,000 unaccompanied non-citizen children
`
`were apprehended at the southwest border between April and July
`
`2020, [and] more than 2,000 unaccompanied non-citizen children
`
`20
`
`
`
`Case 1:20-cv-02245-EGS-GMH Document 80 Filed 11/18/20 Page 21 of 50
`
`had been expelled, R. & R., ECF No. 65 at 17; (2) commonality
`
`requirement because the challenged CDC Orders are a “a uniform
`
`policy or practice that affects all class members,” id. at 18;
`
`(3) typicality requirement since Plaintiff’s claims and the
`
`claims of the putative class “stem from a unitary course of
`
`conduct—expulsion of unaccompanied non-citizen children” under
`
`the CDC Orders and “are based on the same legal theories,” id.
`
`at 19; (4) adequacy requirement because, citing to JD v. Azar,
`
`925 F.3d 1291, 1322 (D.C. Cir. 2019) (per curiam), the
`
`“Plaintiff is an adequate class representative who, with his
`
`counsel, will vigorously pursue the claims of the putative
`
`class,” id. at 21; and the cohesiveness requirement because the
`
`Government allegedly applied the same illegal CDC Orders to the
`
`Plaintiff and Subject Class, and the Plaintiff and Subject Class
`
`seek the same relief, see id. at 22.
`
`The Government’s only objection to Magistrate Judge
`
`Harvey’s recommendation is that the case upon which he relied—
`
`J.D. v. Azar-was wrongly decided because allowing a Plaintiff
`
`whose claims are moot to serve as a class representative “is an
`
`improper relaxation of Article III’s strict requirement of a
`
`case or contr
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