Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 1 of 42 PageID #: 1
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`LAFAYETTE DIVISION
`
`
`THE STATE OF ARIZONA, By and through
`its Attorney General, MARK BRNOVICH;
`
`THE STATE OF LOUISIANA,
`By and through its Attorney General, JEFF
`LANDRY;
`
`THE STATE OF MISSOURI,
`By and through its Attorney General, ERIC S.
`SCHMITT;
`
`
`
`PLAINTIFFS,
`
`
`v.
`
`CENTERS FOR DISEASE CONTROL &
`PREVENTION;
`
`ROCHELLE WALENSKY , in her official
`capacity as Director of the Centers for
`Disease Control & Prevention;
`
`U.S. DEPARTMENT OF HEALTH & HU-
`MAN SERVICES;
`
`XAVIER BECERRA , in his official capacity as
`Secretary of Health and Human Services;
`
`the UNITED STATES DEPARTMENT OF
`HOMELAND SECURITY;
`
`ALEJANDRO MAYORKAS in his official ca-
`pacity as Secretary of Homeland Security;
`
`U.S CUSTOMS AND BORDER PROTEC-
`TION;
`
`CHRISTOPHER MAGNUS in his official ca-
`pacity Commissioner of U.S. Customs and Bor-
`der Protection;
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CIVIL ACTION NO. _______________
`
`
`
`
`1
`
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`
`

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`Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 2 of 42 PageID #: 2
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`U.S. IMMIGRATION AND CUSTOMS EN-
`FORCEMENT;
`
`TAE JOHNSON in his official capacity as Sen-
`ior Official Performing the Duties of Director of
`U.S. Immigration and Customs Enforcement;
`
`U.S. CITIZENSHIP AND IMMIGRATION
`SERVICES;
`
`UR M. JADDOU in her official capacity as Di-
`rector of U.S. Citizenship and Immigration Ser-
`vices;
`
`U.S. BORDER PATROL;
`
`RAUL ORTIZ in his official capacity as Chief of
`the U.S. Border Patrol;
`
`The UNITED STATES DEPARTMENT OF
`JUSTICE;
`
`MERRICK GARLAND in his official capacity
`as Attorney General of the United States of
`America;
`
`EXECUTIVE OFFICE FOR IMMIGRATION
`REVIEW;
`
`DAVID NEAL in his official capacity as Direc-
`tor of the Executive Office for Immigration Re-
`view;
`
`JOSEPH R. BIDEN, J R., in his official
`capacity as President of the United
`States; and
`
`the UNITED STATES OF AMERICA;
`
`
`DEFENDANTS.
`
`
`
`
`COMPLAINT
`
`The States of Arizona, Louisiana, and Missouri bring this civil action against the above-listed
`
`Defendants for declaratory and injunctive relief and allege as follows:
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`2
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`

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`Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 3 of 42 PageID #: 3
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`INTRODUCTION
`This suit challenges an imminent, man-made, self-inflicted calamity: the abrupt elim-
`
`1.
`
`ination of the only safety valve preventing this Administration’s disastrous border policies from de-
`
`volving into an unmitigated chaos and catastrophe. Specifically, this action challenges the Biden
`
`Administration’s revocation of Title 42 border control measures, which will, absent judicial relief,
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`become effective May 23, 2022.
`
`2.
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`This is not merely the opinion of the Plaintiff States, but also that of some of the
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`Administration’s ardent supporters. For example, one Democratic Senator observed: “This is the
`
`wrong decision…. [I]t’s clear that this administration’s lack of a plan to deal with this crisis will fur-
`
`ther strain our border communities.”
`
`3.
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`Similarly, another Democratic Senator explained that the “decision to announce an
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`end to Title 42 despite not yet having a comprehensive plan ready shows a lack of understanding
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`about the crisis at our border.”
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`4.
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`Eight days prior, these two Democratic Senators wrote a letter to President Biden
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`telling him: “To date, we have not yet seen evidence that DHS has developed and implemented a
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`sufficient plan to maintain a humane and orderly process in the event of an end to Title 42.”
`
`5.
`
`A third Democratic Senator, Joe Manchin, described the Title 42 revocation as an
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`outright “frightening decision.”1 He further explained that “[w]e are nowhere near prepared to deal with that
`
`influx. Until we have comprehensive, bipartisan immigration reform that commits to securing our
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`borders and providing a pathway to citizenship for qualified immigrants, Title 42 must stay in place.”2
`
`In addition, “Title 42 has been an essential tool in combatting the spread of COVID-19 and control-
`
`
`1 Joe Manchin, Title 42 Must Stay In Place Until We Have Major Immigration Reforms (April 1, 2022)
`https://bit.ly/37azEI0 (emphasis added).
`2 Id. (emphasis added).
`
`3
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`

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`Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 4 of 42 PageID #: 4
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`ling the influx of migrants at our southern border,” said Senator Manchin.3 “We are already facing
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`an unprecedented increase in migrants this year, and that will only get worse if the Administration
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`ends the Title 42 policy.”4
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`6.
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`And a fourth Democratic Senator, Maggie Hassan, similarly declared that: “Ending
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`Title 42 prematurely will likely lead to a migrant surge that the administration does not appear to be
`
`ready for.”5
`
`7.
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`And these are just the opinions of Senators of President Biden’s own party—hardly
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`disinterested, neutral observers. To be fair, these views appear to be widely shared—though in
`
`more-circumspect/less-candid statements—by many members of the Biden Administration itself,
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`even at the highest levels. For example, the White House’s own Communications Director, Kate
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`Bedingfield, outright admitted that the Administration “ha[s] every expectation that when the CDC
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`ultimately decides it’s appropriate to lift Title 42, there will be an influx of people to the border.”6
`
`8.
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`Senator Bill Cassidy of Louisiana similarly criticized the Biden Administration’s
`
`plans, stating “Removing Title 42 is a mistake that will encourage another wave of illegal migration
`
`and drug trafficking to overwhelm the Southern border. There is no justification for this.” See Press
`
`Release, Cassidy Reacts
`
`to Rescinding Trump-Era Policy
`
`to Stop Mass Migration,
`
`www.cassidy.senate.gov.
`
`9.
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`The National Border Patrol Council President, Brandon Judd, similarly declared:
`
`“We know this is going to cause chaos of epic proportions.”7 He also noted the obvious incongruity of
`
`
`3 Id.
`4 Id.
`5 https://twitter.com/SenatorHassan/status/1509936999267983364
`6 Catherine E. Shoichet, We're expecting a big increase in migrants at the US-Mexico border. But this time is
`different, CNN, (April 1, 2022) (emphasis added), https://cnn.it/3LrtLoC.
`7 Adam Shaw, Border Patrol agents bracing for new migrant wave if Title 42 lifts: 'We are expecting to get
`wrecked, Fox News, (Mar, 31, 2022), https://fxn.ws/3uKEx2B
`
`4
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`Administration policy: “We can’t even fly on airplanes without masks, but we’re going to end Title
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`42 which is going to cause the single largest [in]flux of illegal immigration in our history?”8 “It’s im-
`
`possible for me to overstate how demoralized the average agent is,” Judd said. “They’re asking
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`themselves, ‘Why am I putting on this uniform?’ every day. This administration is responsible for the
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`single largest crisis on the border and they’re about to make it worse.”9
`
`10.
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`Similarly, DHS put out an official “fact sheet” in anticipation of the Title 42 revoca-
`
`tion declaring that “There is broad agreement that our immigration system is fundamentally broken.”10
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`But the Administration’s “answer” to that problem is to break it further.
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`11.
`
`Other DHS officials, shielded by anonymity, have been even more candid, explaining
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`that “ending Title 42 would lead to what one DHS agent described as a ‘surge on top of a surge.’”11
`
`12.
`
`One anonymous agent succinctly explained the sentiment at the Border Patrol: “We
`
`are expecting to get wrecked.”12
`
`13.
`
`The Center for Disease Control’s (“CDC’s”) April 1, 2022 order revoking its prior
`
`Title 42 policy is also plainly at war with other policies of the Biden Administration. The Title 42
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`Termination is expressly premised on the “rapid[] decrease” of COVID-19 cases following the re-
`
`cent wave of the Omicron variant of the virus. Ex. A at 12. But the Administration has not seen fit
`
`elsewhere to act upon these improvements by, for example, lifting the mask mandate on airline trav-
`
`
`8 Id.
`9 Callie Patteson and MaryAnn Martinez, Immigration authority Title 42 to be terminated on May 23, CDC
`says, NY Post (Apr. 1, 2022), https://nypost.com/2022/04/01/title-42-to-be-terminated-on-may-
`23-cdc-says/.
`10 DHS, Fact Sheet: DHS Preparations for a Potential Increase in Migration (Mar. 30, 2022),
`https://bit.ly/3j3LEgR.
`11 Adam Shaw and Peter Hasson, Border Patrol agents bracing for new migrant wave if Title 42 lifts: “We are
`expecting to get wrecked”, Fox News (Mar. 31, 2022), https://fxn.ws/3IZjApt.
`12 Id.
`
`5
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`

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`el,13 or loosening or repealing its vaccination mandates,14 or ending its relentless campaign to dis-
`
`charge members of our military who have applied for religious exemptions for vaccination require-
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`ments—which have been almost uniformly denied.15 The Title 42 Revocation thus stands as a radi-
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`cal outlier—seemingly the only COVID-19-based restriction the Administration sees fit to end.
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`14.
`
`But the CDC’s Termination Order is not merely unfathomably bad public policy. It
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`is also profoundly illegal. That is principally so for two reasons: (1) Defendants unlawfully flouted
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`the notice-and-comment requirements for rulemaking under the Administrative Procedure Act
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`(“APA”) and (2) Defendants’ Termination Order is arbitrary and capricious, thus violating the APA,
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`because it has numerous omissions that each independently render it illegal.
`
`15.
`
`First, the notice-and-comment violation: Defendants do not deny that the Termina-
`
`tion Order would ordinarily be subject to the requirement of providing notice of a proposed rule,
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`taking comment upon it, and responding to those comments. They seek to excuse their flouting of
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`that requirement for two reasons: they invoke the “good cause” and “foreign affairs” exceptions of
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`5 U.S.C. §553(a)(1) and (b)(3)(B). But neither applies.
`
`13 Jonathan Franklin, U.S. airline CEOs call on President Biden to end the federal mask mandate on planes,
`NPR (Mar. 24, 2022), https://www.npr.org/2022/03/24/1088669929/airlines-federal-travel-mask-
`mandate (noting request from airline CEOs to the Biden Administration that the air travel mask
`mandate be lifted, and noting that “the White House has not yet commented on the group's re-
`quest).
`14 E.g., Georgia v. Biden, --- F.Supp.3d ----, 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021) (granting na-
`tionwide preliminary injunction of federal contractor vaccine mandate); Georgia v. Biden, 21-cv-00163,
`ECF No. 96 (S.D. Ga. Dec 9, 2021) (federal government’s notice of appeal of nationwide injunction
`of federal contractor vaccine mandate); Feds for Med. Freedom v. Biden, --- F.Supp.3d ----, 2022 WL
`188329, at *8 (S.D. Tex. Jan. 21, 2022) (granting nationwide preliminary injunction of federal em-
`ployee vaccine mandate); Feds for Med. Freedom v. Biden, 21-cv-00356, ECF No. 37 (S.D. Tex. Jan. 21,
`2022) (federal government’s notice of appeal of nationwide injunction of federal employee vaccine
`mandate).
`15 E.g., U.S. Navy SEALs 1-26 v. Biden, --- F.Supp.3d ----, 2022 WL 34443, at *1, *13, and *14 (N.D.
`Tex. Jan. 3, 2022) (“[t]he Navy has not granted a religious exemption to any vaccine in recent
`memory”; noting punitive measures taken against Navy SEALS who refused to take vaccine, includ-
`ing threat of discharge from military; and enjoining military vaccine mandate); U.S. Navy SEALs 1-
`26 v. Biden, 21-cv-01236, ECF No. 82 (N.D. Tex. Jan. 21, 2022) (federal government’s notice of ap-
`peal). .
`
`6
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`16.
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`As to the good cause exception, CDC argues that “it would be impracticable and
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`contrary to the public interest” to take public comments on the Title 42 Revocation, and that DHS
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`“need[s] time to implement an orderly and safe termination of the order.” Order at 29. These skele-
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`tal assertions fail to satisfy the good cause exception for four reasons.
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`17.
`
`First, CDC had ample time to take public comment on revoking Title 42 and lacks any
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`pressing need or minimally persuasive excuse for failing to do so. President Biden issued an execu-
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`tive order on February 2, 2021, directing CDC and DHS to consider rescinding Title 42. Defendants
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`thus had one day short of fourteen months to take public comment on potentially rescinding Title 42.
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`They simply refused to do so. That willful failure to take public comments in that time is not “good
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`cause” under the APA.
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`18.
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`Second, Defendants ignore that while the initial promulgation of Title 42 invoked the
`
`good cause exception—because its issuance was during the rapidly unfolding beginning of the
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`Covid-19 pandemic—the same is not true here. This Order arises two full years into the pandemic,
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`where it is waning in some areas while a new variant threatens others. The exigency of the initial or-
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`der simply does not exist here. There is no “pandemic exception” to notice-and-comment require-
`
`ments, particularly two years into that pandemic.
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`19.
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`Third, the CDC ignores that it did take public comment on the initial Title 42 Order
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`under the Trump Administration, from March 24 to April 24, 2022, and then issued a final rule less
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`than five months after the comment period closed. 85 Fed. Reg. 56424, 56488 (Sept. 11, 2020).
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`There is no reason that the CDC could not have taken the same approach again here—and the CDC
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`certainly does not supply any. The CDC is thus simply wrong in contending that the “extraordinary
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`nature” of Title 42 orders necessarily eliminates the APA’s requirement for taking public comment,
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`as itsown actions demonstrate.
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`20.
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`Fourth, the CDC’s rationale is self-refuting: if Defendants “need time” to implement
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`7
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`Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 8 of 42 PageID #: 8
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`the Title 42 revocation, which the Order effectively concedes will be extraordinarily challenging, that
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`is a reason to take comments so the agency can have the benefit of public input and can use the
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`needed time to obtain it. Moreover, the disaster that the Administration correctly predicts could
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`easily be less calamitous if they take suggestions from the public and states and incorporate those
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`suggestions. But the CDC’s arrogant assertion that there is no value to be had from public commenting
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`does not constitute “good cause.”
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`21.
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`As to the foreign affairs exception, the CDC offers only a single unspecific sentence
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`contending that “this Order concerns ongoing discussions with Canada, Mexico, and other countries
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`regarding immigration and how best to control COVID-19 transmission over shared borders.” Or-
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`der at 29. That is patently insufficient.
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`22.
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`The “foreign affairs exception applies in the immigration context only when ordinary
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`application of the public rulemaking provisions [i.e., taking public comment] will provoke definitely unde-
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`sirable international consequences.” East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 775–76 (9th Cir.
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`2018) (cleaned up) (emphasis added). But the CDC does not identify any potential “undesirable in-
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`ternational consequences,” let alone establish with certainty that such consequences will occur. In-
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`stead, the CDC’s order merely alludes to the fact that the Administration is engaged in unspecified
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`talks with Canada and Mexico about Covid-19. That is woefully insufficient. The Administration
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`cannot evade notice-and-comment requirements by the expedient of simply talking with its neigh-
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`boring countries about the same subject in lieu of seeking comment from its own citizens. But that
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`is all Defendants offer here.
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`23.
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`For these reasons, neither the good cause nor foreign affairs exceptions apply here.
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`The CDC’s refusal to take public comment thus violates the APA and alone requires invalidation of
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`the Termination Order.
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`24.
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`That conclusion is perhaps unsurprising. The Biden Administration’s violation of no-
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`8
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`tice-and-comment requirements in the immigration context is by now notorious with federal courts.
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`See, e.g., Arizona v. Biden, __ F. Supp. 3d ___, 2022 WL 839672, at *36 (S.D. Ohio Mar. 22, 2022)
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`(holding that Plaintiffs states had established “strong likelihood the States prevail on their notice-
`
`and-comment claim” against DHS Permanent Guidance severely restricting immigration enforce-
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`ment); Texas v. United States, __ F. Supp. 3d ___, 2021 WL 3683913, at *51-58 (S.D. Tex. Aug. 19,
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`2021) (holding that DHS’s issuance of Interim Guidance, which similarly and severely reduced re-
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`movals of aliens with criminal convictions, violated notice-and-comment requirements); Texas v
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`United States, 524 F. Supp. 3d 598, 656-62 (S.D. Tex. 2021) (holding same for 100-day moratorium
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`on immigration removals). Indeed, at oral argument Justice Kagan recently observed another poten-
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`tial violation by DHS, explaining that “[t]he real issue to me is [DHS’s] evasion of notice-and-
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`comment.”16
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`25.
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`The Termination Order also violates the APA as arbitrary and capricious decision-
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`making. “[A]gency action is lawful only if it rests on a consideration of the relevant factors” and
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`considers all “important aspects of the problem.” Michigan v. EPA, 576 U.S. 743, 750-52 (2015) (re-
`
`quiring “reasoned decisionmaking”). This means agencies must “examine all relevant factors and
`
`record evidence.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017).
`
`26.
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`The CDC’s Order is arbitrary and capricious most obviously because it expressly re-
`
`fuses to analyze the impacts it will have upon the States. That is, after all, an “important aspect of
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`the problem.” Michigan, 576 U.S. at 752. Indeed, the Supreme Court has repeatedly recognized “the
`
`importance of immigration policy to the States,” particularly as the States “bear[] many of the con-
`
`sequences of unlawful immigration. Arizona v. United States, 567 U.S. 387, 397 (2012)
`
`27.
`
`The CDC does not even attempt to deny that its Title 42 Termination Order will
`
`
`16 Transcript at 47-48, Arizona v. San Francisco, No. 20-1775 (Feb. 23, 2022) available at
`https://bit.ly/3itwfq7
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`9
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`impose enormous costs upon the States. Nor did it make any attempt to analyze those substantial
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`harms—even though it was legally required to do so under the APA. See, e.g., Arizona v. Biden, 2022
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`WL 839672, at *30 (holding that DHS violated APA by providing “no explanation of how its poli-
`
`cy—that relaxes mandatory detention standards set by Congress—might increase state criminal jus-
`
`tice expenses”); Texas v. United States, 2021 WL 3683913, at *49 (explicitly rejecting “the Govern-
`
`ment’s argument that it need not consider the States’ costs and expenses stemming from the new
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`[immigration] guidelines” under the APA). Defendants thus violated the APA by failing to consider
`
`the impacts of their Order on the States, which is manifestly an “important aspect of the problem.”
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`Michigan, 576 U.S. at 752.
`
`28.
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`Rather than attempting to analyze the costs that its Order will impose on the States
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`whatsoever, CDC denies that it has any obligation to consider those harms at all. Instead, it reasons
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`that “no state or local government could be said to have legitimately relied on the CDC [Title 42]
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`Orders … because those orders are, by their very nature, short-term orders, authorized only when
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`specified statutory criteria are met, and subject to change at any time in response to an evolving pub-
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`lic health crisis.” Order at 23.
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`29.
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`The CDC’s argument fails for two reasons. First, regardless of the purported illegiti-
`
`macy of the State’s reliance on the CDC’s Title 42 Orders, the CDC still had an obligation to con-
`
`sider the harms to the States since that is an “important aspect of the problem.” Michigan, 576 U.S. at
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`752. The CDC has no license to inflict wanton harms on the States without at least first considering
`
`what the magnitude of those harms might be and whether they could be mitigated if the agency con-
`
`sidered alternatives with those harms in mind. See, e.g., id. at 759 (explain that agencies “must con-
`
`sider cost … before deciding whether regulation is appropriate and necessary”). Here the CDC
`
`failed to do so—and indeed expressly refused to consider those harms. Defendants’ APA violation is
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`thus explicit and admitted.
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`10
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`30.
`
`Second, even if the CDC were correct that the “short-term” nature of the Title 42 Or-
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`ders—which have been in place for two entire years and counting—meant that the States could rely
`
`on the Orders being in place permanently, the States still could reasonably rely on the CDC not to re-
`
`voke the Orders abruptly at a truly terrible time to do so. The Order’s timing will greatly exacerbate
`
`an already extant meltdown of operational control at the southern border—which even the Admin-
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`istration and its supporters fully expect. Supra ¶¶2-7, 10. Simply put, the States could reasonably rely
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`on the CDC not suddenly revoking its Title 42 Orders now, thereby stacking crisis upon crisis—or
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`in the words of DHS officer, inflicting a “surge on top of a surge.”
`
`31.
`
`A second principal deficiency of the Termination Order is that it fails to analyze
`
`meaningfully the entirely predictable—and actually predicted—surge of illegal migration that it will
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`cause. Indeed, the Administration has internally predicted that the Termination Order could triple
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`the daily number of illegal aliens attempting to cross the border. See infra ¶¶ 90. But the Termination
`
`Order never meaningfully analyzes these impacts or considers ways in which they might be mitigat-
`
`ed.
`
`32.
`
`These are only the most flagrant of the defects of the Order. It is also arbitrary and
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`capricious because it, for example, (1) failed to consider alternative effective dates, (2) failed to con-
`
`sider DHS’s inability to cope with the resulting surge and failure to plan adequately for it, (3) failed
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`to consider the impacts of the fact that there are huge numbers of aliens waiting at the southern bor-
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`der to cross the moment that Title 42 is rescinded, and (4) failed to consider the cumulative effects
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`of the rescission of the Title 42 rescission with the Administration’s attempted termination of the
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`Migrant Protection Protocol, see Texas v. Biden, 20 F.4th 928, 990 (5th Cir. 2021) cert. granted, 142 S.
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`Ct. 1098 (2022), whose impacts will snowball upon each other.
`
`33.
`
`For all of these reasons, the CDC’s Title 42 Termination Order violates the APA
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`many times over. This Court should accordingly “hold unlawful and set aside” that Order. 5 U.S.C.
`
`11
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`§ 706(2).
`
`PARTIES
`Plaintiff State of Arizona is a sovereign state of the United States of America. Arizo-
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`34.
`
`na sues to vindicate its sovereign, quasi-sovereign, and proprietary interests. Arizona brings this suit
`
`through its Attorney General, Mark Brnovich. He is the chief legal officer of the State of Arizona
`
`and has the authority to represent the State in federal court. His offices are located at 2005 North
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`Central Avenue, Phoenix, Arizona 85004.
`
`35.
`
`Plaintiff State of Louisiana is a sovereign State of the United States of America. Lou-
`
`isiana sues to vindicate its sovereign, quasi-sovereign, and proprietary interests. Louisiana brings this
`
`suit through its Attorney General, Jeff Landry. He is authorized by Louisiana law to sue on the
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`State’s behalf. His offices are located at 1885 North Third Street, Baton Rouge, Louisiana 70802.
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`36.
`
`Plaintiff State of Missouri is a sovereign State of the United States of America. Mis-
`
`souri sues to vindicate its sovereign, quasi-sovereign, and proprietary interests. Missouri brings this
`
`suit through its Attorney General, Eric S. Schmitt. He is authorized by Missouri law to sue on the
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`State’s behalf. His address is P.O. Box 899, Jefferson City, Missouri 65102
`
`37.
`
`Defendants are officials of the United States government and United States govern-
`
`mental agencies responsible for promulgating or implementing the Rule.
`
`38.
`
`Defendant Centers for Disease Control and Prevention is constituent agency of the
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`U.S. Department of Health and Human Services (“HHS”). It conducts specified functions under the
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`Public Health Service Act, including exercising authority delegated by HHS.
`
`39.
`
`Defendant Rochelle Walensky is the Director of the CDC. She is sued in her official
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`capacity.
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`40.
`
`Defendant U.S. Department of Health and Human Services is an executive depart-
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`ment of the United States Government.
`
`12
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`41.
`
`42.
`
`Defendant Xavier Becerra is the Secretary of HHS. He is sued in his official capacity.
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`Defendant United States Department of Homeland Security (“DHS”) is an executive
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`department of the United States Government.
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`43.
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`Defendant Alejandro Mayorkas is the Secretary of Homeland Security and therefore
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`the “head” of DHS with “direction, authority, and control over it.” 6 U.S.C. § 112(a)(2). Defendant
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`Mayorkas is sued in his official capacity.
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`44.
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`Defendant U.S. Customs and Border Protection (“USBP”) is an agency within DHS
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`that is headquartered in Washington, D.C.
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`45.
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`Defendant Christopher Magnus serves as Commissioner of USBP. Defendant Mag-
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`nus is sued in his official capacity.
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`46.
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`Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an agency within
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`DHS that is headquartered in Washington, D.C.
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`47.
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`Defendant Tae Johnson serves as Acting Director of ICE. Defendant Johnson is
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`sued in his official capacity.
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`48.
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`Defendant U.S. Citizenship and Immigration Services (“USCIS”) is an agency within
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`DHS that is headquartered in Camp Springs, Maryland.
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`49.
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`Defendant Ur Jaddou serves as the Director for USCIS. Defendant Jaddou is sued in
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`her official capacity.
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`50.
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`Defendant U.S. Border Patrol is an agency within DHS that is headquartered in
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`Washington, D.C.
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`51.
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`52.
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`Raul Ortiz serves as the Chief of the U.S. Border Patrol.
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`Defendant Department of Justice (“DOJ”) is an executive department of the United
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`States Government.
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`53.
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`Defendant Merrick Garland is the Attorney General of the United States of America.
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`He is sued in his official capacity.
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`54.
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`Defendant Executive Office for Immigration Review (“EOIR”) is an agency within
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`DOJ that is headquartered in Bailey's Crossroads, Virginia.
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`55.
`
`56.
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`Defendant David Neal is Director of EOIR. He is sued in his official capacity.
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`Defendant Joseph R. Biden, Jr., is the President of the United States. He is sued in
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`his official capacity.
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`57.
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`Defendant the United States of America is sued under 5 U.S.C. §§ 702–703 and 28
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`U.S.C. § 1346 and includes the departments and agencies thereof.
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`JURISDICTION AND VENUE
`This Court has subject-matter jurisdiction over this case because it arises under the
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`58.
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`Constitution and laws of the United States. See 28 U.S.C. §§1331, 1346, 1361; 5 U.S.C. §§701-06.
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`59.
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`An actual controversy exists between the parties within the meaning of 28 U.S.C.
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`§§2201(a), and this Court may grant declaratory relief, injunctive relief, and other relief under 28
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`U.S.C. §§2201-02, 5 U.S.C. §§705-06, 28 U.S.C. § 1361, and its inherent equitable powers.
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`60.
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`Venue is proper in this Court under 28 U.S.C. §1391(e)(1) because (1) Defendants
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`are United States agencies or officers sued in their official capacities, (2) the State of Louisiana is a
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`resident of this judicial district, (3) no real property is involved, and (4) a substantial part of the
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`events or omissions giving rise to the Complaint occur within this judicial district. See Atlanta & F.R.
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`Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1982); Ass’n of Cmty. Cancer Centers v. Azar, 509 F.
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`Supp. 3d 482 (D. Md. 2020).
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`FACTUAL AND LEGAL BACKGROUND
`The INA’s Requirements
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`Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 15 of 42 PageID #: 15
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`61.
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`The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, and the Immi-
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`gration and Nationality Act, 8 U.S.C. § 1101 et seq., charge DHS with enforcing the United States’
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`immigration laws. Under the immigration laws, “several classes of aliens are ‘inadmissible’ and there-
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`fore ‘removable.’” Dept. of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959, 1964 (2020), citing 8 U.S.C.
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`§§ 1182, 1229a(e)(2)(A). Among these classes are aliens who lack a valid entry document when they
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`apply for admission. 8 U.S.C. § 1182(a)(7)(A)(i)(l). This includes aliens who arrive in the United
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`States and aliens who are present in the United States without having been lawfully admitted, who
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`are deemed to have applied for admission. 8 U.S.C. § 1225(a)(1).
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`62.
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`An inadmissible alien may be removed; the usual process involves an evidentiary
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`hearing before an immigration judge at which the alien may present evidence and argue against re-
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`moval. Thuraissigiam, 140 S.Ct. at 1964. However, this process is slow, and while “removal is being
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`litigated, the alien will either be detained, at considerable expense, or allowed to reside in this coun-
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`try, with the attendant risk that he or she may not later be found.” Id.
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`63.
`
`To address these problems, Congress created more expedited procedures that apply
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`to aliens who are “present in the United States who [have] not been admitted” and to aliens “who
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`arrive[] in the United States (whether or not at a designated port of arrival ...)[.]” 8 U.S.C. §
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`1225(a)(1).
`
`64.
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`These aliens are subject to expedited removal if they (1) are inadmissible because
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`they lack a valid entry document; (2) have not “been physically present in the United States continu-
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`ously for the 2-year period immediately prior to the date of the determination of inadmissibility”;
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`and (3) are among those whom the Secretary of Homeland Security has designated for expedited
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`removal. Id. § 1225(b)(1)(A). Once an immigration officer determines that such an alien is inadmissi-
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`ble, the alien must be ordered “removed from the United States without further hearing or review.”
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`Id. § 1225(b)(1)(A)(i).
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`Case 6:22-cv-00885-RRS-CBW Document 1 Filed 04/03/22 Page 16 of 42 PageID #: 16
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`65. Whether subject to the standard removal process or the expedited process, aliens
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`who intend to claim asylum or who claim a credible fear of persecution are not deportable while that
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`claim is being investigated. See 8 U.S.C. §§ 1158, 1225(b)(1). But those aliens must be detained until
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`their entitlement to asylum is determined. Id. § 1225(b)(2).
`
`66.
`
`It has been generally accepted that DHS has the discretion as to whether to place al-
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`iens, other than unaccompanied children, into the standard removal process or into expedited re-
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`moval. See, e.g., Matter of M-S-, 27 I&N Dec. 509, 510 (A.G. 2019); Matter of E-R-M- & L-R-M-, 25
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`I&N Dec. 520, 524 (BIA 2011); 8 U.S.C. § 1232(a)(5)(D) (exception). Whichever path DHS chooses,
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`aliens placed in removal proceedings must be detained until DHS has finished considering the asy-
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`lum application or the removal proceedings. See Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018),
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`(citing 8 U.S.C. § 1225(b)(1), (2)). DHS may “for urgent humanitarian reasons or significant public
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`benefit” temporarily parole these aliens, but it may do so “only on a case-by-case basis.” 8 U.S.C.
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`§ 1182(d)(5)(A).
`
`67.
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`Another class of inadmissible aliens is those who have a “communicable disease of
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`public health significance[.]” 8 U.S.C. § 1182(a)(1)(A)(i). The INA defines a “communicable disease
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`of public health significance” by referring to “regulations prescribed by the Secretary of Health and
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`Human Services.” Id.
`
`68.
`
`There are two circumstances under which aliens must be detained to determine
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`whether they are inadmissible for public-health reasons. First,