Refugee and Immigrant Center for Education and Legal Services v. Noem

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REFUGEE AND IMMIGRANT CENTER

FOR EDUCATION AND LEGAL

SERVICES, et al.,

Plaintiffs,

Civil Action No. 25-306 (RDM)

v.

KRISTI NOEM, Secretary of Homeland

Security, in her official capacity, et al.,

Defendants.

MEMORANDUM OPINION

On January 20, 2025, the President issued a proclamation declaring that “the current

situation at the southern border qualifies as an invasion” because “the sheer number of aliens

entering the United States has overwhelmed the system” and is “prevent[ing] the Federal

Government from obtaining operational control of the border.” Proclamation 10888,

Guaranteeing the States Protection Against Invasion, 90 Fed. Reg. 8333, 8334–35 (Jan. 20,

2025) (the “Proclamation”). The Proclamation, in effect, prevents anyone who crosses the

southern border of the United States at any place other than a designated port of entry, as well as

anyone who enters anywhere else (including at a designated port of entry) without a visa or

without extensive medical information, criminal history records, and other background records,

from applying for asylum or withholding of removal. On Defendants’ telling, this dramatic step

was necessary to restore order to an immigration system that has become overrun by those who

enter the United States without authorization and then seek to stay here by applying for asylum

or withholding of removal. On Plaintiffs’ telling, in contrast, the Proclamation and

implementing guidance ignore the governing statutes and regulations and purport to rely on

statutory and constitutional provisions that neither contemplate nor permit such a wholesale

rewriting of the Nation’s immigration laws.

The Proclamation contains five operative sections, all of which—along with the

Department of Homeland Security’s implementing guidance—are at issue in this case:

The first and second sections operate together. The first “direct[s] that entry into the

United States” on or after January 20, 2025, of “aliens engaged in the invasion across the

southern border” is “suspended until [the President] issue[s] a finding that the invasion . . . has

ceased.” Proclamation, § 1. The implementing guidance clarifies that this group includes aliens

who enter the United States “between the ports of entry on the southern land border.” Dkt. 52-1

at 5. The second, in turn, restricts those individuals from invoking any provision of the

Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., “that would permit their

continued presence in the United States, including but not limited to” the asylum statute, 8

U.S.C. § 1158. Proclamation, § 2. Sections 1 and 2 of the Proclamation are premised on two

statutory sources of authority: 8 U.S.C. § 1182(f), which authorizes the President to suspend or

to restrict entry into the United States of any class of aliens if he finds that their entry “would be

detrimental to the interests of the United States,” and 8 U.S.C. § 1185(a), which makes it

“unlawful . . . for any alien to . . . enter the United States, except under such reasonable rules,

regulations, and orders and subject to such limitations and exceptions as the President may

prescribe.”

The third section relies on the same two sources of statutory authority but cuts a broader

geographic swath. It applies regardless of the point of entry, and it suspends “entry into the

United States of” any alien who, after January 20, 2025, “fails, before entering the United States,

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to provide Federal officials with sufficient medical information and reliable criminal history and

background information” to permit the government to determine, among other things, whether

the alien has “received vaccination against vaccine-preventable diseases,” has a communicable

disease or dangerous physical or mental disorder, is a drug abuser, has a disqualifying

conviction, or poses a threat to national security or public safety, see 8 U.S.C. § 1182(a).

Proclamation, § 3. Like Section 2, Section 3 also directs immigration authorities to “restrict”

these aliens from obtaining “access to provisions of the INA that would permit their continued

presence in the United States, including, but not limited to,” the right to apply for asylum. Id.

The fourth section does not rely on any statutory authority but, rather, invokes Article II

and Article IV, Section 4 of the Constitution. Proclamation, § 4. As relevant here, Article II

vests “[t]he Executive Power” of the United States in the President, while Article IV, Section 4

guarantees that “[t]he United States . . . shall protect each [State in the Union] against Invasion.”

Relying on these constitutional provisions, the Proclamation “suspend[s] physical entry of any

alien engaged in the invasion across the southern border of the United States” and “direct[s] the

Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney

General, to take appropriate actions . . . to achieve the objectives of” the Proclamation.

Proclamation, § 4.

Finally, the fifth section directs “[t]he Secretary of Homeland Security, in coordination

with the Secretary of State and the Attorney General, [to] take all appropriate action to repel,

repatriate, or remove any alien engaged in the invasion across the southern border” after January

20, 2025. Proclamation, § 5. That provision relies on both the statutory and the constitutional

authorities invoked in support of the preceding sections, and “delegate[s]” the President’s

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relevant constitutional authority to the Secretaries of Homeland Security and State and the

Attorney General for purposes of effectuating the Proclamation. Id.

Plaintiffs are thirteen individuals—A.M., Z.A., T.A., A.T., N.S., D.G., B.R., M.A., G.A.,

F.A., K.A., Y.A., and E.G—and three nonprofit organizations—Refugee and Immigrant Center

for Education and Legal Services (“RAICES”), Las Americas Immigrant Advocacy Center (“Las

Americas”), and the Florence Immigrant & Refugee Rights Project (“Florence Project”). The

thirteen individual plaintiffs, all of whom are or were subject to the Proclamation, have allegedly

“suffered past persecution and/or fear future persecution on account of their race, religion,

nationality, membership in a particular social group, or political opinion[s],” or have allegedly

“suffered or fear torture.” Dkt. 12 at 1. They allege that they have fled persecution in

Afghanistan, Ecuador, Cuba, Egypt, Brazil, Turkey, and Peru. Dkt. 11 at 9–10 (Am. Compl.

¶¶ 12–19). Some of the individual plaintiffs (N.S., D.G., F.A., K.A., Y.A., and E.G.) have

already been removed from the United States—or, as Defendants sometimes call it,

“repatriated”—pursuant to the Proclamation, either to their own country or to third countries like

Panama. See Dkt. 43-3 at 4–5 (Hollinder Decl. ¶¶ 6, 10); Dkt. 43-7 at 4, 6 (Huettl Decl. ¶¶ 8,

21). Other individual plaintiffs (A.M., Z.A., T.A., A.T., B.R., M.A., and G.A.) are still in the

United States. See Dkt. 43-3 at 3 (Hollinder Decl. ¶ 4); Dkt. 43-7 at 4–5 (Huettl Decl. ¶¶ 10, 14,

16). The individual plaintiffs seek to proceed both individually and on behalf of a putative class

of all others who “were, are, or will be subject to” the Proclamation. Id. at 27 (Am. Compl.

¶ 86). The three organizational plaintiffs provide legal services to individuals seeking asylum in

the United States and other forms of relief from immigration proceedings. Id. at 6–8 (Am.

Compl. ¶¶ 9–11).

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The fifteen defendants include President Trump, along with three cabinet-level

Departments (the Departments of Homeland Security, State, and Justice); three components of

the Department of Homeland Security (Customs and Border Patrol (“CBP”), Immigration and

Customs Enforcement (“ICE”), and United States Citizenship and Immigration Services

(“USCIS”)); and multiple agency officials sued in their official capacities (collectively, the

“Agency Defendants”). Dkt. 11 at 11–13 (Am. Compl. ¶¶ 20–35).

Plaintiffs allege that the Proclamation and its implementation are unlawful and mark a

dramatic break with decades of Executive Branch precedent. Dkt. 11 at 4 (Am. Compl. ¶ 3).

Among other things, they allege that the Proclamation and its implementation supplant the INA

with a non-statutory immigration regime, which violates (1) the asylum statute, which gives

aliens “physically present in the United States” the right to apply for asylum, “irrespective of

such alien’s status,” 8 U.S.C. § 1158(a)(1); (2) the withholding of removal statute, which

prohibits the Secretary of Homeland Security from “remov[ing] an alien to a country if the

Attorney General [or the Secretary] decides that the alien’s life or freedom would be threatened

in that country because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion,” 8 U.S.C. § 1231(b)(3); (3) the Foreign Affairs Reform and

Restructuring Act of 1998 (“FARRA”), which implements the United Nations Convention

against Torture and Other Curel, Inhuman, or Degrading Treatment or Punishment (“Convention

Against Torture” or “CAT”), 8 U.S.C. § 1231 note, and the Department of Justice and

Department of Homeland Security regulations implementing FARRA, see 8 C.F.R. §§ 208.16,

1208.16, which require immigration officials to process applications for protection under CAT in

a prescribed manner; and (4) the INA generally, which establishes the exclusive procedures for

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determining whether and how to remove an alien from the United States. 1 Dkt. 11 at 34–38

(Am. Compl. ¶¶ 128–31).

Most fundamentally, Plaintiffs posit that the authorities that Defendants invoke in support

of the Proclamation and implementing guidance do not authorize Defendants’ actions. They

challenge Defendants’ reliance on 8 U.S.C. § 1182(f), which permits the President to “suspend”

or “restrict[]” entry into the United States, and 8 U.S.C. § 1185(a), which makes it unlawful for

aliens to enter the United States “except under such reasonable rules . . . as the President may

prescribe,” to justify the denial of “access to asylum and other forms of protection,” Dkt. 11 at 41

(Am. Compl. ¶ 149). They also allege that the Proclamation exceeds the President’s authority

under Article II of the Constitution and his authority, if any, under Article IV, Section 4. Id. at

41–42 (Am. Compl. ¶¶ 155–56). And they allege that the Proclamation and implementing

guidance violate “fundamental separation-of-powers principles” by purporting to “override

Congress’s careful and longstanding decisions to provide protections for noncitizens fleeing

danger.” Id. at 42 (Am. Compl. ¶¶ 158–60).

Finally, Plaintiffs assert a series of claims under the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 701 et seq., against the Agency Defendants, alleging that the

implementing guidance is contrary to law, 5 U.S.C. § 706(2)(A). Dkt. 11 at 38–39 (Am. Compl.

¶¶ 132–37). Plaintiffs have also raised three APA claims that rely on the administrative record:

two arbitrary-and-capricious claims and a claim that the guidance was adopted without

observance of procedures required by law in violation of 5 U.S.C. § 706(2)(D). Id. at 38–40

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The Amended Complaint also alleged that the Proclamation violates the Trafficking Victims

Protection Reauthorization Act (“TVPRA”), 8 U.S.C. § 1232(a)(5)(D), which provides specific

protection to unaccompanied minors. Relying on Defendants’ representations that they are not

applying the Proclamation to unaccompanied minors, however, Plaintiffs are not currently

pursuing that claim. Dkt. 52 at 25 n.7.

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(Am. Compl. ¶¶ 132–43). At the joint request of the parties, the Court is holding those claims in

abeyance. Min. Entry (Feb. 26, 2025). But the Court, nonetheless, required Defendants to

produce the complete administrative record, see Min. Entry (May 13, 2025), which they did on

June 3, 2025, see Dkt. 68.

Before the Court are Plaintiffs’ motion to certify a class, Dkt. 13; Plaintiffs’ motion for a

preliminary injunction, Dkt. 14; Plaintiffs’ motion for summary judgment, Dkt. 51, which the

Court consolidated with the motion for preliminary relief, see Min. Order (Feb. 26, 2025); and

Defendants’ cross-motion for summary judgment, Dkt. 44. Given the time-sensitive nature of

Plaintiffs’ challenges to impending “repatriations” and removals, and given the difficult

questions posed by Plaintiffs’ request that the Court grant relief to those who have already been

removed from the United States, the Court will address the claims of those Plaintiffs and putative

class members who are currently in the United States in this decision and will, after providing an

opportunity for further briefing, address the claims of those who have already been removed in a

subsequent decision.

For the reasons that follow, the Court concludes that neither the INA nor the Constitution

grants the President or the Agency Defendants authority to replace the comprehensive rules and

procedures set forth in the INA and the governing regulations with an extra-statutory, extra-

regulatory regime for repatriating or removing individuals from the United States, without an

opportunity to apply for asylum or withholding of removal and without complying with the

regulations governing CAT protection. The Court recognizes that the Executive Branch faces

enormous challenges in preventing and deterring unlawful entry into the United States and in

adjudicating the overwhelming backlog of asylum claims of those who have entered the country.

But the INA, by its terms, provides the sole and exclusive means for removing people already

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present in the country, and, as the Department of Justice correctly concluded less than nine

months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority

to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II’s

Vesting Clause or Article IV’s Invasion Clause be read to grant the President or his delegees

authority to adopt an alternative immigration system, which supplants the statutes that Congress

has enacted and the regulations that the responsible agencies have promulgated. As the Framers

understood, “every breach of the fundamental laws,” even when “dictated by necessity,”

undermines respect for the rule of law and “forms a precedent for other breaches where the same

plea of necessity does not exist at all, or is less urgent or palpable.” The Federalist No. 25, at

167 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Here, nothing in the INA or the

Constitution grants the President or his delegees the sweeping authority asserted in the

Proclamation and implementing guidance. An appeal to necessity cannot fill that void.

The Court will, accordingly, GRANT in part Plaintiffs’ motion for summary judgment,

Dkt. 51; will GRANT in part Plaintiffs’ motion to certify a class, Dkt. 13, and will DEFER

ruling on the remaining portions of the parties’ cross-motions. The Court will also DIRECT that

the parties submit a joint status report proposing a schedule for further briefing on whether the

Court can and should grant relief to those Plaintiffs and putative class members who are no

longer present in the United States.

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TABLE OF CONTENTS

I. BACKGROUND ....................................................................................................................... 10

A. Statutory and Regulatory Background .............................................................................. 10

1. Admissibility and Inadmissibility ................................................................................. 10

2. Statutory Protections: Asylum, Withholding of Removal, and CAT Protection .......... 12

3. Formal and Expedited Removal Procedures ................................................................. 16

B. Prior Administrative Actions ............................................................................................ 19

C. Challenged Actions ........................................................................................................... 26

1. The Proclamation .......................................................................................................... 27

2. Implementing Guidance ................................................................................................ 28

II. LEGAL STANDARD .............................................................................................................. 37

III. ANALYSIS ............................................................................................................................. 38

A. Threshold Issues................................................................................................................ 38

1. Article III Standing ....................................................................................................... 38

2. Statutory Jurisdiction .................................................................................................... 56

3. Causes of Action ........................................................................................................... 61

B. Merits ................................................................................................................................ 70

1. “212(f) Direct Repatriation” and “212(f) Expedited Removal” ................................... 72

2. Suspension of Asylum .................................................................................................. 89

3. Suspension of Withholding of Removal ....................................................................... 98

4. Extra-Regulatory CAT Protection Procedures............................................................ 100

C. Class Certification........................................................................................................... 103

1. Rule 23(a).................................................................................................................... 105

2. Rule 23(b)(2) ............................................................................................................... 112

D. Remedy ........................................................................................................................... 113

1. Vacatur ........................................................................................................................ 114

2. Declaratory Judgment ................................................................................................. 117

3. Injunction .................................................................................................................... 117

E. Request for Stay Pending Appeal ................................................................................... 125

CONCLUSION ........................................................................................................................... 128

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I. BACKGROUND

A. Statutory and Regulatory Background

The INA sets out a comprehensive scheme that governs entry and removal of aliens from

the United States. Among other things, it specifies which aliens may lawfully enter the United

States, see, e.g., 8 U.S.C. §§ 1181, 1184; which aliens are inadmissible, see, e.g., id. § 1182;

which previously admitted aliens are subject to removal, see, e.g., id. § 1227; what protections

aliens can claim, see, e.g., id. §§ 1158, 1231; and the procedures for removing aliens, see, e.g.,

id. §§ 1225(b)(1), 1229a.

1. Admissibility and Inadmissibility

The INA sets forth criteria for determining whether an alien seeking admission is

admissible or inadmissible. Under the INA, no “immigrant”—other than a refugee admitted at

the discretion of the Attorney General and certain returning resident immigrants, see 8 U.S.C.

§ 1181(c)—may be admitted into the United States “unless at the time of application for

admission he” or she “has a valid unexpired immigrant visa.” Id. § 1181(a). Congress has also

specified “[c]lasses of aliens” who are “inadmissible”—i.e., those who are ineligible to receive a

visa and ineligible for admission into the United States. Id. § 1182. An alien is inadmissible, for

example, if he or she is “determined . . . to have a communicable disease of public health

significance” or fails “to present documentation of having received” specified vaccinations, id.

§ 1182(a)(1) (“Health-Related Grounds”); if he or she has been convicted of “a crime involving

moral turpitude,” has been convicted of two or more non-political offenses with an aggregate

sentence of five years or more, or has “been an illicit trafficker in any controlled substance,” id.

§ 1182(a)(2) (“Criminal and Related Grounds”); or if a consular officer has reasonable grounds

to believe that he or she is entering the United States to engage in espionage or sabotage or

terrorist activity, or “the Secretary of State has reasonable ground[s] to believe” permitting his or

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her entry “would have potentially serious adverse foreign policy consequences for the United

States,” id. § 1182(a)(3) (“Security and Related Grounds”). “An alien present in the United

States without being admitted or paroled, or who arrives in the United States at any time or place

other than as designated by the Attorney General” is also “inadmissible,” id. § 1182(a)(6), but is

deemed “an applicant for admission,” id. § 1225(a).

Aliens are also inadmissible if they were previously ordered removed or if they were

previously unlawfully present in the United States for an extended period. With certain

exceptions, an alien who has previously been ordered removed is inadmissible for five years

after the date of removal if he or she was removed upon arrival or by means of expedited

removal, or ten years after removal otherwise. Id. § 1182(a)(9)(A). If an alien has been ordered

removed twice or has been convicted of an aggravated felony, that bar increases to 20 years. Id.

Moreover, even if an alien voluntarily departs from the United States, he or she is deemed

“inadmissible” for three years if he or she was “unlawfully present . . . for a period of more than

180 days but less than 1 year,” and he or she is deemed inadmissible for ten years if he or she

was unlawfully present for a year or longer. Id. § 1182(a)(9)(B)(i). But, notably, “[n]o period of

time in which an alien has a bona fide application for asylum pending under section 1158 . . .

shall be taken into account in determining the period of unlawful presence in the United States”

for purposes of this latter provision. Id. § 1182(a)(9)(B)(iii).

In addition to the statutory limitations, “Congress has also delegated to the President

authority to suspend or restrict the entry of aliens in certain circumstances.” Trump v. Hawaii,

585 U.S. 667, 683 (2018). “The principal source of that authority, § 1182(f), enables the

President to ‘suspend the entry of all aliens or any class of aliens’ whenever he ‘finds’ that their

entry ‘would be detrimental to the interests of the United States.’” Id. (quoting 8 U.S.C.

11

§ 1182(f)). This provision “entrusts to the President the decisions whether and when to suspend

entry . . . and on what conditions.” Id. at 684. A second source of that authority, § 1185(a)(1),

“‘substantially overlaps’ with § 1182(f).” Id. at 683 n.1 (alteration omitted). It provides that,

“[u]nless otherwise ordered by the President, it shall be unlawful . . . for any alien to . . . enter

. . . the United States except under such reasonable rules, regulations, and orders, and subject to

such limitations and exceptions as the President may prescribe.” 8 U.S.C. § 1185(a)(1).

Inevitably, some aliens gain entry to the United States without being lawfully admitted.

Aliens who enter without being admitted are usually “remov[able]” upon the order of “an

immigration officer,” id. § 1225(b)(1)(A), or an immigration judge, id. § 1229a. Several

statutory provisions, however, allow otherwise removable aliens to remain in the United States

or restrict the countries to which those aliens may be removed. Three of these types of relief are

relevant for present purposes: asylum, withholding of removal, and Convention Against

Torture—or CAT—protection.

2. Statutory Protections: Asylum, Withholding of Removal, and CAT Protection

Asylum is the most protective of these types of relief. The INA authorizes the Attorney

General and Secretary of Homeland Security (“Secretary”) to grant asylum to any “alien who has

applied for asylum in accordance with the requirements and procedures established by the”

Attorney General or Secretary if “such alien is a refugee within the meaning of” the INA. 8

U.S.C. § 1158(b)(1)(A); see also id. § 1103(a)(1) & (3). An alien qualifies as a “refugee” for

purposes of the INA if he or she is “unable or unwilling to return to, and is unable or unwilling to

avail himself or herself of the protection of” his or her country of nationality (or, in the case of a

person with no nationality, his or her most recent country of residence) “because of persecution

or a well-founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” Id. § 1101(a)(42). Asylum creates a path to lawful

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permanent resident status and citizenship and confers other benefits, including the right to work

in the United States and to receive certain forms of financial assistance from the federal

government. See id. § 1158(c); see also Aliens Subject to a Bar on Entry Under Certain

Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934, 55936 (Nov.

9, 2018).

Asylum applications are governed by the INA and its implementing regulations. Under

the INA, any alien “physically present” or “who arrives in the United States” “may apply for

asylum,” regardless of “whether or not” the alien arrived “at a designated port of arrival” and

“irrespective of such alien’s status.” 8 U.S.C. § 1158(a). There are, however, exceptions to this

“general” rule. Id. An alien may not apply for asylum, for example, (1) “if the Attorney General

[or Secretary] determines that the alien may be removed, pursuant to a bilateral or multilateral

agreement, to a country (other than the country of the alien’s nationality . . .) in which the alien’s

life or freedom would not be threatened,” id. § 1158(a)(2)(A); (2) if the alien cannot

“demonstrate[] by clear and convincing evidence” that he or she filed his or her asylum

application within one year after arriving in the United States, subject to certain exceptions, id.

§ 1158(a)(2)(B); or (3) if the alien, again subject to certain exceptions, “previously applied for

asylum and had such application denied,” id. § 1158(a)(2)(C). The INA requires the Attorney

General and the Secretary to “establish a procedure for consideration of asylum applications”

and requires immigration officials to “advise the alien of the privilege of being represented by

counsel and of the consequences . . . of knowingly filing a frivolous asylum application.” Id.

§ 1158(d)(1) & (4); see also id. § 1103(a)(3). Aliens may apply for asylum affirmatively or

defensively. Aliens who are not in any kind of removal proceeding may file an affirmative

application for asylum. See id. § 1158(a)(1); 8 C.F.R. § 208.1(a)(1). In contrast, aliens who are

13

subject to regular removal proceedings under 8 U.S.C. § 1229a or expedited removal

proceedings under 8 U.S.C. § 1225(b)(1) may file an asylum application as a defense to removal,

see 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 208.2(b); 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R.

§ 208.30(f).

The Attorney General and the Secretary are tasked with determining whether an alien

qualifies for asylum, and their authority to grant or to deny asylum is, for the most part,

discretionary. See 8 U.S.C. § 1158(b)(1)(A). There are, however, certain statutory limitations

on their discretion to grant asylum. See id. § 1158(b)(2). Neither the Attorney General nor the

Secretary may, for example, grant asylum to an alien who “participated in the persecution of any

person,” who has “been convicted by a final judgment of a particularly serious crime,” or who

poses “a danger to the security of the United States.” Id. § 1158(b)(2)(A)(i)–(ii), (iv). In

addition to those statutory limitations, the INA authorizes the Attorney General and Secretary to

issue regulations “establish[ing] additional limitations and conditions, consistent with [8 U.S.C.

§ 1158,] under which an alien shall be ineligible for asylum.” Id. § 1158(b)(2)(C); see also id.

§ 1103(a)(3); 6 U.S.C. § 202. The existing regulatory limitations are set forth at 8 C.F.R.

§§ 208.13(c) and 208.35(a).

An alien who is ineligible for asylum or who is denied asylum may still apply for

withholding of removal and CAT protection. An alien is eligible for withholding of removal if

he or she can show “that it is more likely than not that he or she would be persecuted on account

of” a protected ground if removed from the United States. 8 C.F.R. § 1208.16(b)(2); see also 8

U.S.C. § 1231(b)(3). Withholding of removal, accordingly, requires a more substantial showing

than the “well-founded fear of persecution” standard applicable in asylum cases. See Kouljinski

v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007). Unlike asylum, however, withholding of removal

14

is not discretionary; the INA “requires the Attorney General [or the Secretary of Homeland

Security] 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.” INS v. Cardoza-Fonseca,

480 U.S. 421, 423 (1987) (emphasis added); see also 8 U.S.C. § 1231(b)(3) (“[T]he Attorney

General may not remove an alien to a country if the Attorney General decides that the alien’s life

or freedom would be threatened in that country because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion.”) (emphasis added). Although

withholding is thus mandatory, the relief that it provides is more circumscribed than asylum;

withholding does not preclude the government from removing the alien to a third country where

the alien would not face persecution, does not establish a pathway to lawful permanent resident

status and citizenship, and does not afford derivative protection for the alien’s family members.

See 83 Fed. Reg. at 55939.

The Convention Against Torture, as implemented in the United States, provides another

avenue of protection for aliens facing removal. It is 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,

regardless of whether the person is physically present in the United States.” 8 U.S.C. § 1231

note (United States Policy with Respect to Involuntary Return of Persons in Danger of

Subjection to Torture). Congress has implemented this policy by instructing “the heads of the

appropriate agencies” to prescribe regulations to effectuate Article 3 of the United Nations

Convention Against Torture. See id. Under the existing implementing regulations, an alien may

establish entitlement to CAT protection by demonstrating “that it is more likely than not that he

or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.

15

§ 208.16(c)(2). Like withholding of removal, CAT protection does not preclude the government

from removing the alien to a third country where he or she would not be tortured.

3. Formal and Expedited Removal Procedures

Before 1996, “an individual in the United States without proper documentation could be

considered ‘deportable,’ 8 U.S.C. § 1251(a) (1995), if, among other things, that person had

‘entered the United States without inspection or at any time or place other than as designated by

the Attorney General[,]’ see id. § 1251(a)(1)(B) (1995).” Make The Road New York v. Wolf, 962

F.3d 612, 618 (D.C. Cir. 2020). Deportation proceedings involved “a hearing before a special

inquiry officer [at] which the individual had the right to be represented, to examine the

government’s evidence, and to present evidence on his or her behalf,” and “[a]n officer’s

determination that an individual was deportable was subject to judicial review.” Id. Since

enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”),

Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), in 1996, however, removal proceedings have

followed two alternative routes, the second of which requires far less process.

Under the first route, which follows the pre-IIRIRA approach, “formal” or “regular”

removal proceedings are conducted before an immigration judge within the Department of

Justice’s Executive Office of Immigration Review (“EOIR”). See 8 U.S.C. § 1229a. Under this

route, the alien is entitled to various procedural guarantees, including the rights to written notice

of the charge of removability, to counsel of the alien’s choice (at no expense to the government),

to appear at a hearing before an immigration judge and to examine and to present evidence, to

appeal an adverse decision to the Board of Immigration Appeals (“BIA”), and to seek judicial

review. Id. §§ 1229(a)(1), 1229a(b)(4), 1229a(c)(5), 1252(a); 8 C.F.R. §§ 1003.1(b),

1240.11(a)(2), 1240.15. An alien placed in formal removal proceedings may avoid removal by

16

establishing, through this adversarial process, that he or she is eligible for asylum, withholding of

removal, CAT protection, or some other form of relief. See 8 U.S.C. § 1229a(c)(4).

The second type of proceedings, known as “expedited removal,” affords considerably

less process to a subset of aliens. The INA mandates the use of expedited removal for aliens

who are arriving in the United States without valid entry documents. See id. § 1225(b)(1)(A)(i).

It also authorizes the use of expedited removal for aliens who have “not been admitted or paroled

into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an

immigration officer, that [they have] been physically present in the United States continuously

for the 2-year period immediately prior to the date of the determination of inadmissibility.” Id.

§ 1225(b)(1)(A)(iii). With respect to the second category, however, the Secretary has “sole and

unreviewable discretion” to apply expedited removal to some, none, or all of the aliens in that

group. Id. Initially, the Secretary only applied expedited removal to aliens “arriving” at a point

of entry or “‘interdicted in international or United States waters and brought into the United

States.’” Make The Road New York, 962 F.3d at 619–20 (citation omitted). Currently, however,

the Secretary uses expedited removal to the maximum extent permitted by the statute—that is,

for anyone who was not admitted or paroled into the United States and who cannot satisfy the

two-year physical presence requirement, regardless of whether that person is found at the border

or anywhere else in the United States. 2

2

In 2002, the Commissioner of the Immigration and Naturalization Service (“INS”) expanded

the subclass of those eligible for expedited removal to include “all aliens who arrive in the

United States by sea, either by boat or other means, who are not admitted or paroled, and who

have not been physically present in the United States continuously for the two-year period prior

to a determination of inadmissibility by a[n] [INS] officer.” Notice Designating Aliens Subject

to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act,

67 Fed. Reg. 68924, 68925 (Nov. 13, 2002). In 2004, the Secretary of Homeland Security

expanded the subclass once again, this time reaching inadmissible aliens “who [were] physically

17

Under expedited removal procedures, the Secretary may remove an alien from the United

States “without further hearing or review[,] unless the alien indicates either an intention to apply

for asylum under [8 U.S.C. § 1158] or a fear of persecution” supporting a claim to withholding

of removal or CAT protection. 8 U.S.C. § 1225(b)(1)(A)(i). If “the alien indicates either an

intention to apply for asylum . . . or a fear of persecution, the [immigration] officer [is required

to] refer the alien for an interview by an asylum officer,” who must determine whether the alien

has a credible “fear of persecution.” Id. § 1225(b)(1)(A)(ii). For purposes of the asylum

officer’s assessment, a credible fear of persecution means “that there is a significant possibility

. . . that the alien could establish eligibility for asylum.” Id. § 1225(b)(1)(B)(v). 3 If the asylum

present in the U.S. without having been admitted or paroled following inspection by an

immigration officer at a designated port-of-entry, who are encountered by an immigration officer

within 100 air miles of any U.S. international land border, and who ha[d] not established to the

satisfaction of an immigration officer that they ha[d] been physically present in the U.S.

continuously for the 14-day period immediately prior to the date of encounter.” Designating

Aliens for Expedited Removal, 69 Fed. Reg. 48877, 48880 (Aug. 11, 2004).

That designation applied until 2019, when the Secretary expressed his intent to “exercise the full

remaining scope of its statutory authority” to apply expedited removal procedures to all aliens

determined inadmissible under 8 U.S.C. § 1182(a)(6)(C) or 8 U.S.C. § 1182(a)(7). See

Designating Aliens for Expedited Removal, 84 Fed. Reg. 35409, 35409 (Jul. 23, 2019). That

designation remained in place until March 2022, when the Secretary returned to the pre-2019

designation. See Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited

Removal, 87 Fed. Reg. 16022 (Mar. 21, 2022). Finally, on January 24, 2025, the Acting

Secretary rescinded the rescission to again “apply expedited removal to the fullest extent

authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24,

2025).

3

The standard for establishing a “credible fear” is lower than the standard for obtaining asylum

itself. The Supreme Court has indicated that to prevail on an asylum claim, applicants must

establish that there is roughly a 10% chance that they will be persecuted on account of a

protected ground if they are returned to their country of origin. See Cardoza-Fonseca, 480 U.S.

at 431–32, 440. In contrast, to prevail at the initial credible fear interview, applicants usually

need only show “a significant possibility” that they could establish eligibility for asylum,

withholding of removal, or CAT protection. 8 U.S.C. § 1225(b)(1)(B)(v); 8 C.F.R.

§ 208.30(e)(2). There is one exception: a 2024 rule created a separate credible fear regime for

most aliens who enter the southern border during periods when border crossings are high, which

18

officer determines that the alien has a credible fear, “the alien [is] detained for further

consideration of the application for asylum,” id. § 1225(b)(1)(B)(ii), and is typically placed in

formal removal proceedings. If, on the other hand, the asylum officer determines that the alien

does not have a credible fear of persecution, “the officer shall order the alien removed from the

United States without further hearing or review.” Id. § 1225(b)(1)(B)(iii)(I).

B. Prior Administrative Actions

The Proclamation at issue in this case is not the first executive action adopted to restrict

access to asylum for those crossing the southern border, although the two most analogous actions

differ from the present approach in important respects.

In 2018, President Trump issued a proclamation that, like the Proclamation at issue here,

relied on § 1182(f) and § 1185(a) to declare that “[t]he entry of any alien into the United States

across the international boundary between the United States and Mexico,” at any point other than

a designated port of entry, “is hereby suspended and limited” for a period of ninety days or until

“an agreement permits the United States to remove aliens to Mexico” pursuant to 8 U.S.C.

§ 1158(a)(2)(A). 4 Proclamation 9822, Addressing Mass Migration Through the Southern Border

of the United States, 83 Fed. Reg. 57661, 57663 (Nov. 15, 2018) (“2018 Proclamation”). The

2018 Proclamation was unlike the Proclamation at issue today, however, in two respects. First, it

expressly reserved the right of any alien to be “considered for withholding of removal.” Id.

requires aliens to demonstrate a “reasonable probability” that they will be persecuted. See

Securing the Border, 89 Fed. Reg. 81156, 81168 (Oct. 7, 2024); see also infra at 22–26. That

component of the rule was recently upheld. See Las Americas Immigrant Advoc. Ctr. v. U.S.

Dep’t of Homeland Sec., __ F. Supp. 3d __, 2025 WL 1403811, at *19 (D.D.C. May 9, 2025).

4

8 U.S.C. § 1158(a)(2)(A) provides that an alien may not apply for asylum in the United States

“if the Attorney General determines that the alien may be removed, pursuant to a bilateral or

multilateral agreement, to a country (other than the country of the alien’s nationality . . .) in

which the alien’s life or freedom would not be threatened.”

19

Second, it did not purport to have any stand-alone effect. It was, of course, already unlawful to

enter the United States outside of a designated port of entry, and so the suspension of entry alone

had no separate legal effect on the status of any of the aliens it covered. 8 U.S.C. § 1325(a). The

2018 Proclamation was given teeth only through an interim final rule promulgated by the

Attorney General and the Secretary the same day the President issued the proclamation.

Relying on their authority under 8 U.S.C. § 1158(b)(2)(C) to “establish additional

limitations and conditions, consistent with [8 U.S.C. § 1158], under which an alien shall be

ineligible for asylum,” the Attorney General and Secretary amended the governing regulations to

add the following:

Additional limitation on eligibility for asylum. For applications filed after

November 9, 2018, an alien shall be ineligible for asylum if the alien is subject

to a presidential proclamation or other presidential order suspending or limiting

the entry of aliens along the southern border with Mexico that is issued pursuant

to subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 and

the alien enters the United States after the effective date of the proclamation or

order contrary to the terms of the proclamation or order. This limitation on

eligibility does not apply if the proclamation or order expressly provides that it

does not affect eligibility for asylum, or expressly provides for a waiver or

exception that makes the suspension or limitation inapplicable to the alien.

8 C.F.R. § 208.13(c)(3) (2018); see also Aliens Subject to a Bar on Entry Under Certain

Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934, 55935 (Nov.

9, 2018) (the “2018 Rule”). The 2018 Rule also amended the regulation governing credible fear

determinations in expedited removal proceedings, 8 C.F.R. § 208.30, by directing asylum

officers to make a “negative credible fear determination” if the alien was in the class of aliens

that the rule rendered ineligible for asylum. Id. § 208.30(e)(5) (2018). Thus, operating in

conjunction, the 2018 Proclamation and the joint Department of Justice–Department of

Homeland Security rule barred anyone who unlawfully entered the United States across the

20

southern border after November 9, 2018, from obtaining asylum, but continued to allow qualified

applicants to obtain withholding of removal.

The 2018 Rule was short lived. Ten days after the rule was promulgated, a district court

issued a temporary restraining order barring its implementation, see E. Bay Sanctuary Covenant

v. Trump, 349 F. Supp. 3d 838 (N.D. Cal. 2018); that court subsequently issued a preliminary

injunction further barring implementation, see E. Bay Sanctuary Covenant v. Trump, 354 F.

Supp. 3d 1094 (N.D. Cal. 2018); and the Court of Appeals for the Ninth Circuit affirmed that

decision, see E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020), as modified

by E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021).

While the Ninth Circuit litigation addressed the plaintiffs’ motion for preliminary relief,

this Court considered the lawfulness of the 2018 Rule on the merits in O.A. v. Trump, 404 F.

Supp. 3d 109 (D.D.C. 2019). After extensive briefing and oral argument, the Court concluded

that the interim final rule was unlawful, and it, accordingly, vacated the rule. Id. at 147–54. As

the Court explained, § 1158(b)(2)(C) permits the Attorney General and Secretary to “establish

additional limitations and conditions” of eligibility for asylum, but only to the extent those

limitations are “consistent with” § 1158. Id. at 148. Section 1158, in turn, 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) (emphasis added). The parties agreed, moreover, “that a

regulation barring all aliens who enter the United States from Mexico outside a designated port

of entry from applying for asylum would be ‘inconsistent with’ § 1158(a)(1) and, thus, ultra

vires.” 404 F. Supp. 3d at 148. The only question, then, was whether the rule could survive

scrutiny merely because it made all aliens entering from Mexico outside a port of entry ineligible

21

for asylum, rather than barring those individuals from applying. As the Court explained,

common usage, the manner in which asylum claims are considered, and other immigration

regulations made clear that, at least in the relevant context, there was no meaningful difference

between a rule barring the covered aliens from applying for asylum and a rule treating them as

ineligible. Id. at 148–50. Finally, the Court observed:

Even assuming that the phrases “may not apply” and “are ineligible” reflect

some subtle distinction in meaning, the relevant question is not whether the Rule

uses the exact same words as in the statutory prohibition. The question, instead,

is whether the Rule is “consistent with,” 8 U.S.C. § 1158(b)(2)(C), the statutory

mandate that any alien present in the United States “may apply for asylum,”

regardless of “whether or not” the alien entered the United States “at a

designated port of arrival,” 8 U.S.C. § 1158(a)(1). Defendants do not even

attempt to satisfy that test, nor could they.

Id. at 149. Although Defendants initially appealed the Court’s decision in O.A., the parties later

agreed to dismiss the appeal. See O.A. v. Biden, 2023 WL 7228024 (D.C. Cir. Nov. 1, 2023).

That is how things stood until June 2024, when President Biden issued a proclamation,

which, like the 2018 Proclamation, invoked § 1182(f) and § 1185(a) to suspend and limit entry of

certain aliens across the southern border. Proclamation 10773, Securing the Border, 89 Fed.

Reg. 48487 (June 7, 2024) (the “2024 Proclamation”). Unlike the 2018 Proclamation, however,

this proclamation was keyed to the average number of aliens (over a period of 7 consecutive

calendar days, which was later extended to 28 consecutive days) who were either physically

apprehended by U.S. immigration authorities at or near the border within 14 days of their entry

between ports of entry or determined to be inadmissible at a southwest border of entry. 2024

Proclamation, 89 Fed. Reg. at 48491–92, §§ 2, 4; see also Proclamation 10817, Amending

Proclamation 10773, 89 Fed. Reg. 80351, 80352 (Oct. 2, 2024). When the number of

“encounters” fell below a designated number, the suspension was discontinued after a 14-day

22

waiting period, but it would be reinstated if the 7-consecutive-day average reached a designated

number. 2024 Proclamation, 89 Fed. Reg. at 48491, § 2.

Like the 2018 Proclamation, the 2024 Proclamation was given operative effect through

an interim final—and, later, a final—rule promulgated by the Attorney General and the

Secretary. And like the 2018 Rule, the 2024 interim final rule, see Securing the Border, 89 Fed.

Reg. 48710 (June 7, 2024), and the 2024 final rule, see Securing the Border, 89 Fed. Reg. 81156

(Oct. 7, 2024) (together, “2024 Rule”), were premised on the Attorney General and Secretary’s

authority to promulgate regulations “establish[ing] additional limitations and conditions,

consistent with [8 U.S.C. § 1158], under which an alien shall be ineligible for asylum,” 8 U.S.C.

§ 1158(b)(2)(C). Under both versions of the 2024 Rule, when a suspension of entry is in

effect—referred to as “emergency border circumstances”—a covered alien who enters the United

States across the southern border is ineligible for asylum, except under “exceptionally

compelling circumstances.” 8 C.F.R. § 208.35(a); 2024 Rule, 89 Fed. Reg. at 81164; see also

2024 Proclamation, § 3(b) (defining covered aliens and excluding, for example, visa holders,

members of the U.S. Armed Forces, and permanent resident aliens). “Exceptionally compelling

circumstances,” include, for example, those facing “an acute medical emergency,” facing “an

imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping,

torture, or murder,” or who satisfy the definition of a “victim of a severe form of trafficking in

persons” under 8 U.S.C. § 214.201. 8 C.F.R. § 208.35(a)(2). Beyond this change in asylum

eligibility, the 2024 Rule made a host of additional changes that would apply during “emergency

border circumstances.” Asylum officers would no longer ask specific fear questions to elicit

whether an alien might have a credible fear and, instead, would refer aliens for a credible fear

interview only if they affirmatively manifested fear. 89 Fed. Reg. at 81168, 81232–45. In

23

addition, the screening standard in credible-fear interviews was increased from “significant

possibility” to “reasonable probability.” Id. at 81245–50.

In adopting this rule, the Attorney General and Secretary acknowledged certain

limitations contained in the relevant statutory authorities. First and foremost, they observed that

“the [2024] Proclamation itself does not and cannot affect noncitizens’ right to apply for asylum,

their eligibility for asylum, or asylum procedures.” Id. at 81163. As they explained, this

“recognition that” 8 U.S.C. § 1182(f) does not authorize the President to “affect the right to

pursue a claim for asylum has been the Executive Branch’s consistent position for four decades.”

Id. Rather, as the Attorney General and Secretary further explained, although the President’s

authority under § 1182(f) is broad, it operates only “within its ‘sphere,’” id. (quoting Trump v.

Hawaii, 585 U.S. at 683–84), and it “does not authorize the President to override the asylum

statute,” id. That is because § 1182(f) delegates authority to the President to “‘supplement the

other grounds of inadmissibility in the INA,’” id. (quoting Trump v. Hawaii, 585 U.S. at 684)—

that is, to specify who may “enter” the United States. In contrast, “[t]he right to apply for

asylum” contained in 8 U.S.C. § 1158(a) “turns on whether a noncitizen is ‘physically present’ or

has ‘arrive[d] in the United States,” id. at 81164 (quoting 8 U.S.C. § 1158(a)(1)). “As a result,

the power under [§ 1182(f)] to suspend ‘entry’ does not authorize the President to override the

asylum rights of noncitizens who have already physically entered the United States.” Id.

Second, the Attorney General and Secretary recognized that their statutory authority to

set “additional limitations and conditions” on eligibility for asylum pursuant to § 1158(b)(2)(C)

does not extend to withholding of removal (or CAT protection). Although the 2024 Rule

modified certain procedures relating to withholding of removal, the Attorney General and

Secretary stressed that the “rule’s limitation on asylum eligibility does not affect a noncitizen’s

24

ultimate eligibility for statutory withholding of removal” under § 1231(b)(3). 89 Fed. Reg. at

81253.

Finally, while reserving their objections to the decision, the Attorney General and

Secretary recognized that the Ninth Circuit had concluded that the 2018 Rule was invalid

because any regulation adding limitations to asylum eligibility that do not appear in the statute

must be “consistent with” the statute, 8 U.S.C. § 1158(b)(2)(C), and the statute permits “[a]ny

alien who is physically present in the United States” to apply for asylum, “whether or not” the

alien entered at “a designated port of arrival” and “irrespective of such alien’s status,” 8 U.S.C.

§ 1158(a)(1). See 89 Fed. Reg. at 48735 (citing E. Bay, 993 F.3d. at 670). The 2024 Rule sought

to distinguish East Bay on the ground that the 2024 Proclamation and 2024 Rule “differ

significantly from the prior categorical bar on ‘manner of entry’ because they do not treat the

manner of entry as dispositive in determining eligibility.” Id. Rather, the limitation contained in

the 2024 Rule applied only “during emergency border circumstances” and, even then, the rule

provided asylum officers and immigration judges with authority “to except noncitizens from the

rule’s asylum limitation where the noncitizens establish that an exceptionally compelling

circumstance exists.” Id. As a result, the Attorney General and Secretary took the position that:

The [2024 Rule] is within the scope of the Departments’ authority and does not

conflict with the statutory requirement that noncitizens “physically present in

the United States” be permitted to apply for asylum because it adds a limitation

on asylum eligibility as permitted under . . . 8 U.S.C. 1158(b)(2)(C) and

(d)(5)(B). The limitation is not a sweeping categorical bar that would preclude

a grant of asylum solely based on manner of entry, which some courts have

found to conflict with . . . 8 U.S.C. 1158(a)(1). E.g., East Bay Sanctuary

Covenant v. Biden (East Bay III), 993 F.3d 640, 669–70 (9th Cir. 2021)

(concluding that a prior regulation that enacted a bar on asylum eligibility for

those who entered the United States between designated POEs was “effectively

a categorical ban” on migrants based on their method of entering the United

States, in conflict with . . . 8 U.S.C. 1158(a)(1)).

89 Fed. Reg. at 81169–70.

25

In May 2025, this Court (Contreras, J.) struck down portions of the 2024 Rule. See Las

Americas Immigrant Advoc. Center v. U.S. Dep’t of Homeland Sec., __ F. Supp. 3d __, 2025 WL

1403811 (D.D.C. May 9, 2025). First, the Court held that the rule’s “limitation on asylum

eligibility” for aliens who arrive in the United States outside a port of entry “exceed[ed] the

authority that Congress conferred on the Secretary of Homeland Security to ‘establish additional

limitations and conditions’ on asylum that are ‘consistent with’ section 1158 of the INA”

because “place-of-entry-based bans” are inconsistent with § 1158’s instruction that “asylum is

available ‘whether or not’ a noncitizen arrives ‘at a designated port of entry.’” Id. at *14–15

(quoting 8 U.S.C. § 1158). Second, the Court held that the Secretary’s decision to no longer ask

specific fear questions and, instead, to refer aliens for a credible fear interview only if they

manifested fear was arbitrary and capricious because it “risk[ed] different results for identically

situated” aliens. Id. at *15. It therefore struck down that portion of the regulation as well. The

Court, however, upheld the 2024 Rule’s change to the screening standard in credible-fear

interviews—the shift from a “significant possibility” to a “reasonable probability” standard—

because the Secretary had “reasonably explained why changed circumstances” justified the

heightened standard. Id. at *18.

C. Challenged Actions

The challenged actions in this case differ from the 2018 and 2024 Proclamations and

Rules in several significant respects. Most notably, unlike the 2018 and 2024 Rules, which

relied on the statutory delegation to the Attorney General and the Secretary of authority to

establish, “by regulation,” “additional limitations and conditions” on eligibility for asylum, 8

U.S.C. § 1158(b)(2)(C), the Proclamation at issue here relies exclusively on the President’s

statutory authority to suspend or restrict entry into the United States, 8 U.S.C. §§ 1182(f),

1185(a)(1), and his constitutional authority. Moreover, rather than engage in a rulemaking, the

26

Secretary has implemented the Proclamation at issue here through informal guidance, consisting

primarily of purely internal email communications with agency personnel.

1. The Proclamation

After describing the difficulties posed by the “ongoing influx” of millions of aliens across

the southern border of the United States,” the Proclamation contains five operative sections.

Proclamation, 90 Fed. Reg. 8333–36. The first two sections apply to aliens who are “engaged in

the invasion across the southern border.” Proclamation, §§ 1–2. The first, entitled “Suspension

of Entry,” proclaims that “the entry into the United States on or after the date of this order of

aliens engaged in the invasion across the southern border is detrimental to the interest of the

United States” and invokes § 1182(f) to “direct that entry into the United States of such aliens be

suspended” until the President issues an order declaring the invasion over. Proclamation, § 1.

The second section then directs that “aliens engaged in the invasion . . . are restricted from

invoking provisions of the INA that would permit their continued presence in the United States,”

including the right to apply for asylum under 8 U.S.C. § 1158(a). Proclamation, § 2.

The third section imposes similar restrictions for “any alien who fails, before entering the

United States, to provide Federal officials with sufficient medical information and reliable

criminal history and background information as to enable fulfillment of the requirements” in 8

U.S.C. § 1182(a)(1)–(3), which, as described above, impose a series of limitations on

admissibility on “health-related grounds,” “criminal and related grounds,” and “security and

related grounds.” Proclamation, § 3; see also 8 U.S.C. § 1182(a) & (1)–(3). The Proclamation

declares that entry of these individuals into the United States “is detrimental to the interests of

the United States” and, once again invoking § 1182(f) and § 1185(a), it “direct[s] that entry into

the United States of such aliens be suspended.” Proclamation, § 3. Those who fall into this

category, like those “engaged in the invasion,” are also precluded from invoking “provisions of

27

the INA that would permit their continued presence in the United States,” including the right to

apply for asylum under 8 U.S.C. § 1158(a). Proclamation, § 3.

The fourth section take a different approach to the same problem. It also suspends the

entry of those “engaged in the invasion across the southern border,” but rather than rely on any

statutory authority to do so, this section relies on “the authorities provided to [the President]

under Article II of the Constitution of the United States, including [the President’s] control over

foreign affairs, and [his authority] to effectuate the guarantee of protection against invasion

required by Article IV, Section 4.” Proclamation, § 4. The fourth section also “direct[s] the

Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney

General, to take appropriate actions as may be necessary to achieve the objectives of [the

Proclamation], until [the President] issue[s] a finding that the invasion at the southern border has

ceased.” Proclamation, § 4.

Finally, the fifth section directs the Secretary of Homeland Security, acting in

coordination with the Secretary of State and the Attorney General, to “take all appropriate

actions to repel, repatriate, or remove any alien engaged in the invasion across the southern

border of the United States on or after the date of this order.” Proclamation, § 5. Combining the

sources of authority invoked in support of the preceding sections, this section relies on § 1182(f)

and § 1185(a), as well as a “delegat[ion]” of the President’s constitutional authority. Id.

2. Implementing Guidance

In response to the directive that the Secretary “take all appropriate action” to implement

the Proclamation, id. § 5, the Department of Homeland Security has issued implementing

guidance regarding the procedures to follow with respect to “alien[s] subject to the

Proclamation,” Dkt. 52-1 at 13. That guidance includes emails sent to U.S. Border Patrol

(“USBP”) personnel explaining how to process aliens subject to the Proclamation; an Office of

28

Field Operations memorandum describing how to implement active executive orders, including

the Proclamation; and USCIS training materials instructing asylum officers on how to conduct

credible fear interviews for aliens subject to the Proclamation.

a. U.S. Border Patrol Emails

The administrative record includes three emails containing USBP guidance. The first

email has the subject line “Update Field Guidance for Southern Border RE: 212(F) Presidential

Proclamation Guaranteeing the States Protection Against Invasion” and was sent on February 4,

2025, for “disseminat[ion] . . . to all Southwest Border Sectors.” Dkt. 52-1 at 5. As one might

expect from guidance directed at border agents on the southern border, it is concerned primarily

with the first category of aliens identified in the Proclamation: those “engaged in the invasion

across the southern border.” See Dkt. 52-1 at 5; see also Proclamation, § 2. For purposes of

implementing the 2025 Proclamation, the guidance defines an “illegal alien invading the United

States” to mean “an alien who crosses between the ports of entry on the southern land border.”

Id. The guidance directs that “aliens invading the United States”—i.e., those subject to the

Proclamation—“are not permitted to apply for asylum.” Id. (emphasis in original).

The second email, also sent on February 4, 2025, has the subject line “Field Guidance for

Northern and Coastal Borders RE: 212(F) Presidential Proclamation Guaranteeing the States

Protection Against Invasion” and was sent “to all Northern and Coastal Border Sectors.” Dkt.

52-1 at 13. This guidance, in contrast, focuses on the second category of aliens identified in the

Proclamation: those “who fail[], before entering the United States, to provide Federal officials

with sufficient medical information and reliable criminal history and background information,”

Proclamation, § 3. See Dkt. 52-1 at 13. The guidance provides that “the entry of aliens who

[have] failed to provide such information is suspended, and they are restricted from invoking

provisions of the INA, including asylum, that would permit their continued presence.” Id.

29

(emphasis in original). The guidance also provides that aliens with valid travel documents have

“[p]resumptively” provided sufficient information such that they do not fall within the

Proclamation’s ambit. Id.

Both February 4 emails then describe the procedures to be used when processing

individuals subject to the Proclamation. Those subject to the Proclamation “may be processed”

in one of two ways: “as a 212(f) Direct Repatriation” or by “212(f) Expedited Removal” (which

is sometimes referred to as “Expedited Removal – Per 212(F)”). Id. at 5–6, 13–14. According to

Defendants, the difference between the two pathways is that “[a]liens subject to expedited

removal procedures are served with a Notice to Alien Ordered Removed and issued an Expedited

Removal Order (Form I-860),” while “[a]liens processed for repatriation are not issued a removal

order.” Dkt. 59 at 7. Beyond the issuance of a notice and order, however, Defendants fail to

identify any difference between the two “212(f)” procedures. According to Defendants, issuance

of a removal order matters only because “repatriations do not carry the same immigration or

criminal consequences as expedited removal.” Id. at 8; see also 8 U.S.C. § 1182(a)(9)(A) (aliens

“ordered removed” in expedited removal or formal removal proceedings initiated upon the

alien’s arrival are inadmissible for periods of at least five years); id. § 1231(a)(5) (aliens with

prior orders of removal can have those orders reinstated if they again enter illegally); id. § 1326

(aliens who are removed while “an order of . . . removal is outstanding” and later reenter are

subject to criminal penalties). The February 4 emails instruct that the “appropriate processing

pathway for a particular alien should be determined based on the totality of the circumstances,”

Dkt. 52-1 at 5, 13, subject to the constraint that only aliens “able to be repatriated to their country

of last transit” (or, in the case of the Southwest border, to Mexico, see Dkt. 52-1 at 5) could be

processed by means of a “212(f) Direct Repatriation,” id.

30

The February 4 emails also instruct officers to omit several steps from the INA’s

§ 1225(b)(1) expedited removal procedure, regardless of which pathway is followed. Under

Department of Homeland Security regulations, immigration officers overseeing a § 1225(b)(1)

expedited removal are required to follow precise procedures: First, the immigration officer

“read[s] (or ha[s] read) to the alien all information contained on Form I-867A,” which among

other things, informs the alien that “U.S. law provides protection to certain persons who face

persecution, harm or torture upon return to their home country” and instructs the alien to tell the

officer about any “fear” or “concern” about “being removed from the United States or about

being sent home.” See 8 C.F.R. § 235.3(b)(2)(i); see also Form I-867A (available in 9 Charles

Gordon, et al., Immigration Law and Procedure, App’x B, Ex. 16K (2024)). Second, the

immigration officer uses Form I-867B to ask the alien specific questions designed to elicit

whether the alien fears persecution or return to their home country and records the answers to

those questions on the form. 5 See 8 C.F.R. § 235.3(b)(2)(i); see also Form I-867B (available in

9 Charles Gordon, et al., Immigration Law and Procedure, App’x B, Ex. 16L (2024)). Then,

“[i]f an alien subject to the expedited removal provisions indicates an intention to apply for

asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country,” the

officer refers the alien for an interview by an asylum officer and “provide[s] the alien with a

written disclosure on Form M-444,” which provides aliens with information about the credible

fear interview process and informs them of their rights to consult with someone prior to the

interview and the right to request review by an immigration judge of an officer’s determination.

5

Form I-867B questions include: (1) “Why did you leave your home country or country of last

residence?” (2) “Do you have any fear or concern about being returned to your home country or

being removed from the United States?” and (3) “Would you be harmed if you are returned to

your home country or country of last residence?”

31

Id. § 235.3(b)(4)(i). The February 4 emails, however, direct that immigration officers processing

aliens subject to the Proclamation “should not use” Form I-867A, Form I-867B, or Form M-444

and should not “ask specific fear questions” at all. Dkt. 52-1 at 5, 13. If, however, an alien

spontaneously “manifests fear” regarding the country where USBP intends to return him or her

to, the immigration officer is instructed to “refer [the] alien” to USCIS for a “Convention against

Torture (CAT) screening.” Dkt. 52-1 at 5–6; 13–14. If the screening comes back negative,

meaning that USCIS determined that the alien had not shown it was more likely than not that he

or she would be tortured in the relevant country, “USBP should continue with the process of

repatriation or removal.” Id. at 9. If it comes back positive, the individual is reprocessed and

detained. Id.

The final email included in the administrative record was sent on February 19, 2025,

seemingly to all border sectors, to provide them with the “update” that aliens could now be sent

to “several Central American countries” with which the United States “has enacted agreements”

pursuant to which those countries have agreed “to receive third country nationals who have

illegally entered” the United States. Dkt. 52-1 at 20. To take advantage of those agreements, the

February 19 email advises immigration officers that individuals subject to the Proclamation can

be removed by means of “212(f) Direct Repatriations to Third Countr[ies].” Id. at 21. Before

removal, CBP “will notify” anyone who is not being transferred to his or her country of

nationality of the “country [to which he or she] will be sent” by giving that person a “212(f) Tear

Sheet.” Id. at 20, 25. Aliens “who manifest a fear of the country to which CBP intends to

[remove] them” will be referred for CAT screening with respect to that country. Id. at 20. If the

CAT screening is negative, CBP will “continue with transfer of the alien to the designated

country.” Id. If the CAT screening is positive, CBP can either “designate another third country

32

for removal” or place the person into full EOIR proceedings for adjudication of his or her CAT

claim. Id. If another third country is designated, and “the alien manifests a fear for the newly

designated country, CBP will again refer the case to USCIS for another CAT screening relative

to the newly designated country,” and the process starts again. Id.

b. Office of Field Operations memorandum

The administrative record also includes a February 28, 2025 memorandum sent to various

officials in the Office of Field Operations from Ray Provencio, the Acting Executive Director of

Admissibility and Passenger Programs in the Office of Field Operations. Dkt. 52-1 at 26.

According to the memorandum, the Proclamation “leverage[s] INA 212(f) authorities” to

“provide[] the ability for U.S. Customs and Border Protection . . . personnel to immediately and

efficiently repatriate undocumented aliens that are not excepted at all U.S. ports of entry.” Id. It

also includes a “Muster” with “[u]pdates regarding certain non-arriving aliens” that reiterates

many of the instructions in the emails discussed above and affirms that CAT screening will

remain available for those who affirmatively manifest a fear to the immigration officer. See, e.g.,

id. at 28 (“CBP officers will not provide Forms I-867A and I-867B and will not provide

individualized advisals on asylum.”); id. (“CBP officers will refer any alien who manifests fear

to [USCIS] for a [CAT] screening.”). The Muster further directs that a covered “alien[] who

claims or manifests a fear at the international boundary line to CBP personnel is not excepted

from the Proclamation.” Id.

c. USCIS training materials

The administrative record also contains training materials provided to USCIS personnel,

instructing them on the new procedures for CAT assessments. See Dkt. 52-1 at 38–74. Those

documents contain details about specific CAT screening procedures—including which forms to

use and how to fill them out. Essentially, the guidance instructs USCIS asylum officers to use a

33

much higher screening standard for CAT claims, which departs from the standard set forth in the

governing regulations.

Under the governing regulations, asylum officers conduct a credible fear screening, at

which the standard of proof asks whether there is “a significant possibility” that it is more likely

than not that the individual will be tortured. 8 C.F.R. § 208.30(e)(3). If the alien can carry that

burden, he receives notice and moves on to the next stage of the process, where he can be

represented by counsel and present witnesses and evidence, and where he must show that it is

“more likely than not” that he would be tortured if removed to the proposed country. Id.

§§ 208.9(b), 208.16(c)(2). The guidance instructs asylum officers to perform CAT

“assessments” rather than credible fear screenings. According to the guidance, CBP or ICE will

refer an individual who claims a fear of torture to USCIS “for CAT assessment.” Dkt. 52-1 at

43. An asylum officer will then conduct a “CAT-Only assessment,” id. at 44, at which the

applicant “must show that it is more likely than not that [the applicant] will be tortured in the

country to which [the applicant] may be returned,” id. at 46. Aliens in CAT-Only assessments

are “not entitled to a consultant, legal representative, or a consultation period.” Id. at 45. In

essence, the new procedures require that an alien carry his burden at the initial hearing without

the benefit of counsel or consultation. The guidance also makes clear that the assessment is

CAT-Only—that is, the applicant is not considered for asylum or withholding of removal.

D. Procedural History

The organizational plaintiffs filed this action on February 3, 2025, see Dkt. 1, and

promptly amended their complaint to add the individual plaintiffs, see Dkt. 11. Plaintiffs also

promptly filed a motion for class certification, Dkt. 13; a motion for a preliminary injunction,

34

Dkt. 14; and an emergency motion to stay the removal of the individual plaintiffs who still

remained in the United States, Dkt. 15.

The Court scheduled a hearing for the next day, February 20, 2025. Min. Entry (Feb. 20,

2025). At the hearing, the parties informed the Court that “it appear[ed]” that one of the

individual plaintiffs—N.S.—had likely been removed from the United States that morning. Dkt.

19 at 15 (Feb. 20, 2025 Hrg. Tr. 15:5–6). To “preserve the Court’s jurisdiction” while the parties

briefed the emergency motion, the Court entered an administrative stay prohibiting the

government from removing any individual plaintiffs still in the United States pending a hearing

on the emergency motion. Id. (Feb. 20, 2025 Hrg. Tr. 13:14–19). Defendants subsequently filed

a response representing that they will not remove any of the individual plaintiffs pursuant to the

Proclamation during the pendency of this case, see Dkt. 21 at 2, and the Court, relying on that

representation, denied Plaintiffs’ emergency motion as moot, Dkt. 23 at 2. The Court also

ordered Defendants to “provide the Court and Plaintiffs’ counsel with at least seven days’ notice

before removing any of the individual plaintiffs from the United States during the pendency of

this action” to “permit the parties to have the opportunity to be heard, if necessary” before

removal. Id. at 3. Finally, the Court ordered the parties to file a joint status report addressing

“whether the Court should consolidate the hearing on Plaintiffs’ Motion for a Preliminary

Injunction with the merits, pursuant to Fed. R. Civ. P. 65(a)(2).” Id.

The parties agreed to consolidation under Rule 65(a)(2), Dkt. 24, and the Court,

accordingly, consolidated the hearing on the preliminary injunction motion with the merits, Min.

Entry (Feb. 26, 2025). The parties also proposed that “the Court hold in abeyance any claims

based on the administrative record, namely portions of the Sixth Claim for Relief raising

arbitrary-and-capricious arguments under the Administrative Procedure Act” to “avoid the need

35

to set aside additional time in the schedule for Defendants to assemble, review, certify, and

produce the administrative record.” Dkt. 24 at 2. In lieu of an administrative record, Defendants

“agree[d] to provide the relevant guidance documents.” Id. The Court adopted the parties’

proposal and set a briefing schedule for the motion for class certification and for cross-motions

for summary judgment. Min. Entry (Feb. 26, 2025).

The Court held a hearing on those motions on April 29, 2025. See Min. Entry. At the

hearing, the Court ordered supplemental briefing from Defendants on two issues: first, whether

an alien subject to the Proclamation could file an affirmative asylum application outside the

context of any removal proceedings and whether doing so would prevent his or her removal or

repatriation, and, second, what the differences were between expedited removal under the

Proclamation (“212(f) Expedited Removal”) and repatriation under the Proclamation (“212(f)

Direct Repatriation”). See Dkt. 59. The Court also, at Plaintiffs’ request, granted leave to file a

supplemental brief on whether 8 U.S.C. § 1252(f)(1) barred class-wide relief and whether, in any

event, class-wide relief was necessary in this case, Dkt. 58, and the Court provided the parties

with an opportunity to respond to each other’s supplemental briefs, Dkt. 60; Dkt. 61.

Finally, after the close of briefing, the Court concluded that it required additional

information from both Plaintiffs and Defendants to resolve the pending motions and to ensure

that the record is complete for purposes of any appeal. The Court ordered Plaintiffs to file

supplemental declarations from each individual plaintiff “indicating whether he or she provided

Federal officials with the medical information, criminal history, and other background

information required by the Proclamation,” Min. Entry (May 13, 2025), and gave Defendants an

opportunity to respond to those declarations, Min. Entry (May 20, 2025). The Court also ordered

Defendants to compile and produce the complete administrative record. See id. The additional

36

materials have now been filed, see Dkt. 64; Dkt. 65; Dkt. 67, and the case is now ripe for

decision as to persons who have not yet been removed from the United States.

II. LEGAL STANDARD

In the normal course, summary judgment may be granted “if the pleadings, the discovery

and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine

issue as to any material fact and that the movant is entitled to a judgment as matter of law.” Air

Transp. Ass’n of Am., Inc. v. Nat’l Mediation Bd., 719 F. Supp. 2d 26, 31–32 (D.D.C. 2010),

aff’d, 663 F.3d 476 (D.C. Cir. 2011). On the other hand, “[i]n a case involving review of a final

agency action under the Administrative Procedure Act, . . . the Court’s role is limited to

reviewing the administrative record, so the standard set forth in Rule 56(c) does not apply.” Id.

at 32. Instead, summary judgment serves as “the mechanism for deciding, as a matter of law,

whether the agency action is supported by the administrative record and otherwise consistent

with the APA standard of review.” Cath. Health Initiatives v. Sebelius, 658 F. Supp. 2d 113, 117

(D.D.C. 2009) (internal quotations omitted).

Under the APA, “agency actions will be set aside if they are contrary to law—if, in other

words, they are not ‘authorized by the statutory text,’” Fisher v. Pension Benefit Guar. Corp.,

151 F. Supp. 3d 159, 165 (D.D.C. 2016) (quoting Gonzales v. Oregon, 546 U.S. 243, 255

(2006)), or some other source of lawful authority. In reviewing the executive’s reliance on

statutory authority, the Court should pay “[c]areful attention to the judgment of the Executive

Branch” to the extent it “help[s] inform that inquiry” and should “respect” lawful delegations of

“authority to an agency.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 413 (2024). But the

meaning of the relevant statutory text is ultimately a question for the Court, which “must

exercise [its] independent judgment” in interpreting the law. Id. at 412.

37

Nor does the fact that “the ‘executive’s’ action . . . is essentially that of the President . . .

insulate the entire executive branch from judicial review.” Chamber of Com. of the U.S. v.

Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“Reich”). To the contrary, “it is now well

established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit

seeking to enjoin the officers who attempt to enforce the President’s directive.” Id. (citing

Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and

concurring in the judgment)); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952). It is well-settled, moreover, that even though the President is not an “agency” subject to

suit under the APA, his “actions may still be reviewed for constitutionality,” Franklin, 505 U.S.

at 801 (citing Youngstown, 343 U.S. at 579); see also Dalton v. Specter, 511 U.S. 462, 469

(1992).

III. ANALYSIS

A. Threshold Issues

1. Article III Standing

“Because Article III limits federal judicial jurisdiction to cases and controversies, see

U.S. Const. art. III, § 2, federal courts are without authority” to resolve disputes unless the

plaintiff has standing—that is, “‘a personal stake in the outcome of the controversy [sufficient] to

warrant his invocation of federal-court jurisdiction.’” Chamber of Com. v. EPA, 642 F.3d 192,

199 (D.C. Cir. 2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). This

limitation “is founded in concern about the proper—and properly limited—role of the courts in a

democratic society.” Summers, 555 U.S. at 492–93 (quoting Warth v. Seldin, 422 U.S. 490, 498

(1975)). To establish Article III standing, a plaintiff must demonstrate a “concrete and

particularized” injury that is “fairly traceable” to the defendant’s conduct and “that is likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338–39 (2016)

38

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). At least one plaintiff, moreover,

must have standing “for each claim” the plaintiffs “seek[] to press,” DaimlerChrysler v. Cuno,

547 U.S. 332, 352 (2006), and for “each form of relief requested,” Town of Chester, N.Y. v.

Laroe Estates, Inc., 581 U.S. 433, 439 (2017). The plaintiffs “bear[] the burden of establishing”

the elements of standing “with the manner and degree of evidence required at the successive

stages of the litigation,” Lujan, 504 U.S. at 561.

a. Individual Plaintiffs in the United States

The individual plaintiffs still present in the United States (A.M., Z.A., T.A., A.T., B.R.,

M.A., and G.A.) have established standing to challenge the bar on asylum and withholding of

removal contained in the Proclamation and implementing guidance, as well as the guidance’s

extra-regulatory procedures for those seeking CAT protection. They have standing because the

Proclamation and implementing guidance make it more difficult for them to access these forms

of relief. Defendants do not dispute that asylum, withholding of removal, and CAT protection

are valuable forms of relief that protect non-U.S. citizens from removal to countries where they

may face persecution or torture. Asylum is particularly valuable because it affords the asylee

benefits above and beyond avoiding removal, including a path to lawful permanent resident

status and citizenship. As a result, the bars on asylum and withholding of removal and the extra-

regulatory procedures for adjudicating CAT claims each injure the individual plaintiffs still in

the United States because they make it more difficult (or, with respect to asylum and withholding

of removal, impossible) for those plaintiffs to access these valuable forms of relief. 6 See Lujan,

6

The Proclamation applies under two sets of circumstances. The first, second, fourth, and fifth

sections of the Proclamation are directed at those “engaged in the invasion across the southern

border of the United States,” Proclamation, §§ 1, 2, 4, 5, which, according to the guidance,

includes all aliens “who crosse[d] between the points of entry on the southern land border,” Dkt.

52-1 at 5. The third section of the Proclamation is directed at those who “fail[], before entering

39

504 U.S. at 561–62 (holding that “there is ordinarily little question” that a plaintiff has standing

if she herself is “an object of the action . . . at issue”). Each individual plaintiff, moreover, has

submitted a declaration expressing a desire to seek asylum and setting forth facts sufficient to

state a plausible claim to asylum, withholding of removal, or CAT protection. See, e.g., Dkt. 12-

1 (A.M. Decl.); Dkt. 12-4 (B.R. Decl.); Dkt. 12-5 (M.A. Decl.); Dkt. 12-6 (G.A. Decl.). That is

enough to establish an injury in fact that is fairly traceable to the challenged actions. See Lujan,

504 U.S. at 560–61.

Defendants do not dispute that the individual plaintiffs still in the United States are

suffering a cognizable injury caused by the Proclamation and the implementing guidance.

Instead, they argue that the individual plaintiffs’ injuries are non-redressable based on 8 U.S.C.

§ 1252(f)(1). Dkt. 44 at 26. On Defendants’ telling, § 1252(f)(1) forecloses any equitable relief

that would undermine the operation of the Proclamation (including declaratory relief or vacatur

of the implementing guidance) because it prohibits courts, other than the Supreme Court, from

“enjoin[ing] or restrain[ing] the operation of the provisions” of part IV of the INA, which

includes the provisions that govern regular removal proceedings, 8 U.S.C. § 1229a; expedited

the United States, to provide Federal officials with sufficient medical information and reliable

criminal history and background information as to enable fulfillment of the requirements of” 8

U.S.C. § 1182(a)(1)–(3). Proclamation, § 3. Both sets of circumstances can apply to the same

person, and, here, the Court is persuaded by Plaintiffs’ supplemental declarations, filed at the

Court’s request, that there is at least one individual plaintiff in the United States who is a covered

alien in both relevant respects, see Dkt. 64-5 at 1 (G.A. Decl. ¶¶ 4, 9) (declaring that G.A.

crossed the border “on or about February 1, 2025” without submitting any health or other

background information). After Plaintiffs filed their supplemental declarations, Defendants—for

the first time—argued that Plaintiffs lack standing to challenge Section 3 of the Proclamation

because “[w]here Sections 1 and 2 of the Proclamation apply, there is no need to apply Section

3” and so it “has no practical applicability.” Dkt. 66 at 3, 6. But that argument ignores the fact

that, if Plaintiffs prevail on their challenges to Sections 1 and 2 of the Proclamation, Section 3

will still stand as a bar to obtaining access to asylum and withholding of removal and will still

impose additional barriers to obtaining CAT protection. Thus, at least one of the individual

plaintiffs has standing to challenge the restrictions as applied to both classes of covered aliens.

40

removal proceedings, id. § 1225(b)(1); and withholding of removal, id. § 1231, see Dkt. 44 at 68

n.7. See Dkt. 55 at 9–13. For several reasons, the Court is unpersuaded.

To start, Defendants’ redressability argument ignores the fact that § 1252(f)(1) contains a

carve-out for claims by “individual alien[s] against whom proceedings under such part have been

initiated.” 8 U.S.C. § 1252(f)(1). Thus, even if the provision might limit the Court’s ability to

provide injunctive relief to individuals who are not yet in immigration proceedings, it has no

bearing on the redressability of the individual plaintiffs’ claims to the extent that immigration

proceedings have been initiated against each of them “under” part IV of the INA, see Dkt. 43-3

at 3–5 (Hollinder Decl. ¶¶ 4–11) (attesting that A.M., Z.A., T.A., A.T., B.R., M.A., and G.A.

were all issued I-860 Notices to Appear). And, to the extent the new “212(f) Expedited

Removal” and “212(f) Direct Repatriation” proceedings are not brought “under” part IV of the

INA but, instead, are brought pursuant to the Proclamation, as Defendants assert, § 1252(f)(1)

has no bearing on Plaintiffs’ challenges to those extra-statutory proceedings.

Defendants’ redressability argument also fails because § 1252(f)(1) does not, in any

event, limit the Court’s authority to vacate unlawful agency action under the APA, 5 U.S.C.

§ 706(2), or its authority to issue declaratory relief under the Declaratory Judgment Act, 28

U.S.C. § 2201, and the availability of those remedies alone establishes redressability.

Starting with the availability of APA vacatur, Defendants’ contention that § 1252(f)(1)

precludes courts from setting aside unlawful agency action under the APA is meritless. Two

well-established principles guide the Court’s understanding of the interplay between § 1252(f)(1)

and the APA. First, the courts recognize a “‘stron[g] presum[ption]’ that repeals by implication

are ‘disfavored,’” and, thus, “[a] party seeking to suggest that two statutes cannot be harmonized,

and that one displaces the other, bears the heavy burden of showing ‘a clearly expressed

41

congressional intention’ that such a result should follow.” Epic Sys. Corp. v. Lewis, 584 U.S.

497, 510 (2018) (internal citation omitted). This rule, as the Supreme Court has explained, is

premised on a “respect for the separation of powers” and “an appreciation that it’s the job of

Congress by legislation, not th[e] Court by supposition, both to write the laws and to repeal

them.” Id. at 511. Second, courts apply a “presumption favoring judicial review of

administrative action” and, thus, “when a statutory provision is reasonably susceptible to

divergent interpretation, [courts] adopt the reading that accords with [the] traditional

understanding[] and basic principle[] that executive determinations generally are subject to

judicial review.” Make the Road, 962 F.3d at 623–24 (internal quotation marks and citation

omitted). This “presumption can be overcome only by clear and convincing evidence of

congressional intent to preclude judicial review.” Id. at 624 (internal quotation marks and

citation omitted).

Here, Defendants’ argument fails even before the Court applies either presumption. The

APA mandates that a “reviewing court shall . . . set aside agency action . . . found to be . . . not in

accordance with law [or] contrary to constitutional . . . power,” 5 U.S.C. § 706(2) (emphasis

added), and nothing in § 1252(f)(1) conflicts with or otherwise limits that mandate. Section

1252(f)(1) provides that:

Regardless of the nature of the action or claim or of the identity of the party or

parties bringing the action, no court (other than the Supreme Court) shall have

jurisdiction or authority to enjoin or restrain the operation of the provisions of

part IV of this subchapter, as amended by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, other than with respect to the application

of such provisions to an individual alien against whom proceedings under such

part have been initiated.

8 U.S.C. § 1252(f)(1) (emphasis added). Thus, by its own terms, § 1252(f)(1) limits only the

lower courts’ jurisdiction “to enjoin or restrain the operation” of specific statutory provisions; it

42

neither expressly nor implicitly repeals or supersedes the APA’s mandate that reviewing courts

shall “set aside” unlawful agency action.

Section 1252(f)(1) says nothing about vacatur and, instead, “prohibits lower courts from

entering injunctions that order federal officials to take or to refrain from taking actions to

enforce, implement, or otherwise carry out” statutory provisions in part IV of the INA, Garland

v. Aleman Gonzalez, 596 U.S. 543, 550 (2022) (emphasis added). There is a meaningful

difference, moreover, between an injunction and an order vacating a rule or administrative

guidance. “An injunction is a drastic and extraordinary remedy, which should not be granted as

a matter of course,” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010)), while

vacatur is the ordinary and presumptive remedy for substantive violations of the APA, see, e.g.,

Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78 (D.D.C. 2010) (noting that “both the

Supreme Court and the D.C. Circuit have held that . . . vacatur[] is the presumptively appropriate

remedy for a violation of the APA”); see also Allina Health Serv. v. Sebelius, 746 F.3d 1102,

1110 (D.C. Cir. 2014) (“[V]acatur is the normal remedy.”); Ill. Pub. Telecomms. Ass’n v. FCC,

123 F.3d 693, 693 (D.C. Cir. 1997) (“[T]he practice of the court is ordinarily to vacate [an

unlawful] rule.”). Understood in this light, the limitation found in § 1252(f)(1) is consistent with

established precedent, which distinguishes between the typical APA remedy of “vacating an

agency action” and the more dramatic remedy of enjoining future agency action, which courts

should refrain from doing unless necessary to effectuate the court’s decision. L.M.-M. v.

Cuccinelli, 442 F. Supp. 3d 1, 36 (D.D.C. 2020).

Defendants respond by noting that § 1252(f)(1) not only restricts the authority of lower

courts “to enjoin” the operation of the provisions of part IV but also precludes lower courts from

“restrain[ing]” the operation of those provisions. Dkt. 55 at 12. The parties debate whether “the

43

term ‘restrain’ in [§] 1252(f)(1)” merely forms the second half of “a ‘common doublet’” or

whether it imposes a distinct limitation more sweeping than the bar on class-wide injunctive

relief. Id. For present purposes, however, the Court need not join this debate, because regardless

of whether the words “enjoin” and “restrain” are synonyms or merely close cousins, “restrain”

does not mean “vacate.” The word “restrain” means “to hold (as a person) back from some

action, procedure, or course.” Restrain, Webster’s Third New International Dictionary at 1936

(1993); see also Aleman Gonzalez, 596 U.S. at 549 (quoting Oxford English Dictionary). It is, in

other words, concerned with barring future action. A “vacatur” order, in contrast, “annul[s]” an

action already taken. Vacatur, Black’s Law Dictionary at 1782 (10th ed. 2014).

To be sure, the word “restrain” is, at times, given a broader meaning, which “captures

orders that merely inhibit acts,” Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 12–13 (2015) (emphasis

omitted); see also Aleman Gonzalez, 596 U.S. at 549. But statutory terms are best construed in

light of the company that they keep, see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008),

and, here, § 1252(f)—which is entitled “Limit on Injunctive Relief”—refers to the “authority to

enjoin or restrain,” 8 U.S.C. § 1252(f)(1) (emphasis added). It follows that § 1252(f)(1) is best

construed to give the word “restrain” a meaning that is similar in kind to the commonly

understood meaning of “enjoin.” Both refer to a court order that bars the party that is the subject

of the order from taking a future action, on pain of contempt. Yet, even if the Court were to

accept Defendants’ dubious premise and were to assume that “restrain” simply means to

“inhibit,” their argument would still fail. Simply put, the word “restrain,” even if so broadly

construed, cannot plausibly be read to encompass a judicial order that affects future agency

action only by vacating some past action. Had Congress intended the prohibition to sweep that

broadly, it could easily “have said so in words far simpler than those that it wrote.” Biden v.

44

Texas, 597 U.S. 785, 798 (2022). It could have, for example, barred lower courts from entering

any order “respecting the operation of the provisions of part IV” of the INA. Congress is

presumed to have chosen its words with care, and this Court is bound by that choice.

The Court, accordingly, concludes that § 1252(f)(1) cannot plausibly be read to supersede

the APA and to bar lower courts from granting the traditional form of APA relief in cases that

are otherwise properly brought under the APA and that challenge agency action taken under (or

relating to) part IV of the INA.

The same is true of declaratory relief. Here, Defendants candidly concede that the D.C.

Circuit rejected their capacious reading of § 1252(f)(1) in Make the Road New York, where the

court held that § 1252(f)(1) “prohibits only injunctions” and “does not proscribe the issuance of a

declaratory judgment,” 962 F.3d at 635. See Dkt. 55 at 13 n.2. Defendants, nonetheless, contend

that the Supreme Court’s decision in Aleman Gonzalez, 596 U.S. at 543, has somehow called that

holding into question. Dkt. 55 at 13 n.2. But—far from it—Aleman Gonzalez expressed no view

on the question, merely observing: “Because only injunctive relief was entered here, we have no

occasion to address” the Government’s argument that “§ 1252(f)(1) not only bars class-wide

injunctive relief but also prohibits . . . class-wide declaratory relief.” 596 U.S. at 551 n.2. This

Court, accordingly, must follow binding D.C. Circuit precedent. See Brewster v. Comm’r of

Internal Revenue, 607 F.2d 1369, 1373 (D.C. Cir. 1979).

That resolves the question. It bears note, however, that six Supreme Court justices have

expressed the same view, albeit in separate opinions in different cases. Most recently, Justice

Alito wrote for the plurality in Nielsen v. Preap that the district courts have “jurisdiction to

entertain . . . request[s] for declaratory relief,” notwithstanding § 1252(f)(1). 586 U.S. 392, 402

(2019) (Alito, J., joined by Roberts, C.J., and Kavanaugh, J.). And, in Jennings v. Rodriguez,

45

Justices Breyer, Ginsburg, and Sotomayor reached the same conclusion. See 583 U.S. 281, 355

(Breyer, J., joined by Ginsburg, J., and Sotomayor, J., dissenting); see also Aleman Gonzalez,

596 U.S. at 572 n.9 (Sotomayor, J., joined by Kagan, J., and Breyer, J., concurring in part)

(expressing skepticism that § 1252(f)(1) limits class-wide declaratory relief). As a matter of

plain language, that conclusion is well-founded.

Although the Supreme Court has not had occasion to address the application of

§ 1252(f)(1) to claims for vacatur or declaratory relief in a controlling opinion, the Court’s recent

opinion in Biden v. Texas further supports this reading of the statute. In that case, the Court had

no reason to decide whether § 1252(f)(1) applies to “declaratory relief and relief under [§] 706 of

the APA,” 597 U.S. at 801 n.4, but the Court stressed that the “scope” of § 1252(f)(1) is

“narrow[]” and that it “deprives courts of the power to issue a specific category of remedies:

those that ‘enjoin or restrain the operation of’ the relevant sections of the statute.” 597 U.S. 785,

798 (2022) (emphasis added). The Court also cited to its prior observation in Reno v. American-

Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), that, “[b]y its plain terms, and even

by its title, [§ 1252(f)(1)] is nothing more or less than a limit on injunctive relief.” Biden v.

Texas, 597 U.S. at 801 (citing Reno, 525 U.S. at 481).

In reaching these conclusions, the Court relied on two features of the statutory text that

bear on Defendants’ argument here. First, the Court noted that nothing in the language of

§ 1252(f)(1) “strips the lower courts of subject matter jurisdiction over” claims brought under the

INA or the APA. Id. at 798. As the Court explained, “[a] limitation on subject matter

jurisdiction . . . restricts a court’s ‘power to adjudicate a case,’” id. (quoting United States v.

Cotton, 535 U.S. 625, 630 (2002)), whereas § 1252(f)(1) “bears no indication that lower courts

lack power to hear any claim brought under” part IV of the INA. Id. It simply limits the

46

authority of the lower courts to order a particular form of relief. Id. Second, a “parenthetical”

contained in § 1252(f)(1) “explicitly preserves [the Supreme] Court’s power to enter injunctive

relief,” which shows that Congress intended to preserve the Supreme Court’s authority to grant

even that drastic form of relief. Id. at 786. But because the Supreme Court’s original

jurisdiction does not extend to adjudicating claims under the INA and the APA, see U.S. Const.,

art. III, § 2, the only way that parenthetical can be given meaning is by preserving the authority

of the lower courts to grant some form of relief in these cases. Id. at 799.

Given the plain language of § 1252(f), the “strong presumption favoring judicial review

of administrative action,” Salinas v. U.S. R.R. Ret. Bd., 592 U.S. 188, 196 (2021), and existing

precedent, it is thus unsurprising that other courts have held that § 1252(f)(1) does not strip lower

courts of authority to grant declaratory relief and to vacate agency action that is not in

accordance with law. See, e.g., Florida v. United States, 660 F. Supp. 3d 1239, 1284–85 (N.D.

Fla. 2023); Al Otro Lado, Inc. v. Mayorkas, 619 F. Supp. 3d 1029, 1045 (S.D. Cal. 2022). This

Court concurs in that reading of the statute.

At this point, it is worth pausing to note that the Supreme Court not only read

§ 1252(f)(1) narrowly in Biden v. Texas, but the Court also held that there is “no basis for . . .

conclu[ding] that [§] 1252(f)(1) concerns subject matter jurisdiction” at all. 597 U.S. at 801.

Thus, to the extent Defendants raise a jurisdictional argument, one might reasonably conclude

that they run head on into binding Supreme Court precedent holding that § 1252(f)(1) merely

limits the form of relief a court may grant and does not limit a court’s subject-matter jurisdiction.

Defendants answer this difficulty by framing their argument as one of redressability. If

§ 1252(f)(1) bars every form of relief that this Court might grant to a plaintiff with respect to a

particular claim, that claim is non-redressable, and the plaintiff lacks standing. But even

47

assuming that a merits defense can so easily be transformed into a jurisdictional bar, cf.

Sandpiper Residents Ass’n v. U.S. Dep’t of Hous. & Urb. Dev., 106 F.4th 1134, 1141 (D.C. Cir.

2024) (so long as claim to relief remains “facially plausible,” “nothing more is required to

preserve jurisdiction”), Defendants’ non-redressability defense faces a high hurdle, which

Defendants cannot clear. For the reasons discussed above, § 1252(f)(1) does not limit the

Court’s authority to order vacatur of an unlawful rule or guidance or to grant declaratory relief.

In other words, it leaves in place significant, alternative forms of redress.

Defendants raise one, final redressability argument, which merits only brief discussion.

They argue that the Court lacks authority to enjoin the President, Dkt. 55 at 19 (citing Mississippi

v. Johnson, 71 U.S. 475, 501 (1867)), and that, as a result, setting aside the implementing

guidance will not redress the Plaintiffs’ asserted injuries. On Defendants’ telling, no matter what

the Court does, the Proclamation will remain in effect and, even if the implementing guidance is

enjoined or vacated, the Proclamation will continue to preclude immigration officials from

considering Plaintiffs’ requests for asylum or withholding of removal. Justice Scalia spoke

directly to this issue in his concurring opinion in Franklin v. Massachusetts. He wrote:

48

None of these conclusions, of course, in any way suggests that Presidential

action is unreviewable. Review of the legality of Presidential action can

ordinarily be obtained in a suit seeking to enjoin the officers who attempt to

enforce the President's directive, see, e.g., Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 572 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388

(1935)—just as unlawful legislative action can be reviewed, not by suing

Members of Congress for the performance of their legislative duties, see, e.g.,

Powell v. McCormack, 395 U.S. 486, 503–06 (1969); Dombrowski v. Eastland,

387 U.S. 82 (1967); Kilbourn v. Thompson, 103 U.S. 168 (1881), but by

enjoining those congressional (or executive) agents who carry out Congress’s

directive. Unless the other branches are to be entirely subordinated to the

Judiciary, we cannot direct the President to take a specified executive act or the

Congress to perform particular legislative duties.

505 U.S. at 828–29 (Scalia, J., concurring in part and concurring in the judgment). D.C. Circuit

precedent, moreover, is to the same effect. As the D.C. Circuit observed in Reich: “Even if the

Secretary were acting at the behest of the President, this ‘does not leave the courts without power

to review the legality’” of the action and “‘to compel subordinate executive officials to disobey

illegal Presidential commands.’” 74 F.3d at 1328 (quoting Soucie v. David, 448 F.2d 1067, 1072

n.12 (D.C. Cir. 1971)). Because the President does not personally take “the final step necessary”

to reject a request for asylum or withholding of removal, much less to repatriate or to remove an

individual from the United States, this is not one of those rare cases in which the courts are

powerless to review executive action. Pub. Citizen v. U.S. Trade Rep., 5 F.3d 549, 552 (D.C.

Cir. 1993). As a result, the question of how most appropriately to effectuate the Court’s decision

is a question of remedy and not redressability.

b. Organizational Plaintiffs

The organizational plaintiffs also have standing to challenge the Proclamation and

implementing guidance, including the restrictions on asylum and withholding of removal, the use

of “212(f) Direct Repatriations” and “212(f) Expedited Removal,” and the extra-regulatory

procedures for adjudicating CAT protection claims.

49

An organization “can assert standing on its own behalf, on behalf of its members or

both.” Equal Rts. Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Here, the

organizational plaintiffs rely on the first approach, which requires that they, “like an individual

plaintiff, . . . show ‘actual or threatened injury in fact that is fairly traceable to the alleged illegal

action and likely to be redressed by a favorable court decision.’” Id. (quoting Spann v. Colonial

Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). To meet this burden, Plaintiffs rely on the

framework recognized in Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). In that

case, a fair housing organization claimed that the defendant’s discriminatory housing practices

“perceptibly impaired” the organization’s ability to “provide counseling and referral services for

low- and moderate-income homeseekers,” forcing it “to devote significant resources to identify

and counteract” the alleged discriminatory practices. Id. The Supreme Court held that the

organization had standing to challenge the housing practices. As the Court explained, “there

[could] be no question that the organization . . . suffered injury in fact” because it established a

“concrete and demonstrable injury to the organization’s activities—with the consequent drain on

the organization’s resources—[that] constitute[d] far more than simply a setback to the

organization’s abstract social interests.” Id.

The D.C. Circuit “has applied Havens Realty to justify organizational standing in a wide

range of circumstances.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach,

469 F.3d 129, 133 (D.C. Cir. 2006) (collecting cases); see also 13A Charles Alan Wright &

Aruther R. Miller, Federal Practice & Procedure § 3531.9.5 (3d ed. 2018) (same). But Havens

is not without limits. When “a plaintiff challenges the government’s ‘unlawful regulation (or

lack of regulation) of someone else,’ ‘standing is not precluded, but it is ordinarily substantially

more difficult to establish.’” FDA v. All. for Hippocratic Med., 602 U.S. 367, 382 (2024)

50

(emphasis in original) (quoting Lujan, 504 U.S. at 562). An organization that seeks to establish

Havens standing must show more than a mere “setback to the organization’s abstract social

interests,” Havens, 455 U.S. at 379, a “‘self-inflicted’ budgetary choice,’” Am. Soc’y for

Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (“ASPCA”)

(quoting Equal Rights Ctr., 633 F.3d at 1139), or an effect on the “organization[’s] lobbying

activities,” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005).

Rather, it must show that the challenged action “directly affected and interfered with” the

organizations’ “core business activities,” All. for Hippocratic Med., 602 U.S. at 395, and that

“the [organization] used its resources to counteract that injury” or incurred other tangible losses,

ASPCA, 659 F.3d at 25. 7

Here, the organizational plaintiffs have satisfied this burden. RAICES, Las Americas,

and Florence Project have each identified various ways that the Proclamation and implementing

guidance have interfered with their core business activity of providing direct legal services to

individuals at risk of removal, including asylum seekers. The declaration submitted by RAICES’

legal director, for example, attests that the organization “provides free and low-cost immigration

legal services to underserved immigrant children, families and individuals” in support of its

mission to “defend the rights of immigrants and refugees.” Dkt. 14-1 at 1 (Hidalgo Decl. ¶ 3).

The Proclamation and guidance interfere with that work because “the process of summarily

expelling noncitizens without the opportunity for credible fear interviews frustrates and impedes

RAICES from [its] fundamental day-to-day work of representing noncitizens with protection

needs.” Id. (Hidalgo Decl. ¶ 4). The Proclamation, for example, has greatly diminished

7

It is unclear whether ASPCA’s separate use-of-resources inquiry is still required after Alliance

of Hippocratic Medicine, but the Court will, out of an abundance of caution, consider whether

Plaintiffs could satisfy the requirement, if it still exists.

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RAICES’ ability to provide legal services to those who would ordinarily proceed through the

expedited removal process. Last year, RAICES provided legal services to about 15 such people

every week. See id. at 2 (Hidalgo Decl. ¶ 9). Since the Proclamation went into effect on January

20, those opportunities have vanished. RAICES has “made contact with” only a few aliens who

entered the country after that date, and “none of those people have been permitted to seek

protection.” Id. at 3 (Hidalgo Decl. ¶ 14). RAICES has had to “divert resources” to respond to

the Proclamation and guidance by, among other things, “searching for alternative ways to contact

detained individuals and families” and “training staff.” Id. at 3 (Hidalgo Decl. ¶ 17). As a result,

the organization has incurred additional expenses and has faced new obstacles in pursuing its

core business activity. Id. at 4 (Hidalgo Decl. ¶ 18).

Similarly, Las Americas has shown that the Proclamation and guidance have frustrated

and will continue to frustrate its ability to provide legal services to immigrants and will impose

tangible burdens on the organization. The declaration submitted by Las Americas’ legal services

director describes the organization’s mission and the activities that it pursues to support that

mission. See generally Dkt. 14-2 (Babaie Decl.). Las Americas’ mission is “to provide high-

quality legal services to low-income immigrants, and to advocate for human rights.” Id. at 1

(Babaie Decl. ¶ 3). To that end, the organization “provide[s] immigration counseling and

representation to immigrants seeking asylum and other forms of humanitarian relief, including

by representing individuals facing expedited removal who are referred for credible fear

interviews.” Id. The organization “cannot carry out much of [its] core work” if “noncitizens

cannot access asylum or other statutory protections.” Id. at 6 (Babaie Decl. ¶ 30). As the Babaie

declaration explains, Las Americas “opened more than 800 new cases in 2024” and “[m]ore than

half of the people that Las Americas serves are asylum seekers.” Id. at 3 (Babaie Decl. ¶ 13).

52

Yet, since the Proclamation was issued, the organization has “not received calls for [a credible

fear interview] consultation from anyone who entered the country.” Id. at 4 (Babaie Decl. ¶ 19).

Indeed, “[i]n response to the enforcement of the Proclamation, it is fair to say that all of Las

Americas’ work has been forced to change.” Id. at 5 (Babaie Decl. ¶ 24). The Proclamation has

also “forced [the organization] to divert limited resources away from individual representation”

to find alternative ways to serve its missions, including, for example, “assisting families trying to

find the location of loved ones who attempt[] to seek protection at the border.” Id. at 6 (Babaie

Decl. ¶ 31). Finally, the Babaie declaration explains that 85% of the organization’s revenue

comes from grants, some of which “have requirements regarding the number of people [the

organization] serve[s] as well as caveats on the geography and types of services provided.” Id. at

2 (Babaie Decl. ¶ 7). Because Las Americas’ grants, most of which “are heavily metrics based,”

id. at 6 (Babaie Decl. ¶ 32), and because “many funders are interested in funding work that

reaches the greatest number of people possible,” id. at 7 (Babaie Decl. ¶ 35), the organization

will incur expenses working to shore up its donor relationships and risks “losing out on grants”

aimed at reaching the greatest number of people, since the Proclamation has undermined, and

will continue to undermine, Las Americas’ ability to connect with clients, id.

Finally, the Florence Project has also shown that the Proclamation and guidance have

frustrated, and will continue to frustrate, its activities and will impair its ability to provide legal

services to those seeking asylum, withholding of removal, and CAT protection. The Florence

Project “is a 501(c)(3) non-profit legal services organization” whose “mission is to provide free

legal and social services to detained adults and children facing immigration removal proceedings

in Arizona.” Dkt. 14-3 at 1 (St. John Decl. ¶ 2). Its goal is to “ensure that all immigrants facing

removal have access to counsel, understand their rights under the law, and are treated fairly and

53

humanely.” Id. The organization “represent[s] hundreds of adult clients before the asylum

office, immigration courts, and the Board of Immigration Appeals . . . each year, including many

who are seeking humanitarian relief, such as asylum, withholding of removal, and protection

under the Convention Against Torture.” Id. at 2 (St. John Decl. ¶ 4). “In 2023, Florence Project

staff provided individualized legal support to at least one thousand adults in ICE custody who

specifically were seeking some fear-based form of protection.” Id. at 3 (St. John Decl. ¶ 9). Yet,

“in sharp contrast to years of experience and migration and detention trends, as of February 18,

2025, Florence Project has still not been able to identify or [to] meet with any asylum seekers in

ICE custody who entered the United States, whether by entering without inspection or presenting

at a port of entry, after the Proclamation took effect on January 20, 2025.” Id. at 4 (St. John

Decl. ¶ 13). The Proclamation and guidance have, as a result, “substantially interfere[d] with”

the organization’s “core” activity of providing legal services to those seeking “fear-based

humanitarian protection” or connecting those individuals “with pro bono legal representation.”

Id. (St. John Decl. ¶¶ 13–14). Like the other organizations, these hurdles have also required the

Florence Project to divert resources to responding to the changed landscape and threaten “serious

long-term financial consequences.” Id. at 4–7 (St. John Decl. ¶¶ 15–20). As “the number of

people who can be helped with asylum and related forms of relief will inevitably decrease[,] . . .

so too will [the organization’s] ability to be paid to do that mission-driven work.” Id. at 6 (St

John Decl. ¶ 19). Indeed, “[t]he Florence Project receives funding through the [National

Qualified Representative Program] prime contractor on a flat rate based on the number of cases

[it has] open and the number of net new cases [it] agree[s] to accept in a given option year,” and,

given the restrictions imposed in the Proclamation and guidance, the organization “stands to lose

tens, if not hundreds of thousands of dollars[,] in funding.” Id. at 6–7 (St. John Decl. ¶ 20).

54

These uncontested declarations demonstrate that the Proclamation and implementing

guidance have had—and will continue to have—a significant and direct detrimental effect on the

organizational plaintiffs’ “core business activities,” All. for Hippocratic Med., 602 U.S. at 395;

have required—and will continue to require—the organizational plaintiffs to expend substantial

“resources to counteract that injury,” ASPCA, 659 F.3d at 25; and will likely result in either a

large loss of funding to the organizations or require the expenditure of resources to renegotiate or

to amend grants or contracts or to find alternative sources of funding. In Alliance for

Hippocratic Medicine, the Supreme Court noted that the effect on the “core business activities”

of the organizational plaintiff in Havens was “not dissimilar to a retailer who sues a

manufacturer for selling defective goods to the retailer.” 602 U.S. at 395. By the same token,

the “core business activities” of the organizational plaintiffs in this case are not dissimilar to the

interests of a “vendor who is prevented from selling his product to third parties by [an] unlawful

regulation” and who “may challenge that regulation ‘on the basis of the vendor-vendee

relationship alone.’” Lepelletier v. FDIC, 164 F.3d 37, 44 (D.C. Cir. 1999) (emphasis and

citation omitted). No more is required to establish standing under Havens and Alliance for

Hippocratic Medicine.

Defendants disagree, arguing that a “less demanding case load” does not injure the

organizations’ “ability to carry out” their existing activities: they can still provide services to

aliens who do end up in the “expedited removal credible fear process or in removal

proceedings.” Dkt. 44 at 29–30 (emphasis omitted). But there is no requirement that an

organization prove that the challenged agency actions absolutely foreclose it from pursuing its

core business activities. A defendant’s actions need only cause a “perceptibl[e] impair[ment],”

55

Havens, 455 U.S. at 379, and some attendant expenditure or loss of resources, ASPCA, 659 F.3d

at 25. The organizational plaintiffs have made that showing—and then some.

2. Statutory Jurisdiction

Defendants also contend that the Court lacks statutory jurisdiction to consider the

organizational plaintiffs’ claims that (1) “challenge the Proclamation” on the ground that “it

‘contradicts the specific restrictions’ found in the expedited removal statute;” (2) allege that

“agency actions are leading to ‘removals without compliance with the procedures required by the

INA,’ including procedures related to expedited removal;” or (3) “seek relief from any expedited

removal orders entered pursuant to the Proclamation.” Dkt. 55 at 23 (citations omitted).

Defendants’ argument fails for several reasons.

Most fundamentally, Defendants’ argument misconstrues Plaintiffs’ claims and

misconceives the nature of the challenged governmental action. Before turning to those

difficulties, however, the Court pauses to note Defendants’ concession that § 1252 allows

“claim[s] that can be asserted . . . by an individual alien.” Id. Their argument, in other words,

applies only to the organizational plaintiffs, and the Court agrees that Defendants’ § 1252

argument does not extend to the claims of the individual plaintiffs. Given the Court’s conclusion

that the individual plaintiffs have Article III standing as well, and because only one plaintiff

needs standing to maintain each claim asserted in a case, see Town of Chester, 581 U.S. at 439, it

seems unlikely that the Court even needs to reach Defendants’ challenge to the Court’s statutory

jurisdiction to consider the organizational plaintiffs’ claims. See L.M.-M., 442 F. Supp. 3d at 22–

23. But, in any event, that challenge is unfounded.

56

The Court starts, as it must, with the statutory text. See Lamie v. U.S. Tr., 540 U.S. 526,

534 (2004). Section 1252(a)(2) provides, in relevant part, as follows:

(A) Review relating to section 1225(b)(1)

Notwithstanding any other provision of law (statutory or nonstatutory),

including section 2241 of Title 28, or any other habeas corpus provision, and

sections 1361 and 1651 of such title, no court shall have jurisdiction to review—

(i) except as provided in subsection (e), any individual determination or to

entertain any other cause or claim arising from or relating to the

implementation or operation of an order of removal pursuant to section

1225(b)(1) of [Title 8],

(ii) except as provided in subsection (e), a decision by the Attorney General to

invoke the provisions of such section,

(iii) the application of such section to individual aliens, including the

determination made under section 1225(b)(1)(B) of [Title 8], or

(iv) except as provided in subsection (e), procedures and policies adopted by the

Attorney General to implement the provisions of section 1225(b)(1) of

[Title 8].

8 U.S.C. § 1252(a)(2)(A) (emphasis added). Boiling these subparagraphs down to their

operative terms, § 1252(a)(2)(A) divests the courts of habeas, mandamus, all writs, or any other

jurisdiction to “review” any action taken pursuant to—or taken to invoke, to apply, or to

implement—the expedited removal statute, § 1225(b)(1), except as authorized in § 1252(e).

When it came to the application and implementation of the expedited removal statute, Congress

covered the waterfront: § 1252(e) provides the sole avenue of review for expedited removal

“determination[s]” and the “implementation or operation of” expedited removal orders, 8 U.S.C.

§ 1252(a)(2)(A)(i); decisions made by the Attorney General (or the Secretary) “to invoke” the

expedited removal procedure, id. § 1252(a)(2)(A)(ii); “the application of” the expedited removal

provision “to individual aliens,” id. § 1252(a)(2)(A)(iii); or the adoption “by the Attorney

57

General” or the Secretary of “procedures and policies” to implement the expedited removal

statute, id. § 1252(a)(2)(A)(iv).

Here, however, Plaintiffs do not challenge any expedited removal order entered pursuant

to § 1225(b)(1) or the implementation of any such order. Nor do they challenge the Attorney

General or the Secretary’s decision to invoke § 1225(b)(1), their application of § 1225(b)(1) to

any individual alien, or their adoption of any procedures or policies “to implement” § 1225(b)(1).

Rather, Plaintiffs challenge the lawfulness of the Proclamation—raising the question whether the

President is authorized under 8 U.S.C. § 1182(f) and § 1185(a) or the Constitution to restrict and

suspend access to each and every provision “of the INA that would permit” the covered

individuals to remain in the United States, Proclamation, §§ 2, 3—and the lawfulness of the

agency guidance that implements the Proclamation—including by “repatriat[ing]” or

“remov[ing]” individuals pursuant to the Proclamation, Proclamation § 5, rather than under the

usual INA procedures.

Although the Court must avoid conflating jurisdiction with the merits, Plaintiffs’

contention that they are challenging the Proclamation and its implementation (and not the

Attorney General or the Secretary’s implementation of § 1225(b)(1)) finds support in the

administrative record. To start, the Proclamation itself purports to authorize “repatriation” and

“removal” of “any alien engaged in the invasion across the southern border,” not as an exercise

of the Attorney General or the Secretary’s authority under § 1225(b)(1), but, rather, “as an

exercise of the [President’s] suspension power in [8 U.S.C. § 1182(f) and § 1185(a)] of the INA

. . . or as an exercise of [the President’s] delegated authority under the Constitution of the United

States.” Proclamation, § 5. Consistent with that command, the implementing guidance directs

that “[a]ll illegal aliens subject to Presidential Proclamation 10888 . . . will be processed pursuant

58

to sections 212(f) [8 U.S.C. § 1182(f)] and 215(a) [8 U.S.C. § 1185(a)] of the Immigration and

Nationality Act.” Dkt. 52-1 at 20. The documentation provided to covered individuals is to the

same effect. The “212(f) Tear Sheet” included in the administrative record informs the affected

individual that he or she is “being transported from the United States . . . under Presidential

Proclamation 10888 . . . as an alien whose entry to the United States has been suspended

pursuant to sections 212(f) and 215(a) of the Immigration and Naturalization Act, as well as the

power of the President under the Constitution of the United States.” Id. at 25 (emphases added).

Other portions of the administrative record refer to “212(f) Direct Repatriations” and

“212(f) Expedited Removal” or “Expedited Removal – Per 212(F).” See, e.g., id. at 6, 11–14,

18–19, 21. When asked to explain the difference between a “212(f) Direct Repatriation” and a

“212(f) Expedited Removal,” Defendants identified only one difference: An individual subject to

“212(f) Expedited Removal” receives “a Notice to Alien Ordered Removed and [is] issued an

Expedited Removal Order,” while an individual subject to a “212(f) Direct Repatriation” does

not. Dkt. 59 at 7–8. As Defendants further explained, id. at 8, this difference has collateral

immigration consequences, given the temporary inadmissibility of those previously subject to

removal orders and the risk of criminal liability for reentry, see 8 U.S.C. §§ 1182(a)(9)(A),

1231(a)(5), 1326, but it is otherwise inconsequential.

Two things stand out about this approach. First, there is no such thing as “direct

repatriation” under the INA. Second, “212(f) Expedited Removal” is not the same thing as

expedited removal under 8 U.S.C. § 1225(b)(1). Section 1225(b)(1) permits “an immigration

officer” to order the immediate removal of an inadmissible alien, “unless the alien indicates

either an intention to apply for asylum under section 1158 of [Title 8] or a fear of persecution.”

8 U.S.C. § 1225(b)(1) (emphasis added). The provision then goes on to describe, in detail, the

59

procedures for conducting the required asylum and credible fear interviews, reviewing the initial

determinations made by asylum officers, and referring matters for full removal proceedings. Id.

And all of that—that is, the defining characteristics of a § 1225(b)(1) expedited removal

proceeding—is precisely what the Proclamation and guidance do not allow. Notably,

Defendants are not even purporting to implement § 1225(b)(1); they are, on their own telling,

implementing the Proclamation. See infra at 107–10. The Proclamation is premised on a

distinct set of statutory and constitutional provisions, and, by its own terms, the Proclamation

operates separate and apart from “provisions of the INA that would permit [an alien’s] continued

presence in the United States.” Proclamation, §§ 2, 3. Nothing in § 1252(a)(2)(A) limits the

Court’s jurisdiction to consider the lawfulness of a proclamation (or the implementation of a

proclamation) issued pursuant to § 1182(f) and § 1185(a) and the President’s non-INA “authority

to protect the sovereignty of the United States,” see Proclamation, preamble.

Finally, the Court notes an important difference between § 1252(a)(2)(A)(i) and

§ 1252(f)(1). In Aleman Gonzalez, the Supreme Court read § 1252(f)(1)—and, in particular, the

limitation on class-wide court orders enjoining or restraining “the operation of the provisions of

part IV”—to deprive the lower courts of authority to issue “injunctions that order federal

officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out

the specified statutory provisions.” 596 U.S. at 548, 550 (emphasis omitted). Section

1252(a)(2)(A)(i), in contrast, does not refer to the “operation” of any statutory provision but,

rather, refers to the “operation of an order of removal pursuant to [§] 1225(b)(1).” 8 U.S.C.

§ 1252(a)(2)(A)(i) (emphasis added). That matters because this case does not involve “an order

of removal [entered] pursuant to [§] 1225(b)(1).” Id. To the contrary, by Defendants’ own

account, all of the “212(f) Direct Repatriations” and all of the “212(f) Expedited Removal”

60

orders are undertaken “per” § 1182(f) (INA § 212(f))—not § 1225(b)(1). See, e.g., Dkt. 52-1 at

12; see also Dkt. 44 at 20, 58; Dkt. 55 at 28–29 (asserting that covered aliens “do not fall within

the bounds of” § 1225(b)(1)).

Accordingly, even if the Court did not have statutory jurisdiction based on the individual

plaintiffs’ claims, the Court would have both Article III and statutory jurisdiction based on the

organizational plaintiffs’ claims. 8

3. Causes of Action

Defendants’ final set of threshold arguments posit that Plaintiffs lack an APA or a non-

statutory cause of action. They are incorrect on both counts.

a. APA Cause of Action

Under the APA, “[a] person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to

judicial review thereof.” 5 U.S.C. § 702. At times, the APA merely provides the required

waiver of sovereign immunity necessary to bring suit under another statute, while, at other times,

8

Although the Court need not reach the issue, the Court’s conclusion would, in any event, likely

remain the same, even if § 1252(a)(2)(A) applied to the organizational plaintiffs’ claims. That is

because § 1252(a)(2)(A) permits challenges under § 1252(e)(3), and that provision authorizes

timely challenges to “written policy guideline[s]” implementing § 1225(b)(1). Defendants’ sole

counterargument posits that § 1252(e)(3) only permits claims by “individuals subject to . . .

expedited removal.” Dkt. 44 at 35–36. But that misreads both the statute and is inconsistent

with recent precedent from this Court. Most notably, nothing in the text of § 1252(e)(3) limits

review to individuals. Although Defendants invoke American Immigration Lawyers Ass’n v.

Reno, 199 F.3d 1352 (D.C. Cir. 2000) (“AILA”), in support of their reading of the statute, recent

precedent from this Court reads AILA to address only third-party standing—a theory that the

organizational plaintiffs do not advance in this case and that, accordingly, Defendants do not

challenge. See Las Americas Immigrant Advocacy Center, 2025 WL 1403811, at *9 n.8. And

although Defendants also invoke the D.C. Circuit’s decision in Make the Road New York, 962

F.3d at 627, that decision also read AILA to address only third-party standing. When it came to

resolving the jurisdictional question that was before it, moreover, the Make the Road New York

court held that Make the Road New York had standing, albeit on a theory of associational

standing. Id. at 623–28.

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the APA provides both the waiver of sovereign immunity and the cause of action. See Trudeau

v. Fed. Trade Comm’n, 456 F.3d 178, 183–91 (D.C. Cir. 2006). The APA cause of action,

however, is available only to review “final agency action for which there is no other adequate

remedy.” 5 U.S.C. § 704. The APA’s scope of review provision, in turn, authorizes a reviewing

court to, among other things, “set aside agency action . . . found to be . . . not in accordance with

law.” Id. § 706(2)(A). Here, Defendants contend that APA review is unavailable to the

Plaintiffs for a variety of reasons, none of which are ultimately persuasive.

First, Defendants argue that the Proclamation does not constitute “agency action” and

that the implementing guidance does not constitute “final agency action distinct from the

Proclamation.” Dkt. 44 at 39. Although they are correct that the Proclamation is not itself

subject to APA review, their characterization of the implementing guidance misses the mark. An

agency action is deemed final if two conditions are met. First, the action “must mark the

consummation of the agency’s decisionmaking process” and “must not be of a merely tentative

or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotation

marks and citation omitted). “And second, the action must be one by which rights or obligations

have been determined, or from which legal consequences will flow.” Id. at 178 (internal

quotation marks omitted). Both conditions are satisfied here. The guidance “consummates” the

Department of Homeland Security’s decision regarding the implementation of the Proclamation;

there is nothing preliminary, tentative, or inchoate about it. It is equally clear, moreover, that the

guidance has real “legal consequences” for those subject to the Proclamation, including the

individual plaintiffs in this case, some of whom have already been removed from the United

States pursuant to the guidance.

62

Nor is the guidance “indistinct” from the Proclamation. To be sure, the guidance

implements the Proclamation, but it also adds both detail and real-world consequences. The

guidance—not the Proclamation—sets out two types of removal procedures that will apply to

aliens subject to the Proclamation, instructs officers and agents not to ask aliens specific fear

questions or to use forms otherwise required under the agencies’ regulations, and instructs

immigration officers to use a heightened standard when screening covered aliens for CAT

protection. See, e.g., Dkt. 52-1 at 13. This is not a case of guidance that is “purely informational

in nature” or that merely “‘restate[s]’ legal requirements derived from independent sources of

law.” Dkt. 55 at 21 (quoting Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir.

2004)). Defendants maintain that “[t]o the extent aliens are removed or repatriated because they

entered in violation of the Proclamation, that is a direct legal consequence of the President’s

suspension order.” Dkt. 55 at 21–22. But as the D.C. Circuit observed in response to a similar

argument in Reich, the fact that the agency is implementing a presidential directive “hardly

seems to insulate” the agency action “from judicial review under the APA, even if the validity of

the” presidential directive is “thereby drawn into question.” 74 F.3d at 1327. If this were a case

in which the President had “final constitutional or statutory responsibility for the final step

necessary for the agency action directly to affect the parties,” the implementing guidance might

be disregarded. Pub. Citizen, 5 F.3d at 552. But it is not. Indeed, in recognition of that fact, the

Proclamation directs “[t]he Secretary of Homeland Security, in coordination with the Secretary

of State and the Attorney General” to “take all appropriate action to repel, repatriate, or remove

any alien engaged in the invasion.” Proclamation, § 5.

Second, Defendants argue that APA review is precluded here because of “other

limitations on judicial review” that the APA leaves intact. Dkt. 44 at 41 (quoting 5 U.S.C.

63

§ 702(1)). In particular, Defendants maintain that “the longstanding limitation on review of

Executive decisions to deny entry to aliens” bars review. Id. If that were all that was at issue,

this would be a far different case, and it might raise the question regarding the President’s

independent constitutional authority to protect the borders of the United States, which was left

unanswered in Trump v. Hawaii, 585 U.S. 667 (2018), and Sale v. Haitian Centers Council, Inc.,

509 U.S. 155 (1993). But this case, unlike Trump v. Hawaii and Sale, turns on whether the

President’s authority to limit “entry” carries with it the authority to close the avenues of

humanitarian relief that are available to those who have already entered the United States and

whether that authority can supersede or displace the INA. None of the language in § 1182(f) that

“exudes deference to the President,” such as “‘[w]henever [the President] finds that the entry’ of

aliens ‘would be detrimental’ to the national interest,’” he may suspend or limit entry “‘for such

period as he shall deem necessary,’” Trump v. Hawaii, 585 U.S. at 684 (quoting 8 U.S.C.

§ 1182(f)), is at issue here.

Third, Defendants argue that APA review is unavailable because the decision at issue—

the President’s decision to invoke § 1182(f) and § 1185(a)—is “committed to agency discretion

by law.” Dkt. 44 at 41 (quoting 5 U.S.C. § 701(a)(2)). The Court does not doubt that the

President is entitled to substantial deference in deciding whether to “suspend the entry of all

aliens or any class of aliens” to promote “the interests of the United States.” 8 U.S.C. § 1182(f);

see also Trump v. Hawaii, 585 U.S. at 684. The deference that the President receives within the

realm of § 1182(f)—that is, when deciding whether and when to suspend or limit “entry” into the

United States and whom to include in the excluded class—does not mean, however, that he is

entitled to the same level of deference outside that realm—that is, when attempting to deny those

64

who have already entered the United States access to “portions of the immigration system,” to

those who have already entered the United States, see Proclamation, preamble.

Fourth, Defendants argue that the organizational plaintiffs lack zone-of-interests

standing. Dkt. 44 at 36–38. Zone-of-interests standing is a non-jurisdictional doctrine that asks

whether a “plaintiff’s complaint fall[s] within the zone of interests protected by the law

invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014)

(internal quotation marks and citation omitted). The zone-of-interests test is, in other words, a

“tool for determining who may invoke the cause of action” created in the statute at issue. Id. at

130. “[I]n keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency

action presumptively reviewable,’” the test, at least in the APA context, “‘is not meant to be

especially demanding.’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

567 U.S. 209, 225 (2012) (quoting Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399 (1987)). “The

interest [the plaintiff] asserts must be ‘arguably within the zone of interests to be protected or

regulated by the [underlying] statute’ that [the plaintiff] says was violated.” Id. at 224 (quoting

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Courts “do not

require any ‘indication of congressional purpose to benefit the would-be plaintiff,’” and the

Supreme Court has “always conspicuously included the word ‘arguably’ in the test to indicate

that the benefit of any doubt goes to the plaintiff.” Id. at 225 (quoting Clarke, 479 U.S. at 399–

400). “The test forecloses suit only when a plaintiff’s ‘interests are so marginally related to or

inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that

Congress intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399).

The organizational plaintiffs satisfy this permissive test. Notably, their interests in

providing legal assistance to asylum seekers is consistent with the INA’s purpose to “establish[]

65

. . . [the] statutory procedure for granting asylum to refugees.” Cardoza-Fonseca, 480 U.S. at

427. As in O.A., the organizational plaintiffs’ “interest in representing asylum seekers furthers

the purposes of the INA,” see 404 F. Supp. 3d at 144, which instructs the government to advise

aliens filing an application for asylum “of the privilege of being represented by counsel” and to

“provide the alien a list of persons . . . who have indicated their availability to represent aliens in

asylum proceedings on a pro bono basis,” 8 U.S.C. § 1158(d)(4).

Defendants argue that O.A. relied on a “more lenient version” of the zone-of-interests test

that “no longer survives the Supreme Court’s more recent decision in United States v. Texas, 599

U.S. 670 (2023).” Dkt. 44 at 38. According to Defendants, Texas “clarified . . . that third parties

like Plaintiffs have no cognizable interest in the way the Executive enforces the immigration

laws against others.” Id. (citing United States v. Texas, 599 U.S. at 674, 677). But the Supreme

Court has made clear that Article III standing and zone-of-interests standing are entirely different

concepts, and United States v. Texas addressed only Article III standing. Nothing in that

decision calls into question the zone-of-interests test set forth in Lexmark, 572 U.S. at 126, and

Patchak, 567 U.S. at 225, which is the standard that the Court applied in O.A., 404 F. Supp. 3d at

144. Nor did the Supreme Court announce a new understanding of Article III standing in United

States v. Texas. To the contrary, the Court merely applied the well-established rule that the

executive’s exercise of prosecutorial discretion is, by and large, unreviewable. United States v.

Texas, 599 U.S. at 674 (quoting Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973)). 9

9

Neither INS v. Legalization Assistance Project of the Los Angeles County Federation of Labor

(“LAP”), 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers) nor Federation for American

Immigration Reform, Inc. v. Reno (“FAIR”), 93 F.3d 897, 900–04 (D.C. Cir. 1996), supports a

contrary conclusion. See Dkt. 44 at 37. Justice O’Connor’s in-chambers opinion in LAP reflects

the views of a single Justice relating to a different statute, the Immigration Reform and Control

Act of 1986 (“IRCA”). FAIR, too, is inapposite. The organization at issue in that case was

66

b. Non-Statutory Cause of Action

Plaintiffs also bring a non-statutory—or equitable—cause of action challenging the

Proclamation itself. Defendants argue that no such cause of action is cognizable for a

hodgepodge of reasons, most of which receive little more than a sentence in Defendants’ briefs.

They argue that the Proclamation itself “unambiguously forecloses judicial review,” Dkt. 44 at

43; that, in any event, “proclamations are [simply] management tools for implementing the

President’s policies, not legally binding documents that may be enforced against the Executive

Branch,” id.; that § 1182(f) and § 1185(a) vest the President with discretion that is not subject to

“judicial second-guessing,” id. at 43–45; that the President’s authority to exclude or expel aliens

“remains largely immune from judicial control,” id. at 45 (citation omitted); that the President’s

authority “stems not [only] from legislative power but is inherent in the executive power to

control the foreign affairs of the nation,” id. (citation and emphasis omitted); that “the power

over aliens is of a political character and therefore subject only to narrow judicial review,” id. at

46 (citation and emphasis omitted); that the “courts are categorically barred from issuing

injunctions that would purport to enjoin or otherwise constrain the President in the performance

of his official duties,” Dkt. 55 at 19 (citation omitted); that Plaintiffs’ claims here are statutory,

“even if dressed in separation-of-powers garb,” id.; and, finally, that Plaintiffs’ claims fail to

“dedicated to ensuring that levels of legal immigration are consistent with the absorptive

capacity of the local areas where immigrants are likely to settle,” and it brought suit challenging

the INA’s scheme for “parole and adjustment of status of Cuban nationals” into the United

States. FAIR, 93 F.3d at 899 (internal quotation omitted). The D.C. Circuit held that the

organization’s mission bore no more than a “marginal[] rela[tionship]” to the statutory purposes

of the INA, because it pointed to no language of congressional intent that “even hint[ed] at a

concern about [the] regional impact” of immigration. Id. at 900–01 (internal quotation marks

omitted).

67

allege a violation sufficiently egregious to support “an ultra vires claim,” id. at 20 n.4 (emphasis

added).

To the extent this litany of arguments either rehashes arguments addressed above or

anticipates the merits, which are addressed below, the Court will not repeat itself here. A couple

of points, however, warrant at least brief mention. To start, non-statutory review of unlawful

executive action existed long before the APA was enacted, and “[n]othing in the subsequent

enactment of the APA altered” the understanding that, “[w]hen an executive acts ultra vires,

courts are normally available to reestablish the limits on his authority.” Dart v. United States,

848 F.2d 217, 224 (D.C. Cir. 1988); see also Reich, 74 F.3d at 1328. Nor is there any merit to

Defendants’ suggestion that ultra vires review is available only in cases alleging a constitutional

claim. To be sure, Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327 (2015),

involved a claim premised on the Supremacy Clause. But the Supreme Court did not limit its

recognition of a right to sue to enjoin “violations of federal law by federal officials” to

constitutional claims. Id. As the D.C. Circuit explains in Reich, moreover, the long history of

the non-statutory cause of action started with a statutory claim in American School of Magnetic

Healing v. McAnnulty, 187 U.S. 94 (1902), in which the Supreme Court assumed the

constitutionality of the statutes at issue and addressed, instead, whether the Postmaster General

acted in accordance with those statutes, and has been applied on numerous occasions to statutory

claims. 74 F.3d at 1327–28 (citing leading cases).

Nor is there any merit to Defendants’ suggestion that presidential actions lie beyond the

scope of review, even when the relief is limited to enjoining the actions of subordinate

government officials. To the contrary, the D.C. Circuit engaged in precisely that form of review

in Reich, 74 F.3d at 1328; it is the approach that Justice Scalia endorsed in his concurrence in

68

Franklin v. Massachusetts, 505 U.S. at 823–29; and it is what happened in Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952). As the D.C. Circuit wrote in Soucie v. David: “The

fact that the President may have ordered” the subordinate official to engage in the challenged

conduct “does not leave the courts without power to review the legality of” that conduct, “for

courts have power to compel subordinate executive officials to disobey illegal Presidential

commands.” 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971). In this respect, Defendants’

unsupported contention that federal courts not only lack the power to enjoin the President, but

also lack the power to “otherwise constrain” how he discharges his “official duties,” Dkt. 55 at

19, is not only wrong, but at odds with the fundamental tenet that ours is “a government of laws

and not of men,” Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (internal

quotation marks omitted); see also Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569,

575 (D.D.C. 1952). And their argument that the substance of the Proclamation is unreviewable

merely because it recites the usual boilerplate disclaiming the creation of “any right or benefit,

substantive or procedural, enforceable at law or in equity,” Proclamation, § 6, requires only the

briefest of responses; putting aside Defendants’ misreading of the Proclamation, the Executive

Branch, in any event, cannot avoid judicial review by simply declaring that its actions are

unreviewable.

There are, of course, limits on the availability of ultra vires or non-statutory review.

Congress (unlike the Executive Branch) may “preclude[] non-statutory judicial review,” Reich,

74 F.3d at 1328, and certain exercises of presidential authority are committed to the President’s

exclusive discretion. The Court, however, has already addressed the relevant statutory limits on

its jurisdiction and authority, and, in the field of immigration, the President shares authority with

Congress. See U.S. Const. art. I, § 8 (“The Congress shall have Power To . . . establish an

69

uniform Rule of Naturalization.”). As precedent reflects, in areas of shared presidential and

congressional authority, the courts have presumptive authority to determine whether the

President has usurped an authority that Congress neither delegated to him nor left for him to

exercise unimpeded by statute. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981);

Youngstown, 343 U.S. 579; Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993). 10

B. Merits

Plaintiffs challenge the Proclamation and implementing guidance as an unlawful effort to

supplant the detailed provisions of the INA with an alternative set of immigration laws

established by executive “fiat.” Dkt. 52 at 11. They argue that the Proclamation and guidance

purport to establish an alternative extra-statutory system for removing or repatriating aliens in

“212(f) Expedited Removals” and “212(f) Direct Repatriations,” rather than under the rules and

procedures that Congress has enacted. And they argue that, under this alternative system, the

right to apply for asylum, 8 U.S.C. § 1158, the right to withholding of removal, 8 U.S.C.

§ 1231(b)(3), 8 C.F.R. §§ 208.16, 1208.16, and the procedural protections ordinarily available to

CAT applicants, 8 U.S.C. § 1231 note (head of agency must implement CAT by “prescrib[ing]

regulations”); 8 C.F.R. §§ 208.9, 208.30, 1208.30, are abrogated for those aliens subject to the

Proclamation.

Plaintiffs further argue that none of the authorities that Defendants invoke in support of

the Proclamation and guidance authorize such a wholesale rewriting of the INA and the

governing regulations. Plaintiffs stress that, even if § 1182(f) and § 1185(a) confer broad

10

Defendants also contend that the determination of what constitutes an “invasion” is a

nonjusticiable political question. See Dkt. 44 at 47–48. But because the Invasion Clause of

Article IV does not provide authority for the challenged actions that is not found elsewhere, see

infra at 84–89, the Court need not make any such determination.

70

discretion on the President to suspend or to restrict “entry” into the United States, those

provisions do not authorize the President or the Secretary to suspend access to asylum and

withholding of removal or to disregard the regulations governing CAT determinations. Nor, on

Plaintiffs’ telling, do those provisions permit the President or the Secretary to supplant the INA’s

detailed procedures for removal of aliens who are unlawfully present in the United States with

non-statutory, non-regulatory, and less protective “212(f) Expedited Removals” and “212(f)

Direct Repatriations.” And, Plaintiffs continue, neither the President’s Article II authority nor

whatever independent authority he might have under Article IV, Section 4 allows him or those

acting at his direction to take any of these actions. As the Supreme Court recently observed,

Congress maintains “plenary power over immigration,” and the President’s exercise of delegated

authority cannot exceed the bounds that Congress has set. SEC v. Jarkesy, 603 U.S. 109, 129

(2024). Yet, according to Plaintiffs, that is precisely what the Proclamation and implementing

guidance purport to do.

Defendants disagree with each of these arguments, and they maintain that the

Proclamation and implementing guidance constitute a permissible, albeit novel, use of § 1182(f)

and § 1185(a), and that the President’s constitutional authority both bolsters that conclusion and

provides an independent basis for the Proclamation and guidance. Their arguments, for the most

part, turn on an appeal to efficacy and an implied (albeit not express) authority to take all steps

necessary to stop unauthorized individuals from crossing the southern border, Proclamation, § 2,

or entering the United States elsewhere, without “sufficient medical information and reliable

criminal history and background information,” Proclamation, § 3.

For the reasons explained below, the Court concludes that Plaintiffs have the better of the

arguments and that neither the INA nor the Constitution authorizes the changes in immigration

71

law embodied in the Proclamation and implementing guidance. The Court will first address the

creation of the new “212(f) Direct Repatriation” and “212(f) Expedited Removal” mechanisms

and will then consider the suspension of the rights to apply for asylum and to obtain withholding

of removal and the changes made to the procedures for seeking CAT protection.

1. “212(f) Direct Repatriation” and “212(f) Expedited Removal”

a. Statutory Authority

The first question is whether the INA authorizes the use of the new “212(f) Direct

Repatriation” and “212(f) Expedited Removal” mechanisms in lieu of traditional removal

procedures. The parties agree that the regular removal procedures set forth in § 1229a constitute

“‘the sole and exclusive procedure[s]’ for ordering the removal of noncitizens” from the United

States, Dkt. 52 at 16 (quoting 8 U.S.C. § 1229a(a)(3)), “[u]nless otherwise specified in [the

INA],” Dkt. 55 (quoting same). 11 They also agree that expedited removal under § 1225(b)(1)

constitutes an “otherwise specified” procedure, thereby establishing at least two routes to

removal: regular removal and expedited removal. Their disagreement, instead, turns on whether

“§ 1182(f) is an INA provision that ‘otherwise specifie[s]’ that an alie

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