U.T. v. Barr

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

U.T., et al.,

Plaintiffs,

v. Civil Action No. 20-116 (EGS)

TODD BLANCHE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs, a group of noncitizens seeking asylum in the

United States and organizations who provide immigration

counseling and legal services to asylum seekers, bring this

lawsuit against Todd Blanche, 1 in his official capacity as

Attorney General, and various other federal government officials

and agencies, for violations of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 701, et seq.; the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., and its

implementing regulations; and the Foreign Affairs Reform and

Restructuring Act of 1998 (“FARRA”), codified as Note to 8

U.S.C. § 1231, and its implementing regulations.

Pending before the Court are Plaintiffs’ Motion for Leave

to File Second Amended Complaint (“Mot. for Leave”), ECF No.

1 Todd Blanche is substituted pursuant to Federal Rule of Civil Procedure 25(d).

173; 2 Plaintiffs’ Motion for Class Certification (“Mot. for Class

Cert.”), ECF No. 174; and Plaintiffs’ Unopposed Motion to Hold

in Abeyance Claims Concerning Expedited Removal (“Mot. to Hold

in Abeyance”); ECF No. 191. Upon careful consideration of the

motions, the responses, and replies thereto; the applicable law;

and the entire record, the Court GRANTS Plaintiffs’ Motion for

Leave to File a Second Amended Complaint, GRANTS Plaintiffs’

Motion for Class Certification, and GRANTS Plaintiffs’ Unopposed

Motion to Hold in Abeyance Claims Concerning Expedited Removal.

I. Background

A. Factual Background

This suit stems from the government’s interim final rule

(“Rule”) that allows the United States to use the statutory

provision in the federal asylum statute to enter into

international agreements. See Amended Complaint (“Am. Compl.”),

ECF No. 166 ¶ 1. These agreements are used to remove asylum

seekers to third countries so that their asylum claims can be

heard and processed there, rather than in the United States. See

id.

2 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

1. Methods of Seeking Protection Against

Persecution and Torture

Under federal law, an individual has three primary forms of

protection if they are fleeing persecution and torture from

their home country: (1) asylum under 8 U.S.C. § 1158; (2)

withholding of removal from the United States under 8 U.S.C. §

1231(b)(3); and (3) protection under the Convention Against

Torture (“CAT”) 3 (hereinafter, collectively “Protection”). See

id. ¶ 38.

Asylum can be granted to individuals who have a “wellfounded fear of persecution” due to their race, religion,

nationality, political opinion, or membership in a particular

social group. See id. ¶ 39 (citing 8 U.S.C. § 1101(a)(42)(A)).

Subject to several narrow exceptions, any noncitizen who is

physically present in the United States or arrives in the United

States, irrespective of the noncitizen’s status, may apply for

asylum. Id. ¶ 40 (citing 8 U.S.C. § 1158(a)(1)). There are three

principal ways to seek asylum: (1) a noncitizen not already in

removal proceedings may file an affirmative application with the

United States Citizenship and Immigration Services (“USCIS”) and

complete an interview with an asylum officer; (2) a noncitizen

already in regular removal proceedings may submit a “defensive”

asylum application to the immigration judge; or (3) a noncitizen

3 8 C.F.R. § 1208.16–18.

placed in expedited removal proceedings may raise an asylum

claim by expressing fear of removal and completing a credible

fear interview with an asylum officer to screen for eligibility.

See id. ¶ 41.

Under the withholding provision, the government cannot

remove a noncitizen to a country if the noncitizen’s life or

freedom would be threatened in that country because of their

race, religion, nationality, political opinion, or membership in

a particular social group. Id. ¶ 42 (citing 8 U.S.C. §

1231(b)(3)). The withholding statute bars removal of a

noncitizen to any country where they would more likely than not

be persecuted, not just the noncitizen’s home country. Id. CAT

also prohibits the removal of a noncitizen to any country where

it is more likely than not that they would be tortured. Id. ¶ 43

(citing 8 C.F.R. § 208.16(c)(2)). Both the withholding statute

and the CAT regulations implement obligations under

international treaties preventing the United States from sending

noncitizens to countries where they would face torture or

persecution. Id. ¶ 44. These are known as “non-refoulement

obligations,” which include “indirect refoulement,” meaning the

United States cannot send an asylum seeker to countries that

will send them onward to places where they would face

persecution or torture. Id. ¶ 44–45.

Both expedited and regular removal proceedings have

safeguards against refoulement. Id. ¶ 46. In regular removal

proceedings, noncitizens have the right to counsel, to present

evidence, to cross-examine witnesses, and to administrative

appeal and judicial review. Id. Noncitizens in expedited removal

proceedings can be removed by immigration officers without

further hearing or review; however, an immigration officer must

affirmatively ask noncitizens whether they have any fear or

concern about being returned to their home country or being

removed from the United States. Id. ¶ 47 (citing 8 C.F.R. §

235.3(b)(2)(i)). If the noncitizen expresses such fear, they are

entitled to a credible fear interview. Id. (citing 8 U.S.C. §

1225(b)(1)(B)). At the credible fear hearing, a noncitizen must

only establish a “significant possibility” that they could

establish eligibility for one of the three protection methods in

a full removal hearing, and if satisfied, they are placed in

regular removal proceedings. Id. ¶¶ 48–49.

2. Safe Third Country Provision and First ACAs

The safe third country provision provides that

if the Attorney General determines that the

[noncitizen] may be removed, pursuant to a

bilateral or multilateral agreement, to a

country (other than the country of the

[noncitizen’s] nationality or, in the case of

an alien having no nationality, the country of

the [noncitizen’s] last habitual residence) in

which the [noncitizen’s] life or freedom would

not be threatened on account of race,

religion, nationality, membership in a

particular social group, or political opinion,

and where the [noncitizen] would have access

to a full and fair procedure for determining

a claim to asylum or equivalent temporary

protection, unless the Attorney General finds

that it is in the public interest for the

[noncitizen] to receive asylum in the United

States[,]

the noncitizen may not apply for asylum. See id. ¶ 50 (citing 8

U.S.C. § 1158(a)(2)(A)). The provision was enacted in 1996, “in

light of negotiations initiated by Canada, which has long been a

global leader in refugee protection.” Id. ¶ 51. These agreements

are also known as “asylum cooperative agreements” (“ACA”). The

safe third country agreement with Canada was signed in 2002 and

became effective in 2004. Id.

Until 2019, the only ACA the United States had entered into

was the agreement with Canada. Id. ¶ 52. However, in 2019, the

United States signed ACAs with Guatemala, El Salvador, and

Honduras. Id. ¶ 53. The ACA with Guatemala was signed on July

26, 2019 and published in the Federal Register on November 20,

2019. Id. ¶ 54. The ACA with El Salvador was signed on September

20, 2020, and the ACA with Honduras was signed on September 25,

2019. 4 Id. ¶ 55.

4 Plaintiffs note that the Rule at issue requires that ACAs must be published in the Federal Register, but the Honduras and El Salvador ACAs were not. Am. Compl., ECF No. 1 ¶ 55.

3. The Rule

On November 19, 2019, former Attorney General Barr (“Mr.

Barr”) and former Acting Department of Homeland Security (“DHS”)

Secretary Wolf promulgated the Rule 5 at issue in this case. See

id. ¶ 56. The Rule adopts new procedures in regular and

expedited removal proceedings that apply to noncitizens subject

to the ACAs other than the one entered into with Canada. Id.

In an expedited removal process, the Rule “divert[s] [the

asylum seeker] away from the normal credible fear process into a

new process created by the Rule.” Id. ¶ 60. The Rule states that

rather than receiving a credible fear interview, the asylum

seeker will receive written notice that if they fear removal to

a prospective receiving ACA country, they must affirmatively

state that to the officer. See id. If they do, an asylum officer

will assess their risk of persecution or torture during a

“threshold screening interview” to determine whether it is “more

likely than not” that they would be persecuted or tortured in

that country. See id. ¶¶ 62–63. The “more-likely-than-not”

standard used in these threshold screening interviews is the

ultimate standard used in a full removal hearing when seeking

withholding or CAT relief. Id. ¶ 63. A noncitizen must meet this

standard for every ACA country to which they are susceptible to

5 84 Fed. Reg. 63,944.

removal in order to receive a normal credible fear interview

regarding their fear of removal to their home country. Id. If

the asylum officer determines that after the threshold screening

interview that they do not meet the “more-likely-than-not”

standard, the noncitizen is subject to immediate removal to the

ACA country once the supervisory asylum officer signs off on the

decision. Id. ¶ 67. This decision is final, as the Rule “forbids

immigration judge review.” Id. ¶ 68.

In a regular removal process, the Rule “authoriz[es]

immigration judges to order asylum seekers removed to ACA

countries before hearing the merits of their asylum,

withholding, and CAT claims as to their countries of origin.”

Id. ¶ 69. The Rule also prohibits immigration judges from

exercising the “public interest” exception provided in the

asylum statute in regular removal proceedings, see id. ¶ 70

(citing 8 U.S.C. § 1158(a)(2)(A)); and instead states that only

DHS may exercise this discretionary authority. Id.

4. 2019 Designations and Guidance

The Rule states that

[p]rior to implementation of an ACA, the

Attorney General and the Secretary of Homeland

Security’ will ‘make a categorical

determination whether a country to which

[noncitizens] would be removed under such an

agreement provides access to a full and fair

procedure for determining a claim to asylum or

equivalent temporary protections.

Id. ¶ 72 (citing 84 Fed. Reg. at 63,997 (internal citations

omitted). On October 16, 2019 and November 7, 2019,

respectively, former Acting DHS Secretary Kevin McAleenan and

Mr. Barr signed memoranda concluding that Guatemala met the

statutory requirement of providing a full and fair asylum

system. Id. ¶¶ 73–74. On Plaintiff’s information and belief,

similar memoranda were signed regarding Honduras and El

Salvador, but these memoranda have not been made public. Id. ¶

75.

On November 19, 2019, USCIS issued written guidance for

asylum officers regarding how to conduct ACA threshold screening

interviews in expedited removal proceedings. Id. ¶ 76. The

guidance provided that Customs and Border Protection (“CBP”)

officers were to make the initial determination whether a

noncitizen falls under an ACA. Id. ¶ 77. Moreover, the guidance

states that in threshold screening interviews, demonstrating

past persecution is only considered “strong evidence” of the

future likelihood of persecution, unlike in credible fear

interviews, where it creates a presumption of future

persecution. Id. ¶ 78.

The same day, the Executive Office for Immigration Review

(“EOIR”) distributed guidance to immigration judges that

noncitizens subject to an ACA are not eligible for Protection

unless the immigration judge determines that: (1) the ACA does

not preclude the noncitizen from applying for asylum in the

United States, (2) the noncitizen qualifies for an exception to

the relevant ACA, or (3) the noncitizen has shown that they

would more likely than not be persecuted or tortured in the

third country. Id. ¶ 79. The guidance also prevented immigration

judges from “review[ing], consider[ing], or decid[ing] any

issues pertaining to any discretionary determination” of whether

a noncitizen subject to an ACA can pursue asylum in the United

States, or if a noncitizen can apply for asylum if a DHS officer

determines that the public interest exception applies and files

a written notice stating the same. Id. ¶ 80.

5. First Trump Administration’s Application of the

Rule

In November 2019, Defendants began applying the Rule and

the ACA with Guatemala to asylum seekers in expedited removal

proceedings. Id. ¶ 81. Plaintiffs allege, however, that “the

U.S. and Guatemalan governments had not yet developed any plan

to ensure that asylum seekers deported under the agreement would

be able to access asylum procedures,” resulting in inadequate

legal and social services and pressure on noncitizens to return

to their countries of origin, which Plaintiffs allege is

“indirect refoulement” of asylum seekers. See id. ¶¶ 81–84.

On March 17, 2020, due to concerns surrounding the spread

of the COVID-19 virus, the Guatemalan government suspended the

2019 ACA. Id. ¶ 85. While removals under the agreement

ultimately never resumed, between November 2019 and March 2020,

Defendants removed approximately 945 non-Guatemalan asylum

seekers to Guatemala. See id. ¶¶ 85–86.

The 2019 ACAs with Honduras and El Salvador were never

implemented, likely due to the COVID-19 pandemic. Id. ¶ 87.

6. Biden Administration Termination of the 2019

ACAs

On February 2, 2021, then-President Biden directed the

Attorney General and DHS Secretary to “promptly review and

determine whether to rescind the interim final rule,” as well as

“any agency memoranda or guidance issued in reliance on that

rule.” Id. ¶ 88 (citing Exec. Order 14010, 86 Fed. Reg. 8267,

8270). The same order directs the Secretary of State to consider

whether to notify the governments of Guatemala, El Salvador, and

Honduras that the United States intends to suspend and terminate

the ACAs. Id. On February 6, 2021, the State Department

announced that it had begun the process of suspending and

terminating the ACAs, and after the applicable notice periods,

the ACAs were terminated by August 2019. Id. ¶ 89.

The government did not announce whether it had rescinded

the 2019 Designations concerning Guatemala, El Salvador, and

Honduras, nor did it announce whether it had rescinded the 2019

Guidance documents. Id. ¶ 90.

7. Second Trump Administration Application of the

Rule

Beginning in June 2025, the second Trump administration

signed a series of new ACAs. Id. ¶ 91.

The United States signed a new ACA with Guatemala on June

13, 2025, which was published in the Federal Register on July

15, 2025. Id. ¶ 92. (citing 90 Fed. Reg. 31675). Defendants

entered into the new agreement despite the State Department

acknowledging in May 2025 that Guatemala remains dangerous and

discourages Americans from traveling to the country. Id. ¶ 93.

The State Department also acknowledged in 2024 that while

Guatemalan law does provide for the granting of asylum or

refugee status, “there are gaps and shortcomings in the

procedures for implementing the legal framework.” Id. ¶ 94

(internal citation omitted).

On June 25, 2025, the United States signed a new ACA with

Honduras, which was published in the Federal Register on July 8,

2025. Id. ¶ 95. The State Department has similarly warned

Americans not to travel to Honduras, see id. ¶ 96; and that

“Honduras has only a nascent system to provide legal protection

to refugees and that migrants and asylum seekers with pending

cases were vulnerable to abuse and sexual exploitation by

criminal organizations,” especially women, children, and LGBTQI+

asylum seekers. Id. ¶ 97 (citation modified).

On August 14, 2025, the United States signed an ACA with

Paraguay. 6 Id. ¶ 98. The State Department reports that the ruling

party of Paraguay engages in torture, restrictions on the

freedom of expression, government corruption, and gender-based

violence. Id. ¶ 99. In 2024, Paraguay granted asylum to eightyfive (85) people. Id.

On July 29, 2025, the United States signed an ACA with

Uganda, which was published in the Federal Register on September

3, 2025. Id. ¶ 100. The State Department reports extensive human

rights violations in Uganda, see id. ¶¶ 101–02; and that while

Uganda does have a committee for determining refugee status

eligibility, it already has an extensive backlog, and officials

engage in corrupt practices. Id. ¶ 103.

On September 4, 2025, officials from the State Department

and officials from Ecuador met to finalize an ACA between the

United States and Ecuador. 7 Id. ¶ 104. The State Department warns

that travel to Ecuador is dangerous because violent crime is

widespread and reports that criminal groups specifically “target

migrants and refugees for violence, recruitment into forced

6 At the time the Amended Complaint was filed, the government had not yet published the ACA in the Federal Register. However, the government published the ACA in the Federal Register on December 23, 2025. See 90 Fed. Reg. 60,114.

7 At the time the Amended Complaint was filed, the government had

not yet finalized or published the ACA in the Federal Register. However, the government published the ACA in the Federal Register on November 17, 2025. See 90 Fed. Reg. 51,376.

labor, and sex trafficking, and that women, children, and

LGBTQI+ individuals are in particular danger.” Id. ¶ 105

(citation modified).

On August 20, 2025, then-DHS Secretary Noem issued an

intended ratification of the Rule, which was published in the

Federal Register on September 2, 2025. Id. ¶ 106 (citing 90 Fed.

Reg. 42309–10). On Plaintiff’s information and belief,

Defendants issued Designations that “categorically [found] that

each country with which the United States has signed an ACA has

a ‘full and fair’ asylum process,” but at the time the Amended

Complaint was filed, the Designations were not yet public. Id. ¶

107. Defendants also issued new guidance documents to DHS and

DOJ personnel that outline the implementation of the Rule in

both expedited and regular removal proceedings. Id. ¶ 108–13.

B. Procedural Background

Plaintiffs filed their Complaint in this case on January

15, 2020. See Compl., ECF No. 3. Thereafter, Plaintiffs filed

their Motions for Summary Judgment and Permanent Injunction on

February 28, 2020. See Mot. for Summ. J., ECF No. 38. Defendants

filed their Motion for Summary Judgment and their opposition to

Plaintiff’s Motion for Summary Judgment on March 25, 2020. See

Def.’s Opp. to Pls.’ Mot. for Summ. J. and Permanent Inj. &

Cross-Mot. for Summ. J., ECF No. 82; ECF No. 83. Plaintiffs

filed their opposition to Defendant’s Motion for Summary

Judgment and their reply to their Motion for Summary Judgment on

April 10, 2020. See Pls.’ Reply Mem. of Law in Supp. of their

Mot. for Summ. J. & In Opp. to Defs.’ Cross-Mot. for Summ. J.,

ECF No. 88; ECF No. 89.

Before the Court resolved the motions for summary judgment,

the parties filed a motion to hold the case in abeyance, see

Stip. Mot. to Hold Case in Abeyance, ECF No. 121; which the

Court granted on February 22, 2021. See Minute Order (Feb. 22,

2021). The parties filed regular status reports for the next few

years, until Plaintiffs filed an unopposed Motion to Lift Stay,

see Pls.’ Unopposed Mot. to Lift Abeyance, ECF No. 156; which

the Court granted on October 15, 2025. See Minute Order (Oct.

15, 2025). The same day, Plaintiffs’ Amended Complaint was

docketed. See Am. Compl., ECF No. 166.

Before Defendants answered or otherwise responded to the

Amended Complaint, Plaintiffs filed their Motion for Leave to

File a Second Amended Complaint on December 19, 2025. See Pls.’

Mot. for Leave to File 2d Am. Compl. (“Mot. for Leave”), ECF No.

173. Plaintiffs seek to add claims related to new ACAs and

related guidance and procedures that were signed or implemented

after they prepared their Amended Complaint. See Mot. for Leave,

ECF No. 173 at 3–4. Plaintiffs also seek to add eighteen new

named plaintiffs who are subject to regular removal proceedings.

See id. at 6. Defendants filed their opposition on January 16,

2026. See Defs.’ Mem. of Law in Opp. to Pls.’ Mot. for Leave to

File 2d Am. Compl. (“Opp’n to Mot. for Leave”), ECF No. 180.

Plaintiffs filed their reply on January 23, 2026. Pls.’ Reply in

Supp. of Mot. for Leave to File 2d Am. Compl. (“Reply to Mot.

for Leave”), ECF No. 183.

Plaintiffs also filed their Motion for Class Certification

on December 19, 2025. See Pls.’ Mot. for Class Certification

(“Mot. for Class Cert.”), ECF No. 174. Defendants filed their

opposition on January 16, 2026. See Defs.’ Opp’n to Pls.’ Mot.

for Class Certification (“Opp’n to Mot. for Class Cert.”), ECF

No. 181. Plaintiffs filed their reply on January 30, 2026. See

Pls.’ Reply in Supp. of Mot. for Class Certification (“Reply to

Mot. for Class Cert.”), ECF No. 185.

Finally, Plaintiffs filed their unopposed motion to hold

certain claims regarding expedited removal in abeyance on June

5, 2026. See Pls.’ Unopposed Mot. to Hold in Abeyance Claims

Concerning Expedited Removal (“Mot. to Hold in Abeyance”), ECF

No. 191.

The motions are now ripe and ready for the Court’s

adjudication.

II. Legal Standard

A. Motion for Leave to File Amended Complaint

A plaintiff may amend their complaint once as a matter of

course within twenty-one (21) days of serving it or within

twenty-one (21) days of being served a responsive pleading. FED.

R. CIV. P. 15(a)(1). However, when a plaintiff has already

amended their complaint once, they must seek consent from the

defendant or leave from the court to file another amended

pleading, and “[t]he court should freely give leave when justice

so requires.” Fed. R. Civ. P. 15(a)(2). “Leave to amend a

complaint should be freely given in the absence of undue delay,

bad faith, undue prejudice to the opposing party, repeated

failures to cure deficiencies, or futility.” Richardson v.

United States, 193 F.3d 545, 548–49 (D.C. Cir. 1999).

“Courts may deny a motion to amend a complaint as futile .

. . if the proposed claim would not survive a motion to

dismiss.” James Madison Ltd. By Hecht v. Ludwig, 82 F.3d 1085,

1099 (D.C. Cir. 1996) (citing Foman v. Davis, 371 U.S. 178, 182

(1962)). “[I]n assessing an argument that an amendment would be

futile, the court must assess the proposed amendments under the

same standard as would be applied to a motion to dismiss.”

Oladokun v. Corr. Treatment Facility, 5 F. Supp. 3d 7, 13

(D.D.C. 2013). "Because amendments are to be liberally granted,

the non-movant bears the burden of showing why an amendment

should not be allowed." Abdullah v. Washington, 530 F. Supp. 2d

112, 115 (D.D.C. 2008), app. dismissed, No. 08-7022, 2008 U.S.

App. Lexis 9082 (D.C. Cir. Mar. 12, 2008) (citing Dove v. WMATA,

221 F.R.D. 246, 2476 (D.D.C. 2004). Moreover, “while courts may

deny a motion to amend a complaint as futile, it remains a

discretionary choice.” Smith-Haynie v. U.S. Veterans Initiative,

Civil Action No. 17-cv-2824, 2019 WL 13139736, at *1 (D.D.C.

Mar. 29, 2019) (citation modified) (emphasis in original).

B. Motion for Class Certification

“The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)

(quotation marks omitted). Federal Rule of Civil Procedural

23(a) establishes four requirements for class certification: (1)

that “the class is so numerous that joinder of all members is

impracticable;” (2) that “there are questions of law or fact

common to the class;” (3) that “the claims or defenses of the

representative parties are typical of the claims or defenses of

the class;” and (4) that “the representative parties will fairly

and adequately protect the interests of the class.” FED. R. CIV.

P. 23(a). In addition to satisfying Rule 23(a), a putative class

must also meet one of the Rule 23(b) requirements. Here,

Plaintiffs seek certification under Rule 23(b)(2), stating that

certification under Rule 23(b)(2) is proper because declaratory

and injunctive relief “would benefit the proposed class

representatives as well as all members of the proposed class in

the same fashion.” Mot. for Class Cert., ECF No. 174 at 9.

“The party seeking certification bears the burden of

persuasion, and must show that the putative class[] meet[s] the

requirements of Rule 23 by a preponderance of the evidence.”

Garnett v. Zeilinger, 301 F. Supp. 3d 199, 204 (D.D.C. 2018)

(citing Hoyte v. District of Columbia, 325 F.R.D. 485, 491

(D.D.C. 2017)). To carry that burden, Plaintiffs must

“affirmatively demonstrate . . . compliance with the Rule—that

is, [they] must be prepared to prove that there are in fact

sufficiently numerous parties, common questions of law or fact,

etc.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

The Court must undertake a “rigorous analysis” to confirm that

the requirements of Rule 23 have been satisfied. Gen. Tel. Co.

of S.W. v. Falcon, 457 U.S. 147, 161 (1982).

III. Analysis

A. The Court Grants the Motion for Leave to File a

Second Amended Complaint

In their Motion for Leave to File a Second Amended

Complaint, Plaintiffs seek to challenge two additional ACAs—the

ACA between the United States and Belize, and the ACA between

the United States and Liberia. See Mot. for Leave, ECF No. 173

at 3–4; Proposed Second Amended Complaint (“Proposed SAC”), ECF

No. 173-1 ¶¶ 120–23. Plaintiffs also seek to add eighteen (18)

additional individual plaintiffs to the proposed class of

Section 240 8 plaintiffs, bringing the total of named Section 240

plaintiffs to twenty-one (21). 9 See Proposed SAC, ECF No. 173-1

¶¶ 23–36. Finally, Plaintiffs seek to add a new claim for

relief, arguing the Rule and Guidance fail to ensure adequate

notice and opportunity to be heard in regular removal

proceedings. See id. ¶¶ 183–84.

Defendants oppose the motion for leave to file a second

amended complaint, arguing that Plaintiffs’ new claims regarding

Belize and Liberia are futile and that the Proposed SAC is

unduly delayed and prejudices Defendants. See generally Opp’n to

Mot. for Leave, ECF No. 180. The Court will address each

argument in turn.

1. Futility

Defendants advance three primary arguments as to why

Plaintiffs’ new claims related to the Belize and Liberia ACAs

are futile: (1) Plaintiffs are jurisdictionally barred from

challenging the Belize and Liberia ACAs; (2) Plaintiffs lack

standing to challenge the Belize and Liberia ACAs; and (3)

Plaintiffs’ procedural due process claim is not cognizable. See

Opp’n to Mot. for Leave, ECF No. 180 at 5–12.

8 In the Proposed SAC, Plaintiffs begin to refer to plaintiffs that are subject to regular removal proceedings as “Section 240” plaintiffs. See, e.g., Proposed SAC ¶ 19. Therefore, the Court will use the terms interchangeably.

9 One of the original four Section 240 plaintiffs, D.G., filed a

Notice of Voluntary Dismissal on December 18, 2025.

First, Defendants argue that “Plaintiffs’ claims

challenging the Belize and Liberia ACAs are barred under

numerous INA provisions.” Id. at 5. Although they frame this

argument as to why Plaintiffs cannot challenge the new Belize

and Liberia ACAs, Defendants apply their jurisdictional

arguments to all ACAs that Plaintiffs are challenging. See id.

at 5–6. “Courts should be careful not to use the ‘futility of

amendment’ standard as a shortcut for a properly filed and fully

briefed motion to dismiss.” Farouki v. Petra Int’l Banking

Corp., Civil No. 08-2137, 2013 WL 12309520, at *3 (D.D.C. June

12, 2013). The Court concludes that Defendants’ jurisdictional

arguments regarding the Belize and Liberia ACAs are best

addressed in a motion to dismiss after each party has the

opportunity to fully brief this issue regarding all ACAs.

Defendants also argue that in the Proposed SAC,

“Plaintiffs’ allegations fail to state a cognizable procedural

due process claim and thus this claim would not survive a motion

to dismiss,” rendering the claim futile. Opp’n to Mot. for

Leave, ECF No. 180 at 8. The Court agrees with Plaintiffs,

however, that Defendants are “prematurely litigat[ing]” this

claim. See Reply to Mot. for Leave, ECF No. 183 at 8. To

determine whether the claim is futile, the Court would have to

engage in a premature analysis of the merits. See Norris v.

Salazar, 746 F. Supp. 2d 1, 4–5 (D.D.C. 2020) (granting a motion

to amend where determining whether a claim is futile would

require a ruling on the merits); see also Xilojitzep v. Nat’l

R.R. Passenger Corp., 2024 WL 1350380, at *3 (D.D.C. Mar. 21,

2024) (“[I]t is impossible for the Court to determine whether

the plaintiff's proposed Second Amended Complaint would be

sufficient to survive a motion to dismiss without engaging in a

premature analysis of the merits.”).

Finally, Defendants argue that the Proposed SAC is futile

because “Plaintiffs fail to satisfy Article III standing’s

traceability and redressability prongs” in relation to the

Belize and Liberia ACAs. 10 See Opp’n to Mot. for Leave, ECF No.

180 at 7. This argument is unavailing, because, as Plaintiffs

note, “nothing prevents DHS attorneys or immigration judges from

invoking those or any other ACAs against the Individual

Plaintiffs at any time.” Reply to Mot. for Leave, ECF No. 183 at

8. The threat of imminent injury due to the government invoking

the Belize or Liberia ACA is directly traceable to Defendants,

and declaratory or injunctive relief invalidating the ACAs would

redress the Individual Plaintiffs’ injuries. Similarly, the

Organizational Plaintiffs’ harms due to the Belize and Liberia

ACAs—interference with the core work of the organizations—are

10Defendants do not challenge the injury-in-fact prong of Article III standing, and so the Court will not address it here.

directly traceable and redressable to the actions of Defendants

in the same way as the Individual Plaintiffs’ harms. See id.

Overall, Defendants’ arguments do not “clearly demonstrate

[the] futility” of the Proposed SAC, see Abraha v. Colonial

Parking Inc., Civil Action No. 16-680, 2018 WL 1506005, at *4

(D.D.C. Apr. 5, 2019); so as to warrant denial of the Motion for

Leave to File the Second Amended Complaint.

2. Undue Delay and Prejudice

Defendants also argue that Plaintiffs’ Proposed SAC is

unduly delayed and prejudices Defendants. See Opp’n to Mot. for

Leave, ECF No. 180 at 12–14. Defendants argue that because

Plaintiffs seek leave to amend the complaint “nearly six years

after they filed the original complaint and over five-and-a-half

years after Defendants produced the certified administrative

record and the parties briefed cross-motions for summary

judgment,” id. at 12; they are prejudiced because Plaintiffs

seek to “fundamentally reshape the landscape of the litigation”

by adding new claims and parties at an advanced stage of the

proceedings. Id. at 13 (citing Bode & Grenier, LLP v. Knight,

808 F.3d 852, 860 (D.C. Cir. 2015)). Defendants also argue that

it “appears to be Plaintiffs’ intention” to restart the

litigation each time a new ACA is concluded or each time a new

individual becomes subject to one. See Opp’n to Mot. for Leave,

ECF No. 180 at 14.

“With respect to an amendment causing undue delay, courts

generally consider the relation of the proposed amended

complaint to the original complaint, favoring proposed

complaints that do not radically alter the scope and nature of

the case.” 2910 Georgia Ave. LLC v. District of Columbia, 312

F.R.D. 205, 209 (D.D.C. 2015) (citation modified). “The district

court may not deny [a motion to amend a complaint] based solely

on the timeliness unless the defendants can show undue

prejudice.” In re APA Assessment Fee Litig., 766 F.3d 39, 56–57

(D.C. Cir. 2014). “To show prejudice, the opposing party must

show that it was unfairly disadvantaged or deprived of the

opportunity to present facts or evidence which it would have

offered had the amendments been timely.” See Dooley v. United

Techs. Corp., 152 F.R.D. 419, 425 (D.D.C. 1993) (citing

Foremost-McKesson Inc. v. Islamic Rep. of Iran, 759 F. Supp.

855, 858 (D.D.C. 1991)).

a. Undue Delay

Defendants mischaracterize the fact that the litigation is

now six years old to assert their argument that Plaintiffs’

Proposed SAC is unduly delayed. While the original complaint was

indeed filed in 2020, the parties jointly requested that the

case be held in abeyance for over four years. See Stip. Mot. to

Hold Case in Abeyance, ECF No. 121. Moreover, in light of

Plaintiffs’ Amended Complaint, the Court denied both Plaintiffs’

and Defendants’ motions for summary judgment as moot once the

stay was lifted. See Minute Order (Oct. 15, 2025). Regardless of

whether the operative complaint is the Amended Complaint or the

Proposed SAC, the parties will have to refile dispositive

motions. Defendants list several cases where the court rejected

attempts to amend complaints because they did so years into the

litigation, see Opp’n to Mot. for Leave, ECF No. 180 at 13–14;

but as Plaintiffs note, each of these cases denied leave to

amend the complaint after dispositive motions were decided and

the cases were nearing resolution. See Reply to Mot. for Leave,

ECF No. 183 at 3 n.1. Despite Defendants’ assertions to the

contrary, the case is still in its beginning stages, and the

Proposed SAC is not unduly delayed.

b. Prejudice

Defendants have not shown that they would be prejudiced by

the Proposed SAC. Plaintiffs are not seeking to “fundamentally

reshape the landscape of the litigation,” but rather to add

claims and parties related to those already alleged in their

Amended Complaint. See generally Proposed SAC.

Although Plaintiffs did not invoke Federal Rule of Civil

Procedure 20, a motion for leave to amend a complaint seeking to

add new parties must comply with both Rule 15 and Rule 20. See

Mwani v. Al Qaeda, 600 F. Supp. 3d 36, 47–48 (D.D.C. 2022). Rule

20(a)(1) states that plaintiffs may be joined if they seek

relief “with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences.” FED. R.

CIV. P. 20(a)(1). “Rule 20(a)’s requirements are to be liberally

construed in the interest of convenience and judicial economy in

a manner that will secure the just, speedy, and inexpensive

determination of the action.” Sadat I. v. Nielsen, Civil Action

No. 17-1976, 2019 WL 108854, at *3 (D.D.C. Jan. 4, 2019)

(citation modified).

Defendants argue that the Court should deny leave to add

the additional plaintiffs because Plaintiffs’ proposed class

definition would already encompass these proposed individual

plaintiffs, and Plaintiffs have already designated class

representatives. Opp’n to Mot. for Leave, ECF No. 180 at 14.

However, at the time Plaintiffs filed their Proposed SAC, the

Court had not yet certified Plaintiffs’ proposed class. The

Court sees no compelling reason to deny the request to amend the

complaint to include additional individual plaintiffs at this

early stage of litigation, see Grogan v. Holder, Civil Action

08-01747, 2011 WL 13340589, at *10 (D.D.C. Sept. 1, 2011)

(granting leave to add additional putative class representatives

in the absence of a compelling reason to deny the request); and

it would be an abuse of discretion to do so, see Bayatfshar v.

Aeronautical Radio, Inc., 934 F. Supp. 2d 138, 143 (D.D.C. 2013)

(“This Circuit has held that ‘it is an abuse of discretion to

deny leave to amend unless there is sufficient reason’” (citing

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).

Rather, it is in the interests of judicial economy to add

additional named parties at this juncture rather than to spend

additional time and resources to further amend the complaint at

a later time.

Defendants also argue that the “proposed new Plaintiffs and

claims would challenge ACAs not in existence at the time of the

original complaint and would challenge their application in an

entirely different context—[section] 240 proceedings.” Opp’n to

Mot. for Leave, ECF No. 180 at 13. Defendants’ argument is

without merit. First, Plaintiffs have already challenged the

application of the Rule, Designations, and related guidance in

the context of Section 240 removal proceedings in the Amended

Complaint. See, e.g., Am. Compl., ECF No. 166 ¶¶ 146–48 (Fourth

Claim of Relief, including challenges to regular removal

proceedings). Second, the new claims in the Proposed SAC relate

back to the Amended Complaint because the government enters into

new ACAs pursuant to the same statute, and they are implemented

under the same Rule. These claims do not radically alter the

scope of the litigation, and despite Defendants’ assertion to

the contrary, see Opp’n to Mot. for Leave, ECF No. 180 at 14; it

would be inefficient and a waste of time and resources to

require Plaintiffs to file a new suit to challenge the validity

of the new ACAs.

Moreover, Defendants cannot claim that they have been

“unfairly disadvantaged or deprived of the opportunity to

present facts or evidence,” see Dooley, 152 F.R.D. at 425; as

they had not yet filed a response to the Amended Complaint at

the time the Proposed SAC was filed. Therefore, the Court

concludes that it is in the interests of judicial economy to

GRANT Plaintiffs’ Motion for Leave to File their Second Amended

Complaint.

B. The Court Grants the Motion for Class Certification.

1. Class Definition

Pursuant to Federal Rule of Civil Procedural 23(a) and

23(b)(2), Plaintiffs are seeking class certification for the

following class:

All noncitizens whom Defendants have sought or

will seek to bar from asylum, withholding of

removal, or protection under the Convention

Against Torture in removal proceedings under 8

U.S.C. § 1229a on the basis that they can be

removed to a third country under an Asylum

Cooperative Agreement pursuant to the Rule,

Guidance, or Designations, except that the

class does not include noncitizens who have

received final and unappealable adjudications

on the substantive merits of such claims not

premised on application of the Rule, Guidance,

and Designations.

See Reply to Mot. for Class Cert., ECF No. 185 at 8.

Defendants argue that Plaintiffs’ proposed class definition

is overbroad because it could include noncitizens who were

granted asylum despite being subject to the disputed policies.

See Opp’n to Mot. for Class Cert., ECF No. 181 at 7–8.

Plaintiffs therefore added the last clause to the above

definition, agreeing that “final and unappealable adjudication

of a noncitizen’s asylum claim on the merits should except them

from the class.” Reply to Mot. for Class Cert., ECF No. 185 at

“[I]t is far from clear that there exists in this

[D]istrict a requirement that a class . . . must demonstrate

ascertainability to merit certification.” Ramirez v. USCIS, 338

F. Supp. 3d 1, 48 (D.D.C. 2018); see also Hoyte v. District of

Columbia, 325 F.R.D. 485, 489 n.3 (D.D.C. 2017) (noting that

“[t]he ascertainability requirement, while adopted by some

courts in this district, has been recently disavowed by four

federal appellate courts” and explaining that “the D.C. Circuit

has not opined on the requirement”). However, the requirement of

“definiteness” has been imposed by some courts as an “implied

requirement” for class certification, in addition to the express

requirements in Rule 23. See DL v. District of Columbia, 302

F.R.D. 1, 17 (D.D.C. 2013). This “common-sense requirement,”

Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998); is

designed primarily to ensure the proposed class is

administratively manageable, see Hartman v. Duffey, 19 F.3d

1459, 1471 (D.C. Cir. 1994). “It is not designed to be a

particularly stringent test, but plaintiffs must at least be

able to establish that ‘the general outlines of the membership

of the class are determinable at the outset of the litigation.’”

Pigford, 182 F.R.D. at 346 (quoting 7A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure

§ 1760 at 118).

“[W]here the plaintiff seeks certification of an injunctive

class pursuant to Rule 23(b)(2), ‘actual membership of the class

need not . . . be precisely delimited’ because such cases will

not require individualized notice, opt-out rights, or individual

damage assessments, and the defendant will be required to comply

with the relief ordered no matter who is in the class.’” Brewer

v. Lynch, No. 08-1747, 2015 WL 13604257, at *6 (D.D.C. Sept. 30,

2015). In those cases, the definiteness requirement is satisfied

as long as plaintiffs can establish the “existence of a class”

and propose a class definition that “accurately articulates ‘the

general demarcations’ of the class of individuals who are being

harmed by the alleged deficiencies.” See, e.g., Kenneth R. v.

Hassan, 293 F.R.D. 254, 264 (D.N.H. 2013); see also DL, 302

F.R.D. at 17 (“Because the rationale for precise

ascertainability is inapposite in the 23(b)(2) context, . . . it

is not required in cases such as this where only injunctive

relief is sought and notice is not required.”).

Here, with the addition of the final clause to the proposed

definition, the Court concludes that the proposed definition

“accurately articulate[s] the general demarcations of the class

of individuals” who are being harmed by Defendants’ actions.

Kenneth R., 293 F.R.D. at 264. Because a district court has

“broad discretion to redefine and reshape [a] proposed class to

the point that it qualifies for certification under Rule 23,”

Wagner v. Taylor, 836 F.2d 578, 589–90 (D.C. Cir. 1987); the

Court will use the definition proposed in Plaintiffs’ Reply as

the operative proposed class definition.

2. Rule 23(a) Requirements

a. Numerosity

Because of the general rule in favor of confining

litigation to the named parties only, a class action is

appropriate only when “the class is so numerous that joinder of

all members is impracticable.” FED. R. CIV. P. 23(a)(1). Although

Plaintiffs need not clear any “specific threshold,” as a general

benchmark, “courts in this jurisdiction have observed that a

class of at least forty members is sufficiently large to meet

this requirement.” Taylor v. D.C. Water & Sewer Auth., 241

F.R.D. 33, 37 (D.D.C. 2007). Plaintiffs may satisfy the

requirement by supplying estimates of putative class members,

see Pigford, 182 F.R.D. at 347–48; “[s]o long as there is a

reasonable basis for the estimate provided,” Kifafi v. Hilton

Hotels Ret. Plan, 189 F.R.D. 174, 176 (D.D.C. 1999).

Plaintiffs state that the proposed class meets the

numerosity requirement of Rule 23(a) because “Defendants have

already invoked the challenged policies to bar or seek to bar at

least hundreds of noncitizens from seeking or being granted

asylum or other protection in Section 240 proceedings just in

the past few months.” Mot. for Class Cert., ECF No. 174 at 5;

see also Reply to Mot. for Class Cert., ECF No. 185 at 13

(citing various news articles as evidence for their estimate).

Defendants argue that Plaintiffs “fail to provide a reasonable

basis, or, in some instances, any basis, for their estimate of

putative class members subject to each of the challenged ACAs.”

Opp’n to Mot. for Class Cert., ECF No. 181 at 14. Defendants

also argue that because Plaintiffs “fail to identify any aliens

facing pretermission or removal under the Paraguay, Belize, or

Liberia ACAs,” that “Plaintiffs’ failure to appoint any class

representatives subject to the Paraguay, Belize, or Liberia ACA

[sic] undermines Plaintiffs’ allegation that any putative class

members exist,” and because Plaintiffs “identify only two

proposed class representatives who actually face removal under a

challenged ACA,” Plaintiffs fail to establish numerosity. Id. at

14–15.

The Court agrees with Plaintiffs that the Defendants’

arguments here lack merit. Reply to Mot. for Class Cert., ECF

No. 185 at 12. First, Plaintiffs provide evidence in the form of

news reports that supports their estimate that their proposed

class would be comprised of “hundreds” of noncitizens. See

Gutierrez v. Noem, Civil Action No. 25-1766, 2025 WL 3496390, at

*6 (D.D.C. Dec. 5, 2025) (accepting news reports as a

“sufficient basis” for the Court to infer that the proposed

class would contain more than forty individuals). Plaintiffs

correctly note that an estimate of putative class members who

would be subject to each ACA is unnecessary, as the proposed

class definition encompasses “all noncitizens in Section 240

proceedings against whom Defendants seek to apply the Rule,

regardless of the particular [ACA] invoked.” Id. Plaintiffs are

not required to show that each class member will be harmed by

“every distinct manifestation” of the challenged policies at

this juncture. See Robertson v. District of Columbia, No. 24-cv656, 2026 WL 125237, at *10 (D.D.C. Jan. 16, 2026). Moreover,

the Court agrees with Plaintiffs that Defendants conflate their

numerosity arguments with the standing or adequacy of the

proposed class representatives. See Reply to Mot for Class

Cert., ECF No. 185 at 13.

Accordingly, the Court finds that Plaintiffs have shown by

a preponderance of the evidence that their proposed class

satisfies Rule 23(a)’s numerosity requirement.

b. Commonality

A plaintiff seeking class certification must also establish

that “there are questions of law or fact common to the class.”

FED. R. CIV. P. 23(a)(2). This requires more than the

identification of the purported violation of the same provision

of law. See DL v. District of Columbia, 713 F.3d 120, 127–30

(D.C. Cir. 2013) (vacating an order certifying a class composed

of students who were purportedly each denied a free appropriate

public education on the ground that plaintiffs had identified

only sufferers of a violation of the same provision of law and

had not met the commonality requirement). Instead, the claims

must depend on “a common contention [that] is capable of

classwide resolution—which means that determination of its truth

or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.” Wal–Mart Stores, 564

U.S. at 350. “Even a single common question will do.” Id. at 359

(citation modified).

As the D.C. Circuit has explained, commonality is satisfied

where there is “a uniform policy or practice that affects all

class members.” DL, 713 F.3d at 128. Here, the members are

seeking to invalidate the same Rule on the same grounds, as well

as the Designations and Guidance promulgated pursuant to the

Rule. See O.A. v. Trump, 404 F. Supp. 3d 109, 156 (D.D.C. 2019)

(finding commonality satisfied where “[a]ll members of the

proposed class, and all of the proposed class representatives,

face the same threat of injury” and where they “[a]ll challenge

the same Rule on the same grounds, and all seek the same remedy—

invalidation of the Rule”).

Defendants’ arguments to the contrary are unavailing.

Defendants argue that the class members do not face a common

injury because noncitizens do not have a right to seek asylum if

they are subject to removal under an ACA. See Opp’n to Mot. for

Class Cert., ECF No. 181 at 9–10. But as Plaintiffs correctly

note, this argument assumes that the challenged policies that

prohibit noncitizens from seeking asylum in the United States if

they are subject to removal under an ACA are lawful—the very

question at issue in this lawsuit. See Reply to Mot. for Class

Cert., ECF No. 185 at 10. Defendants’ argument that different

responses by Defendants to class members’ asylum claims

undermines Plaintiffs’ claims of common injury, see Opp’n to

Mot. for Class Cert., ECF No. 181 at 9–10; is also without

merit. Each class member will have a “unique interest in

pursuing his or her own claim to asylum,” see O.A., 404 F. Supp.

3d at 156; and the manner in which an individual’s case

progresses does not mean that they do not all face a common

injury. Finally, Defendants’ arguments that Plaintiffs do not

challenge the same government policy because not all

Designations will apply to each class member and the fact that

Plaintiffs’ claims regarding Designations could require countryspecific inquiries show that Plaintiffs have not identified

common questions, see Opp’n to Mot. for Class Cert., ECF No. 181

at 10–12; lack merit for the same reason. Plaintiffs argue that

the Rule is a common policy that affects all class members,

which affects the lawfulness of all Designations and related

Guidance.

Accordingly, the Court finds that Plaintiffs have shown by

a preponderance of the evidence that the proposed class

satisfies the commonality requirement of Rule 23(a).

c. Typicality

A class representative satisfies the typicality requirement

if the representative’s “claims are based on the same legal

theory as the claims of the other class members” and her

“injuries arise from the same course of conduct that gives rise

to the other class members’ claims.” Bynum v. District of

Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003). Put another way, a

representative’s claims are typical of those of the class when

“[t]he plaintiffs allege that their injuries derive from a

unitary course of conduct by a single system.” Marisol A. v.

Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

Typicality here is satisfied for largely the same reasons

as the commonality requirement. See Hettinger v. Bozzuto Mgmt.

Co., Civil Action No. 23-3687, 2026 WL 2042479, at *9 (D.D.C.

July 15, 2026) (“When commonality is met, typicality usually

follows.”). Defendants again argue that the class

representatives’ and class members’ claims are “based on

different ACAs and guidance” and because “[the proposed class

representatives] are challenging entirely separate agency

actions from many of the proposed class members,” their claims

are not typical of the class members. Opp’n to Mot. for Class

Cert., ECF No. 181 at 12–13. As Plaintiffs state, the fact that

Defendants are applying different ACAs and Guidance, including

those that have not yet been published or do not yet exist,

“does not defeat certification of a class including all

noncitizens against whom Defendants seek to apply the Rule in

Section 240 proceedings, regardless of the Designations at issue

in particular cases.” Reply to Mot. for Class Cert., ECF No. 185

at 12.

Accordingly, the Court finds that Plaintiffs have shown by

a preponderance of the evidence that the proposed class

satisfies the typicality requirement of Rule 23(a).

d. Adequacy

“The adequacy requirement aims to ensure that absent class

members will not be bound by the outcome of a suit in which they

were not competently and fairly represented.” J.D. v. Azar, 925

F.3d 1291, 1312 (D.C. Cir. 2019). “Adequacy embraces two

components: the class representative (i) ‘must not have

antagonistic or conflicting interests with the unnamed members

of the class’ and (ii) ‘must appear able to vigorously prosecute

the interests of the class through qualified counsel.’” Id.

(quoting Twelve John Does v. District of Columbia, 117 F.3d 571,

575 (D.C. Cir. 1997)). “The adequacy of representation

requirements tend to merge with the commonality and typicality

requirements.” Gonzalez v. Brady, 136 F.R.D. 329, 331 (D.D.C.

1991) (citation modified).

Plaintiffs state that the class representatives will

adequately and fairly protect the interests of the class, as

they “do not seek any unique benefit from this litigation that

may make their interests different from or adverse to those of

absent class members,” but rather they “aim to secure relief

that will protect them and the entire class from the challenged

policies.” Mot. for Class Cert., ECF No. 174 at 8. Defendants

disagree that the class representatives can “vigorously

prosecute the interests of all the putative class members”

because they “lack the same injury and interests as the putative

class members.” Opp’n to Mot. for Class Cert., ECF No. 181 at

15. Defendants also argue that “there is no guarantee that the

named Plaintiffs and proposed class representatives will suffer

any injury at all or remain parties in this case,” as evidenced

by former plaintiff D.G., and therefore they do not adequately

represent the class. Id. at 16.

Plaintiffs respond that the class representatives’

interests “strongly align” with the interests of the class

members for three reasons: (1) Defendants can invoke any ACAs

against any Plaintiffs at any time, so each class representative

has a strong interest in invalidating all Designations; (2)

Plaintiffs argue that all Designations share the common defect

that Defendants did not consider the actual safety of the

country and the capacity of each country’s asylum system; and

(3) invalidating the Rule would invalidate all Designations. See

Reply to Mot. for Class Cert., ECF No. 185 at 14–15. The Court

agrees. Moreover, the Court has already determined that

Plaintiffs share common interests, and therefore Defendants’

arguments to the contrary lack merit.

While it is true that D.G. has dismissed his claims and

that others might in the future, Plaintiffs correctly note that

“[e]ven if the claim of one or more of the proposed class

representatives becomes moot in the future, ‘plaintiffs with

moot claims may adequately represent a class.’” Reply to Mot.

for Class Cert., ECF No. 185 at 15 (citing J.D., 925 F.3d at

1313).

Defendants do not dispute that Plaintiffs’ counsel is

qualified to represent the class, but the Court has determined

sua sponte that proposed class counsel is well-qualified to do

so. See O.A., 404 F. Supp. 3d at 157 (determining sua sponte

that current counsel is “willing and have the ability [to]

vigorously [] litigate this case and to protect the interests of

absent class members”). As shown by the declarations submitted

in support of class certification, see Decl. of Morgan Russell,

ECF No. 174-1; Decl. of Keren Zwick, ECF No. 174-2; Decl. of

Melissa Crow, ECF No. 174-3; Decl. of Anwen Hughes, ECF No. 174-4; Decl. of Scott Michelman, ECF No. 174-5; counsel is wellqualified to serve as class counsel.

Accordingly, the Court finds that Plaintiffs have shown by

a preponderance of the evidence that the proposed class

satisfies the adequacy requirement of Rule 23(a).

3. Rule 23(b) Requirements

Having determined that Plaintiffs meet the requirements of

Rule 23(a), the Court must next determine whether they meet the

requirements of Rule 23(b)(2). Rule 23(b)(2) applies if “the

party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). “The

key to the (b)(2) class is the indivisible nature of the

injunctive or declaratory remedy warranted—the notion that the

conduct is such that it can be enjoined or declared unlawful

only as to all of the class members or as to none of them.” WalMart Stores, 564 U.S. at 360 (internal quotation marks and

citations omitted). Rule 23(b)(2) imposes “two requirements: (1)

that defendant’s actions or refusal to act are ‘generally

applicable to the class’ and (2) that plaintiffs seek final

injunctive relief or corresponding declaratory relief on behalf

of the class.” Bynum, 214 F.R.D. at 37.

Defendants do not dispute that their actions or refusal to

act are generally applicable to the entire class. See generally

Opp’n to Mot. for Class Cert., ECF No. 181. Defendants do

dispute whether a single injunction or declaratory judgment

would provide relief to each class member because “Plaintiffs

challenge several different ACAs and several sets of guidance

(and possibly even future ACAs and guidance).” See id. at 17–18

(emphasis in original).

Defendants are correct that “Rule 23(b)(2) applies only

when a single injunction or declaratory judgment would provide

relief to each member of the class.” See id. at 17 (citing

C.G.B. v. Wolf, 464 F. Supp. 3d 174, 206 (D.D.C. 2020) (internal

citation omitted)). However, an injunction or declaratory

judgment invalidating the Rule would “provide indivisible relief

to the entire class.” See Reply to Mot. for Class Cert., ECF No.

185 at 16. The same applies for any declaratory and injunctive

relief that requires Defendants to consider the safety of ACA

countries and the functionality of those countries’ asylum

systems when issuing any Designations. Id. at 17. Moreover,

“[a]lthough the injunction must provide relief to each member of

the class, the perfect need not be the enemy of the good. If a

certain outcome is legally mandated and an injunction provides

each member of the class an increased opportunity to achieve

that outcome, Rule 23(b)(2) is satisfied.” Brown v. District of

Columbia, 928 F.3d 1070, 1082 (D.C. Cir. 2019). Any relief

concerning country-specific Designations will benefit all class

members because Defendants can currently invoke any ACA against

any class member. See Reply to Mot. for Class Cert., ECF No. 185

at 17.

Accordingly, Plaintiffs have satisfied the requirements of

both Rules 23(a) and (b). For all these reasons, the Court

GRANTS Plaintiffs’ Motion for Class Certification.

C. Abeyance Motion

Plaintiffs filed an unopposed motion to hold certain claims

in abeyance to “further facilitate the efficient resolution of

the forthcoming summary judgment motions.” See Mot. to Hold in

Abeyance, ECF No. 191 at 1. Plaintiffs request that if the

Proposed SAC becomes the operative complaint, the Court hold

Claim 7 in abeyance in its entirety; and Claims 2, 3, 5, and 8

in abeyance “insofar as they challenge (i) the application of

the Rule in expedited removal proceedings or (ii) expeditedremoval-specific Guidance documents.” Id. at 2.

Plaintiffs argue that holding the requested claims in

abeyance will serve the efficiency interests of the parties and

the Court by focusing their upcoming summary judgment briefings

on Plaintiffs’ claims concerning “the current administration’s

more widespread application of the challenged policies in

regular Section 240 removal proceedings in immigration court.”

Id. The Court agrees. “A court’s authority to stay proceedings

stems from ‘the power inherent in every court to control the

disposition of the causes on its docket with economy of time and

effort for itself, for counsel, and for litigants.’” Cube

Infrastructure Fund SICAV v. Kingdom of Spain, Civ. Action No.

20-1708, 2021 WL 7447978, at *2 (D.D.C. May 17, 2021) (citing

Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936)).

Therefore, because the Court has granted the Motion for

Leave to File a Second Amended Complaint, the Court will hold in

abeyance Claim 7 of the SAC in its entirety and Claims 2, 3, 5,

and 8 of the SAC in abeyance insofar that they challenge the

application of the Rule in expedited removal proceedings or

expedited-removal-specific Guidance documents.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiffs’

Motion for Leave to File a Second Amended Complaint, ECF No.

173; GRANTS Plaintiffs’ Motion for Class Certification, ECF No.

174; and GRANTS Plaintiffs’ Unopposed Motion to Hold in

Abeyance, ECF No. 191.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

September 21, 2026

Authorities cited

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