govinfo:USCOURTS-mdd-8_19-cv-01944-2

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
Southern Division 
 
 
 * 
J.O.P., 
et al., 
 * 
 P l a i n t i f f s , 
v. * Case No.: GJH-19-1944 
 
U.S. DEPARTMENT OF * 
HOMELAND SECURITY, et al., 
 * 
Defendants. 
 * 
* * * * * * * * * * * * * 
 
MEMORANDUM OPINION 
 
Pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA”), and the 
Due Process Clause of the Fifth Amendment to the United States Constitution, a group of 
undocumented immigrants who entered the United States as unaccompanied children 
(“Plaintiffs”), on behalf of themselves and a class of all others similarly situated, brought this 
action against the U.S. Department of Homeland Security (“DHS”) and several of its officials 
and components (“Defendants”). Plaintiffs allege that the government unlawfully modified 
policies governing treatment of asylum applications by unaccompanied immigrant children 
(“UACs”) in a May 2019 Memorandum. 
On August 2, 2019, the Court granted Plaintiffs’ Motion for Temporary Restraining 
Order (“TRO”), enjoining enforcement of the May 2019 Memorandum, ECF Nos. 54, 55, and on 
October 15, 2019, granted Plaintiffs’ consent motion, converting the Order into a preliminary 
injunction. ECF Nos. 70, 71. Pending before the Court now is Plaintiffs’ Motion for Class 
Certification and Appointment of Class Counsel, ECF No. 117, Plaintiffs’ Motion to Amend the 

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Preliminary Injunction, ECF No. 124, a Joint Motion to Stay Summary Judgment Schedule, ECF 
No. 135, and a Joint Motion for Entry of Parties’ Proposed Protective Order, ECF No. 136.1 No 
hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, Plaintiffs’ 
Motion for Class Certification is granted; Plaintiffs’ Motion to Amend is granted, in part, and 
denied, in part; the Joint Motion to Stay is granted; and the Joint Motion for Entry of Parties’ 
Proposed Protective Order is granted. 
I. BACKGROUND 
Because of the complexity of this case and the number of motions now pending before 
the Court, the Court begins by outlining the procedural history before turning to the statutory and 
regulatory regime at issue and Plaintiffs’ specific allegations. 
A. Procedural Background 
 Plaintiffs J.O.P. (by and through next frie nd, G.C.P.), M.A.L.C., M.E.R.E., and K.A.R.C. 
filed a Complaint on July 1, 2019,
2 against DHS, its then-Acting Secretary Kevin McAleenan, 
U.S. Citizenship and Immigration Services (“USCIS”), and USCIS’s Acting Director Kenneth 
Cuccinelli, alleging that a change in Defendants’ policy with respect to asylum applications filed 
by unaccompanied alien3 children violated the APA and the Due Process Clause of the Fifth 
Amendment of the U.S. Constitution. ECF No. 1. Plaintiffs simultaneously filed a Motion for 
TRO. ECF No. 14. 
The Court held a hearing on the Motion for TRO on July 19, 2019, ECF Nos. 43, 53, and 
 
1 Also pending is Defendants’ Motion for Extension of Time to Respond to Plaintiffs’ Motion for Class Certification 
and Appointment of Class Counsel. ECF No. 123. This Motion is granted. 
2 Plaintiffs filed motions to seal an unredacted version of their Complaint, ECF No. 5, and to proceed under 
pseudonyms, ECF No. 12, which the Court granted, ECF Nos. 55, 114. 
3 The Court recognizes that “many consider ‘using the term ‘alien’ to refer to other human beings’ to be ‘offensive 
and demeaning.’ [The Court uses] . . . the term only where necessary ‘to be consistent with the statutory language’ 
that Congress has chosen and ‘to avoid any confusion in replacing a legal term of art with a more appropriate term.’” 
See Trump v. Hawaii, 138 S. Ct. 2392, 2443 n.7 (2018) (Sotomayor, J., dissenting) (quoting Flores v. U.S. 
Citizenship & Immigration Servs., 718 F.3d 548, 551–52 n.1 (6th Cir. 2013)). 

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issued a Memorandum Opinion and Order granting the Motion on August 2, 2019, ECF Nos. 54, 
55. In its Order, the Court: 
a. enjoined and restrained [Defendants] from applying their new asylum eligibility 
policy, as set forth in USCIS’s May 31, 2019 memorandum, to bar individuals 
previously determined to be unaccompanied alien children (“UACs”) from 
seeking asylum before the agency; and 
b. enjoined and restrained [Defendants] from rejecting jurisdiction over the 
application of any UAC (as defined in the Homeland Security Act, 6 U.S.C. 
§ 279(g)(2)) under the Trafficking Victims Protection Reauthorization Act 
(“TVPRA”) whose application would have been accepted under the USCIS policy 
predating the May 31, 2019 memorandum; 
. . . 
[and ordered Defendants to] retract any adverse decision already rendered in an 
individual case applying the 2019 UAC Memorandum . . . and reinstate 
consideration of such case applying the 2013 UAC Memorandum[.] 
ECF No. 55. On August 9, 2019, Defendants filed a Motion for Extension of Time to Comply 
with Court Order because of logistical challenges in reviewing decisions that may have been 
rendered under the May 2019 Memorandum. ECF No. 57. Following a teleconference, ECF No. 
59, the Court extended the TRO to September 3, 2019, ECF No. 60, and accordingly denied 
Defendants’ Motion as moot, ECF No. 116. The Court extended the TRO two additional times at 
the parties’ joint request. ECF Nos. 63, 66. On October 9, 2019, Plaintiffs filed a consent motion 
to convert the TRO into a preliminary injunction, ECF No. 70, which the Court granted on 
October 15, 2019, ECF No. 71. 
Plaintiffs filed an unopposed Motion to File an Amended Complaint on November 21, 
2019. ECF No. 74. A month later, on December 20, 2019, Plaintiffs filed the Amended 
Complaint, adding a new Plaintiff, E.D.G., replacing former Defendant McAleenan with new 
Acting DHS Secretary, Chad Wolf, and adding as Defendants U.S. Immigration and Customs 
Enforcement (“ICE”) and ICE’s Acting Director, Matthew T. Albence. ECF No. 91. As with the 

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original Complaint, Plaintiffs filed a motion for permission for new Plaintiff E.D.G. to proceed 
under a pseudonym and omit his home address from the caption of the pleading, ECF No. 92, 
and a motion to seal a copy of the Amended Complaint containing that information, ECF No. 93. 
On June 3, 2020, this Court granted all three procedural motions, ECF Nos. 74, 92, 93, and held 
that Plaintiffs’ Amended Complaint, ECF No. 91, will be treated as the operative pleading for 
this action. ECF No. 115 at 2, 5;
4 ECF No. 116. 
On November 22, 2019, Plaintiffs filed a Motion to Enforce the Preliminary Injunction, 
asserting that Defendants were failing to fully comply with the Court’s Order by continuing to 
implement some portions of the May 2019 USCIS Memorandum—namely Footnote 5, which 
directs USCIS asylum officers to defer to Executive Office for Immigration Review (“EOIR”) 
determinations that an applicant was not an UAC at the time of filing. ECF Nos 75, 76. The 
Court issued a Memorandum Opinion and Order denying Plaintiffs’ Motion on June 3, 2020. 
ECF Nos. 115, 116. However, the Court denied Plaintiffs’ Motion without prejudice “to 
Plaintiffs’ right to move for emergency equitable relief to enjoin the enforcement of the 
[immigration judge (“IJ”)] deferral policy if Plaintiffs believe such enforcement threatens 
impending irreparable harm.” ECF No. 115 at 24–25. 
Defendants filed a Motion to Dismiss the Amended Complaint on January 3, 2020. ECF 
No. 101. Through its June 3, 2020 Memorandum Opinion and Order, the Court denied that 
Motion as well. ECF Nos. 115, 116. Moreover, the Court ordered Defendants to produce an 
administrative record so that the Court could consider the record before the agency at the time 
the agency acted. ECF Nos. 115, 116. 
 Plaintiffs filed a Motion for Class Certific ation and Appointment of Class Counsel on 
 
4 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated 
by that system. 

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June 15, 2020, requesting that this Court certify the following class with named Plaintiffs as 
class representatives:5 
All individuals nationwide who prior to the effective date of a lawfully 
promulgated policy prospectively altering the policy set forth in the 2013 Kim 
Memorandum (1) were determined to be an Unaccompanied Alien Child; and (2) 
who filed an asylum application that was pending with the United States 
Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed 
their asylum application with USCIS, were 18 years of age or older, or had a 
parent or legal guardian in the United States who is available to provide care and 
physical custody; and (4) for whom USCIS has not adjudicated the individual’s 
asylum application on the merits. 
ECF No. 117. Defendants responded in Opposition on July 13, 2020. ECF No. 126. Plaintiffs 
replied in support of the Motion for Class Certification on July 27, 2020. ECF No. 130. 
Additionally, on July 7, 2020, Plaintiffs filed a Motion to Amend the Preliminary 
Injunction, requesting that the Court enjoin Defendants from engaging in three practices that 
allegedly threaten to irreparably harm prospective class members before the Court has the 
opportunity to rule on the merits in this case—(1) USCIS’s deferral to IJ determinations that an 
asylum application was not one filed by a UAC; (2) ICE’s advocacy in immigration courts for IJs 
to exercise jurisdiction over prospective class members despite the preliminary injunction in this 
case; and (3) USCIS’s alleged practice of treating agency records that indicate nothing more than 
that a UAC had turned 18 or been reunited with a parent or legal guardian as an “affirmative 
act.” ECF No. 124. Defendants responded in Opposition on July 21, 2020. ECF No. 127. 
Plaintiffs replied in support of the Motion to Amend the Preliminary Injunction on August 4, 
2020. ECF No. 134. 
Finally, the parties have filed two Joint Motions: (1) a Joint Motion to Stay Summary 
 
5 In light of named plaintiff K.A.R.C. being granted asylum, Plaintiffs request that the Court specifically identify 
remaining named plaintiffs as the class representatives. ECF No. 130 at 7 n.1. Plaintiffs’ revised proposed order 
reflects this request. ECF No. 130-3. 

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Judgment Schedule, ECF No. 135, requesting that briefing on the parties’ motions for summary 
judgment be stayed pending the resolution of the parties’ disputes regarding the contents of the 
administrative record; and (2) a Joint Motion for Entry of Parties’ Proposed Protective Order, 
ECF No. 136. These motions were filed on August 10, 2020, and August 25, 2020, respectively. 
ECF Nos. 135, 136. 
B. Statutory and Regulatory Framework, Initial Complaint, and Enjoined 
Policy 
While the Court has described the statutory and regulatory regime at issue in this case in 
previous Memorandum Opinions, see, e.g., ECF Nos. 54, 115, it is useful to review it again here. 
In 2002, Congress enacted the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 
2135 (“HSA”). Among other provisions, the HSA assigned the care of “unaccompanied alien 
children who are in Federal custody by reason of their immigration status” to the Director of the 
Office of Refugee Resettlement of the Department of Health and Human Services (“HHS”). See 
id. § 462(a), (b), codified at 6 U.S.C. § 279(a), (b). The statute defines “unaccompanied alien 
child” (“UAC”) as a child who: “(A) has no lawful immigration status in the United States; (B) 
has not attained 18 years of age; and (C) with respect to whom-- (i) there is no parent or legal 
guardian in the United States; or (ii) no parent or legal guardian in the United States is available 
to provide care and physical custody.” Id. § 462(g), codified at 6 U.S.C. § 279(g). 
In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008 (“TVPRA”). Pub. L. No. 110-457, 122 Stat. 5044. Among a variety 
of provisions establishing protections for at-risk immigrant children, the statute provides that any 
federal agency that apprehends or discovers a UAC must notify HHS within 48 hours and must 
transfer custody of the child to HHS within 72 hours. Id. § 235(b), codified at 8 U.S.C. 
§ 1232(b)(2), (3). Importantly, the TVPRA also provides that USCIS asylum officers “shall have 

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initial jurisdiction over any asylum application filed by an unaccompanied alien child.” Id. 
§ 235(d)(7)(B), codified at 8 U.S.C. § 1158(b)(3)(C). Demonstrating the significance of this 
provision to the issues raised in this case requires a brief overview of the regime governing 
asylum claims. 
There are two processes by which a UAC can apply for asylum: affirmative and 
defensive. The affirmative asylum process, overseen by USCIS, occurs when an immigrant, who 
is present in the U.S. and has been here for less than a year, affirmatively files an asylum 
application. See 8 U.S.C. § 1158. The application then appears before an asylum officer who 
conducts a private interview “in a nonadversarial manner.” 8 C.F.R. § 208.9(b). Asylum officers 
are specially trained by USCIS in “international human rights law, nonadversarial interview 
techniques, and other relevant national and international refugee laws and principles.” Id. 
§ 208.1(b). 
The second process begins when an individual is placed in section 240 removal 
proceedings in immigration court and raises their asylum claim as a defense to removal.6 
Individuals enter section 240 proceedings after receiving a “notice to appear.” Id. § 1229(a). If 
the applicant has been served, IJs, not USCIS, “shall have exclusive jurisdiction” over the 
individual’s asylum application during the adversarial immigration court proceedings. 8 C.F.R. 
§ 208.2(a), (b). Immigration courts are operated by EOIR, a DOJ component established by 
regulation. Id. §§ 1003.0, 1003.9, 1003.10. 
UACs are unique among asylum applicants in that, under the TVPRA’s initial 
jurisdiction provision, USCIS has initial jurisdiction over their applications even when removal 
proceedings have been initiated. The statute also exempts UACs from the requirement that a 
 
6 Section 240 of the Immigration and Nationality Act (“INA”) concerns “the inadmissibility or deportability of an 
alien.” 8 U.S.C. § 1229a(a)(1). 

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potential asylee file an application within a year of arriving in the United States. See 8 U.S.C. 
§ 1158(a)(2))(B), (E). Therefore, whether an applicant is considered a UAC can have a 
significant impact on his or her progression through the asylum process—this status determines 
whether the asylum application is adjudicated by USCIS after a non-adversarial interview or by 
an IJ in adversarial removal proceedings. 
The TVPRA delegates authority to adopt regulations governing UAC asylum applications 
that “take into account the specialized needs of [UACs] and which address both procedural and 
substantive aspects of handling [UACs’] cases.” 8 U.S.C. § 1232(d)(8). The statute does not 
specify which agency should promulgate such rules, however, and to date no agency has done so, 
leaving the relationship between pre-TVPRA asylum regulations and the statute’s special 
provisions for UAC applicants somewhat unspecified. USCIS has partially filled this gap with a 
series of agency memoranda that have addressed, among other issues, if and how asylum officers 
should assess whether asylum applicants are UACs. The memoranda, as well as other USCIS 
publications, are included as exhibits and cited in Plaintiffs’ Amended Complaint. See ECF No. 
91. The first memorandum, issued March 25, 2009 by USCIS Asylum Division Chief Joseph 
Langlois (“2009 Langlois Memo”), directed that the agency would assess, both when an asylum 
application was received and during the applicant’s interview, whether the applicant qualified as 
a UAC at the time of filing the application. Id. ¶ 76; see ECF No. 91-2 at 5. Such an inquiry was 
necessary, Chief Langlois explained, because USCIS lacks jurisdiction over applications filed by 
individuals in removal proceedings that are not UACs. ECF No. 91-2 at 5. 
In September 2012, the Citizenship and Immigration Services Ombudsman, an oversight 
official within DHS, see 6 U.S.C. § 272, issued a report finding that “USCIS’ policy of 
redetermining UAC status creates delay and confusion.” ECF No. 91-3 at 6. The report used the 

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term “redetermination” to describe USCIS’s practice under the 2009 Langlois Memo of 
reexamining whether each claimed UAC asylum applicant was in fact a UAC and disregarding 
the earlier UAC determination made by the DHS component that apprehended the applicant—
either U.S. Customs and Border Patrol (“CPB”) or ICE—that enabled the individual to file an 
application with USCIS despite being in removal proceedings. See id. at 4, 7; see also ECF No. 
91 ¶ 81. The report noted that USCIS’s redeterminations frequently resulted in the agency 
rejecting applications for lack of jurisdiction, producing unfairness and unpredictability for 
applicants, as well as a significant waste of time and resources. ECF No. 91-3 at 8. The 
Ombudsman further stated that “[s]ubjecting a child seeking asylum to multiple UAC 
determinations as is required by USCIS’ temporary guidance appears at odds with the TVPRA’s 
express purpose, namely, to provide timely, appropriate relief for vulnerable children.” Id. at 6. 
The report thus recommended that USCIS eliminate redeterminations and simply accept and 
adjudicate the applications of individuals previously determined to be UACs by ICE or CBP. Id. 
at 4–6; see ECF No. 91 ¶ 84. 
USCIS adopted this recommendation in a May 28, 2013 memorandum by Acting Asylum 
Division Chief Ted Kim (“2013 Kim Memo”), which modified the procedures established in the 
2009 Langlois Memo. ECF No. 91-4 at 2. Under the new policy, in cases in which CPB or ICE 
had already determined that an applicant was a UAC and that determination “was still in place on 
the date the asylum application was filed,” USCIS would adopt that determination without 
another factual inquiry. Id. at 2–3. The memorandum further clarified that “[u]nless there was an 
affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the 
initial application for asylum,” USCIS would adopt the previous determination that the applicant 
was a UAC “and take initial jurisdiction over the case.” Id. at 3. USCIS would follow this 

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procedure and decline to “question the applicant regarding his or her age and whether he or she 
is accompanied by a parent or legal guardian . . . even if there appears to be evidence that the 
applicant may have turned 18 years of age or may have reunited with a parent or legal guardian 
since the CPB or ICE determination.” Id.; see ECF No. 91 ¶¶ 87–88. 
Six years later, on June 14, 2019, USCIS published on its website the memorandum at 
issue in this case, which revised the procedures established in the 2013 Kim Memo. ECF No. 91-
1 at 2. The memorandum (“2019 Redetermination Memo”), which was dated May 31, 2019, 
discussed a decision by the Board of Immigration Appeals (“BIA”), an appellate body within 
EOIR that, among other duties, reviews IJ decisions in section 240 proceedings, see 8 C.F.R. 
§ 1003.1(a), (b)(1). ECF No. 91-1 at 3. The 2019 Redetermination Memo explained that in that 
BIA decision, Matter of M-A-C-O-, 27 I. & N. Dec. 477 (BIA 2018) (“MACO”), the BIA 
concluded that IJs have jurisdiction to determine whether an individual previously determined to 
be a UAC, but who turned 18 years old before filing an asylum application, no longer qualifies 
as a UAC. ECF No. 91-1 at 3 (citing MACO, 27 I. & N. Dec. at 478). If the IJ makes such a 
finding, the BIA held, the IJ should conclude that the TVPRA’s initial jurisdiction provision no 
longer applies and that jurisdiction over the application is held solely by the immigration court. 
Id. (citing MACO, 27 I. & N. Dec. at 478). The memorandum clarified, however, that MACO 
does not divest USCIS of its authority to determine whether an application was filed by a UAC, 
with the result that both IJs and USCIS have authority to determine whether USCIS has 
jurisdiction over a given application. Id. 
The 2019 Redetermination Memo then stated the policy change it was implementing: 
To ensure that USCIS is making these jurisdictional determinations in a manner 
consistent with Immigration Judge determinations on the same issue under Matter 
of M-A-C-O-, USCIS is returning to making independent factual inquiries in all 
cases in order to determine whether the individual met the UAC definition on the 

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date of filing the asylum application. This will help prevent incongruous results 
where USCIS would otherwise have deferred to a prior UAC determination that 
fails to take into consideration the age and other circumstances of the applicant at 
the time of filing the application. 
 
Id. at 3–4. The memorandum set forth the procedures that an asylum officer should apply when 
making a determination whether an applicant qualified as a UAC at the time of filing, stating that 
“[t]he asylum officer must evaluate whether the asylum application was filed by a UAC by 
making an independent factual inquiry.” Id. at 4. Additionally, citing MACO for the proposition 
that “EOIR has jurisdiction to determine its own jurisdiction,” the memorandum stated in a 
footnote (“Footnote 5”) that “[i]f EOIR has explicitly determined that USCIS does not have 
jurisdiction over an asylum application because it is not one filed by a UAC, the asylum officer 
will defer to that determination.” Id. at 5 n.5. Finally, the memorandum stated that it becomes 
effective 30 days from its issuance and that its new procedures apply to “any USCIS decision 
issued on or after the effective date.” Id. at 2 (emphasis in the original). 
 In their initial Complaint and TRO Mo tion, Plaintiffs alleged that the 2019 
Redetermination Memo’s requirement that USCIS reevaluate whether each claimed UAC asylum 
applicant was a UAC at the time of filing violated the APA, the TVPRA, and Plaintiffs’ due 
process rights. ECF No. 1 ¶¶ 123–25, 127–29, 132–37; ECF No. 14 at 2. As described 
previously, the Court, on August 2, 2019, granted the TRO and barred enforcement of the 2019 
Redetermination Memo. ECF Nos. 54, 55. Specifically, the Court enjoined Defendants: (1) 
“from applying their new asylum eligibility policy, as set forth in USCIS’s May 31, 2019 
memorandum, to bar individuals previously determined to be unaccompanied alien children 
(‘UACs’) from seeking asylum before the agency;” and (2) “from rejecting jurisdiction over the 
application of any UAC (as defined in the Homeland Security Act, 6 U.S.C. § 279(g)(2)) under 
the Trafficking Victims Protection Reauthorization Act (“TVPRA”) whose application would 

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have been accepted under the USCIS policy predating the May 31, 2019 memorandum.” ECF 
No. 55 at 1. 
The Court also ordered USCIS to “retract any adverse decision already rendered in an 
individual case applying the 2019 UAC Memorandum [2019 Redetermination Memo] within one 
week following entry of this Order and reinstate consideration of such case applying the 2013 
UAC Memorandum.” Id.7 The basis of the Court’s ruling was the finding that Plaintiffs were 
likely to succeed on claims that Defendants violated the APA by failing to use notice-and-
comment rulemaking to implement the policies in the 2019 Redetermination Memo and by 
failing to consider the reliance interests created by the 2013 Kim Memo. ECF No. 54 at 8. 
C. Original Plaintiffs 
 Plaintiffs in this action allege that they came to the United States as children to escape 
violence, abuse, and persecution in their home countries. See ECF No. 91 ¶¶ 25–26, 32, 37, 43, 
48. 
Plaintiff J.O.P. is an 18-year-old from Guatemala currently residing with his mother in 
College Park, Maryland. Id. ¶ 25. J.O.P. fled his home country when he was 15 years old after 
witnessing a murder and receiving threats of violence. Id. ¶¶ 26, 132. DHS agents determined 
that he was a UAC on or about November 25, 2015, after which he was reunified with his 
mother. Id. ¶¶ 28–29. He filed an asylum application with USCIS on February 20, 2018, when he 
was 17 years old, but he has yet to obtain an interview and is currently in section 240 removal 
proceedings. Id. ¶¶ 27, 30, 133. 
Plaintiff M.A.L.C. is 21 years old and is also from Guatemala, where he experienced 
repeated threats of violence and extortion after his parents were murdered. Id. ¶¶ 31–32. He fled 
 
7 The Court’s later Preliminary Injunction Order, which indefinitely extended the TRO, included the same language 
with minor immaterial modifications. ECF No. 71 at 1–2. 

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to the United States in August 2016 when he was 17 years old and was determined to be a UAC 
by DHS agents at that time. Id. ¶¶ 32, 34, 124. On February 14, 2018, when he was 19 years old, 
he filed an asylum application with USCIS. Id. ¶ 35. Currently residing in Los Angeles, 
California, he has yet to obtain an asylum interview and is now in section 240 removal 
proceedings. Id. ¶¶ 31, 35. 
 Plaintiff M.E.R.E. is a 20-year-old curre ntly residing in Temple Hills, Maryland. Id. ¶ 36. 
He fled his home country of El Salvador at 15 years old because of the abuse, discrimination, 
and persecution he experienced based on his sexual orientation. Id. ¶¶ 37, 120. On or about 
November 15, 2014, DHS agents determined that M.E.R.E. was a UAC, although he was 
subsequently reunified with his mother. Id. ¶¶ 39–40. On March 30, 2018, when he was 18 years 
old, M.E.R.E. filed an asylum application with USCIS. Id. ¶ 41. He has not yet been scheduled 
for an interview and is now in section 240 removal proceedings. Id. ¶¶ 38, 41, 122. 
Plaintiff K.A.R.C. is 20 years old and currently resides in Gaithersburg, Maryland. Id. 
¶ 42. K.A.R.C. is also from El Salvador and fled the country when he was 17 years old because 
of the abuse, discrimination, and persecution he experienced based on his perceived sexual 
orientation. Id. ¶¶ 43, 128, 130. In approximately May 2016, DHS agents determined that 
K.A.R.C. was a UAC. Id. ¶ 45. K.A.R.C. filed an asylum application with USCIS in the fall of 
2017 when he was 18 years old and was interviewed in November 2017. Id. ¶¶ 46, 129. On July 
1, 2020, USCIS issued a letter to K.A.R.C. granting him asylum. ECF No. 126 at 22 n.3; ECF 
No. 130 at 7 n.1. 
 D. Amended Complaint and Motion to Amend the Preliminary Injunction 
 Plaintiff E.D.G. was added to this action in the Amended Complaint. ECF No. 91. E.D.G. 
is a 20-year-old from Honduras who currently resides in Kansas City, Missouri. ECF No. 91 

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¶ 47. E.D.G. fled Honduras when he was 17 years old after years of sexual, physical, and 
emotional abuse and grievous harm inflicted by a gang whose recruitment efforts he had refused. 
Id. ¶¶ 48, 135. DHS agents determined that E.D.G. was a UAC on or about July 4, 2016, and he 
was placed in section 240 removal proceedings the following day. Id. ¶¶ 49–50. E.D.G. filed an 
asylum application with USCIS in late 2017, when he was 18 years old, and was interviewed on 
March 6, 2018. Id. ¶ 51. Before a decision was issued, however, an IJ ordered E.D.G. removed 
on October 10, 2018, after concluding that the immigration court had jurisdiction over E.D.G.’s 
asylum application and denying the application on the merits. Id. ¶ 52. E.D.G.’s appeal is 
currently pending before the BIA. Id. On July 25, 2019, in reliance on the 2019 Redetermination 
Memo, USCIS rejected jurisdiction over E.D.G.’s asylum application because he had not 
established that he was under 18 years old at the time he filed it. Id. ¶ 53. 
The Court’s TRO, barring enforcement of the 2019 Redetermination Memo, was issued 
on August 2, 2019, ECF No. 55, and USCIS reopened E.D.G.’s case in compliance with the 
Order on August 5, 2019, ECF No. 91 ¶¶ 53, 137. On September 30, 2019, however, while the 
TRO remained in effect, USCIS again rejected jurisdiction over E.D.G.’s application. ECF No. 
91 ¶ 54. The agency issued to E.D.G. a Notice of Lack of Jurisdiction stating that the 
“Immigration Judge made an affirmative act to terminate UAC status on October 10, 2018.” Id. 
¶ 137. Plaintiffs allege that this decision was made pursuant to Footnote 5 of the 2019 
Redetermination Memo, which directs USCIS to defer to EOIR determinations that USCIS lacks 
jurisdiction over an application because it was not filed by a UAC. Id. ¶¶ 15, 137. Plaintiffs 
allege in the Amended Complaint and in the Motion to Amend the Preliminary Injunction that 
Defendants’ deferral to IJ determinations—illustrated by Plaintiff E.D.G.’s experience—is in 

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violation of the Due Process Clause and the APA and thus should be enjoined. ECF No. 91 at 
159–62, 171–79; ECF No. 124-1 at 18–19. 
Plaintiffs further allege in the Amended Complaint that “Defendants have maintained a 
policy and practice that erroneously deprives” Plaintiffs, and the class of similarly situated UAC 
asylum applicants that they seek to represent, “of USCIS’s statutory initial jurisdiction over their 
asylum applications[.]” Id. ¶ 141. Newly added Defendant ICE, Plaintiffs contend, contributes to 
this deprivation in its role as a prosecutor in immigration courts. Id. ¶¶ 18, 60, 140. According to 
Plaintiffs, ICE maintains a policy or practice of advocating for IJs to conclude that applicants 
who have turned 18 or reunified with a parent before applying for asylum are not within 
USCIS’s jurisdiction. Id. ¶ 22. 
Specifically, Plaintiffs assert that ICE attorneys argue before IJs that EOIR should assert 
its jurisdiction in such cases in order to deprive USCIS of the opportunity to exercise initial 
jurisdiction, given the IJ deferral policy in the 2019 Redetermination Memo. Id. ¶¶ 18, 108. 
Further, Plaintiffs allege that ICE prosecutors actively oppose in removal proceedings efforts by 
UACs to delay IJ consideration of their asylum claims while USCIS considers them. Id. ¶ 140. 
Instead, ICE advocates for scheduling IJ hearings on the asylum claims and actively opposes 
continuances or postponements. Id. ¶¶ 140–41. Plaintiffs allege that this advocacy before IJs is 
directly related to USCIS’s decision to defer to IJ jurisdictional determinations, evidencing a 
concerted, cross-agency strategy of attempting to evade or minimize the impact of the TVPRA’s 
initial jurisdiction provision for UACs, and thus should be enjoined. Id. ¶¶ 18, 141; see also ECF 
No. 124-1 at 21–23. 
Plaintiffs illustrate ICE’s alleged behavior by introducing proposed class member 
J.S.G.C. in the Motion to Amend the Preliminary Injunction. ECF No. 124-1 at 10. J.S.G.C. is an 

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18-year-old from Mexico. Id.; ECF No. 124-5 ¶ 2. DHS classified J.S.G.C. as a UAC when he 
entered the United States on June 26, 2019, but later released J.S.G.C. to the care of his mother 
on his eighteenth birthday. ECF No. 124-1 at 10; ECF No. 124-5 ¶¶ 3–4. In August 2019, DHS 
served J.S.G.C. with a Notice to Appeal and placed him in removal proceedings. ECF No. 124-1 
at 10; ECF No. 124-5 ¶ 5. On December 20, 2019, J.S.G.C.’s counsel filed an asylum application 
with USCIS on his behalf. ECF No. 124-1 at 10; ECF No. 124-5 ¶ 6. His application remains 
pending, but USCIS has not scheduled an asylum interview for J.S.G.C. yet. Id. 
At a February 12, 2020, master calendar hearing in immigration court, J.S.G.C.’s counsel 
moved, in reliance on this Court’s preliminary injunction order, to hold J.S.G.C.’s removal 
proceedings in abeyance while USCIS adjudicated his asylum application. ECF No. 124-1 at 10; 
ECF No. 124-5 ¶¶ 8, 10. The ICE Assistant Chief Counsel filed an opposition to J.S.G.C.’s 
motion in April 2020, arguing that USCIS does not have initial jurisdiction over J.S.G.C.’s 
asylum application under MACO because J.S.G.C. filed his asylum application with USCIS after 
he turned 18 years old. ECF No. 124-1 at 10–11; ECF No. 124-5 ¶¶ 11–12. The ICE Assistant 
Chief Counsel dismissed J.S.G.C.’s counsel’s arguments regarding this Court’s preliminary 
injunction as reliance on “an internal USCIS memorandum[] and . . . district court decisions 
from other jurisdictions, none of which bind the Immigration Judge[.]” ECF No. 124-7 at 4. On 
April 16, 2020, the immigration judge denied J.S.G.C.’s motion, explicitly relying on ICE’s 
arguments against USCIS’s initial jurisdiction. ECF No. 124-1 at 11; ECF No. 124-5 ¶ 13; ECF 
No. 124-8 at 3.8 
 Finally, in the Motion to Amend the Preliminary Injunction, ECF No. 124, Plaintiffs 
 
8 However, through further motion practice based on his pursuit of an additional form of relief (Special Immigrant 
Juvenile Status), on June 23, 2020, J.S.G.C.’s counsel persuaded the judge to place his case on the status docket. 
ECF No. 124-1 at 11; ECF No. 124-5 ¶ 15. 
 

17 
 
allege additional problematic behavior by Defendants that is indicative of Defendants’ policy and 
practice of depriving Plaintiffs, and the proposed class of others similarly situated, of USCIS’s 
statutory initial jurisdiction over their asylum applications. Specifically, Plaintiffs claim that 
“Defendant USCIS has adopted a practice of treating agency records, indicating nothing more 
than that a UAC has turned 18 or been reunited with a parent or legal guardian, as an ‘affirmative 
act’ even though that interpretation is at odds with the 2013 Kim Memo and the asylum 
applicants are never made aware of any putative redetermination.” ECF No. 124-1 at 6. Plaintiffs 
claim that this behavior—like USCIS’s deferral to IJ determinations and ICE’s advocacy in 
immigration courts for IJs to exercise jurisdiction over prospective class members despite the 
preliminary injunction in this case—is a back door method of effectuating the policy goal 
outlined in the 2019 Redetermination Memo while maintaining that USCIS is now operating 
under this Court’s Order to revert to the 2013 Kim Memo. 
 Plaintiffs further illustrate Defendants’ act ions through the introduction of a prospective 
class member, L.M.Z. ECF No. 124-1 at 11. L.M.Z. is a 9-year-old from Mexico who entered the 
United States on or about May 20, 2018. Id.; ECF No. 124-9 ¶¶ 2–3. Upon his entry, Defendant 
DHS determined that L.M.Z. was a UAC, issued him a Notice to Appear, and placed him in 
removal proceedings in immigration court. ECF No. 124-1 at 11; ECF No. 124-9 ¶¶ 3–4. HHS 
released L.M.Z. to the care of his mother on or about June 8, 2018. ECF No. 124-1 at 11; ECF 
No. 124-9 ¶ 5. On February 8, 2019, while his removal proceedings were pending in immigration 
court, L.M.Z. filed his asylum application with USCIS. ECF No. 124-1 at 12; ECF No. 124-9 
¶ 7. 
On February 5, 2020, L.M.Z. appeared with counsel for his scheduled asylum interview 
with USCIS. ECF No. 124-1 at 12; ECF No. 124-9 ¶¶ 9–10; ECF No. 124-13 ¶ 7. The asylum 

18 
 
officer did not ask any questions about the merits of L.M.Z.’s asylum claim, and, instead, asked a 
series of questions about the care provided by his mother. ECF No. 124-1 at 12; ECF No. 124-13 
¶¶ 7–8. The officer ended the interview following those questions, stating that she was making a 
final factual finding that L.M.Z. was not a UAC. ECF No. 124-1 at 12; ECF No. 124-13 ¶ 8. 
L.M.Z.’s counsel informed the officer that USCIS must exercise jurisdiction under the 2013 Kim 
Memo, as affirmed by this Court’s Preliminary Injunction Order, but the officer, after conferring 
with her supervisor, refused to complete the interview. ECF No. 124-1 at 12; ECF No. 124-13 
¶ 8. 
On March 13, 2020, USCIS issued a “Notice of Lack of Jurisdiction (Non-UAC),” 
denying jurisdiction over L.M.Z.’s case. ECF No. 124-1 at 12; ECF No. 124-9 ¶ 12. In the 
asylum officer’s declaration, she stated that she “reviewed the comments tab in the ENFORCE 
Alien Removal Module (EARM) and determined that ICE had taken affirmative action on 
August 14, 2018 that terminated the prior UAC designation.” ECF No. 125-5 ¶ 6. On that date, 
an ICE agent entered a notation in the computer system that “[s]ubject is no longer designated a 
UAC under the TVPRA as of date of release to sponsor-mother- on 06/08/2018.” Id. Plaintiffs 
contend that such a notation is not an “affirmative act” as described in the 2013 Kim Memo, and 
USCIS’s “litigation-inspired reinterpretation . . . is substantively indistinguishable from the 2019 
Redetermination Policy that the Court enjoined[.]” ECF No. 124-1 at 24. Thus, Plaintiffs argue 
that “Defendants’ practice of treating a mere recognition [in a government database] that UAC 
had turned 18 or been reunited with a parent or legal guardian” as an “affirmative act” violates 
the Due Process Clause and the APA and should thus be enjoined. ECF No. 124-1 at 24–27. 
II. DISCUSSION 
The Court discusses the parties’ pending motions below separately and in the order they 

19 
 
were filed for maximum clarity. 
A. Plaintiffs’ Motion for Class Certific ation and Appointment of Class Counsel 
 A class action allows representative parties to prosecute not only their own claims, but 
also the claims of other similarly situated individuals. Thorn v. Jefferson-Pilot Life Ins. Co., 445 
F.3d 311, 318 (4th Cir. 2006). “Chief among the justifications for this device is its efficiency[.]” 
Id. Adjudication of a properly-constituted class action “saves the resources of both the courts and 
the parties by permitting an issue potentially affecting every [class member] to be litigated in an 
economical fashion.” Id. (alteration in original) (quoting Califano v. Yamasaki, 442 U.S. 682, 
701 (1979)). “Class certification is strictly a procedural matter, and the merits of the case at stake 
are not to be considered when deciding whether to certify a class.” Hewlett v. Premier Salons 
Int’l, Inc., 185 F.R.D. 211, 214 (D. Md. 1997) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 
156, 177 (1974)). 
 Class certification is gov erned by Fed. R. Civ. P. 23, which provides a two-step 
framework for certifying a class. First, the proposed class must satisfy the four prerequisites 
identified in Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable 
(“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) 
the claims or defenses of the representative parties are typical of the claims or defenses of the 
class (“typicality”); and (4) the representative parties will fairly and adequately protect the 
interests of the class (“adequate representation”). Fed. R. Civ. P. 23(a). If those requirements are 
satisfied, the action must further qualify for one of the three categories of classes identified in 
Rule 23(b): (1) prosecuting separate actions would create a risk of inconsistent or varying 
adjudications or impair the ability of nonparties to protect their interests; (2) final injunctive or 
declaratory relief is appropriate; or (3) questions of law or fact common to all class members 

20 
 
predominate over any questions affecting only individual members, and a class action is superior 
to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 
23(b). 
 In addition to the two-step framework expres sly laid out in Rule 23, the Fourth Circuit 
has “repeatedly recognized that Rule 23 contains an implicit threshold requirement that the 
members of a proposed class be ‘readily identifiable.’” EQT Prod. Co. v. Adair, 764 F.3d 347, 
358 (4th Cir. 2014) (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972)). Other 
circuits have described this rule as an “ascertainability” requirement. Id. “However phrased, the 
requirement is the same. A class cannot be certified unless a court can readily identify the class 
members in reference to objective criteria.” Id. 
1. Readily Identifiable 
Defendants contend that Plaintiffs’ class definition fails to meet the “ascertainability” 
requirement because “identifying who did not meet the UAC definition at the time of filing their 
asylum application—a pivotal element of Plaintiffs’ proposed class definition—entails 
substantial administrative difficulties[,]” and because “Plaintiffs’ class definition lacks sufficient 
clarity to even identify such relevant class.” ECF No. 126 at 11. Plaintiffs’ responding argument 
is twofold: (1) the ascertainability threshold does not apply to Rule 23(b)(2) classes; and (2) even 
if it did, the proposed class is ascertainable. ECF No. 130 at 7, 11. The Court addresses both 
arguments below. 
a. The “Readily Identifiable” or “Ascertainability” Standard 
Applies to Class Certification under Fed. R. Civ. P. 23(b)(2) 
Under Fourth Circuit Precedent 
The Fourth Circuit first adopted the threshold requirement that members of a proposed 
class be “readily identifiable” in Hammond, 462 F.2d at 1055. The Fourth Circuit, without 
discussion, concluded in Hammond that “the class [was] adequately delineated” and that “[a]t the 

21 
 
time of judgment the individual members of the class [would] be readily identifiable.” Id. The 
Fourth Circuit later explained that this “readily identifiable” threshold requirement is implicit in 
Rule 23. In re A.H. Robins Co., Inc., 880 F.2d 709, 728 (4th Cir. 1989) (“Though not specified in 
the Rule, establishment of a class action implicitly requires . . . that there be an identifiable 
class”). It was not until EQT Production Co., 764 F.3d 347, however, that the Fourth Circuit 
expounded on the meaning of the “readily identifiable” requirement. 
In EQT Production Co., the Fourth Circuit vacated the class certification decision of the 
district court and remanded the case for reconsideration of the ascertainability issues, concluding 
that the district court had previously “failed to rigorously analyze whether the administrative 
burden of identifying class members . . . would render class proceedings too onerous.” 764 F.3d 
at 358. The Fourth Circuit explained “[a] class cannot be certified unless a court can readily 
identify the class members in reference to objective criteria.” Id. (citing Marcus v. BMW of N. 
Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012); Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576, 
579–80 (1st Cir. 1986)). Specifically, although “plaintiffs need not be able to identify every class 
member at the time of certification[,] . . . ‘[i]f class members are impossible to identify without 
extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. 
(quoting Marcus, 687 F.3d at 593). EQT Production Co. has come to stand for the proposition 
that the goal of the “readily identifiable” requirement is “to define a class in such a way as to 
ensure that there will be some ‘administratively feasible [way] for the court to determine whether 
a particular individual is a member’ at some point.” Krakauer v. Dish Network, L.L.C., 925 F.3d 
643, 658 (4th Cir. 2019) (quoting EQT Prod. Co., 764 F.3d at 358). Moreover, opinions of this 
Court have further expounded that a “plaintiff cannot merely identify a mass of data which could 
aid the process of identifying class members[,] . . . the Plaintiff must also provide an efficient 

22 
 
method of using this information.” Spotswood v. Hertz Corp., No. RDB-16-1200, 2019 WL 
498822, at *6 (D. Md. Feb. 7, 2019). 
While not all Circuits agree with the Fourth Circuit’s articulation of the ascertainability 
requirement, see, e.g., In re Petrobras Sec., 862 F.3d 250, 264 (2d Cir. 2017) (“conclud[ing] that 
a freestanding administrative feasibility requirement is neither compelled by precedent nor 
consistent with Rule 23”); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 (9th Cir. 2017) 
(declining to interpret Rule 23 to require that class representatives “demonstrate that there is an 
‘administratively feasible’ means of identifying absent class members”); Mullins v. Direct 
Digital, LLC, 795 F.3d 654, 672 (7th Cir. 2015) (“declin[ing] Direct Digital’s invitation to adopt 
a heightened ascertainability requirement” and instead holding that “[d]istrict courts should 
continue to insist that the class definition satisfy the established meaning of ascertainability by 
defining classes clearly and with objective criteria”), several Circuits have adopted a similar 
administrative feasibility interpretation of the threshold requirement, see, e.g., Cole v. City of 
Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (“we adopted the ascertainability requirement 
noting that certification necessitated ‘a class description [that is] sufficiently definite so that it is 
administratively feasible for the court to determine whether a particular individual is a member’” 
(internal citations omitted)); Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015) (“The 
ascertainability inquiry is two-fold, requiring a plaintiff to show that: (1) the class is defined with 
reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism 
for determining whether putative class member fall within the class definition.” (internal 
quotation marks omitted)); Karhu v. Vital Pharm., 621 F. App’x 945, 946 (11th Cir. 2015) (“a 
class is not ascertainable unless the class definition contains objective criteria that allow for class 
members to be identified in an administratively feasible way”); Crosby, 796 F.2d at 580 

23 
 
(requiring that the “description of class . . . be sufficiently definite so that it is administratively 
feasible to determine whether a particular individual is a member”). 
Yet, of the Circuits that have espoused a heightened ascertainability requirement similar 
to that of the Fourth Circuit’s, the First, Third and Sixth Circuits have said this administrative 
feasibility requirement does not apply in the context of certification under Fed. R. Civ. P. 
23(b)(2). See, e.g., Cole, 839 F.3d at 542 (“a judicially created implied requirement of 
ascertainability—that the members of the class be capable of specific enumeration—is 
inappropriate for (b)(2) cases” (emphasis in original)); Shelton v. Bledsoe, 775 F.3d 554, 561 (3d 
Cir. 2015) (same); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972), abrogated on other 
grounds by Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978) (“Although notice to and 
therefore precise definition of the members of the suggested class are important to certification 
of a subdivision (b)(3) class, notice to the members of a (b)(2) class is not required and the actual 
membership of the class need not therefore be precisely delimited.”). In reaching this conclusion, 
these courts have observed that the purposes for which courts created the heightened 
ascertainability requirement are absent in (b)(2) actions. “[A]scertainability is a requirement tied 
almost exclusively to the practical need to notify absent class members and to allow those 
members a chance to opt-out[,]” however, unlike (b)(3) classes, (b)(2) class members are not 
entitled to such notice and opportunity to opt-out. Cole, 839 F.3d at 541 (citing Marcus, 687 F.3d 
at 593); see also Yaffe, 454 F.2d at 1366. Thus, “the practical efficiencies that come with 
knowing the precise membership of the class are nonexistent” in a (b)(2) action. Id.; see also 
Shelton, 775 F.3d at 560–61. These courts also have observed, in reaching their conclusion, that, 
“because a remedy obtained by one member [of a (b)(2) class] will naturally affect the others, the 
identities of individual class members are less critical in a (b)(2) action[.]” Shelton, 775 F.3d at 

24 
 
561; see also Cole, 839 F.3d at 542. “If relief is granted . . . the defendants are legally obligated 
to comply, and it is usually unnecessary to define with precision the persons entitled to enforce 
compliance, since . . . the representative plaintiffs would be available to seek . . . relief if 
necessary.” Shelton, 775 F.3d at 561 (internal quotations omitted) (quoting Rice v. City of Phila, 
6 F.R.D. 17, 19 (E.D. Pa. 1974)). Lastly, these courts support their conclusion by citing to an 
Advisory Committee note to Fed. R. Civ. P. 23 that lists as an example of a (b)(2) class “various 
actions . . . where a party is charged with discriminating unlawfully against a class, usually one 
whose members are incapable of specific enumeration.” Id. (emphasis in original) (citing Fed. R. 
Civ. P. 23); see also Cole, 839 F.3d at 542; Yaffe, 454 F.2d at 1366. Such a class would 
undoubtedly fail an administrative feasibility requirement, and thus the courts conclude such a 
requirement must not apply to (b)(2) actions. Shelton, 775 F.3d at 561. 
Plaintiffs now ask this Court to hold that the Fourth Circuit’s interpretation of the 
“readily identifiable” threshold requirement aligns with that of the First, Third, and Sixth 
Circuits and thus to hold that the heightened ascertainability requirement outlined in EQT 
Production Co. does not apply to Plaintiffs’ request to certify a class under Rule 23(b)(2). ECF 
No. 130 at 7–11. The problem with this request, however, is that it would not square with the 
Fourth Circuit’s statements on the issue. 
It is fair to say that the Fourth Circuit has not explicitly discussed whether the 
requirement that plaintiffs identify an administratively feasible way to identify class members 
should apply with equal force regardless of whether plaintiffs are attempting certification under 
Rule 23(b)(1), (2), or (3). But EQT Production Co., 764 F.3d 347, at least suggests that it does. 
In EQT Production Co., the Fourth Circuit discussed ascertainability with respect to the 
plaintiffs’ “ownership classes” for which plaintiffs sought class certification under both Rules 

25 
 
23(b)(2) and (3). See 764 F.3d at 357. Specifically, the classes that the Fourth Circuit ultimately 
ordered the district court to reconsider on ascertainability grounds sought “a declaration that the 
class members [were] true owners of CBM, as well as payment of the royalties they believe 
[defendants] have improperly escrowed or withheld.” Id. at 358 (emphasis added). The Fourth 
Circuit did not suggest a different analysis for each rule. Nor does the Fourth Circuit’s expressed 
fear that, without an ascertainable class, it will “have little conception . . . of who may be bound 
by a potential merits ruling[,]” id. at 359–60, distinguish between rulings that involve declaratory 
relief, covered by Rule 23(b)(2), and rulings rewarding royalties or other individualized relief. 
Despite the lack of explicit guidance on this issue, it appears that the Fourth Circuit’s 
administrative feasibility interpretation of ascertainability applies equally to all classes regardless 
of the section of Rule 23(b) under which certification is pursued. While the Fourth Circuit may 
eventually decide to align with the reasoning of the First, Third, and Sixth Circuits and hold that 
the administrative feasibility requirement is inappropriate in the context of Rule 23(b)(2) because 
the purposes for which the requirement was created are absent; it has not yet done so. Based on 
the Court’s reading of EQT Production Co., the threshold requirement of ascertainability that is 
implicit in Rule 23 applies to Plaintiffs’ proposed class. 
b. Plaintiffs’ Proposed Class is Readily Identifiable or 
Ascertainable 
Although the ascertainability requirement applies to Plaintiffs’ proposed class under 
Fourth Circuit precedent, Plaintiffs’ class satisfies this requirement. Defendants present two 
arguments to the contrary: (a) “identifying who did not meet the UAC definition at the time of 
filing their asylum application . . . entails substantial administrative difficulties[,]” ECF No. 126 
at 11; and (b) the class “definition is too vague to enable the court to identify a relevant class[,]” 
id. at 15. This Court will address each argument in turn. 

26 
 
i. Administrative Difficulties 
Defendants first argue that Plaintiffs’ proposed class is not ascertainable because 
“identifying who did not meet the UAC definition at the time of filing their asylum application 
. . . entails substantial administrative difficulties.” ECF No. 126 at 11. However, Defendants’ 
argument ignores the circumstances of this case and the context in which class members would 
need to be identified. 
The implicit prerequisite in Rule 23 that a class must be ascertainable stems from the 
requirement that a class must exist. See 7A Charles Alan Wright, et al., Federal Practice and 
Procedure § 1760 (3d ed. 2020). “Whether a class exists is a question of fact that will be 
determined on the basis of the circumstances of each case.” Id. A court must analyze whether the 
members of a proposed class are readily identifiable in the context of the class proceedings at 
issue. See EQT Production Co., 764 F.3d at 358. The relevant inquiry is whether “the 
administrative burden of identifying class members in the [instant case] would render class 
proceedings too onerous.” Id. (emphasis added). The answer here is no. 
As discussed above, under Fourth Circuit precedent “[t]he goal [of the ascertainability 
requirement] is not to ‘identify every class member at the time of certification,’ but to define a 
class in such a way as to ensure that there will be some ‘administratively feasible [way] for the 
court to determine whether a particular individual is a member’ at some point.” Krakauer, 925 
F.3d at 658. As Plaintiffs point out, “this assessment is not made for mere curiosity, but in order 
to ensure compliance with the Court’s orders.” ECF No. 130 at 11. In a “Rule 23(b)(2) action, 
notice is not required, and the requested relief (vacatur of the [2019 Redetermination 
Memorandum] and a declaration of its invalidity) will be the same for all class members[,]” 
decreasing the likelihood that any individualized assessment of precise class membership will be 

27 
 
necessary. Planned Parenthood of Md., Inc. v. Azar, No. CV CCB-20-00361, 2020 WL 3893241, 
at *5 (D. Md. July 10, 2020) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011) 
(“The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not 
even oblige the District Court to afford them notice of the action.”)). Moreover, because the 
members of Plaintiffs’ proposed class do not seek any form of monetary damages, the 
probability that it will be necessary to identify particular individuals as class members is further 
reduced. Id. at *5 n.9. 
Nevertheless, “[i]t is possible that the court might at some point need to decide whether a 
specific individual is a class member and bound by the court’s judgment or has the power to 
enforce non-compliance with the judgment.” Id. at *5. In this case, however, when that time 
comes, it will likely be in the context of one of four scenarios: (1) USCIS denies jurisdiction over 
an asylum applicant after determining that at the time of application the applicant did not qualify 
as a UAC; (2) USCIS defers to an IJ’s determination that an asylum applicant was not an UAC at 
the time of filing and thus denies jurisdiction over the asylum application; (3) ICE advocates that 
an IJ exercise jurisdiction over an asylum applicant because the applicant was not an UAC at the 
time of filing; or (4) USCIS denies jurisdiction over an asylum applicant that was previously 
determined to be a UAC after observing a notation in a government database indicating that the 
applicant was not an UAC at the time of filing. In all four of these scenarios, by the time the 
issue of class membership arises, Defendants will already have made, and documented in their 
records, the determinations which Defendants complain will involve “extremely complex factual 
issue[s]” and thus are not “administratively feasible[,]” ECF No. 126 at 13—i.e., whether the 
asylum applicant qualified as a UAC at the time of application.. 
The circumstances of this case are therefore unlike the situation in EQT Production Co., 

28 
 
764 F.3d 347, the case on which Defendants heavily rely. In EQT Production Co., the Fourth 
Circuit remanded the case for the district court to determine whether the proposed class—“(1) all 
persons or their successors, (2) whom [defendants] have identified as being the owners of the gas 
estate in a tract underlying a [coalbed methane gas (“CBM”)] drilling unit, (3) whose interest in 
the CBM is ‘in conflict’ because a different person owns the coal estate in the same tract”—was 
ascertainable. Id. at 355, 360. The district court had concluded that the court could identify class 
members in reference to ownership schedules listing all potential interest holders, but the Fourth 
Circuit noted that some of the ownership schedules were twenty years old and did not reflect 
changes in ownership such that ownership would have to be resolved based on land records, “a 
complicated and individualized process.” Id. at 353, 359. In contrast, here “[t]here is no need for 
‘extensive and individualized fact-finding or ‘mini-trials’’ to determine who [met the definition 
of an UAC at the time of their asylum application].” Planned Parenthood of Md., Inc., 2020 WL 
3893241 at *6 (quoting EQT Prod. Co., 764 F.3d at 358). Rather, by the time the inquiry occurs, 
the court need only to look to Defendants’ records. See id. 
ii. Vagueness 
Defendants next argue the proposed class fails the threshold ascertainability requirement 
because the class “definition is too vague to enable the court to identify a relevant class.” ECF 
No. 126 at 15. This argument is broken into several parts, all of which are unavailing. 
Defendants first claim that Plaintiffs’ class is too vague to satisfy ascertainability because 
“Plaintiffs fail to identify by whom the UAC determination need be made, under what authority, 
and through which means of documentation in order to identify those individuals who ‘were 
determined to be a UAC.’” ECF No. 126 at 15. Plaintiff offers the following satisfactory 
response: “determination of UAC status for purpose this class action is clear. The 2013 Kim 

29 
 
Memo, which this action seeks to restore and enforce, specifies that ‘[i]n cases in which CBP or 
ICE has already determined that the applicant is a UAC, Asylum Offices will adopt that 
determination and take jurisdiction over the case.’” ECF No. 130 at 13 (citation omitted). The 
only exception is if HHS, CBP, or ICE vacate that determination through an affirmative act. ECF 
No. 91-4 at 2–3. Thus, there is no ambiguity as to the meaning of “were determined to be an 
Unaccompanied Alien Child[,]” ECF No. 117. Rather, it is clear that CBP and ICE’s 
determinations in the first instance that an individual is a UAC and HHS, CBP, and ICE’s 
affirmative acts to vacate those determinations, ECF 91-4 at 2–3, are the designations on which 
this element of the class definition will rely. 
Next Defendants argue that the class definition is vague because Plaintiffs failed to 
consider the impact of several different events on elements of the definition: (1) “how a USCIS 
determination that it did not have jurisdiction under the 2013 Memo” would affect the “pending” 
nature of the application; (2) how “an applicant’s change of UAC status would affect the 
‘pending’ nature of the application[;]” and (3) “how filing with the EOIR would affect the 
operative filing date in determining whether an individual was an UAC ‘on the date they filed 
their asylum application with USCIS.’” ECF No. 126 at 15. However, Defendants fail to explain 
what problems they envision and how those events would affect the ascertainability of Plaintiffs’ 
proposed class. 
Defendants’ final vagueness argument again centers on the term “pending” and whether 
Plaintiffs’ class definition uses the term in the same way that Defendants use it internally. Id. at 
16–18. However, the Court agrees with Plaintiffs that “pending” should be given its ordinary 
meaning, which is sufficiently clear: “an application is pending during that period between 
submission and action taken by USCIS.” ECF No. 130 at 14. Thus, Plaintiffs’ class definition is 

30 
 
not too vague to enable the court to readily identify members of the class. 
Therefore, Plaintiffs have satisfied their burden of demonstrating that their class 
definition meets the threshold “readily identifiable” requirement implicit in Rule 23. See Thorn, 
445 F.3d at 317 (“[P]laintiffs bear the burden . . . of demonstrating satisfaction of the Rule 23 
requirements” (quoting Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004))). 
2. Commonality 
 “To establish commonality, the party seeking certification must ‘demonstrate that the 
class members have suffered the same injury’ and that their claims ‘depend upon a common 
contention.’” Boyd v. Coventry Health Care Inc., 299 F.R.D. 451, 458 (D. Md. 2014) (quoting 
Dukes, 564 U.S. at 350). “The inquiry is not whether common questions of law or fact 
predominate, but only whether such questions exist.” Hewlett, 185 F.R.D. at 216. “Minor 
differences in the underlying facts of individual class members’ cases do not defeat a showing of 
commonality where there are common questions of law.” Id. “Thus, the commonality 
requirement is not a high bar[.]” Minter v. Wells Fargo Bank, N.A., 274 F.R.D. 525, 533 (D. Md. 
2011). 
Here, Plaintiffs seek adjudication of a single legal issue that is common to all class 
members: whether the 2019 Redetermination Memo is unlawful. ECF No. 91 at 41. This issue 
has several subsidiary questions: (i) whether the 2019 Redetermination Memo is arbitrary and 
capricious under the APA; (ii) whether the 2019 Redetermination Memo violates the TVPRA; 
(iii) whether the 2019 Redetermination Memo violates due process; (iv) whether Defendants 
failed to comply with notice-and-comment rulemaking, as required by the APA, by issuing the 
2019 Redetermination Memo; (v) whether Defendants’ policy of deferring to an EOIR 
determination as to whether an asylum applicant is a UAC, as outlined in Footnote 5 of the 2019 

31 
 
Redetermination Memo, is arbitrary and capricious; and (iv) whether Defendants’ adoption of 
the policy of deferral to EOIR determinations violated the APA. Id. ¶¶ 152–179. The 2019 
Redetermination Memo and the policies that it outlines, including deference to EOIR 
determinations, govern USCIS’s consideration of all asylum applications filed by applicants 
formerly determined to be UACs, including applications filed by proposed class members. All 
proposed class members are subject to, and fear, the same result: USCIS denying jurisdiction 
over their application based on policies that deviate from the policies outlined in the 2013 Kim 
Memo, on which the class members had previously relied. All proposed class members seek the 
same relief: a declaration that those policies are unlawful and an order permanently enjoining 
Defendants from implementing them. 
In contesting the commonality requirement, Defendants argue that: (1) the legality, in 
substance and in process, of the 2019 Redetermination Memo and its subsidiary questions are not 
common to the entire class because these “are not questions that currently affect any applicants 
who have filed with USCIS because USCIS had rescinded the 2019 Memo, retracted all its 
jurisdictional determinations under it, and has not applied it to any case since it was rescinded[,]” 
ECF no. 126 at 19; (2) “[w]hether USCIS may deny jurisdiction based on novel ‘affirmative 
acts’ such as EOIR jurisdictional determinations . . . is not a question common to all members of 
the proposed class because not all individuals so described have received EOIR jurisdictional 
determinations[,]” id.; (3) Plaintiffs’ proposed class does not satisfy commonality because 
“members of the proposed class are in a variety of procedural postures regarding their asylum 
applications[,]” id. at 20; and (4) the proposed class does not satisfy commonality because “a 
class action is not the appropriate method for resolving Plaintiffs’ alleged Due Process harms[,]” 
id. at 21. The Court disagrees. 

32 
 
Defendants’ first commonality argument can easily be discarded. This Court has already 
held that—regarding Plaintiffs’ requests that the Court declare the 2019 Redetermination 
Memorandum unlawful, that it be vacated, and that Defendants be enjoined from “enforcing or 
applying any aspect of the 2019 Redetermination Memo[,]” ECF No. 91 at 41–4—“Plaintiffs 
ha[ve] not obtained all of the relief they [seek.]” ECF No. 115 at 33. This was true before 
Plaintiffs filed the Amended Complaint, and especially after. Id. While Defendants now assert 
that the 2019 Redetermination Memo has been rescinded, ECF No. 126 at 19, it is not clear that 
agreeing to the injunction and providing notice on the USCIS website that USCIS may not rely 
on the 2019 Redetermination Memo to reject jurisdiction over any asylum application filed by a 
UAC is tantamount to a formal rescission that carries the force of law. See ECF No. 126-2 ¶ 10. 
Moreover, proposed class members are all still subject to the same risk that, before USCIS 
reviews their applications on its merits, an IJ will make a finding that they were not a UAC at the 
time of filing their asylum application—perhaps as a result of ICE advocacy—and thus USCIS 
will deny jurisdiction over their application while still maintaining that USCIS no longer relies 
on the 2019 Redetermination Memo to accept or reject jurisdiction over an applicant. 
Defendants’ second and third commonality arguments can be combined into a single 
argument that Plaintiffs’ lack commonality because they are “in a variety of procedural postures 
regarding their asylum applications.” ECF No. 126 at 20. That argument, too, is unavailing. 
“Commonality does not require class members to share all issues in the suit, but simply a single 
common issue,” and “[t]hus, factual differences among members’ cases will not preclude 
certification if the class members share the same legal theory.” Bullock v. Bd. of Educ. of 
Montgomery Cty., 210 F.R.D. 556, 560 (D. Md. 2002) (emphasis in original). Here, the 
purported differences among proposed class members are not determinative of the legal issues 

33 
 
that Plaintiffs present in the case. Again, all members of the proposed class are subject to, and 
fear, the same result—denial of their asylum application based on policies that were not lawfully 
promulgated and that depart from those on which they relied—and seek the same relief. Class 
members do not ask the Court to determine whether their asylum applications should be 
approved by USCIS, an inquiry to which the purported differences could be relevant. Rather, 
they simply request the opportunity to have their asylum applications considered by USCIS 
under lawfully promulgated policies, and they ask the Court to determine that Defendants’ 
current variations from the policies outlined in the 2013 Kim Memo, on which proposed class 
members relied, are unlawful in process and in substance. Such an outcome would not entitle 
proposed class members to any specific outcome in their asylum applications, and the fact that 
some class members may have their applications rejected for other reasons does not impact the 
Court’s assessment of this common legal issue. 
Defendants’ final commonality argument is that, under Supreme Court precedent as 
articulated in Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018), a class action is not the 
appropriate method for resolving Plaintiffs’ alleged due process harms because of the flexibility 
of the due process analysis combined with the proposed class’s inclusion of “UACs whose 
asylum applications USCIS would not have adjudicated on the merits even under the 2013 
Memo[.]” ECF No. 126 at 21–22. Defendants argue that the dissimilarities in the Plaintiffs’ 
proposed class “would require the Court to engage in fact-intensive analyses of each putative 
class member.” Id. at 22. However, this argument also fails to convince the Court. 
First, as Plaintiffs note, the Supreme Court in Jennings v. Rodriguez did not state a class 
action cannot be certified if it pursues a due process claim. ECF No. 130 at 19; see Jennings, 138 
S. Ct. at 852. Rather, it merely suggested that “some members of the certified class may not be 

34 
 
entitled to bond hearings[, i.e., the requested remedy,] as a constitutional matter.” Id. Moreover, 
the instant case is distinguishable. Here, regardless of whether all proposed class members would 
have had their asylum applications adjudicated on the merits under the 2013 Kim Memo, there is 
a single inquiry and a single relief requested; whether applying the 2019 Redetermination 
Memorandum and associated policies retroactively to asylum applicants who had already filed 
violates the Due Process clause, and, if so, whether the application of the Memorandum should 
be enjoined. This inquiry and relief does not “require the Court to engage in fact-intensive 
analyses of each putative class member.” ECF No. 126 at 22. 
3. Typicality 
“Typicality determines whether a sufficient relationship exists between the injury to the 
named plaintiff and the conduct affecting the class, so that the court may properly attribute a 
collective nature to the challenged conduct.” Hewlett, 185 F.R.D. at 217. “[T]he ‘plaintiff’s 
claim cannot be so different from the claims of absent class members that their claims will not be 
advanced by plaintiff’s proof of his own individual claim.’” Edmondson v. Eagle Nat’l Bank, 
336 F.R.D. 108, 116 (D. Md. 2020) (quoting Dieter v. Microsoft Corp., 436 F.3d 461, 466 (4th 
Cir. 2006)). A “claim may differ factually and still be ‘typical’ of the claims of class members if 
it arises from the same event or practice or course of conduct that gives rise to the claims of other 
class members[.]” Bullock, 210 F.R.D. at 560 (internal quotation marks omitted); see Ealy v. 
Pinkerton Gov’t Servs., Inc., 514 F. App’x 299, 305 (4th Cir. 2013) (internal citations omitted) 
(“Although a representative’s claims and the claims of other members of the class need not be 
‘perfectly identical or perfectly aligned,’ the representative’s pursuit of his own interests ‘must 
simultaneously tend to advance the interests of the absent class members.’”). As Defendants 
note, the inquiries under the typicality and commonality requirements of Rule 23(a) “tend to 

35 
 
merge.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). 
Defendants argue that typicality has not been met because “jurisdiction has not yet been 
determined for many of those described in the proposed class” and “[w]ithout jurisdictional 
decisions, the Plaintiffs cannot assert that the 2019 Memo has been applied to them.” ECF No. 
126 at 22. Defendants further argue that because Defendants “have [allegedly] retracted 
decisions applying the 2019 Memo to decline USCIS jurisdiction for all of the named Plaintiffs 
as well as for all applications pending before it” and have instead “applied the 2013 Memo to all 
of these cases[,]” Plaintiffs cannot assert that the 2019 Memo has been applied to them. Id. at 
22–23. Finally, Defendants argue that the different procedural postures of the proposed class 
members defeat typicality. Id. at 23. None of these arguments are persuasive. 
As Plaintiffs point out, and as already analyzed in the Court’s commonality discussion, 
“[r]egardless of their individual differences, each prospective class member pursues the same 
claims for the same result[,]” ECF No. 130 at 20–21: a declaration that the 2019 Redetermination 
Memo and associated policies are unlawful, both in substance and in process, and an order 
enjoining the application of those policies. “Whether a prospective class member has already 
received a jurisdictional denial based on the 2019 Redetermination Memorandum or has a 
pending application but meets the criteria that would warrant denial under the 2019 
Redetermination memorandum, each has the same unified interest in not having that policy 
applied to their asylum application.” ECF No. 130 at 21. This is true even if some proposed class 
members might eventually have their asylum applications denied for other reasons. Thus, 
typicality is met. See Edmondson, 336 F.R.D. at 1177 (finding typicality despite potential 
differences in class members’ claims, as “the kickback scheme described by Plaintiffs would be 
violative of RESPA (if proven), regardless of whether an individual class member had engaged 

36 
 
in first-time financing or refinancing”).9 
4. Other Factors 
Although Defendants do not challenge numerosity, fair representation, or whether the 
class meets the requirements of Rule 23(b)(2), the court has an independent obligation to ensure 
that these prerequisites are met. Thorn, 445 F.3d at 318 (“district courts must conduct a rigorous 
analysis to ensure compliance with Rule 23, paying careful attention to the requirements of [that] 
Rule” (internal quotation marks and citations omitted)). 
The proposed class meets the numerosity requirement. “To satisfy the numerosity 
requirement, the proposed class must be so numerous that ‘joinder of all members is 
impracticable.’” Amaya v. DGS Constr., LLC, 326 F.R.D. 439, 446 (D. Md. 2018) (quoting Fed. 
R. Civ. P. 23(a)(1)). The Fourth Circuit has said that 74 members is “well within the range 
appropriate for class certification,” Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 
1984), and has upheld the certification of a class with as few as 18 members, Cypress v. Newport 
News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). USCIS records 
reflect that, at the end of March 2019, there were 27,106 pending asylum cases filed under the 
initial jurisdiction provision of the TVPRA while applicants were in removal proceedings, ECF 
No. 117-1 at 11 (citing U.S. Citizenship & Immigration Servs., MPA and PRL Report – Fiscal 
Year 2019 (2019), https://www.uscis.gov/outreach/asylum-division-quarterly-stakeholder-
meeting-10; U.S. Citizenship & Immigration Servs., Asylum Statistics Key (2019), 
http://wwww.uscis.gov/outreach/asylum-division-quarterly-stakeholder-meeting-10), and, 
according to a public statement by USCIS, it is likely that a substantial portion of these 
 
9 To the extent Defendants argue that Plaintiffs’ proposed class fails to meet the requirements of typicality for the 
reasons Defendants’ articulated regarding commonality, those arguments fail for the reasons discussed in the 
Commonality section. See ECF No. 126 at 22. 

37 
 
applications involve UACs who have been placed with one or more parents. Id. (citing 
Memorandum from John Kelly, Secretary of the U.S. Dep’t of Homeland Sec. 10 (Feb. 20, 
2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-
Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf 
(“Approximately 60% of minors initially determined to be ‘unaccompanied alien children’ are 
placed in the care of one or more parents”)). The thousands of UACs who submitted these 
applications come from throughout the country and joinder of all members is impracticable.10 
There is adequate representation under Fed. R. Civ. P. 23(a)(4). “Representation is 
adequate if: (1) the named plaintiffs’ interests are not opposed to those of other class members, 
and (2) the plaintiffs’ attorneys are qualified, experienced and able to conduct the litigation.” 
Planned Parenthood of Md., Inc., 2020 WL 3893241 at *7. Here, there does not appear to be any 
conflict between the named plaintiffs and the other class members, see ECF No. 117-4; ECF No. 
117-5; ECF No. 117-6; ECF No. 117-8, and counsel is qualified and experienced, see ECF No. 
117-9; ECF No. 117-10; ECF No. 117-11; ECF No. 117-12; ECF No. 117-13; ECF No. 117-14; 
ECF No. 117-15; ECF No. 117-16. 
Finally, Rule 23(b)(2) is met. Rule 23(b)(2) provides that a class action may be 
maintained if “the party opposing the class has acted or refused to act on grounds generally 
applicable 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 
 
10 At the very least, as of October 9, 2019, “[t]he Asylum Offices have identified 192 cases where the 2019 memo 
was applied.” ECF No. 77-2 at 4. Moreover, “[t]he A files [were] being retrieved still [and thus the Government 
acknowledged that the] 192 number may therefore rise a bit.” Id. These proposed class members alone would satisfy 
the requirements of numerosity. 

38 
 
members or as to none of them.” Dukes, 564 U.S. at 360 (citation and internal quotation marks 
omitted); see also Fed. R. Civ. P. 23, Advisory Committee Note to 1966 Amendment of 
Subdivision (b)(2) (“Action or inaction is directed to a class within the meaning of [Rule 
23(b)(2)] even if it has taken effect or is threatened only as to one or a few members of the class, 
provided it is based on ground which have general application to the class.”). Because the 2019 
Redetermination Memo and associated policies apply generally to the class, and the requested 
relief—declaring the Memorandum and policy unlawful under the APA and/or the Due Process 
clause and preventing Defendants from applying those policies—“would provide the same relief 
to all class members[,]” Plaintiffs’ proposed class meets the requirements of Fed. R. Civ. P. 
23(b)(2). Planned Parenthood of Md., Inc., 2020 WL 3893241 at *7 (quoting Healthy Futures of 
Texas v. Dep’t of Health & Human Servs., 326 F.R.D. 1, 8 (D.D.C. 2018)). 
Plaintiffs’ proposed class meets the threshold “readily identifiable” requirement, satisfies 
all four parts of Rule 23(a), and satisfies Rule 23(b)(2), and thus this Court will grant Plaintiffs’ 
Motion for Class Certification and Appointment of Class Counsel. 
B. Plaintiffs’ Motion to Ame nd the Preliminary Injunction 
 Plaintiffs filed a Motion to Amend the Pr eliminary Injunction pursuant to Rule 54(b). 
ECF No. 124. Specifically, Plaintiffs request that the Court “enjoin Defendants from engaging in 
three practices that threaten to irreparably harm prospective class members before the Court has 
the opportunity to rule on the merits in this case[,]” ECF No. 124 at 1: (1) USCIS’s deference to 
IJ’s jurisdictional determinations, ECF No. 124-1 at 8–10; (2) ICE’s advocacy against USCIS 
jurisdiction in removal proceedings, ECF No. 124-1 at 10–11; and (3) USCIS’s treatment of a 
mere determination or notation that a child has been reunited with a parent as an “affirmative 
act,” ECF No. 124-1 at 11–13. 

39 
 
Under Federal Rule of Civil Procedure 54(b), “any order . . . may be revised at any time 
before the entry of a judgment adjudicating all the claims and all the parties’ rights and 
liabilities.” Fed. R. Civ. P 54(b). Accordingly, when appropriate, a district court retains the 
power to reconsider and modify its interlocutory judgments at any time before final judgment. 
Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003). Resolution of 
the motion is “committed to the discretion of the district court,” id. at 515, and “the goal is to 
reach the correct judgment under law,” Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 
612, 618 (D. Md. 2013) (citation and quotation marks omitted). 
The Fourth Circuit has not articulated a standard for review of a Rule 54(b) motion. 
CytImmune Scis., Inc. v. Paciotti, No. PWG-16-1010, 2016 WL 6879942, at *1 (D. Md. Nov. 22, 
2016). Nevertheless, this court frequently looks to the standard for Rule 59(e) when considering 
Rule 54(b) motions. Id. (citing Cezair v. JPMorgan Chase Bank, N.A., No. CIV.A. DKC-13-
2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014)); see also Harper v. Anchor Packing 
Co., No. CIV.A. GLR-12-460, 2014 WL 3828387, at *1 (D. Md. Aug. 1, 2014), aff’d sub nom. 
Hurley v. CBS Corp., 648 F. App’x 299 (4th Cir. 2016) (looking to Rule 59(e) standard); Potter 
v. Potter, 199 F.R.D. 550, 552 n.1 (D. Md. 2001) (applying Rule 59(e) standard). Aligning with 
the Rule 59(e) standard, this Court has held that granting a Rule 54(b) motion is appropriate if 
“(1) there has been an intervening change in controlling law; (2) there is additional evidence that 
was not previously available; or (3) the prior decision was based on clear error or would work a 
manifest injustice.” Scalia v. Peters, No. GLR-18-2933, 2020 WL 4734414, at *1 (D. Md. Aug. 
14, 2020) (internal quotation marks and citation omitted); see also Potter, 199 F.R.D. at 552 n.1 
(citations omitted). “Although there may be many valid reasons to reconsider an order, ‘a motion 
to reconsider is not a license to reargue the merits or present new evidence’ that was previously 

40 
 
available to the movant.” Carrero v. Farrelly, No. CV JKB-16-3939, 2018 WL 1761957, at *2 
(D. Md. Apr. 12, 2018) (internal citation omitted). “A motion to modify a preliminary injunction 
is meant only to relieve inequities that arise after the original order.” Brightview Grp., LP v. 
Teeters, No. CV SAG-19-2774, 2020 WL 4003168, at *5 (D. Md. July 15, 2020) (emphasis in 
original) (quoting Favia v. Indiana Univ. of Pa., 7 F.3d 332, 338 (3d Cir. 1993)). “[M]odification 
[of an injunction] is not warranted if the court determines that the moving party is relying upon 
events that actually were anticipated when the decree was entered.” 11A Charles Alan Wright, et 
al., Federal Practice and Procedure § 2961 (3d ed. 2010); see also Merrell-Nat’l Labs., Inc. v. 
Zenith Labs., Inc., 579 F.2d 786, 791–92 (3d Cir. 1978) (affirming a trial court’s denial of a 
motion to modify a preliminary injunction because the evidence presented “could have been 
produced on the original motion for an injunction”). 
The purpose of a preliminary injunction is to “protect the status quo and to prevent 
irreparable harm during the pendency of a lawsuit[,] ultimately to preserve the court's ability to 
render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 
517, 525 (4th Cir. 2003). The grant of a preliminary injunction is an “extraordinary remedy that 
may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Dewhurst 
v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quoting Winter v. Nat. Res. Def. 
Council, 555 U.S. 7, 22, 129 S.Ct. 365, 376 (2008)) (internal quotation marks omitted). Thus, the 
burden placed upon Plaintiffs to state a claim for a preliminary injunction is high. 
The Supreme Court and the Fourth Circuit recognize that, in order to receive a 
preliminary injunction, a plaintiff must establish: 
[(1)] he is likely to succeed on the merits, [(2)] that he is likely to suffer 
irreparable harm in the absence of preliminary relief, [(3)] that the balance of 
equities tips in his favor, and [(4)] that an injunction is in the public interest. 
Dewhurst, 649 F.3d at 290. All four requirements must be met in order for a preliminary 

41 
 
injunction to be granted. See id. However, the final two factors generally “merge when the 
Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). 
As discussed above, Plaintiffs have requested the Court essentially expand the current 
injunction to include three of Defendants’ alleged practices and policies. The Court will analyze 
each policy separately. 
 1. USCIS’s Deference to IJ’s Jurisdictional Determinations 
 a. Reconsideration is Appropriate under Rule 54(b) 
Plaintiffs argue that, under Rule 54(b), it is appropriate for this Court to amend its 
preliminary injunction order and enjoin defendants from deferring to IJs’ jurisdictional 
determinations because new evidence “indicates that more specific prohibitions are required to 
protect prospective class members while this case is still pending.” ECF No. 124-1 at 15. 
Additionally, Plaintiffs argue that—since this Court initially entered its injunction to “protect the 
status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to 
preserve the court’s ability to render a meaningful judgment on the merits[,]” ECF No. 124-1 at 
15 (quoting ECF No. 54 at 7)—it would be manifestly unjust for some proposed class members, 
“who would share in the relief afforded by a favorable resolution of the claims in the Amended 
Complaint, to be excluded from the preliminary injunction and thus potentially subject to 
removal before those claims could proceed to judgment.” ECF No. 124-1 at 15. 
Defendants respond that, “[a]s a threshold matter, this motion . . . should be denied 
because no new evidence has become available since the preliminary injunction was entered[.]” 
ECF No. 127 at 14. According to Defendants, “the IJ deferral practice predated the 2019 Memo, 
[and thus] its application cannot be considered ‘new evidence’ making amendment to the 
preliminary injunction [in]appropriate before the resolution of this case on the merits.” ECF No. 

42 
 
127 at 15. Rather, Defendants characterize Plaintiffs’ Motion as simply “repackage[ing] a 
request this Court has already denied[.]” Id. Defendants, however, do not address Plaintiffs’ 
argument that this Court should amend the preliminary injunction in order to prevent a manifest 
injustice. 
First, the Court disagrees with Defendants that Plaintiffs’ motion is simply a repackaged 
Motion to Enforce. As Plaintiffs’ note, this Court denied Plaintiffs’ Motion to Enforce “without 
prejudice . . . to Plaintiffs’ right to move for emergency equitable relief to enjoin enforcement of 
the IJ deferral policy if Plaintiffs believe such enforcement threatens impending irreparable 
harm.” ECF No. 134 at 6 (quoting ECF No. 115 at 24–25). Moreover, this Court, in denying 
Plaintiffs’ Motion to Enforce, declined to decide whether the IJ deferral policy was consistent 
with the TVPRA, Defendants’ past practice, and the APA because it would “narrow [the] issues 
presented by the Amended Complaint without the benefit of the record and briefing that 
litigating the Amended Complaint would entail.” ECF No. 115 at 24. The current Motion elicits 
a different analysis; resolving Plaintiffs’ Motion to Amend the Preliminary Injunction only 
requires the Court to find that Plaintiffs are likely to succeed on the merits and that proposed 
class members are likely to suffer irreparable harm if Defendants’ policy is not enjoined. See 
Dewhurst, 649 F.3d at 290. 
With respect to Plaintiffs’ two proposed bases for a Rule 54(b) Motion—the availability 
of new evidence and the need to prevent a manifest injustice—the Court finds that, to the extent 
Plaintiffs can satisfy each element of the preliminary injunction standard, amending the 
preliminary injunction to enjoin the Defendants’ policy of deference to IJs’ jurisdictional 
determinations is necessary to correct a manifest injustice. “The exception for manifest injustice 
appears to be concerned essentially with fairness in the administrative process[,]” Kasey v. 

43 
 
Sullivan, 3 F.3d 75, 79 (4th Cir. 1993) (discussing the standard for Fed. R. Civ. P. 59(e), which 
this court has used to guide the analysis under Rule 54(b)), and this Court agrees with Plaintiffs 
that it would be manifestly unfair for some proposed class members, “who would share in the 
relief afforded by a favorable resolution of the claims in the Amended Complaint, to be excluded 
from the preliminary injunction and thus potentially subject to removal before those claims could 
proceed to judgment.”11 ECF No. 124-1 at 15. Because the Court finds that this Motion is 
properly brought under Rule 54(b) to prevent a manifest injustice, it is not necessary to address 
the parties’ dispute regarding whether there is “new evidence.” 
b. Plaintiffs are Entitled to a Preliminary Injunction 
Despite this Court’s finding that a Rule 54(b) Motion is proper, to be entitled to the relief 
they request, Plaintiffs still must show that enjoining USCIS’s deferral policy is appropriate 
under the preliminary injunction standard. Plaintiffs must show they are likely to succeed on the 
merits—i.e., it is likely that USCIS’s deferral policy is unlawful—and that proposed class 
members are likely to suffer irreparable harm in the absence of an injunction. 
i. Likelihood of Success on the Merits 
 The grant of a preliminary injunction is an “extraordinary remedy that may only be 
awarded upon a clear showing that the plaintiff is entitled to such relief.” Dewhurst, 649 F.3d at 
290 (quoting Winter, 555 U.S. at 22). Thus, the burden placed upon Plaintiffs to show that each 
requirement of a preliminary injunction is met is high. Consequently, merely “providing 
sufficient factual allegations to meet the [Fed. R. Civ. P.] 12(b)(6) standard of Twombly and 
 
11 In alignment with the legal authority, this inequity did not arise until after the initial preliminary injunction and it 
does not appear that Plaintiffs anticipated this result at the time of the original injunction. Brightview Grp., LP, 2020 
WL 4003168 at *5; 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2961. For example, USCIS 
reopened E.D.G.’s case based on this Court’s preliminary injunction on August 5, 2019, only for USCIS to again 
reject initial jurisdiction over E.D.G.’s asylum application “on the grounds that the ‘Immigration Judge made an 
affirmative act to terminate UAC status on October 10, 2018’ (almost 10 months after he filed the application with 
the USCIS).” ECF No. 124-1 at 9–10. 

44 
 
Iqbal” does not show a likelihood of success on the merits. Allstate Ins. Co. v. Warns, No. CIV. 
CCB-11-1846, 2012 WL 681792, at *14 (D. Md. Feb. 29, 2012). Moreover, “[c]ourts have 
declined to issue a preliminary injunction when there are significant factual disputes.” Chattery 
Int’l, Inc. v. JoLida, Inc., No. CIV. WDQ-10-2236, 2011 WL 1230822, at *9 (D. Md. Mar. 28, 
2011); see also Torres Advanced Enter. Sols., LLC v. Mid-Atl. Prof’ls Inc., No. PWG-12-3679, 
2013 WL 531215, at *3 (D. Md. Feb. 8, 2013). Defendants articulate two arguments why 
Plaintiffs have not met this high bar: (1) Plaintiffs are unlikely to succeed on the merits because 
“the IJ deferral practice predated and arose separately from the 2019 Memo[,]” ECF No. 127 at 
17; and (2) the BIA’s ruling in MACO dictated that “USCIS had no choice but to defer to an IJ 
assessment that a person was not a UAC on her filing date when an IJ made such an 
assessment[,]” id. at 17–18. 
 As to the first argument, while there is no disputing that the deferral policy was 
memorialized in Footnote 5 of the 2019 Redetermination Memo, the parties disagree as to when 
the policy first changed. Importantly, however, it is also undisputed that this deferral practice 
was binding on “any USCIS decision” regarding jurisdiction over an asylum case, ECF No. 91-1 
at 2 (emphasis in original), and was adopted, at some juncture, without the benefit of notice-and-
comment rulemaking. 
 As explained in this Court’s Memorandum Op inion granting Plaintiffs’ original Motion 
for a TRO, under the APA, legislative rules must go through notice-and-comment rulemaking 
before they become effective. See 5 U.S.C. § 553(a)–(c); Children’s Hosp. of the King’s 
Daughters, Inc. v. Azar, 896 F.3d 615, 619–20 (4th Cir. 2019). This requirement does not apply 
to interpretive rules. Children’s Hosp, 896 F.3d at 620. A rule is “legislative,” rather than 
“interpretive,” if it “effects a substantive change in existing law or policy.” Id. When a rule 

45 
 
affects “individual rights and obligations” it is “a substantive rule—or a ‘legislative-type rule.’” 
Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (internal citation omitted) (quoting Morton v. 
Ruiz, 415 U.S. 199, 232, 236 (1974)). Additionally, legislative rules “are rules issued by agencies 
pursuant to statutory authority and which implement the statute[.]” Chen Zhou Chai v. Carroll, 
48 F.3d 1331, 1340 (4th Cir. 1995). Because Defendants’ policy of deferral, regardless of when 
it was adopted, did not go through the notice-and-comment procedure, the question for the Court 
is whether it is a legislative or interpretive rule. 
 Plaintiffs are likely to succeed in demonstrati ng the deferral policy is legislative in nature 
because the policy—regardless of whether it was adopted before the 2019 Redetermination 
Memo—is inconsistent with prior agency policy, as articulated in the 2013 Kim Memo, and thus 
caused a “substantive change in existing law or policy.” Children’s Hosp, 896 F.3d at 620. 
Pursuant to the deferral policy, USCIS officers must now defer to an IJ’s jurisdictional 
determination, if one exists, even if that determination was made after the UAC filed their 
asylum application with the USCIS. This appears to be inconsistent with the clear instructions in 
the 2013 Kim Memo that “[i]n cases in which CBP or ICE [have] already determined the 
applicant is a UAC” and there is not “an affirmative act by HHS, ICE or CBP to terminate the 
UAC finding before the applicant filed the initial application for asylum, Asylum Offices will 
adopt the previous DHS determination that the applicant was a UAC.” ECF No. 91-4 at 3 
(emphasis added). Under the deferral policy, E.D.G. or similar individuals, who under the plain 
language of the 2013 Kim Memo would have had their asylum application considered by USCIS, 
where techniques and procedures sensitive to the needs and challenges of UACs are employed, 
ECF No. 54 at 2–3, are now at risk of USCIS denying jurisdiction in deference to an IJ 
determination. Thus, Plaintiffs will likely be able to establish that the USCIS’s policy of 

46 
 
deferring to IJs’ jurisdictional determinations is a change in policy and should have gone through 
notice-and-comment. 
 Defendants’ argument that the BIA ruling in MACO requires deference is also 
unpersuasive. As Plaintiffs point out, this argument presents “an entirely new position that is 
contradicted by the 2019 Redetermination Memorandum itself and Defendants’ earlier positions 
in this litigation.” ECF No. 134 at 9. The 2019 Redetermination Memo explains: “The BIA’s 
decision [in MACO] . . . does not divest USCIS of its authority to determine whether an 
application before it was filed by a UAC, such that USCIS has jurisdiction over it. Rather, both 
the Immigration Judge and USCIS have authority to make this jurisdictional determination.” 
ECF No. 91-1 at 3; see also ECF No. 128-31 at US-000282 (agenda for May 2019 USCIS 
Asylum Division Quarterly Meeting, stating MACO “addresses immigration judge 
determinations as to whether an asylum application was filed by a UAC” but “does not address 
USCIS determinations about its own jurisdiction. USCIS continues to make its jurisdictional 
determinations under its own procedures.”). Thus, Defendants argument that MACO “is binding 
on USCIS and requires that, where an IJ has determined that the TVPRA’s jurisdictional 
provision . . . does not apply, USCIS must defer to that determination[,]” ECF No. 127 at 20, 
fails.
12 
ii. Irreparable Harm 
Plaintiffs have also met their burden to demonstrate that USCIS’s policy of deferring to 
IJs’ jurisdictional determinations will cause irreparable harm if this Court does not grant 
Plaintiffs’ Motion to Amend the Preliminary Injunction. Plaintiff E.D.G.’s precarious position is 
 
12 Because Plaintiffs’ are likely to succeed on their claim that USCIS’s policy of deferring to IJs’ jurisdictional 
determinations violates the notice-and-comment requirements of the APA, it is unnecessary to consider whether 
Plaintiffs’ other claims that the deferral policy is unlawful are meritorious. 

47 
 
demonstrative. “E.D.G.’s appeal of his asylum denial is pending before the BIA, and if the BIA 
dismisses his appeal, he will have a final, enforceable removal order[,]” and may be removed 
before this Court is able to rule on the merits of the parties’ cross-motions for summary 
judgment. ECF No. 124-1 at 19. Removal constitutes irreparable harm, see Sanchez v. 
McAleenan, No. GJH-19-1728, 2020 WL 607032, at *7 (D. Md. 2020); Tefel v. Reno, 972 F. 
Supp. 609, 619 (S.D. Fla. 1997), and, in the absence of preliminary injunctive relief, proposed 
class members similarly situated to E.D.G. will likely continue to be removed and will later have 
a difficult time returning to the United States even if Plaintiffs and the proposed class receive a 
favorable ruling. A preliminary injunction will therefore maintain the status quo and ensure that 
asylum applicants whose applications allegedly should have been reviewed on the merits by 
USCIS under the 2013 Kim Memo can actually benefit from any final ruling in their favor. 
Defendants’ insistence that “there is no immediate risk of removal[,]” ECF No. 127 at 7, does 
not convince the Court otherwise. Defendants fail to offer any timeline for how far E.D.G. might 
be from the conclusion of removal proceedings and do not contest the declaration of Miguel 
Mariscal, stating, “I anticipate that within weeks of the BIA decision ICE would issue a ‘bag and 
baggage’ letter requiring E.D.G. to report to ICE with his belongings for removal to 
Honduras[,]” ECF No. 124-3 ¶ 21; see also ECF No. 124-1 at 19–20. ECF No. 134 at 16–17. 
In addition, Defendants do not dispute that some proposed class members, who delayed 
filing their asylum applications in reliance on Defendants’ 2013 Kim Memo, may lose their 
opportunity to pursue asylum entirely if USCIS defers to an IJ determination that the class 
member was not a UAC at the time of the application. As discussed in the background section of 
this Memorandum Opinion, UACs are exempted from the one-year bar for filing an asylum 
application. If an IJ determines a proposed class member was not a UAC at the time of filing his 

48 
 
or her asylum application, accepts jurisdiction over the application, denies such application 
because the application was filed past the one year mark, and USCIS then defers to the IJ’s 
jurisdictional determination, that proposed class member will lose their opportunity to pursue 
asylum entirely. 
iii. Balance of Equities 
Analysis of the last two factors—the balance of equities and the public interest—merge 
here because the Government is the opposing party. Nken, 556 U.S. at 435. Substantially 
identical to this Court’s conclusion in its Memorandum Opinion granting the original TRO, 
“[t]here is no evidence in the existing record that either Defendants or children applying for 
asylum will be harmed by pressing pause on enforcing [USCIS’s policy of deferral to IJ’s 
jurisdictional determination,] . . . but Plaintiffs have shown that the new policy will cause them 
harm.” ECF No. 54 at 15. Thus, at this time, the balance of the harms favors a preliminarily 
enjoining USCIS’s deferral policy. 
The Court grants Plaintiffs’ Motion to Amend the Preliminary Injunction to the extent 
they request that this Court enjoin USCIS’s policy of deferring to IJ jurisdictional 
determinations. 
2. ICE’s Advocacy Against USCIS Juri sdiction in Removal Proceedings 
 a. Reconsideration is Appropriate under Rule 54(b) 
 Plaintiffs’ Motion to Amend the Preliminary Injunction in order to enjoin ICE’s advocacy 
against USCIS jurisdiction in removal proceedings is also properly brought under Rule 54(b) 
because an amendment to this Court’s preliminary injunction will prevent a manifest injustice. 
See Scalia v. Peters, 2020 WL 4734414, at *1. 
Plaintiffs argue ICE should not be able to implement policies that this Court has enjoined 

49 
 
by advocating against USCIS jurisdiction in removal proceedings in circumstances where USCIS 
should accept initial jurisdiction over the asylum application under the 2013 Kim Memo. This 
Court agrees and finds that it would be manifestly unjust to require Plaintiffs and proposed class 
members to defend their asylum application in an adversarial setting—rather than the non-
adversarial forum that the TVPRA promises them—because of ICE’s implementation of policies 
that this Court has enjoined. 
b. Plaintiffs are Entitled to a Preliminary Injunction 
i. Likelihood of Success on the Merits 
Plaintiffs’ claim regarding ICE’s advocacy is intertwined with behavior by Defendants 
that this Court has already enjoined. Thus—with regard to the success on the merits element of 
the preliminary injunction standard—Plaintiffs’ request that the Court amend the preliminary 
injunction to enjoin ICE from advocating in immigration court for IJs to exercise jurisdiction 
over asylum applications filed by UACs cannot be analytically separated from Plaintiffs’ 
previously granted request that this Court enjoin USCIS’s implementation of the 2019 
Redetermination Memo and Plaintiffs’ most recent request that this Court enjoin USCIS’s 
deferral to IJ jurisdictional determinations. As this Court recognized in its Memorandum Opinion 
denying Defendant’s Motion to Dismiss the Amended Complaint, “Plaintiffs have set forth an 
APA claim against ICE and Acting Director Albence based on their implementation of those 
policies[.]” ECF No. 115 at 39 (emphasis added). In short, Defendants should not advocate for 
outcomes that are inconsistent with the Court’s injunction. Thus, if Plaintiffs are likely to 
succeed on the merits as to their claims regarding USCIS’s application of the 2019 
Redetermination Memo and the deferral policy, then Plaintiffs are likely to succeed on their 

50 
 
claim against ICE as well.13 
 ii. Irreparable Harm 
 The Court finds convincing Plaintiffs’ argument that ICE’s advocacy against USCIS 
jurisdiction in removal proceedings will result in irreparable harm and Defendants provide no 
rebuttal. If an IJ accepts ICE’s arguments in immigration court, presented in opposition to the 
policy of its sister agency within DHS, and decides that it has jurisdiction to evaluate a UAC’s 
asylum application, the UAC must defend his asylum claim in immigration court, subject to 
cross-examination and without the benefit of USCIS’ child-sensitive and trauma-informed 
interview techniques. ECF No. 124-1 at 22–23. Even if the UAC later succeeds in bringing his 
asylum application before USCIS, the experience of reliving his trauma in the face of hostile 
interrogation cannot be erased. Accordingly, regardless of whether this Court orders USIC not to 
defer to IJ jurisdictional determinations—which it does here—ICE’s advocacy may still result in 
members of the proposed class suffering irreparable harm. Thus, Plaintiffs have satisfied the 
irreparable harm element as required by the preliminary injunction standard. 
 iii. Balance of Equities 
 Again this Court’s reasoning in its Memorandum Opinion granting the TRO applies with 
equal force here: “[t]here is no evidence in the existing record that either Defendants or children 
applying for asylum will be harmed by pressing pause on [ICE’s advocacy against USCIS in 
removal proceedings,] . . . but Plaintiffs have shown that the new policy will cause them harm.” 
ECF No. 54 at 15. Thus, the balance of equities tips in favor of amending this Court’s 
 
13 Defendants’ sole argument against this Court enjoining ICE’s advocacy against USCIS jurisdiction is that 
Plaintiffs are attempting to add a named plaintiff, J.S.C.G., without amending the Amended Complaint and that, 
regardless, the new Plaintiff does not have standing. ECF No. 127 at 12–14. However, J.S.C.G.’s circumstances are 
solely illustrative of allegations that are already explicitly pled in the Amended Complaint, ECF No. 91 ¶ 108, the 
dismissal of which this Court has already denied. ECF No. 115 at 38–40. 

51 
 
preliminary injunction. 
 The Court grants Plaintiffs Motion to Amend the Preliminary Injunction in so far as they 
request the injunction of ICE’s advocacy against USCIS jurisdiction in removal proceedings. 
3. USCIS’s Policy of Denying Juri sdiction over a Child’s Asylum 
Application Based on an Alleged “Affirmative Act” Involving a Mere 
Notation that the Child Has Been Reunited with a Parent or Legal 
Guardian or Has Turned 18 Years Old 
 The 2013 Kim Memo instructed USCIS asylum officers to accept initial jurisdiction over 
asylum applications filed by those previously determined to be a UAC, “[u]nless there was an 
affirmative act by HHS, ICE, or CBP to terminate the UAC finding before the applicant filed the 
initial application for asylum.” ECF No. 91-4 at 3 (emphasis added). In particular, “even if there 
appears to be evidence that the applicant may have turned 18 years of age or may have reunited 
with a parent or legal guardian since the CBP or ICE determination[,]” the 2013 Kim Memo 
directed asylum officers to accept initial jurisdiction. Id. The 2019 Redetermination Memo 
changed this policy by directing asylum officers to re-examine UAC status in all cases and to 
decline initial jurisdiction if they concluded that the asylum applicant had turned 18 or been 
reunited with a parent or legal guardian at the time they filed their asylum application. See ECF 
No. 91-1 at 4–5. This Court has since enjoined USCIS’s implementation of the 2019 
Redetermination Memo. ECF No. 71. 
However, Plaintiffs now argue that USCIS continues to reject jurisdiction over asylum 
applications based on a child’s reunification with a parent or legal guardian or attainment of 18 
years of age, ECF No. 124-1 at 24, and does so on the theory that “an agent’s notation in a 
government record or database reflecting the child’s age or reunification constitutes an 
‘affirmative act . . . to terminate the UAC finding before the applicant filed the initial application 
for asylum.’” Id. (quoting ECF No. 91-4 at 3). Plaintiffs’ request to enjoin this particular practice 

52 
 
fails primarily because it asserts a claim not made in its Amended Complaint. 
In the Motion to Amend the Preliminary Injunction, Plaintiffs question whether 
Defendants are violating the 2013 Kim Memo by treating documents where evidence of the 
UAC’s age or reunification with parents has been recorded as an “affirmative act.” ECF No. 124-
1 at 24. In essence, therefore, Plaintiffs disagree with USCIS’s construction of the 2013 Kim 
Memo, not the validity of the 2019 Redetermination Memo that is at issue in the Amended 
Complaint. The 2013 Kim Memo does, in fact, permit denial of jurisdiction by UCIS in the event 
of an affirmative act by HHS, ICE, or CBP to terminate the UAC finding. A notation made in the 
system may or may not qualify as such an act, but that is a separate question from whether the 
policy has changed as a result of the 2019 Redetermination Memo. Plaintiffs may not raise new 
claims through motions without amending their complaint. See Harris v. Reston Hosp. Ctr., LLC, 
523 F. App’x 938, 946 (4th Cir. 2013); Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 
F.3d 324, 336 (4th Cir. 2009); Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 758 n.5 (D. Md. 
2015). 
Plaintiffs try to skirt the deficiency of their Amended Complaint by arguing that the 
practice at issue “is an application of the 2019 Redetermination Memorandum through a 
litigation-inspired reinterpretation of the 2013 Kim Memo’s narrow affirmative-act exception.” 
ECF No. 134 at 13 (emphasis in original). The Court is not convinced. Thus, this Court denies 
Plaintiffs’ Motion to Amend the Preliminary Injunction to the extent Plaintiffs request the Court 
to enjoin USCIS’s policy of denying jurisdiction over a child’s asylum application based on an 
alleged “affirmative act” involving a mere notation that the child has been reunited with a parent 
or legal guardian or has turned 18 years old. In anticipation of this result, Plaintiffs have 
requested “leave to amend [their complaint] to remove any doubt that USCIS’s dramatic 

53 
 
expansion of the ‘affirmative act’ exception from the 2013 Kim memo is at issue here, as it 
effectively seeks to implement the same policy as the 2019 Redetermination memorandum in an 
equally unlawful manner.” ECF No. 134 at 15. The Court grants this request and Plaintiffs may 
file a second amended complaint within 14 days. 
C. Joint Motion to Stay Summary Judgment Schedule 
Pursuant to the Court’s June 29, 2020 scheduling order, summary judgment briefing was 
scheduled to begin on August 21, 2020 and to be completed on October 16, 2020. ECF No. 135. 
In accordance with the June 29 scheduling order, Defendants produced the administrative record 
on July 24, 2020. Id. After reviewing the produced record, Plaintiffs raised issues with 
Defendants regarding what Plaintiffs believe to be deficiencies with the administrative record as 
produced. Id. The parties filed a Joint Motion to Stay Summary Judgment Schedule on August 
10, 2020, requesting the Court to stay briefing on the parties’ motions for summary judgment 
pending resolution of the parties’ disputes regarding the contents of the administrative record. 
ECF No. 135-1. Defendants filed an amended administrative record with the Court on October 2, 
2020. ECF No. 139 at 2. Plaintiffs, however, continue to believe that significant deficiencies 
remain. Id. The parties have not yet come to an agreement and believe that the Court’s 
involvement may be necessary. Id. 
The Court grants the parties’ Joint Motion to Summary Judgment Schedule pending the 
resolution of the parties’ disputes regarding the contents of the administrative record and 
instructs the parties to contact chambers to schedule a status call. 
D. Joint Motion for Entry of Part ies’ Proposed Protective Order 
The parties filed a Joint Motion for Entry of Parties’ Proposed Protective Order on 
August 25, 2020. ECF No. 136. Having considered the parties’ motion and the attached 

54 
 
Protective Order, the Court finds that the parties’ Proposed Protective Order, ECF No. 136-1, 
complies with the requirements of Loc. R. 104.13 (D. Md. 2018) and thus grants the parties’ 
joint motion and enters the parties’ Proposed Protective Order. 
III. CONCLUSION 
For the foregoing reasons, this Court grants Plaintiffs’ Motion for Class Certification and 
Appointment of Class Counsel, ECF No. 117 and certifies the following class: All individuals 
nationwide who prior to the effective date of a lawfully promulgated policy prospectively 
altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an 
Unaccompanied Alien Child; and (2) who filed an asylum application that was pending with the 
United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed 
their asylum application with USCIS, were 18 years of age or older, or had a parent or legal 
guardian in the United States who is available to provide care and physical custody; and (4) for 
whom USCIS has not adjudicated the individual’s asylum application on the merits. Plaintiff 
J.O.P., M.A.L.C., M.E.R.E., and E.D.G. are appointed as class representatives. 
Additionally, this Court grants, in part, and denies, in part, Plaintiffs’ Motion to Amend 
the Preliminary Injunction, ECF No. 124, and accordingly amends the previous preliminary 
injunction, ECF No. 71, such that Defendants, during the pendency of this litigation and until 
further Order of this Court are: (1) enjoined and restrained from relying on the policies set forth 
in the 2019 Redetermination Memorandum as a basis to decline jurisdiction over asylum 
applications of individuals previously determined to be unaccompanied alien children (“UACs”), 
to subject an asylum applicant to the one-year time limit for filing described at 8 U.S.C. 
§ 1158(a)(2)(B), or for any other purpose; (2) enjoined and restrained from rejecting jurisdiction 
over any asylum application filed by Plaintiffs and members of the class whose applications 

55 
 
would have been accepted under the 2013 Kim Memorandum; (3) enjoined and restrained from 
deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by 
Plaintiffs and members of the proposed class; and (4) enjoined and restrained during the removal 
proceedings of any Plaintiff or member of the class (including EOIR proceedings before 
immigration judges and members of the Board of Immigration appeals) from seeking denials of 
continuances or other postponements in order to await adjudication of an asylum application that 
has been filed with USCIS, from seeking EOIR exercise of jurisdiction over any asylum claim 
where USCIS has initial jurisdiction under the terms of the 2013 Kim Memorandum, or from 
otherwise taking a position in such individual’s removal proceedings that, inconsistent with the 
2013 Kim Memorandum, USCIS does not have initial jurisdiction over the individual’s asylum 
application. Defendant USCIS will retract any adverse decision rendered on or after June 30, 
2019 that is based in whole or in part on any of the actions enjoined and restrained by (1), (2), or 
(3) above. 
Finally, the Court grants parties’ Joint Motion to Stay Summary Judgment Schedule, ECF 
No. 135, and grants parties’ Joint Motion for Entry of Parties’ Proposed Protective Order, ECF 
No. 136. 
A separate Order shall issue. 
 
Date: December 21, 2020 ___/s/_______________________ 
GEORGE J. HAZEL 
United States District Judge 

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