MEMORANDUM OPINION

This case challenges the legality of the government’s recent practice of holding immigration detainees at the United States Naval Station at Guantanamo Bay, Cuba. The Named

Plaintiffs are two Nicaraguan nationals who were held at Guantanamo before they were ultimately

removed to Nicaragua. They contend that their detention at Guantanamo violated the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The Named

Plaintiffs moved to certify this case as a class action, seeking to represent a class of immigration

detainees originally apprehended in the United States who are or will be held at Guantanamo. The Court denies that motion with respect to the Named Plaintiffs’ habeas claim, but otherwise grants it with a modified class definition. The Court certifies a class of all immigration detainees originally apprehended and detained in the United States who have been ordered removed, except those ordered removed pursuant to 8 U.S.C. § 1225, and who are, or will be, held at Naval Station

Guantanamo Bay, Cuba.

BACKGROUND

A. Factual Background

The United States Naval Station, Guantanamo Bay “is a U.S. military base in Guantánamo

Bay, Cuba. It is the site of a U.S. military prison at which the U.S. government has asserted law-of-war detention authority since 2001.” Compl. ¶ 22, ECF No. 1. On one side of the base “is a maximum-security prison that houses the government’s military detainees and includes what is known as ‘Camp 6’”; on the other side of the base “is the Migrant Operations Center . . . , where migrants interdicted on the high seas have traditionally been held.” Compl. ¶ 45. 1

In January 2025, President Donald J. Trump directed the Secretaries of Defense and Homeland Security to expand operations at Guantanamo to “provide additional detention space for high-priority criminal aliens unlawfully present in the United States,” up to 30,000 people.

Compl. ¶ 24. Since then, over 500 immigration detainees have been held at Guantanamo. The Named Plaintiffs allege that detention at Guantanamo involves conditions and restrictions unlike immigration detention in the United States, including the presence of military guards, inadequate food, and insufficient sanitation. See, e.g., Compl. ¶¶ 45, 47–51.

At Camp 6, the facility previously used to detain law-of-war detainees, immigration detainees are allegedly “permitted only one hour per day of recreation in an indoor cage.” Compl.

¶ 7. Guards have also allegedly physically harmed detainees and withheld water from them as a form of punishment. Compl. ¶ 46. Those who “complain[] about conditions or mistreatment to officers have been tied to restraint chairs for hours.” Id.

At the Migrant Operations Center, immigration detainees are housed “in small, barracks-style units, with several people held in each room.” Compl. ¶ 47. The Named Plaintiffs allege that they are always confined to their units, except for one hour a day “when they are released into a small recreation pen, surrounded by armed military personnel and guard dogs.” Id.

When they return from recreation, they are “invasively searched,” “including a pat down of their genitals.” Id. Guards have allegedly insulted and taunted the detainees and have threatened to shoot them. Id.

The Named Plaintiffs are Yamil Luna Gutierrez and Rafael Angel Lopez Ocon, two

Nicaraguan nationals. Compl. ¶¶ 12–13. Both were initially held at facilities in the United States.

Id. And both were transferred to Guantanamo in late May 2025 and were detained there when they filed their Complaint and Motion for Class Certification. See Decl. Yamil Luna Gutierrez (Suppl.

Gutierrez Decl.) ¶ 3, ECF No. 30-1; Decl. Rafael Angel Lopez Ocon (Suppl. Ocon Decl.) ¶ 3, ECF No. 30-2. But before the Defendants filed their Opposition to the Motion for Class

Certification, Mr. Luna Gutierrez and Mr. Lopez Ocon were moved from Guantanamo. See Suppl.

Gutierrez Decl. ¶ 3; Suppl. Ocon Decl. ¶ 3. They seek to represent a class of other immigration detainees who are held or will be held at Guantanamo. Suppl. Gutierrez Decl. ¶ 11; Suppl. Ocon

Decl. ¶ 11.

B. Procedural Background

In June 2025, the Named Plaintiffs sued several officials and agencies tasked with overseeing the United States’ immigration system. See generally Compl. Their Complaint alleges that their detention at Guantanamo violated the Administrative Procedure Act (APA), the Due

Process Clause of the Fifth Amendment, and their “right to habeas corpus.” Compl. ¶¶ 62–75. That same day, they filed a Motion for Class Certification and Appointment of Class Counsel.

ECF No. 4. On August 4, 2025, the Defendants filed a Motion to Dismiss pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 29. On September 9, 2025, the Court ordered supplemental briefing related to both motions. See Min. Order (Sept. ^[9], 2025); Defs.’

Suppl. Br., ECF No. 40; Pls.’ Suppl. Br., ECF No. 41. The Court held a hearing related to both

motions on October 23, 2025. The Motion for Class Certification is fully briefed and ripe for review. See Opp’n, ECF No. 28; Reply, ECF No. 30.

LEGAL STANDARD

Federal Rule of Civil Procedure 23 governs class actions, and class certification may only

be granted if a plaintiff shows that all its requirements are met. N.S. v. Hughes, 335 F.R.D. 337, 343–44 (D.D.C. 2020), modified on other grounds sub nom. N.S. v. Dixon, 2020 WL 6701076

(D.D.C. Nov. ^[13], 2020). Rule 23(a) “contains four threshold requirements” for certification. Id.

They are:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). “If the action satisfies these prerequisites, plaintiffs must then demonstrate that their proposed class falls into one of the categories of class actions listed in Rule 23(b).”

DL v. District of Columbia, 860 F.3d 713, 723 (D.C. Cir. 2017). The relevant category in this case

is Rule 23(b)(2), which addresses a situation where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ.

P. 23(b)(2). A plaintiff must satisfy Rule 23 by a preponderance of the evidence. Molock v. Whole

Foods Market, Inc., No. 16-cv-2483, 2025 WL 1913231, at *7 (D.D.C. Mar. ^[10], 2025).

DISCUSSION

The Court first addresses whether this case is moot. Then it turns to the Named Plaintiffs’

Motion for Class Certification of their APA, constitutional, and habeas claims.

A. Mootness

The Defendants argue that the Named Plaintiffs’ claims are moot because they were transferred out of Guantanamo after they filed their Motion for Class Certification. Opp’n at 8.

The Court disagrees. ^[2]

“Article III of the Constitution limits federal courts to deciding ‘actual, ongoing controversies,’ meaning that courts have no jurisdiction over claims that are moot.” N.S., 335

F.R.D. at 344 (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). “A case is moot if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a

more-than-speculative chance of affecting them in the future.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (quoting Clarke v. United States, 915 F.2d 699, 700–01

(D.C. Cir. 1990)). For class actions, the mootness rule is that “[f]or every claim, at least one named plaintiff must keep her individual dispute live until certification, or else the class action based on that claim generally becomes moot.” J.D. v. Azar, 925 F.3d 1291, 1307 (D.C. Cir. 2019).

But the Supreme Court has also recognized a mootness exception unique to the class action context. See United States v. Sanchez-Gomez, 584 U.S. 381, 387–88 (2018). The exception is based on a recognition that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (quoting

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980)). “[T]he class certification decision in inherently transitory settings is simply ‘related back’ to the time of the filing of the complaint with class allegations, at which point the named plaintiff’s claims were live.” 1 William B.

Rubenstein, Newberg & Rubenstein on Class Actions § 2:13 (6th ed. Dec. 2025 Update);

McLaughlin, 500 U.S. at 52 (“In such cases, the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.” (citations omitted)). This exception

commonly arises “in the immigration detention context.” 1 Rubenstein, Newberg & Rubenstein on Class Actions § 2:13.

For the “inherently transitory” exception to apply, the party opposing mootness must prove that “(1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class, and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint.” Ramirez v. ICE, 338 F. Supp. 3d 1, 35

(D.D.C. 2018) (quoting Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010)); accord J.D., 925 F.3d at 1311; see id. at 1307 (“The party seeking jurisdictional dismissal bears the initial heavy burden of establishing mootness, but the opposing party bears the burden of proving an exception applies.”).

This case is in the heartland of the inherently transitory exception. The average length of detention for immigration detainees at Guantanamo is twelve days. Decl. Fransisco Madrigal ¶ 6, ECF No. 28-3. One of the Named Plaintiffs was held at Guantanamo for thirty-seven days, and the other for thirteen days. See Suppl. Gutierrez Decl. ¶ 3; Suppl. Ocon Decl. ¶ 3. Both Named

Plaintiffs were moved from Guantanamo before the Defendants could even respond to the Motion for Class Certification. See Suppl. Gutierrez Decl. ¶ 3; Suppl. Ocon Decl. ¶ 3. Periods of this duration are too short for courts to “‘reasonably be expected to rule’ on certification.” J.D., 925

F.3d at 1309 (quoting Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978)); see, e.g., id. at 1311

(average custody term of forty-one to ninety days); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 183

(D.D.C. 2015) (period of detention is “weeks or months”); Ramirez, 338 F. Supp. 3d at 35 (same).

Disputing this prong, the Defendants identify two other cases “filed by the same team of attorneys” in this District and assert that “the overall litigation history” of these cases “shows that there has been time to adjudicate a request for class relief with plaintiffs whose claims are not moot.” Opp’n at 9 (first citing Las Americas v. Noem, No. 25-cv-418 (D.D.C.); and then citing

Espinoza Escalona v. Noem, No. 25-cv-604 (D.D.C.)). This argument is fundamentally flawed in at least two respects. First, the relation-back concept underlying the inherently transitory exception contemplates that a certification decision might “‘relate back’ to the filing of the complaint,” not relate back to the filing of a complaint in a different case brought by different plaintiffs. See Basel

v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977). Thus, the relevance of other cases to the mootness analysis is questionable, even if those cases present similar claims. Second, the “litigation history” of these cases in fact supports that “it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class.”

Ramirez, 338 F. Supp. 3d at 35 (quoting Olson, 594 F.3d at 582). One of the cases was voluntarily dismissed because the named plaintiffs were moved from Guantanamo and “no longer wish[ed] to continue litigating the case.” Notice Voluntary Dismissal at 1, Espinoza Escalona v. Noem, No. 25-cv-604, ECF No. 34 (D.D.C. May 22, 2025). And in the other, the government is seeking dismissal on mootness grounds because the named plaintiffs were moved from Guantanamo before

the court resolved the pending class certification motion. See Mot. Dismiss at 8, Las Americas v. Noem, No. 25-cv-418, ECF No. 43 (D.D.C. June 16, 2025). So even considering the other cases, they support the Named Plaintiffs’ claim that the challenged detention is too short to permit the Court to make a certification decision while a potential class representative retains a live claim.

On the second prong, the Court is convinced that “there will be a constant class of persons suffering the deprivation complained of in the complaint.” Ramirez, 338 F. Supp. 3d at 35 (quoting

Olson, 594 F.3d at 582). As discussed further below, news reports referenced by the Named

Plaintiffs indicate that hundreds of immigration detainees have been held at Guantanamo since the beginning of 2025. 3 Mot. at 6–7; see also Madrigal Decl. ¶ 5 (thirty-seven immigration detainees held at Guantanamo in late July 2025). Another news report referenced by the Named Plaintiffs states that in July 2025, the government planned to “double the capacity at Guantánamo to 400 people.” 4 Reply at 4. And importantly, the Defendants do not dispute that they are currently holding immigration detainees at Guantanamo and that they intend to continue doing so. Mots.

Hr’g Tr. 45:2–4, ECF No. 50 (“[THE COURT:] You are not saying that you don’t intend to house immigration detainees at Guantanamo, correct? [DEFENDANTS’ COUNSEL:] Absolutely not.”).

This record assures the Court that “the alleged violations are pervasive and ongoing,”

“demonstrat[ing] that the alleged violations will recur often enough for members of the proposed class to retain live claims throughout the litigation.” Givens v. Bowser, 111 F.4th 117, 121 (D.C.

Cir. 2024).

The Defendants insist that this is insufficient because “[t]here have been times since

January 2025 when there were no aliens detained at [Guantanamo].” Madrigal Decl. ¶ 4; Opp’n at

11. And at the motions hearing, counsel for the Defendants added that there was “nobody currently at Guantanamo” because there was an incoming hurricane. Mots. Hr’g Tr. 43:11–13. According to the Defendants, this shows that no live controversy will exist throughout this case. Opp’n at 11.

But a challenge to an ongoing policy does not fall outside the inherently transitory exception simply because there has been one instant when the challenged policy was not being

applied. See N.S., 335 F.R.D. at 345. A rule that harsh would run counter to a basic tenant of the exception—that it is meant to accommodate situations where “otherwise the issue would evade

review.” Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013) (“The ‘inherently transitory’ rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.”); N.S., 335

F.R.D. at 345 (“To hold that this claim is moot would thus be to hold that the actions of the USMS with respect to civil immigration arrests are entirely unreviewable. Such an outcome is unacceptable.”). It would also invite strategic forbearance from defendants.

And in this case, the inherently transitory exception is buttressed by another mootness doctrine: voluntary cessation. Under that doctrine, “a defendant’s voluntary cessation of a challenged practice will moot a case only if the defendant can show that the practice cannot reasonably be expected to recur.” FBI v. Fikre, 601 U.S. 234, 241 (2024) (cleaned up). Here, where

periods of no immigration detainees being present at Guantanamo are entirely the result of the Defendants’ choices, the voluntary cessation doctrine would require them to “prove no reasonable

expectation remains that [they] will return to [their] old ways.” Id. (cleaned up). But of course, the Defendants have asserted the opposite—that they will “[a]bsolutely not” stop holding immigration detainees at Guantanamo. Mots. Hr’g Tr. 45:4. Thus, the Court concludes that the Defendants’ proffered instances of forbearance from immigration detention at Guantanamo are not enough to

stop the inherently transitory exception from relating this Court’s decision back to the filing of the Complaint. J.D., 925 F.3d at 1308. If the Defendants want to argue that its occasional forbearance otherwise moots the case, it is welcome to shoulder its “formidable burden” under the voluntary cessation doctrine. Fikre, 601 U.S. at 241 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). 5

In sum, the inherently transitory exception “means that as long as [the Named Plaintiffs are] able to achieve class certification, [their] claim[s] will not be dismissed as moot.” N.S., 335

F.R.D. at 345. And for the reasons below, the Court finds that class certification is warranted.

B. Class Certification on APA and Constitutional Claims

Turning to class certification, the Named Plaintiffs move to certify a class under Federal

Rule of Civil Procedure 23(b)(2). Mot. at 2. They propose the following class definition: All immigration detainees originally apprehended and detained in the United States, and who are, or will be held at Naval Station Guantánamo Bay, Cuba.

Id. Because the Rule 23 analysis is similar for the Named Plaintiffs’ APA and constitutional claims, the Court discusses them together. See Simpson v. Dart, 23 F.4th 706, 713 (7th Cir. 2022)

(“Certification may be appropriate as to some of the class’s claims but not others.”). The Court first addresses the requirements in Rule 23(a) and Rule 23(b)(2), then it discusses the class definition that it certifies.

1. Rule 23(a)

A plaintiff seeking to certify a class must satisfy the four requirements of Rule 23(a):

numerosity, commonality, typicality, and adequacy of representation. Molock, 2025 WL 1913231, at *7. “[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33–34

(2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011)). a. Numerosity

“A proposed class must be ‘so numerous that joinder of all members is impracticable.’”

Morgan v. District of Columbia, No. 10-cv-1511, 2025 WL 2255228, at *3 (D.D.C. Aug. 7, 2025)

(quoting Fed. R. Civ. P. 23(a)(1)). “Impracticability of joinder means only that it is difficult or inconvenient to join all class members, not that it is impossible to do so.” Id. (quoting Coleman ex rel. Bunn v. District of Columbia, 306 F.R.D. 68, 76 (D.D.C. 2015)). “[C]ourts in this jurisdiction have observed that a class of at least forty members is sufficiently large to meet this requirement.”

Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007).

The Named Plaintiffs point to news reports in support of the numerosity requirement. Mot. at 6–7. These reports reflect that as of May 5, 2025, 497 immigration detainees had been held at Guantanamo; 6 on April 17, 2025, forty-two immigration detainees were being held there; 7 and on

May 20, 2025, that number was approximately seventy. 8 A declaration filed by the Defendants states that thirty-seven immigration detainees were held at Guantanamo in late July 2025. Madrigal

Decl. ¶ 5. This provides a sufficient basis for the Court to infer that the class contains more than

forty individuals, which is presumptively too numerous to make joinder practicable. See Hinton v. District of Columbia, 567 F. Supp. 3d 30, 52 (D.D.C. 2021) (“[T]he Court may . . . ‘draw reasonable inferences from the facts presented to find the requisite numerosity.’” (quoting

Coleman ex rel. Bunn v. District of Columbia, 306 F.R.D. 68, 76 (D.D.C. 2015))); id. at 53 (“[A] class with forty identifiable members is presumed to satisfy Rule 23(a)(1)[.]”).

That presumption is confirmed in light of the “financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.” Id. (quoting N.S., 335 F.R.D. at 352). The Named Plaintiffs’ proposed class includes individuals who “will be held” at Guantanamo, and the D.C. Circuit has explained that “classes including future claimants generally meet the numerosity requirement due to the ‘impracticality of counting such class members, much less joining them.’” J.D., 925 F.3d at 1322 (quoting 1 Rubenstein, Newberg & Rubenstein on Class Actions § 3:15). Further, as

mentioned, the average length of stay for immigration detainees at Guantanamo is twelve days, Madrigal Decl. ¶ 6, meaning that the class members’ detention is “essentially unreviewable without a class action, as no detainee could litigate his or her claim” that quickly, N.S., 335 F.R.D. at 353. “This makes joinder not just impracticable, but impossible—without a class action, there is no lawsuit at all, and the [Defendants] could continue [their allegedly] unlawful practice indefinitely without ever facing judicial review.” Id. The Court thus concludes that the Named

Plaintiffs have satisfied Rule 23(a)(1). b. Commonality

“Commonality requires that the plaintiff raise claims which rest on ‘questions of law or fact common to the class.’” Taylor, 241 F.R.D. at 37 (quoting Fed. R. Civ. P. 23(a)(2)). The plaintiff must “demonstrate that the class members ‘have suffered the same injury’ and that their claims turn on a ‘common contention’ that ‘is capable of classwide resolution—which means that

determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in a single stroke.’” Morgan, 2025 WL 2255228, at *4 (quoting Wal-Mart, 564 U.S. at

349–50). “Even a single common question will do, but the question must be more specific than simply asking whether the plaintiffs ‘have all suffered a violation of the same provision of law’

because the same provision of law ‘can be violated in many different ways.’” Thorpe v. District of Columbia, 303 F.R.D. 120, 145 (D.D.C. 2014) (quoting Wal-Mart, 564 U.S. at 350). So “plaintiffs must bridge the ‘gap’ between individual claims of harm and the ‘existence of a class of persons who have suffered the same injury as that individual.’” Id. (quoting Wal-Mart, 564 U.S.

at 352–53). “Where plaintiffs allege widespread wrongdoing by a defendant[,] a uniform policy or practice that affects all class members bridges the gap.” Id. (cleaned up).

The Court is convinced that this requirement is also satisfied. To begin, the allegedly unlawful policy of holding immigration detainees at Guantanamo is “a uniform policy or practice that affects all class members.” Id. And testing that policy’s legality will require answering

“‘common contention[s]’ that ‘[are] capable of classwide resolution.’” Morgan, 2025 WL

2255228, at *4 (quoting Wal-Mart, 564 U.S. at 349–50). To resolve the Plaintiffs’ APA claims, the Court would have to answer whether the Defendants lack statutory authority to detain the class at Guantanamo and whether the Defendants’ decision to do so was arbitrary and capricious.

Answering those questions yes or no “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350.

As the Named Plaintiffs observe, the Defendants do not articulate a reason why the Plaintiffs’ APA claims fail to satisfy Rule 23(a)(2). See Reply at 11; Opp’n at 26–27; see also

Simpson, 23 F.4th at 713 (“Certification may be appropriate as to some of the class’s claims but not others.”). Instead, the Defendants focus entirely on the Plaintiffs’ due process claims. Opp’n at 26–30. But for that claim, too, a classwide proceeding has the capacity “to generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (quoting Richard

A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131–32

(2009)). That claim is predicated on the Named Plaintiffs’ allegation that the class’s detention at

Guantanamo impermissibly “constitutes punishment.” Block v. Rutherford, 468 U.S. 576, 583

(1984); see, e.g., Compl. ¶ 71. Resolving that claim will require this Court to evaluate whether the Defendants’ decision to detain the class at Guantanamo was “taken with an ‘expressed intent to punish,’” or in the absence of an intent to punish, whether it was “rationally related to a legitimate nonpunitive government purpose” or “appear[ed] excessive in relation to that purpose.” Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015) (quoting Bell v. Wolfish, 441 U.S. 520, 538, 561 (1979));

see also Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir. 2010) (“[A] court may take a peek at the merits before certifying a class, . . . limited to those aspects of the merits that affect the decisions essential under Rule 23.”). The Court’s answers to those questions will be common to the class.

The Defendants raise two arguments to the contrary. First, the Defendants observe that the immigration detainees held at Guantanamo are housed at two facilities, Camp 6 and the Migrant Operations Center. Opp’n at 28. In the Defendants’ view, these facilities differ “in ways that are significant to Plaintiffs’ claims.” Id. The Court disagrees that the Named Plaintiffs’ due process claim cannot proceed on a classwide basis simply because the class includes individuals detained at both Camp 6 and the Migrant Operations Center. The Complaint’s lead due process theory is that the Defendants violated the Due Process Clause by deciding to hold immigration detainees at

Guantanamo with an expressed intent to punish. See Compl. ¶ 71; Mots. Hr’g Tr. 60:8–11;

Kingsley, 576 U.S. at 398. Pursuant to that theory, the Named Plaintiffs aver that the use of any facility at Guantanamo for immigration detention constitutes unconstitutional punishment—which

does not require parsing the conditions at Camp 6 versus the Migrant Operations Center. And resolving that contention is enough for commonality. Thorpe, 303 F.R.D. at 145 (“Even a single common question will do[.]”).

It is true that the Named Plaintiffs offer an alternative theory to support their due process claim: that the conditions at Guantanamo themselves constitute unconstitutional punishment. See

Compl. ¶ 72; Mots. Hr’g Tr. 60:8–11. Yet the Defendants’ argument fails with respect to this theory too. “[F]actual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.” Nio v. DHS, 323 F.R.D. 28, 32 (D.D.C. 2017) (cleaned up). On this theory, the Court will have to evaluate whether the conditions for immigration detainees at Guantanamo are

“rationally related to a legitimate nonpunitive government purpose.” Kingsley, 576 U.S. at 398.

Nothing in the record indicates that such a purpose differs between Camp 6 and the Migrant

Operations Center. And when the Court goes on to consider whether the conditions at Guantanamo

“appear excessive in relation to that purpose,” id., it seems that many of the conditions of detention are the same across Camp 6 and the Migrant Operations Center, see, e.g., Madrigal Decl. ¶¶ 32 (access to medical treatment and entertainment materials), 34 (air conditioning), 42 (absence of restraints within housing units), 44 (access to food), 48 (contact with counsel); Compl. ¶¶ 45

(presence of military personnel), 48 (access to food), 49 (possessions and cleanliness), 51 (lack of information). At this point, the Court sees no basis to conclude that differences between those facilities are the kind that “have the potential to impede the generation of common answers.” See

Wal-Mart, 564 U.S. at 350 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. at 131–32). Thus, even if the Named Plaintiffs’ first theory is insufficient to itself establish commonality for the due process claim, there are also common answers to be generated on this second theory. ^[9]

Second, the Defendants suggest that due process claims are always inappropriate for classwide resolution. Opp’n at 29. But although procedural protections required by the Due

Process Clause depend on what “the particular situation demands,” Jennings v. Rodriguez, 583

U.S. 281, 314 (2018) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)), the Defendants cite nothing indicating that the Clause’s substantive protection against punishment differs among the class members here. Similarly unpersuasive is the Defendants’ suggestion that immigration detainees may not be able to claim a due process violation as might another litigant. Opp’n at 29.

Even assuming that is true, but see Trump v. J.G.G., 604 U.S. 670, 673 (2025) (“‘It is well

established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings.” (quoting Reno v. Flores, 507 U.S. 292, 306 (1993))), the Defendants

identify nothing indicating that due process protections vary among the members of this class. The Court fails to see how due process accounting for the immigration context says anything about whether the Court will be able to “resolve an issue that is central to the validity of” the Plaintiffs’ due process claims “in one stroke.” Wal-Mart, 564 U.S. at 350. The Court therefore concludes that the Named Plaintiffs have satisfied Rule 23(a)(2). c. Typicality

“Rule 23(a)(3)’s typicality requirement is met when ‘the claims or defenses of the representative parties are typical of the claims or defenses of the class.’” Morgan, 2025 WL

2255228, at *6. “While commonality requires a showing that the members of the class suffered an

injury resulting from the defendant’s conduct, the typicality requirement focuses on whether the representatives of the class suffered a similar injury from the same course of conduct.” Id. (quoting

Bynum v. District of Columbia, 214 F.R.D. 27, 34 (D.D.C. 2003)). It “ensures that the named

plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Thorpe, 303 F.R.D. at 147 (quoting Wal-Mart, 564 U.S. at 349). “‘The facts and claims of each class member do not have to be identical to support a finding of typicality,’ . . . but the class representatives ‘must be part of the class and possess the same interest and suffer the same injury as the class members.’” Id. (first quoting Lightfoot v. District of Columbia, 246 F.R.D. 326, 338

(D.D.C. 2007); and then quoting General Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982)). The requirement is satisfied “when the plaintiffs’ claims arise from the same course of conduct, series o[f] events, or legal theories of other class members.” Morgan, 2025 WL 2255228, at *6 (quoting

Hoyte v. District of Columbia, 325 F.R.D. 485, 490 (D.D.C. 2017)).

Here, the Named Plaintiffs were detained at Guantanamo pursuant to the same policy as the rest of the class. See Decl. Yamil Luna Gutierrez (Gutierrez Decl.) ¶¶ 3–11, ECF No. 4-1

(describing detention at Guantanamo); Decl. Rafael Angel Lopez Ocon (Ocon Decl.) ¶¶ 3–10, ECF

No. 4-2 (same). The Defendants do not dispute that this is sufficient to establish that the class representatives’ claims “arise from the same course of conduct, series o[f] events, or legal theories of other class members.” Morgan, 2025 WL 2255228, at *6 (quoting Hoyte, 325 F.R.D. at 490).

Rule 23(a)(3) is thus satisfied. d. Adequacy

“The fourth Rule 23(a) requirement . . . is that the ‘representative parties will fairly and adequately protect the interests of the class.’” Thorpe, 303 F.R.D. at 150 (quoting Fed. R. Civ. P.

23(a)(4)). It “imposes two criteria on plaintiffs seeking to represent the class: ‘(1) the named

representative must not have antagonistic or competing interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.’” Hoyte, 325 F.R.D. at 490 (quoting Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)). The purpose of the adequacy requirement is “to uncover conflicts of interest between named parties and the class they seek to represent.” Id.

(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)). Still, “[t]his is not a stringent requirement, as a conflict ‘must be fundamental’ and ‘go to the heart of the litigation’ in order to

preclude certification.” Id. at 491 (quoting Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430–31 (4th Cir. 2003)). Other than one caveat discussed below, the Court concludes that both the proposed class counsel and the Named Plaintiffs will fairly and adequately represent the class. i. Class Counsel

“The adequacy heading . . . factors in competency and conflicts of class counsel.” Amchem

Prods., 521 U.S. at 626 n.20. In determining the adequacy of class counsel, the Court considers:

“(i) the work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The ultimate question is whether counsel can “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).

Here, the Named Plaintiffs are represented by “well-respected public interest

organizations”—the American Civil Liberties Union, the Center for Constitutional Rights, and the International Refugee Assistance Project. See Black Lives Matter D.C. v. United States, 775

F. Supp. 3d 241, 269 (D.D.C. 2025). “Class counsel have decades of civil litigation experience, including in class actions” involving civil rights and immigration issues. See id.; Decl. Noor Zafar

¶¶ 3–5, 6–9, 11–16, ECF No. 4-3; Decl. Scott Michelman ¶¶ 5–11, ECF No. 4-4. Counsel have led efforts to challenge immigration detention at Guantanamo, and the Court has no concerns about the resources that counsel will commit to representing the class. Given their extensive experience and knowledge of the applicable law, the Court concludes that counsel for the Named Plaintiffs will fairly and adequately represent the class. See Fed. R. Civ. P. 23(a)(4), (g). ii. The Named Plaintiffs

Turning to the Named Plaintiffs themselves, the Named Plaintiffs have submitted declarations showing that they will prosecute this action in the class’s interest. They state that they are participating in this lawsuit because they wish to protect other noncitizens who are detained at

Guantanamo. Suppl. Gutierrez Decl. ¶ 5; Suppl. Ocon Decl. ¶ 10. And they say that they believe it is important to prevent that detention. Suppl. Gutierrez Decl. ¶ 11; Suppl. Ocon Decl. ¶ 16.

The Defendants raise two objections to the adequacy of the Named Plaintiffs as class representatives. First, the Defendants contend that the record insufficiently shows that the Named

Plaintiffs comprehend their representational responsibilities. Opp’n at 30. Perhaps to address that concern, the Named Plaintiffs’ supplemental declarations include attestations that they understand the nature of their role and duties. See Suppl. Gutierrez Decl. ¶¶ 6–11; Suppl. Ocon Decl. ¶¶ 11–16.

The Court is satisfied that the Named Plaintiffs have expressed a sufficient understanding of and commitment to their role as class representatives. See 1 Rubenstein, Newberg & Rubenstein on

Class Actions § 3:67 (“Adequacy is satisfied . . . if the plaintiff has some rudimentary knowledge of her role as a class representative and is committed to serving in that role in litigation.”); Garnett v. Zeilinger, 301 F. Supp. 3d 199, 211 (D.D.C. 2018) (sufficient that “the named plaintiffs have

all attested that their lawyers informed them of the responsibilities of a class representative and that they are willing to protect the class’s interests, and their declarations demonstrate an awareness of the facts of this case”).

Second, the Defendants raise adequacy concerns because the government has executed the Named Plaintiffs’ removal orders. Opp’n at 30–31. Specifically, the Defendants question whether

the Named Plaintiffs maintain the capability to communicate with their counsel and participate in this litigation, and indeed whether they remain interested in this litigation at all. But these concerns, too, have been dispelled by the Named Plaintiffs’ supplemental declarations. See, e.g., Suppl.

Gutierrez Decl. ¶¶ 10–11; Suppl. Ocon Decl. ¶¶ 15–16; see also J.D., 925 F.3d at 1313

(“[P]laintiffs with moot claims may adequately represent a class.” (quoting DL, 860 F.3d at 726)).

The Court is satisfied that, in general, the Named Plaintiffs are adequate representatives. iii. Expedited Removal Orders

The caveat, however, is with respect to individuals with expedited removal orders. Under the Immigration and Nationality Act (INA), there are two ways that a noncitizen can be removed from the United States. The first is through “[t]he usual removal process,” which “involves an evidentiary hearing before an immigration judge.” DHS v. Thuraissigiam, 591 U.S. 103, 108 (2020); see 8 U.S.C. § 1229a. The second is so-called “expedited removal,” which involves (as the name suggests) a more summary process. Thuraissigiam, 591 U.S. at 108–09; see 8 U.S.C. § 1225.

This is relevant because judicial review of some claims implicating the expedited removal process is subject to limitations beyond those otherwise imposed by the INA. See 8 U.S.C.

§ 1252(a)(2)(A)(i), (e). And here, the Named Plaintiffs were not removed pursuant to expedited

removal orders. Mots. Hr’g Tr. 21:13–16. So to prevail on their claims, they need not address the expedited-removal-specific limitations on judicial review. This raises a question whether the Named Plaintiffs will vigorously prosecute the claims of class members who are subject to expedited removal orders.

The Court has some concerns. In their Opposition to the Motion for Class Certification, the Defendants raise 8 U.S.C. § 1252(e), a limitation on judicial review of some challenges related to expedited removal. Opp’n at 23. And in their Reply, the Named Plaintiffs spend a few paragraphs

arguing that Section 1252(e) does not apply to their claims. Reply at 16–18. But another provision, 8 U.S.C. § 1252(a)(2)(A)(i), strips courts of jurisdiction to review any “cause or claim arising from or relating to the implementation or operation of an” expedited removal order except as provided

in Section 1252(e). The Parties’ briefing—both on the Motion for Class Certification and the Motion to Dismiss—does not address this provision. The Named Plaintiffs addressed it only after the Court asked about it during the motions hearing. Mots. Hr’g Tr. 28:16–22. And it seems that neither the Supreme Court nor the D.C. Circuit has definitively interpreted this provision.

The Court suspects that the underdeveloped nature of these arguments is because the Named Plaintiffs were not themselves subject to expedited removal orders. To address this concern, the Court explored two options with counsel for the Named Plaintiffs at the motions hearing: (1) creating subclasses under Federal Rule of Civil Procedure 23(c)(5), and (2) redefining the class to exclude individuals with expedited removal orders. Mots. Hr’g Tr. 24:5–9. Counsel expressed a preference for redefining the class. Id. 26:15–17. The Court agrees that this is the best way to proceed. Because individuals with expedited removal orders face their own limitations on

judicial review that the Court is not satisfied has been sufficiently addressed by the Parties, the Court will redefine the class to exclude them as discussed below. ^[10]

* * *

The Named Plaintiffs have established that they and proposed class counsel are adequate representatives for the class, with the exception of individuals with expedited removal orders.

Rule 23(a)(4) is satisfied.

2. Rule 23(b)(2)

Having satisfied all the requirements of Rule 23(a), the Named Plaintiffs now must satisfy

Rule 23(b)(2). Under that rule, “[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.”

Wal-Mart, 564 U.S. at 360. “Rule 23(b)(2) imposes two requirements: (1) that defendant’s actions or refusal to act are generally applicable to the class and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” O.A. v. Trump, 404 F. Supp. 3d

109, 157 (D.D.C. 2019) (cleaned up).

These requirements are both met. There is no doubt that the Defendants’ recent policy of holding immigration detainees at Guantanamo is generally applicable to the class. And the Plaintiffs’ claims challenging that policy are such that the policy “can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart, 564 U.S. at 360.

That is why the Complaint requests a “single injunction or declaratory judgment,” Wal-Mart, 564

U.S. at 360, on behalf of the entire class, Compl. ¶¶ 77, 79. The Plaintiffs’ APA claims also seek vacatur of the policy. Compl. ¶ 78. Courts in this District have certified claims seeking indivisible

APA relief such as vacatur under Rule 23(b)(2). See, e.g., Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem, 793 F. Supp. 3d 19, 102 (D.D.C. 2025); Crowe v. Fed. Bureau of Prisons, No. 24-cv-3582, 2025 WL 1635392, at[*21] & n.7 (D.D.C. June 9, 2025) (provisional certification);

O.A., 404 F. Supp. 3d at 157; Huashan Zhang v. USCIS, 344 F. Supp. 3d 32, 60, 65 (D.D.C. 2018).

Thus, the relief sought with respect to both the Plaintiffs’ APA and constitutional claims meet the “key” requirement that the remedy warranted is “indivisible.” See Wal-Mart, 564 U.S. at 360.

The Defendants contend that certification pursuant to Rule 23(b)(2) is inappropriate because of an INA provision limiting certain relief related to the removal process. Opp’n at 33.

The provision, 8 U.S.C. § 1252(f)(1), states:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

This “prohibits federal courts” other than the Supreme Court “from granting classwide injunctive relief” that “order[s] federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” Garland v. Aleman

Gonzalez, 596 U.S. 543, 550 (2022).

Section 1252(f)(1), however, is a remedial bar, not a limitation on class certification. See, e.g., N.S. v. Dixon, 141 F.4th 279, 289 (D.C. Cir. 2025) (“remedial bar”); L.G.M.L. v. Noem, No. 25-2942, 2025 WL 2671690, at[*11] (D.D.C. Sept. ^[18], 2025) (same); Al Otro Lado, Inc. v. Mayorkas, 619 F. Supp. 3d 1029, 1047 (S.D. Cal. 2022) (same). Indeed, the Supreme Court’s recent decision in Garland v. Aleman Gonzalez interpreting Section 1252(f)(1) consistently described that provision as imposing a limitation on courts’ remedial authority, not on the kinds of claims that can be certified for classwide resolution. See, e.g., Aleman Gonzalez, 596 U.S. at 550–51 (“Therefore, § 1252(f)(1) does not preclude a court from entering injunctive relief on behalf of a particular alien . . . , but injunctive relief on behalf of an entire class of aliens is not allowed[.]”). And that understanding of Section 1252(f)(1) is confirmed by 8 U.S.C.

§ 1252(e)(1)(B), which expressly provides that “no court may . . . certify a class under Rule 23 of the Federal Rules of Civil Procedure” in certain challenges related to expedited removal orders.

The fact that Congress wrote Section 1252(e)(1)(B) to explicitly prohibit class certification while simultaneously enacting Section 1252(f)(1) is a strong indication that the latter provision is meant to do something different. ^[11] See Cherokee Nation v. Nash, 267 F. Supp. 3d 86, 120 (D.D.C. 2017)

(“[I]t is a well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words.” (quoting SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003))). 12

In their briefing, the Defendants do little to explain why a statutory bar on the remedies that can be granted at the end of a case has anything to say about the requirements for class certification under Rule 23. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482

(1999) (Section 1252(f) “is nothing more or less than a limit on injunctive relief.”); cf. Almaqrami v. Pompeo, 933 F.3d 774, 780 (D.C. Cir. 2019) (noting that the legal availability of a certain kind

of relief “goes to the merits”). When the Court pressed at the motions hearing, counsel for the Defendants said that “there are some real problems with [a] class action moving forward given the core relief that the individual petitioner class members would want is not within the power of the Court.” Mots. Hr’g Tr. 31:21–24. But counsel did not articulate a doctrinal basis why this is so.

Few courts have addressed the effect of a statutory limitation on remedies on certifiability under Rule 23(b)(2). Yates v. Collier is helpful. 868 F.3d 354 (5th Cir. 2017). The statute at issue

there, the Prison Litigation Reform Act (PLRA), limited the relief that could be granted in challenges to prison conditions. Id. at 368. The relevant provision stated: Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.

Id. at 368–69 (quoting 18 U.S.C. § 3626(a)(1)(A)).

The opponents of class certification argued that the district court was required to “take account of injunctive relief that the PLRA would authorize it to award as a remedy” before

certifying a Rule 23(b)(2) class action. Id. at 369. But the circuit disagreed. Id. It observed that the text of the remedial-limitation provision “plainly says nothing at all about class actions or the requirements for class certification.” Id. Absent an indication in the statutory text, the circuit

explained that it could not “conclude that Congress intended that provision to alter the well-established requirements of class certification sub silentio.” Id. at 370. Therefore, the Court held that the PLRA’s remedial-limitation provision “does not alter the requirements for certifying a class action under Rule 23(b)(2).” Id. at 371. The Tenth Circuit has held the same. Shook v. El

Paso Cnty., 386 F.3d 963, 970 (10th Cir. 2004) (“The text of the PLRA says nothing about the certification of class actions. Based on the statute’s absence of direction in that area, we presume that Congress intended to leave Rule 23 intact.”).

The Court is persuaded by the Fifth Circuit’s reasoning in Yates. Applied here, it would suggest that the availability of the Named Plaintiffs’ requested relief is entirely irrelevant to certifiability under Rule 23(b)(2). The Court, however, need not go that far. After all, the inquiry under Rule 23(b)(2) is whether final injunctive or declaratory relief would be “appropriate” given the Named Plaintiffs’ claims. Fed. R. Civ. P. 23(b)(2). Even if such relief must ultimately be legally available to be “appropriate,” the Court concludes that, at a minimum, declaratory relief is available in this case despite Section 1252(f)(1). Cf. Powell v. McCormack, 395 U.S. 486, 518 (1969) (“[A] request for declaratory relief may be considered independently of whether other forms of relief are appropriate.”). 13

Start with the Declaratory Judgment Act, which provides that “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). So the baseline rule is that declaratory judgments are generally available in federal actions, even if an injunction is not. Green v. Mansour, 474 U.S.

64, 72 (1985) (“[W]e have held that under this Act declaratory relief may be available even though an injunction is not.”).

The Defendants argue that Section 1252(f)(1) disrupts this baseline because the declaration sought—i.e., that the Defendants’ policy of holding immigration detainees at Guantanamo is unlawful—would impermissibly “restrain the government’s operation of § 1231” by “requir[ing] the government to not detain aliens ordered removed” there. Opp’n 17–18. But that argument is foreclosed by D.C. Circuit precedent. The D.C. Circuit has held that “Section 1252(f) prohibits only injunctions against ‘the operation of the provisions of part IV of this subchapter’ as amended

by IIRIRA. It does not proscribe issuance of a declaratory judgment[.]” Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 635 (D.C. Cir. 2020) (citation omitted); N.S., 141 F.4th at 290 n.7 (same). That holding accords with every other circuit to have answered the question. See Brito v. Garland, 22 F.4th 240, 252 (1st Cir. 2021) (“[W]e conclude that declaratory relief remains available under

section 1252(f)(1).”); Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011) (“[I]t is apparent that the jurisdictional limitations in § 1252(f)(1) do not encompass declaratory relief.”); Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010) (“Section 1252(f) was not meant to bar classwide declaratory relief.”). Indeed, the Defendants do not point to one case holding that declaratory relief is unavailable under Section 1252(f)(1). 14

Further, the Government’s argument elides the distinction between declaratory relief and injunctive relief. “[W]hile declaratory relief can sometimes have much the same practical effect as injunctive relief, it differs legally and materially.” Brito, 22 F.4th at 251. “A declaratory judgment does not, for example, set the stage for a finding of contempt—a distinction of special note in cases in which the government is a party.” Id. If the Plaintiffs prevail, the Defendants may well cease any conduct that the Court declares unlawful. But the Defendants choosing to comply in good faith with the law as announced by this Court is not equivalent to the Court entering coercive relief that comes with the potential of contempt.

The Named Plaintiffs’ Motion for Class Certification is not the appropriate vehicle for definitively resolving the relief that Section 1252(f)(1) would permit should the Plaintiffs ultimately prevail in this case. Here, the Named Plaintiffs seek a remedy that would apply indivisibly to the entire class. Regardless of whether Section 1252(f)(1) allows more, at a minimum, declaratory relief on each of the Plaintiffs’ claims is appropriate and (assuming it is required for certification) legally available. Rule 23(b)(2) is thus satisfied. ^[15]

3. Class Definition

With the strictures of Rule 23 satisfied, the Court must define the class being certified. Fed.

R. Civ. P. 23(c)(1)(B). Accordingly, the Court proceeds to define the class and address the Defendants’ arguments that such a class definition is defective.

a. Redefining the Class

As mentioned above, the Named Plaintiffs’ proposed class definition is:

All immigration detainees originally apprehended and detained in the United States, and who are, or will be held at Naval Station Guantánamo Bay, Cuba.

Mot. at 2. The Court largely adopts this definition with two modifications. First, as previewed above, the class definition will exclude individuals subject to expedited removal orders under

8 U.S.C. § 1225. Second, the class definition will explicitly state that class members are individuals who have been ordered removed from the United States. The Parties’ filings in this

case have thus far indicated that both sides already understand the class at issue to be made up of such individuals. See, e.g., Compl. ¶ 62–64, Opp’n at 18.

Accordingly, the class definition this Court adopts is: All immigration detainees originally apprehended and detained in the United States who have been ordered removed, except those ordered removed pursuant to 8 U.S.C. § 1225, and who are, or will be, held at Naval Station

Guantanamo Bay, Cuba. b. The Defendants’ Arguments

The Defendants contend that a class definition such as this one is defective. Their argument draws on cases from this District testing class definitions against standards “that [are] not explicit in the text of Rule 23,” including “that the class be susceptible to precise definition,” Lewis v. Nat’l

Football League, 146 F.R.D. ^[5], 8 (D.D.C. 1992)—i.e., a definition that is “neither amorphous, nor imprecise,” id. (quoting Robertson v. Nat’l Basketball Ass’n, 389 F. Supp. 867, 897 (S.D.N.Y.

1975)), and not “overly broad,” In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp.

3d 14, 92 (D.D.C. 2017) (quoting Cnty. of Monroe v. Priceline.com, Inc., 265 F.R.D. 659, 666 (S.D. Fla. 2010)). Some courts term this inquiry “ascertainability.” See O.A., 404 F. Supp. 3d at

159–60. 16

Even if such a requirement exists, it is satisfied here. See id. at 160 (“Out of an abundance of caution, the Court will assume for present purposes that such a requirement exists.”). “‘[T]he general outlines of the members of the class are determinable at the outset of the litigation’ without

engaging in burdensome individualized determinations.” Id. (quoting Brewer v. Lynch, No. 08-cv-1747, 2015 WL 13604257, at *5 (D.D.C. Sept. 30, 2015)). To be a class member, an individual must be (1) an immigration detainee (2) who was originally apprehended and detained

in the United States, and who (3) has been ordered removed (except under 8 U.S.C. § 1225) and (4) is currently (or at a future point will be) held at Guantanamo. These are “clear and objective criteria on which to show membership in the . . . class.” See Ramirez, 338 F. Supp. 3d at 49.

The Defendants make two pertinent arguments to the contrary, but neither is persuasive.

First, the Defendants object that the proposed class “would necessarily encompass individuals who are not yet (and may never be) transferred to” Guantanamo, rendering the proposed class

“amorphous.” Opp’n at 22. The Defendants likely have in mind the portion of the class definition that brings in future members—that the class includes individuals who “will be” detained at

Guantanamo. But this misapprehends the proposed definition. Immigration detainees who meet the other criteria “will only become members of the class if and when they” are detained at Guantanamo. See O.A., 404 F. Supp. 3d at 160. And it is not “at all unusual or improper for a Rule

23(b)(2) class to include future members.” Id. (collecting cases). 17

Second, the Defendants contend that the class definition is overbroad to the extent it

“includes those who were previously transferred to [Guantanamo] but have already been

removed.” Opp’n at 24. But as the Named Plaintiffs note, this too reflects a misunderstanding of the class definition. Reply at 18. The class includes only individuals who “are” or “will be” detained at Guantanamo. It does not include individuals simply because they were previously

detained there. And to the extent the Defendants are making arguments that go to mootness or standing, see Opp’n at 24–25, they are addressed by the Court’s analysis of those issues above and in the Court’s contemporaneously filed Memorandum Opinion, ECF No. 53, at 10–11.

In sum, even assuming that Rule 23 imposes implicit restrictions on class definitions, those restrictions pose no problem for the class definition adopted here. That definition is sufficiently definite and not overbroad.

* * *

The Named Plaintiffs have established compliance with Rule 23 on their APA and constitutional claims. The Court will grant the Motion for Class Certification with respect to these claims.

C. Class Certification on Habeas Claim

With respect to their habeas claim, however, the Named Plaintiffs have not “affirmatively demonstrate[d] . . . compliance with” Rule 23. Wal-Mart, 564 U.S. at 350. As an initial matter, the nature of the Named Plaintiffs’ habeas claim is unclear. The Complaint alleges only that “[t]he transfer of immigration detainees from the United States to Guantánamo has violated and continues to violate their right to habeas corpus.” Compl. ¶ 75. The “right to habeas corpus,” however, refers

to the right to seek the writ—which is embodied in the Constitution’s Suspension Clause, art. I, § 9, cl. ^[2]. See Al Maqaleh v. Gates, 605 F.3d 84, 94 (D.C. Cir. 2010) (“Our duty . . . is to determine the reach of the right to habeas corpus and therefore of the Suspension Clause[.]”). And even a meritorious Suspension Clause challenge does not establish entitlement to the writ itself. See

Boumediene v. Bush, 553 U.S. 723, 797 (2008) (“Their access to the writ is a necessity to determine

the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”). The Parties’ briefing on the Defendants’ Motion to Dismiss does not address the claim at all, so neither side has articulated their understanding of the claim’s basis.

Nor does the briefing on the Motion for Class Certification clarify things. The Motion itself

does not attempt to demonstrate compliance with Rule 23 on the habeas claim separately from the Named Plaintiffs’ other claims (indeed, the Motion does not even use the word “habeas” once).

And in their Reply, the Named Plaintiffs state that “the availability of class habeas” is “a question

the Court need not reach because the Plaintiffs’ claims are reviewable under the APA and in equity.” Reply at 21. This suggests that the Named Plaintiffs have essentially abandoned an attempt to certify their habeas claim under Rule 23.

The Court notes that the Supreme Court has “never addressed whether habeas relief can be

pursued in a class action,” Jennings, 583 U.S. at 324 n.7 (Thomas, J. concurring), although the Court has addressed the merits of some class action habeas claims, see, e.g., Nielsen v. Preap, 586

U.S. 392, 400–01 (2019); Jennings, 583 U.S. at 290; cf. Johnson v. Guzman Chavez, 594 U.S. 523, 532 n.3 (2021) (acknowledging that the Court was not addressing the district court’s decision to certify the class). In the 1970s, several circuit courts held that habeas claims cannot be certified

under Rule 23 per se—but that courts could instead fashion class-action-like procedures in appropriate cases using authority under the All Writs Act. See United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125–26 (2d Cir. 1974); Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975);

Napier v. Gertrude, 542 F.2d 825, 827 n.2 (10th Cir. 1976). 18 Two decades later, the D.C. Circuit cited these cases to acknowledge that “courts have . . . developed . . . equivalents” to “class actions in habeas.” LoBue v. Christopher, 82 F.3d 1081, 1085 (D.C. Cir. 1996).

Relying on these cases, the Named Plaintiffs suggest that even if Rule 23 is not available for their habeas claim, the Court can use a “similar procedure available at equity.” Reply at 22; see also Pls.’ Suppl. Br. at 3. But the Named Plaintiffs’ Motion for Class Certification invokes only

Federal Rule of Civil Procedure 23. Mot. at 2. By essentially abandoning Rule 23 in favor of other grounds of authority, the Named Plaintiffs have not affirmatively shown compliance with that rule

“by a preponderance of the evidence.” Molock, 2025 WL 1913231, at *7. Further, the Court will not take the Named Plaintiffs’ terse, open-ended invitation to invoke equity or All Writs Act

authority to pronounce that the habeas claim will proceed under a facsimile of Rule 23. If the Plaintiffs want the Court to certify their habeas claim under Rule 23—or to invoke another authority—they may file an appropriate motion. Until then, the Court will deny without prejudice the instant Motion for Class Certification with respect to the Named Plaintiffs’ habeas claim.

CONCLUSION

For the foregoing reasons, the Court GRANTS in part, as modified, and DENIES in part the Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel, ECF No. 4.

A separate order will issue.

SPARKLE L. SOOKNANAN United States District Judge Date: December 5, 2025