Amicus Brief — Scholars of Refugee Law Opposing Emergency Stay — Huisha-Huisha v. Mayorkas (2021-09-23, 1)

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ORAL ARGUMENT NOT YET SCHEDULED 
 
No. 21-5200 
 
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
NANCY GIMENA HUISHA-HUISHA, on behalf of herself and others similarly situated, 
Plaintiffs-Appellees, 
v. 
ALEJANDRO MAYORKAS, Secretary of Homeland Security, et al., 
Defendants-Appellants. 
 
On Appeal from the United States District Court 
for the District of Columbia, No. 1:21-cv-00100 
Before the Honorable Judge Emmet G. Sullivan 
 
BRIEF FOR SCHOLARS OF REFUGEE AND IMMIGRATION LAW AS 
AMICI CURIAE IN OPPOSITION TO DEFENDANTS-APPELLANTS’ 
EMERGENCY MOTION TO STAY PENDING APPEAL 
 
NOAH A. LEVINE 
WILMER CUTLER PICKERING 
     HALE AND DORR LLP 
7 World Trade Center 
250 Greenwich Street 
New York, NY 10007 
(212) 230-8875 
DANIEL S. VOLCHOK 
SPENCER L. TODD 
WILMER CUTLER PICKERING 
     HALE AND DORR LLP 
1875 Pennsylvania Avenue NW 
Washington, DC 20006 
(202) 663-6000 
September 23, 2021 
 
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
A. 
Parties And Amici Curiae 
Except for the amici joining this brief and any other amici who had not yet 
entered an appearance in this case as of the filing of the appellants’ brief, all 
parties, intervenors, and amici appearing before the district court and this Court are 
listed in Defendants-Appellants’ brief. 
B. 
Rulings Under Review 
The ruling at issue is listed in Defendants-Appellants’ opening brief.  
C. 
Related Cases 
Amici agree with the assertion in the government’s stay motion that there 
are no related cases within the meaning of Circuit Rule 28(a)(1)(C).  
/s/ Daniel S. Volchok  
DANIEL S. VOLCHOK 
 
 
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CIRCUIT RULE 29(d) STATEMENT 
The amici joining in this brief are filing a separate brief from other amici. 
The separate brief is necessary because the amici joining this brief have a 
unique perspective—that of professors who teach and publish scholarship about 
United States refugee and immigration law.  In particular, they have a strong 
interest in the proper interpretation and administration of the nation’s immigration 
laws for refugees.  Amici submitting this brief were permitted by the district court 
to present their views separately from other amici. 
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TABLE OF CONTENTS 
Page 
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 
CASES ........................................................................................................................ i 
CIRCUIT RULE 29(d) STATEMENT ..................................................................... ii 
TABLE OF AUTHORITIES .................................................................................... iv 
GLOSSARY ............................................................................................................... v 
INTEREST OF AMICI CURIAE .............................................................................. 1 
BACKGROUND ....................................................................................................... 2 
ARGUMENT ............................................................................................................. 5 
THE CDC ORDER VIOLATES STATUTES PROVIDING FOR ASYLUM, 
WITHHOLDING OF REMOVAL, AND PROTECTION AGAINST TORTURE ......................... 5 
A. 
United States Statutes Protect From Removal 
Noncitizens Facing Persecution Or Torture In Their 
Home Countries ..................................................................................... 5 
B. 
Section 265 Does Not Override The Specific Protections 
From Removal That Congress Has Enacted In The 
Intervening Decades .............................................................................. 7 
CONCLUSION ........................................................................................................ 12 
CERTIFICATE OF COMPLIANCE 
 
CERTIFICATE OF SERVICE 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
CASES 
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) ............................................... 8 
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ....................... 11 
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ............................................................ 6 
United States v. Fausto, 484 U.S. 439 (1988) ......................................................... 11 
STATUTES, RULES, AND REGULATIONS 
8 U.S.C.  
§1101 ............................................................................................................... 5 
§1158 ......................................................................................................... 6, 10 
§1182 ............................................................................................................... 9 
§1225 ......................................................................................................... 4, 10 
§1229a .......................................................................................................... 6, 9 
§1231 ............................................................................................................... 6 
42 U.S.C.  
Part G ............................................................................................................. 11 
§265 ...................................................................................2, 7, 8, 9, 10, 11, 12 
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 
105-277, 112 Stat. 2681 ................................................................................... 7 
Illegal Immigration Reform and Immigrant Responsibility Act of 
1996, Pub. L. No. 104-208, 100 Stat. 3009 ..................................................... 9 
Refugee Act of 1980, P.L. No. 96-212, 94 Stat. 102 ................................................. 5 
8 C.F.R.  
§208.16 ............................................................................................................ 7  
§208.17 ............................................................................................................ 7 
§235.3 ............................................................................................................ 10 
42 C.F.R. Part 71 ...................................................................................................... 11 
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85 Fed. Reg.  
17,061 (Mar. 26, 2020) ................................................................................ 2, 3 
56,424 (Sept. 11, 2020) ................................................................................... 2 
 
86 Fed. Reg.  
9,942 (Feb. 17, 2021) ....................................................................................... 3 
38,717 (July 22, 2021) ..................................................................................... 3 
42,828 (Aug. 5, 2021) .................................................................... 2, 3, 4, 7, 10 
 
OTHER AUTHORITIES 
Convention Relating to the Status of Refugees Signed at Geneva, July 
28, 1951, 189 U.N.T.S. 150 ............................................................................. 5 
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 
6223 ................................................................................................................. 5 
 
 
 
 
 
 
 
 
 
 
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GLOSSARY 
CAT 
United Nations Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment 
CDC 
Centers for Disease Control and Prevention 
IIRIRA 
Illegal Immigration Reform and Immigrant Responsibility Act of 
1996 
 
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INTEREST OF AMICI CURIAE1 
Amici curiae are scholars with expertise in United States and international 
law governing refugees and United States immigration law; they have collectively 
spent decades researching and writing about refugee and immigration law.  Amici 
are as follows: 
 
T. Alexander Aleinikoff is University Professor at The New School and 
Director of the Zolberg Institute on Migration and Mobility; former United 
Nations Deputy High Commissioner for Refugees (2010-2015); and co-
author of a leading textbook, Immigration and Citizenship: Process and 
Policy. 
 
Deborah Anker is Clinical Professor of Law at Harvard Law School; 
Founder of the Harvard Immigration and Refugee Clinic; and author of a 
leading treatise, Law of Asylum in the United States. 
 
James C. Hathaway is the James E. and Sarah A. Degan Professor of Law at 
Michigan Law, University of Michigan; founding director of Michigan 
Law’s Program in Refugee and Asylum Law; and the author of The Rights of 
Refugees under International Law. 
 
Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, 
Foreign, and Comparative Law at Harvard Law School; a Co-Director of the 
Human Rights Program at Harvard Law School; and the author of Strangers 
to the Constitution: Immigrants, Borders and Fundamental Law.2 
 
1 No counsel for a party authored this brief in whole or in part, and no person other 
than amici or their counsel made a monetary contribution to fund the preparation or 
submission of this brief.  Amici are contemporaneously filing a motion for leave to 
file this brief. 
2 University affiliations are provided solely for informational purposes. 
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This brief provides an overview of the protections that Congress has enacted 
for refugees, often to effectuate principles of international law and United States 
treaty obligations.  As explained below, 42 U.S.C. §265 does not free the executive 
from the asylum, withholding of removal, or CAT protections mandated by 
Congress.  Because the government is thus unlikely to succeed on the merits of its 
appeal, its motion to stay pending appeal should be denied. 
BACKGROUND 
Last year, the Centers for Disease Control and Prevention (“CDC”) issued a 
final rule authorizing the CDC Director to suspend “the introduction into the 
United States of persons from designated foreign countries” if necessary to address 
the danger of introducing “communicable disease into the United States.”  
Suspension of the Right To Introduce and Prohibition of Introduction of Persons 
Into United States From Designated Foreign Countries or Places for Public 
Health Purposes, 85 Fed. Reg. 56,424, 56,425 (Sept. 11, 2020).  Prior to that, the 
CDC Director—purporting to act pursuant to a previous interim version of this 
rule—issued an order “suspend[ing] the introduction” of persons from Mexico or 
Canada who otherwise would enter a “congregate setting” in a land port of entry or 
Border Patrol station.  Order Suspending Introduction of Certain Persons From 
Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17,061, 17,067 
(Mar. 26, 2020).  This order did not apply to (1) United States citizens, lawful 
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permanent residents, and the spouses or children of U.S. citizens or lawful 
permanent residents; (2) members of the U.S. military, and their spouses or 
children; or (3) persons who arrive at a port of entry who have valid travel 
documents or are in the visa waiver program and not otherwise subject to travel 
restrictions.  Id. at 17,061.  Those persons who remained covered after these 
exceptions were denominated “covered aliens,” id., and subject to removal by the 
Department of Homeland Security immediately or as rapidly as possible, id. at 
17,067. 
In February 2021, the CDC announced a temporary exception from 
expulsion for unaccompanied minors encountered in the United States.  See Notice 
of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children 
Pending Forthcoming Public Health Determination, 86 Fed. Reg. 9,942 (Feb. 17, 
2021).  The CDC subsequently confirmed this exception.  See Public Health 
Determination Regarding an Exception for Unaccompanied Noncitizen Children 
From the Order Suspending the Right To Introduce Certain Persons from 
Countries Where a Quarantinable Communicable Disease Exists, 86 Fed. Reg. 
38,717 (July 22, 2021).  
Last month, the CDC issued a new order, which replaced and superseded the 
previous orders.  See Public Health Reassessment and Order Suspending the Right 
to Introduce Certain Persons from Countries Where a Quarantinable 
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Communicable Disease Exists, 86 Fed. Reg. 42,828 (Aug. 5, 2021) (“Order”).  
This Order continues to prohibit the introduction of “covered noncitizens,” defined 
to include single adults and “family units,” into the United States along U.S. 
borders.  Id. at 42,837.  The Order maintains the exception for unaccompanied 
noncitizen children.  Id. at 42,837-42,838. 
Before the CDC Order’s issuance, the Immigration and Nationality Act 
(“INA”) already authorized expedited removal of noncitizens who (1) arrive at the 
border without valid entry documents or (2) are apprehended after having entered 
the country without inspection and cannot prove that they have been physically 
present here for two years.  See 8 U.S.C. §1225(b)(1)(A)(i), (iii).  Immigration 
officers may proceed to remove such noncitizens immediately unless the 
noncitizen indicates an intention to apply for asylum, in which case asylum officers 
evaluate whether the noncitizen has a credible fear of persecution.  See id. 
§1225(b)(1)(B).  In light of this existing authority, the genuinely new authority 
granted by the CDC Order targets a particular group: “covered noncitizens” who 
would seek asylum or withholding of removal. 
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ARGUMENT 
THE CDC ORDER VIOLATES STATUTES PROVIDING FOR ASYLUM, 
WITHHOLDING OF REMOVAL, AND PROTECTION AGAINST TORTURE 
A. 
United States Statutes Protect From Removal Noncitizens Facing 
Persecution Or Torture In Their Home Countries 
From 1980 through 2008, Congress enacted a series of protections for 
noncitizens arriving or already present in the United States who face persecution or 
torture in their home countries.  These statutes effectuate principles of international 
law and treaty obligations of the United States, including those enshrined in the 
1951 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 
189 U.N.T.S. 150, and its 1967 Protocol, Jan. 31, 1967, 19 U.S.T. 6223, the latter 
of which the United States ratified in 1968. 
A first protection is asylum.  Congress established the asylum process in the 
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, which largely adopted the 
definition of “refugee” in the 1951 Convention and 1967 Protocol.  As relevant 
here, United States law defines a “refugee” as  
any person who is outside any country of such person’s nationality … 
and who is unable or unwilling to return to, and is unable or unwilling 
to avail himself or herself of the protection of, that country because of 
persecution or a well-founded fear of persecution on account of race, 
religion, nationality, membership in a particular social group, or 
political opinion. 
8 U.S.C. §1101(a)(42); compare 1951 Convention art. 1(A)(2); 1967 Protocol art. 
1(2).  With certain exceptions (none of which concerns public health), the INA 
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guarantees “[a]ny alien who is physically present in the United States”—like each 
plaintiff here—the right to apply for asylum protection as a refugee.  8 U.S.C. 
§1158(a)(1), (b)(1)(A).  In other words, while the determination of whether to 
grant asylum is discretionary, the right to apply for asylum is not. 
A second protection is withholding of removal for those facing persecution 
at home.  While the INA authorizes removal of noncitizens from the United States 
for specified reasons, see, e.g., 8 U.S.C. §1229a(a)(2), it prohibits removal (with 
exceptions not relevant here) to a country if “the alien’s life or freedom would be 
threatened in that country because of the alien’s race, religion, nationality, 
membership in a particular social group, or political opinion,” id. §1231(b)(3)(A).  
Unlike asylum, withholding of removal is mandatory if its requirements are 
satisfied.  See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 419-420 (1999).  This 
prohibition on forcible return to a country where a person’s life or freedom would 
be threatened derives from the international law principle of non-refoulement.  
That principle is set forth in, among other sources, the 1951 Convention, which 
provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in 
any manner whatsoever to the frontiers of territories where his life or freedom 
would be threatened on account of his race, religion, nationality, membership of a 
particular social group or political opinion.”  1951 Convention, Art. 33(1). 
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Yet a third protection for noncitizens is protection from torture, derived from 
the United States’ implementation of the United Nations Convention Against 
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 
(“CAT”).  See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 
105-277, §2242, 112 Stat. 2681, 2681-2822 (codified at 8 U.S.C. §1231 note).  
Under the regulations implementing that statute, withholding or deferral of 
removal is mandatory if the applicant shows that it is “more likely than not that he 
or she would be tortured if removed to the proposed country of removal.”  8 C.F.R. 
§§208.16(c)(2), 208.17(a).  And whereas asylum and withholding of deportation 
require that the threat to the noncitizen be based on his or her race, religion, 
nationality, membership in a particular social group, or political opinion, a threat of 
torture need not be so based in order to qualify for protection. 
B. 
Section 265 Does Not Override The Specific Protections From 
Removal That Congress Has Enacted In The Intervening Decades 
The CDC Order’s instruction that “covered noncitizens” be promptly 
removed from the United States with no opportunity to invoke asylum or 
withholding of removal—and with no provision for the processing of CAT claims 
other than “affirmative, spontaneous” statements by the noncitizen—rests on the 
proposition that a provision of the 1944 Public Health Service Act, 42 U.S.C. 
§265, overrides the statutory protections described above.  That proposition lacks 
merit for several reasons. 
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First, it is a longstanding rule of statutory construction that “[w]hen 
confronted with two Acts of Congress allegedly touching on the same topic, [a] 
Court is not at liberty to pick and choose among congressional enactments and 
must instead strive to give effect to both.”  Epic Sys. Corp. v. Lewis, 138 S. Ct. 
1612, 1624 (2018) (quotation marks and citation omitted).  Here, it is entirely 
possible to “give effect” to both the public-health statute and each of the 
immigration provisions discussed above.  Indeed, doing so would give effect to the 
most natural construction of the public-health statute.  That law gives the U.S. 
surgeon general “the power to prohibit … the introduction of persons and 
property” into the United States (emphasis added).  It is not about removal (or 
expulsion) of persons from the United States.  Nor, importantly, does section 265 
address the myriad protections in U.S. law (described above) against the forcible 
return of persons to countries where they face persecution or torture.  There is 
simply no reason why section 265 must, or should, be read to address a subject 
about which it says nothing—removal or expulsion of persons from the United 
States—or to negate fundamental, internationally recognized, and congressionally 
legislated protections that section 265 never mentions. 
Second, congressional action in the 75-plus years since the Public Health 
Service Act was enacted further confirms that Congress would not have understood 
it to override the statutory protections described earlier.  To start, Congress has 
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long addressed communicable diseases in the immigration laws:  The INA states 
that a noncitizen is inadmissible if he or she has “a communicable disease of public 
health significance,” which determination is to be made “in accordance with 
regulations prescribed by the Secretary of Health and Human Services.”  8 U.S.C. 
§1182(a(1)(A)(i).  In making this an inadmissibility ground, Congress also made it 
a ground for removal of persons who have arrived at a port of entry or entered the 
country without inspection.  See id. §1229a(a)(2) (authorizing charging of “alien” 
in removal proceedings “with any applicable ground of inadmissibility under 
section 1182(a)”).  Yet having provided for removal on this communicable-disease 
ground, Congress subjected that removal power to the normal defenses to removal, 
see id. §1229a(c)(4), including the protections of asylum, withholding of removal, 
and CAT.  Given that, it would be unreasonable to read section 265—a provision 
from an earlier public-health law—to free the Executive Branch from the 
restrictions against removal in those later-enacted laws. 
Congress also has specifically addressed executive authority to conduct 
expedited removal of persons who either arrive at the country’s land borders or 
cross them without inspection.  It did so in the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 100 Stat. 
3009.  That law, while purporting to authorize executive officials to remove certain 
individuals, nevertheless requires that noncitizens subject to expedited removal 
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have an opportunity to present any grounds they may have for asylum, withholding 
of deportation, or CAT protection.  See 8 U.S.C. §1225(b)(1) (authorizing removal 
without a substantial hearing “unless the alien indicates either an intention to apply 
for asylum under section 1158 of this title or a fear of persecution”); 8 C.F.R. 
§235.3(b)(4) (requiring an interview “[i]f an alien subject to the expedited removal 
provisions indicates an intention to apply for asylum, or expresses a fear of 
persecution or torture, or a fear of return to his or her country”).  The CDC Order 
denies these protections to the same persons covered by the INA’s expedited 
removal procedures: persons denominated “covered noncitizens” by the Order.  
But Congress already considered the circumstances in which inadmissible 
noncitizens could be removed expeditiously, and it made clear that even in those 
circumstances, the noncitizen is entitled to a substantial hearing (at minimum, an 
asylum officer interview, subject to further review) on claims of persecution or 
torture giving rise to protection from removal.  Again, given what Congress 
actually did in addressing expedited removal in IIRIRA, it would be unreasonable 
to read section 265 to free the Executive Branch from the restrictions enacted in 
expedited removal provisions. 
In sum, in the decades after Congress enacted section 265, it enacted a 
comprehensive set of immigration laws that both address the issues at the heart of 
the CDC Order—communicable diseases and expedited removal—and impose 
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specific restrictions on the authority of the Executive Branch to remove noncitizens 
from the United States in service of important broadly-recognized principles, 
including non-refoulement.  That history is significant because “the meaning of 
one statute may be affected by other Acts, particularly where Congress has spoken 
subsequently and more specifically to the topic at hand.”  FDA v. Brown & 
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).  In other words, the “classic 
judicial task of reconciling many laws enacted over time, and getting them to 
‘make sense’ in combination, necessarily assumes that the implications of a statute 
may be altered by the implications of a later statute.”  United States v. Fausto, 484 
U.S. 439, 453 (1988).  And put simply, section 265 cannot be read to negate the 
on-point statutory protections that Congress subsequently enacted.   
Nor is such a reading necessary to ensure public safety, as the government 
has suggested.  The current legal structure provides the government with ample 
tools to address communicable diseases while honoring the immigration 
protections Congress has provided.  Those tools include testing and quarantine of 
noncitizens; indeed, Congress has provided for just that power, see 42 U.S.C. Part 
G (Quarantine and Inspection), and the CDC has issued Foreign Quarantine 
Regulations pursuant to that authority, see 42 C.F.R. Part 71 (Foreign Quarantine).  
That is final confirmation that section 265 should not be read to override bedrock 
protections against persecution and torture that Congress (consistent with our 
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treaty obligations) has expressly mandated as part of the Nation’s immigration 
laws. 
CONCLUSION 
The government’s stay motion should be denied because section 265 does 
not free the Executive Branch from the asylum, withholding of removal, and CAT 
protections mandated by Congress, and hence the government is unlikely to 
succeed on the merits of its appeal. 
Respectfully submitted. 
/s/ Daniel S. Volchok 
 
NOAH A. LEVINE 
WILMER CUTLER PICKERING 
     HALE AND DORR LLP 
7 World Trade Center 
250 Greenwich Street 
New York, NY 10007 
(212) 230-8875 
DANIEL S. VOLCHOK 
SPENCER L. TODD 
WILMER CUTLER PICKERING 
     HALE AND DORR LLP 
1875 Pennsylvania Avenue NW 
Washington, DC 20006 
(202) 663-6000 
 
 
 
September 23, 2021 
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CERTIFICATE OF COMPLIANCE 
Amici are not aware of a rule governing the permitted length of an amicus 
brief in support of or in opposition to a motion.  Consistent with the general 
approach of the Federal Rules of Appellate Procedure regarding the length of 
amicus briefs, see Fed. R. App. P. 29(a)(5)-(6), amici have limited their brief to 
2,600 words, half the permitted length of a motion or opposition.  According to the 
word-count function of the word-processing system used to prepare the brief, the 
petition contains 2,583 words, excluding the portions exempted by Rule 32(f). 
/s/ Daniel S. Volchok 
 
Daniel S. Volchok 
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CERTIFICATE OF SERVICE 
On this 23rd day of September, 2021, I electronically filed the foregoing 
using the Court’s appellate CM/ECF system.  Counsel for all parties to the case are 
registered CM/ECF users and will be served by that system. 
/s/ Daniel S. Volchok 
 
DANIEL S. VOLCHOK 
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