Reply in Support of Emergency Stay Motion — Huisha-Huisha v. Mayorkas

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[ORAL ARGUMENT NOT YET SCHEDULED] 
 
IN THE 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. 
 
No. 21-5200 
 
REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY PENDING 
APPEAL AND FOR AN ADMINISTRATIVE STAY PENDING 
DISPOSITION OF THE STAY MOTION  
BRIAN M. BOYNTON 
Acting Assistant Attorney General 
 
CHANNING PHILLIPS 
Acting United States Attorney 
 
SHARON SWINGLE 
JOSHUA WALDMAN 
ASHLEY A. CHEUNG 
Attorneys, Appellate Staff 
Civil Division 
U.S. Department of Justice 
950 Pennsylvania Avenue NW 
Washington, DC 20530 
(202) 514-0236 
joshua.waldman@usdoj.gov
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INTRODUCTION 
The district court enjoined a straightforward application of a critical public 
health measure—the authority granted in Section 265 to prevent the introduction of 
a communicable disease into the United States.  The challenged CDC Order 
protects against the risk of transmission of COVID-19 resulting from holding 
noncitizens in congregate settings pending immigration processing.  The recent 
emergence of the highly transmissible Delta variant and the historic surge of 
noncitizens crossing the southwest border have only increased the need for the 
Order.   
Plaintiffs’ opposition fails to undermine the government’s demonstration 
that a stay is warranted.  On the merits, the statutory text and context strongly 
support CDC’s conclusion that Section 265 authorizes enforcement of the 
prohibition of introduction of noncitizens by expelling them if they manage to 
cross the border before being encountered.  Plaintiffs fall back on alternative merits 
arguments the district court did not reach to try to defend the court’s injunction.  
But those arguments disregard Section 265’s plain text and, in any case, are not 
before the Court.  At a minimum, CDC’s reasonable interpretation is entitled to 
Chevron deference.  On the balancing of harms, plaintiffs ask this Court to 
overrule CDC’s expert public-health judgment regarding the increased risk of the 
transmission of COVID-19.  And plaintiffs improperly dismiss this Court’s 
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previous stay of a preliminary injunction barring application of the CDC Order to 
unaccompanied noncitizen children.  See P.J.E.S. v. Mayorkas, D.C. Cir. No. 20-
5357, Document #1882899 (Jan. 29, 2021).  As in P.J.E.S., the injunctive-relief 
factors here support a stay pending appeal.1 
ARGUMENT  
I. 
The Government is Likely to Succeed on the Merits. 
A. 
Congress authorized CDC to prohibit the introduction of persons or 
property from foreign countries to avert a “serious danger of the introduction of 
such disease into the United States” that is “increased by the introduction of 
persons * * * from such countries.”  42 U.S.C. § 265 (emphasis added).  The word 
“into” means “[t]o the inside or interior of,” American Heritage Dictionary 934 (3d 
ed. 1992), demonstrating that Congress was concerned not only with stopping a 
communicable disease, and the persons and property carrying it, before they cross 
the border, but also with preventing further introduction of the disease, or the 
person or property, into the interior of the country and among its populace.  
 
Notably, Section 265 uses the word “introduction” in two senses:  “the 
introduction of persons” who would increase the danger of “the introduction of 
                                                 
1 If this Court denies a stay pending appeal, the government respectfully 
requests that the Court grant an administrative stay of no fewer than seven days to 
give the government an opportunity to seek emergency relief from the Supreme 
Court. 
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such [communicable] disease into the United States.”  That dual usage underscores 
the connection between a person’s presence in the United States and the risk of that 
person serving as a vector for transmitting disease into this country.  In holding 
that Section 265 contains no authority to expel a person who sets foot over the 
border, the district court mistakenly decoupled the statutory connection between a 
person’s presence and their propensity for transmitting disease. 
A statutory provision authorizing the prohibition of persons or property from 
entering certain protected areas encompasses both the power to prevent entry in the 
first instance and the power to expel if persons or property improperly enter.  
Plaintiffs’ insistence that that statute could confer that authority only if Congress 
“explicitly authorize[d] physical removal,” Opp.9 (emphasis added), or included 
catch-all language such as take “other appropriate action,” Opp.10, ignores that 
common-sense reading.  The fact that Section 265 does not contain the word 
“expel” or a synonym, Opp.9, is not surprising in a public-health provision most 
naturally read to include both the power to prevent persons from entering and to 
expel them if they manage to enter and continue to move into the country. 
Statutory context also squarely supports CDC’s interpretation.  Section 265 
seeks “to avert” the “serious danger of the introduction * * * into the United 
States” of “any communicable disease in a foreign country” if that “danger is so 
increased by the introduction of persons * * * from such country.”  The need to 
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prevent the spread of disease is in no way diminished by the fact that a noncitizen 
has arrived at a Port of Entry or managed to cross the border unlawfully, and 
neither plaintiffs nor the district court offer any plausible reason why the statute 
should be read to render CDC powerless in those circumstances.   
Plaintiffs note the government can arrest and imprison or fine noncitizens 
who cross the border.  Opp.12.  Although those punishments might deter unlawful 
border crossings in the first instance, they do not further the statutory purpose of 
averting the spread of disease caused by the continued presence of those who 
evidently were not sufficiently deterred.  Plaintiffs further suggest that Section 265 
provides “no authority” to stop noncitizens even before they cross the border, 
Opp.12 n.6 – a view that not even the district court endorsed, Add.41, and one that 
would render Section 265 a virtual nullity. 
 
At a minimum, Section 265 is ambiguous, and CDC’s reasonable 
interpretation is entitled to Chevron deference.  Plaintiffs do not dispute that CDC 
administers Section 265 and that the challenged Order carries the force of law and 
was issued under the authority of a Final Rule promulgated in accordance with the 
APA.  That is sufficient to warrant Chevron deference.  Encino Motorcars v. 
Navarro, 136 S. Ct. 2117, 2125 (2016).  Plaintiffs argue instead that CDC is 
entitled to no deference because its interpretation of Section 265 would override 
another statute it does not administer.  Opp.14-15.  But that argument is plainly 
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incorrect with respect to the primary issue presented: whether Section 265 by its 
own terms permits expulsion to avoid the spread of disease.  Moreover, contrary to 
plaintiffs’ assertion, Opp.15, CDC’s interpretation is rooted in its expert public-
health determination that “those who have physically crossed a border of the 
United States and are in the process of moving into the interior * * * present a risk 
of transmission of a communicable disease,” and may spread “communicable 
disease into the United States.”  85 Fed. Reg. at 16,563, 16,567.     
B. 
Plaintiffs also argue that Section 265 regulates only transportation 
common carriers, Opp.3-8; that CDC’s interpretation impermissibly overrides 
immigration statutes, Opp.13-14; and that its interpretation would raise 
constitutional concerns if applied to U.S. citizens, Opp.10-11.  Putting aside the 
anomaly of asserting that the district court did not abuse its discretion based on 
issues it never reached, see Add.43 n.6, plaintiffs’ arguments are meritless. 
1. 
Section 265 is not limited to introduction by common carriers.  Unlike 
neighboring provisions that explicitly regulate “vessels” or “aircraft,” 42 U.S.C. 
§§ 267(b), 269, 270, 271(b), Section 265 refers to “the introduction of persons” 
without any textual reference to their means of transportation.  “Congress generally 
acts intentionally when it uses particular language in one section of a statute but 
omits it in another.”  DHS v. MacLean, 574 U.S. 383, 391 (2015). 
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When Congress enacted Section 265’s predecessor, it expressly rejected an 
amendment to bar “passenger travel” or “all passenger travel,” 24 Cong. Rec. at 
470, concluding “that something more would be necessary in order to protect the 
public interest than the mere restriction upon passenger travel,” id.  Instead, 
Congress adopted the language prohibiting “introduction of persons.”  Id. at 471.   
Contrary to plaintiffs’ claim, Opp.8, Congress was not exclusively focused 
on passenger ships and was well aware that communicable diseases could be 
spread by persons arriving over land borders.  24 Cong. Rec. at 370 (noting the 
“terrible ravages [that] cholera was going to bring to this country” could “come 
from Mexico”); id. at 359 (noting immigration “coming through Alaska and 
Mexico”); id. at 364 (noting possibility of “cholera-breeding immigration which 
will come into this country by land” though Canada); id. at 371.   
2. 
Plaintiffs argue that CDC’s interpretation of Section 265 unlawfully 
conflicts with immigration provisions.  Opp.13-14.  But the statutes are readily 
harmonized:  immigration laws apply in normally prevailing conditions in the 
absence of a rare public-health emergency, whereas Section 265 is an emergency 
public-health provision that applies only in specific, limited circumstances. 
 
Regardless, Congress expressed its clear intent that Section 265 permits the 
temporary displacement of immigration laws by providing for a “suspension of the 
right to introduce such persons.”  42 U.S.C. § 265 (emphasis added).  An earlier 
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draft of Section 265’s predecessor included express authority for a “suspension” of 
“immigration,” 24 Cong. Rec. at 358, but after numerous legislators objected that 
“immigration” would not encompass temporary visitors, see id. at 361, 363, 374, 
Congress amended the language to provide for a “suspension of the right to 
introduce” “persons or property,” id. at 470-71, to empower the government to 
“exclude all other passenger travel as well as immigration.”  Id. at 471 (emphasis 
added). 
3. 
Plaintiffs assert that Section 265 cannot include the power to expel 
because that authority would raise grave constitutional questions if applied to U.S. 
citizens.  Opp.1, 10-11.  Neither the final rule nor the CDC Order, however, 
applies to U.S. citizens.  42 C.F.R. § 71.40(f); Add.91. 
Moreover, the district court’s construction of Section 265 would similarly 
raise constitutional concerns, as it would permit the government to indefinitely 
prevent U.S. citizens from reentering the country from abroad.  In other words, the 
avoidance doctrine does not assist plaintiffs because the interpretation they urge 
would not, in fact, avoid the constitutional issue they pose.  If CDC were ever to 
invoke Section 265 to expel U.S. citizens (or indefinitely bar their re-entry), a court 
could then address whether such an order would be unconstitutional as applied to 
U.S. citizens, cf. Reno v. Flores, 507 U.S. 292, 305-06 (1993), or whether 
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constitutional concerns call for an implicit exception for U.S. citizens, cf. Our Lady 
of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020). 
II. 
The Remaining Factors Support A Stay. 
 
There can be little doubt that the district court’s preliminary injunction 
increases the risk of the transmission of COVID-19 among noncitizens, U.S. 
Customs and Border Protection (CBP) personnel, and the public at large.  The 
injunction would require the government to hold covered family units in 
congregate settings for hours or days while they undergo immigration processing, 
in facilities that are not equipped for physical distancing, quarantine, or isolation at 
the best of times, and that are now substantially over their COVID-restricted 
capacity.  Add.69 ¶21.   
 
Plaintiffs assert that, because in June 2021 the government was unable to 
apply Title 42 to approximately 86% of individuals in family units, primarily as a 
result of foreign government restrictions, Add.86 & n.80, enjoining application of 
the CDC Order to the remaining family units “would not impose a drastic 
additional burden.”  Opp.17.  But under the CDC Order, the government expelled 
more than 8,000 individuals in family units per month in May and June 2021, and 
over 10,000 and 16,000 in July and August 2021, respectively.  Add.67-68 ¶¶ 17-
18; https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters 
(interactive dashboard).  The number of individuals in family units encountered 
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monthly has nearly doubled from May to August 2021 (from 44,000 to 86,000), 
id., and is expected to escalate sharply if the preliminary injunction is not stayed, 
as the application of Title 42 has been a significant deterrent to the entry of family 
units who qualify for processing under the CDC Order, Add.70 ¶ 23; D. Ct. Dkt. 
76-2 at 4, 9.2  Furthermore, two Border Patrol sectors on the southwest border have 
seen a disproportionate share of the encounters, resulting in “extremely 
worrisome” statistics, with one section at 783% over COVID-adjusted capacity as 
of August 2021.  Add.68-69.3  Plaintiffs’ observation that noncitizen family 
members are a “tiny fraction” of “all the travelers” who cross the border daily, 
Opp.19, is a meaningless comparison, as the vast majority of those travelers do not 
require lengthy Title 8 processing in congregate settings.   
 
Plaintiffs also fault the government for not employing testing, vaccines, and 
other mitigation protocols.  Opp.18.  Although DHS is moving expeditiously to 
implement and expand the use of such measures, as well as to build additional 
detention capacity, currently the “extreme population density and the resulting 
                                                 
2 Despite plaintiffs’ claim of inflated statistics due to repeat crossings, 
Opp.21, their own statistics show only a 16.8% recidivism rate for family units in 
the first nine months of fiscal year 2021, Supp.Add.127, which is dwarfed by the 
surge in the number of family unit encounters, Add.68-70. 
3 Overcapacity or other factors might necessitate the transfer of noncitizens 
to other regions for processing under Title 42, Opp.20, but those risks from 
overcapacity and transfer would be substantially exacerbated if the government 
must process all noncitizen family members under Title 8.  
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increased time spent in custody by noncitizens” in CBP facilities pose significant 
risk.  Add.84.  In addition, risk-mitigation efforts are constrained by requirements 
to hold various population cohorts separately, as well as resource constraints on the 
part of partner agencies and organizations that lack the ability to test all family 
units who are subject to Title 42.  Add.84-85.  Nor would the fact that certain local 
organizations might have available capacity to receive and transport families after 
they have been processed by CBP, Opp.23, lower the risk of spread of COVID-19 
while families are held in overcrowded CBP facilities pending immigration 
processing.  And even if the government could vaccinate all willing and eligible 
members of family units encountered, that would not eliminate the potential harm 
given the period of time before vaccination would be effective (even putting aside 
that many children are ineligible for vaccination). 
 
Plaintiffs also question whether positivity rates are increasing, Opp.19, but 
their limited evidence shows a steady increase from June 2021 to August 2021, 
Supp.Add.106, 131, 133, reflecting the same increased transmission due to the 
Delta variant that CDC identified, Add.75, 78.  In any event, CDC’s expert public-
health judgment regarding the rising positivity rates is entitled to deference, and 
even small numbers of contagious individuals can lead to substantial spread in 
crowded CBP facilities.  The injunction inhibits CDC’s authority to respond 
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effectively to changes in the public-health environment and the status of the 
pandemic.  
 
Plaintiffs also assert that the balancing of harms weighs against a stay 
because noncitizens who hope to come to the United States but are barred from 
doing so, or who have been encountered in the United States and expelled under 
the CDC Order, have been victimized by criminal gangs in those foreign countries.  
The government deplores the mistreatment of migrants, and has partnered with 
foreign governments and nongovernmental organizations to develop protections 
for those particularly vulnerable populations.  In part, those protections have 
included processing exceptions from the CDC Order for particularly vulnerable 
families, in partnership with nongovernmental organizations, an effort that has 
resulted in the exception of over 16,000 individuals from the CDC Order.  
Add.65 ¶11.  Although the federal defendants regret that participating 
nongovernmental organizations have recently ceased assisting individual 
noncitizens in seeking exceptions from Title 42, the government continues to grant 
case-by-case exceptions based on the totality of the circumstances, including 
humanitarian considerations.  But as the case comes to this Court, the issue is 
whether the federal government is disabled from taking quick action to protect the 
public health in circumstances that pose a risk of spread of COVID-19 not just for 
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covered noncitizens but for CBP personnel and the U.S. public.  With all respect, 
the government submits that it is not. 
CONCLUSION 
 
This Court should enter (1) an administrative stay of the district court’s 
order while this motion is considered and (2) a stay of the order pending appeal.  If 
this Court ultimately denies a stay, it should grant an administrative stay of no 
fewer than seven days to give the government an opportunity to seek emergency 
relief from the Supreme Court. 
 Respectfully submitted, 
 
BRIAN M. BOYNTON 
Acting Assistant Attorney General 
 
SHARON SWINGLE 
 
/s/ Joshua Waldman 
JOSHUA WALDMAN 
ASHLEY A. CHEUNG 
Attorneys, Appellate Staff 
Civil Division 
U.S. Department of Justice 
950 Pennsylvania Avenue NW 
Washington, DC 20530 
(202) 514-0236 
joshua.waldman@usdoj.gov 
 
 
 
September 2021
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CERTIFICATE OF COMPLIANCE 
I hereby certify that the foregoing satisfies the type-volume limitation in 
Rule 27(d)(2)(A) because it contains 2598 words. This motion also complies with 
the typeface and type-style requirements of Rule 32(a)(5) and Rule 32(a)(6) 
because it was prepared using Microsoft Word 2016 in Times New Roman 14-
point font, a proportionally spaced typeface. 
 
/s/ Joshua Waldman 
JOSHUA WALDMAN 
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that on September 27, 2021, I electronically filed the 
foregoing with the Clerk of the Court for the United States Court of Appeals for 
the District of Columbia Circuit by using the appellate CM/ECF system. 
Participants in the case are registered CM/ECF users, and service will be 
accomplished by the appellate CM/ECF system.   
 
 
/s/ Joshua Waldman 
JOSHUA WALDMAN 
 
 
 
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