Court filing
Brief for Appellees (Plaintiffs) — Huisha-Huisha v. Mayorkas
Filed November 12, 2021 in Nancy Huisha-Huisha v. Alejandro Mayorkas; one of 56 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the D.C. Circuit |
|---|---|
| Filed | 2021-11-12 |
Full text
ORAL ARGUMENT NOT YET SCHEDULED
__________________________________________________________________
No. 21-5200
__________________________________________________________________
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, et al.,
Plaintiffs-Appellees,
v.
ALEJANDRO MAYORKAS, et al.,
Defendants-Appellants.
________________________________________________________________________________________
On Appeal from the United States District Court
for the District of Columbia
No. 1:21-cv-100
Hon. Emmet G. Sullivan
________________________________________________________________________________________
BRIEF FOR APPELLEES
_______________________________________________________________
Stephen B. Kang
Cody Wofsy
Morgan Russell
My Khanh Ngo
American Civil Liberties Union
Foundation, Immigrants’ Rights
Project
39 Drumm Street
San Francisco, CA 94111
(415) 343-0774
Lee Gelernt
Omar Jadwat
Daniel A. Galindo
Ming Cheung
David Chen
American Civil Liberties Union
Foundation, Immigrants’ Rights
Project
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2660
lgelernt@aclu.org
Attorneys for Plaintiffs-Appellees
(Additional Counsel on Next Page)
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 1 of 73
Andre Segura
Kathryn Huddleston
Brantley Shaw Drake
American Civil Liberties Union
Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, Texas 77007
(713) 942-8146
Karla M. Vargas
Texas Civil Rights Project
1017 W. Hackberry Ave.
Alamo, Texas 78516
(956) 787-8171
Blaine Bookey
Neela Chakravartula
Jamie Crook
Karen Musalo
Center for Gender &
Refugee Studies
200 McAllister Street
San Francisco, CA 94102
(415) 565-4877
Robert Silverman
Irit Tamir
Oxfam America
Suite 500
Boston, MA 02115
(617) 482-1211
Scott Michelman
Arthur B. Spitzer
American Civil Liberties Union
Foundation of the District of
Columbia
915 15th Street, NW, 2nd floor
Washington, D.C. 20005
(202) 457-0800
Tamara F. Goodlette
Refugee and Immigrant Center for
Legal Education and Legal
Services (RAICES)
802 Kentucky Avenue
San Antonio, TX 78201
(210) 960-3206
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 2 of 73
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), counsel for Plaintiffs-Appellees
certify as follows:
A. Parties and Amici
Except for the following amici, all parties, intervenors, and amici appearing
before the district court and in this Court are listed in the Brief for Appellants:
(1) Immigration Law Reform Institute; (2) State of Texas. The Court denied the
State of Texas’s motion to intervene in this appeal.
B. Rulings under Review
Reference to the ruling under review appears in the Brief for Appellants.
C. Related Cases
This case has not previously been before this or any other court. P.J.E.S. v.
Mayorkas, D.C. Cir. No. 20-5357, does not involve the same parties as this case,
but involves a challenge to the U.S. Centers for Disease Control and Prevention’s
Order under 42 U.S.C. § 265 by a provisionally-certified class consisting of all
unaccompanied noncitizen children who (1) are or will be detained in U.S.
government custody in the United States, and (2) are or will be subjected to the
CDC Order.
/s/Lee Gelernt
Lee Gelernt
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ii
TABLE OF CONTENTS
GLOSSARY ............................................................................................................. xi
INTRODUCTION ..................................................................................................... 1
STATUTES AND REGULATIONS ......................................................................... 3
STATEMENT OF THE CASE .................................................................................. 3
I. LEGAL BACKGROUND ............................................................................... 3
A. The Comprehensive Immigration System Governing Removals and
Humanitarian Protections ....................................................................... 3
B. The Title 42 Process ................................................................................ 5
C. Title 42 in Operation ............................................................................. 10
II. DISTRICT COURT PROCEEDINGS ......................................................... 12
SUMMARY OF ARGUMENT ............................................................................... 13
ARGUMENT ........................................................................................................... 15
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. ............... 15
A. Section 265 Does Not Authorize Expulsions. ....................................... 16
B. Section 265 Was Designed To Regulate Only Transportation
Providers. .............................................................................................. 25
C. Adhering To The Statutory Text Does Not Render Defendants
Powerless To Respond To A Public Health Crisis. ............................. 31
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iii
D. Even Assuming The Statute Permits Expulsions In Some Cases, It
Cannot Override Congress’s Specific Humanitarian Protections. ....... 34
E. Chevron Deference Is Unwarranted. ..................................................... 40
II. FAMILIES WILL SUFFER IRREPARABLE INJURY ABSENT A
PRELIMINARY INJUNCTION. ............................................................... 42
III. THE REMAINING EQUITABLE FACTORS WEIGH STRONGLY IN
FAVOR OF A PRELIMINARY INJUNCTION. ..................................... 45
A. Migrant Families Are Not A Significant Source Of COVID-19. ......... 46
B. CDC Itself Agrees That Mitigation Measures Can Safely Reduce The
Risk Of COVID-19 Transmission. ....................................................... 49
C. The Injunction Does Not Impose A Substantial Burden On DHS. ....... 54
CONCLUSION ........................................................................................................ 58
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iv
TABLE OF AUTHORITIES
Cases
Alabama Realtors Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,
141 S. Ct. 2485 (2021) .................................................................. 3, 15, 23, 24, 34
Barron v. Burnside,
121 U.S. 186 (1887) ............................................................................................. 38
Brown v. GSA,
425 U.S. 820 (1976) ............................................................................................. 39
Chamber of Commerce of U.S. v. FEC,
69 F.3d 600 (D.C. Cir. 1995) ................................................................................ 42
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc
467 U.S. 837 (1984) .......................................................................... 12, 40, 41, 42
Clark v. Martinez,
543 U.S. 371 (2005) ............................................................................................. 24
Dessouki v. Att’y Gen. of U.S.,
915 F.3d 964 (3d Cir. 2019) ................................................................................. 24
District of Columbia v. Dep’t of Labor,
819 F.3d 444 (D.C. Cir. 2016) .............................................................................. 41
Doe v. Mattis,
928 F.3d 1 (D.C. Cir. 2019) .................................................................................. 24
Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018) ................................................................ 36, 37, 38, 39, 40
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 6 of 73
v
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S 120 (2000) ....................................................................................... 39, 41
Flores v. Sessions,
No. 85-CV-4544, 2018 WL 4945000 (C.D. Cal. July 9, 2018) ........................... 56
Grace v. Barr,
965 F.3d 883 (D.C. Cir. 2020). ........................................................................ 5, 35
Hazeltine v. Miss. Valley Fire Ins. Co.,
55 F. 743 (C.C.W.D. Tenn. 1893) ........................................................................ 38
Indep. Ins. Agents of Am., Inc. v. Hawke,
211 F.3d 638 (D.C. Cir. 2000) .............................................................................. 39
INS v. Aguirre-Aguirre,
526 U.S. 415 (1999) ............................................................................................... 4
J.B.B.C v. Wolf.,
No. 20-cv-01509-CJ, 2020 WL 6041870 (D.D.C. June 26, 2020) ............... 16, 40
Lockheed Martin Corp. v. United States,
833 F.3d 225 (D.C. Cir. 2016). ............................................................................. 57
Loving v. IRS,
742 F.3d 1013 (D.C. Cir. 2014). .................................................................... 40, 41
Merck & Co. v. U.S. Dep’t of Health & Human Servs.,
962 F.3d 531 (D.C. Cir. 2020) ................................................................. 21, 23, 41
Mexichem Fluor, Inc. v. EPA,
866 F.3d 451 (D.C. Cir. 2017) .............................................................................. 33
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NRDC v. Daley,
209 F.3d 747 (D.C. Cir. 2000) .............................................................................. 42
P.J.E.S. v. Wolf,
502 F. Supp. 3d 492 (D.D.C. 2020) .................................. 8, 23, 24, 37, 38, 40, 56
Padilla v. Kentucky,
559 U.S. 356 (2010) ............................................................................................. 16
R.I.L-R v. Johnson,
80 F. Supp. 3d 164 (D.D.C. 2015)........................................................................ 56
Rotkiske v. Klemm,
140 S. Ct. 355 (2019). .......................................................................................... 16
Russello v. United States,
464 U.S. 16 (1983) ............................................................................................... 18
SAS Inst., Inc. v. Iancu,
138 S. Ct. 1348 (2018) ......................................................................................... 41
United States v. Juvenile Male,
670 F.3d 999 (9th Cir. 2012) ................................................................................ 40
United States v. Texas,
--- F.Supp.3d ----, No. 21-CV-173, 2021 WL 4848743 (W.D. Tex. Aug. 26,
2021) ..................................................................................................................... 48
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ...................................................................................... 15, 41
Valentine v. United States ex rel. Neidecker,
299 U.S. 5 (1936) ................................................................................................. 18
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vii
Walsh v. Preston,
109 U.S. 297 (1883) ............................................................................................. 26
Statutes and Treaties
8 U.S.C. § 1158(a)(1) ................................................................................................. 4
8 U.S.C. § 1158(b)(2)................................................................................................. 5
8 U.S.C. § 1182(a) ................................................................................................... 19
8 U.S.C. § 1182(a)(1) ........................................................................................ 18, 33
8 U.S.C. § 1182(a)(1)(A)(i) ....................................................................................... 5
8 U.S.C. § 1222 ........................................................................................................ 33
8 U.S.C. § 1225(b)(1)............................................................................................... 35
8 U.S.C. § 1225(b)(1)(A)(i) ....................................................................................... 4
8 U.S.C. § 1225(b)(2)(C) ......................................................................................... 17
8 U.S.C. § 1229a(b)(4) ............................................................................................... 4
8 U.S.C. § 1229a(c)(4) ............................................................................................... 4
8 U.S.C. § 1231 ........................................................................................................ 16
8 U.S.C. § 1231(b)(3)................................................................................................. 4
8 U.S.C. § 1231(b)(3)(B) ........................................................................................... 5
18 U.S.C. § 3185 ...................................................................................................... 17
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viii
18 U.S.C. § 3186 ...................................................................................................... 17
18 U.S.C. § 3196 ...................................................................................................... 17
42 U.S.C. § 264(a) ................................................................................................... 20
42 U.S.C. § 264(b) ...................................................................................................20
42 U.S.C. § 264(c) ........................................................................................ 6, 20, 33
42 U.S.C. § 264(d) .................................................................................................. 20
42 U.S.C. § 265 .... 5, 6, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 30,
31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42
42 U.S.C. § 271 ................................................................................................... 6, 20
42 U.S.C. § 271(a) .............................................................................................. 6, 20
49 U.S.C. § 114(h)(3)(B) ......................................................................................... 19
Act of Aug. 5, 1892, Pub. L. No. 52-380, 27 Stat. 34 ............................................. 37
Act of Feb. 15, 1893, ch. 114, 27 Stat. 449 ...................................................... 25, 26
Act of May 6, 1882, ch. 126, 22 Stat. 58 ................................................................. 17
Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084 ................................................ 17, 18, 19
U.N. Convention Against Torture, art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20
(1988) ...................................................................................................................... 5
Pub. L. No. 105-207, Div. G. Title XXI, 112 Stat. 2681 ........................................... 5
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Regulations
8 C.F.R. § 1208.16 ..................................................................................................... 5
8 C.F.R. § 1208.17 ..................................................................................................... 5
8 C.F.R. § 1208.18 ..................................................................................................... 5
42 C.F.R. § 71.51(g) ................................................................................................ 20
82 Fed. Reg. 6,890 (Jan. 19, 2017) .......................................................................... 20
85 Fed. Reg. 16,559 (March 20, 2020) ...................................................................... 6
85 Fed. Reg. 17,060 (March 26, 2020) ...................................................................... 6
85 Fed. Reg. 56,424 (Sept. 11, 2020) ........................................................................ 7
86 Fed. Reg. 9,942 (Feb. 17, 2021) ........................................................................... 8
86 Fed. Reg. 38,717 (July 22, 2021) ................................................................... 8, 50
86 Fed. Reg. 41,863 (Aug. 3, 2021)......................................................................... 11
86 Fed. Reg. 42,828 (Aug. 5, 2021)........................................................................... 6
86 Fed. Reg. 50,989 (Sept. 9, 2021) ........................................................................ 52
86 Fed. Reg. 58,216 (Oct. 21, 2021) ........................................................................ 10
86 Fed. Reg. 59,603 (Oct. 25, 2021) ........................................................................ 10
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86 Fed. Reg. 61,224 (Nov. 5, 2021).................................................................. 48, 54
86 Fed. Reg. 61,246 (Nov. 5, 2021)......................................................................... 54
86 Fed. Reg. 61,252 (Nov. 5, 2021)......................................................................... 47
Other Authorities
24 Cong. Rec. 290 et seq. (1892-93) ........................................ 17, 25, 27, 29, 30, 31
Introduce, Universal English Dictionary (John Craig ed. 1861) ............................ 25
Introduce, Webster’s Collegiate Dictionary (1st ed. 1898) ..................................... 25
Treasury Department, United States Quarantine Laws and Regulations
(Feb. 24, 1893) ...................................................................................................... 27
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GLOSSARY
App.
Joint Appendix
Br.
Opening brief for Defendants-Appellants
CAT
United Nations Convention Against Torture
CBP
United States Customs and Border Protection
CDC
Centers for Disease Control and Prevention
DHS
United States Department of Homeland Security
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INTRODUCTION
The Title 42 Process is based on an 1893 statute that has never been
understood to authorize expulsions. The statute contains no mention of expulsion,
and, indeed, applies only to transportation providers, not individual travelers. The
lack of explicit expulsion authority is determinative. Congress has never
authorized, and the Supreme Court has never permitted, physical removal in any
context without explicit authority.
Defendants argue that “introduction” is a continuing process and continues
after one crosses the border. But the district court did not hold otherwise.
Assuming the statute regulates individual travelers at all, it provides only specified
enforcement mechanisms. One who crosses in violation of a public health order
can be arrested, jailed, and subject to civil fines. And other parts of the public
health laws authorize quarantines. They do not, however, authorize expulsion.
This is not a situation, moreover, where Congress overlooked the issue.
Since 1891, the immigration laws have expressly allowed removal for a
communicable disease. Critically, however, Congress has mandated that even
those with communicable diseases be allowed to seek asylum (though they can be
quarantined). In fact, over the past four decades, Congress has repeatedly amended
the asylum laws to disqualify certain groups from seeking protection, but has never
done so for those with communicable diseases. Moreover, in 1996 Congress
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addressed the same migrants covered by the Title 42 Process, and specifically
forbade the government from rapidly deporting them without an asylum
screening—yet Defendants now do just that. Thus, even assuming the statute
authorizes some expulsions, Defendant’s invocation of it impermissibly casts aside
Congress’s careful balancing.
Defendants do not seriously contest that Plaintiffs are suffering grave harm.
Not only are families with young children being flown to some of the most
dangerous countries in the world, but every day Defendants push families directly
into the hands of waiting cartels in Mexico who are routinely kidnapping and
brutalizing them, as Defendants are fully aware. App. 346.
Defendants nonetheless claim that a preliminary injunction is not warranted
and seek refuge in the expertise of the Centers for Disease Control and Prevention
(“CDC”). But CDC’s analysis actually supports the injunction. As numerous
public health experts, including former CDC officials, explained below, CDC’s
most recent Order did not conclude that asylum seekers cannot be safely processed
given the mitigation tools now readily available to the Department of Homeland
Security (“DHS”)—the Order was instead an “indictment” of DHS and its refusal
to adequately expand CDC’s recommended mitigation programs more than one-
and-a-half years into the pandemic. App. 396-97 (public health experts).
Moreover, because Defendants were already safely processing 86% of families at
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the time the district court ruled, an injunction would not mean a dramatic change
for Defendants. App. 122-23.
Dr. Anthony Fauci said it clearly: Immigrants are “absolutely not” a “major
reason why COVID-19 is spreading in the US,” and “expelling [immigrants] is not
the solution.” CNN, Fauci: Expelling immigrants ‘not the solution’ to stopping
Covid-19 spread (Oct. 3, 2021), https://tinyurl.com/5ua5m4bm (2:13 to 4:05 of
video) (“Fauci interview”). Indeed, expelled families comprise less than 0.1% of
persons daily entering the United States from Mexico. App. 458.
Ultimately, Defendants’ argument is that the public health statute should
provide them with an expulsion power. But as the Supreme Court recently held in
another Title 42 case, that argument is for Congress. Alabama Ass’n of Realtors v.
Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (“Alabama
Realtors”).
STATUTES AND REGULATIONS
Applicable provisions are contained in Appellants’ Brief.
STATEMENT OF THE CASE
I.
LEGAL BACKGROUND
A. The Comprehensive Immigration System Governing Removals and
Humanitarian Protections
In the immigration laws, Congress has devised an intricate system to balance
the need to remove ineligible noncitizens arriving at our borders with procedural
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safeguards and the right to seek protection for those fleeing danger. Generally,
individuals suspected of being inadmissible (or “removable”) have the right to
hearings before immigration judges, in which they are entitled, among other things,
to be represented by counsel, examine and present evidence, and testify. 8 U.S.C.
§§ 1229a(b)(4), (c)(4). But for those who arrive without proper travel documents,
Congress in 1996 provided DHS with authority to employ an expedited removal
process, in which border agents can rapidly order and effectuate removal. Id.
§ 1225(b)(1)(A)(i).
Regardless of the type of proceeding, Congress has expressly required that
noncitizens be able to seek specific humanitarian protections to fulfill our
obligations under international treaties and our solemn commitments after World
War II. Whether noncitizens are processed under regular or expedited removal,
they are entitled to seek three principal forms of protection. First, any noncitizen
“physically present in the United States or who arrives in the United States
(whether or not at a designated port of arrival . . .), irrespective of such
[noncitizen’s] status, may apply for asylum.” 8 U.S.C. § 1158(a)(1). Second,
withholding of removal prohibits removal “to a country where [that person’s] life
or freedom would be threatened” on a protected ground. Id. § 1231(b)(3). Enacted
to conform to the 1951 Refugee Convention, Congress made withholding of
removal non-discretionary. INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999).
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Finally, Congress has implemented Article 3 of the U.N. Convention Against
Torture (“CAT”), which provides that “[n]o State Party shall expel, return
(‘refouler’) or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to torture.”
CAT art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, at 20 (1988); see Pub. L.
No. 105-207, Div. G. Title XXI, § 2242(a), 112 Stat. 2681 (codified at 8 U.S.C. §
1231 note); 8 C.F.R. § 1208.16-18. Indeed, even the expedited removal process
was specifically “design[ed]” to ensure that noncitizens fleeing harm “are not
returned” without at least a screening for humanitarian protection. Grace v. Barr,
965 F.3d 883, 902 (D.C. Cir. 2020).
Congress has created narrow exceptions to these statutory protections. See 8
U.S.C. §§ 1158(b)(2), 1231(b)(3)(B). But none applies here. Under the
immigration laws, Congress has also expressly provided that “a communicable
disease of public health significance” can be the basis for deportation or denying
admission. 8 U.S.C. § 1182(a)(1)(A)(i). Yet even as Congress has repeatedly
amended the protection statutes to add additional exceptions, it has never made
communicable disease a basis for denying noncitizens the right to seek protection.
B. The Title 42 Process
The Title 42 Process is, in effect, a new parallel deportation system targeting
asylum seekers. Section 265 of Title 42, on which the CDC Order at issue here is
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based, was first enacted in 1893 and later reenacted without material change in the
Public Health Service Act of 1944. Section 265 currently provides that the
Surgeon General may “prohibit” the “introduction of persons and property” where
a communicable disease presents a serious danger to public health. Section 265
does not, however, prescribe the enforcement mechanisms. Rather, § 271 of Title
42 sets out the penalties for individuals violating a § 265 order. Those penalties do
not involve expulsion, but rather civil and criminal sanctions, including
“imprisonment for not more than one year.” § 271(a). Detention and quarantine
are likewise authorized. 42 U.S.C. § 264(c).
Nevertheless, CDC issued a rule and order in March 2020 providing for
summary expulsion as the means to “prohibit the introduction into the United
States of persons from designated foreign countries.” 85 Fed. Reg. 16,559, 16,563
(March 20, 2020); see 85 Fed. Reg. 17,060, 17,061 (March 26, 2020). CDC
reissued its order several times, including most recently in August 2021. App.
129-52; 86 Fed. Reg. 42,828 (Aug. 5, 2021) (“CDC Order” or “Order”).
The CDC Order does not provide for any screening for asylum or
withholding of removal. The Order provides only that noncitizens may be
screened for protection from torture. But under the policy, agents provide that
screening only if noncitizens make an “affirmative, spontaneous and reasonably
believable claim that they fear torture.” App. 212. Even then, such CAT
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screenings are not uniformly conducted, and when they are, they lack even the
most rudimentary procedural safeguards. App. 322, 428-29. Under this scheme,
few individuals have received a CAT screening (0.27% of all expulsions) and,
without the assistance of counsel, only a miniscule number of those given a
screening have passed (272 total).1
The CDC Order does not apply to the vast majority of people crossing the
U.S.–Mexico border, such as truck drivers, students, and businesspeople. App.
458; see App. 464-65 (families subjected to Title 42 represent 0.1% of the average
361,976 people who enter at land ports from Mexico daily). Rather, “covered
noncitizens” subject to expulsion are primarily limited to asylum seekers fleeing
persecution. See e.g., App. 351-52, 355-56, 379; 85 Fed. Reg. 56,424, 56,452
(Sept. 11, 2020).
Multiple news reports indicated that Trump Administration officials forced
CDC to adopt the Title 42 Process in March 2020 over the objections of the
agency’s experts. App. 46-47 (citing Wall Street Journal and others); James
Bandler, Inside the Fall of the CDC, ProPublica (Oct. 15, 2020),
https://tinyurl.com/4h48ubea. That initial March 2020 Order stated that asylum
seekers, including unaccompanied children, could not be safely allowed into the
1 Camilo Montoya-Galvez, Few migrants processed under Title 42 border
policy are screened for U.S. protection, CBS News (Oct. 15, 2021),
https://tinyurl.com/y9h7dek5.
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country, and sought to justify that conclusion based on the state of affairs at that
early date, including the lack of testing and a vaccine. 85 Fed. Reg. at 17,062
(“there is no vaccine”), id. at 17,066 (same for “rapid testing”).
In February 2021, with the change in administrations, CDC categorically
exempted unaccompanied minors from the Title 42 Process. 86 Fed. Reg. 9,942,
9,942 (Feb. 17, 2021); 86 Fed. Reg. 38,717, 38,718 (July 22, 2021).2 But CDC
has retained the Title 42 Process for families (and single adults, who are not at
issue in this case). App. 129. The most recent CDC Order, issued in August 2021,
did not conclude, however, that families could not safely be processed into the
country. App. 396. Rather, CDC explained that there were now a variety of
“mitigation protocols” that “can minimize risk” and cited, among other things, the
processing of asylum seekers in “outdoor” facilities, “the availability of testing
[and] vaccines,” and the ability to “partner with state and local agencies and
nongovernmental organizations” to provide mitigation measures. App. 131, 150.
The CDC Order further observed that the efficacy of these protocols had
already been demonstrated. CDC explained that the exemption of unaccompanied
minors was working because the Office of Refugee and Resettlement, the agency
2 In P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020), the district court
issued a nationwide preliminary injunction enjoining the Title 42 Process as to
unaccompanied minors. The government’s appeal of that injunction (No. 20-5357)
is being held in abeyance in this Court in light of CDC’s decision to exempt
unaccompanied minors.
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responsible for receiving unaccompanied children after processing, had
“established a robust network of care facilities that provide testing and medical
care and institute COVID-19 mitigation protocols, including vaccination” to
minimize risk after those children are released by United States Customs & Border
Protection (“CBP”). App. 145. “Thus, according to the CDC, the primary reason
that asylum-seeking families are still being subjected to Title 42 is because of
DHS’s failure to expand available mitigation measures.” App. 397 (public health
experts).
In light of CDC’s explanation for the continued application of Title 42 to
families, numerous health experts, including former CDC officials, submitted
affidavits below stating that the CDC Order was properly understood as an
“indictment of DHS” for refusing to institute the recommended protocols and “to
allocate resources toward mitigation protocols.” App. 397 (“The CDC Order also
makes clear that where the federal government has wanted to allocate resources
toward mitigation protocols for migrants entering the United States, it can do so, as
it did when it exempted unaccompanied minors from Title 42.”). These experts
concluded that “by combining multiple strategies, including vaccinations, testing,
masking, ventilation, and sanitizing [CBP] can safely process asylum-seeking
families while minimizing transmission of COVID-19.” App. 398. Additionally,
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they observed that migrants at the border are not a substantial source of COVID-19
infections, id., a point recently echoed by Dr. Fauci. See also App. 391.
Notably, even fully vaccinated migrants are denied the right to apply for
asylum under the Title 42 Process. Kristina Cooke et al., U.S. borders reopen, but
not for asylum seekers stuck in Mexico, Reuters (Nov. 9, 2021) (documenting use
of Title 42 against vaccinated asylum seekers), https://tinyurl.com/y6ywyxj5. That
stands in stark contrast to CDC’s recent decision to allow day shoppers and other
“non-essential” travel, including over the U.S.-Mexico border, if those individuals
have been vaccinated. See 86 Fed. Reg. 58,216, 58,217-18 (Oct. 21, 2021)
(“Notwithstanding [increased COVID-19 cases], vaccines are effective against
Delta and other known variants[.]”); 86 Fed. Reg. 59,603, 59,604 (Oct. 25, 2021)
(air travel).
C. Title 42 in Operation
Three points are notable. First, as Defendants acknowledge, Br. 15, not all
families can be expelled because Mexico and other countries refuse to receive
certain families. At the time of the injunction, the government was already safely
processing 86% of families into the United States, and expelling only 14%. App.
465.
Second, overwhelming evidence shows that asylum-seeking families are
expelled into grave danger, and Defendants submitted no contrary evidence.
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Because Defendants expel families at predictable times in predictable locations,
cartels often wait just across the border to abduct them, physically and sexually
assault them, and demand ransom from their relatives. See, e.g., App. 116, 346-47,
357-58, 366. For example, after one mother was expelled, “several armed men
grabbed her” and she was subsequently “raped multiple times” while “she begged
her captors not to harm her daughter.” App. 382. Another mother and her seven-
year-old daughter were kidnapped immediately after being expelled to Mexico and
held for two months without adequate food or water. App. 357. One organization
has documented 3,250 kidnappings and other attacks within just a six-month
period. App. 356-57. Even if families are able to avoid kidnapping, they must
often live in horrendous tent encampments where food and water are scarce, and
which are so dangerous that service providers are unable to visit; others live in
abandoned buildings, under bridges, or on the streets. See, e.g., App. 362, 375-76,
380.
Defendants fly other families to countries where political institutions have
collapsed and where brutal abuses and persecution are rampant. See, e.g., App.
337-38; see also Designation of Haiti for Temporary Protected Status, 86 Fed. Reg.
41,863, 41,864 (Aug. 3, 2021) (citing “a deteriorating political crisis, violence, and
a staggering increase in human rights abuses.”); App. 482 (citing U.N. report
documenting high homicide rates in Guatemala, Honduras, and El Salvador).
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Third, the limited humanitarian exemption process facilitated by non-
governmental organizations on which Defendants rely is no longer in existence.
Br. 54; Mica Rosenberg, Disappearing asylum protections for migrant families at
border test Biden, Reuters (Aug. 11, 2021), https://tinyurl.com/zr8j2mhc.
II.
DISTRICT COURT PROCEEDINGS
The district court granted a classwide preliminary injunction prohibiting the
application of the Title 42 Process to families. App. 101-27. The court observed
that § 265 “contains no mention of the word ‘expel’—or any synonyms thereof—
within its text,” App. 103, and contrasted that absence with statutes governing
immigration, which specifically provide procedures to remove noncitizens with
communicable diseases. App. 104-05. The court further noted that Title 42
provides specific means of enforcement, namely civil and criminal penalties, but
does not include expulsion. App. 105-11. The court also held Chevron deference
was not warranted. App. 111-12.
On the harms, the court noted that that this case did not involve single adults
and that 86% of families were already being safely processed, so an injunction
would not require a dramatic change in border operations. App. 122-23. The court
additionally observed that numerous mitigation measures are now available. App.
125. It concluded that DHS could not refuse to provide asylum access, even if
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doing so would require “allocation of resources,” especially where there was
indisputable evidence that expelled families were being brutalized. Id.
This Court expedited the appeal but stayed the preliminary injunction in a
summary order without opinion.
SUMMARY OF ARGUMENT
I. Section 265 does not authorize expulsions, as demonstrated by the
statute’s text, context, and history. But even if the statute authorized some
expulsions, it does not override statutory rights to seek humanitarian protection.
When Congress wants to provide the extraordinary authority to forcibly
remove someone from the country, it does so expressly—as the Supreme Court has
specifically required. Yet § 265 does not mention an expulsion power. Indeed,
§ 265’s penalty provision specifically authorizes civil and criminal sanctions, but
not expulsions. Moreover, if Defendants’ interpretation of § 265 were correct, it
would mean that Congress silently authorized summary expulsions not only of
noncitizens, but also of citizens. That is extremely doubtful and would raise
serious constitutional concerns. Congress’s choice to omit expulsion power is
unsurprising: The statute was aimed at ships bringing cholera from Europe and
regulates only the “introduction” of persons by transportation providers, and does
not even apply to individual travelers themselves.
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Even if § 265 were not limited to the regulation of transportation providers,
and authorized expulsions of some individuals, it could not authorize the summary
expulsions of individuals seeking protection. Congress has repeatedly created
exemptions to the humanitarian protection statutes, but not for communicable
disease. Although migrants can be subject to medical examinations and
quarantines, Congress has forbidden them to be summarily sent back to danger
without access to mandatory humanitarian procedures and protections. And in
1996 Congress specifically rejected rapid deportations without an asylum
screening for noncitizens arriving without immigration documents—the same
people that Defendants are now expelling with no such screening. Title 42
expulsions thus override Congress’s specific humanitarian protections, even
though those protections were enacted long after the more general 1893 public
health statute. Defendants cannot carry the heavy burden of showing Congress
manifestly intended that result.
II. The Title 42 Process is inflicting unspeakable harms on families,
including those with babies and toddlers. Families are pushed across bridges into
the waiting arms of the cartels, a fact of which Defendants are well aware. They
are also flown to exceptionally dangerous countries. Not surprisingly, therefore,
Defendants do not seriously dispute that Title 42 inflicts grave harm on families.
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III. Defendants argue that a preliminary injunction is nonetheless
unwarranted because of the risk of COVID-19 transmission, seeking refuge in the
CDC Order. But CDC did not conclude that asylum processing is unsafe, only that
DHS must expand existing mitigation protocols. A preliminary injunction is
necessary to force DHS to take these readily available mitigation steps.
ARGUMENT
I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
Section 265 of Title 42 was enacted in 1893. Its only prior use to suspend
the introduction of persons was in 1929, to stop vessels from transporting people to
our shores during a meningitis outbreak. Defendants claim to have now discovered
in this statute a never-before-asserted authority to execute summary expulsions
without regard for Congress’s carefully crafted judgments in the immigration laws.
But when an agency claims to discover “an unheralded power” in such “a long-
extant statute,” courts “greet its announcement with a measure of skepticism.”
Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014); see Alabama Realtors, 141
S. Ct. at 2487, 2489 (rejecting “unprecedented” CDC eviction moratorium
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promulgated under neighboring Title 42 provision). That skepticism is well-
warranted here.
A. Section 265 Does Not Authorize Expulsions.
For the first time in the statute’s long history, the government asserts that
Congress provided the authority to establish an entire system of summary
“expulsions,” in parallel to the longstanding immigration deportation system but
without the immigration laws’ careful procedural protections. Yet § 265 says
nothing about expulsions.
1. Section 265’s text contains nothing about the power to physically remove
people from the country. “A textual judicial supplementation is particularly
inappropriate when, as here, Congress has shown that it knows how to adopt the
omitted language or provision.” Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019).
When Congress wants to authorize physical removal, it does so “plainly.” App.
104; see also J.B.B.C v. Wolf., No. 20-cv-01509-CJ, 2020 WL 6041870, at *2
(D.D.C. June 26, 2020) (Nichols, J.) (similar). Indeed, Plaintiffs are not aware of a
single time in which Congress has ever silently authorized expulsions, which
makes sense for “such a ‘severe penalty.’” App. 103-04 (quoting Padilla v.
Kentucky, 559 U.S. 356, 365 (2010)) (cleaned up).
The immigration statutes explicitly provide the authority to physically expel
people, whether as a permanent “removal,” 8 U.S.C. § 1231, or temporary
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“return,” 8 U.S.C. § 1225(b)(2)(C). And Congress has been expressly granting
such authority since the earliest immigration regulations, even before the 1893 law
at issue here. See Act of May 6, 1882, ch. 126, §§ 2, 12, 22 Stat. 58, 59, 61
(providing for unauthorized immigrants “to be removed”); Act of Mar. 3, 1891, ch.
551, 26 Stat. 1084, 1086 (providing for unauthorized immigrants to “be
immediately sent back”).
Notably, Congress considered but declined to enact another bill alongside
the 1893 Act at issue here, which would have provided that anyone “entering the
United States contrary to” its terms “be sent back to the country from which he
came.” 24 Cong. Rec. 290; see id. at 305. Section 265 has never contained similar
language.
Contrary to Defendants’ suggestion (at 31-32), Congress’s long history of
expressly granting authority to physically remove is not limited to immigration.
Extradition statutes, for example, likewise explicitly empower the government to
physically expel people from the United States. See, e.g., 18 U.S.C. §§ 3185
(authorizing “return[] and surrender[]” of fugitives), 3186 (authorizing fugitive “to
be delivered to” foreign government).
And the Supreme Court has specifically invalidated an extradition on the
ground that the treaty’s text lacked the clear statement necessary to confer the
extraordinary power to physically remove a person, emphasizing that such a power
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“must be affirmatively granted” by Congress. Valentine v. United States ex rel.
Neidecker, 299 U.S. 5, 12 (1936) (emphasis added). In doing so, Valentine
specifically rejected the government’s argument that the power to extradite could
be divined by implication. Id. at 11-12.
Defendants invoke dicta in Russello v. United States, 464 U.S. 16, 25
(1983), to argue none of these non-public health statutes are relevant, Br. 32, but
“the Supreme Court routinely points to other statutes as evidence that Congress
knows how to legislate in particular ways,” App. 109-10 n.5 (citing cases).
Nor did Congress simply fail to address communicable diseases. Congress
has long supplied immigration officials with express authority to remove
noncitizens specifically for public health reasons, even before 1893. See 26 Stat. at
1084 (1891). That authority likewise exists today. See 8 U.S.C. § 1182(a)(1)
(“[h]ealth-related grounds” of removal, including communicable diseases); id.
§ 1222 (medical detention and examination as part of immigration processing).
Thus, Congress plainly knows how to authorize expulsion in the name of public
health, yet did not do so in § 265. Critically, moreover, Congress has amended the
humanitarian protection provisions multiple times over the past four decades to add
various exception to the right to seek protection but has never created an exception
for communicable diseases. See infra Part I.D.
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Defendants nonetheless argue that a “statute prohibiting persons from
entering certain protected areas is most naturally read to include . . . the power to
expel.” Br. 27-28. If that were true, then for the past century Congress could
simply have prohibited entry in the immigration laws with no need to explicitly
provide corresponding authority for deportation. Yet Congress has always
expressly provided both for prohibitions on entry into the country and for
deportation. See, e.g., 26 Stat. at 1084, 1086 (describing categories that “shall be
excluded from admission,” and directing that they be “sent back” and “returned”);
8 U.S.C. § 1182(a) (categories that are “ineligible to be admitted” under current
law); id. § 1231 (“removal” of such people). Defendants cannot so easily avoid the
clear statement rule.
Defendants’ purported examples offer no support. They claim, for example,
that the “authority to ‘prevent [a dangerous] individual from boarding an aircraft,’”
must also “authorize [their] removal.” Br. 28 (quoting 49 U.S.C. § 114(h)(3)(B)).
But that subsection speaks not only of preventing boarding, but also “tak[ing] other
appropriate action with respect to that individual.” Whatever that language might
authorize an airline to do, it bears no resemblance to § 265, which includes no
similar catch-all language.
Defendants likewise cite regulatory actions asserting the power to “export”
animals, arguing such power is granted by § 265. Br. 28. But each of those
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actions, whatever their validity, relied on authority in addition to § 265, including
42 U.S.C. § 264(a), which provides express authority for “destruction” and “other
measures” to deal with dangerous “animals or articles.” See 82 Fed. Reg. 6,890,
6,929 (Jan. 19, 2017) (“re-exportation, or destruction”); 42 C.F.R. § 71.51(g)
(animals “shall be exported or destroyed”). It is unsurprising that, having
expressly authorized the destruction of animals, “other measures” under § 264(a)
might then be read to permit exportation. But CDC’s powers over human beings
are (properly) much more curtailed. See 42 U.S.C. § 264(b)-(d).
Congress’s omission of expulsion power should be the end of Defendants’
case given that such an extraordinary power has always been granted only by an
express statement.
2. That § 265 provides no expulsion power is strongly reinforced by a
neighboring provision, 42 U.S.C. § 271(a), which lays out the “[p]enalties” for
violation of “any regulation prescribed” under § 265 and makes no mention of any
expulsion authority. Instead, § 271 provides only for fines and imprisonment (to
accompany a quarantine power granted by other provisions). Had Congress
intended expulsion to be an available enforcement mechanism, it would have said
so.
Defendants do not deny that the § 271 penalties apply to § 265 violations,
but argue that § 271 is not relevant because its penalties also apply to provisions
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other than § 265. Br. 34. But that is illogical. Indeed, the fact that Congress chose
to adopt penalties for § 265 as part of an overall penalties scheme further
undermines Defendants’ theory: While Congress understood the agency would be
permitted to issue a specific kind of prohibition order under § 265, it saw no need
to provide enforcement authority distinct from the other public health provisions.
By contrast, under Defendants’ view that § 265 silently authorizes whatever
enforcement mechanisms the agency deems necessary to back its prohibitions,
there would have been no reason for Congress to have specified any penalties for
violating § 265 orders.
If Congress had intended to authorize whatever “public-health mitigation
measures” Defendants might deem “the most effective” to enforce § 265, Br. 34, it
could have said so. Ultimately, Defendants’ argument reduces to a claim that
because § 265 was enacted to protect public health, it must provide for expulsions.
But “agencies are bound, not only by the ultimate purposes Congress has selected,
but by the means it has deemed appropriate, and prescribed, for the pursuit of those
purposes.” Merck & Co. v. U.S. Dep’t of Health & Human Servs., 962 F.3d 531,
536 (D.C. Cir. 2020) (internal quotation marks omitted).
3. Defendants claim that the district court erred in assuming that “once a
person has crossed the border, that person’s ‘introduction’ is complete” and
Defendants are powerless to address it. Br. 19. They argue that the term
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“introduction” should be understood as “a continuing process” that does not end
after the individual crosses the border. Id. at 26.
But the district court accepted for purposes of argument Defendants’ view
that introduction is “a continuing process” and that § 265’s authority to “prohibit”
such introduction allows Defendants to enforce that prohibition after one passes the
border, whether they are one foot into the country or further. App. 108, 110
(quoting Defendants’ brief). The district court’s point, and Plaintiffs’ argument
here, is not that § 265 turns on whether one has crossed the border, but on the
enforcement mechanisms available under the statute. Even assuming § 265 applies
to individual travelers at all, and not just transportation providers, but see infra Part
I.B, civil and criminal penalties are the statutorily authorized mechanism for
enforcing § 265 orders, thus allowing even imprisonment as a means of stopping
the violation after one crosses the border (in addition to quarantines and the
explicit power to remove under the immigration laws). See App. 110.
Defendants argue, however, that the statute would make little sense if it
allowed the government to physically stop one from entering U.S. soil but not
expel after entry. Br. 26-29. But the district court did not decide whether the
public health laws permit the government to physically block entrance or, instead,
authorize enforcement through quarantine, the imposition of fines, and
imprisonment after one crosses the border in violation of a public health order.
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There is good reason to doubt that any such power to physically block entrance
exists, given that the statute says nothing about it. Indeed, to the extent such a
power exists, it would likely rest on authorities outside the public health laws and
not at issue here. In any event, even if the statute permitted the government to
physically block entrance while denying the power to expel, Defendants overstate
any resulting illogic: The power to expel is more extreme than the power to block
entrance—especially where U.S. citizens are subject to the statute, as they are here,
see infra.
4. The implications of Defendants’ interpretation cannot be ignored.
Section 265 applies to “persons,” and Defendants have conceded that, on their
view, the statute provides authority “to expel even U.S. citizens.” P.J.E.S., 502 F.
Supp. 3d at 539-40 (noting concessions). This asserted authority is “breathtaking.”
Alabama Realtors, 141 S. Ct. at 2489. It makes no difference to the interpretation
of the statute that the current Title 42 policy exempts citizens. See Br. 43. “[T]he
breadth of the [government’s] asserted authority is measured not only by the
specific application at issue, but also by the implications of the authority claimed.”
Merck, 962 F.3d at 541. Defendants’ interpretation necessarily implies that
Congress silently empowered health officials to summarily, indefinitely, and
physically expel U.S. citizens from their own country. That is hardly likely, and is
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a compelling additional reason to reject that interpretation. See Alabama Realtors,
141 S. Ct. at 2489.
The implications of Defendants’ position are magnified here because the
claimed power to summarily expel citizens raises grave constitutional questions.
See P.J.E.S., 502 F. Supp. 3d at 540; Doe v. Mattis, 928 F.3d 1, 8 (D.C. Cir. 2019)
(“A fundamental attribute of United States citizenship is a right to remain in this
country.”) (cleaned up); Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 967 (3d Cir.
2019) (applying constitutional avoidance because the “Executive cannot deport a
citizen”).
Defendants suggest that the grave constitutional issues presented by their
statutory theory should be decided only when CDC actually expels citizens. Br.
44. But the Court should not now embrace an interpretation that would require
such future constitutional adjudication. Avoidance is “a tool for choosing between
competing” statutory interpretations, allowing “courts to avoid the decision of
constitutional questions,” “whether or not [the] constitutional problems pertain to
the particular litigant before the Court.” Clark v. Martinez, 543 U.S. 371, 381
(2005).3
3 Defendants suggest that the same constitutional questions are presented by
the “district court’s understanding of Section 265 [as permitting] CDC to stop
persons before they cross the border.” Br. 44. But, as noted above, the district
court did not decide whether § 265 provides the power to block entrance.
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B. Section 265 Was Designed To Regulate Only Transportation Providers.
That § 265 does not authorize expulsions is unsurprising given that the
statute does not even apply to individual travelers, but rather regulates only the
“introduction” of “persons or property” by someone else, namely transportation
providers. Although the district court did not reach this argument, it is an
independently sufficient basis to find the Title 42 Process unauthorized.
1. When the statute was passed in 1893, Congress’s overriding concern was
cholera coming by ship from Europe, and it sought to remedy the problem by
prohibiting transportation companies from introducing individuals into the
country. See, e.g., 24 Cong. Rec. 360 (“It is well known to Senators that 90 or 95
per cent of the immigration into the United States comes into the city of New
York, and that the most danger of cholera is to be apprehended from vessels
arriving at that port.”).
Section 7 of the 1893 Act, which the parties agree became § 265 in 1944
without material change, granted the “power to prohibit, in whole or in part, the
introduction of persons and property” into the country. Act of Feb. 15, 1893, ch.
114, § 7, 27 Stat. 449, 452 (emphasis added). That term—“introduction”—meant
then, as now, “‘the act of bringing into a country.’” Introduce, Universal English
Dictionary 1067 (John Craig ed. 1861); see also Introduce, Webster’s Collegiate
Dictionary 453 (1st ed. 1898) (“[t]o lead, bring, or usher in”); Br. 31 (same). As a
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matter of ordinary language and usage, introducing a person into a country or place
is an action taken by a third party—in 1893, the transportation companies which
brought the overwhelming majority of immigrants to the United States.
Thus, for example, the Supreme Court held in 1883 that a “colonization”
contract requiring a party to “introduce” immigrant families into Texas was
unsatisfied, where there was no evidence that new residents “were brought to
Texas by [the party];” rather, “they came and settled of their own accord.” Walsh
v. Preston, 109 U.S. 297, 298, 314, 315 (1883). Likewise, nineteenth-century state
statutes made it unlawful “for any free . . . person of color to migrate into this
State, or be brought or introduced into its limits.” App. 417 (emphases added); see
id. at 424 (similar). “[T]o migrate” is an action an individual takes, moving
themselves into a new state, and accordingly is used in the first clause as an
intransitive, active verb. By contrast, the second clause uses a passive and
transitive construction because a person is “brought” or “introduced” into a state by
someone else (like a transportation company).
The ordinary meaning of “introduction” as referring to the actions of a third
party is reinforced by the statutory context. The Act’s other provisions were
directed at ships, see §§ 1–6, 27 Stat. 449-51, and imposed penalties only against
them, see id. §§ 1–3 (fines for “vessel” violating Act). And, tellingly, the
regulations promulgated pursuant to the Act immediately after its enactment were
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exclusively (and exhaustively) focused on the regulation of ships to protect the
public health. See Treasury Department, United States Quarantine Laws and
Regulations (Feb. 24, 1893), https://tinyurl.com/y82rtn5u.
The history of the statute also strongly reinforces that it regulates only
transportation providers. In 1892, just prior to this provision’s enactment, the
Executive Branch took unprecedented steps to protect against cholera by
regulating transportation. As the Surgeon General explained, “vessels conveying”
certain immigrants were a “direct menace to the public health.” App. 207
(emphasis added). He therefore issued orders, see id., effectively halting all
transportation of immigrants in the interest of public health, Twenty Days
Quarantine, N.Y. Times (Sept. 2, 1892), https://tinyurl.com/wrcaz5z8.
Importantly, this action triggered a significant debate about whether the Executive
had authority to take such action under existing law. Id. The 1893 statute, enacted
just months later, was a direct response, expressly authorizing prohibitions on
transportation providers introducing people into the country. See 24 Cong. Rec.
360 (sponsor of 1893 Act inquiring to Assistant Treasury Secretary “what is the
present statutory authority under which” the 1892 order was issued, and what
“additional law, if any, is desired confirming or conferring” authority).
Notably, moreover, prior to 2020 the only time the statute was ever used to
prohibit the introduction of persons was to regulate transportation providers, not
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individual travelers. President Hoover, invoking the statute in 1929, issued an
Executive Order entitled: “Restricting for the time being the transportation of
passengers from certain ports in the Orient to a United States port.” App. 203
(emphasis added). The Treasury Department issued associated regulations
“governing the embarkation of passengers and crew” and “their transportation to
United States ports.” Id.
2. Defendants do not dispute that Congress’s central focus in enacting the
statute was on ships bringing cholera from Europe. They suggest, however, that if
§ 265 applied only to third-party transportation (and not to individual travelers as
well), Congress would have limited its terms to “common carriers.” Br. 38. But to
address all the entities and persons who would be transporting “persons” or
“property” under § 265, “common carriers” would not fit the bill. Congress could
have included a long list: common carriers, other carriers, shippers, captains,
owners, agents, etc. Instead, it chose to use the general term “introduction of
persons and property” to encompass the various means of transporting passengers
and cargo, as well as the persons responsible for doing so, such as ship
captains. That concise choice does not undermine the overall limitation to third-
party transportation.
Defendants note that Congress rejected an amendment to what became § 265
that would have prohibited “all passenger travel, but not immigration alone.” 24
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Cong. Rec. 470; see Br. 38 (selectively quoting amendment). They argue that this
amendment was rejected because of a concern that “something more would be
necessary” than a “restriction upon passenger travel,” and suggest that the
“something more” must have been to extend the statute to individual travelers as
well as passenger travel. Br. 38. That conclusion is flatly wrong.
The final language of the bill does cover “something more” than regulation
of “passenger travel,” namely transportation not only of persons (passengers), but
also property. Moreover, the “passenger travel” amendment was actually rejected
for an entirely different reason: disagreement over how broad passenger
transportation restrictions should be. The amendment they cite would have
prohibited “all passenger travel, but not immigration alone.” 24 Cong. Rec. 470
(emphasis added). The proponent of that amendment, Senator Vilas, explained
that the point of this language was to prohibit “discrimination” against immigrant
passengers, such that if public health required a prohibition at all, it would have to
apply to everyone (including citizens) evenhandedly. Id.4 Other Senators rejected
this anti-discrimination principle, arguing that the government should be able to
“discriminate wisely” and bar only transportation of immigrants if it chose to do so
4 The Senators used the term immigration in this context as shorthand for
passenger travel of immigrants. Thus, Senator Vilas observed that a bill simply
prohibiting “all passenger travel” would include the “less[er]” power to prohibit
“immigration.” 24 Cong. Rec. 470.
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in particular circumstances. Id. For that reason, the proposal was rejected, and the
eventual bill was amended to allow prohibitions to be “in whole or part.” Id. at
470-71.
Thus, the rejection of the amendment does not support Defendants’
argument that § 265 regulates individuals arriving by foot; to the contrary, the
entire debate was focused on regulation of passenger transportation (as well as
cargo). Indeed, Senator Chandler (a primary supporter of the bill) equated the final
“introduction” language with the “passenger travel” language, explaining the
prohibition power would apply to “all other passenger travel as well as
immigration.” Id. at 471 (emphasis added). In other words, the statute would
allow prohibition of passenger travel by immigrants, as well as all other passenger
travel (including citizens). Not one Senator suggested that any of these
formulations would apply to individual travelers arriving by foot.
Defendants cite snippets of legislative history mentioning disease from
Mexico and Canada to suggest Congress was not “exclusively” concerned with the
threat of cholera by ship. Br. 39. But Defendants do not deny that that was
Congress’s overriding focus. Senator Chandler noted that “90 or 95 per cent” of
immigration arrived “into the city of New York” and “most” of the “danger of
Cholera” came from “vessels arriving at” just that single port. 24 Cong. Rec. 360.
Thus, he further explained (in a statement Defendants selectively quote) that he
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was “not afraid” of cholera coming “by land.” 24 Cong. Rec. 364 (emphasis
added). And other Senators that Defendants quote, far from suggesting the bill was
aimed at individuals crossing the land border, actually criticized the bill
for not addressing disease from Mexico and Canada. Br. 39 (citing 24 Cong. Rec.
359, 370, 371). In any event, even assuming Congress was concerned with
possible disease from Mexico and Canada, that does not mean the statute must
have regulated individual travelers crossing by foot. Section 265’s terms were
broad enough to encompass land transportation, for example by train.
Finally, Defendants assert that limiting § 265 to transportation providers
would also be illogical because ships might drop passengers just before the border,
allowing them to walk into the country. Br. 39. But the deportation laws remained
in force. Moreover, Defendants never explain what commercial entity would
possibly engage in that subterfuge or why the statute would not allow penalties if
transportation companies actually attempted to circumvent the law in that fashion.5
C. Adhering To The Statutory Text Does Not Render Defendants
Powerless To Respond To A Public Health Crisis.
Defendants contend Congress must have intended to grant an expulsion
power notwithstanding the statute’s silence because otherwise CDC would be
5 Defendants argue that because the 1893 Act included the phrase
“notwithstanding the quarantine defense,” it “expand[ed] the government’s
authority beyond the power to quarantine.” Br. 32. It did so by allowing
prohibition of transportation.
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“rendered powerless” to address COVID-19. Br. 30. That is wrong. It is
undisputed that § 265 provides the power to regulate transportation providers, and
it was used in just that way in 1929. Supra Part I.B. That is an extraordinary
authority, as has been clear since the unilateral Executive action in 1892. Id. And
it remains an extraordinary power: In early 2020, for example, the federal
government could have invoked it based on the “existence” of COVID-19 in
designated “foreign countr[ies]” to “prohibit. . . the introduction of persons . . .
from such countries” by halting all transportation by air, sea, and land. That
statutory power is immense.
Moreover, assuming, as the district court did, that § 265 permits some
regulation of individual travelers, such regulation is far from toothless without
expulsion power. Congress explicitly backed § 265 orders with criminal and civil
penalties. Contrary to Defendants’ suggestion that they would “be required to
stand by and allow” violations of § 265 orders, Br. 29, a person violating such an
order could face arrest and possible prison time (and quarantine)—an effective
deterrent for almost all travelers. See Br. 34 (acknowledging deterrent effect).
In light of this vast sweep of the statute, Defendants’ real objection is clear.
The Title 42 Process they have developed singles out noncitizens without travel
documents. Defendants’ real policy argument is thus that, without an expulsion
power, they do not believe the statute provides a sufficient solution to addressing
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that specific group. Even assuming that is true, statutes are not required to address
every possible problem, and courts cannot rewrite them to include provisions the
government desires 128 years later. That § 265 may not address the specific
challenges Defendants now raise does not permit them “to jam a square peg” (the
expulsion authority they claim to need) “into a round hole” (the actual statute,
which provides no such power). Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 460
(D.C. Cir. 2017) (rejecting similar argument that existing environmental authority
should be read expansively to address pressing climate change concerns).
Nor, of course, is § 265 the only authority Defendants can draw on to
address their asserted concerns. Individuals entering from a foreign country can be
detained, examined, and quarantined under the public health laws. 42 U.S.C.
§ 264(c). Modern immigration laws (like their nineteenth-century predecessors)
provide the authority to remove noncitizens from the country, and include
inadmissibility provisions specifically addressing “communicable disease,” with
accompanying procedural safeguards to balance the competing goals of fairness
and public safety. 8 U.S.C. §§ 1182(a)(1), 1222. Alongside the various other
immigration tools, recent arrivals without documentation can also be subjected to
“expedited removal” proceedings, a rapid procedure (which nevertheless requires
access to humanitarian protections). See id. § 1225(b)(1).
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In short, in § 265 Congress was addressing a specific problem through
tailored means. The resulting statute is limited to regulating transportation
providers. But even if this Court accepts that the statute also applies to individual
land travelers, the text, structure and history of the law make clear that Congress
did not authorize expulsion as a means of enforcement. As the Supreme Court has
recently underscored, concerns about COVID-19 are not a blank check to the
Executive Branch to rewrite statutes. Alabama Realtors, 141 S. Ct. at 2490 (public
“interest in combating the spread of the COVID-19 Delta variant” cannot
“overcome a lack of congressional authorization,” as “our system does not permit
agencies to act unlawfully even in pursuit of desirable ends”).
D. Even Assuming The Statute Permits Expulsions In Some Cases, It
Cannot Override Congress’s Specific Humanitarian Protections.
Defendants’ invocation of § 265 suffers from an additional, independently
fatal flaw. Congress has expressly provided the right to seek protection from
persecution, including specifically for noncitizens arriving at the border without
documents. Yet the Title 42 Process denies precisely those later-enacted statutory
protections, which have never contained an exception for communicable diseases.
Defendants lack the authority to override the protection statutes.
Over the last 40 years Congress has repeatedly and carefully enshrined
access to asylum, withholding of removal, and CAT protection. Supra, Statement.
The Title 42 Process eliminates access to these congressionally-guaranteed
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protections.6 Indeed, the primary effect of Defendants’ policy is to eliminate
access to asylum screenings. Their expulsion regime effectively applies only to
individuals coming to this country without documents, see App. 151 (defining
“covered noncitizens”), but Congress already authorized immigration officers to
rapidly remove such people from the country, 8 U.S.C. § 1225(b)(1). Critically,
however, Congress prohibited summary removal for noncitizens who fear return,
instead requiring screenings to ensure that “individuals with valid asylum claims
are not returned to countries where they could face persecution.” Grace, 965 F.3d
at 902. And Congress has repeatedly chosen not to make the protection statutes
unavailable on grounds of communicable diseases. The core practical effect of the
Title 42 Process is thus that asylum seekers without documents, for whom
Congress in 1996 mandated special asylum procedures, are instead summarily
expelled without being given those protections. Whatever § 265 may permit in
general, it cannot deny statutory protection procedures to the exact group of people
Congress later specifically concluded should have those procedures, even if they
have a communicable disease.
6 The only humanitarian protection provided under the Title 42 Process is
limited to a CAT screening, which indisputably is not a legal substitute under the
immigration laws for asylum and withholding of removal protection (and in
practice is illusory even as to CAT). Supra, Statement.
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Defendants argue that these humanitarian protections apply only in
“normally prevailing conditions and in the absence of an extraordinary and rare
public-health emergency.” Br. 40. But under Defendants’ reading of the statutory
schemes, there is no bar to indefinitely overriding the asylum statutes, or to
invoking various other contagious diseases (such as the flu) to deny asylum access,
as the prior administration contemplated even before the emergence of COVID-
19.7 The asylum system Congress crafted does not permit the Executive to
eliminate humanitarian protections whenever it deems it expedient.
Because Defendants’ Title 42 Process “tramples the work done” by the
immigration laws, Defendants “bear[] the heavy burden of showing a clearly
expressed congressional intention that such a result should follow.” Epic Sys.
Corp. v. Lewis, 138 S. Ct. 1612, 1624, 1627 (2018) (cleaned up). Defendants can
show no such “clear and manifest” intention. Id. at 1624.
Defendants point to the requirement that a § 265 order be predicated upon a
finding that “a suspension of the right to introduce . . . persons and property [from
the designated country] is required in the interest of the public health.” 42 U.S.C.
§ 265 (emphasis added). Defendants suggest that “suspension” refers to the
7 Caitlin Dickerson & Michael D. Shear, Before Covid-19, Trump Aide
Sought to Use Disease to Close Borders, N.Y. Times (May 3, 2020),
https://tinyurl.com/aa432k.
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suspension of laws, and so “permits the temporary displacement of immigration
laws.” Br. 41. But § 265 is clear about the substantive power it grants: “the power
to prohibit, in whole or in part, the introduction of persons and property from
[designated] countries.” 42 U.S.C. § 265. Defendants do not suggest that this
grant of authority itself explicitly allows the Executive to override the immigration
laws, and instead point to a subordinate clause describing a finding the agency
must make before exercising that substantive power.
It defies common sense that Congress would delegate authority to override
all other federal statutes in a dependent clause describing a background finding the
agency must make. See Epic Sys., 138 S. Ct. at 1626-27 (Congress does not “hide
elephants in mouseholes,” particularly “an elephant that tramples the work done by
these other laws”) (internal quotation marks omitted). To the contrary, Congress
knows—and knew in 1893—how to indicate that a statute was meant to override
all other provisions of law. See P.J.E.S., 502 F. Supp. 3d at 541 (discussing
“notwithstanding” clauses); Act of Aug. 5, 1892, Pub. L. No. 52-380, 27 Stat. 349,
366 (appropriations bill addressing immigration, quarantine, and epidemic
prevention and separately providing for certain taxes, “any other law to the
contrary notwithstanding”). At a minimum, Defendants have failed to carry their
“heavy burden of showing a clearly expressed congressional intention” that all
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contrary laws would be swept aside. Epic Sys., 138 S. Ct. at 1624 (internal
quotation marks omitted).8
Nothing in the legislative history indicates an intention to override all other
laws, much less a clear and manifest intention. See P.J.E.S., 502 F. Supp. 3d at
515. Defendants emphasize statements and a statutory title referring to suspending
“immigration.” Br. 42-43. But, as explained above, the Senators plainly
understood “immigration” in this context to refer to the transportation of people
intending to immigrate—just as the 1892 regulation of transportation effectively
suspended immigration. Supra Part I.B. Defendants point to no statements
actually referring to overriding immigration laws.9
Thus, Title 42 and the humanitarian statutes should be read together, and
Congress’s asylum protections narrow whatever expulsion power § 265 might
otherwise be construed to authorize. See Indep. Ins. Agents of Am., Inc. v. Hawke,
8 In fact, the “suspension of the right” language reinforces Plaintiffs’
argument, supra Part I.B, that § 265 authorizes regulation of transportation
providers, not expulsions of individuals. That phrase most naturally refers to
suspension of licenses conferring “the right” to ply certain routes as a way of
introducing passengers into the country. See, e.g., Barron v. Burnside, 121 U.S.
186, 200 (1887) (discussing state license granting corporation the “right to carry on
commerce”); Hazeltine v. Miss. Valley Fire Ins. Co., 55 F. 743, 746 (C.C.W.D.
Tenn. 1893) (statute authorized agency to “suspend the right of a licensed foreign
insurance company ‘to do business in the state’”).
9 Defendants note that the title was later changed to “[s]uspension of
entries,” Br. 33, but that later title has no bearing on the meaning of § 265, which
(Defendants agree) was materially unchanged in the 1944 recodification, see id. at
33 n.8.
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211 F.3d 638, 643 (D.C. Cir. 2000) (“A broad statute when passed ‘may have a
range of plausible meanings,’ but subsequent acts can narrow those
meanings . . . .”) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 143 (2000)).
To the extent there is any conflict between the statutes, the specific
provisions addressing humanitarian protection procedures control over the general
public health authority under Title 42. The INA’s humanitarian protections are
“precisely drawn, detailed statute[s],” Brown v. GSA, 425 U.S. 820, 834 (1976),
that “speak[] directly” to “the question before [the Court],” Epic Sys., 138 S. Ct. at
1631, namely what the government must do before it seeks to remove an asylum
seeker. And, as noted, Congress spoke directly to the protections required for this
particular group of noncitizens, prohibiting their rapid removal without a
screening. Critically, moreover, Congress has spoken directly to the relationship
between these protections and serious communicable diseases, as explained above.
Throughout 40 years of legislating humanitarian protections and exceptions,
Congress has never created an exception based on disease.
By contrast, § 265 “doesn’t mention [expulsion or asylum procedures] at
all.” Id. at 1632. And this specific-over-general interpretive principle has
particular force where the more specific statute is the later-enacted one; that is the
case here, as § 265 was originally enacted in 1893 and last amended in 1944. See
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United States v. Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012) (explaining that
“[w]here two statutes conflict, the later-enacted, more specific provision generally
governs”). Recent Congresses have spoken clearly and explicitly regarding the
required treatment of asylum seekers; the Executive is not at liberty to ignore those
commands.
E. Chevron Deference Is Unwarranted.
Deference is not warranted here. App. 111-12; P.J.E.S., 502 F. Supp. 3d at
516 (Sullivan, J.); J.B.B.C., 2020 WL 6041870, at *2 (Nichols, J.).
First, CDC “hasn’t just sought to interpret [§ 265] in isolation,” but rather
“to interpret [it] in a way that limits the work of a second statute.” Epic Sys., 138
S. Ct. at 1629. Such “reconciliation of distinct statutory regimes is a matter for the
courts, not agencies.” App. 111 (cleaned up). Indeed, Defendants do not even
claim deference for their argument that § 265 displaces the entire immigration
statute and overrides specific humanitarian protections.
Second, Defendants fail at Chevron’s first step because their asserted new
expulsion power is at odds with “the traditional tools of statutory interpretation—
including the statute’s text, history, structure, and context.” Loving v. IRS, 742
F.3d 1013, 1021-22 (D.C. Cir. 2014). Nor can Defendants claim that the statute’s
silence itself creates ambiguity, where all the textual, contextual, and historical
evidence underscores that the statute leaves no space for an assertion of expulsion
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power. See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (rejecting
agency’s argument that silence as to asserted authority created ambiguity).
Third, for similar reasons, Defendants’ interpretation would warrant no
deference at Chevron’s second step “because it is unreasonable in light of the
statute’s text, history, structure, and context.” Loving, 742 F.3d at 1022; see also
District of Columbia v. Dep’t of Labor, 819 F.3d 444, 454 (D.C. Cir. 2016)
(rejecting “novel reading” that would “significantly enlarge” longstanding statute’s
effect). Among other things, courts “expect Congress to speak clearly if it wishes
to assign to an agency decisions of vast ‘economic and political significance.’”
Util. Air Regul. Grp., 573 U.S. at 324 (quoting Brown & Williamson, 529 U.S. at
160). That is particularly so where, as here, an agency asserts “an unheralded
power” under “a long-extant statute.” Id.
The implications of Defendants’ interpretation—and in particular that U.S.
citizens and those fleeing danger could be summarily expelled from the country—
are of the greatest significance. See Merck, 962 F.3d at 540 (relying on this
principle to hold that “the sweeping ‘nature and scope of the authority being
claimed by the’ Department underscores the unreasonableness of the
Department’s” interpretation) (quoting Loving, 742 F.3d at 1021); see also
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Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995)
(constitutional avoidance warrants rejection of Chevron deference).
Defendants contend that deference is warranted because their “interpretation
of ‘introduction’ was rooted in [CDC’s] scientific judgment,” Br. 35, but notably
point only to various ways in which that judgment might impact what power it
thinks is needed. But the legal question is whether § 265 provides the authority to
expel in direct contravention of humanitarian protections, not whether CDC wants
that authority or thinks it would be helpful. See NRDC v. Daley, 209 F.3d 747,
755-56 (D.C. Cir. 2000); but see infra Part III.B (noting that CDC itself does not
actually claim the need to bar asylum seekers as long as DHS takes available
mitigation steps).
II.
FAMILIES WILL SUFFER IRREPARABLE INJURY ABSENT A
PRELIMINARY INJUNCTION.
The district court cited overwhelming, unrebutted evidence that Defendants’
expulsion practices deliver vulnerable parents and children directly into danger.
App. 116; App. 347 (“CBP has routinely expelled my clients, including newborns,
into the waiting arms of kidnappers[.]”), 357 (mother and seven-year-old daughter
“kidnapped immediately after DHS expelled them”), 358 (mother “was raped in
the street in Tijuana after DHS expelled her there with her three young children”),
366 (body of 15-year-old son found mutilated after expulsion). Additionally, the
district court correctly held that migrants suffer irreparable harm when expelled
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without a chance to seek asylum and other immigration protections. App. 116-18
(collecting cases).
As one declarant describes, “[m]igrant families are a favorite target” of
kidnappers because “police are unable and often unwilling to protect the migrants,”
and “although the migrants themselves are penniless, they have relatives in the
north who will do anything to save them.” App. 365. One organization
documented more than 3,200 kidnappings and other attacks against migrants
subjected to the Title 42 Process within a six-month period, while other advocates
testified that 20-40% of their clients reported being victims of kidnappings or
attempted kidnappings. App. 344, 356-57, 381.
Defendants make these families even more vulnerable targets by expelling
them at “predictable locations at predictable times in areas where kidnappers and
organized crime are rampant.” App. 346. Cartels wait at the end of the bridges
where CBP pushes families into their waiting arms, as the U.S. government is well
aware. See id. (“As a result, many migrants are kidnapped immediately upon CBP
releasing them into Mexico from a U.S. port of entry.”).
Title 42 expulsions have also forced asylum-seeking families to remain in
“horrendous living conditions” in Mexico. App. 362. Migrants are “sleeping on
the ground in tents or out in the open,” and lack food even for children who are
malnourished. App. 362, 375. They are also routinely denied critical healthcare.
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App. 369 (three clients who died due to lack of medical care), 345 (baby with
Down Syndrome and heart murmur denied medical care); see also App. 344
(woman forcibly subjected to an abortion against her religious beliefs).
In addition to expulsions to Mexico, many families are flown directly to the
countries from which they fled, which “are among the most dangerous in the
world,” a fact that Defendants do not dispute. App. 81 (citing State Department
country reports), 323-24, 329-37, 340. Indeed, DHS recently invoked Title 42 to
expel thousands of parents and children to Haiti—even though the agency recently
deemed Haiti too dangerous to remove people to, even those without asylum
claims. See Camilo Montoya-Galvez, U.S. expels nearly 4,000 Haitians in 9 days
as part of deportation blitz, CBS News (Sept. 27, 2021),
https://tinyurl.com/5f28f4wp; 86 Fed. Reg. at 41,864-65.
Defendants do not directly dispute this mountain of evidence, but make the
perplexing statement that “plaintiffs will not suffer irreparable harm” because the
denial of a preliminary injunction would simply “preserve the status quo.” Br. 53.
But that is obviously not the test.
Defendants also suggest a theoretical possibility that some families with
“humanitarian need[s]” could obtain “case-by-case exceptions” from Title 42. Br.
54. Yet CBP routinely expels children and parents who should obviously satisfy
any reasonable definition of “humanitarian need” if a meaningful process actually
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existed. App. 437 (expulsion of father who “carried his visibly disabled daughter
[with spinal injuries] across the border but were nevertheless expelled”), 377
(expulsion of 19-year-old who “had lost both his right arm and leg”), 444
(expulsion of pregnant woman experiencing contractions despite her “detailing her
kidnapping at the border” to CBP), 349 (expulsion of five new mothers who were
bleeding and in pain from having given birth in U.S. within prior 48-72 hours), 429
(expulsion of children without their shoes; denial of food and milk to children).
And although non-governmental organizations previously assisted DHS with
identifying some vulnerable families, at great personal danger to their staff, that
process ended in August 2021 (although Defendants continue to rely on it
rhetorically). Supra, Statement. In any event, that process was never an adequate
substitute for a government-run asylum system available for all seeking protection,
and not just those whom nonprofit organizations with limited resources happen to
locate. E.g., App. 382 (explaining shortcomings of exemptions process).
In short, as the district court properly found based on the undisputed record
evidence, families, including those with toddlers and babies, are being brutalized
every day that the Title 42 Process remains in effect.
III.
THE REMAINING EQUITABLE FACTORS WEIGH STRONGLY IN
FAVOR OF A PRELIMINARY INJUNCTION.
The Supreme Court recently stressed that “combating the spread of the
COVID-19 Delta variant” is no basis for denying injunctive relief where CDC’s
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ultra vires actions cause plaintiffs irreparable harm. Alabama Realtors, 141 S. Ct.
at 2490 (finding economic harm to landlords sufficient).
Here, migrant families are not a meaningful source of COVID-19, and
critically, CDC itself has not concluded that families cannot be safely processed.
Rather, CDC has explained that families may be allowed to enter if DHS were to
expand testing and other basic mitigation measures—which the government has
previously done safely for 86% of families and 100% of unaccompanied children.
See App. 150 (CDC recommending “expansion of [DHS’s] COVID-19 mitigation
programs for [families] such that they may be excepted from this Order”), 122-23
(finding that 86% of families are already processed under Title 8), 171-72 (DHS
describing mitigation measures).
Expelled families also comprise less than 0.1% of persons entering the
United States from Mexico. App. 458. The burden on DHS to marginally expand
existing mitigation measures—more than one-and-a-half years into the
pandemic—cannot outweigh the grave risk of kidnapping, rape, and death facing
class members.
A. Migrant Families Are Not A Significant Source Of COVID-19.
As Dr. Anthony Fauci recently explained, immigrants are “absolutely not” a
“major reason why COVID-19 is spreading in the US” and that “focusing on
immigrants, expelling them or what have you, is not the solution to [the]
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outbreak.” Fauci Interview at 2:37, 4:01; see also 86 Fed. Reg. 61,252, 61,256
(Nov. 5, 2021) (CDC attributing recent increase in COVID-19 cases to the
“proportion of the [U.S.] population that remains not fully vaccinated”).
Dr. Fauci’s views are consistent with the conclusion of over 1,300 medical
professionals that the Title 42 Process has “no basis” in public health. Physicians
for Human Rights, 1,300+ Medical Professionals from 49 U.S. States and
Territories Call on CDC to End “Junk Science” Border Expulsion Policy (Oct. 28,
2021), https://tinyurl.com/ud7fhktk. Indeed, multiple reports indicate that career
CDC scientists objected to the original Title 42 Order, which they thought was
driven by immigration politics and xenophobia rather than public health. See
supra Statement.
Former CDC scientists submitted affidavits below stating that “[e]ven if
100% of [the families expelled by CBP] were to test positive for COVID-19
(which they will not), they would still represent only a negligible addition to the
[tens of thousands of] new cases that have been reported each day in the United
States on average[.]” App. 391; Fauci Interview at 2:54 (“[W]hen you have . . .
millions and millions and millions of Americans getting infected . . . [t]he problem
is within our own country . . . . Let’s face reality here.”).
Despite Defendants’ purported concern about lower vaccination rates in
migrants’ home countries, Br. 46-47, the CDC Order contains no exception for
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fully vaccinated migrants. Yet shoppers may walk across the border if they show
proof of vaccination. Supra, Statement. Moreover, CBP has been permitting a
daily average of over 361,000 people (including truck drivers, students, and
business travelers) to enter at land ports along the Mexico border, without even
inquiring into their vaccination or COVID-19 status. App. 464. Migrant families
expelled under Title 42 represent a tiny fraction (1/1000) of that cross-border
traffic, id., and, as discussed infra, Part III.B, migrant families are tested either
prior to or upon their release from CBP custody. App. 141 (CDC Order), 171-72
(DHS declarant). Defendants are likewise now permitting unvaccinated air
travelers from countries with extraordinarily low vaccination rates to enter the
United States. 86 Fed. Reg. 61,224, 61,227 (Nov. 5, 2021).
In fact, migrant families are less likely to be infected with COVID-19 than
people already in the United States. Unrebutted evidence shows that only 1.14%
of asylum seekers who were in Mexico requesting exceptions from Title 42 under
the now-discontinued exceptions process tested positive for COVID-19—a
positivity rate far lower than that in border states like Texas. See App. 343, 441,
466-69; see also United States v. Texas, --- F.Supp.3d ----, No. 21-CV-173, 2021
WL 4848743, at *7 (W.D. Tex. Aug. 26, 2021) (“[M]igrants generally test positive
at similar or lower rates than Americans living in the counties where they are
tested.”) (citation omitted); App. 132 (CDC reporting lower COVID-19 rate in
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Mexico), 250-51 (public health experts explaining that U.S. residents are more
likely to be infected with COVID-19 than travelers from Mexico). There is simply
no evidence or finding that migrant families are increasing COVID-19 infection
rates in the United States.
B. CDC Itself Agrees That Mitigation Measures Can Safely Reduce The
Risk Of COVID-19 Transmission.
DHS attempts to use CDC to shield its unlawful expulsions, but CDC’s
latest Order does not conclude that migrant families cannot be safely processed.
App. 396-97. Rather, as dozens of public health experts have explained, the CDC
Order “is an indictment of the DHS’s yearlong failure to adopt reasonable
mitigation steps in order to safely process asylum-seeking families.” Id. Indeed,
the CDC Order pointedly notes that “‘the availability of testing, vaccines, and
other mitigation protocols can minimize risk’ of COVID-19 transmission during
border processing.” App. 397 (public health experts quoting CDC Order at App.
131). The CDC Order thus concludes that migrant families “may be excepted from
this Order” upon DHS’s “expansion of such COVID-19 mitigation programs.”
App. 150.
CDC and Plaintiffs’ public health experts therefore agree that the
government “can safely process asylum-seeking families while minimizing
transmission of COVID-19.” App. 398. To the extent that COVID-19 remains an
issue, it is because DHS has chosen not to allocate resources to expand the
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available mitigation measures CDC has recommended. See App. 397. DHS has
simply failed to act despite CDC urging it to do so, App. 150, and an injunction is
thus plainly needed.
Critically, CDC’s exemption of unaccompanied children demonstrates that
COVID-19 risk can be safely mitigated notwithstanding the conditions at CBP’s
processing facilities and the emergence of the Delta variant. See App. 129, 135.
Both unaccompanied children and family units are typically processed in the same
congregate facilities, App. 141 (CDC Order), and remain there for comparable
amounts of time. Compare 86 Fed. Reg. 38,717, 38,719 (July 22, 2021) (CDC
explaining that unaccompanied children “generally are transferred to [shelters]
within 72 hours of intake at” CBP facility, with some being detained even longer),
with App. 177 (DHS explaining that “processing a family for Title 8 can take 1.5 to
3 hours”) and App. 143 (families “currently spend an average of 62 hours in CBP
custody prior to release or transfer”). CDC has rightly concluded that employing
testing and other measures after such children’s release by CBP adequately
mitigated COVID-19 risk. 86 Fed. Reg. at 38,719 (citing testing, availability of
vaccines for children over 12, “masks, physical distancing, frequent hand washing,
cleaning and disinfection, improved ventilation, staff vaccination, and cohorting”
at various shelters). The same can be done for families. And just as CDC notes
that many unaccompanied children are eventually placed with sponsors who can
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assist with public health precautions, App. 145, nearly all families have similar
support in the United States, App. 401-02. In short, the CDC Order treats the
exemption of unaccompanied children as a roadmap for safely processing families.
App. 150.
Indeed, DHS has already created a testing and quarantine system for migrant
families (analogous to shelters for unaccompanied children) that minimizes
community transmission following their release from CBP facilities. Because
Mexican authorities have refused to accept the expulsion of certain families, App.
143, DHS has coordinated with local and nonprofit entities in the United States to
provide testing, vaccinations, and other mitigation for as many as 86% of the
families encountered at the border. App. 171-72 (DHS declarant); 452 (nonprofit
describing investment of resources in systems for receiving, testing, and
quarantining migrants in Tucson), 455-57 (San Diego), 431-33 (El Paso and New
Mexico), 438 (Brownsville and Hidalgo). CDC has endorsed that system and
encourages its expansion “such that [families] may be [fully] excepted from this
Order.” App. 150 (CDC Order). The pieces CDC has identified as critical for safe
processing are thus already known to DHS and in place in significant part—
because DHS was compelled to act in response to Mexican policy—and all that is
needed is for DHS to expand those CDC-recommended programs to encompass the
remaining families.
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Moreover, events occurring since this Court’s ruling on Defendants’ stay
motion mean that processing families now likely poses less risk compared to when
CDC first exempted unaccompanied children in February 2021. The entire federal
workforce (subject to narrow exceptions) is now required to be fully vaccinated no
later than November 22, 2021. 86 Fed. Reg. 50,989, 50,989 (Sept. 9, 2021); Safer
Federal Workforce, Vaccinations (last visited Nov. 9, 2021),
https://tinyurl.com/4smkwcnd. That vaccine mandate “largely eliminate[s] the
risks of serious illness, hospitalization, and death among government personnel,”
App. 398 (public health experts), removing one of Defendants’ main purported
rationales for the Title 42 Process, see Br. 46, and also “significantly reduce[s]
transmission” to migrants prior to their release from CBP, App. 398. See also
App. 146 n.90 (CDC explaining significance of vaccinating CBP personnel).
Furthermore, vaccines are now available for children starting at age five, and
over 80% of adults have received at least one dose, as have over 98% of those 65
or older (and vaccines are widely available to the remainder). CDC, COVID-19
Vaccinations in the United States (last visited Nov. 8, 2021),
https://tinyurl.com/yceajwkz.
Even apart from testing and vaccinations, public health experts have
explained that Defendants can use numerous other tools to further minimize risk at
the border, such as outdoor processing, air filtration, sanitizing, and masking. App.
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397-401; see also App. 352, 438, 449-51. But rather than utilizing these proven
public health strategies to manage COVID-19, DHS’s expulsions likely spread
COVID-19, App. 389-90 (public health experts), putting “‘families on crowded
planes and buses from the Rio Grande Valley,’ without first testing the individuals
and isolating those who test positive, and transporting them ‘to other locations in
Texas, or places as far away as Arizona and San Diego’” prior to expulsion. App.
123 (district court).
Defendants claim that vaccines and other mitigation “do not fully eliminate”
risk, Br. 50 (emphasis added), but CDC has never applied a zero-risk standard
towards COVID-19, whether in permitting hundreds of thousands of other daily
cross-border travelers, exempting unaccompanied children, or sanctioning “in-
person schooling, travel, religious practice, indoor sporting events and other
regular activities.” App. 396-97 (public health experts); see, e.g., App. 145 (CDC
exempting unaccompanied children because they “do not pose a significant level of
risk for COVID-19 spread”) (emphasis added).
Defendants’ insistence on complete risk elimination is particularly
indefensible now that DHS is allowing virtually all vaccinated foreign travelers—
except asylum seekers—to enter via air and land ports of entry. See supra,
Statement; Part III.A. Those international travelers likely spend hours in packed
terminals or on buses and airplanes prior to arrival, possibly contracting and
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 66 of 73
54
spreading COVID-19. See 86 Fed. Reg. 61,246, 61,246 (Nov. 5, 2021) (CDC
explaining that “[a]ir travel may potentially continue the spread of [COVID-19]
. . . rapidly around the globe”).
The zero-risk standard is thus being applied only to desperate people fleeing
harm. DHS is now singling out asylum seekers for the most strenuous border
restrictions—and not even exempting those who are tested and vaccinated.
C. The Injunction Does Not Impose A Substantial Burden On DHS.
Defendants’ complaints of hardship rely on inflated statistics and false
choices. As the district court found, admitting the remaining 14% of families
subjected to expulsion (which represents 0.1% of border traffic) would not impose
a significant additional burden. App. 175, 122-23, 464-65. Critically, shelters
have unused capacity to test and quarantine additional families if released by CBP
instead of expelled—facts that Defendants have not rebutted. App. 431 (provider
stating existing programs “could also be scaled up” with more support), 433
(estimating that “less than 10 percent of [El Paso’s] capacity was currently in
use”), 457 (explaining that some organizations have “developed these systems
without the meaningful assistance of the federal government”).
Defendants argue generally that “record numbers of noncitizens” “have
strained DHS operations.” Br. 47. But they do not dispute the district court’s
finding that the Title 42 Process itself is artificially inflating their numbers,
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 67 of 73
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because desperate asylum seekers try to cross again to finally get a protection
screening that they should have been provided the first time, with each crossing
counted as a new “encounter.” App. 124 (district court concluding that “after the
implementation of the Title 42 Process, the recidivism rate of individuals crossing
the border increased from less than 7% to 40%.”), App. 460-62 (“Title 42 authority
has substantially increased the [recidivism] measure.”) (quoting CBP). In any
case, the remaining families who are subject to Title 42 represent only a small
percentage of migrant encounters. App. 175, 465.
The Title 42 Process is also counterproductive because it forces CBP agents
to process the same migrants over and over again. By causing desperate families
“to cross the border multiple times,” as CBP acknowledges, App. 460, 462,
expulsions increase transmission opportunities far more than simply admitting each
family once for asylum screenings while following mitigation protocols. App.
401.
DHS claims that the injunction could increase migration, but the district
court correctly rejected DHS’s unfounded speculation. As DHS has acknowledged
in other litigation, “[t]he reality is that migration patterns are affected by a range of
factors and difficult to predict,” and attempts to forecast “complex decisions made
by noncitizens [who] risk[] life and limb” is “only speculation.” Brief for
Appellants at 14, Biden v. Texas, No. 21-10806 (5th Cir.) (quoting Arpaio v.
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 68 of 73
56
Obama, 797 F.3d 11, 20-21 (D.C. Cir. 2015)). Indeed, courts have repeatedly
rejected DHS’s unfounded “pull-factor” arguments. See, e.g., Flores v. Sessions,
No. 85-CV-4544, 2018 WL 4945000, at *2 (C.D. Cal. July 9, 2018); R.I.L-R v.
Johnson, 80 F. Supp. 3d 164, 190 (D.D.C. 2015). And as the district court rightly
observed, there is even greater reason to doubt the deterrence value of Title 42,
which has led to more border encounters overall. App. 124.
Defendants point to a 16% increase in encounters of unaccompanied
children after the P.J.E.S. injunction in November 2020, Br. 48, but that increase
was part of a larger upward trend that predated the injunction by many months—
and was smaller than the percentage increases observed prior to the injunction.
App. 123 (district court); App. 475-76. There is thus “no basis” to suggest that the
injunction caused increased migration. App. 476. But regardless of what caused
an increase in unaccompanied children, the government has been able safely to
accommodate that increase, and there is no reason to believe that it could not do
the same for families.
DHS also cites purported obstacles that are within its control. The agency
asserts that processing an asylum-seeking family “can take 1.5 to 3 hours” and “is
generally conducted indoors,” App. 177, but CBP can expedite processing and
conduct it outdoors, and has previously done so. App. 352, 399-400, 438, 449.
DHS also claims that, apart from actual processing time, families could spend even
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57
longer time in custody due to a “backlog,” but it fails to explain why CBP cannot
allow migrants to wait outdoors or reduce wait times, such as by offering an
appointment option at ports of entry. See Br. 8, 16. Moreover, unaccompanied
children experience comparable wait times. Supra, Part III.B. Because local
providers have unused capacity to transport and receive families from CBP, App.
429, 433-34, 453-54, any bottleneck is of the agency’s own making.
DHS also claims to have “very limited” “testing for noncitizens” at CBP
facilities. Br. 50. “But here, again, only the government’s own choice[s] appear[]
to constrain its path forward.” Lockheed Martin Corp. v. United States, 833 F.3d
225, 239 (D.C. Cir. 2016). The CDC Order itself acknowledges that rapid testing
is useful, available, and “can be implemented,” App. 137, yet Defendants fail to
explain why DHS has not expanded testing, Br. 50. And, as noted, families have
access to effective post-release testing and quarantine. Supra Part III.B.
DHS, and CBP specifically, are among the most well-resourced government
agencies in the world: DHS has a $81 billion budget, of which $18 billion is just
for CBP. See Department of Homeland Security, FY 2021 Budget in Brief,
https://tinyurl.com/28byu8tx. There is no reason why they cannot implement
mitigation steps and safely process asylum seekers, as CDC recommends and as
other developed nations have. See, e.g., European Commission, Exemptions to
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 70 of 73
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coronavirus travel restrictions into the EU (last visited Nov. 8, 2021) (exempting
“[p]ersons claiming asylum”), https://tinyurl.com/xmfvnbev.
*
*
*
Public health experts and CDC itself have left no doubt that asylum seekers
can be safely processed if DHS would take proper mitigation steps. Whatever is
motivating DHS’s intransigence, it cannot therefore be public health.
CONCLUSION
The Court should affirm.
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 71 of 73
Dated: November 12, 2021
Stephen B. Kang
Cody Wofsy
Morgan Russell
My Khanh Ngo
American Civil Liberties
Union Foundation, Immigrants’
Rights Project
39 Drumm Street
San Francisco, CA 94111
(415) 343-0770
Andre Segura
Kathryn Huddleston
Brantley Shaw Drake
American Civil Liberties
Union Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, Texas 77007
(713) 942-8146
Karla M. Vargas
Texas Civil Rights Project
1017 W. Hackberry Ave.
Alamo, Texas 78516
(956) 787-8171
Blaine Bookey
Neela Chakravartula
Jamie Crook
Karen Musalo
Center for Gender & Refugee Studies
200 McAllister Street
San Francisco, CA 94102
(415) 565-4877
Respectfully submitted,
/s/ Lee Gelernt
Lee Gelernt
Omar Jadwat
Daniel A. Galindo
Ming Cheung
David Chen
American Civil Liberties Union
Foundation, Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2660
lgelernt@aclu.org
Robert Silverman
Irit Tamir
Oxfam America
Suite 500
Boston, MA 02115
(617) 482-1211
Scott Michelman
Arthur B. Spitzer
American Civil Liberties Union
Foundation of the District of Columbia
915 15th Street, NW, 2nd floor
Washington, D.C. 20005
(202) 457-0800
Tamara F. Goodlette
Refugee and Immigrant Center for
Legal Education and Legal Services
(RAICES)
802 Kentucky Avenue
San Antonio, TX 78201
(210) 960-3206
Counsel for Plaintiffs-Appellees
USCA Case #21-5200 Document #1922235 Filed: 11/12/2021 Page 72 of 73
CERTIFICATE OF COMPLIANCE
This response brief complies with the type-volume limitation of Federal
Rule of Appellate Procedure 32(a)(7)(B) because it contains 12,915 words. This
brief also complies with the typeface and type-style requirements of Federal Rules
of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word Professional Plus 2019 in
14-point Times New Roman font.
/s/Lee Gelernt
Lee Gelernt
CERTIFICATE OF SERVICE
I hereby certify that on November 12, 2021, I electronically filed the
foregoing with the Clerk for the United States Court of Appeals for the DC Circuit
by using the CM/ECF system. A true and correct copy of the foregoing has been
served via the Court’s CM/ECF system on all counsel of record.
/s/Lee Gelernt
Lee Gelernt
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