Amicus Brief — 14 Legal Service Organizations — Huisha-Huisha v. Mayorkas (2021-11-19, 1)

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ORAL ARGUMENT SCHEDULED: JANUARY 19, 2022, 9:30 A.M. 
 
No. 21-5200 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
Nancy Gimena Huisha-Huisha, and her minor child, et al. 
Plaintiffs-Appellees, 
v. 
Alejandro N. Mayorkas, Secretary of Homeland 
 Security, in his official capacity, et al., 
Defendants-Appellants.  
 
ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
THE HONORABLE EMMET G. SULLIVAN, JUDGE 
CASE NO. 21-cv-00100-EGS 
 
 
BRIEF OF AMICI CURIAE 14 LEGAL SERVICE AND ADVOCACY 
ORGANIZATIONS IN SUPPORT OF PLAINTIFFS-APPELLEES  
 
DANIEL J. TULLY 
JUSTICE ACTION CENTER 
P.O. BOX 27280 
TELEPHONE:  323.450.7275 
 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
400 SOUTH HOPE STREET, 18TH FLOOR 
LOS ANGELES, CALIFORNIA 90071 
TELEPHONE: 
 213.430.6000 
FACSIMILE:  213.430.6407 
 
Counsel for Amici Curiae 
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES   
 
Pursuant to D.C. Circuit Rule 28(a)(1), counsel certifies the following: 
 
(A) Parties and Amici: Except for amici joining this brief, all parties, 
intervenors, and amici appearing before the District Court and in this Court are 
listed in the Brief of Defendants-Appellants and Brief of Plaintiffs-Appellees.  
 
(B) Rulings Under Review: References to the ruling under review appears 
in the Brief of Defendants-Appellants. 
 
(C) Related Cases: References to the related cases appear in the Brief of 
Plaintiffs-Appellees. 
Dated:  November 19, 2021 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
By:      /s/ Dimitri D. Portnoi 
           Dimitri D. Portnoi 
 
Counsel for Amici Curiae  
 
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CORPORATE DISCLOSURE STATEMENT 
 
Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae are non-
profit corporations.  Amici have no parent companies, subsidiaries, or affiliates that 
have issued shares or debt securities to the public.  Pursuant to D.C. Circuit Rule 
26.1(b), amici state that they are non-profit legal service and advocacy 
organizations who serve immigrant communities throughout the country.  Amici 
share a common mission of advancing and protecting the constitutional and 
statutory rights of individuals seeking asylum and legal status in the United States.   
Dated:  November 19, 2021 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
By:      /s/ Dimitri D. Portnoi 
           Dimitri D. Portnoi 
 
Counsel for Amici Curiae  
 
 
 
 
 
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CIRCUIT RULE 29(D) STATEMENT  
Pursuant to D.C. Circuit Rule 29(d), counsel certifies that it is necessary to 
separately file the following Brief of Amici Curiae 14 Legal Service and Advocacy 
Organizations in Support of Plaintiffs-Appellees.  Amici are legal service and 
advocacy organizations who serve immigrant communities throughout the country.  
As legal service providers and advocates for immigrants, including asylum seekers 
and asylees, amici will provide this Court with their insight and offer a unique 
perspective on the impact that this proceeding will have on the individuals and 
communities served by amici. 
Dated:  November 19, 2021 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
By:      /s/ Dimitri D. Portnoi 
           Dimitri D. Portnoi 
 
Counsel for Amici Curiae  
 
 
 
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TABLE OF CONTENTS 
Page 
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i 
CORPORATE DISCLOSURE STATEMENT ....................................................... ii 
CIRCUIT RULE 29(d) STATEMENT ................................................................... iii 
TABLE OF CONTENTS .........................................................................................iv 
TABLE OF AUTHORITIES .................................................................................... v 
GLOSSARY OF ABBREVIATIONS ................................................................... vii 
STATUTES AND REGULATIONS ..................................................................... vii 
INTEREST OF AMICI CURIAE ............................................................................. 1 
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 3 
ARGUMENT ............................................................................................................ 5 
I. 
THE PUBLIC INTEREST SUPPORTS AN INJUNCTION 
PREVENTING FAMILIES FROM BEING RETURNED TO 
COUNTRIES WHERE THEY WILL FACE CERTAIN AND 
SUBSTANTIAL HARM ...................................................................... 5 
II. 
CBP AND ICE AGENTS DIRECTLY INFLICT 
IRREPARABLE HARM ON FAMILIES BEING 
PROCESSED UNDER THE TITLE 42 POLICY ............................. 15 
CONCLUSION ....................................................................................................... 19 
LIST OF AMICI CURIAE ..................................................................................... 21 
CERTIFICATE OF COMPLIANCE ...................................................................... 22 
CERTIFICATE OF SERVICE ............................................................................... 23 
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TABLE OF AUTHORITIES 
Page(s) 
Cases 
Nken v. Holder, 
556 U.S. 418 (2009) .........................................................................................5, 14 
Regulations 
Order Suspending the Right to Introduce Certain Persons From Countries 
Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg. 
65806 (Oct. 16, 2020) ............................................................................................ 2 
Public Health Reassessment and Order Suspending the Right to Introduce 
Certain Persons From Countries Where a Quarantinable Communicable 
Disease Exists, 86 Fed. Reg. 42828-02 (Aug. 5, 2021) ......................................... 2 
Statutes 
8 U.S.C. § 1158(a)(1) ...............................................................................................14 
8 U.S.C. § 1231(b)(3)...............................................................................................14 
Note to 8 U.S.C. § 1231 ...........................................................................................14 
Other Authorities 
Barrett Limoges, ‘I’m trapped here’: Haitian asylum seekers languish in 
Mexico, Aljazeera (Apr. 24, 2021), 
https://www.aljazeera.com/news/2021/4/24/im-trapped-here-haitian-
asylum-seekers-languish-in-mexico .....................................................................10 
Camilo Montoya-Galvez, Top CDC official told Congress migrant expulsion 
policy was not needed to contain COVID, CBS News (Nov. 12, 2021), 
https://www.cbsnews.com/news/cdc-official-told-congress-migrant-
expulsion-policy-not-needed-to-contain-covid/ ..................................................... 3 
Camilo Montoya-Galvez, U.S. expels nearly 4,000 Haitians in 9 days as part 
of deportation blitz, CBS News (Sep. 27, 2021), 
https://www.cbsnews.com/news/haiti-migrants-us-expels-nearly-4000-in-
nine-days/ ............................................................................................................... 4 
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TABLE OF AUTHORITIES 
(CONTINUED) 
Page(s) 
vi 
Extending Title 42 Will Endanger Refugees, Not Stop Covid-19, Amnesty 
International (Aug. 3, 2021), https://www.amnestyusa.org/press-
releases/extending-title-42-will-endanger-refugees-not-stop-covid-19/................ 9 
Harold Hongju Koh, Re: Ending Title 42 return flights to countries of origin, 
particularly Haiti (Oct. 2, 2021), 
https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000 .....4, 7 
Human Rights Watch, Mexico: Abuses Against Asylum Seekers at US 
Border (Mar. 5, 2021), https://www.hrw.org/news/2021/03/05/mexico-
abuses-against-asylum-seekers-us-border ............................................................11 
Jasmine Aguilera, Caught Between U.S. Policies and Instability at Home, 
Haitian Migrants in Tijuana Are in a State of Limbo, Time (July 22, 
2021), https://time.com/6080579/haitian-migrants-tijuana-us-policy/ ................10 
Katy Murdza and Walter Ewing, Ph.D., The Legacy of Racism within the 
U.S. Border Patrol, American Immigration Council (Feb. 10, 2021), 
https://www.americanimmigrationcouncil.org/research/legacy-racism-
within-us-border-patrol .......................................................................................... 9 
Nicole Phillips and Tom Ricker, The Invisible Wall: Title 42 and Its Impact 
on Haitian Migrants, Haitian Bridge Alliance, The UndocuBlack Network 
and The Quixote Center (2021), https://www.quixote.org/wp-
content/uploads/2021/03/The-Invisible-Wall.pdf ....................................... 8, 9, 10 
Paloma Delgado, Title 42 is Not About Public Health. It’s About Exclusion, 
Human Rights First (Oct. 21, 2021), 
https://www.humanrightsfirst.org/blog/title-42-not-about-public-health-it-
s-about-exclusion.................................................................................................... 9 
Read: Resignation letter from U.S. special envoy for Haiti, Daniel Foote, 
Washington Post (Sep. 23, 2021), 
https://www.washingtonpost.com/context/read-resignation-letter-from-u-
s-special-envoy-for-haiti-daniel-foote/3136ae0e-96e5-448e-9d12-
0e0cabfb3c0b/ ........................................................................................................ 6 
Returns of Migrants and Reception Assistance in Haiti, International 
Organization for Migration, United Nations (Nov. 8, 2021) ................................. 4 
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GLOSSARY OF ABBREVIATIONS 
CBP:  U.S. Customs and Border Protection 
ICE:  U.S. Immigration and Customs Enforcement 
STATUTES AND REGULATIONS 
All pertinent statutes and regulations are contained in the Statutory 
Addendum to the Brief of Defendants-Appellants. 
 
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INTEREST OF AMICI CURIAE1 
Amici Curiae are 14 legal service and advocacy organizations who serve and 
advocate alongside migrant families arriving at the southern border who are 
subjected to field processing and expulsion under Title 42.  Amici include national 
advocacy organizations as well as local legal service practitioners and advocates 
working with migrant families arriving in Texas, New Mexico, Arizona, and 
California.  Amici fight for the rights of migrant women, children, and other 
vulnerable populations, and are driven by a commitment to immigrant and racial 
justice.  Amici have a strong interest in this proceeding because Title 42 causes 
irreparable harm to the clients and communities served by amici, who are subjected 
to egregious conditions, denied due process under the law, and summarily expelled 
to countries where they face persecution, violence, and death.  
Collectively, amici provide direct legal services to thousands of immigrants 
annually.  Relevant here, many of amici’s clients seek relief at the U.S.-Mexico 
border and have been subject to Defendants’ policy of summarily expelling 
immigrants pursuant to a purported health order under 42 U.S.C. § 265 (the “Title 
 
1 All parties have consented to the filing of this brief.  Pursuant to Federal Rule of 
Appellate Procedure 29(a)(4)(E), the undersigned counsel certifies that this brief 
was authored in full by amici and their counsel, no party or counsel for a party 
authored or contributed monetarily to this brief in any respect, and no other person 
or entity—other than amici and their counsel—contributed monetarily to this 
brief’s preparation or submission.  
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42 Policy”).2  Amici are invested in ensuring that all people, including immigrants, 
are treated with dignity and share a common mission of advancing and protecting 
the constitutional and statutory rights of individuals seeking asylum and legal 
status in the United States.  Through both direct services and federal impact 
litigation, amici have worked for decades to improve immigrants’ access to legal 
services and representation, to ensure immigrants arriving in the United States can 
pursue all relief they are entitled to seek under the law, and to ensure immigrants’ 
constitutional due process and other rights are upheld. 
Amici respectfully submit this brief to assist the Court in evaluating the 
merits of the District Court’s preliminary injunction.  In light of their expertise and 
experience working with families who have been harmed by the Title 42 Policy, 
amici believe they will offer the Court a unique perspective as to the public interest 
and why it overwhelmingly favors upholding the District Court’s preliminary 
injunction of the Title 42 Policy as it applies to family units.  Absent affirmance of 
the District Court’s preliminary injunction, amici’s clients and constituents will 
 
2 See Order Suspending the Right to Introduce Certain Persons From Countries 
Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg. 65806 (Oct. 
16, 2020); Public Health Reassessment and Order Suspending the Right to 
Introduce Certain Persons From Countries Where a Quarantinable Communicable 
Disease Exists, 86 Fed. Reg. 42828-02 (Aug. 5, 2021). 
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continue to face egregious conditions under Title 42’s field processing as well as 
due process deprivations of their right to seek asylum and other immigration relief.  
INTRODUCTION AND SUMMARY OF ARGUMENT 
In March 2020, former President Trump issued the Title 42 Policy, 
ostensibly on public health grounds, to effectively prevent any immigrant arriving 
at the southern border from accessing the legal process afforded to them under U.S. 
law.  An ever-growing chorus of objections from health experts, including many 
employed by the federal government, confirms that the policy has never had a 
sound public health justification.  In fact, “the bulk of the evidence [in March 
2020] did not support [the Title 42 Policy] proposal.”3 
Nevertheless, for more than a year and a half, Defendants have relied on this 
policy to categorically shut the door on hundreds of thousands of people seeking 
safety.  Indeed, during a fourteen-day stay of the District Court’s preliminary 
injunction, Defendants moved swiftly to use the Title 42 Policy to expel thousands 
of Black and Haitian migrants from an encampment in Del Rio, Texas, to Haiti, a 
country that administration officials have characterized as “undeniably a 
 
3 Camilo Montoya-Galvez, Top CDC official told Congress migrant expulsion 
policy was not needed to contain COVID, CBS News (Nov. 12, 2021), 
https://www.cbsnews.com/news/cdc-official-told-congress-migrant-expulsion-
policy-not-needed-to-contain-covid/. 
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humanitarian disaster area.”4  This unprecedented mass expulsion led to widely 
disseminated images that evoke the era of slavery, with white men on horseback 
rushing Black migrants and wielding long ropes like whips.  It also resulted in the 
unlawful expulsion of thousands of Haitian parents and children.5 
Each family who has been subject to Defendants’ unlawful Title 42 Policy 
has their own story of the resolve, resourcefulness, and courage that compelled 
them to take the perilous journey to seek protection and the promise of a better life 
in the United States.  Because of the Title 42 Policy, however, most of these stories 
share a common thread: the federal government expels vulnerable individuals, 
including many pregnant people and families with babies and very young children, 
to countries where they face kidnapping, extortion, physical and sexual assault, and 
death without permitting them to access the legal process expressly afforded to 
them under U.S. law to seek protection and legal status in this country. 
 
4 Harold Hongju Koh, Re: Ending Title 42 return flights to countries of origin, 
particularly Haiti (Oct. 2, 2021), https://www.politico.com/f/?id=0000017c-4c4a-
dddc-a77e-4ddbf3ae0000. 
5 Camilo Montoya-Galvez, U.S. expels nearly 4,000 Haitians in 9 days as part of 
deportation blitz, CBS News (Sep. 27, 2021), 
https://www.cbsnews.com/news/haiti-migrants-us-expels-nearly-4000-in-nine-
days/ (at least 2,300 Haitian parents and children expelled in nine-day period); see 
also Returns of Migrants and Reception Assistance in Haiti, International 
Organization for Migration, United Nations (Nov. 8, 2021) (approximately 8,500 
Haitians expelled from United States since September 19, 2021, of which 
approximately 3,740 were women and children). 
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The stories of families who have been subjected to the Title 42 Policy 
illustrate that the policy offends the law in two important and related respects.  
First, it directly undermines this nation’s strong public interest in preventing 
individuals from being wrongfully removed to countries where they are likely to 
face substantial harm.  Second, it enables and empowers federal immigration 
officials to inflict irreparable and gratuitous harm on the most vulnerable among 
us.  For these reasons the District Court’s injunction of the Title 42 Policy should 
be affirmed.  
ARGUMENT 
I. 
THE PUBLIC INTEREST SUPPORTS AN INJUNCTION 
PREVENTING FAMILIES FROM BEING RETURNED TO 
COUNTRIES WHERE THEY WILL FACE CERTAIN AND 
SUBSTANTIAL HARM  
The Supreme Court has recognized “a public interest in preventing 
[individuals] from being wrongfully removed, particularly to countries where they 
are likely to face substantial harm.”  Nken v. Holder, 556 U.S. 418, 436 (2009). 
This public interest applies with particular force to families with minor children, 
tens of thousands of whom the federal government has summarily returned to 
countries rife with danger.  Because Defendants use the Title 42 Policy to remove 
families without any process or protections to countries where they will 
indisputably face grave harm, the public interest supports the District Court’s 
injunction. 
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Defendants’ mass expulsion of Haitian and other Black migrants from Del 
Rio, Texas, just two months ago is a case in point.  In the midst of Defendants’ 
efforts to operate multiple expulsion flights to Haiti each day, Daniel Foote, the 
United States Special Envoy to Haiti, resigned in protest, refusing to “be associated 
with the United States[’] inhumane, counterproductive decision to deport 
thousands of Haitian refugees and [ ] immigrants to Haiti, a country where 
American officials are confined to secure compounds because of the danger posed 
by armed gangs in control of daily life.”6  In his resignation letter, Ambassador 
Foote noted that Haiti is a “collapsed state,” “unable to provide security or basic 
services,” and that the people of Haiti are “mired in poverty, hostage to the terror, 
kidnappings, robberies and massacres of armed gangs and suffering under a 
corrupt government with gang alliances.”  Under such circumstances, the “forced 
infusion of thousands of returned migrants lacking food, shelter, and money” can 
only “fuel further desperation and crime.” 
Apart from returning thousands of families to a “humanitarian nightmare,” 
Defendants undertook the mass expulsion of migrants from Del Rio to Haiti—as 
with all other Title 42 expulsions—without any process to protect against the 
 
6 Read: Resignation letter from U.S. special envoy for Haiti, Daniel Foote, 
Washington Post (Sep. 23, 2021), https://www.washingtonpost.com/context/read-
resignation-letter-from-u-s-special-envoy-for-haiti-daniel-foote/3136ae0e-96e5-
448e-9d12-0e0cabfb3c0b/. 
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erroneous and unlawful return of individuals to countries where their life or 
freedom would be threatened.  As Harold Koh, a former senior advisor to the 
Biden Administration, has pointed out, Defendants apply the Title 42 Policy to 
“individuals who are already in the United States and to whom our legal 
obligations under the Refugee treaties and parallel statutes have undeniably 
attached.”7  But when processing migrants for expulsion under the policy, 
Defendants provide no affirmative screening for an individual’s fear of persecution 
upon return.  This lack of screening “inevitably create[s] an unacceptably high risk 
that a great many people deserving of asylum will instead likely be returned to 
countries where they fear persecution, death, or torture.”8  The Title 42 Policy thus 
“violate[s] our legal obligation not to expel or return (‘refouler’) individuals”—
“especially migrants fleeing from Haiti.”9 
Expulsions of migrant families to Haiti under the Title 42 Policy are not 
limited to the recent Del Rio incident.  Daniel10 and his family were expelled to 
Haiti in 2020, after first fleeing the country in 2015 when armed gangs demanded 
money from his family and shot at his house when they could not pay.  His parents 
 
7 See Harold Hongju Koh, supra note 4 (emphasis added).  
8 Id.  
9 Id.  
10 Amici have used first-name pseudonyms for certain individuals whose stories are 
shared in this brief.  Supporting documentation for each pseudonymous 
individual’s story is held by the individual’s attorney of record. 
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begged him and his family to leave the country for their own safety.  When Daniel 
and his wife and child were able to make their way to the U.S. border, they were 
immediately apprehended and separated from each other.  Daniel’s family, like 
many Haitian individuals expelled under the Title 42 Policy, was never given a 
chance to raise with an immigration officer their fear of being returned to Haiti.11  
They were detained for two weeks with only tortillas and cookies to eat, and before 
they were put on an expulsion flight, U.S. Immigration and Customs Enforcement 
(“ICE”) forced the family to eat ice chips to ensure that they would pass a 
temperature test meant to prevent people with COVID-19 from being placed on 
expulsion flights. 
Upon their expulsion to Haiti, Daniel and his family were forced to stay with 
his wife’s sister in Port-au-Prince because they knew that if he returned to his old 
family home, the same gangs would very likely attempt to kill him.  He and his 
family were devastated to find Haiti even more dangerous than when they had left 
five years prior, with kidnappings happening daily and people in constant fear for 
their lives.  As soon as they were able to gather enough money, they fled Haiti 
again and went back to Mexico, where they are barely surviving on what Daniel is 
 
11 Nicole Phillips and Tom Ricker, The Invisible Wall: Title 42 and Its Impact on 
Haitian Migrants, Haitian Bridge Alliance, The UndocuBlack Network and The 
Quixote Center (2021), https://www.quixote.org/wp-content/uploads/2021/03/The-
Invisible-Wall.pdf. 
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able to earn working several days a week.  Due to deep-seated anti-Black racism 
within U.S. Customs and Border Protection (“CBP”), Haitians and other Black 
migrants like Daniel are disproportionately harmed by application of the Title 42 
Policy.12 
Defendants’ expulsion of individuals to other countries besides Haiti, 
including Mexico, presents equally grave concerns that the United States is 
wrongfully returning individuals to countries where they are likely to face 
substantial harm.  Unfortunately, the abuse of expelled immigrants at the hands of 
organized crime in Mexico is all too common.  Individuals expelled from the 
United States are easily identifiable as foreign, in many cases do not have basic 
access to shelter in the places where they are expelled, and lack sufficient 
resources to protect themselves.  Black migrants are especially at risk, due to 
rampant anti-Black racism in Mexico and in countries from which they fled, 
 
12 See, e.g., Katy Murdza and Walter Ewing, Ph.D., The Legacy of Racism within 
the U.S. Border Patrol, American Immigration Council (Feb. 10, 2021), 
https://www.americanimmigrationcouncil.org/research/legacy-racism-within-us-
border-patrol; Nicole Phillips, supra note 11; Extending Title 42 Will Endanger 
Refugees, Not Stop Covid-19, Amnesty International (Aug. 3, 2021), 
https://www.amnestyusa.org/press-releases/extending-title-42-will-endanger-
refugees-not-stop-covid-19/; Paloma Delgado, Title 42 is Not About Public Health. 
It’s About Exclusion, Human Rights First (Oct. 21, 2021), 
https://www.humanrightsfirst.org/blog/title-42-not-about-public-health-it-s-about-
exclusion. 
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including Chile, Brazil, and elsewhere.13  Denied the opportunity to seek refuge 
under U.S. law, they are faced with the Hobson’s choice of remaining in Mexico, 
vulnerable to exploitation, violence, and death, or returning to their home 
countries, which often presents an even graver threat to their safety. 
Gabriel, for example, fled his home country of Honduras with his wife and 
three young children after gangs killed three of his wife’s siblings, tried to kill his 
brother, broke into Gabriel’s home and robbed him, severely beat him after he 
reported the robbery to the police, and threatened to kill him and his family.  
Although Gabriel received asylum for himself and his family in Mexico, he was 
forced to flee yet again when the gangs from Honduras tracked him to Mexico to 
take revenge against Gabriel and his wife for reporting them to the police.  U.S. 
immigration officials expelled Gabriel, his wife and children, and his brother to 
Mexico under the Title 42 Policy in February 2021. 
Because they feared for their lives in Honduras, Gabriel’s family remained 
in Mexico, hoping that it would be less dangerous, even though they often went 
hungry and repeatedly were threatened by gangs operating along the border.  In 
 
13 See, e.g., Nicole Phillips, supra note 11; Barrett Limoges, ‘I’m trapped here’: 
Haitian asylum seekers languish in Mexico, Aljazeera (Apr. 24, 2021), 
https://www.aljazeera.com/news/2021/4/24/im-trapped-here-haitian-asylum-
seekers-languish-in-mexico; Jasmine Aguilera, Caught Between U.S. Policies and 
Instability at Home, Haitian Migrants in Tijuana Are in a State of Limbo, Time 
(July 22, 2021), https://time.com/6080579/haitian-migrants-tijuana-us-policy/. 
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July 2021, gang members in Mexico kidnapped Gabriel and his brother and held 
them for ransom, subjecting both men to physical abuse.  Although Gabriel and his 
brother were able to escape, Gabriel was forced to hide from the gangs in a 
garbage dump.  When it was finally safe for him to emerge from hiding, he found 
that his wife and children had disappeared, and Gabriel was on the verge of suicide 
after searching for them for several days before finally learning of their 
whereabouts.   
The story of Gabriel’s family is unfortunately typical of many families who 
have sought protection from persecution in the United States, only to be expelled 
to hardship and trauma in Mexico.  The abuse they experience harms the entire 
family, with lasting repercussions.  Sebastian, for instance, is a seven-year-old 
Black Honduran boy who witnessed the violent rape of his mother by a gang after 
they were expelled to Mexico under the Title 42 Policy.  When they finally 
escaped, Sebastian’s mother turned to the Mexican police.  But as advocates have 
documented, Mexican authorities are known to discriminate against migrants, 
especially Black migrants.14  Rather than helping, the police taunted Sebastian’s 
mother, asking how much she would charge to give them a turn.  Since then, he has 
 
14 See, e.g., Human Rights Watch, Mexico: Abuses Against Asylum Seekers at US 
Border (Mar. 5, 2021), https://www.hrw.org/news/2021/03/05/mexico-abuses-
against-asylum-seekers-us-border (“Nearly half of those interviewed said Mexican 
police, immigration agents, or criminal groups targeted them for extortion.”). 
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12 
repeatedly told his mother that he wants to die.  In another instance, Graciela, a 
Honduran mother also expelled under the Title 42 Policy with her eight-year-old 
daughter and six-year-old son, considers herself “lucky” because although she and 
her children were kidnapped in Mexico after their expulsion, the kidnappers gang-
raped her in a separate room so that her children did not have to watch. 
Luz, a sixteen-year-old girl from Honduras, and her mother experienced 
similar trauma from the Title 42 Policy.  Luz and her mother fled to the United 
States because the head of a local gang was trying to force Luz to have a sexual 
relationship with him.  After nearly two months of perilous travel to seek safety in 
the United States, U.S. border authorities expelled Luz and her mother to Mexico 
under the Title 42 Policy in July 2021.  Because they feared what would happen to 
them if they returned to Honduras, the family remained in Mexico, surviving on 
little to eat and finding places to sleep on the street and in abandoned homes.  
While in Mexico, they were assaulted and robbed by Mexican officials attempting 
to prevent immigrants from approaching the river.  A group of men also attacked 
them, raping Luz and attempting to rape her mother.  The Mexican police refused 
to provide any assistance.  Luz still suffers emotionally and psychologically from 
being raped, and both she and her mother need counseling services to cope with the 
trauma they experienced in Mexico. 
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Families subjected to the Title 42 Policy are also kidnapped and split apart 
due to gang and cartel violence upon expulsion by CBP.  Isabel, for example, was 
captured along with her husband by the Zetas cartel and separated from her two 
young daughters, ages four and nine, mere hours after she and her family were 
expelled from the United States under the Title 42 Policy.  Immediately following 
their expulsion, Isabel’s family walked along the riverbank for four hours in search 
of a safe place to cross.  While her husband was carrying their girls across the 
river, men attempted to kidnap Isabel.  When Isabel’s husband tried to come to her 
aid, the gang attacked and subdued him, capturing them both.  They were held for 
ransom in Mexico for over two weeks, while Isabel was nine months pregnant—
and with no idea what had happened to their daughters. 
The Title 42 Policy also causes families to self-separate because conditions 
in Mexico are so dangerous that many families make the desperate and impossible 
decision to send their children across the border alone because only 
unaccompanied children are exempt from the policy.  Javier, for example, is a 
sixteen-year-old boy who was forced into labor by a gang in Honduras and 
attempted to flee to the United States with his parents and older brother.  In April 
2021, Javier’s family attempted twice to enter the United States to seek asylum 
through the statutorily prescribed procedures, but they were expelled both times 
under the Title 42 Policy.  While in Mexico, the Mexican police harassed and 
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extorted the family.  They also narrowly escaped an attempted kidnapping by the 
cartel in Ciudad Juárez.  The conditions in Mexico were so dangerous that, out of 
desperation to protect their child, Javier’s parents sent him across the border as an 
unaccompanied child to keep him safe. 
As former government officials have stressed, and as the stories of Daniel, 
Gabriel, Sebastian, Graciela, Luz, Isabel, Javier, and their families illustrate, the 
Title 42 Policy causes grave harm to migrants, which is compounded for many 
Black migrants, by sending families to countries where they will face substantial 
harm while depriving them of the specific protections that Congress has extended 
to vulnerable individuals seeking protection from persecution.15  Defendants seek 
to continue enforcing the Title 42 Policy to expel families to certain harm and 
suffering.  The public interest weighs decidedly in favor of affirming the District 
Court’s injunction.  See Nken, 556 U.S. at 436.   
 
15 E.g., 8 U.S.C. § 1158(a)(1) (allowing any noncitizen physically present in the 
United States to apply for asylum); 8 U.S.C. § 1231(b)(3) (forbidding the Attorney 
General from removing a noncitizen if the Attorney General decides that the 
noncitizen’s life or freedom would be threatened in her home country because of 
her race, religion, nationality, membership in a particular social group, or political 
opinion); Note to 8 U.S.C. § 1231 (declaring a U.S. policy not to remove a person 
to a country where there are substantial grounds for believing the person would be 
in danger of being subjected to torture). 
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II. 
CBP AND ICE AGENTS DIRECTLY INFLICT IRREPARABLE 
HARM ON FAMILIES BEING PROCESSED UNDER THE TITLE 42 
POLICY  
It is beyond dispute that migrant families subject to the Title 42 Policy suffer 
inhumane treatment at the hands of CBP and ICE agents.  There have been 
numerous, documented reports of migrants being assaulted, shackled, denied food 
and medical care, or forcibly separated from their families.  The substantial harms 
occurring to migrants while being processed under the Title 42 Policy supports the 
District Court’s injunction.   
Defendants’ recent mass expulsion of migrants from Del Rio, Texas, 
exemplifies the inhumane treatment that migrants receive as a result of the Title 42 
Policy and the many flaws inherent in a policy that requires CBP to process 
migrants for expulsion “in the field” whenever possible.  Migrants present at the 
Del Rio encampment reported feeling “treated like animals” when they were 
simply trying to obtain food and water for their families and were unexpectedly 
charged by CBP officers on horseback, who were attempting to drive migrants 
back into Mexico.  Migrant families, who were lawfully invoking their right to 
seek asylum, were shackled onboard their ICE flights to Haiti.  For instance, 
Macdalla, a mother of a newborn, had her hands and feet cuffed and connected to 
a chain around her waist, making it difficult to hold her baby during the flight.  She 
had never been shackled before in her life. 
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Many migrants also report being denied access to medical care and basic 
sanitation while in CBP or ICE custody pending expulsion.  Roseline, for example, 
is a Haitian woman who fled Haiti in 2016 because she had been kidnapped, 
beaten, and raped by a cartel because of her political affiliations.  Before being 
expelled to Haiti under the Title 42 Policy in February 2021, she was detained by 
U.S. officials for eleven days.  While in detention, Roseline was not given a single 
opportunity to shower or brush her teeth, had no way to clean her baby’s soiled 
clothes, and had no access to medical care for her baby’s respiratory infection.     
CBP also routinely withholds information and lies to migrants about their 
expulsions, exacerbating the inherent due process deprivations under the Title 42 
Policy.  Mirlande and her family, for example, presented themselves at the U.S. 
border after fleeing violence in Haiti.  They were detained and told they would 
quarantine in a cell for fourteen days, but just a few days into their quarantine they 
were abruptly moved in the middle of the night, and told they were being brought 
to another detention center.  They instead were brought to an airport for expulsion 
to Haiti.  Even as they were being forced onto the plane, no one would tell them 
where they were going or whether they were being deported.  Mirlande was so 
distressed that she fainted while getting onto the plane, falling and suffering severe 
injuries.  CBP’s practice of withholding information and lying to families about 
their expulsion results not only in gratuitous cruelty but serves to further deprive 
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17 
families of any opportunity to share information that might result in a humanitarian 
exception to Title 42. 
In operation, the Title 42 Policy has also served as another engine of 
government-sanctioned family separation, as CBP officials have deliberately 
separated husbands and wives, and children and parents under the policy.  José and 
his family, for example, attempted to cross the border and seek asylum in August 
2021 when CBP agents forcibly separated the family.  To José’s dismay, while 
CBP permitted José’s wife and six-year-old stepson to come into the country, CBP 
separated José and his two-year-old daughter and expelled them to Mexico under 
the Title 42 Policy.  CBP provided no explanation for why they divided the family 
in this way, and now José and his daughter are staying in a crowded migrant 
shelter in a dangerous neighborhood in Tijuana while his wife and stepson have 
connected with extended family members in Virginia.  The separation from her 
mother has been severely traumatic for José’s two-year-old daughter, who has lost 
five pounds in one month, suffers from diarrhea and vomiting, has contracted 
conjunctivitis, and displays extreme emotional swings from disconnect or 
withdrawal to tantrums where she cries hysterically, begging for her mother.  José 
is beside himself from seeing his daughter suffering so much and feeling powerless 
to alleviate her trauma—which could have been avoided if Defendants had not 
divided the family in this way. 
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Marisa was similarly separated from her children, despite being in 
possession of their birth certificates and documented proof that she is their mother.  
Marisa initially fled El Salvador with her eleven- and fifteen-year-old sons to 
protect them after her husband was assassinated.  They went directly to the border, 
but were quickly expelled under the Title 42 Policy.  After facing unbearable 
conditions in Mexico, they attempted to enter the United States a second time.  On 
this second attempt, Marisa and her children spent seven hours wading through the 
river, then another hour walking, as Marisa bled from a wound on her stomach 
from a recent surgery that had not yet healed.  Along this harrowing journey, they 
were stopped by local sheriffs, who handed the family over to CBP officials.  
When Marisa presented her sons’ birth certificates to CBP, however, she was 
accused of being a coyote and trafficking her own children.  She was expelled 
under the Title 42 Policy while her children were separated from her and taken into 
Office of Refugee Resettlement custody.  After she was expelled, Marisa was 
promptly taken into custody by the Mexican federal police and handed over to the 
cartels, who subjected her to extensive sexual, physical, and psychological abuse.  
The cartels tied her up and left her for dead with several other women, and she 
survived only because she found her way to safety after walking through the desert 
for multiple days with no water or food. 
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CBP officers have also separated young children from their siblings under 
the Title 42 Policy.  Esperanza, a thirteen-year-old girl, was separated from her 
older sister, who had turned eighteen just one day before they attempted to enter 
the United States.  After a hurricane destroyed their home in Honduras and gangs 
started pursuing Esperanza’s sister, the girls’ mother sent them to the United States 
with their family’s entire savings.  At the border, however, CBP officers took 
Esperanza into custody as an unaccompanied child and expelled her sister, her only 
caregiver, to Mexico under the Title 42 Policy.  Esperanza now has only limited 
contact with her sister, who remains in Mexico in danger.  Esperanza, distraught 
over the separation and terrified for her sister, cannot stop crying.   
Defendants’ enforcement of the Title 42 Policy has inflicted, amplified, and 
multiplied the harm of family separation and subjected families to gratuitous 
cruelty for simply seeking an opportunity to comply with this country’s 
immigration laws, seek immigration relief through the procedure Congress has 
established, and hopefully pursue safety and a better life for themselves and their 
children.  The Court should not accept Defendants’ invitation to subject more 
vulnerable families to irreparable trauma and harm. 
CONCLUSION 
In defending the Title 42 Policy, Defendants do not seek to advance the 
public health—a false pretense the Administration’s own officials have laid bare.  
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Instead, Defendants seek license to deny vulnerable families the ability to access 
Congressionally created protections and summarily remove them to countries 
where they are likely to be persecuted and subjected to extreme suffering and 
trauma.  The Court should not sanction such conduct, which disserves the public 
interest and inflicts irreparable harm on thousands of families.  The District Court’s 
injunction should be affirmed. 
Dated:  November 19, 2021 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
By:      /s/ Dimitri D. Portnoi 
           Dimitri D. Portnoi 
 
Counsel for Amici Curiae  
O’MELVENY & MYERS LLP 
400 SOUTH HOPE STREET, 18TH FLOOR 
LOS ANGELES, CALIFORNIA  90071-2899 
TELEPHONE:  213.430.6000 
FACSIMILE: 
 213.430.6407  
 
USCA Case #21-5200      Document #1923349            Filed: 11/19/2021      Page 28 of 31

 
21 
LIST OF AMICI CURIAE 
First Focus on Children 
 
Haitian Bridge Alliance 
 
Innovation Law Lab 
 
Justice Action Center 
 
Justice for Our Neighbors El Paso 
 
Kino Border Initiative 
 
La Raza Centro Legal 
 
National Immigration Law Center 
 
National Immigration Project (NIPNLG)  
 
National Network for Immigrant and Refugee Rights 
 
Pangea Legal Services 
 
Student Clinic for Immigrant Justice 
 
Tahirih Justice Center 
 
Women’s Refugee Commission 
 
USCA Case #21-5200      Document #1923349            Filed: 11/19/2021      Page 29 of 31

 
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CERTIFICATE OF COMPLIANCE 
I certify that this document complies with the type-volume limitation set 
forth in Federal Rules of Appellate Procedure 29(a)(5) & 32(a)(7)(B) because it 
contains 4560 words, exclusive of the portions of the brief that are exempted by 
Federal Rule of Appellate Procedure 32(f).  I certify that this document complies 
with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) 
and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6). 
Dated:  November 19, 2021 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
By:      /s/ Dimitri D. Portnoi 
           Dimitri D. Portnoi 
 
Counsel for Amici Curiae  
 
 
 
 
USCA Case #21-5200      Document #1923349            Filed: 11/19/2021      Page 30 of 31

 
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CERTIFICATE OF SERVICE 
I certify that, on November 19, 2021, a true and correct copy of the 
foregoing was filed with the Clerk of the United States Court of Appeals for the 
District of Columbia Circuit via the Court’s CM/ECF system, which will send 
notice of such filing to all registered CM/ECF users. 
 
 
Dated:  November 19, 2021 
DIMITRI D. PORTNOI 
O’MELVENY & MYERS LLP 
By:      /s/ Dimitri D. Portnoi 
           Dimitri D. Portnoi 
 
Counsel for Amici Curiae  
 
 
 
USCA Case #21-5200      Document #1923349            Filed: 11/19/2021      Page 31 of 31

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