Court filing
Amicus Brief — HIAS and Immigration Advocacy Groups — Huisha-Huisha v. Mayorkas
Filed November 19, 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 | 2021-11-19 |
Full text
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
Case No. 1:21-cv-100
Hon. Emmet G. Sullivan
BRIEF OF AMICI CURIAE HIAS, ASYLUM ACCESS,
THE CATHOLIC LEGAL IMMIGRATION NETWORK, INC.,
THE INSTITUTE FOR WOMEN IN MIGRATION, AND PROJECT
CORAZON – LAWYERS FOR GOOD GOVERNMENT
IN SUPPORT OF PLAINTIFFS-APPELLEES
Kathleen R. Hartnett
Julie Veroff
Zoë Helstrom
COOLEY LLP
3 Embarcadero Center, 20th Floor
San Francisco, CA 94111-4004
Telephone: +1 415 693 2000
khartnett@cooley.com
Attorneys for Amici Curiae
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 1 of 32
i
STATEMENT REGARDING CONSENT TO FILE
AND SEPARATE BRIEFING
Pursuant to District of Columbia Circuit Rule 29(b), undersigned counsel for
amici curiae represent that counsel for all parties have been sent notice of the filing
of this brief and have consented to the filing.1
Pursuant to District of Columbia Circuit Rule 29(d), undersigned counsel for
amici curiae certifies that this separate brief is necessary. HIAS is one of two non-
governmental organizations that oversaw the main process by which migrants were
referred to the Department of Homeland Security for humanitarian exemptions from
Title 42, the policy at issue in this appeal. Asylum Access, The Catholic Legal
Immigration Network, Inc., The Institute for Women in Migration, A.C., and Project
Corazon – Lawyers for Good Government, referred vulnerable asylum seekers for
humanitarian exemptions. Amici are therefore directly familiar with the process of
obtaining an exemption from Title 42 and uniquely positioned to explain to the Court
why that process is no longer available and was highly flawed and unsustainable
while in operation, and thus does not alleviate Plaintiffs’ injuries.
1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4), amici curiae state that
no counsel for a party authored this brief in whole or in part, and no person other
than amici curiae or its counsel made a monetary contribution to its preparation or
submission.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 2 of 32
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and District of
Columbia Circuit Rule 26.1, amici curiae states that no party to this brief is a
publicly held corporation, issues stock, or has a parent corporation.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 3 of 32
iii
CERTIFICATE AS TO PARTIES, RULINGS,
AND RELATED CASES
I.
PARTIES AND AMICI
Except for HIAS, Asylum Access, The Catholic Legal Immigration Network,
Inc., The Institute for Women in Migration, A.C., and Project Corazon – Lawyers
for Good Government, and any other amici who had not yet entered an appearance
in this case as of the filing of the Brief for Appellees, all parties, intervenors, and
amici appearing before the district court and this Court are listed in the Brief for
Appellants and Brief for Appellees.
II.
RULINGS UNDER REVIEW
Reference to the rulings at issue appears in the Brief for Appellants.
III.
RELATED CASES
Reference to any related cases pending before this Court appears in the Brief
for Appellants and Brief for Appellees.
Dated: November 19, 2021
By: /s/ Kathleen Hartnett
Counsel for Amici Curiae
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 4 of 32
TABLE OF CONTENTS
Page
iv
GLOSSARY .......................................................................................................... viii
INTEREST OF AMICI CURIAE ............................................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 4
ARGUMENT ............................................................................................................ 7
I.
THE TITLE 42 EXEMPTION PROCESS NO LONGER
EXISTS. ............................................................................................... 7
A.
The NGO-Led Consortium Protocol Provided a
Temporary Title 42 Exemption Pathway that No Longer
Exists. ......................................................................................... 8
B.
The ACLU Exemption Protocol Provided a Temporary
Title 42 Exemption Pathway that No Longer Exists. .............. 10
C.
There Is No Title 42 Exemption Process to Defeat
Plaintiffs’ Showing of Irreparable Injury. ................................ 11
II.
THE NGO-FACILITATED EXEMPTION PROCESS WAS
DEEPLY FLAWED AND UNSUSTAINABLE. .............................. 13
A.
The Exemption Process Created Serious Security
Concerns for Migrants and NGO Staff. ................................... 14
B.
The Exemption Process Was Abused to Defraud
Vulnerable Migrants. ............................................................... 18
C.
The Exemption Process Imposed Extraordinary Strain on
NGOs and Their Staff. ............................................................. 18
D.
DHS Strictly Limited the Size and Scope of the
Exemption Process, Leaving Many Vulnerable Migrants
Without Access to Protection................................................... 20
CONCLUSION ....................................................................................................... 22
CERTIFICATE OF COMPLIANCE ...................................................................... 23
CERTIFICATE OF SERVICE ............................................................................... 23
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 5 of 32
TABLE OF AUTHORITIES
Page
v
Statutes
8 U.S.C. § 212(d)(5) ................................................................................................. 12
42 U.S.C. § 265 .......................................................................................................... 4
Other Authorities
Adolfo Flores, Biden’s Border Policy Is Trapping LGBTQ Asylum-
Seekers in Dangerous Conditions in Mexico, Buzzfeed News, Sept.
16, 2021, 7:49 PM ET, https://tinyurl.com/a9vnvw46 ....................................... 11
Camilo Montoya-Galvez, Top CDC Official Told Congress Migrant
Expulsion Policy Was Not Needed to Contain COVID, CBS News,
Nov. 12, 2021, 5:31 PM, https://tinyurl.com/c5pjyp5n ........................................ 4
Dan Friedman, Title 42: Over a Million Expulsions and No End in
Sight, HIAS Blog, Sept. 23, 2021, https://tinyurl.com/3rx2sxns ................... 8, 10
Elliot Spagat & Julie Watson, Advocates End Work with US to Pick
Asylum-Seekers in Mexico, AP News, July 30, 2021,
https://tinyurl.com/398pnmes ............................................................................... 8
Hamed Aleaziz, Biden Officials Are Considering a Process to Allow
Some “Vulnerable” Immigrants to Avoid Trump-Era Border
Restrictions, BuzzFeed News, Apr. 29, 2021, 5:56 PM ET,
https://tinyurl.com/rym8xzd7 ............................................................................... 9
Human Rights First, Human Rights Travesty: Biden Administration
Embrace of Trump Asylum Expulsion Policy Endangers Lives,
Wreaks Havoc, Aug. 2021, https://tinyurl.com/3mw4frfx ..........................passim
Human Rights First, “Illegal and Inhumane”: Biden Administration
Continues Embrace of Trump Title 42 Policy as Attacks on People
Seeking Refuge Mount 17, Oct. 2021, https://tinyurl.com/ae3kkybz ........... 13, 21
Int’l Rescue Committee, The IRC Completes Participation in DHS’
Exceptions Process; Renews Call to End Use of Title 42 to Expel
Vulnerable People, July 30, 2021, https://tinyurl.com/5xnh6t6n ....................... 20
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 6 of 32
TABLE OF AUTHORITIES
(continued)
Page
vi
James Bandler et al., Inside the Fall of the CDC, ProPublica, Oct. 15,
2020, 1:12 PM EDT, https://tinyurl.com/5vafu2s9 .............................................. 5
Jason Dearen & Garance Burke, Pence Ordered Borders Closed After
CDC Experts Refused, Associated Press, Oct. 3, 2020,
https://tinyurl.com/rawpkejw ................................................................................ 5
Jihan Abdalla, Rights Groups Decry ‘Flawed’ US Asylum Exemptions
Process, Aljazeera, June 17, 2021, https://tinyurl.com/cfrdarwb ................... 9, 10
Joel Rose & Scott Neuman, The Biden Administration Is Fighting in
Court to Keep a Trump-Era Immigration Policy, NPR, Sept. 20,
2021, 3:31 PM ET, https://tinyurl.com/ns938aew .............................................. 12
Kate Morrissey, Attorney Groups Call for Investigation into Delays
Processing Humanitarian Requests to Enter U.S., San Diego
Union-Tribune, Nov. 10, 2021, 5:07 PM PT,
https://tinyurl.com/ysrjw3nt ................................................................................ 13
Kate Morrissey, Border Officials Cancel Entry Appointments for
Vulnerable Asylum Seekers in Tijuana, L.A. Times, July 24, 2021,
2:36 PM PT, https://tinyurl.com/wenkrvtn ......................................................... 17
Letter to Joseph V. Cuffari Re: U.S. Customs and Border Protection’s
Failure to Adjudicate Urgent Humanitarian Parole Applications,
Nov. 10, 2021, https://tinyurl.com/5s4yz272 ..................................................... 13
René Kladzyk, Vulnerable Migrants Will No Longer Be Exempt from
Rapid Expulsion at the Border, El Paso Matters, Sept. 7, 2021,
https://tinyurl.com/frt2chyu ................................................................................ 15
Stef W. Kight, ACLU to Ask Court to End Biden Administration’s Use
of Title 42, Axios, Aug. 2, 2021, https://tinyurl.com/e5n79rrb .......................... 11
U.S. Customs and Border Protection, Southwest Land Border
Encounters, https://tinyurl.com/nsfff9cm ....................................................... 5, 20
U.S. Dep’t of Homeland Sec., DHS Improves Process for
Humanitarian Exceptions to Title 42, May 12, 2021,
https://tinyurl.com/7ubp85yy ................................................................................ 8
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 7 of 32
TABLE OF AUTHORITIES
(continued)
Page
vii
UNHCR, Statement Attributable to UN High Commissioner for
Refugees Filippo Grandi on the Need to End US COVID-19
Asylum Restrictions, May 20, 2021, https://tinyurl.com/dn9k4mr2 ................... 14
Women’s Refugee Commission, Doubling Down on Deterrence:
Access to Asylum Under Biden, Sept. 2021,
https://tinyurl.com/kberejwm ........................................................................ 11, 14
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 8 of 32
viii
GLOSSARY
ACLU
American Civil Liberties Union
CBP
United States Customs and Border Protection
CDC
Centers for Disease Control and Prevention
CLINIC
The Catholic Legal Immigration Network, Inc.
DHS
United States Department of Homeland Security
IMUMI
The Institute for Women in Migration, A.C.
IRC
International Rescue Committee
JA
Joint Appendix
NGO
Non-Governmental Organization
OB
Opening Brief for Defendants-Appellants
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 9 of 32
1
INTEREST OF AMICI CURIAE
Amici are non-governmental organizations that aided migrants and asylum
seekers for several months in 2021 in obtaining humanitarian exemptions to the
federal government’s summary expulsion policy at the southern border, otherwise
known as Title 42. Amici—along with all other organizations involved—ended their
participation in the Title 42 exemption process by August 2021. Amici submit this
brief to help the Court understand that the exemption process is now, and for several
months has been, defunct, and that it was deeply flawed even when it was
operational. That process therefore did not and does not provide migrants and
asylum seekers a meaningful avenue of relief from the Title 42 policy or prevent
their irreparable harm, much less provide a legally proper substitute for a
government-operated asylum process available to all who are fleeing danger.
HIAS is a non-profit organization that provides a variety of services to
refugees and other foreign nationals seeking to resettle in the United States. Founded
as the Hebrew Immigrant Aid Society, HIAS exists to rescue people whose lives are
in danger and help them resettle in the United States. HIAS is the global refugee
organization of the American Jewish community. Its clients include refugees and
their families, both in the United States and abroad. For several months in 2021,
HIAS worked with the Department of Homeland Security (“DHS”) to implement a
process by which migrants could obtain humanitarian exemptions to Title 42.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 10 of 32
2
Asylum Access is a family of non-profit organizations, headquartered in
Oakland, California, with national offices in Mexico, Thailand, and Malaysia.
Asylum Access’ mission is to make human rights a reality for refugees, by
supporting forcibly displaced individuals and communities as they reclaim their
rights, agency, and power. Asylum Access Mexico participated in the Title 42
exemption process before withdrawing in June 2021 due to the issues detailed
herein.
The Catholic Legal Immigration Network, Inc. (“CLINIC”) is the nation’s
largest network of non-profit immigration legal services providers, with over 400
affiliates in 49 states. CLINIC’s mission, which derives from its broader purpose of
embracing the Gospel value of welcoming the stranger, is to promote the dignity and
protect the rights of immigrants in partnership with its network of affiliates. Since
2019, CLINIC has operated the Estamos Unidos project in Ciudad Juarez, Mexico,
providing information and assistance to U.S. asylum seekers in Mexico. For several
months in 2021, CLINIC referred vulnerable asylum seekers to a process
administered by Plaintiffs’ counsel for humanitarian exemptions to Title 42.
The Institute for Women in Migration, A.C. (“IMUMI”) is a civil society
organization based in Mexico City that promotes the rights of women and their
families in migration. In addition to providing legal support for migrants, IMUMI
collaborates with civil society organizations, academic institutions, and government
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 11 of 32
3
bodies to ensure issues relevant to women are included in government initiatives
focusing on migration policy. Through its legal and policy work, IMUMI highlights
the increasing participation of women in migration to foster better governmental
responses to their particular needs. IMUMI seeks to encourage the creation of
policies and programs that take into account the situation of migrant women in a
broad sense, focusing on three major areas: the right to be free from violence, the
right to an identity, and the right to family unity. For several months in 2021,
IMUMI participated in the Title 42 exemption process.
Project Corazon – Lawyers for Good Government was created to defend
the rights of migrants in the face of inhumane immigration policies. Project Corazon
is run by Lawyers for Good Government, a community of over 125,000 lawyers, law
students, and activists, and centers on providing legal assistance to vulnerable
asylum seekers at the Brownsville/Matamoros border crossing. In 2021, Project
Corazon – Lawyers for Good Government referred vulnerable asylum seekers to a
process administered by Plaintiffs’ counsel for humanitarian exemptions under Title
42.
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4
INTRODUCTION AND SUMMARY OF ARGUMENT
For close to two years, the federal government has been summarily expelling
arriving migrants without any meaningful legal process, even if they are fleeing
danger and seeking asylum in the United States. As claimed authority for this
summary expulsion policy, referred to here as “Title 42,” the Centers for Disease
Control and Prevention (“CDC”) has relied on an old and rarely used public health
provision, 42 U.S.C. § 265, to issue several orders establishing the policy. See 1 JA
74-81, 129-52.
The government claims that Title 42 is necessary to combat the COVID-19
pandemic, but that public health rationale has been roundly criticized by scientists,
who note that even before the widespread availability of testing and vaccines there
was no medical justification for the policy. The second-highest ranking CDC
official at the time the policy was issued recently testified to Congress that “the bulk
of the evidence at that time did not support this policy proposal,” and that the director
of the CDC’s office overseeing border-related public health measures did not
support Title 42 because he thought that “the facts on the ground didn’t call for this
from a public health reason, and that the decision wasn’t being made based on
criteria for quarantine” but “for other purposes.” Camilo Montoya-Galvez, Top
CDC Official Told Congress Migrant Expulsion Policy Was Not Needed to Contain
COVID, CBS News, Nov. 12, 2021, 5:31 PM, https://tinyurl.com/c5pjyp5n (“Top
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 13 of 32
5
CDC Official”). That testimony corroborates earlier reporting that high-level CDC
scientists objected to Title 42, which was pushed by White House officials focused
on barring migration. See, e.g., James Bandler et al., Inside the Fall of the CDC,
ProPublica, Oct. 15, 2020, 1:12 PM EDT, https://tinyurl.com/5vafu2s9; Jason
Dearen & Garance Burke, Pence Ordered Borders Closed After CDC Experts
Refused, Associated Press, Oct. 3, 2020, https://tinyurl.com/rawpkejw.
Amici strongly agree with Plaintiffs and the District Court that Title 42 is
unlawful. See 1 JA 101. This brief, however, focuses not on the merits of Plaintiffs’
legal claim but rather on why the Court should not credit the government’s argument
that Plaintiffs cannot show irreparable injury.
The government offers only one reason why Plaintiffs allegedly will not suffer
irreparable injury absent a preliminary injunction: that “their claimed harm is that
they wish to apply for humanitarian relief (such as asylum)” and the operative CDC
Order governing Title 42 “provides for case-by-case exceptions for humanitarian
needs.” OB-54 (citing 1 JA 151); see also OB-49 n.10. As support for this assertion,
the government notes that over 16,000 individuals (compared to more than 1.3
million expelled) have been processed into the United States pursuant to that
exception authority as of early August 2021. OB-49 n.10 (citing 1 JA 172 (Decl. of
David Shahoulian) ¶ 11); see U.S. Customs and Border Protection, Southwest Land
Border Encounters, https://tinyurl.com/nsfff9cm (last accessed Nov. 18, 2021)
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 14 of 32
6
(“Southwest Land Border Encounters”). But the government fails to acknowledge
a critical fact: that the processes that allowed the exception authority to function
ceased in practice at the end of August 2021 and there is no prospect of their
restarting. The primary exemption process, launched by the government in spring
2021, depended on non-governmental organizations (“NGOs”) like HIAS to help
identify migrants for exemptions. That process has been defunct since the end of
August 2021 when the government refused to end Title 42 and reinstate a legal
asylum process. At that point, HIAS and the other NGOs who had been participating
in the exemption process were unable to continue doing so, given the ongoing
unlawful use of Title 42 and the security risks and strains on their staff created by
the policy. The government has not announced any plans for restarting the
exemption process or creating an alternative process. Nor is the discrete and limited
exemption process facilitated by an agreement between Plaintiffs’ counsel and the
government any longer in operation.
Moreover, even when the exemption processes were operational, they were
deeply flawed and unsustainable. The process generated serious safety risks for
NGOs and migrants, subjected asylum seekers to fraud by criminal actors pretending
to offer access to exemptions, and strained already overextended NGOs. And
because of the government’s strict numerical and geographic limits on exemptions,
only a small subset of migrants in need of protection received it. Thus, the
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 15 of 32
7
government’s flawed Title 42 exemption system was (and is) no substitute for the
asylum processing required by law that Plaintiffs wish to access.
In short, no Title 42 exemption process exists to alleviate Plaintiffs’ injuries
and provide them a path to humanitarian relief in the United States. As a result,
individuals who should qualify even under the most restrictive possible definition of
humanitarian need are expelled. The District Court thus properly concluded that
Plaintiffs would suffer irreparable harm absent an injunction, and its decision
granting Plaintiffs’ motion for preliminary injunction should be affirmed.
ARGUMENT
I.
THE TITLE 42 EXEMPTION PROCESS NO LONGER EXISTS.
Prior to August 2021, two pathways to obtaining a humanitarian exemption
from expulsion under Title 42 were temporarily available to particularly vulnerable
individuals. The first was a protocol run by a consortium of NGOs, including HIAS,
that worked with DHS to identify migrants suitable for an exemption. The second
was a protocol run by Plaintiffs’ counsel in this case, the American Civil Liberties
Union (“ACLU”), while the instant litigation was stayed as the parties explored
avenues for resolution. These pathways no longer exist. There is thus no present or
prospective exemption process.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 16 of 32
8
A.
The NGO-Led Consortium Protocol Provided a Temporary Title
42 Exemption Pathway that No Longer Exists.
In spring 2021, the government began working with a consortium of six
NGOs, led by HIAS and the International Rescue Committee (“IRC”), to oversee an
exemption protocol through which the NGOs would identify and refer particularly
vulnerable individuals to DHS for consideration for humanitarian exemptions to
Title 42 and admission to the United States. See Dan Friedman, Title 42: Over a
Million Expulsions and No End in Sight, HIAS Blog, Sept. 23, 2021,
https://tinyurl.com/3rx2sxns (“No End in Sight”).2 From the outset, the expectation
was that the consortium protocol would be in place only for a temporary, three-
month period lasting until July 31, 2021, when it was widely understood and
expected that the Biden Administration would rescind Title 42. See Elliot Spagat &
Julie Watson, Advocates End Work with US to Pick Asylum-Seekers in Mexico, AP
News, July 30, 2021, https://tinyurl.com/398pnmes.
The consortium protocol operated at six ports of entry along the U.S.-Mexico
border: San Ysidro in California, Nogales in Arizona, and El Paso, Laredo, Hidalgo,
and Brownsville in Texas. IRC led the referral process at Nogales, and HIAS led
2 As DHS explained in a contemporaneous press release, the humanitarian
exemption process entailed “close coordination with international and non-
governmental organizations in Mexico and COVID-19 testing before those
identified through this process are allowed to enter the country.” U.S. Dep’t of
Homeland Sec., DHS Improves Process for Humanitarian Exceptions to Title 42,
May 12, 2021, https://tinyurl.com/7ubp85yy.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 17 of 32
9
the referral process at the other five ports. The other organizations in the consortium
referred migrants to HIAS and IRC. Id. The government allowed up to 250 migrants
per day to enter the United States through the consortium protocol. See Jihan
Abdalla, Rights Groups Decry ‘Flawed’ US Asylum Exemptions Process, Aljazeera,
June 17, 2021, https://tinyurl.com/cfrdarwb (“Rights Groups”). Each port of entry
had different daily caps.
Operation of the consortium protocol required coordination across various
organizations, government agencies, and borders. To begin, staff at HIAS’s offices
in Mexico identified individuals potentially suitable for a humanitarian exemption
from Title 42 due to their vulnerability, either directly or via referrals from the other
consortium and non-consortium organizations operating on the ground in Mexico.
HIAS then assessed vulnerability and decided which migrants to propose to U.S.
Customs and Border Protection (“CBP”) as suitable for exemption. HIAS submitted
the biographical and biometric data of the individuals it recommended to CBP and
scheduled them for an appointment to present at a designated port of entry. See
Hamed Aleaziz, Biden Officials Are Considering a Process to Allow Some
“Vulnerable” Immigrants to Avoid Trump-Era Border Restrictions, BuzzFeed
News, Apr. 29, 2021, 5:56 PM ET, https://tinyurl.com/rym8xzd7. In addition,
because the government required all noncitizens seeking exemptions to obtain a
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10
negative COVID-19 test before presenting at a port of entry, HIAS arranged for
exemption-seekers to get COVID tested. Id.
When the Biden Administration did not end Title 42 at the end of July 2021,
HIAS and IRC announced that they could no longer be part of implementing the
consortium protocol. HIAS formally withdrew from its agreement with the
government at the end of August, having used the remaining weeks to clear the
backlog of applicants it had already accepted. See No End in Sight. HIAS and the
consortium organizations were compelled to end their involvement in the exemption
process because they could not indefinitely participate in enabling Title 42, a
fundamentally illegal policy, and could not continue to subject their staff to the
security risks and strain detailed in Part II, infra.
B.
The ACLU Exemption Protocol Provided a Temporary Title 42
Exemption Pathway that No Longer Exists.
In early 2021, Plaintiffs, represented by the ACLU and others, filed this
litigation to challenge the continued use of Title 42 against families with at least one
minor child. See 1 JA 43-66. From late February through August 2021, the case
was held in abeyance while the parties engaged in settlement discussions. See 1 JA
85; No End in Sight. As part of those negotiations, the government agreed to permit
the ACLU to oversee a protocol whereby up to 35 families per day could be admitted
to the United States under exemptions from Title 42. See Rights Groups.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 19 of 32
11
Under this exemption protocol, Plaintiffs’ counsel collected applications from
various non-profits that worked directly with asylum seekers before submitting them
to CBP for consideration. While this exemption process occurred, Plaintiffs made
clear to the government that it was not an adequate substitute for a legal asylum
process and that the goal of this litigation was to end the policy altogether. See Stef
W. Kight, ACLU to Ask Court to End Biden Administration’s Use of Title 42, Axios,
Aug. 2, 2021, https://tinyurl.com/e5n79rrb.
The agreement between Plaintiffs and the government lasted until early
August. At that time, the government halted this exemption protocol after settlement
discussions ended. See Adolfo Flores, Biden’s Border Policy Is Trapping LGBTQ
Asylum-Seekers in Dangerous Conditions in Mexico, Buzzfeed News, Sept. 16,
2021, 7:49 PM ET, https://tinyurl.com/a9vnvw46.
C.
There Is No Title 42 Exemption Process to Defeat Plaintiffs’
Showing of Irreparable Injury.
Both the consortium and Plaintiffs’ exemption protocols were intended as
temporary exemption processes under Title 42 and were not intended as permanent
replacements to a legal asylum system. In light of the government’s refusal to
abandon Title 42, no Title 42 humanitarian exemption process is now available for
people summarily expelled under that authority. See, e.g., id.; Women’s Refugee
Commission, Doubling Down on Deterrence: Access to Asylum Under Biden 5,
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12
Sept. 2021, https://tinyurl.com/kberejwm (“Doubling Down”) (“There is currently
no exemption process available for people impacted by Title 42.”).
Because there is no longer an NGO-based exemption process (or one
facilitated by Plaintiffs’ counsel), any Title 42 exemption process must be
implemented solely by the government. The government, however, has failed to do
so. See Joel Rose & Scott Neuman, The Biden Administration Is Fighting in Court
to Keep a Trump-Era Immigration Policy, NPR, Sept. 20, 2021, 3:31 PM ET,
https://tinyurl.com/ns938aew. As a result of the government’s decision not to
implement and oversee an exemption process itself in the over two months since the
other exemption processes terminated, migrants currently have neither a meaningful
pathway to exemption under Title 42 nor access to a legal asylum process.
Accordingly, the government is wrong that a Title 42 exemption process
undermines Plaintiffs’ showing of irreparable injury absent a preliminary injunction.
There is currently no existing or planned Title 42 exemption process. Rather, in
reality, Title 42 prevents Plaintiffs from reliably accessing any humanitarian relief.
To the extent that the government claims there is still case-by-case relief available
to individuals seeking humanitarian parole at ports of entry, that process provides no
meaningful relief.3
3 Although DHS has statutory authority to consider requests for humanitarian parole,
see 8 U.S.C. § 212(d)(5), the parole process (the existence of which pre-dates Title
42) is extremely limited and highly dysfunctional, and is no substitute for a
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 21 of 32
13
II.
THE NGO-FACILITATED EXEMPTION PROCESS WAS DEEPLY
FLAWED AND UNSUSTAINABLE.
Even when the Title 42 exemption protocols were operational, they were
deeply problematic because of the limitations and parameters the government placed
on them. The NGO-facilitated process created security risks for NGOs and migrants,
exposed migrants to fraud by criminal actors pretending to offer access to
exemptions, placed an extraordinary burden on NGO staff, and failed to offer
sufficient protection to highly vulnerable migrants because of government-imposed
functioning asylum system. In particular, since August 2021, when the NGO
exemption process ended, parole requests “have been ignored or denied in the vast
majority of cases without explanation.” Human Rights First, “Illegal and
Inhumane”: Biden Administration Continues Embrace of Trump Title 42 Policy as
Attacks
on
People
Seeking
Refuge
Mount
17,
Oct.
2021,
https://tinyurl.com/ae3kkybz (“Illegal and Inhumane”). For example, CBP denied
parole requests submitted on behalf of “a Honduran woman who was raped by
Mexican police, sex trafficked, and forced to work in a massage parlor,” id., and a
21-year old woman who fled persecution in her home country and was then
kidnapped, held hostage at gunpoint for five days, starved, and sexually assaulted by
traffickers in Mexico, and escaped only by throwing herself out a window, see Kate
Morrissey, Attorney Groups Call for Investigation into Delays Processing
Humanitarian Requests to Enter U.S., San Diego Union-Tribune, Nov. 10, 2021,
5:07 PM PT, https://tinyurl.com/ysrjw3nt. Parole applications on behalf of young
children with epilepsy and other urgent medical needs have been left pending for
months. Id. The parole process is so flawed that five experienced legal services
organizations recently submitted an administrative complaint to the DHS Office of
Inspector General regarding CBP’s systematic “failure to adjudicate applications for
humanitarian parole,” calling the parole process “nebulous,” “increasingly opaque,”
and “unduly arduous to navigate.” Letter to Joseph V. Cuffari Re: U.S. Customs
and Border Protection’s Failure to Adjudicate Urgent Humanitarian Parole
Applications, Nov. 10, 2021, https://tinyurl.com/5s4yz272.
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 22 of 32
14
numerical caps and processing delays. See, e.g., Doubling Down at 5 (noting that
the exemption process was “inaccessible to the vast majority of individuals seeking
protection, and endangered both asylum seekers and the legal and humanitarian
groups assisting them”). As the United Nations High Commissioner for Refugees
observed in appealing to the U.S. government to end Title 42, a limited exemption
process run by NGOs simply is not an adequate substitute for the longstanding
system of asylum processing at the border. See UNHCR, Statement Attributable to
UN High Commissioner for Refugees Filippo Grandi on the Need to End US
COVID-19 Asylum Restrictions, May 20, 2021, https://tinyurl.com/dn9k4mr2 (“A
system which allows a small number of asylum seekers to be admitted daily,
however, carries with it a number of risks, and is not an adequate response.”).
A.
The Exemption Process Created Serious Security Concerns for
Migrants and NGO Staff.
By its very structure, the exemption process in multiple ways “created serious
security issues for asylum seekers as well as the [NGOs]” involved. Human Rights
First, Human Rights Travesty: Biden Administration Embrace of Trump Asylum
Expulsion
Policy
Endangers
Lives,
Wreaks
Havoc
25,
Aug.
2021,
https://tinyurl.com/3mw4frfx (“Human Rights Travesty”).
To start, because the exemption process represented a limited opportunity to
enter the United States when the border was otherwise closed, migrants and NGO
staff became easy targets for criminal organizations and human traffickers. For
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 23 of 32
15
example, criminal organizations cloned attorneys’ telephone numbers or otherwise
falsely claimed to be involved in the exemption process to kidnap and ransom
asylum seekers. Id. (recounting examples of asylum seekers kidnapped by people
pretending to be affiliated with an NGO helping with the exemption process). NGO
staff, in turn, were harassed, surrounded by crowds at their offices, followed home,
and approached by members of criminal organizations. To keep its staff safe, HIAS
had to adopt a number of security risk mitigation measures, including refusing to
discuss publicly its participation in the exemption process while it was happening.
As explained by an attorney at Las Americas, an NGO that referred vulnerable
migrants to HIAS, the exemption process “put[] nonprofits in danger” because they
“became seen as a ticket into the United States.” René Kladzyk, Vulnerable
Migrants Will No Longer Be Exempt from Rapid Expulsion at the Border, El Paso
Matters, Sept. 7, 2021, https://tinyurl.com/frt2chyu.
Further, the government only processed humanitarian exemptions at six ports
of entry along the southern border, which are located “in dangerous border cities[.]”
Human Rights Travesty at 25. Migrants “desperate to seek protection in the United
States” thus had no choice but to stay in areas where they “were vulnerable to
kidnapping, exploitation—including by some shelter operators—extortion, and
violent attacks as they attempted to request exemptions and while waiting for
appointments at U.S. ports of entry.” Id. Because the government also required all
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 24 of 32
16
migrants seeking exemptions to show a negative COVID-19 test within 72 hours
before presenting at a port of entry, migrants then had “to travel through dangerous
areas” to obtain a COVID-19 test, “placing them at additional risk of kidnapping or
other harm.” Id.
The exemption process was also plagued by long wait times between when an
NGO referred a migrant’s case to CBP for consideration and when the migrant was
finally processed for an exemption. Id.; see also 2 JA 351 (Supp. Decl. of Taylor
Levy) ¶ 64 (legal services attorney describing “waiting list of hundreds of families
who were waiting for a humanitarian exemption”). These delays exacerbated the
risks migrants faced by having to stay in dangerous areas in Mexico. Human Rights
Travesty at 26. For instance, “a 49-year-old Mexican asylum seeker fleeing
persecution in Mexico . . . died of a heart attack while waiting for an exemption
appointment” at the San Ysidro port of entry. Id. He had been “experiencing
unrelenting terror because persecutors from Michoacán had tracked him, his wife
and child to a house where they were hiding” pending the appointment. Id. Another
asylum seeker, a 29-year-old from Haiti, “died of respiratory failure after he was
unable to access adequate medical care for his condition in Tijuana while waiting to
request an exemption to Title 42.” Id. And “a 49-year-old Mexican asylum seeker
with high blood pressure died while waiting for her scheduled appointment to
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 25 of 32
17
approach” the San Ysidro port for an exemption, leaving behind a six-year-old son.
Id.
In addition, multiple asylum seekers were deported by Mexican immigration
officials to their home countries, where they face persecution, while they were
waiting to present at a port of entry after having been referred by an NGO for an
exemption. See Human Rights Travesty at 22-23. As just one example, a Honduran
man and his family had been referred for an exemption after having been kidnapped,
assaulted, and robbed in Mexico, but the man was detained by Mexican authorities
while en route to meet his family for their exemption appointment at the port of entry
and then deported. Id. at 23.
Towards the end of the exemption process, CBP further amplified the danger
and instability that migrants faced by cancelling their appointments at the San Ysidro
port of entry at the last minute. Id. at 25. These abrupt cancellations left migrants
who had given up their housing and jobs in Mexico in anticipation of presenting at
the port homeless, without means of support, and vulnerable to kidnapping and other
violence. See Kate Morrissey, Border Officials Cancel Entry Appointments for
Vulnerable Asylum Seekers in Tijuana, L.A. Times, July 24, 2021, 2:36 PM PT,
https://tinyurl.com/wenkrvtn. For example, the same night a Haitian man was turned
back from the port of entry because of CBP’s cancellations, a large group with guns
and machetes broke down his door, forced him to leave, and stole all his possessions,
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 26 of 32
18
leaving him with just $20 and his passport. Id. CBP gave him a new appointment
that was not until a full month after his original one, leaving him with nowhere to
stay in the interim. Id.
B.
The Exemption Process Was Abused to Defraud Vulnerable
Migrants.
Criminal groups and human traffickers further abused the exemption process
by fraudulently manipulating vulnerable migrants seeking refuge in the United
States into believing that they had to pay for the ability to seek an exemption. For
instance, some unscrupulous shelter operators falsely told asylum seekers they had
to pay for the opportunity to speak with NGOs facilitating the exemption process.
Human Rights Travesty at 25. One such shelter operator in Tijuana charged a family
$8,000 after claiming that was the fee charged by a legal services organization. Id.
Migrants also were defrauded by individuals falsely claiming to be NGO staff and
advising that they could pay a fee to have their exemption requests expedited. Id.
Other migrants were scammed out of $1,000 after being told that money was
required for transportation to an NGO’s office and the ability to seek an exemption.
Id.
C.
The Exemption Process Imposed Extraordinary Strain on NGOs
and Their Staff.
The exemption process was extremely resource intensive for participating
NGOs. Identifying, screening, and referring migrants to CBP for consideration for
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 27 of 32
19
an exemption involved interviewing tens of thousands of individuals about their
vulnerability; collecting and processing highly sensitive biographical and biometric
details; arranging for COVID-19 tests at the right time (within 72 hours of presenting
at a port of entry); matching recommended individuals with dates and times to
present at specific ports of entry; coordinating with those individuals to ensure they
had all the relevant information and actually got to the port; and sometimes actually
accompanying them to present at the port, a process that could include interfacing
with armed Mexican soldiers hostile to asylum seekers.
Further, asking NGOs to decide who was worthy of the government’s
consideration for an exemption—while knowing full well that all the asylum seekers
not referred for consideration would suffer in Mexico or their home countries—put
them in an unsustainable position. Amici and other organizations were not simply
determining whether someone met a vulnerability threshold. Rather, because of the
strict limits on the number of people CBP would process for an exemption, NGOs
were making a comparative assessment—among many vulnerable people, who was
the most vulnerable and so in greatest need of an exemption to Title 42, and thus the
opportunity to seek asylum in the United States. Being asked by the government to
exercise that moral authority was incredibly stressful for amici’s staff and resulted
in significant mental health strain and burnout. See Human Rights Travesty at 24
(“In effect, DHS forced already overstretched[] attorneys and organizations to
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 28 of 32
20
gatekeep these limited exemptions while the Biden administration violated its legal
obligation to provide people fleeing persecution and torture access to the U.S.
asylum system.”). Moreover, beyond the stress and danger to staff, asking NGOs to
identify which of their clients should be permitted to exercise their lawful right to
seek asylum created untenable ethical dilemmas. It cannot be the role of human
rights organizations to weigh the vulnerabilities of one client versus another and then
judge which applications are more worthy of submission to the government.
D.
DHS Strictly Limited the Size and Scope of the Exemption Process,
Leaving Many Vulnerable Migrants Without Access to Protection.
As noted in Part I supra, DHS allowed only limited numbers of migrants to
be processed for humanitarian exemptions each day—far fewer than the total
number of vulnerable migrants and asylum seekers. See, e.g., Int’l Rescue
Committee, The IRC Completes Participation in DHS’ Exceptions Process; Renews
Call to End Use of Title 42 to Expel Vulnerable People, July 30, 2021,
https://tinyurl.com/5xnh6t6n; 2 JA 382 (Decl. of Savitri Arvey) ¶ 20 (“[D]ue to the
very limited number of exemptions granted each day, the majority of asylum seekers
will not be able to obtain an exemption from Title 42, no matter how vulnerable they
are.”). In total, over 1.3 million people have been expelled under Title 42 since the
policy first began, and just 16,000 were granted humanitarian exemptions. See
Southwest Land Border Encounters; 1 JA 172 (Decl. of David Shahoulian) ¶ 11.
The many vulnerable people unable to access protection via an exemption or the
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 29 of 32
21
asylum system were left in extremely dangerous conditions in Mexico. Human
Rights First has tracked 7,647 kidnappings, rapes, armed assaults, and other violent
attacks against people subjected to Title 42 between January and October 2021. See
Illegal and Inhumane at 11.
The government also limited the exemption process to only six ports of entry
along the southern border, meaning that migrants could only receive a humanitarian
intervention if they presented at one of those designated ports. That geographic
limitation made it very difficult for migrants in more remote areas to access an
exemption, forcing them to either forego the opportunity to seek an exemption or
travel through extremely dangerous areas of Mexico to reach a designated port. An
attorney at a legal services provider in Arizona, for example, explained that legal
and humanitarian service providers repeatedly asked DHS to permit asylum seekers
to present for exemptions at other ports of entry in Arizona besides Nogales, as
hundreds of their clients were displaced in more remote areas of the border. 2 JA
442 (Declaration of Chelsea Sachau) ¶ 15. The government refused to do so,
effectively forcing those asylum seekers to travel “directly in the path of the cartel
fighting.” Id. ¶ 16.
Finally, by conditioning access to the exemption process on the ability to get
connected with the right NGO, the government effectively shut out the many
migrants who were unable to do so. See 2 JA 382 (Decl. of Savitri Arvey) ¶ 20
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 30 of 32
22
(noting that “[m]any asylum seekers do not have access to NGOs”); Human Rights
Travesty at 24 (“Only those families and individuals in contact with attorneys and
organizations involved in the exemptions were able to request exemptions.”).
CONCLUSION
The Court should reject the government’s effort to downplay the devastating,
ongoing harms caused by Title 42 through its invocation of a highly flawed—and
now defunct—exemption process. No meaningful humanitarian exemption process
under Title 42 currently exists and the government does not identify any concrete
plans to implement such a process. In any event, the exemption process was highly
flawed and unsustainable, and cannot be considered an adequate substitute for the
asylum process that Title 42 circumvents. The Court should affirm the District
Court’s decision granting a preliminary injunction.
Dated: November 19, 2021
Respectfully submitted,
/s/ Kathleen Hartnett
Kathleen R. Hartnett (483250)
Julie Veroff
Zoë Helstrom
COOLEY LLP
3 Embarcadero Center, 20th Floor
San Francisco, CA 94111-4004
Telephone: +1 415 693 2000
khartnett@cooley.com
Attorneys for Amici Curiae
USCA Case #21-5200 Document #1923308 Filed: 11/19/2021 Page 31 of 32
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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 29(a)(5) and 32(a)(7)(B)(i) because it contains 5,080 words,
excluding the parts of the brief exempted by Federal Rules of Appellate Procedure
32(f) and Circuit Rule 32(e)(1). 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/ Kathleen Hartnett
Kathleen Hartnett
CERTIFICATE OF SERVICE
I hereby certify that on November 19, 2021, I electronically filed the foregoing
with the Clerk for the United States Court of Appeals for the D.C. 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/ Kathleen Hartnett
Kathleen Hartnett
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