Amicus Brief — International Refugee Assistance Project — Huisha-Huisha v. Mayorkas (2021-11-19, 2)

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ORAL ARGUMENT SCHEDULED FOR JANUARY 19, 2022 
 
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, 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 
No. 1:21-cv-00100-EGS 
____________ 
 
BRIEF OF AMICUS CURIAE  
THE INTERNATIONAL REFUGEE ASSISTANCE PROJECT, INC.  
IN SUPPORT OF APPELLEES 
 
 
 
 
Kathryn Austin 
 
 
 
 
kaustin@refugeerights.org 
Geroline A. Castillo  
 
 
 
gcastillo@refugeerights.org 
Mariko Hirose 
 
 
 
 
mhirose@refugeerights.org 
Deepa Alagesan 
 
 
 
 
dalagesan@refugeerights.org 
INTERNATIONAL REFUGEE  
 
Tel: (516) 296-0688 
ASSISTANCE PROJECT 
 
 
 
One Battery Park Plaza, 4th Floor 
 
Counsel for Amicus Curiae 
New York, N.Y. 10004  
 
 
 
 
 
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
Pursuant to Circuit Rule 28(a)(1), the undersigned counsel of record certifies 
as follows: 
A. 
Parties and Amici 
Except for the State of Texas, the Immigration Reform Law Institute, and any 
other amici who had not yet entered an appearance in this case as of the filing of the 
Brief for Appellants, all parties, intervenors, and amici appearing before the district 
court and in this Court are listed in the Brief for Appellants. 
B. 
Rulings Under Review 
Reference to the ruling at issue appears in the Brief for Appellants. 
C. 
Related Cases 
Amicus is aware of no related cases within the meaning of Circuit Rule 
28(a)(1)(C).  The case on review has never previously been before this Court or any 
other court, nor has any other case involving both substantially the same parties and 
the same or similar issues. 
 
Dated: November 19, 2021 
 
 
 
/s/ Kathryn Austin 
Kathryn Austin 
Counsel for Amicus Curiae 
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CORPORATE DISCLOSURE STATEMENT 
 
 
Pursuant to Circuit Rules 26.1 and 29(b) and Federal Rules of Appellate 
Procedure 26.1 and 29(a)(4)(A), amicus curiae submits the following corporate 
disclosure statement: 
The International Refugee Assistance Project, Inc. is a private, non-profit 
organization dedicated to advancing and defending the rights of refugees and other 
displaced people through systemic litigation, direct representation, and policy and 
media advocacy.  It has no parent corporation, and no publicly held corporation owns 
10% or more of its stock. 
 
 
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CIRCUIT RULE 29(d) STATEMENT 
Amicus curiae the International Refugee Assistance Project, Inc. is filing a 
separate brief because, as an organization dedicated to advancing and defending the 
rights of refugees, asylum seekers, and other displaced people, and that has 
represented asylum seekers who have been affected by Defendants’ expulsion 
policy, it has a distinct perspective from other amici.  Amicus seeks to provide this 
Court with information about the well-established rights of asylum seekers like our 
clients under U.S. immigration laws and to show how the expulsion policy 
contravenes the text and purpose of these laws.  In its order dated September 30, 
2021, the Court granted amicus leave to file a brief at this merits stage. 
 
Dated: November 19, 2021 
 
 
 
 
 
 
 
/s/ Kathryn Austin 
 
 
 
 
 
 
 
 
Kathryn Austin 
 
 
 
 
 
 
 
 
Counsel for Amicus Curiae 
 
 
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TABLE OF CONTENTS 
 
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i 
CORPORATE DISCLOSURE STATEMENT ........................................................ ii 
CIRCUIT RULE 29(d) STATEMENT .................................................................... iii 
INTEREST OF AMICUS CURIAE .......................................................................... 1 
INTRODUCTION ..................................................................................................... 2 
ARGUMENT ............................................................................................................. 3 
I. 
THE EXECUTIVE MUST FOLLOW SPECIFIC PROCEDURES TO 
IDENTIFY AND EVALUATE HUMANITARIAN PROTECTION 
CLAIMS .......................................................................................................... 3 
II. THE EXECUTIVE MAY NOT BLOCK ACCESS TO THE 
HUMANITARIAN PROTECTION SYSTEM ON HEALTH-RELATED 
GROUNDS ....................................................................................................14 
CONCLUSION ........................................................................................................18 
 
 
 
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TABLE OF AUTHORITIES 
Page(s) 
Cases 
Grace v. Barr,  
965 F.3d 883 (D.C. Cir. 2020)...………………………………….………….....10 
INS v. Cardoza-Fonseca,  
480 U.S. 421 (1987)...…………...…..……………………………………….......8 
Matter of Cross,  
26 I. & N. Dec. 485 (B.I.A. 2015)…..……………………………………….......5 
Vartelas v. Holder,  
566 U.S. 257 (2012)…………....…………………………………………….......4 
 
Statutes 
8 U.S.C. § 1101 .......................................................................................................... 4 
8 U.S.C. § 1158 .......................................................................................... 3, 6, 15-16 
8 U.S.C. § 1159 .......................................................................................................... 6 
8 U.S.C. § 1182 .............................................................................................. 6, 16-17 
8 U.S.C. § 1222 ........................................................................................................17 
8 U.S.C. § 1225 ................................................................................................ 6-7, 13 
8 U.S.C. § 1227 ........................................................................................................14 
8 U.S.C. § 1227 (1994) .............................................................................................. 4 
8 U.S.C. § 1229 .......................................................................................................... 4 
8 U.S.C. § 1229a .................................................................................................... 4-6 
8 U.S.C. § 1231 ........................................................................................... 3-5, 14-15 
8 U.S.C. § 1252 ....................................................................................................6, 13 
8 U.S.C. § 1252 (1994) .............................................................................................. 4 
8 U.S.C. § 1427 .......................................................................................................... 6 
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Foreign Affairs Reform and Restructuring Act of 1998,  
Pub. L. No. 105-277, § 1242, 112 Stat. 2681 ........................................... 10, 13-14 
Refugee Act of 1980, § 101, Pub. L. No. 96-212, 94 Stat. 102 ...........................9, 12 
 
Regulations 
8 C.F.R. § 108.1 (1979) ...........................................................................................11 
8 C.F.R. § 208.30 ....................................................................................................... 7 
8 C.F.R. § 1208.16 .................................................................................................3, 6 
8 C.F.R. § 1208.17 .......................................................................................... 3, 6, 14 
8 C.F.R. § 1240.1 ................................................................................................... 5-6 
42 C.F.R. § 34.3 .......................................................................................................17 
42 C.F.R. § 34.5 .......................................................................................................17 
 
Rules 
Federal Rule of Appellate Procedure 29 .................................................................... 1 
 
Agency Materials 
Public Health Reassessment and Order Suspending the Right to Introduce Certain 
Persons from Countries Where a Quarantinable Communicable Disease Exists 
(Aug. 2, 2021) .......................................................................................................14 
Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478 (Feb. 
19, 1999) ...............................................................................................................10 
USCIS Policy Manual Vol. 7, Part M, Ch. 3 (2021) ...............................................16 
USCIS Policy Manual Vol. 8, Part B, Ch. 3 (2021) ................................................16 
U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration 
Court Practices During the Declared National Emergency Concerning the 
COVID-19 Outbreak, PM 20-10 (Mar. 18, 2020) ................................................16 
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Legislative History 
114 Cong. Rec. 27,758 (1968) .................................................................................15 
114 Cong. Rec. 29,391 (1968) ................................................................................... 7 
114 Cong. Rec. 29,607 (1968) ................................................................................... 7 
125 Cong. Rec. 11,973 (1979) ................................................................................... 9 
126 Cong. Rec. 4507 (1980) ....................................................................................13 
142 Cong. Rec. 11,491 (1996) .......................................................................... 10, 13 
H.R. Rep. No. 96-608 (1979) ..................................................................... 7, 9, 11-13 
H.R. Rep. No. 104-469 (1996) .................................................................................10 
S. Rep. No. 96-256 (1979) .......................................................................................12 
Admission of Refugees into the United States, Hearings before the Subcomm. on 
Immigr., Citizenship, and Int’l Law, H. Comm. on  the Judiciary, 95th Cong. 126 
(1977) ....................................................................................................................11 
The Refugee Act of 1979, S. 643:  Hearing Before the S. Comm. on the Judiciary, 
96th Cong. 36 (1979). ............................................................................................. 9 
 
Other Authorities 
 Affidavit of Louis Henkin, Resp’ts’ Br., McNary v. Haitian Ctrs. Council, Inc., 
1992 WL 541267 (U.S. Dec. 21, 1992) .................................................................. 8 
Exec. Comm. of the High Commissioner’s Programme, Note on International 
Protection, U.N. Doc. A/AC.96/815 (Aug. 31, 1993) ............................................ 8 
The Refugee Convention, 1951:  The Travaux Preparatoires Analysed with a 
Commentary by Dr Paul Weis .........................................................................8, 15 
ESCOR, Report of the Working Group on a Draft Convention Against Torture and 
Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. 
Doc. E/CN.4/L.1470 (Mar. 12, 1979) ..................................................................10 
 
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Glossary 
App.  
Joint Appendix 
IRAP  
International Refugee Assistance Project, Inc. 
 
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INTEREST OF AMICUS CURIAE 
Amicus curiae the International Refugee Assistance Project, Inc. (“IRAP”) is 
a nonprofit organization dedicated to advancing and defending the rights of refugees 
and other displaced people through systemic litigation, direct representation, and 
policy and media advocacy.  As counsel to hundreds of refugees and asylum seekers 
before administrative agencies and in the federal courts since its founding in 2008, 
IRAP has direct insight into the worldwide refugee crisis and a strong interest in 
ensuring that the Refugee Act and related laws are enforced in a manner that is 
consistent with Congress’s humanitarian objectives.  Through a dedicated project 
undertaken in collaboration with an organization working at the U.S.-Mexico border, 
IRAP has knowledge of the dangerous conditions Defendants’ expulsion policy is 
creating, and the harm and suffering it is causing. 
No counsel for a party authored this brief in whole or in part; no party or 
counsel for a party made a monetary contribution intended to fund the preparation 
or submission of this brief; and no person other than amicus curiae, its members, or 
its counsel made such a monetary contribution.  See Fed. R. App. P. 29(a)(4)(E).  In 
an order dated September 30, 2021, the Court granted IRAP permission to file a brief 
as amicus curiae at this merits stage.  See Doc. 1916334. 
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INTRODUCTION 
 
Since March 2020, officers of U.S. Customs and Border Protection have been 
expelling people from the United States on asserted public health grounds without 
regard for the system Congress created to ensure protection for those fleeing 
persecution and torture.  Congress’s system requires the executive branch to follow 
specific procedures to identify and evaluate humanitarian protection claims 
whenever it seeks to expel, turn away, or otherwise remove someone from the United 
States.  And it bars the executive branch from discounting the rights of people at or 
within U.S. borders who seek humanitarian protection (hereinafter “asylum 
seekers”), including when addressing public health concerns. 
Defendants purport to have authority under the Public Health Service Act to 
expel asylum seekers like Plaintiffs and class members without these safeguards.  
Defendants are wrong because, among other things, the U.S. humanitarian protection 
system that Defendants ignore is comprehensive, and its procedures are mandatory.  
IRAP agrees with Plaintiffs that the Court should affirm the district court’s order and 
submits this brief to further detail how the expulsion policy is contrary to the laws 
Congress enacted to protect asylum seekers.  IRAP urges the Court affirm the order 
of the district court.  
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ARGUMENT 
Under U.S. law, the federal government is prohibited from returning people 
to places where they will be persecuted or tortured and is required to give people 
who reach U.S. borders an opportunity to seek asylum.  See 8 U.S.C. § 1231(b)(3); 
8 C.F.R. §§ 1208.16, 1208.17; 8 U.S.C. § 1158(a)(1).  To ensure that the Executive 
does not run afoul of these mandates, Congress requires it to follow specific 
procedures to identify and adjudicate humanitarian protection claims whenever it 
seeks to remove a person from the United States.  This system is comprehensive, 
and there is no legal basis for the Executive to circumvent it on public health 
grounds.  Indeed, while Congress provides generally for removal based on certain 
communicable diseases, it has been careful never to make such health considerations 
a barrier to applying for or being granted humanitarian protection. 
I. 
THE EXECUTIVE MUST FOLLOW SPECIFIC PROCEDURES 
TO IDENTIFY AND EVALUATE HUMANITARIAN 
PROTECTION CLAIMS 
Congress requires the Executive to follow specific procedures to protect the 
rights of asylum seekers at or within U.S. borders; understanding the United States’ 
humanitarian responsibilities to be urgent moral obligations, Congress has acted 
deliberately to prevent these obligations from being circumvented by the executive 
branch. 
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Typically, when the Executive seeks to remove a person from the United 
States, it must grant that person an administrative hearing with an immigration judge 
that includes procedural safeguards to ensure that the person is not removed 
wrongfully.  See 8 U.S.C. § 1229a.  For example, the Executive must provide written 
notice of, among other things, the legal grounds on which it believes the person may 
be removed—including the specific “inadmissibility” or “deportability” grounds—
and the conduct that it alleges warrants removal.  See 8 U.S.C. §§ 1229(a)(1)(C)-
(D), 1229a(a)(1)-(2).1  It must afford the person the opportunity to secure counsel.  
See 8 U.S.C. §§ 1229(a)(1)(E), (b), 1229a(b)(4)(A).  And it must give the person the 
chance to present evidence and cross-examine government witnesses.  See 8 U.S.C. 
§ 1229a(b)(4)(B).   
 
1 Whether the “inadmissibility” grounds or “deportability” grounds apply in any 
given “removal” proceeding depends on whether the person was formally 
“admitted” following “inspection and authorization by an immigration officer” 
before the proceeding began.  8 U.S.C. § 1101(a)(13)(A); see also 8 U.S.C. 
§ 1229a(c).  This framework has governed since 1997.  Before 1997, Congress 
provided for two separate types of proceedings—exclusion hearings or deportation 
proceedings—to effectuate removals from the United States.  See, e.g., Vartelas v. 
Holder, 566 U.S. 257, 261 (2012).  Considerations of excludability and deportability 
under the prior regime map roughly to considerations of inadmissibility and 
deportability in current-day consolidated removal proceedings.  See id. at 261-63 & 
n.3.  Whether in the current or former framework, Congress has consistently used 
express terms when it has granted the Executive authority to remove individuals 
deemed removable.  Compare, e.g., 8 U.S.C. §§ 1229a(c)(5), 1231(a) (removal after 
removal proceedings), with, e.g., 8 U.S.C. § 1227 (1994) (removal after exclusion 
proceedings), and 8 U.S.C. § 1252 (1994) (removal after deportation proceedings). 
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No person may be removed unless the judge determines that there are, in fact, 
grounds in the law to remove them.  See 8 U.S.C. § 1229a(a), (c)(1)(A).  The removal 
hearing provides a forum in which the person may contest the grounds for their 
removal.  The person may argue, for example, that they are exempt from the grounds 
as a U.S. citizen, see, e.g., Matter of Cross, 26 I. & N. Dec. 485 (B.I.A. 2015), or 
that the grounds do not apply for some other legal or factual reason.  See generally 
8 U.S.C. § 1229a(c)(2)-(3); 8 C.F.R. § 1240.1(a)(1)(i). 
If a person is removable as a threshold matter, the removal hearing then 
affords the person an opportunity to apply for relief from removal, including several 
forms of humanitarian protection.  See 8 U.S.C. § 1229a(c)(4); 8 C.F.R. 
§ 1240.1(a)(1)(ii)-(iii).  Requiring the government to consider and adjudicate 
humanitarian protection claims ensures that the United States adheres to its 
humanitarian protection obligations not to return people to countries where they may 
be persecuted or tortured—even if those people are otherwise removable.  To claim 
protection from persecution, a person may apply for withholding of removal under 
8 U.S.C. § 1231(b)(3), which, with limited exceptions inapplicable here,  bars the 
United States from removing someone to a place where their “life or freedom would 
be threatened . . . because of [their] race, religion, nationality, membership in a 
particular social group, or political opinion.”  See also 8 U.S.C. § 1229a(c)(4); 8 
C.F.R. § 1240.1(a)(1)(iii).  To claim protection from torture, the person may apply 
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for deferral or withholding of removal under the law implementing the United 
Nations Convention Against Torture, which bars the United States from removing 
anyone to any place where it is “more likely than not” that they would be tortured.  
8 C.F.R. §§ 1208.16(c), 1208.17(a); see also 8 U.S.C. § 1229a(c)(4); 8 C.F.R. 
§ 1240.1(a)(1)(iii).  In removal proceedings, a person may also apply for asylum 
status, see 8 U.S.C. §§ 1158(a)(1), 1229a(c)(4); 8 C.F.R. § 1240.1(a)(1)(ii), which 
confers additional rights beyond protection from removal, including a pathway to 
U.S. citizenship, see 8 U.S.C. §§ 1159(b), 1427(a). 
Should the immigration judge determine both that there are grounds to remove 
a person and that relief from removal is not warranted, the judge may order the 
person removed from the United States.  See 8 U.S.C. § 1229a(c)(1)(A), (c)(5).  A 
person ordered removed may appeal the immigration judge’s decision, see 8 U.S.C. 
§ 1229a(c)(5), and, ultimately, seek federal judicial review, see 8 U.S.C. § 1252(b). 
Since its enactment of the Illegal Immigration Reform and Immigrant 
Responsibility Act in 1996, Congress has also permitted the Executive to avail itself 
of an expedited removal process, through which an immigration officer may order 
certain people removed “without further hearing or review”—including individuals 
without valid entry documents.  See 8 U.S.C. §§ 1225(b)(1)(A)(i), 1182(a)(7).  Yet 
when it created this expedited removal process, Congress took care to ensure that 
any person who might be eligible for asylum or entitled to withholding or deferral 
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of removal would not be removed in violation of the United States’ humanitarian 
protection laws:  In the expedited removal system, a person who expresses a fear of 
persecution or torture must be referred for a “credible fear” screening.  See 8 U.S.C. 
§ 1225(b)(1)(A)(ii), (b)(1)(B).  The screening process affords them the opportunity 
to consult with a person of their choosing, see 8 U.S.C. § 1225(b)(1)(B)(iv), and to 
be interviewed by an asylum officer with specialized training and under proper 
supervision, see 8 U.S.C. § 1225(b)(1)(B)(i), (E); 8 C.F.R. § 208.30(d).  So long as 
their fear is deemed credible, they are placed in removal proceedings.  See 8 C.F.R. 
§ 208.30(f). 
The modern asylum system—including laws that require the government to 
screen for protection claims in expedited removal proceedings and to give people 
the opportunity to present those claims as a defense to removal in full removal 
proceedings—reflects Congress’s recognition of the grave moral implications of 
returning people to their abusers.  U.S. humanitarian protection laws originated in 
the non-refoulement provision of the 1951 U.N. Convention Relating to the Status 
of Refugees, which had urgent moral underpinnings.2  As Louis Henkin, an 
 
2 Though the United States did not ultimately ratify the Refugee Convention, the 
Refugee Convention’s provisions were carried through in relevant part to the U.N. 
Protocol Relating to the Status of Refugees, which the United States did ratify.  114 
Cong. Rec. 29,391 (1968); 114 Cong. Rec. 29,607-08 (1968); see also H.R. Rep. 
No. 96-608, at 17 (1979) (noting that the enactment of asylum and non-refoulement 
provisions “conforms United States statutory law to our [Protocol] obligations”). 
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American framer of the treaty, explained:  In the aftermath of the Second World 
War, reports emerged “that police of some countries had pushed refugees back into 
the hands of the pursuing Nazis.”  “[G]overnments,” therefore, “were asked to 
commit themselves not to prevent a person from escaping oppression and not to 
become an accomplice to their oppression.”  Henkin Aff. ¶¶ 4, 6, Resp’ts’ Br., 
McNary v. Haitian Ctrs. Council, Inc., 1992 WL 541267 (U.S. Dec. 21, 1992).  
Universal recognition of the non-refoulement principle was considered essential to 
an effective refugee protection system.  See The Refugee Convention, 1951:  The 
Travaux Preparatoires Analysed with a Commentary by Dr Paul Weis 235, available 
at https://www.unhcr.org/en-us/protection/travaux/4ca34be29/refugee-convention-
1951-travaux-preparatoires-analysed-commentary-dr-paul.html 
[hereinafter 
“Travaux”] (“The Chairman felt that if the work of the Committee resulted in the 
ratification of [the non-refoulement provision] alone, it would have been worth 
while.”); see also Exec. Comm. of the High Commissioner’s Programme, Note on 
International Protection ¶ 10, U.N. Doc. A/AC.96/815 (Aug. 31, 1993), available at 
https://www.refworld.org/docid/3ae68d5d10.html (“It would be patently impossible 
to provide international protection to refugees if States failed to respect this 
paramount principle of refugee law and human solidarity.”).  See generally INS v. 
Cardoza-Fonseca, 480 U.S. 421, 436-39 (1987) (treating negotiating history and 
UNHCR material as persuasive authority). 
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When codifying the protections of the Refugee Convention and the 
subsequent Protocol in the 1980 Refugee Act, Congress remained all too aware of 
the harms asylum seekers would face were the United States to turn its back on them, 
and thus sought to conform statutory protections to the non-refoulement mandate.  
See, e.g., H.R. Rep. No. 96-608, at 17 (1979) (noting that the asylum and non-
refoulement provisions are designed to “conform[] United States statutory law to our 
obligations under [the Convention and Protocol]”); Refugee Act of 1980, Pub. L. 
No. 96-212, § 101(a), 94 Stat. 102, 102 (“declar[ing] that it is the historic policy of 
the United States to respond to the urgent needs of persons subject to persecution in 
their homelands”).  Senator Kennedy pointed to the “tragic results” of the country’s 
lack, at the time, of a consistent asylum policy, including “instances where people 
came up to our embassies[,] were rejected, and were later shot.”  The Refugee Act of 
1979, S. 643:  Hearing Before the S. Comm. on the Judiciary, 96th Cong. 36 (1979).  
In the House debates, Representative Chisholm held up the “tragic plight” of 
thousands of Haitians who had sought asylum in Florida, citing evidence of “the 
arrest and indeed execution of Haitians deported by the Immigration and 
Naturalization Service.”  125 Cong. Rec. 11,973 (1979). 
When Congress enacted an expedited removal process in 1996, it remained 
attentive to the risks of removal.  Even as it recognized some utility in permitting the 
Executive to remove certain people more quickly, Congress deliberately made the 
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central, credible fear standard for avoiding expedited removal “a low screening 
standard for admission into the usual full asylum process,” 142 Cong. Rec. 11,491 
(1996) (statement of Sen. Hatch), to avoid the “danger that an alien with a genuine 
asylum claim w[ould] be returned to persecution,” H.R. Rep. No. 104-469, at 158 
(1996).  See also Grace v. Barr, 965 F.3d 883, 902 (D.C. Cir. 2020) (Congress’s 
purpose to ensure that “individuals with valid asylum claims are not returned to 
countries where they could face persecution” is evident in the asylum system’s 
design and legislative history).   
In implementing the non-refoulement provision from the Convention Against 
Torture soon thereafter, Congress again recognized the potentially grave 
consequences of removal, announcing that it would be the policy of the United States 
“not to expel, extradite, or otherwise effect the involuntary return of any person to a 
country in which there are substantial grounds for believing the person would be in 
danger of being subjected to torture.”  Foreign Affairs Reform and Restructuring Act 
of 1998, Pub. L. No. 105-277, § 1242(a), 112 Stat. 2681, 2681-822.  At the direction 
of Congress, the Department of Justice promulgated regulations making protection 
mandatory, with no exceptions.  See Regulations Concerning the Convention 
Against Torture, 64 Fed. Reg. 8478, 8481 (Feb. 19, 1999).  This was in keeping with 
the aim of the framers of the Convention Against Torture, who desired “to afford the 
greatest possible protection against torture.”  See ESCOR, Report of the Working 
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Group on a Draft Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment ¶ 44, U.N. Doc. E/CN.4/L.1470 (Mar. 12, 
1979), available at https://digitallibrary.un.org/record/6761?ln=en. 
Given the interests at stake, it was critical to Congress that recognition of 
humanitarian protection needs not be left to the Executive’s discretion.  Before 
Congress enacted the Refugee Act in 1980, recognition of claims for asylum 
domestically was discretionary and no specific procedure was required for 
adjudication of those claims.  See, e.g., 8 C.F.R. § 108.1 (1979).  Congress 
considered the system to be unfair, inadequate, and too susceptible to the winds of 
political climate and world events.  See, e.g., H.R. Rep. No. 96-608, at 1, 17-18 
(1979) (seeking “to eliminate current discrimination on the basis of outmoded 
geographical and ideological considerations” and deeming a domestic asylum 
provision “necessary and desirable” for a “fair and workable asylum policy which is 
consistent with this country’s tradition of welcoming the oppressed of other nations 
and with our obligations under international law”).  Representative Holtzman, a 
House sponsor of the Refugee Act, explained the problem: “One of the matters that 
has concerned me greatly about the admission of . . . persons who seek asylum is the 
fact that there really are no specific procedures that would assure that due process is 
granted when such persons are questioned in order [to] determine[] whether or not 
they meet the present statutory standards.”  Admission of Refugees into the United 
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States, Hearings before the Subcomm. on Immigr., Citizenship, and Int’l Law, H. 
Comm. on the Judiciary, 95th Cong. 126 (1977).  “[W]hen Congress creates a 
statutory scheme and does not really specify how that scheme is to be implemented,” 
she continued, “it can be thwarted by the executive branch.”   Id. at 127; see also id. 
(statement of John E. McCarthy, Chairman, Comm. on Migration and Refugee Affs., 
Am. Council of Voluntary Agencies for Foreign Serv.) (“You’re treading on very 
dangerous ground when you’re examining these people because if you’re wrong and 
the person is forced to return you have got a terrible problem. . . .  We don’t have 
the standards here which are so necessary.”); id. (pointing to politicized denials of 
protection to Chilean refugees). 
With the 1980 Refugee Act, which was designed to be comprehensive, 
Congress sought to remedy the problem.  See, e.g., H.R. Rep. No. 96-608, at 1 (1979) 
(“The purpose of the bill is to establish a coherent and comprehensive U.S. refugee 
policy.  This objective is accomplished by creating a systematic and flexible 
procedure for the admission and resettlement of refugees.”); S. Rep. No. 96-256, at 
1 (1979) (proposed bill would “establish[] for the first time a comprehensive United 
States refugee resettlement and assistance policy”); Refugee Act of 1980, Pub. L. 
No. 96-212, § 101(b), 94 Stat. 102, 102 (setting out to provide “a permanent and 
systematic procedure” and “comprehensive and uniform provisions”).  It created a 
new, “specific statutory basis for United States asylum policy,” and directed the 
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13 
Attorney General to establish uniform procedures that would bind the executive 
branch.  H.R. Rep. No. 96-608, at 17-18 (1979); see also 126 Cong. Rec. 4507 (1980) 
(statement of Rep. Holtzman) (the bill “mandates a procedure for the consideration 
of asylum claims by people who are here on our shores”).  And it amended the terms 
of the then-existing statutory withholding of removal provision to use mandatory 
language, to avoid any suggestion that whether to grant withholding might be within 
the Executive’s discretion.  See H.R. Rep. No. 96-608, at 18, 30 (1979).   
When Congress created the expedited removal process in 1996, it again set 
limits on the Executive not only by mandating screenings for humanitarian 
protection claims but also by, among other things, taking care to specify the training, 
supervision, and review that immigration officers conducting the screenings would 
be required to undergo.  See 8 U.S.C. § 1225(b)(1)(B)(iii)(III), (b)(1)(E); 8 U.S.C. 
§ 1252(e)(3); see also 142 Cong. Rec. 11,491 (1996) (statement of Sen. Hatch) (“I 
feel very strongly that the appropriate, fully trained asylum officers conduct the 
screening in the summary exclusion process”).  Congress similarly cabined the 
Executive’s discretion in implementing the Convention Against Torture, making 
clear that its prohibitions applied notwithstanding any other government policy.  See 
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 
§ 1242(a), 112 Stat. 2681, 2681-822. 
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14 
II. 
THE EXECUTIVE MAY NOT BLOCK ACCESS TO THE 
HUMANITARIAN PROTECTION SYSTEM ON HEALTH-
RELATED GROUNDS 
Defendants suggest that guarding the public health requires them to deny the 
rights of asylum seekers.  See, e.g., Public Health Reassessment and Order 
Suspending the Right to Introduce Certain Persons from Countries Where a 
Quarantinable Communicable Disease Exists (Aug. 2, 2021), App. 149-51.  But in 
several different ways, Congress was clear that potential health concerns are not 
grounds for preventing asylum seekers from accessing humanitarian protection. 
First, Congress drafted the humanitarian protection laws such that a person’s 
health would be irrelevant to whether they could be granted asylum status, 
withholding of removal, or protection under the Convention Against Torture.  Under 
the Convention Against Torture, the United States is prohibited without exception 
from returning a person to their torturers.  See Foreign Affairs Reform and 
Restructuring Act of 1998, Pub. L. No. 105-277, § 1242(a)-(c), 112 Stat. 2681, 2681-
822; 8 C.F.R. § 1208.17(a).  With respect to withholding of removal under 8 U.S.C. 
§ 1231(b)(3), a person facing persecution is ineligible for protection only if they 
have persecuted others; have participated in Nazi persecution, genocide, or the 
commission of any act of torture or extrajudicial killing; have committed or been 
convicted of certain crimes; or pose a serious threat to the security of the United 
States.  See 8 U.S.C. §§ 1231(b)(3)(B), 1227(a)(4)(B).  This is consistent with the 
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15 
goals of the framers of the Refugee Convention and Protocol, from which the 
withholding provision originated, who rejected the possibility of limiting protection 
on health-related grounds.  See Travaux 222, 225, available at https://
www.unhcr.org/en-us/protection/travaux/4ca34be29/refugee-convention-1951-
travaux-preparatoires-analysed-commentary-dr-paul.html (“[R]efugees should not 
be expelled . . . because they had been sick or indigent”; treaty “would not . . . permit 
the deportation of [refugees] on ‘social grounds,’ such as . . . illness”); 114 Cong. 
Rec. 27,758-59 (1968) (statement of Sec. of State Rusk) (Since “refugees by 
definition are without a homeland, deportation of a refugee is a particularly serious 
measure, and it would not be humanitarian to deport a refugee for reasons of health 
. . . .”).  A person is barred from asylum only for the narrow set of reasons set out in 
8 U.S.C. § 1158(a)(2) and (b)(2), which overlap in part with the exceptions for 
withholding of removal under 8 U.S.C. § 1231(b)(3), and similarly have nothing to 
do with health. 
Second, even though Congress created a mechanism in the immigration laws 
for the United States to remove a person from the country on health-related grounds, 
it specifically declined to make such health-related grounds barriers to applying for 
and being granted humanitarian protection from removal.  Ordinarily, a person who 
seeks authorization to remain in the United States or to adjust their immigration 
status must be “admissible”—i.e., they must not fall within any of the grounds of 
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16 
ineligibility specified in 8 U.S.C. § 1182(a), such as lacking valid entry documents, 
8 U.S.C. § 1182(a)(7)(A)(i), having crossed the border without inspection, 8 U.S.C. 
§ 1182(a)(6)(A)(i), or having been convicted of certain crimes, 8 U.S.C. 
§ 1182(a)(2)(A), (B).  See also supra p. 4  and  note 1 (citing immigration judge 
review of alleged grounds of inadmissibility).  A person may also be inadmissible 
on “health-related grounds,” including being “determined . . . to have a 
communicable disease of public health significance,” 8 U.S.C. § 1182(a)(1)(A)(i); 
according to the government, COVID-19 is one such disease.3   
Yet Congress was clear that a person may apply for and be granted 
humanitarian relief regardless of whether there might be grounds, including a health-
related inadmissibility ground, to remove them:  As to asylum, a person may apply 
for and be granted this relief “irrespective” of whether they are admissible.  8 U.S.C. 
§ 1158(a)(1).  As the government itself has acknowledged, an individual seeking 
asylum is simply “not subject to inadmissibility grounds at the time of [an] asylum 
grant.”  USCIS Policy Manual Vol. 7, Part M, Ch. 3 (2021), available at 
https://www.uscis.gov/policy-manual/volume-7-part-m-chapter-3; see also USCIS 
Policy 
Manual 
Vol. 
8, 
Part 
B, 
Ch. 
3 
(2021), 
available 
at 
 
3 U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration 
Court Practices During the Declared National Emergency Concerning the COVID-
19 Outbreak, PM 20-10, at 1 n.1 (Mar. 18, 2020), available at 
https://web.archive.org/web/20200320020033/https://www.justice.gov/eoir/file/12
59226/download. 
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17 
https://www.uscis.gov/policy-manual/volume-8-part-b-chapter-3 
(no 
specific 
medical examination or vaccination required for granting asylum).  Withholding and 
deferral of “removal,” for their part, by definition are available when a person could 
otherwise be removed. 
Third, though it rejected the notion that asylum seekers might be barred from 
humanitarian protection on health-related grounds, Congress accounted for the 
public health by permitting the Executive to screen asylum seekers on arrival.  
Asylum seekers, like others being inspected for admission to the United States, may 
be screened for inadmissibility grounds, including “communicable disease[s] of 
public health significance,” according to procedures specified by Congress and the 
Department of Health and Human Services.  See 8 U.S.C. § 1182(a)(1)(A)(i).  These 
procedures permit the government to conduct medical exams and to detain for 
medical screening certain individuals arriving at ports of entry or from places “where 
any [relevant] diseases are prevalent or epidemic.”  See, e.g., 8 U.S.C. § 1222; 42 
C.F.R. § 34.3.  And they specify that when a medical examiner cannot make a 
diagnosis, the government must postpone the medical examination until a diagnosis 
can be made and, in the meantime, refer the noncitizen for any necessary medical 
care.  See 42 C.F.R. § 34.5.  The medical screening and its result may lead the 
government to charge an asylum seeker with a health-related inadmissibility ground 
in removal proceedings—but they may be removed only if they are not granted 
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18 
asylum or withholding or deferral of removal upon consideration of a corresponding 
application for relief from removal.  Whatever the result of the screening, what the 
government may not do is bypass credible fear interviews or removal proceedings, 
deprive asylum seekers of the opportunity to apply for humanitarian protection from 
removal, or prevent asylum seekers from being granted such protection on health 
grounds. 
Through its expulsion policy, the Executive has upended Congress’s carefully 
delineated system for identifying and adjudicating humanitarian protection claims.  
Congress accounted for the public health and at the same time took care to ensure 
that health considerations would not prevent a person from applying for or being 
granted protection. 
CONCLUSION 
For all these reasons, IRAP urges the Court to affirm the district court’s order. 
 
 
 
 
 
 
 
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19 
Dated:  November 19, 2021 
 
 
Respectfully submitted, 
  New York, N.Y. 
/s/ Kathryn Austin 
Kathryn Austin 
Geroline A. Castillo 
Mariko Hirose 
Deepa Alagesan 
INTERNATIONAL REFUGEE 
ASSISTANCE PROJECT 
 
 
One Battery Park Plaza, 4th Floor 
 
New York, N.Y. 10004 
Tel: (516) 296-0688 
kaustin@refugeerights.org 
gcastillo@refugeerights.org 
mhirose@refugeerights.org 
dalagesan@refugeerights.org 
 
 
Counsel for Amicus Curiae 
USCA Case #21-5200      Document #1923277            Filed: 11/19/2021      Page 28 of 29

 
 
CERTIFICATE OF COMPLIANCE 
 
This document complies with the word limit of Fed. R. App. P. 29(a)(5) 
because, excluding the parts of the document exempted by Fed. R. App. 32(f), it 
contains 4,123 words. 
This document complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has 
been prepared in a proportionally spaced typeface using Microsoft Word for 
Microsoft 365 in Times New Roman 14-point font. 
 
Dated:  November 19, 2021 
 
 
 
/s/ Kathryn Austin  
 
Kathryn Austin 
Counsel for Amicus Curiae 
USCA Case #21-5200      Document #1923277            Filed: 11/19/2021      Page 29 of 29

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