Court filing

Reply Brief for Appellants (Government) — Huisha-Huisha v. Mayorkas

Filed November 29, 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	2021-11-29

Full text

[ORAL ARGUMENT SCHEDULED FOR JANUARY 19, 2022]

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NANCY GIMENA HUISHA-HUISHA,
on behalf of herself and others similarly situated,

Plaintiffs-Appellees,

ALEJANDRO MAYORKAS, Secretary of Homeland Security, et al.

Defendants-Appellants.

On Appeal from the United States District Court
for the District of Columbia

REPLY BRIEF

BRIAN M. BOYNTON

Acting Assistant Attorney General

MATTHEW M. GRAVES

United States Attorney

SHARON SWINGLE
JOSHUA WALDMAN
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division, Room 7261
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-9018
ashley.cheung@usdoj.gov

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TABLE OF CONTENTS
Page
GLOSSARY
SUMMARY OF ARGUMENT ......................................................................1
ARGUMENT ...............................................................................................3
I.
The Government is Likely to Succeed on the Merits .................................3
A.
Prohibiting the “Introduction” of Persons from a Foreign
Country with a Serious Danger of Communicable Disease
Includes the Authority to Expel Such Persons .................................3
B.
Plaintiffs’ Alternative Arguments Are Meritless............................ 12
1.
Section 265 is Not Limited to Regulating Transportation
Providers. ....................................................................... 12
2.
Section 265 Does Not Irreconcilably Conflict with
Immigration Provisions, but in Any Event, Section 265
Would Control................................................................. 17
3.
The Constitutional Avoidance Doctrine is Inapplicable. ........ 20
II.
The Remaining Preliminary Injunction Factors Do Not Support An
Injunction ......................................................................................... 21
CONCLUSION .......................................................................................... 28
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases:
Page(s)
Alabama Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021).........................................................................11, 12

DHS. v. MacLean,
574 U.S. 383 (2015) ................................................................................. 13

Encino Motorcars, LLC v. Navarro,
139 S. Ct. 2117 (2016).............................................................................. 12

Gundy v. United States,
139 S. Ct. 2116 (2019).............................................................................. 11

Latif v. Obama,
677 F.3d 1175 (D.C. Cir. 2011) ................................................................. 20

Our Lady of Guadalupe Sch. v. Morrissey-Berru,
140 S. Ct. 2049 (2020).............................................................................. 22

Reno v. Flores,
507 U.S. 292 (1993) ................................................................................. 22

Valentine v. United States ex rel. Neidecker,
299 U.S. 5 (1936) ......................................................................................7

Statutes:
26 Stat. 1084 (1891) ................................................................................ 8, 14

27 Stat. 449 (1893)...................................................................................... 13

8 U.S.C. § 1182(a)(1) ....................................................................................8

8 U.S.C. § 1222 ............................................................................................8

8 U.S.C. § 1222(a) ........................................................................................9

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iii

18 U.S.C. § 1325(a) .................................................................................... 10

18 U.S.C. § 3185 ..........................................................................................6

42 U.S.C. § 265 ............................................................ 3, 4, 5, 6, 10, 11, 19, 20

42 U.S.C. § 267(b) ...................................................................................... 13

42 U.S.C. § 269 .......................................................................................... 13

42 U.S.C. § 270 .......................................................................................... 13

42 U.S.C. § 271(a) ........................................................................................9

42 U.S.C. § 271(b) ...................................................................................... 13

Regulation:

42 C.F.R. § 71.40(f) ................................................................................ 7, 21

Legislative Material:
24 Cong. Rec. (1893) ...................................................... 7, 8, 14, 15, 16, 18, 19
Other Authorities:
Black’s Law Dictionary, Westlaw (11th ed. 2019):
Carrier................................................................................................... 14
Extradite ..................................................................................................7

85 Fed. Reg. 16,559 (Mar. 24, 2020) ............................................................. 12

85 Fed. Reg. 56,424 (Sept. 11, 2020) ............................................................. 20

86 Fed. Reg. 42,828 (Aug. 5, 2021) .................................................................9

U.S. Customs and Border Prot., DHS, Southwest Land Border Encounters,
https://go.usa.gov/xeQ8Y (last modified Nov. 15, 2021) ............................... 27

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GLOSSARY
CBP
U.S. Customs and Border Protection
CDC
U.S. Centers for Disease Control and Prevention
DHS
Department of Homeland Security

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SUMMARY OF ARGUMENT
The district court enjoined the application of a critical public-health
measure—the authority granted in Section 265 to prevent the introduction of a
communicable disease into the United States. The challenged U.S. Centers for
Disease Control and Prevention (CDC) Order protects against the risk of
transmission of COVID-19 resulting from holding noncitizens in congregate
settings—facilities that are not designed or equipped to quarantine, isolate, or
enable social distancing—pending immigration processing. If permitted to go into
effect, the district court’s injunction would prohibit the U.S. Government from
exercising the authority to expel noncitizens who come to the United States as a
family unit. The government would instead be required to hold those noncitizens
in congregate settings at or near the border, thereby exacerbating the virus-
transmission risk. The preliminary injunction would preclude the government
from exercising its lawful discretion under Section 265 to respond in an
appropriate and measured manner to a serious public-health threat from a deadly
communicable disease. The highly transmissible Delta variant and the historic
surge of noncitizens crossing the Southwest Border have only increased the need
for the Order.
Plaintiffs’ opposition fails to undermine the government’s demonstration
that the district court abused its discretion. On the merits, the statutory text and
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context strongly support CDC’s conclusion that Section 265 authorizes
enforcement of the prohibition on introduction of noncitizens by expelling those
noncitizens if they manage to cross the border before being encountered. Plaintiffs
fall back on alternative merits arguments that Section 265 regulates only
transportation providers; that CDC’s interpretation impermissibly overrides certain
immigration statutes; and that CDC’s interpretation would raise constitutional
concerns if applied to U.S. citizens. But the district court did not reach or rule
upon any of those arguments, and this Court should likewise decline to affirm the
district court’s injunction on these grounds. In any event, the arguments are
meritless.
First, plaintiffs’ contention that Section 265 authorizes only the regulation of
transportation providers impermissibly transforms a broad grant of statutory
authority to address the serious threat of communicable disease into a limited
authority that would leave the agency powerless to prohibit the spread of disease
by those crossing a land border without the assistance of a transportation company.
Second, Section 265 does not irreconcilably conflict with the immigration
provisions that plaintiffs invoke. Those generally applicable immigration
provisions apply in normally prevailing conditions in the absence of a rare public-
health emergency, whereas Section 265 applies only in narrow and specific
circumstances of a public-health emergency. And even if there were a conflict,
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Section 265 would control. Third, this Court does not need to address plaintiffs’
argument that CDC’s interpretation would raise constitutional concerns if applied
to U.S. citizens, as neither the final rule nor the CDC Order applies to U.S.
citizens. At a minimum, CDC’s reasonable interpretation is entitled to Chevron
deference.
Plaintiffs have also failed to demonstrate that the remaining preliminary
injunction factors support an injunction. The COVID-19 pandemic continues to be
a highly dynamic public-health emergency. CDC’s discretion concerning whether
to prohibit the introduction of persons from particular countries and in what
circumstances is critical to avoiding irreparable harm. Plaintiffs ask this Court to
overrule CDC’s expert public-health judgment regarding the increased risk of a
serious danger of transmission of COVID-19. But Congress charged CDC—not
the federal courts—with making public-health judgments about how best to protect
the country during a pandemic.
ARGUMENT
I.
The Government is Likely to Succeed on the Merits
A.
Prohibiting the “Introduction” of Persons from a Foreign
Country with a Serious Danger of Communicable Disease
Includes the Authority to Expel Such Persons
Section 265 authorizes CDC “to prohibit, in whole or in part, the
introduction of persons and property” from a foreign country “[w]henever” the
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agency “determines” that, “by reason of the existence of any communicable
disease in a foreign country,” the “introduction of persons or property from such
country” presents a “serious danger of the introduction of such disease into the
United States,” and the prohibition “is required in the interest of the public health.”
42 U.S.C. § 265. Plaintiffs and the district court are incorrect in concluding that
this statutory authority does not provide CDC with any authority to expel persons
from the United States once they cross the border.
As a matter of ordinary language, the power to prohibit something naturally
encompasses the power to stop the prohibited action after it has begun or to
remedy a violation that evades the statutory prohibition. A statute prohibiting
persons from entering certain areas is most naturally read to include both the power
to prevent persons from entering in the first instance and the power to expel them if
they mistakenly or surreptitiously enter in contravention of that prohibition. See
Gov’t Br. 27-32. Thus, “prohibit[ing]” the “introduction” of a person who may
carry a communicable disease into the United States and to the population at large
encompasses turning noncitizens around and sending them back across the border
if they mistakenly or surreptitiously enter in contravention of that prohibition, in
order “to avert [the] danger” of “the introduction of [communicable] disease into
the United States.” 42 U.S.C. § 265.
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Statutory context also squarely supports CDC’s interpretation. Section 265
seeks “to avert” the “serious danger of the introduction * * * into the United
States” of “any communicable disease in a foreign country” if that “danger is so
increased by the introduction of persons * * * from such country.” The need to
prevent the spread of disease is in no way diminished by the fact that a noncitizen
has arrived at a Port of Entry or managed to cross the border unlawfully, and
neither plaintiffs nor the district court offer any plausible reason why the statute
should be read to render CDC powerless in those circumstances.
Plaintiffs argue that the statute could confer expulsion authority only if
Congress explicitly authorized physical removal with an “express statement” or
included catch-all language such as take “other appropriate action” or “other
measures.” Br. 16-20. What matters is not whether Congress used magic words,
but what the words that Congress did use mean. Here, the most common-sense
reading of Section 265 includes the power both to prevent persons from entering
and to prevent people who manage to evade restrictions on entering from moving
further into the country by expelling them.
Plaintiffs rely on extradition statutes in arguing that Congress has a “long
history” of expressly granting expulsion authority. Br. 17. But it is not surprising
that extradition statutes use terms such as “return[] and surrender[],” 18 U.S.C.
§ 3185, as the definition of “extradite” is “[t]o surrender or deliver (a fugitive) to
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another jurisdiction” or “to send (an accused person) back to the state or country
where a crime may have happened,” Extradite, Black’s Law Dictionary, Westlaw
(11th ed. 2019). Plaintiffs rely on Valentine v. United States ex rel. Neidecker, 299
U.S. 5 (1936), but that case addressed whether a treaty authorized the extradition
of U.S. citizens where the treaty stated that “[n]either of the contracting Parties
shall be bound to deliver up its own citizens.” Id. at 6-7. The Court held that “a
grant * * * of discretionary power to surrender citizens of the United States” may
not “be implied” from this language. Id. at 11-12. Valentine thus has no bearing
on the meaning of Section 265, particularly where the final rule and the CDC
Order do not apply to U.S. citizens. 42 C.F.R. § 71.40(f); 1 Joint Appendix (JA)
148.
Plaintiffs also find it significant (Br. 17) that in 1893, Congress
simultaneously considered two competing bills to address the cholera epidemic—
the bill that would become Section 265, and a competing bill (that Congress did
not enact) that would have suspended all immigration for one year and that
specified that an immigrant entering to the contrary shall “be sent back to the
country from which he came.” 24 Cong. Rec. 290 (1892). But in debating the
merits of these competing bills, no member of Congress attributed any significance
to the absence of similar language in Section 265. Rather, Senators discussed the
merits of requiring a presidential proclamation to trigger a prohibition (as Section
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265 required, but the competing bill did not), see 24 Cong. Rec. 364-65 (1893),
and the merits of applying a prohibition to immigration only (as the competing bill
did, see 24 Cong. Rec. 290) or also to tourists and other temporary visitors (as did
Section 265, as amended), see 24 Cong. Rec. 361, 363, 374. And Senator
Chandler, who introduced and was the chief proponent of the competing bill,
ultimately proclaimed himself “heartily in favor” of Section 265, 24 Cong. Rec.
393, voted for Section 265 as amended, id. at 471, and let his competing bill
“lapse,” id. at 473. To the extent the legislative history of this unenacted bill is
relevant, it demonstrates that no member of Congress viewed the absence of “sent
back” language in Section 265 to be a notable difference, consistent with the view
that Section 265’s language is most naturally read to include the authority to
prohibit entry as well as to expel.
Plaintiffs note that under certain immigration provisions, the government
can detain and remove noncitizens on “health-related grounds.” Br. 18 (citing
8 U.S.C. §§ 1182(a)(1), 1222). That Congress separately addressed health-related
grounds of inadmissibility in an immigration statute says nothing about the
meaning of Section 265, a public-health statute. If anything, the fact that Congress
enacted Section 265 to address the cholera epidemic just two years after enacting a
statute to exclude noncitizens from admission because of a “dangerous contagious
disease,” 26 Stat. 1084, 1084 (1891); see Br. 18, underscores that Congress
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considered the existing immigration laws insufficient to address adequately the
relevant dangers, and that Congress intended for Section 265 to confer a greater
authority to prohibit the entry of, and to expel, persons who presented a risk of
introducing a contagious disease into the United States. Likewise, exercising the
authority to detain noncitizens for examination “[f]or the purpose of determining
whether [noncitizens] arriving at ports of the United States” are inadmissible “by
reason of being afflicted with [certain] diseases,” 8 U.S.C. § 1222(a), would not
address the same harms as Section 265, as CDC has repeatedly explained that
holding noncitizens in congregate settings increases the risk of COVID-19
transmission. 86 Fed. Reg. 42,828, 42,830 (Aug. 5, 2021).
Plaintiffs also note that the government can arrest and imprison or fine
noncitizens who cross the border. Br. 20-22 (citing 42 U.S.C. § 271(a)). But
Congress’s provision of these penalties in Section 271 in no way limits CDC’s
authority under Section 265 to use expulsion to implement the basic authority to
prevent introduction of individuals and disease among the population. Although
those punishments might deter some unlawful border crossings in the first instance,
they do not further Section 265’s purpose of averting the spread of disease caused
by the continued presence of those who were not sufficiently deterred. Indeed,
imprisonment in congregate settings risks exacerbating the risk of transmission that
the CDC Order seeks to avoid and would be contrary to the statutory purpose of
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keeping contagious persons out of the country. It is hard to imagine that Congress
enacted Section 265 with the expectation that individuals with a deadly and highly
contagious disease (like COVID-19 or, for example, Ebola) would have to be
permitted to remain in the United States—thus ensuring the “introduction” of the
disease at issue. Under plaintiffs’ view, the United States would be powerless to
prevent the introduction of a novel disease, no matter how detrimental. In light of
the purpose of Section 265, the plaintiffs’ interpretation is implausible in context.
Plaintiffs further suggest that Section 265 does not authorize the government
to stop noncitizens from crossing the border. Br. 22-23. Notably, the district court
did not endorse this extreme view. 1 JA 110. Nor do plaintiffs provide any
support for this interpretation, which would render Section 265 a virtual nullity.
Indeed, plaintiffs’ view would render even their own interpretation of the statute
essentially meaningless, as it would presumably preclude the government from
stopping transportation providers from crossing the border. If all Section 265
permitted were after-the-fact punishment of noncitizens who unlawfully cross the
border, it would do nothing more than the existing criminal penalty for illegal
entry. See 18 U.S.C. § 1325(a).
Amicus The Cato Institute argues (at 12) that Section 265 is an
impermissible delegation that “would give the CDC virtually unlimited authority to
bar the entry of migrants and visitors from abroad.” But Section 265 only applies
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where CDC determines that the “introduction of persons or property” presents a
“serious danger of the introduction of [] disease into the United States” and the
prohibition “is required in the interest of the public health.” 42 U.S.C. § 265. That
standard is at least as intelligible as others upheld by the Supreme Court. See
Gundy v. United States, 139 S. Ct. 2116 (2019) (plurality op.) (explaining that the
Court has “upheld even very broad delegations,” including delegations to regulate
in the “public interest”; to set “‘fair and equitable’ prices and ‘just and reasonable’
rates” ; and to issue air quality standards as “‘requisite to protect the public
health’”).
The Cato Institute also relies on Alabama Association of Realtors v. HHS,
141 S. Ct. 2485 (2021), but the Court did not address the nondelegation doctrine
there. Moreover, in Alabama Association of Realtors, the scope of CDC’s
authority under Section 264(a) to “prevent the introduction” of communicable
disease was informed by the expressly enumerated powers listed in the very next
sentence of the same subsection. Id. at 2488. Here, in contrast, the enumerated
mitigation measures relied upon by the district court and plaintiffs (quarantine,
apprehension, detention, and penalties) appear in different statutory provisions, not
Section 265 itself. Congress made clear that Section 265 was intended to expand
CDC’s authority beyond the express measure of quarantine listed elsewhere in the
Public Health Service Act. Nor, finally, do Section 265 or the CDC Order
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“exercise powers of vast economic and political significance” or “intrude[] into an
area that is the particular domain of state law.” Id. at 2489. Section 265 and the
CDC Order do not regulate economic activity; do not directly regulate any
domestic persons or entities; and operate in an area of uniquely federal concern.
At a minimum, Section 265 is ambiguous, and CDC’s reasonable
interpretation is entitled to Chevron deference. Gov’t Br. 34-37. Plaintiffs do not
dispute that CDC administers Section 265 and that the challenged Order carries the
force of law and was issued under the authority of a final rule promulgated in
accordance with the Administrative Procedure Act. That is sufficient to warrant
Chevron deference. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016). Plaintiffs argue that CDC is entitled to no deference because its
interpretation of Section 265 would override another statute it does not administer.
Br. 40. But that argument is plainly incorrect with respect to the primary issue
presented: whether Section 265 by its own terms permits expulsion to avoid the
spread of disease. Moreover, contrary to plaintiffs’ assertion, Br. 42, CDC’s
interpretation is rooted in its expert public-health determination that “those who
have physically crossed a border of the United States and are in the process of
moving into the interior * * * present a risk of transmission of a communicable
disease” into the United States. 85 Fed. Reg. 16,559, 16,563, 16,567 (Mar. 24,
2020).
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B.
Plaintiffs’ Alternative Arguments Are Meritless
Plaintiffs also raise alternative merits arguments—not reached or ruled on by
the district court—in support of their assertion that they are likely to prevail on the
merits. Br. 25-40. Putting aside the anomaly of asserting that the district court did
not abuse its discretion based on issues it never reached, see 1 JA 112 n.6,
plaintiffs’ arguments are meritless.
1.
Section 265 is Not Limited to Regulating
Transportation Providers.
Contrary to plaintiffs’ argument, Br. 25-31, Section 265 is not limited to
regulating transportation providers. Unlike neighboring provisions explicitly
regulating “vessels” or “aircraft,” 42 U.S.C. §§ 267(b), 269, 270, 271(b), Section
265 refers to “the power to prohibit * * * the introduction of persons” without any
reference to their means of transportation. “Congress generally acts intentionally
when it uses particular language in one section of a statute but omits it in another.”
DHS v. MacLean, 574 U.S. 383, 391 (2015).
Plaintiffs argue that Congress used the “general term ‘introduction of
persons and property’” to “encompass the various means of transporting
passengers and cargo.” Br. 28. But elsewhere in the same statute, Congress
expressly referred to “any merchant ship or other vessel,” as well as “its cargo,
passenger, and crew,” 27 Stat. 449, 449-50 (1893), and its use of different words in
Section 265 must be taken to have meaning. Congress could also have used a
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phrase such as “steamship or transportation company or owners of vessels * * * or
* * * [its] agents” as it had done two years earlier, 26 Stat. at 1084, or “common
carrier,” which (despite plaintiffs’ claim, Br. 28) encompasses “transport[ing]
freight or passengers,” Carrier, Black’s Law Dictionary, Westlaw (11th ed. 2019)
(emphasis added). Congress could even have used the phrase “third-party
transportation” or “transportation providers,” as plaintiffs suggest was its intent.
But Congress did none of that. As one Senator emphasized in discussing what
became Section 265, it regulated people, not their method of transportation. See 24
Cong. Rec. 393 (“[W]e are now legislating in regard to persons; we are now
legislating in regard to immigration. To say that an empty vessel may come in
with nobody upon it is, I submit, simply begging the whole question.”).
Indeed, when considering Section 265’s predecessor, the Senate rejected an
amendment to bar “passenger travel” or “all passenger travel,” 24 Cong. Rec. 470.
As Senator Palmer explained, “something more would be necessary in order to
protect the public interest than the mere restriction upon passenger travel,” for
example “some stronger word, such [as a] term to prohibit intercourse,” id., and
after the “passenger travel” amendment was rejected, Senator Palmer proposed
instead the language authorizing the “power to prohibit * * * the introduction of
persons,” id. at 471, which the Senate adopted, id. at 471-72. Plaintiffs
implausibly contend that the Senate meant to “equate[]” that language with the
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rejected “passenger travel” proposal, Br. 30; in fact, the Senate did the opposite,
adopting the language in the statute because it was not limited to passenger travel.1
Plaintiffs suggest that the “something more” the Senate thought necessary
when it rejected the “passenger travel” proposal was the authority to prohibit the
introduction of property. Br. 29. But as Senator Chandler explained, “[i]t is not
what the passenger brings with him * * * that is itself important to us, but it is
important that the people who come here shall be cleanly,” 24 Cong. Rec. 366, and
in any event he suggested that the President already possessed the power “to keep
out infectious property; but there is no harm in adopting the amendment in this
form,” id. at 471. Nor did the Senate reject the “passenger travel” proposal “for
[the] entirely different reason” that the statute lacked flexibility to apply “in whole
or in part.” Br. 29-30. The Senate rejected the “passenger travel” proposal
entirely, instead adding the flexibility conferred by “in whole or in part” to

1 Plaintiffs (Br. 28-29) and Historians (at 10-11 & n.4) place weight on the
fact that the rejected amendment would have prohibited “all passenger travel, but
not immigration alone.” 24 Cong. Rec. 470 (emphasis added). Under either
wording, the proposal would have covered all types of passenger travel, but the
Senate rejected that proposed amendment and instead adopted different and
broader language prohibiting “the introduction of persons,” which contained no
textual limitation to means of travel.
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different statutory language, namely, the “power to prohibit, in whole or in part,
the introduction of persons and property.”2
Contrary to plaintiffs’ claim, Br. 26-31, Congress was not exclusively
focused on passenger ships, and its Members were well aware that communicable
diseases could be spread by persons arriving over land borders. 24 Cong. Rec. 370
(noting the “terrible ravages [that] cholera was going to bring to this country”
could “come from Mexico”); id. at 359 (noting immigration “coming through
Alaska and Mexico”); id. at 364 (noting possibility of “cholera-breeding
immigration which will come into this country by land” though Canada); id. at
371. Plaintiffs accuse the government of “selectively quot[ing]” Senator Chandler,
Br. 30, claiming that he was “not afraid” of cholera coming “by land,” Br. 31. In
fact, Senator Chandler stated he was “not afraid, if the bill passes for the
suspension of immigration for one year [discussed supra p. 7-8], that * * * cholera-
breeding immigration [would] come into this country by land,” 24 Cong. Rec. 365

2 Amicus Historians (at 11) attribute the rejection of the “passenger travel”
proposal to a debate between Senators Vilas and Gray over the degree to which the
bill should “discriminate” among different persons. But aside from the fact that
these Senators were addressing different issues (Senator Vilas addressed whether
immigrants should be treated the same as temporary visitors, while Senator Gray
addressed the distinction between citizens and non-citizens, see 24 Cong. Rec.
470), the Senate resolved the problem by adding the authority to prohibit “in whole
or in part”—but to the prohibition on “the introduction of persons” rather than the
rejected amendment prohibiting “passenger travel.”
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(emphasis added). And as noted above, supra p. 8, rather than pursuing his bill for
a one-year suspension of immigration, Senator Chandler voted for the competing
bill that became Section 265, which granted the power to prohibit the introduction
of persons, without any limitation on whether they come by land or by overseas
vessel.3
Plaintiffs contend (Br. 27-28) that the only time Section 265 was invoked
prior to 2020 to prohibit the introduction of persons was by regulating
transportation providers. But the relevant executive order in fact addressed how
persons “may be introduced directly or indirectly by transshipment or otherwise
into the United States.” 2 JA 203 (emphasis added). Regardless, it is not
surprising that an executive order applying only to persons coming overseas from
China or the Philippine Islands would focus on transportation vessels, which would
have been the only practical means of coming to the United States from those
locations in 1929. This example says nothing about the authority under Section
265 to address the threat of contagious disease from noncitizens arriving at
Canadian and Mexican land borders, where the introduction of a person does not
require a transportation provider.

3 Plaintiffs also object that other Senators criticized Section 265 for failing to
address persons arriving by land, Br. 31, but those statements were made before
the bill was amended to authorize the “power to prohibit * * * the introduction of
persons.”
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In the end, plaintiffs do not dispute that their interpretation would lead to the
illogical conclusion that passengers could simply disembark offshore, or just
before the border, and then enter the country without violating the statute; they
merely question whether that scenario is likely. See Br. 31. But one Senator noted
this exact problem, observing that “it is an open and notorious fact that for want of
patrol people were escaping from the ships and getting to shore more or less during
that whole quarantine” the previous year. 24 Cong. Rec. 373. Plaintiffs also
question why a commercial entity would risk penalties by engaging in that
behavior. But the relevant question for interpreting the statute is why Congress
would have left such an obvious and gaping loophole in Section 265, not why the
supposed subject of regulation would risk violating the statute.
2.
Section 265 Does Not Irreconcilably Conflict with
Immigration Provisions, but in Any Event, Section
265 Would Control.
Plaintiffs argue that CDC’s interpretation of Section 265 unlawfully
conflicts with provisions of the immigration laws providing humanitarian
protections without the requisite clear congressional intent to do so. Br. 34-40.
But as we have explained, Gov’t Br. 40-41, the statutes are readily harmonized:
the immigration provisions that plaintiffs invoke apply in normally prevailing
conditions in the absence of a rare public-health emergency, whereas Section 265
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is an emergency public-health provision that applies only in specific, limited
circumstances.
Nor do plaintiffs seriously contest the drafting history of Section 265, which
demonstrates that Congress amended the statute to change the authority for a
“suspension” of “immigration” to an authority for a “suspension of the right to
introduce * * * persons,” making clear that Section 265 authorized both the
prohibition on immigration and the prohibition on tourists and other temporary
visitors. Gov’t Br. 41-43. And contrary to plaintiffs’ claim, Br. 38, “a very strong
argument” put forward in floor debate in favor of Section 265 was that it made
“quite clear that * * * the purpose of the law” includes “the power to suspend
immigration altogether,” 24 Cong. Rec. 393, and that it grants “very extraordinary
powers” including “a total embargo upon immigration,” id. at 470. Plaintiffs then
argue, implausibly, that Section 265’s authorization for the suspension of
immigration does not include the suspension of immigration “laws.” Br. 37.
Plaintiffs also object that under the government’s construction of Section
265, “there is no bar to indefinitely overriding the asylum statutes.” Br. 36. By its
plain terms, however, Section 265 applies only where CDC determines that the
“introduction of persons or property from such country” presents a “serious danger
of the introduction of such disease into the United States,” and the prohibition “is
required in the interest of the public health.” 42 U.S.C. § 265. Section 265 is thus
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 23 of 35

a limited exception that is applicable only under emergency conditions—and
which has only rarely been invoked. See 85 Fed. Reg. 56,424, 56,426 (Sept. 11,
2020) (“This authority is available only in rare circumstances when ‘required in the
interest of the public health.’” (quoting 42 U.S.C. § 265)). Moreover, the CDC
Order is subject to recurring 60-day reviews. 1 JA 131. Nor should the Court give
any weight to plaintiffs’ unsupported suggestion that the government will abuse its
authority under Section 265 to “eliminate humanitarian protections whenever it
deems it expedient.” Br. 36; cf. Latif v. Obama, 677 F.3d 1175, 1178 (D.C. Cir.
2011) (“The presumption of regularity supports the official acts of public officers
and, in the absence of clear evidence to the contrary, courts presume that they have
properly discharged their official duties.” (quotation marks and citation omitted)).
Further, plaintiffs do not dispute that the government’s implementation of the CDC
Order provides a process for determining a covered noncitizen’s claim for
protection under the Convention Against Torture (CAT). See Dkt. 76, at 29 n.15
(explaining that the Department of Homeland Security (DHS) will refer a
noncitizen to U.S. Citizenship and Immigration Services for a CAT screening if the
noncitizen claims a fear of torture); Br. 35 n.6. Thus, noncitizens would not be
expelled without some opportunity to seek humanitarian relief.
Plaintiffs acknowledge that Section 265 provides for a “suspension of the
right to introduce such persons” (emphasis added), but they argue that this
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language cannot provide for the temporary suspension of immigration laws
because it is found in a “dependent clause.” Br. 37. Section 265’s grammatical
structure, however, does not undermine Congress’s clear intent that it permits the
temporary displacement or suspension of immigration laws that otherwise provide
certain rights to noncitizens. Indeed, if plaintiffs were correct that a “dependent
clause” cannot authorize the suspension of other laws, it would undermine their
own theory that Congress authorized the suspension of transportation provider
licenses, see Br. 38 n.8.
3.
The Constitutional Avoidance Doctrine is
Inapplicable.
Plaintiffs argue that Section 265 cannot include the power to expel because
that authority would raise grave constitutional questions if applied to U.S. citizens.
Br. 36-37. But plaintiffs do not dispute that neither the final rule nor the CDC
Order applies to U.S. citizens. 42 C.F.R. § 71.40(f); 1 JA 148. Nor do plaintiffs
dispute that interpreting Section 265 to permit CDC to stop persons (including U.S.
citizens) from crossing the border would raise the same constitutional concerns.
See Gov’t Br. 44. Plaintiffs’ only answer is to question whether Section 265
authorizes even that limited step as a statutory matter, Br. 24 n.3, which avoids the
constitutional issue by construing the statute to be a virtual nullity, see supra p. 10.
If CDC were ever to invoke Section 265 to expel U.S. citizens (or
indefinitely bar their re-entry), a court could at that point address whether such an
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 25 of 35

order would be unconstitutional as applied to U.S. citizens, cf. Reno v. Flores, 507
U.S. 292, 305-06 (1993), or whether constitutional concerns call for an implicit
exception for U.S. citizens, cf. Our Lady of Guadalupe Sch. v. Morrissey-Berru,
140 S. Ct. 2049, 2060 (2020). This Court should not preemptively adopt a
narrowing construction of the statute that does not eliminate the very constitutional
concerns that are the purported basis for that construction.
II.
The Remaining Preliminary Injunction Factors Do Not Support
An Injunction
The district court also erred in concluding that the remaining preliminary
injunction factors weigh in favor of plaintiffs. The preliminary injunction
threatens irreparable harm to the government and the public at large.
There can be little doubt that the district court’s preliminary injunction
would increase the risk of the transmission of COVID-19 among noncitizens, U.S.
Customs and Border Protection (CBP) personnel, and the public at large. The
injunction would require the government to hold covered family units in
congregate settings for hours or days while they undergo immigration processing,
in facilities that are not equipped for physical distancing, quarantine, or isolation at
the best of times, and that are now substantially over their COVID-restricted
capacity. 1 JA 176 ¶ 21. CDC’s discretion to respond to the public-health
emergency—including both its decision about whether to prohibit the introduction
of persons from particular countries and in what circumstances, and its authority to
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except certain classes of people from its Order—is critical to avoiding irreparable
harm to the public. CDC is scheduled to complete its next periodic review on
November 30, 2021. See Gov’t Br. at 14 (discussing CDC’s recurring 60-day
reviews).
Plaintiffs argue that noncitizen family units are not a “meaningful source of
COVID-19.” Br. 46-49. In support of this argument, plaintiffs rely on high
positivity rates within the United States and border states. Br. 47-48. Plaintiffs’
argument only underscores CDC’s conclusion that temporarily suspending the
introduction of certain noncitizens traveling from Canada and Mexico, including
members of family units and single adults, “remains necessary in light of the
current circumstances” and rising positivity rates. 1 JA 132, 133, 135. Rising
positivity rates exacerbate the exact strain on the healthcare system that the CDC
Order is meant to avoid, and CDC’s expert public-health judgment is entitled to
deference. Moreover, plaintiffs’ observation that noncitizen members of family
units are a “tiny fraction” of “cross-border traffic,” Br. 48, is a meaningless
comparison. The vast majority of those travelers do not require extended Title 8
processing in congregate settings—the source of the risk that CDC seeks to
address—and the ones that do (e.g., single adults lacking valid travel documents)
are also subject to the Order. Moreover, even small numbers of contagious
individuals can lead to substantial spread in crowded CBP facilities. The
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injunction inhibits CDC’s authority to respond effectively to changes in the public-
health environment and the status of the pandemic.
Plaintiffs also fault the government for not expanding testing, vaccines, and
other mitigation protocols. Br. 49-54. But plaintiffs’ unfounded assertion that
“DHS has simply failed to act” is undermined by the record in this case. Br. 50.
DHS is moving expeditiously to implement and expand the use of robust COVID-
19 mitigation measures and has been working since January 2021 to build greater
capacity. See, e.g., 1 JA 170 ¶ 4 (government declarant explaining that “DHS has
worked tirelessly to build capacity and to create innovative new approaches to
allow asylum seekers and other noncitizens to be processed in a manner that
ensures * * * health and safety”); 1 JA 171-173 ¶¶ 7-12. Despite these efforts,
DHS still “lacks sufficient capacity” to process all individuals seeking to enter the
United States, and the problem is “particularly acute with respect to families.”
1 JA 170 ¶ 5. CDC has concluded in its expert public-health judgment that the
“extreme population density and the resulting increased time spent in custody by
noncitizens” in CBP facilities currently pose significant risk. 1 JA 141. In
addition, risk-mitigation efforts are constrained by requirements to hold various
population cohorts separately, as well as resource and physical constraints that
make isolation and separation of those who test positive for COVID-19 infeasible.
1 JA 141-42. The fact that certain local organizations might have available
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 28 of 35

capacity to receive and transport families after they have been processed by CBP,
Br. 51, does not address the risk that the Order is meant to address, i.e., the risk of
spread of COVID-19 if CBP must hold family units in overcrowded CBP facilities
pending immigration processing.
Plaintiffs argue that “CDC’s exemption of unaccompanied children
demonstrates that COVID-19 risk can be safety mitigated” for family units.
Br. 50. But CDC explained that unaccompanied children “are differently situated”
than single adults and individuals in family units for several reasons, including that
“[t]he number of [unaccompanied children] entering the United States is smaller
than both the number of [single adults] and of [members of family units].” 1 JA
145; see also Gov’t Br. 52-53. As the government has explained, the United States
“is currently encountering record numbers of noncitizens, including families, at the
border,” 1 JA 169 ¶ 3, and an even greater increase could be expected if the
injunction were to be affirmed and take effect, 1 JA 156 ¶ 7; 1 JA 161 ¶ 14; 1 JA
177 ¶ 2; Gov’t Br. 48. There is “an historic surge in southwest border encounters
in recent months” and the “capacity challenges are particularly acute with respect
to families.” 1 JA 170 ¶ 5; 1 JA 174 ¶ 17; Gov’t Br. 47.
Plaintiffs also contend that the vaccine mandate for federal workers and the
availability of vaccines for children starting at the age of five can help mitigate the
COVID-19 risks associated with processing additional family units. Br. 52. But
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many people covered by the CDC Order originate from countries with “markedly
lower vaccination rates.” 1 JA 138; see also 1 JA 170 ¶ 3 (DHS “is also
experiencing significantly increased rates of noncitizens testing positive for
COVID-19”). And even if the government could vaccinate all willing and eligible
members of family units encountered, that would not eliminate the potential harm
given the period of time before vaccination would be effective. Nor do plaintiffs
dispute that the Delta variant also increases the risk of breakthrough infections
even among the vaccinated. 1 JA 135, 138.
Plaintiffs note that DHS is permitting vaccinated foreign travelers to enter
the United States. Br. 53. But those travelers will not spend hours or days in
congregate settings while undergoing immigration processing, unlike the
noncitizens covered by the CDC Order. See 1 JA 143 (explaining that individuals
in family units who are not expelled under the CDC Order, but who would be
processed under Title 8 because of the district court injunction, would spend an
average of 62 hours in custody at CBP facilities, and that “[i]f the CDC Order were
not in place * * * time in custody would likely increase significantly”).
Plaintiffs assert that, because in June 2021 the government was unable to
apply the CDC Order to approximately 86% of individuals in family units,
primarily as a result of foreign government restrictions, 1 JA 143 & n.80, enjoining
application of the CDC Order to the remaining family units would not “impose a
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substantial burden on DHS.” Br. 54-58. But under the Order, the government
expelled more than 8,000 individuals in family units per month in May and June
2021, and over 10,000 and 16,000 in July and August 2021, respectively. 1 JA
174-75 ¶¶ 17-18; CBP, Southwest Land Border Encounters,
https://go.usa.gov/xeQ8Y (last modified Nov. 15, 2021) (interactive dashboard).
The number of individuals in family units encountered monthly has nearly doubled
from May to August 2021 (from 44,000 to 86,000), id., and is expected to escalate
sharply if the preliminary injunction were to take effect, as the application of the
CDC Order has been a significant deterrent to the entry of family units who qualify
for processing under the CDC Order, 1 JA 177 ¶ 23; 1 JA 156, 161.4 Furthermore,
two Border Patrol sectors on the Southwest Border have seen a disproportionate
share of the encounters, resulting in “extremely worrisome” statistics, with one
section at 783% over COVID-adjusted capacity as of August 2021. 1 JA 175-76.5
Plaintiffs also assert that the balancing of harms weighs in favor of a
preliminary injunction because noncitizens who hope to come to the United States

4 Despite plaintiffs’ claim of inflated statistics due to repeat crossings,
Br. 54-55, their own statistics show only a 16.8% recidivism rate for family units
in the first nine months of fiscal year 2021, 2 JA 462, which is dwarfed by the
surge in the number of family unit encounters, 1 JA 175-76.
5 Overcapacity or other factors might necessitate the transfer of noncitizens
to other regions for processing under the CDC Order, Br. 53, but those risks from
overcapacity and transfer would be substantially exacerbated if the government
were required to process all noncitizen members of family units under Title 8.
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 31 of 35

but are barred from doing so, or who have been encountered in the United States
and expelled under the CDC Order, have been victimized by criminal gangs in
those foreign countries. Br. 42-45. This is a deplorable situation, and the U.S.
government has been taking action to provide additional protections for vulnerable
individuals subject to the CDC Order. Of note, the United States has excepted
from the Order particularly vulnerable families, in partnership with
nongovernmental organizations—an effort that has resulted in the exception of
over 16,000 individuals from the CDC Order. 1 JA 172 ¶ 11. As noted by
plaintiffs and certain amici, participating nongovernmental organizations have
recently decided to cease assisting the U.S. government in implementing this
process, which has hampered such efforts. But the government nonetheless
continues to grant case-by-case exceptions based on the totality of the
circumstances, including humanitarian considerations, and will continue to do so.
The issue before the court is whether the federal government is disabled
from taking quick action, based on the reasoned decision of the nation’s public-
health authorities, to protect the public health in circumstances that pose a risk of
spread of COVID-19 not just for covered noncitizens but for CBP personnel and
the U.S. public. With all respect, the government submits that it is not.
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 32 of 35

CONCLUSION
For the foregoing reasons, the judgment of the district court should be
reversed and the preliminary injunction vacated.

Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General

MATTHEW M. GRAVES
United States Attorney

SHARON SWINGLE

/s/ Ashley A. Cheung
ASHLEY A. CHEUNG
JOSHUA WALDMAN
Attorneys, Appellate Staff
Civil Division, Room 7261
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-9018
ashley.cheung@usdoj.gov

November 2021
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 33 of 35

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 6,500 words. This brief also complies
with the typeface and type-style requirements of Federal Rule of Appellate
Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2016 in
Garamond 14-point font, a proportionally spaced typeface.
/s/ Ashley A. Cheung
Ashley A. Cheung
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 34 of 35

CERTIFICATE OF SERVICE
I hereby certify that on November 29, 2021, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court of Appeals
for the District of Columbia Circuit by using the appellate CM/ECF system.
Participants in the case are registered CM/ECF users, and service will be
accomplished by the appellate CM/ECF system.
/s/ Ashley A. Cheung
Ashley A. Cheung
USCA Case #21-5200 Document #1924454 Filed: 11/29/2021 Page 35 of 35

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