Motion (State of Texas to Participate in Oral Argument) — Huisha-Huisha v. Mayorkas

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ORAL ARGUMENT SCHEDULED FOR JANUARY 19, 2022 
No. 21-5200 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE D.C. CIRCUIT 
 
Nancy Gimena Huisha-Huisha, et al., 
 
 
 
 
 
 
 
 
 
Plaintiffs-Appellees, 
v. 
Alejandro Mayorkas, et al., 
 
 
 
 
 
 
 
 
 
Defendants-Appellants, 
 
On Appeal from the United States District Court 
for the District of Columbia 
Case No. 1:21-cv-00100-EGS 
 
MOTION OF AMICUS CURIAE THE STATE OF TEXAS TO 
PARTICIPATE IN ORAL ARGUMENT 
  
 
KEN PAXTON 
Attorney General of Texas 
 
BRENT WEBSTER 
First Assistant Attorney General 
 
Office of the Attorney General 
P.O. Box 12548 (MC 059) 
Austin, Texas 78711-2548 
Tel.: (512) 936-1700 
Fax: (512) 474-2697 
JUDD E. STONE II 
Solicitor General 
 
RYAN S. BAASCH 
Assistant Solicitor General 
Ryan.baasch@oag.texas.gov 
 
LEIF A. OLSON 
Special Counsel 
 
Counsel for Amicus Curiae the State 
of Texas 
 
 
 
 
USCA Case #21-5200      Document #1924789            Filed: 12/01/2021      Page 1 of 7

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Pursuant to D.C. Circuit Rule 34(e), amicus curiae the State of Texas 
(“Texas”) respectfully moves this Court for leave to participate in oral argument in 
the above-captioned case and further requests that it be granted seven minutes of 
argument time. Texas satisfies this Court’s “extraordinary reasons” requirement 
for amicus participation at oral argument because Texas (1) would present 
dispositive statutory interpretation arguments that the parties have not addressed; 
(2) has a unique institutional interest and expertise in the subject matter and 
potential doctrinal repercussions of this case; and (3) will bear an outsized burden 
throughout the duration of COVID-19, and potentially again in the future, if 
Appellees’ view of the law is adopted. Counsel for Appellants and Appellees oppose 
this motion. 
 
This case concerns an issue of first impression and tremendous importance: 
the proper interpretation of 42 U.S.C. § 265. Texas is uniquely invested in the 
answer to that question because the Court’s decision will shape how effectively the 
United States, or even the State itself, may prevent communicable diseases from 
being introduced into Texas across its 1,000+ mile international border. On October 
11, Texas moved for leave to intervene to protect its interest. On October 26, the 
Court denied that motion but invited Texas “to participate as amicus curiae.” On 
October 28, Texas filed an amicus brief presenting distinct statutory interpretation 
arguments that Appellants and Appellees have not addressed. Extraordinary reasons 
justify extending the Court’s invitation for Texas to participate as an amicus to 
include Texas’s participation at oral argument. 
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First, this case presents a novel question of statutory interpretation that 
neither this Court nor any other circuit court has addressed. See Amadis v. DOJ, 
Case No. 19-5088 (D.C. Cir. Jan. 13, 2020) (granting motion to participate at oral 
argument where amici sought to present statutory interpretation arguments in case 
of first impression). Specifically, this case presents the question whether 42 U.S.C. 
§ 265 authorizes the Executive branch to summarily expel aliens who enter from a 
country experiencing spread of a communicable disease. Appellants and Appellees 
principally focus on whether this statute itself grants expulsion power to the 
Executive. Texas, by contrast, contends that the Executive branch has multiple other 
sources of expulsion authority, and that 42 U.S.C. § 265 permits the Executive to 
“suspend” the statutory defenses that aliens would invoke against those other 
expulsion authorities. This presents a dispositive alternative ground to reverse the 
district court and to establish precedent on this important statutory interpetation 
question. See Klayman v. Obama, Case No. 14-5004 (D.C. Cir. Oct. 7, 2014) 
(granting multiple opposed motions to participate in oral argument where amici 
offered alternative grounds for affirmance). In addition, it closely matches an 
interpretation the previous administration advanced when promulgating the orders 
at issue here. See Control of Communicable Diseases; Foreign Quarantine: 
Suspension of the Right to Introduce and Prohibition of Introduction of Persons into 
United States from Designated Foreign Countries or Places for Public Health 
Purposes, 85 Fed. Reg. 56,424, 56,426 (Sept. 11, 2020) (stating that the law “grants 
[the Executive] the authority to temporarily suspend the effect of any law, rule, 
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decree, or order by which a person would otherwise have the right to be introduced 
or seek introduction into the U.S.”). 
 
Second, Texas has a unique institutional interest and expertise in the subject 
of this litigation and the potential doctrinal repercussions of the Court’s ruling. See 
Nat’l Ass’n for Surface Finishing v. EPA, Case No. 12-1459 (D.C. Cir. Nov. 11, 2014) 
(granting California agencies’ opposed motion to particiate in oral argument where 
California had unique institutional interest in outcome of regulatory question). 
Texas is currently litigating multiple challenges implicating federal authority at the 
border,1 including the Executive branch’s exercise of its Title 42 authority. See Texas 
v. Biden, 4:21-cv-00579-P (N.D. Tex.). Texas can assist the Court at argument by 
addressing the interplay of these multiple litigations and how a decision in this one 
could affect the broader regulatory field governing border security and public health. 
For example, in United States v. Texas, 3:21-cv-173 (W.D. Tex.), Texas is actively 
litigating the scope of its own authority to limit spread of COVID-19 by aliens subject 
to expulsion under Title 42. The district court there preliminarily enjoined a Texas 
Executive Order governing movement of those aliens as preempted. 2021 WL 
4848743 (W.D. Tex. Aug. 26, 2021). If that order stands, a ruling for Appelles here 
may have particularly grave public health repercussions. It may, for example, mean 
that government actors at every level of our federal system are materially limited 
 
1 Texas v. United States, 1:18-cv-68 (S.D. Tex.) (DACA); Texas v. Biden, 2:21-cv-67 
(N.D. Tex.) (Migrant Protection Protocols); Texas v. United States, 6:21-cv-3 (S.D. 
Tex.) (pause on removals); Texas v. United States, 6:21-cv-16 (S.D. Tex.) 
(prioritization of removal); United States v. Texas, 3:21-cv-173 (W.D. Tex.) (Texas 
authority to restrict transport of aliens). 
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from restricting the flow of aliens with communicable diseases. Texas is prepared to 
address this and many other potential effects of a ruling for Appellees.  
 
Third, if the district court’s order is not reversed, Texas will suffer outsized 
impacts both now and in the future. See, e.g., United States v. AT&T, Case No. 18-
5214 (D.C. Cir. Nov. 30, 2018) (granting opposed motion to participate at oral 
argument where amici had special interest in development of key legal precedent). 
According to the district court (and Appellees), the federal government lacks 
authority to summarily expel aliens who enter from a country suffering from a 
communicable disease outbreak. Instead, Appellees argue that the Executive must 
allow those aliens to remain in the United States for months, if not years, to litigate 
potential statutory privileges to remain indefinitely. Necessarily, aliens carrying a 
communciable disease will be able to spread that disease during this lengthy stay. 
That will have an outsized impact on Texas both during COVID-19 and during any 
future event where aliens with a communicable disease are crossing the southern 
border. The facts of the current pandemic vividly illustrate the problem, as multiple 
Texas communities were forced to declare states of disaster because of the recent 
surge of aliens carrying COVID-19. See Texas Amicus Br. at 22-23.  
CONCLUSION 
For the foregoing reasons, Texas respectfully requests that the Court allocate 
seven minutes of argument time for Texas to present oral argument. 
 
 
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Respectfully submitted. 
KEN PAXTON 
Attorney General of Texas 
 
BRENT WEBSTER 
First Assistant Attorney General 
 
Office of the Attorney General 
P.O. Box 12548 (MC 059) 
Austin, Texas 78711-2548 
Tel.: (512) 936-1896 
Fax: (512) 370-9191 
JUDD E. STONE II 
Solicitor General 
 
/s/ Ryan S. Baasch 
RYAN S. BAASCH 
Assistant Solicitor General 
Ryan.baasch@oag.texas.gov 
 
LEIF A. OLSON 
Special Counsel 
 
Counsel for Amicus Curiae the State 
of Texas 
 
 
 
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Certificate of Service 
 
On December 1, 2021, the foregoing motion was served via CM/ECF on all 
registered counsel. 
 
 
 
 
 
 
 
/s/ Ryan S. Baasch                     
 
 
 
 
 
 
 
RYAN S. BAASCH 
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