Unopposed Motion to Extend Time for Issuance of Mandate — Huisha-Huisha v. Mayorkas

Summary

Defendants-Appellants in Huisha-Huisha v. Mayorkas, No. 21-5200, move the United States Court of Appeals for the District of Columbia Circuit to extend the time for issuance of the mandate to May 23, 2022. Absent the extension, the motion states, the mandate would ordinarily issue on April 25, 2022; Plaintiffs-Appellees take no position. It states that on April 1, 2022 the CDC issued an order terminating its prior Title 42 orders, to be implemented on May 23, 2022, and that issuing the mandate sooner would require the government to run two separate processes at once. A footnote states that the government will not file a petition for rehearing. The signature block names Brian M. Boynton, Sharon Swingle, Joshua Waldman and Ashley Cheung.

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[ORAL ARGUMENT HELD 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, 
v. 
 
ALEJANDRO MAYORKAS,   
Secretary of Homeland Security, et al., 
 
Defendants-Appellants. 
 
No. 21-5200 
 
UNOPPOSED MOTION TO EXTEND TIME FOR 
ISSUANCE OF THE MANDATE TO MAY 23, 2022 
For the reasons discussed below, Defendants-Appellants 
respectfully move this Court to extend the time for issuance of the 
mandate in this case to May 23, 2022.  Absent the requested extension, 
the mandate would ordinarily issue on April 25, 2022.  Plaintiffs-
Appellees take no position on this motion. 
USCA Case #21-5200      Document #1943356            Filed: 04/15/2022      Page 1 of 8

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STATEMENT 
In March 2020, the U.S. Centers for Disease Control and 
Prevention (CDC) issued an interim final rule and an order prohibiting 
the introduction of certain noncitizens into the United States, pursuant 
to its authority under 42 U.S.C. § 265.  CDC issued a final rule in 
September 2020, and multiple subsequent orders that likewise 
prohibited the introduction of certain noncitizens into the United 
States, subject to recurring 30 or 60 day reviews.   
The district court entered a classwide preliminary injunction on 
September 16, 2021, prohibiting the government from expelling 
noncitizen family units from the United States under the CDC’s Orders.  
This Court stayed the preliminary injunction pending appeal. 
On March 4, 2022, this Court affirmed the preliminary injunction 
in part.  This Court agreed with the government that Section 265 likely 
grants the Executive authority to prohibit noncitizen family units from 
entering the United States during a public-health emergency and 
authorizes the Executive to expel noncitizen family units who violate 
such a prohibition, but the Court held that the Executive may only 
expel them to places where they will not be persecuted or tortured.  The 
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Court ordered the Clerk to withhold issuance of the mandate until 
seven days after the time for filing a petition for rehearing expires or 
after disposition of any timely petition for rehearing, pursuant to 
Federal Rule of Appellate Procedure 41(b) and D.C. Circuit Rule 41.  
Absent a timely petition for rehearing, the mandate in this case would 
issue on April 25, 2022.1   
On April 1, 2022, CDC issued an order terminating all its prior 
orders prohibiting the introduction of certain noncitizens into the 
United States pursuant to its authority under 42 U.S.C. § 265 and 42 
C.F.R. § 71.40.  See Centers for Disease Control and Prevention, Public 
Health Determination and Order Regarding Suspending the Right To 
Introduce Certain Persons From Countries Where a Quarantinable 
Communicable Disease Exists, 87 Fed. Reg. 19,941 (Apr. 6, 2022).  The 
termination will be implemented on May 23, 2022.  See id.   
 
 
                                                           
1 The government has determined that it will not file a petition for 
rehearing or rehearing en banc in this case. 
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ARGUMENT 
The government respectfully requests that this Court extend the 
time for issuance of the mandate in this case until May 23, 2022, the 
date of implementation for CDC’s termination of its prior orders. 
If the mandate in this case issues on April 25, 2022, the 
government will be required to implement as of that date screening 
procedures for members of family units encountered in the United 
States, so that they are not expelled under the CDC’s Title 42 Order to 
a place where they will be persecuted or tortured.  Those procedures 
would be interim procedures applicable only to members of family units, 
who are the only noncitizens subject to the CDC’s Title 42 Orders 
subject to the preliminary injunction, as modified by this Court, and 
only for a short period of time. 
Now that the CDC has issued a new order that terminates its 
prior orders with an implementation date of May 23, 2022, however, the 
Department of Homeland Security is working, in coordination with the 
CDC, to ensure that resumption of the processing of arriving 
noncitizens encountered in the United States under Title 8 can be 
implemented for all noncitizens consistent with public health mitigation 
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tools to combat remaining risks from COVID-19.  See 87 Fed. Reg. at 
19,955-19,956. 
In the absence of a stay of the mandate, the government would be 
required to implement these two separate processes simultaneously—
one process to comply with the injunction partially affirmed by this 
Court, under which the government must screen noncitizens in family 
units to determine if they will likely be persecuted or tortured in the 
place to which they would be expelled; and a separate process to 
implement the termination of all prior Title 42 orders.  Issuance of the 
mandate would divert scarce government resources to implement this 
Court’s modified injunction for only a short period of time, and thus 
impede the government’s ability to implement the resumption of Title 8 
processing in an orderly and safe manner consistent with public-health 
needs.   
Under Federal Rule of Appellate Procedures 41(b), this Court may 
“extend the time” for issuance of the mandate beyond the date on which 
the mandate would otherwise issue, i.e., April 25, 2022.  The 
government respectfully requests that this Court extend the time for 
issuance of the mandate to May 23, 2022. 
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Plaintiffs-Appellants take no position on this motion.  
CONCLUSION 
For the foregoing reasons, this Court should extend the time for 
issuance of the mandate to May 23, 2022. 
 
 
Respectfully submitted, 
BRIAN M. BOYNTON 
Principal Deputy Assistant 
Attorney General 
 
SHARON SWINGLE 
 
s/ Sharon Swingle 
 
JOSHUA WALDMAN 
ASHLEY CHEUNG 
Attorneys 
Civil Division, Appellate Staff 
U.S. Department of Justice 
950 Pennsylvania Ave., N.W. 
Rm. 7250 
Washington, D.C. 20530 
(202) 353-2689 
Sharon.Swingle@usdoj.gov 
 
 
USCA Case #21-5200      Document #1943356            Filed: 04/15/2022      Page 6 of 8

 
 
 
 
CERTIFICATE OF COMPLIANCE 
I hereby certify that this response complies with the word limit of 
Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 819 
words, excluding the parts of the response exempted by Federal Rule of 
Appellate Procedure 32(f).  I further certify that this response complies 
with the typeface and type-style requirements of Federal Rules of 
Appellate Procedure 27(d)(1)(E) and 32(a)(5)-(6) because it has been 
prepared using Microsoft Word 2013 in a proportionally spaced 
typeface, 14-point Century Schoolbook font. 
 
s/ Sharon Swingle 
 
 
 
 
 
 
  SHARON SWINGLE 
 
 
 
 
 
 
 
 
 
 
USCA Case #21-5200      Document #1943356            Filed: 04/15/2022      Page 7 of 8

 
 
 
 
CERTIFICATE OF SERVICE 
I hereby certify that on April 15, 2022, I filed and served the 
foregoing with the Clerk of the Court by causing a copy to be 
electronically filed via the appellate CM/ECF system.  I also hereby 
certify that the participants in the case are registered CM/ECF users 
and will be served via the CM/ECF system. 
 
 
s/ Sharon Swingle 
 
 
 
 
 
 
 
   SHARON SWINGLE 
USCA Case #21-5200      Document #1943356            Filed: 04/15/2022      Page 8 of 8

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