Huisha-Huisha v. Mayorkas

• Decision Date: 04 March 2022
• Docket Number: No. 21-5200,21-5200
• Parties: Nancy Gimena HUISHA-HUISHA, and Her Minor Child, et al., Appellees v. Alejandro N. MAYORKAS, Secretary of Homeland Security, in His Official Capacity, et al., Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

27 F.4th 718

Nancy Gimena HUISHA-HUISHA, and Her Minor Child, et al., Appellees

v.Alejandro N. MAYORKAS, Secretary of Homeland Security, in His Official Capacity, et al., Appellants

No. 21-5200

United States Court of Appeals, District of Columbia Circuit.

Argued January 19, 2022

Decided March 4, 2022

Sharon Swingle, Attorney, U.S. Department of Justice, argued the cause for appellants. With her on the briefs were Brian M. Boynton, Acting Assistant Attorney General, and Joshua Waldman and Ashley A. Cheung, Attorneys.

John M. Miano was on the brief for amicus curiae Immigration Reform Law Institute in support of appellants.

Judd E. Stone, II, Solicitor General, Office of the Attorney General for the State of Texas, Ryan S. Baasch, Assistant Solicitor General, and Leif A. Olson, Special Counsel, were on the brief for amicus curiae The State of Texas in support of appellants.

Lee Gelernt argued the cause for appellees. With him on the brief were Stephen B. Kang, Cody Wofsy, Omar Jadwat, David Chen, Blaine Bookey, Karen Musalo, Robert Silverman, Scott Michelman, Arthur B. Spitzer, and Tamara F. Goodlette.

Noah A. Levine and Daniel S. Volchok were on the brief for amici curiae Scholars of Refugee and Immigration Law in support of appellees.

Ilya Shapiro and Ilya Somin were on the brief for amicus curiae The Cato Institute in support of appellees.

Kathryn Austin, Geroline A. Castillo, Mariko Hirose, and Deepa Alagesan were on the brief for amicus curiae The International Refugee Assistance Project, Inc. in support of appellees.

Raymond P. Tolentino and Mahrah M. Taufique were on the brief for amici curiae Historians in support of appellees.

Dimitri D. Portnoi was on the brief for amici curiae 14 Legal Service and Advocacy Organizations in support of appellees.

Vincent Levy was on the brief for amicus curiae United Nations High Commissioner for Refugees in support of appellees.

Kathleen R. Hartnett and Julie Veroff were on the brief for amici curiae HIAS, et al. in support of appellees.

Charles Tucker, Jr. was on the brief for amici curiae The National Haitian American Elected Officials Network, et al. in support of appellees.

Before: Srinivasan, Chief Judge, Wilkins and Walker, Circuit Judges.

Walker, Circuit Judge:

In a public-health emergency, 42 U.S.C. § 265 authorizes the Executive Branch to "prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate."

The Executive has exercised that power during the COVID-19 pandemic. It has issued a series of orders prohibiting "covered aliens" from entering the United States by land from Mexico or Canada. Those covered aliens, as a general matter, lack valid travel documents. The orders subject them to immediate expulsion from the United States.

The Plaintiffs are a group of covered aliens. They argue that expulsions under § 265 are illegal. We disagree, at least at this stage of the case. We find it likely that aliens covered by a valid § 265 order have no right to be in the United States, and the Executive can immediately expel them.

But § 265 does not tell the Executive where to expel aliens. Another statute does that. Section 1231 of Title 8 lists several possible destinations. 8 U.S.C. § 1231(b)(1) - (b)(2). It adds that the Executive cannot remove aliens to a country where their "life or freedom would be threatened" on account of their "race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1231(b)(3)(A). And it prohibits the Executive from expelling aliens to a country where they will likely be tortured. Id. § 1231 note ("United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture"); see also 8 C.F.R. § 208.16(c) ; 28 C.F.R. § 200.1.

Before proceeding, we must make clear two things about § 1231. First, it does not give aliens a path to asylum or other legal status in the United States. For aliens covered by a valid § 265 order, the Executive has eliminated that path, and § 1231 does not restore it. Second, § 1231 does not stop the Executive from detaining aliens, within constitutional limits, until they can be expelled to an appropriate country. 8 U.S.C. § 1231 note ("Nothing in this section shall be construed as limiting the authority of the Attorney General to detain any person under any provision of law"); see also Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (discussing constitutional limits).

So in short, the Executive can expel the Plaintiffs from the country. But it cannot expel them to places where they will be persecuted or tortured.

To explain why — and why the Plaintiffs are entitled to a preliminary injunction narrower than the one they want — our opinion includes five parts:

• We begin with a brief history of the nation's immigration laws (Part I).

• Next we describe the Executive's original § 265 order from March 2020, its subsequent § 265 orders, and the Plaintiffs’ legal challenge to those orders (Part II).

• We then turn to the Plaintiffs’ likelihood of success on the merits and reject their arguments that § 265 covers only transportation providers such as common carriers; that the Executive has no power to expel aliens for violating a valid § 265 order; and that they are entitled to apply for asylum (Part III).

• After that, we explain why the Plaintiffs are likely to succeed on the merits of their narrow argument that under § 1231 the Executive cannot expel them to places where they face persecution or torture (Part IV).

• Finally, we conclude the District Court did not abuse its discretion in finding that the equities require a preliminary injunction to stop the Executive from expelling the Plaintiffs to places where they will be persecuted or tortured (Part V).

I

A

"The executive Power" of the United States is vested in the President. U.S. Constitution art. II, § 1, cl. 1. Inherent in that executive power is the President's "vast share of responsibility for the conduct of our foreign relations." American Insurance Association v. Garamendi , 539 U.S. 396, 414, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 610-11, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring)). And that "inherent executive power" to govern foreign relations includes considerable authority over immigration. U.S. ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950).

Congress too has "broad power over naturalization and immigration." Demore v. Kim , 538 U.S. 510, 521, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (quoting Mathews v. Diaz , 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ). To give just one example that will be important to our later analysis, Congress has prohibited the Executive from removing aliens to countries where they will be persecuted. 8 U.S.C. § 1231(b)(3)(A).

Although Congress has sometimes limited executive discretion in such ways, at other times it has granted the Executive express powers over immigration. As early as 1798, Congress provided that the Executive could expel certain aliens. An Act Concerning Aliens, § 1, 1 Stat. 570, 570-71 (1798); see also Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1229-30, 200 L.Ed.2d 549 (2018) (Gorsuch, J., concurring in part and concurring in the judgment) (the power was controversial, went unused, and expired in 1800).

Congress intervened again in the last quarter of the nineteenth century. See Kleindienst v. Mandel , 408 U.S. 753, 761, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). It authorized the Executive to exclude aliens with "a loathsome or a dangerous contagious disease." Act of March 3, 1891, ch. 551, § 1, 26 Stat. 1084, 1084. It also provided that any alien who entered the country in violation of the Executive's prohibitions "may be returned" within one year of unlawfully entering the United States. Id. § 11, 26 Stat. at 1086. And it continued to grant the Executive such authority for years to come. Act of February 5, 1917, ch. 29, § 18, 39 Stat. 874, 887 ("all aliens brought to this country in violation of law shall be immediately sent back").

In 1893, Congress passed the precursor to the statute at issue in this case. Act of Feb. 15, 1893, ch. 114, § 7, 27 Stat. 449, 452. That year, cholera

was overrunning much of the world. See Cholera Through History , Britannica, https://www.britannica.com/science/cholera /Cholera-through-history (last visited Feb. 17, 2022). In response, Congress authorized the Executive to determine that individuals from certain countries should be excluded from the United States during public-health emergencies.

Despite the cholera

pandemic, the Executive did not issue a prohibition under that law until 1929. In response to a meningitis outbreak that year, the Executive declared that the "continued arrival of vessels" carrying meningitis-infected passengers had "overtaxed the combined available quarantine facilities of federal and local health authorities." Exec. Order No. 5143 (June 21, 1929), App. 201. It therefore ordered that "no persons may be introduced directly or indirectly by transshipment or otherwise into the United States" from China or the Philippines "for such period of time as may be deemed necessary." Id.

Fifteen years later, the 1893 statute was recodified at 42 U.S.C. § 265, given a new title, and slightly edited. It now reads in full:

Suspension of entries and imports from designated places to prevent spread of communicable diseases

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General , in accordance with regulations approved

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