Huisha-Huisha v. Mayorkas

• Decision Date: 15 November 2022
• Docket Number: Civil Action 21-100 (EGS)
• Parties: NANCY GIMENA HUISHA-HUISHA, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity, Secretary, Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

1

NANCY GIMENA HUISHA-HUISHA, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity, Secretary, Department of Homeland Security, et al., Defendants.

Civil Action No. 21-100 (EGS)

United States District Court, District of Columbia

November 15, 2022

MEMORANDUM OPINION

Emmet G. Sullivan United States District Judge

Plaintiffs-a group of asylum-seeking families who fled to the United States-bring this lawsuit against Alejandro Mayorkas, in his official capacity as Secretary of Homeland Security, and various other federal government officials (“Defendants” or the “government”) for violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.; the Immigration and Nationality Act (“INA”), 8 U.S.C § 1101, et seq.; and the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C § 1231 note; and the Public Health Service Act of 1944, 42 U.S.C § 201, et seq. See generally Second Am. Compl ECF No. 131.^[1] Pending before the Court is Plaintiffs' Motion for Partial Summary Judgment.^[2] See Mot. Partial Summ. J., ECF No. 144. Upon consideration of the motion, the responses and replies thereto, the applicable law, the entire record, and for the reasons stated below, the Court GRANTS Plaintiffs' motion.

I. Background

A. Factual Background

Since 1893, federal law has provided federal officials with the authority to stem the spread of contagious diseases from foreign countries by prohibiting, “in whole or in part, the introduction of persons and property from such countries.” Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449, 452 (“1893 Act”). Under current law:

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 by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

42 U.S.C. § 265 (“Section 265”). In 1966, the Surgeon General's Section 265 authority was transferred to the Department of Health and Human Services (“HHS”), which in turn delegated this authority to the Centers for Disease Control and Prevention (“CDC”) Director. See P.J.E.S. v. Wolf, 502 F.Supp.3d 492, 503 (D.D.C. 2020); 31 Fed.Reg. 8855 (June 25, 1966), 80 Stat. 1610 (1966).

On March 20, 2020, as the COVID-19 virus spread globally, HHS issued an interim final rule pursuant to Section 265 that aimed to “provide[] a procedure for CDC to suspend the introduction of persons from designated countries or places, if required, in the interest of public health.” Interim Final Rule, Control of Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed.Reg. 16559-01, 2020 WL 1330968, (March 24, 2020) (“Interim Final Rule”). Pursuant to the Interim Final Rule, the CDC Director could “suspend the introduction of persons into the United States.” Id. at 16563. The Interim Final Rule stated, in relevant part:

(1) Introduction into the United States of persons from a foreign country (or one or more political subdivisions or regions thereof) or place means the movement of a person from a foreign country (or one or more political subdivisions or regions thereof) or place, or series of foreign countries or places, into the United States so as to bring the person into contact with persons in the United States, or so as to cause the contamination of property in the United States, in a manner that the Director determines to present a risk of transmission of a communicable disease to persons or property, even if the communicable disease has already been introduced, transmitted, or is spreading within the United States;

(2) Serious danger of the introduction of such communicable disease into the United States means the potential for introduction of vectors of the communicable disease into the United States, even if persons or property in the United States are already infected or contaminated with the communicable disease; and

(3) The term “Place” includes any location specified by the Director, including any carrier, as that term is defined in 42 CFR 71.1, whatever the carrier's nationality.

Id. at 16566-67.

The CDC's interim rule went into effect immediately. Id. at 16565. The CDC explained that, pursuant to 5 U.S.C. 553(b)(3)(B) of the APA, HHS had concluded that there was “good cause” to dispense with prior notice and comment. Id. Specifically, the CDC stated that “[g]iven the national emergency caused by COVID-19, it would be impracticable and contrary to the public health- and, by extension, the public interest-to delay these implementing regulations until a full public notice-and-comment process is completed.” Id.

Pursuant to the Interim Final Rule, the CDC Director issued an order suspending for 30 days the introduction of “covered aliens,” which he defined as “persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry [(“POE”)] or Border Patrol station at or near the United States borders with Canada and Mexico.” Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed.Reg. 17060-02, 17061, 2020 WL 1445906 (March 26, 2020) (“March 2020 Order”). The March 2020 Order declared that “[i]t is necessary for the public health to immediately suspend the introduction of covered aliens” and “require[d] the movement of all such aliens to the country from which they entered the United States, or their country of origin, or another location as practicable, as rapidly as possible.” Id. at 17067. The CDC Director then “requested that [the Department of Homeland Security (“DHS”)] implement th[e] [March 2020 Order] because CDC does not have the capability, resources, or personnel needed to do so.” Id. The CDC Director also noted that U.S. Customs and Border Protection (“CBP”), a federal law enforcement agency of DHS, had already “developed an operational plan for implementing the order.” Id.

Soon thereafter, the CBP issued a memorandum on April 2, 2020 establishing its procedures for implementing the March 2020 Order. See Ex. E to Cheung Decl. (“CAPIO Memo”), ECF No. 57-5 at 15. The CAPIO Memo instructed that agents may determine whether individuals are subject to the CDC's order “[b]ased on training, experience, physical observation, technology, questioning and other considerations.” CAPIO Memo, ECF No. 57-5 at 15. If an individual was determined to be subject to the order, they were to be “transported to the nearest POE and immediately returned to Mexico or Canada, depending on their point of transit.” Id. at 17. Those who are “not amenable to immediate expulsion to Mexico or Canada, will be transported to a dedicated facility for limited holding prior to expulsion” to their home country. Id.

On April 22, 2020, the March 2020 Order was extended for an additional 30 days. See Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed.Reg. 22424-01, 2020 WL 1923282 (April 22, 2020) (“April 2020 Order”). The order was then extended again on May 20, 2020 until such time that the CDC Director “determine[s] that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health.” Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed.Reg. 31503-02, 31504, 2020 WL 2619696 (May 26, 2020) (“May 2020 Order”).

On September 11, 2020, the CDC published the final rule. 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. 56424-01, 2020 WL 5439721, (Sept. 11, 2020) (Effective October 13, 2020) (“Final Rule”). The Final Rule “defin[ed] the phrase to ‘[p]rohibit, in whole or in part, the introduction into the United States of persons' to mean ‘to prevent the introduction of persons into the United States by suspending any right to introduce into the United States, physically stopping or restricting movement into the United States, or physically expelling from the United States some or all of the persons.'” Id. at 56445. The CDC Director then replaced the March, April, and May 2020 Orders with a new order on October 13, 2020. Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 85 Fed.Reg. 65806, 65808 (Oct. 16, 2020) (“October 2020 Order”).

In February 2021, the President ordered the HHS Secretary and the CDC Director, in consultation with the DHS Secretary, to “promptly review and determine whether termination, rescission, or modification of the [October order and the September regulation] is necessary and appropriate.” Exec. Order No. 14,010, § 4(ii)(A), 86 Fed.Reg. 8267, 8269 (Feb. 2, 2021). ...