DC Circuit says public health law allows government to deport asylum seekers, but not to countries where they are persecuted or tortured


The United States Court of Appeals for the District of Columbia Circuit recently ruled on a challenge to a policy of deporting asylum seekers at the border based on an arcane public health law. In Huisha-Huisha v. Majorkoras, court partially upheld preliminary injunction against Trump era Politics, which the Biden administration adopted with some modifications. By recognizing sweeping federal power to deport asylum seekers, limiting only where the executive branch can deport them, the court awarded both the administration and the challengers partial victories.

At the start of the coronavirus pandemic, President Trump’s Department of Homeland Security seized on an obscure public health law as a potential source of authority to exclude asylum seekers at the southern border. Title 42, Section 265titled “Suspension of Entry and Importation from Designated Places to Prevent the Spread of Communicable Diseases”, authorizes “the Surgeon General” to prohibit “the introduction of persons and goods” from places where “due to the existence of any communicable disease in a foreign country, there is a serious risk of introduction of such disease into the United States, and that this danger is increased by the introduction of persons or goods from that country [to justify a prohibition on the introduction of persons or property from said places.]“Today, the Centers for Disease Control and Prevention (CDC), rather than the surgeon general, makes that decision.

CDC officials initially opposite using Title 42 to justify the evictions, claiming that the evictions had no public health justification. But the Department of Homeland Security overcame this resistance. On March 20, 2020, the Department of Health and Human Services released a final rule authorizing the CDC director to prohibit the entry of persons “who would otherwise be brought into an assembly setting in any land or coastal territory [POE] or border patrol post[.]Although Section 265 does not distinguish between citizens and non-citizens, the CDC’s order applies primarily to non-citizens without entry documents. It explicitly exempts U.S. citizens, residents legal staff and others.

A significant portion of non-citizens seeking to enter the United States without valid entry documents typically seek asylum. Researchers have long observed that asylum seekers lack of entry documents because U.S. law does not provide for asylum visa or any entry document for the purpose of applying for humanitarian protection. But as eminent scholars of refugee law argued in an amicus brief in Huisha-Huisha, Congress has already provided for the summary removal of non-citizens without travel documents through a process known as “expedited removal”. The only group of these non-citizens exempt from expedited removal are those who express a “credible fear” of returning to their country of origin. These non-nationals are instead selected to be eligible for humanitarian protection. As a result, the CDC order appeared to close this remaining gap, leading some commentators decry Title 42 policy as a “denial of asylum”.

Much to the disappointment of asylum seekers and their defenders and allies, the Biden administration chose to continue the Title 42 policy, despite the availability of coronavirus vaccines and testing, and the fact that the CDC order covers only 0.1% of cross-border commuters. Last summer, however, the CDC amended the unaccompanied minor exemption policy.

In HuishaHuisha, the plaintiffs are six families subject to the CDC order challenging it on behalf of a class of families in the same situation. Applicants disputed the CDC’s order as a violation of statutory and administrative law. Specifically, the plaintiffs claimed that section 265 authorizes measures such as quarantines rather than summary expulsions of non-citizens without the possibility of claiming humanitarian protection. The plaintiffs further claimed that the CDC order violates the statutory right of non-citizens to seek asylum and the statutory prohibition against deportation to countries where non-citizens are at risk of persecution or torture. Finally, the plaintiffs claimed that the CDC’s order was “arbitrary and capricious” under the Administrative Procedure Act (APA) because the order lacked an adequate public health rationale. The plaintiffs sought an injunction. The district court agreed that Section 265 does not authorize the federal government to deport asylum seekers. He granted a preliminary injunction.

The DC Circuit upheld this decision in part. Contrary to the district court’s finding, however, the DC Circuit ruled that Section 265 likely authorized evictions, despite the lack of any express grant of that power. The court first found that Section 265 likely applied not only to carriers, like ships during the cholera era, but also to people who “show up” in the country.

The court then offered a new view of the source of the government’s claimed power to deport. Instead of situating it in the terms of section 265, the court read that provision alongside a arrangement of the Immigration and Nationality Act (INA) which makes non-nationals deportable if they are present “in violation of [the INA] or any other law of the United States. The court held that a person who “enters” the United States (in the language of Section 265) without valid entry documents “is present in violation” of the CDC order. But the INA provision they rely on applies only to people who have already been admitted, unlike complainants who are “arriving” rather than “admitted” non-nationals.

The tribunal, however, sided with the plaintiffs in determining that refugee law likely limits this power. Specifically, 8 USC § 1231(b)(3)(A)which codifies U.S. obligations under the Refugee Convention, prohibits the federal government from deporting non-citizens to places where they would be at risk of torture or persecution on the basis of characteristics such as race or religion. This provision imposes a mandatory obligation preventing the executive from deporting non-nationals to such places, not merely a discretionary power to suspend deportation.

The DC Circuit thus awarded both sides a partial victory, finding the fair factors considered in a preliminary injunction to favor plaintiffs and concluding that the district court had not abused its discretion.

As proceedings continue in district court, a key question remains whether the CDC’s order violates non-citizen law right to seek asylum. Under 8 USC § 1158(a), Congress provides that any noncitizen, regardless of status or mode of entry, is eligible to seek asylum. The DC Circuit questioned whether the CDC order violated this provision. The district court could also question whether the CDC’s order is “arbitrary and capricious” in violation of the APA, given that plaintiffs claim there is no good faith public health justification. .

The DC Circuit invited the District Court to consider whether the Executive has inherent executive power to evict non-citizens outside the terms of Section 265. If the District Court finds an opportunity to consider the matter, much less to announce and develop such a power in this case, remains to be seen.

In the days following the Huisha-Huisha decision has been made, the Biden administration would have started considering cancellation of the policy. Much more 1 million evictions later, such a decision is widely seen as long overdue.


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