DC Circuit Issues Mixed Decision in Title 42 “Public Health” Expulsion Case

Friday saw the DC Circuit’s US Court of Appeals issue its decision. Huisha-Huisha v. MayorkasThe Title 42 case of public health expulsion. The Centers for Disease Control (CDC), as I have previously explained, issued an order in March 2020 directing the expulsion of all immigrants from Canada and Mexico. It also required the removal of those who were legally entitled to asylum applications in the US. Although the DC Circuit largely upheld this policy, it placed significant restrictions on where immigrants can be expelled. The DC Circuit also stated that expulsions are unlikely to serve any useful purpose and can even lead to expelled migrants being tortured, raped, or death.

Trump Administration claimed that the order to expel was needed in order to stop the spread of Covid-19 virus within the US. Although they exempt unaccompanied minors, the Biden administration has maintained this Trump policy.

The ACLU led a group of immigration rights organizations that filed a lawsuit for the benefit of the migrants expelled under the order. A federal district court ruled in favor of the plaintiffs on September 11. Because of the large number of immigrants expelled from the country under the CDC orders (more than 1,000,000), as well as the wider implications of the decision for executive power over immigration policy, this case is extremely important. In an amicus brief, I explained that CDC could have almost unlimited power to expulse any and all migrants, regardless of whether the government won the case.

The US Court of Appeals, DC Circuit made a split decision last week. The court ruled that the CDC did have the authority to expel migrants, but not  to countries where they are likely to face torture or be subject persecution on account of their “Race, religion, nationality or membership in a specific social group” Group, or political opinion.”

Trump and Biden cited 42 USC Section 265, which grants the CDC Director certain powers.

If the SurgeonGeneral determines there is a serious risk of introducing a communicable disease from a foreign nation, or that the danger has been so increased that it is necessary to suspend the right to bring such people or property into the United States in the national interest of public health, then the SurgeonGeneral shall, according to regulations approved by President, have the authority to ban, whole or part, any person or property being brought from such places or countries as he will designate to avoid such danger and for as long as is needed.

The DC Circuit rejected the plaintiffs’ argument and the district court’s  conclusion that the power to prevent “introduction” of persons does not include the power to expel those already in the United States. Although I believe this logic is valid, it overlooks the fact that Section 265 does not give the CDC power to prohibit “introduction”. This is only if the CDC believes doing so would be necessary to avoid the “introduction” of a particular disease. It is not possible to prevent the introduction of a disease which is widely known in the US. This is what Covid-19 did for nearly the entirety of the time the CDC order is in effect.

The CDC’s ability to expel and block migrants at any given time might help reduce disease spread – even if it is already very widespread in the US. This would give the agency broad authority over immigration policy and border control, which could lead to serious constitutional issues. My brief explains that the Title 42 expulsion policy shares many similarities with the CDC eviction ban, which was invalidated by the Supreme Court and other lower courts because it broke major question and nondelegation restrictions.

Although Title 42 expulsions are still valid in some respects, the DC Circuit has effectively neutralized them in a significant way by prohibiting expulsions to any country where migrants could face torture or persecution.

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 WhichTo expel aliens. That is also covered in another statute. Title 8 Section 1231 lists many possible destinations. 8 U.S.C. § 1231(b)(1)-(b)(2). You also read that an Executive cannot deport aliens from a country where their life or freedom is threatened by their race, religion, nationality, membership of a certain social group, political opinions, or gender. Id. § 1231(b)(3)(A). And it prohibits the Executive from expelling aliens to a country where they will likely be tortured….

Consider first what § 1231(b)(3)(A) does not say. This does not prevent the Executive from exiling aliens as soon as possible. And it does not provide them with the lawful status that § 265 forecloses. So applying § 1231(b)(3)(A) and § 265 to an alien would not make that alien’s presence both legal and illegal at the same time.

Now consider what § 265 does not say. There is nothing in SS 265 that explains where an Executive might expel aliens. Neither does § 1227(a)(1)(B). Section § 1231(b) governs that aspect of aliens’ expulsions. 8. U.S.C. § 1231(b) (“Countries to which aliens may be removed”). In particular, § 1231(b)(3)(A) says the Executive cannot expel them to a place where they will likely be persecuted.

Both statutes can be implemented as a result. Because we are able, we have to. Check out these other sites. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018). That leaves the Executive with the power to expel the Plaintiffs (per § 265) to any place where the Plaintiffs will not be persecuted (per § 1231(b)(3)(A)).

Closely related to § 1231(b)(3)(A), the Convention Against Torture provides aliens with protections that Congress codified in a note to § 1231. The Executive can’t expel an alien from a country where he “demonstrates that he would be tortured.” Nasrallah v. Barr, 140 S. Ct. 1683, 1687 (2020).
Like § 1231(b)(3)(A), those protections are mandatory. Id. Like § 1231(b)(3)(A), they limit only where aliens can be expelled… And like § 1231(b)(3)(A), they grant aliens no lawful status in the United States.

Our earlier analysis of § 1231(b)(3)(A) thus applies equally to the protections that Congress has enacted to implement the Convention Against Torture.

In affirming the injunction of the district court against exiling the plaintiffs to other countries, the Court continues. The Court affirms the district court injunction against expelling the plaintiffs to countries where they might be persecuted or tortured.

Practically speaking, this means that many, if not all, of those currently being expelled under Title 42 cannot be expelled right away. I believe this is why ACLU, and other organizations representing plaintiffs, have declared the DC Circuit decision a triumph, despite the fact that many of their main arguments were rejected by the court.

Title 42’s expulsion system has not been completely eliminated. However, it was weakened. However, relaxatoin is only limited. DC Circuit’s opinion points out that even though they are protected against deportation, people who have been granted asylum status cannot apply for permanent legal status or petition for it.

It somewhat alleviates major issues and nondelegation concerns with the government position. The CDC can no longer claim near-total authority to deport and bar immigrants at will. However, it retains large authority through a broad statutory delegation. It’s not clear, however that DC Circuit’s case handling approach completely avoids this problem.

DC Circuit has remanded this case to the district court for its final disposition. It is clear from the DC Circuit which side the appellate panel wishes the district court take regarding most key issues, including whether Section 265 allows for expulsion (yes) or whether it has limits to that power (yes). The DC Circuit didn’t address the issue of whether the CDC order was “arbitrary and capricious” and thereby violates the Administrative Procedure Act. This is a question that the court also did not resolve.

Plaintiffs usually find it difficult to comply with the “arbitrary and capricious standard”. However, there is evidence that DC Circuit judges think this case may have the potential to succeed. It was pointed out that “…”[t]he CDC’s § 265 order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” and casts doubt on its usefulness in stopping the spread of Covid. It further indicates that “we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. There aren’t any. The court also wrote that, “from a general-health perspective and based upon the small record available, it is far from clear that CDC’s orders serve any purpose.”

In fact, CDC’s public health specialists believed that expulsions under Title 42 have very few, if any, public health benefits, which was highlighted in our amicus short. The expulsion policy has been deemed worthless by the CDC, Dr. Fauci and other experts from administration. Trump and Biden maintained and initiated the policy for political and health reasons (an anti-immigration agenda, the need to avoid disorder at the south border and a pro-immigration agenda).

Even if the government doesn’t provide any evidence that its expulsion policy is beneficial to public health, it may still be sufficient for the court to declare that it’s “arbitrary and capricious”. The obvious fact that Title 42 expulsions did not prevent Covid’s original and subsequent variants of Covid from establishing themselves in the United States is evident. They arrived without any delay.

The Texas federal district court has decided that the Biden administration’s exclusion for unaccompanied minors, rather than Title 42’s underlying policy, is “arbitrary & capricious”. Because of their vulnerability, there are non-arbitrary and obvious reasons for avoiding expulsions. I don’t think this decision will be appealable. In the future, I’ll have much more to share about the ruling of the district court.

The DC Circuit could have ended Title 42 expulsions completely. If the District Court concludes the entire thing to be “arbitrary and capricious”, and the ruling is upheld on appeal, that could happen.

However, at the moment the policy will remain in weak form and legal action over it will be ongoing.

The legal issues aside, it would be a good idea for the Biden Administration to end this incredibly cruel policy that has already caused havoc in the lives of thousands and brought no tangible benefit. DC Circuit noted that government “admits” to being aware of. . . the quite horrific circumstances that non-citizens are in in some of the countries that are at issue here….”…And those who are covered aliens have been made to walk across the street into such places. The record contains horrifying evidence of torture, death and rape.