27 F.4th 718
D.C. Cir.2022Background
- During the COVID-19 public-health emergency, HHS/CDC invoked 42 U.S.C. § 265 and issued orders (the §265 Order) suspending the “introduction” of certain "covered aliens" entering by land from Mexico or Canada; covered aliens generally lack valid travel documents and were subject to immediate expulsion.
- Plaintiffs are six families (certified as a class) covered by the §265 Order who sued to stop expulsions and to preserve access to asylum, withholding of removal, and Convention Against Torture (CAT) protections.
- The district court granted a preliminary injunction barring expulsions under the §265 Order; the government appealed and the D.C. Circuit stayed that injunction pending appeal.
- The D.C. Circuit panel held at the preliminary-injunction stage that §265 can reach individuals (not just carriers) and that the Executive may expel aliens who violate a valid §265 order (in conjunction with INA removal authority).
- The court also held plaintiffs likely to succeed on a narrower claim: 8 U.S.C. §1231(b)(3)(A) (withholding) and CAT protections limit where the Executive may expel aliens — the Executive cannot remove covered aliens to countries where they would likely be persecuted or tortured — and affirmed the district court’s preliminary injunction in part (preventing expulsions to persecutory/torturing countries) and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §265: does “introduction” cover individuals or only third‑party carriers? | §265 applies only to third parties (common carriers); not to individuals who enter. | §265’s phrase “introduction of persons or property” naturally includes individuals who introduce themselves; historical usage supports that reading. | Held: §265 plausibly covers individuals who introduce themselves; statute reasonably read to include both carriers and entrants. |
| Authority to expel under §265: does §265 (or related law) authorize immediate expulsions? | §265 does not authorize expulsions; district court erred to infer removal power. | §265 declares introduction unlawful and, combined with INA removal provision (8 U.S.C. §1227(a)(1)(B)), supports expulsion of those present in violation. | Held: Executive may expel covered aliens for violating a valid §265 order (as applied with §1227). |
| Conflict with asylum statute §1158: does §1158(a)(1) bar summary expulsions under §265? | §1158 grants any alien physically present the right to apply for asylum before removal; §265 cannot displace that mandatory procedure. | Asylum is discretionary; §265 reflects an executive exercise of that discretion in public‑health emergencies and can foreclose asylum procedures for the specific covered group. | Held: Displacement argument is close but plaintiffs have not shown a likelihood of success at this stage; §265 can be harmonized with §1158 because asylum is discretionary. |
| Limits on removal destinations: do §1231(b)(3)(A) and CAT limit where §265 expulsions may send aliens? | §265 cannot override §1231(b)(3)(A) or CAT; those provisions categorically prohibit removal to persecution/torture destinations. | §265’s reference to “suspension of the right to introduce” permits suspension of other statutory protections. | Held: Plaintiffs likely to succeed on claim that §1231(b)(3)(A) and CAT constrain where aliens can be expelled; executive cannot remove covered aliens to countries where they would likely be persecuted or tortured. |
Key Cases Cited
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (framework for evaluating executive power vis-à-vis congressional authorization)
- DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) (recent Supreme Court treatment of rights of aliens detained soon after unlawful entry)
- I.N.S. v. Cardoza‑Fonseca, 480 U.S. 421 (1987) (distinguishing asylum (discretionary) from withholding (mandatory))
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (CAT relief is mandatory and prohibits removal to countries where torture is likely)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (statutory and constitutional limits on detention and discussion of "effected an entry")
- U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (Executive exclusion power as part of foreign-affairs authority)
- Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) (canon to harmonize statutes administered by different agencies; limits to deference)
- Nken v. Holder, 556 U.S. 418 (2009) (standards for stay and consideration of irreparable harm from removal)