A PUBLIC HEALTH EMERGENCY SHOULD NOT BE ABUSED: HUISHA-HUISHA v. ALEJANDRO MAYORKAS SHOWS THE ILLEGALITY OF TITLE 42 POLICY
By: Xiaoyuan Zhou, Volume 106 Staff Member
On January 19, 2022, the Court of Appeals for the D.C. Circuit heard oral argument in Nancy Huisha-Huisha v. Alejandro Mayorkas. The case is about whether the public health laws under 42 U.S.C. § 265, often referred to as the “Title 42 Policy,” grant the Center of Disease Control (“CDC”) the power to expel adults, children, and families seeking asylum, and deny them any chance to present their case to an immigration judge. This is the most recent case in the Title 42 saga, with prior ones either closed or still on appeal.
Title 42 policy was first pushed for in 2019 by the former senior White House policy advisor Stephen Miller, but the first several attempts failed. Facing the Coronavirus, the Trump Administration decided to invoke the Title 42 expulsion order to close the border to all, “including asylum seekers . . . claiming that the processing of asylum seekers would be a danger to U.S. public health.”
The CDC Director issued the March 2020 Order to immediately “suspend the introduction of covered aliens” and “require the movement of all such aliens to the country from which they entered the United States, or their country of origin . . . as rapidly as possible.” The March 2020 Order has been extended several times until the most recent August 2021 Order, which claims to protect safety at ports of entry (POE) and destination communities in the United States during the COVID-19 public health emergency. Notably, the August 2021 Order, which supersedes prior Orders, announced an exception for unaccompanied noncitizen children, whose right of introduction into the United States was not suspended.
The Biden Administration continues to embrace and defend the controversial Title 42 policy. The expulsion of Haitian migrants sheltered at the Del Rio port of entry on September 21, 2021, rekindled the debate. Other asylum seekers from Mexico have also been expelled under Title 42. Groups including the American Civil Liberties Union challenged the Title 42 expulsions in federal district court. On September 16, 2021, the District Court of Columbia certified a class action and issued a preliminary injunction halting the government’s expulsion policy. The Biden Administration promptly defended the policy by appealing to the Court of Appeals for the D.C. Circuit, which granted the government’s motion for a stay pending appeal on September 30, 2021, allowing the Administration to continue using Title 42 to expel migrants crossing the border, without providing them with the right to seek asylum. The D.C. Circuit should grant a permanent injunction because of (1) the Title 8 challenge; (2) the groundless nature of Title 42 policy; and (3) Title 42’s violation of international laws and treaties.
I. PLAINTIFFS’ TITLE 8 CHALLENGE
The Plaintiffs in this case first argued that Title 42 did not authorize expulsions. The Supreme Court in Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs. stated that the regulatory authority under Title 42 had generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease. The Supreme Court was also skeptical of the expansive authority under Section 361(b) of the Public Health Service Act, holding that the ultimate authorization of CDC’s issuance of a nationwide eviction moratorium should be in Congress’ hands.
The Plaintiffs asserted that there was nothing in Section 265’s text granting CDC the power to physically remove people from the country, unlike immigration statutes, which explicitly provide the authority to physically expel people, whether as a permanent “removal” or temporary “return.” The Supreme Court also emphasized that such a power to physically remove a person “must be affirmatively granted” by Congress.
Second, the Plaintiffs argued that Congress did not intend for Title 42 to override other laws, specifically the immigration statutes under Title 8. Nothing in the legislative history indicates an intention to override other laws, much less a clear and manifest intention. Under Title 8, Congress has expressly provided that “a communicable disease of public health significance” can be the basis for deportation or denying admission. Congress continuously amended the deportation statutes, yet it has never made communicable disease a basis for denying noncitizens the right to seek asylum protection.
Thus, the Plaintiffs argued that Title 42 and the humanitarian statutes (which indicate mainly Title 8) should be read together, and that Title 8 should narrow whatever expulsion power Title 42 might otherwise be construed to authorize.
II. TITLE 42 POLICY IS LIKELY GROUNDLESS
The most recent Order states that the risk of COVID-19 spreading is particularly grave “among those who are unvaccinated . . . .” However, even fully vaccinated migrants are denied the right to apply for asylum under the Title 42 Process. Additionally, the CDC’s own declaration that the asylum seekers actually could undergo the proceeding safely with the current prevention tools available to the Department of Homeland Security (“DHS”) makes the Title 42 Proceedings and CDC’s Orders even more baseless. As numerous public health experts have explained, “basic measures, including social distancing, face masks, and gloves, would allow the government to safely process asylum seekers.”
The rationale behind the Order is also problematic. The Order emphasizes that noncitizens who seek to enter the United States residing and gathering in close proximity is essentially the basis against which the Order was promulgated and renewed. If the focal of the Order is on the “congregate settings” in the deportation port of entry, then the most recent Order excluding the unaccompanied minors becomes self-contradictory because “both unaccompanied children and family units are typically processed in the same congregate facilities.”
III. INTERNATIONAL LAW VIOLATIONS OF TITLE 42
Harold Koh, former Legal Adviser of the Department of State, criticized the Title 42 policy as violating both U.S. and international law. Specifically, he pointed out that Title 42 violated U.S. Non-Refoulement Obligations under the Convention Against Torture (“CAT”) and the 1951 Refugee Convention. Article 3 of the CAT prohibits the “State Party from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Article 33 of the 1951 Refugee Convention prohibits Contracting States from expelling a refugee “in any manner . . . where his life or freedom would be threatened . . . .”
International Health Regulation (“IHR”) outlines legal obligations Member States must fulfill when enacting emergency measures in response to international spread of disease. To name some, Article 42 of IHR mandates non-discriminatory treatment. Article 43 of IHR allows states to take health measures additional to those recommended by the World Health Regulation (“WHO”), as long as they: 1) notify the WHO; and 2) provide a scientific basis.
It is highly likely that Title 42 violates Article 42 of IHR because all the asylum-seekers who have been expelled are essentially treated differently from other border-crossing passengers who are U.S. citizens. The Article 43 violation is even more conspicuous since the CDC has never given out sufficient “scientific basis” to expel asylum-seekers. Multiple public health experts, including Dr. Fauci have publicly criticized Title 42 for lacking a scientific basis, in violation of IHR Article 43. Additionally, Dr. Fauci has expressly stated that immigrants are “absolutely not” a “major reason why COVID-19 is spreading in the U.S.,” and “expelling [immigrants] is not the solution.”
This Post maintains that the D.C. Circuit Court should confirm the lower court’s decision and grant a permanent injunction in favor of the Plaintiffs. This Post also joins the United Nations High Commissioner for Refugees to urge the CDC to “lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”
 Huisha-Huisha v. Mayorkas, No. 21-100, 2021 WL 4206688 (D.D.C. Sept. 16, 2021).
 See Title 42 Challenges, CGRS, https://cgrs.uchastings.edu/our-work/title-42-challenges [https://perma.cc/XK85-DFTA].
 See J.B.B.C. v. Wolf, 2020 WL 6041870 (D.D.C. June 26, 2020) (ruling that the Plaintiff, a 16-year-old refugee fleeing persecution in Honduras, shall not be removed from the United States); see also P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020) (granting the preliminary injunction in favor of the Plaintiff).
 See Caitlin Dickerson & Michael D. Shear, Before Covid-19, Trump Aide Sought to Use Disease to Close Borders, N.Y. Times (May 3, 2020), https://www.nytimes.com/2020/05/03/us/coronavirus-immigration-stephen-miller-public-health.html [https://perma.cc/BX83-W84D].
 Azadeh Erfani, Maria Garcia & Rubi Flores, Nat’l Immigrant Just. Ctr., Pushing Back Protection: How Offshoring and Externalization Imperil the Right to Asylum 45 (2021), https://immigrantjustice.org/sites/default/files/content-type/research-item/documents/2021-08/Offshoring-Asylum-Report_final.pdf [https://perma.cc/MH9X-H7Q3].
 See 85 Fed. Reg. 16,559, 16,563 (March 20, 2020); see also 85 Fed. Reg. 17,060, 17,061 (March 26, 2020).
 86 Fed. Reg. 42,828 (Aug. 5, 2021).
 See id.; see also 86 Fed. Reg. 38,717 (July 16, 2021).
 See Priscilla Alvarez, Biden Administration Defends Controversial Trump-Era Border Policy Barring Asylum Seekers in Court, CNN, https://www.cnn.com/2022/01/19/politics/title-42-biden/index.html [https://perma.cc/65C2-RV7T].
 Joel Rose, The Biden Administration Is Fighting in Court to Keep a Trump-Era Immigration Policy, NPR (Sept. 20, 2021, 3:31 PM), https://www.npr.org/2021/09/20/1038918197/the-biden-administration-is-fighting-in-court-to-keep-a-trump-era-immigration-po [https://perma.cc/NU8Q-9YPR].
 See Kevin Sieff, Mexico Has Pushed Hundreds of Migrants Expelled from the U.S. on to Guatemala, Stranding Them in a Remote Village Far from Their Homes, Wash. Post (Aug. 10, 2021), https://www.washingtonpost.com/world/2021/08/10/mexico-deport-guatemala/ [https://perma.cc/2X22-DVLZ].
 Huisha-Huisha V. Gaynor – Defending Due Process Rights for Children Seeking Refuge in U.S. During Covid-19 Pandemic, ACLU, https://www.acludc.org/en/cases/huisha-huisha-v-gaynor-defending-due-process-rights-children-seeking-refuge-us-during-covid-19 [https://perma.cc/NW9M-89P2].
 See Rose, supra note 10.
 Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2487 (2021).
 See, e.g., 40 Fed. Reg. 22543 (1975) (banning small turtles known to be carriers of salmonella).
 42 U.S.C. § 264(a).
 See Alabama Ass’n of Realtors, 141 S. Ct. at 2489.
 See 42 U.S.C. § 265(a).
 8 U.S.C. § 1231.
 8 U.S.C. § 1225(b)(2)(C).
 Brief for Appellees at 31, Huisha-Huisha v. Mayorkas, No. 21-5200 (D.D.C. Sept. 16, 2021).
 Id. at 47.
 Id. at 51.
 8 U.S.C. § 1182(a)(1)(A)(i).
 Brief for Appellees at 18, Huisha-Huisha v. Mayorkas, No. 21-5200 (quoting 8 U.S.C. § 1158 (a)(1)).
 Id. at 51.
 CDC August 2021 Order, 86 Fed. Reg. at 42,833.
 See Kristina Cooke, Mica Rosenberg & Caitlin O’hara, U.S. Borders Reopen, But Not for Asylum Seekers Stuck in Mexico, Reuters (Nov. 9, 2021), https://tinyurl.com/y6ywyxj5 [https://perma.cc/3TK3-EJHM].
 See 86 Fed. Reg. at 42,830 (“CDC also recognizes the availability of testing, vaccines, and other mitigation protocols can minimize risk in this area.”).
 Public Health Experts Issue Recommendations to Protect Public Health and Lives of Asylum Seekers, Glob. Health (Dec. 21, 2020), https://www.publichealth.columbia.edu/public-health-now/news/public-health-experts-issue-recommendations-protect-public-health-and-lives-asylum-seekers [https://perma.cc/XMH5-FZZ5].
 See 86 Fed. Reg. at 42,829 (claiming that people in those “congregate settings” have a heightened risk of spreading COVID).
 Brief for Appellees at 63, Huisha-Huisha v. Mayorkas, No. 21-5200 (D.D.C. Sept. 16, 2021).
 See Alex Thompson & Alexander Ward, Top State Adviser Leaves Post, Rips Biden’s Use of Trump-Era Title 42, Politico (Oct. 4, 2021, 2:23 PM), https://www.politico.com/news/2021/10/04/top-state-adviser-leaves-post-title-42-515029 [https://perma.cc/QAF7-BJ9Y].
 Memorandum from Harold Koh to the State Department (Oct. 2, 2021) (on file with POLITICO).
 Convention Against Torture, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, at 20 (1988).
 See 8 U.S.C. § 1158(a)(1) (“[A]ny alien who is physically present in the United States or who arrives in the United States irrespective of such alien’s status, may apply for asylum.”). The Refugee Convention was codified by Congress in 1980 in the Refugee Act. Pub. L. No. 96-212, 94 Stat. 102.
 Pedro A. Villarreal, COVID-19 Symposium: “Can They Really Do That?” States’ Obligations Under the International Health Regulations in Light of COVID-19 (Part I), OpinioJuris (Mar. 31, 2020), http://opiniojuris.org/2020/03/31/covid-19-symposium-can-they-really-do-that-states-obligations-under-the-international-health-regulations-in-light-of-covid-19-part-i/ [https://perma.cc/8YFD-QVZU].
 World Health Organization, International Health Regulations 28 (3d ed., 2005).
 Id. at 29.
 See Immigrants’ Rights Advocates Argue in Court Against Title 42 Expulsions, ACLU (Jan. 19, 2022), https://www.aclu.org/press-releases/immigrants-rights-advocates-argue-court-against-title-42-expulsions [https://perma.cc/B2QE-96AQ].
 CNN, Fauci: Expelling Immigrants ‘Not the Solution’ to Stopping Covid-19 Spread (Oct. 3, 2021), https://tinyurl.com/5ua5m4bm [https://perma.cc/398J-B8ZG] (2:13 to 4:05 of video) (“Fauci interview”).
 Statement Attributable to UN High Commissioner for Refugees Filippo Grandi on the Need to End US COVID-19 Asylum Restrictions, UNHCR (May 20, 2021), https://www.unhcr.org/news/press/2021/5/60a687764/statement-attributable-un-high-commissioner-refugees-filippo-grandi-need.html [https://perma.cc/C5A4-UGCZ].