Huisha-Huisha v. Mayorkas, No. 21-5200 (D.C. Cir. 2022)Annotate this Case
In a public-health emergency, 42 U.S.C. 265 authorizes the Executive Branch to "prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate." The Executive exercised that power during the COVID-19 pandemic, issuing a series of orders prohibiting "covered aliens" from entering the United States by land from Mexico or Canada.
The DC Circuit affirmed the district court's preliminary injunction in part, finding that it is likely that aliens covered by a valid section 265 order have no right to be in the United States and concluding that the Executive may expel plaintiffs under section 265, but only to places where they will not be persecuted or tortured. The court addressed plaintiffs' likelihood of success on the merits and rejected their arguments that section 265 covers only transportation providers such as common carriers; that the Executive has no power to expel aliens for violating a valid section 265 order; and that they are entitled to apply for asylum. However, the court concluded that plaintiffs are likely to succeed on the merits of their narrow argument that under section 1231 the Executive cannot expel them to places where they face persecution or torture. Finally, the court concluded that the district court did not abuse its discretion in finding that the equities require a preliminary injunction to stop the Executive from expelling plaintiffs to places where they will be persecuted or tortured. The court remanded for further proceedings and ultimate resolution of the merits, including plaintiffs' claim that the section 265 order is arbitrary and capricious.