Two Cases Highlight Legal Battle Over Deportation and Removal Under COVID Emergency Powers

By Joseph Fawbush, Esq. on March 17, 2022

Under federal law, the U.S. Department of Health and Human Services (HHS) has the power to issue a rule refusing entry to people and property from countries where a communicable disease poses a "serious danger" to the United States.

As an early response to the COVID-19 pandemic, the Trump Administration first used these powers in 2020 under 42 U.S.C. § 265, which 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." That March, HHS issued a rule in the Federal Register to implement § 265 and enable the director of the Centers for Disease Control and Prevention (CDC) "to suspend the introduction of persons into the United States."

The CDC proceeded to do so, issuing its own order which prohibited "covered aliens" (aliens traveling from Canada or Mexico— and who must be held longer in congregate settings in order to facilitate immigration processing) from entering the United States. The CDC order does not allow migrants to apply for asylum. The CDC has since reissued the order several times, with the only substantial change coming in February of 2021, when the Biden Administration stopped including minor unaccompanied children as a covered person under § 265.

Most of the people detained under this CDC order do not have legal documentation. This is by design, as the order specifically excludes lawful permanent residents and aliens with lawful travel documents. It is estimated that millions of migrants have been expelled under this order. Any aliens found to be in violation of § 265 are subject to removal proceedings.

Litigation Clarifying CDC's Removal Power Under § 265

Two cases in federal court are currently litigating the extent of the CDC's power to remove aliens under § 265. One, Huisha-Huisha v. Mayorkaswas recently decided by the D.C. Circuit Court of Appeals (considered to be the second most influential court in the country after the Supreme Court) and addressed the extent of federal power to remove aliens who may face torture and prosecution in their home countries. The other, Texas v. Biden, was brought by Texas Attorney General Ken Paxton in federal district court and raised the issue of whether Biden's Executive Order excepting minor children from the CDC's removal power violated the Administrative Procedure Act (APA).

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Removing Aliens Anytime, Anywhere

The first case involves several families who are classified as "covered aliens" under the § 265 order. In Huisha-Huisha, the plaintiffs sued the Executive Branch to halt enforcement of the CDC rule, claiming that § 265 only allows the feds to prohibit entry, not expel aliens already in the U.S. They further argued that the order violated both the Immigration and Nationality Act's provisions for asylum and that it was "arbitrary and capricious" under the APA.

A D.C. district court found the plaintiffs' arguments persuasive and issued a preliminary injunction to force the federal government to stop removal proceedings against covered aliens. The federal government appealed. It argued that not only does it have the power to deport covered aliens under the CDC order, it also has the authority to remove them to whatever country it wants to, regardless of whether the alien would otherwise qualify for asylum or could face persecution in their home country. In essence, the federal government argued that the CDC can expel any covered person under its emergency powers at any time and to anywhere.

Executive Has Broad Powers Under Federal Immigration Law

The D.C. Circuit Court of Appeals did not buy the plaintiffs' arguments for an injunction, or the reasoning of the district court. Instead, it held that:

  • The Executive Branch has the right to refuse entry for covered aliens under 42 U.S.C. § 265
  • The federal government has the right to expel aliens found in violation of § 265
  • However, the Executive Branch cannot expel those aliens to places where they will be persecuted or tortured, which is prohibited under federal law (8 U.S.C § 1231(b)(3)(A).

The case was remanded back to district court to decide the case on the merits and determine whether the CDC order is arbitrary and capricious under the APA, a question the circuit court declined to answer. Meanwhile, asylum seekers and aliens who fear prosecution or torture if they return to their home countries may be able to stay in the U.S. temporarily. As a practical matter, this could include the majority of aliens detained under § 265. It should be noted, however, that § 1231 does not provide a path to asylum, nor does it prevent the U.S. government from detaining aliens and exporting them to a country where they are not likely to face prosecution or torture.

Excepting Minor Unaccompanied Children Arbitrary and Capricious

The second case, in federal district court in Texas, involved the Biden Administration's decision to exempt minor unaccompanied children from the CDC order. Texas filed the lawsuit in federal court, arguing that the February, 2021 order was arbitrary and capricious in violation of the APA—one of the same legal theories used by the plaintiffs in Huisha-Huisha, though this time as an argument in favor of expelling more aliens rather than defending them.

District Court Judge Mark Pittman started off his opinion decrying the "scorched-earth politics" of the case: "Why a state and the federal government are litigating this issue—is simply beyond the comprehension of the undersigned."

Nonetheless, Judge Pittman found Texas' arguments to be persuasive, holding that the most recent CDC orders excepting minor children were indeed arbitrary and capricious. He found no rationale for how allowing minor children to temporarily remain in the U.S. could prevent the spread of COVID-19 in the interior of the country. The Biden Administration admitted that there were better measures in place for preventing the spread of COVID-19 between unaccompanied minors.

President Biden is appealing this decision to the Fifth Circuit, which must now decide whether there are non-arbitrary reasons for exempting unaccompanied minors from the CDC order. The Biden Administration will likely highlight the vulnerability of lone, minor children who are removed from the country.

As It Stands

While the two cases remain ongoing, the takeaways from the litigation so far are that:

  • The CDC's order allowing for the removal of migrants from the U.S. under COVID-19 emergency powers stands—for now.
  • The Biden Administration cannot exempt minor children from this rule—for now.
  • Any adult or minor alien found in violation of 42 U.S.C. § 265 cannot be removed to a country where they will face prosecution or torture—again, for now.
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