CADC on Title 42: Huisha-Huisha v. Mayorkas

Huisha-Huisha v. Mayorkas

"[I]n short, the Executive can expel the Plaintiffs from the country. But it cannot expel them to places where they will be persecuted or tortured. ... In sum, pursuant to statutes: (1) The Executive can render illegal the presence of aliens who pose a public-health risk during a public-health emergency. 42 U.S.C. § 265. (2) The Executive can expel those aliens. 42 U.S.C. § 1227(a)(1)(B). (3) The Executive cannot expel those aliens to places where they will be persecuted or tortured. 8 U.S.C § 1231(b)(3)(A) & note. ... 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)). ... The Plaintiffs have shown they are likely to succeed on the merits of their claim that § 1231 limits where the Executive can expel aliens who violate the § 265 Order. ... [W]e offer this summary of our legal conclusions: It is likely that § 265 grants the Executive sweeping authority to prohibit aliens from entering the United States during a public-health emergency; that the Executive may expel aliens who violate such a prohibition; and that under § 1231(b)(3)(A) and the Convention Against Torture, the Executive cannot expel aliens to countries where their “life or freedom would be threatened” on account of their “race, religion, nationality, membership in a particular social group, or political opinion” or where they will likely face torture. ... We affirm the District Court’s preliminary injunction in part. For now, the Executive may expel the Plaintiffs, but only to places where they will not be persecuted or tortured. We remand the case for further proceedings and ultimate resolution of the merits, including the Plaintiffs’ claim that the § 265 Order is arbitrary and capricious."