Nancy Gimena Huisha-Huisha, and Her Minor Child v. Alejandro N. Mayorkas, Secretary of Homeland Security, in His Official Capacity

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2022 Decided March 4, 2022
No. 21-5200
NANCY GIMENA HUISHA-HUISHA, AND HER MINOR CHILD, ET
AL.,
APPELLEES
v.
ALEJANDRO N. MAYORKAS, SECRETARY OF HOMELAND
SECURITY, IN HIS OFFICIAL CAPACITY, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-00100)
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for appellants. With her on the briefs were
Brian M. Boynton, Acting Assistant Attorney General, and
Joshua Waldman and Ashley A. Cheung, Attorneys.
John M. Miano was on the brief for amicus curiae
Immigration Reform Law Institute in support of appellants.
Judd E. Stone, II, Solicitor General, Office of the Attorney
General for the State of Texas, Ryan S. Baasch, Assistant
Solicitor General, and Leif A. Olson, Special Counsel, were on

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the brief for amicus curiae The State of Texas in support of
appellants.
Lee Gelernt argued the cause for appellees. With him on
the brief were Stephen B. Kang, Cody Wofsy, Omar Jadwat,
David Chen, Blaine Bookey, Karen Musalo, Robert Silverman,
Scott Michelman, Arthur B. Spitzer, and Tamara F. Goodlette.
Noah A. Levine and Daniel S. Volchok were on the brief
for amici curiae Scholars of Refugee and Immigration Law in
support of appellees.
Ilya Shapiro and Ilya Somin were on the brief for amicus
curiae The Cato Institute in support of appellees.
Kathryn Austin, Geroline A. Castillo, Mariko Hirose, and
Deepa Alagesan were on the brief for amicus curiae The
International Refugee Assistance Project, Inc. in support of
appellees.
Raymond P. Tolentino and Mahrah M. Taufique were on
the brief for amici curiae Historians in support of appellees.
Dimitri D. Portnoi was on the brief for amici curiae 14
Legal Service and Advocacy Organizations in support of
appellees.
Vincent Levy was on the brief for amicus curiae United
Nations High Commissioner for Refugees in support of
appellees.
Kathleen R. Hartnett and Julie Veroff were on the brief for
amici curiae HIAS, et al. in support of appellees.

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Charles Tucker, Jr. was on the brief for amici curiae The
National Haitian American Elected Officials Network, et al. in
support of appellees.
Before: SRINIVASAN, Chief Judge, WILKINS and WALKER,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge:
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 has exercised that power during the
COVID-19 pandemic. It has issued a series of orders
prohibiting “covered aliens” from entering the United States by
land from Mexico or Canada. Those covered aliens, as a
general matter, lack valid travel documents. The orders subject
them to immediate expulsion from the United States.
The Plaintiffs are a group of covered aliens. They argue
that expulsions under § 265 are illegal. We disagree, at least at
this stage of the case. We find it likely that aliens covered by
a valid § 265 order have no right to be in the United States, and
the Executive can immediately expel them.
But § 265 does not tell the Executive where to expel aliens.
Another statute does that. Section 1231 of Title 8 lists several
possible destinations. 8 U.S.C. § 1231(b)(1)-(b)(2). It adds
that the Executive cannot remove aliens to a country where
their “life or freedom would be threatened” on account of their
“race, religion, nationality, membership in a particular social

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group, or political opinion.” Id. § 1231(b)(3)(A). And it
prohibits the Executive from expelling aliens to a country
where they will likely be tortured. Id. § 1231 note (“United
States Policy With Respect to Involuntary Return of Persons in
Danger of Subjection to Torture”); see also 8 C.F.R.
§ 208.16(c); 28 C.F.R. § 200.1.
Before proceeding, we must make clear two things about
§ 1231. First, it does not give aliens a path to asylum or other
legal status in the United States. For aliens covered by a valid
§ 265 order, the Executive has eliminated that path, and § 1231
does not restore it. Second, § 1231 does not stop the Executive
from detaining aliens, within constitutional limits, until they
can be expelled to an appropriate country. 8 U.S.C. § 1231
note (“Nothing in this section shall be construed as limiting the
authority of the Attorney General to detain any person under
any provision of law”); see also Zadvydas v. Davis, 533 U.S.
678, 690 (2001) (discussing constitutional limits).
So in short, the Executive can expel the Plaintiffs from the
country. But it cannot expel them to places where they will be
persecuted or tortured.
To explain why — and why the Plaintiffs are entitled to a
preliminary injunction narrower than the one they want — our
opinion includes five parts:
• We begin with a brief history of the nation’s
immigration laws (Part I).
• Next we describe the Executive’s original § 265 order
from March 2020, its subsequent § 265 orders, and the
Plaintiffs’ legal challenge to those orders (Part II).

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• We then turn to the Plaintiffs’ likelihood of success on
the merits and reject their arguments that § 265 covers
only transportation providers such as common carriers;
that the Executive has no power to expel aliens for
violating a valid § 265 order; and that they are entitled
to apply for asylum (Part III).
• After that, we explain why the Plaintiffs are likely to
succeed on the merits of their narrow argument that
under § 1231 the Executive cannot expel them to places
where they face persecution or torture (Part IV).
• Finally, we conclude the District Court did not abuse its
discretion in finding that the equities require a
preliminary injunction to stop the Executive from
expelling the Plaintiffs to places where they will be
persecuted or tortured (Part V).
I
A
“The executive Power” of the United States is vested in the
President. U.S. Constitution art. II, § 1, cl. 1. Inherent in that
executive power is the President’s “vast share of responsibility
for the conduct of our foreign relations.” American Insurance
Association v. Garamendi, 539 U.S. 396, 414 (2003) (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-
11 (1952) (Frankfurter, J., concurring)). And that “inherent
executive power” to govern foreign relations includes
considerable authority over immigration. U.S. ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950).
Congress too has “broad power over naturalization and
immigration.” Demore v. Kim, 538 U.S. 510, 521 (2003)

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(quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)). To give
just one example that will be important to our later analysis,
Congress has prohibited the Executive from removing aliens to
countries where they will be persecuted. 8 U.S.C.
§ 1231(b)(3)(A).
Although Congress has sometimes limited executive
discretion in such ways, at other times it has granted the
Executive express powers over immigration. As early as 1798,
Congress provided that the Executive could expel certain
aliens. An Act Concerning Aliens, § 1, 1 Stat. 570, 570-71
(1798); see also Session v. Dimaya, 138 S. Ct. 1204, 1229-30
(2018) (Gorsuch, J., concurring in part and concurring in the
judgment) (the power was controversial, went unused, and
expired in 1800).
Congress intervened again in the last quarter of the
nineteenth century. See Kleindienst v. Mandel, 408 U.S. 753,
761 (1972). It authorized the Executive to exclude aliens with
“a loathsome or a dangerous contagious disease.” Act of
March 3, 1891, ch. 551, § 1, 26 Stat. 1084, 1084. It also
provided that any alien who entered the country in violation of
the Executive’s prohibitions “may be returned” within one year
of unlawfully entering the United States. Id. § 11, 26 Stat. at
1086. And it continued to grant the Executive such authority
for years to come. Act of February 5, 1917, ch. 29, § 18, 39
Stat. 874, 887 (“all aliens brought to this country in violation
of law shall be immediately sent back”).
In 1893, Congress passed the precursor to the statute at
issue in this case. Act of Feb. 15, 1893, ch. 114, § 7, 27 Stat.
449, 452. That year, cholera was overrunning much of the
world. See Cholera Through History, Britannica, https://www
.britannica.com/science/cholera/Cholera-through-history (last
visited Feb. 17, 2022). In response, Congress authorized the

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Executive to determine that individuals from certain countries
should be excluded from the United States during public-health
emergencies.
Despite the cholera pandemic, the Executive did not issue
a prohibition under that law until 1929. In response to a
meningitis outbreak that year, the Executive declared that the
“continued arrival of vessels” carrying meningitis-infected
passengers had “overtaxed the combined available quarantine
facilities of federal and local health authorities.” Exec. Order
No. 5143 (June 21, 1929), App. 201. It therefore ordered that
“no persons may be introduced directly or indirectly by
transshipment or otherwise into the United States” from China
or the Philippines “for such period of time as may be deemed
necessary.” Id.
Fifteen years later, the 1893 statute was recodified at 42
U.S.C. § 265, given a new title, and slightly edited. It now
reads in full:
Suspension of entries and imports from
designated places to prevent spread of
communicable diseases
Whenever the Surgeon General determines
that by reason of the existence of any
communicable disease in a foreign country
there is serious danger of the introduction of
such disease into the United States, and that this
danger is so increased by the introduction of
persons or property from such country that a
suspension of the right to introduce such
persons and property is required in the interest
of the public health, the Surgeon General, in
accordance with regulations approved by the

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President, shall have the power to prohibit, in
whole or in part, the introduction of persons
and property from such countries or places
as he shall designate in order to avert such
danger, and for such period of time as he may
deem necessary for such purpose.
42 U.S.C. § 265 (emphases added).
In 1966, acting pursuant to the Reorganization Act of
1949, President Johnson transferred the Surgeon General’s
authority to what is now the Department of Health and Human
Services. 31 Fed. Reg. 8855 (June 25, 1966). Today, the
Centers for Disease Control and Prevention, which is part of
HHS, exercises the authority that § 265 gave the Surgeon
General. 85 Fed. Reg. 16,559, 16,560, 16,563 (Mar. 24, 2020).
B
Between 1929 and 2020, as § 265 lay dormant, Congress
remade immigration law.
In 1952, Congress passed and President Truman signed
the Immigration and Nationality Act. Like earlier laws, it
expressly authorizes the Executive to deport various classes of
aliens. They include aliens present in violation of the law:
Any alien who is present in the United States
in violation of this chapter or any other law of
the United States, or whose nonimmigrant visa
(or other documentation authorizing admission
into the United States as a nonimmigrant) has
been revoked under section 1201(i) of this title,
is deportable.

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8 U.S.C. § 1227(a)(1)(B) (emphases added).
However, the Immigration and Nationality Act (as
amended since 1952) provides aliens with procedural and
substantive rights to resist expulsion. Their procedural rights
include the opportunity to contest removal before an
immigration judge and then to appeal that immigration judge’s
decision to the Board of Immigration Appeals and a federal
court of appeals. Id. §§ 1229a, 1252(b); 8 C.F.R. § 1240.15.
And their substantive rights include three types of relief
relevant to this case: asylum, withholding of removal, and
protections under the Convention Against Torture.
“Asylum” relief is a discretionary protection that the
Attorney General “may grant” to aliens who meet the statutory
definition of “refugee” because of their “well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion”
in their home country. 8 U.S.C. §§ 1158(b)(1)(A),
1101(a)(42). “Any alien who is physically present in the
United States . . . irrespective of such alien’s status . . . may
apply for asylum” within one year of arriving in the United
States. Id. § 1158(a)(1), (a)(2)(B). And a refugee who receives
asylum may lawfully live and work here. Id. § 1158(c).
“Withholding of removal” relief protects aliens from
removal to a particular country if it is likely that their “life or
freedom would be threatened” based on a protected category
such as race or religion. Id. § 1231(b)(3)(A).
“Convention Against Torture” relief protects aliens from
removal to countries where they face a likelihood of torture.
Id. § 1231 note (“United States Policy With Respect to

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Involuntary Return of Persons in Danger of Subjection to
Torture”); 8 C.F.R. § 208.16(c); 28 C.F.R. § 200.1.1
Both “withholding of removal” and “Convention Against
Torture” relief are codified in 8 U.S.C. § 1231, and those two
types of § 1231 relief differ from asylum relief in important
ways. First, they do not entitle aliens to any legal status in the
United States. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428
n.6 (1987); Nasrallah v. Barr, 140 S. Ct. 1683, 1687 (2020).
Second, they are mandatory: The Executive must provide them
to aliens who qualify for them. See I.N.S. v. Aguirre-Aguirre,
526 U.S. 415, 419 (1999) (“withholding [of removal] is
mandatory if an alien establishes that it is more likely than not
that he would be subject to persecution on one of the specified
grounds” (cleaned up)); Nasrallah, 140 S. Ct. at 1687 (“If the
noncitizen demonstrates that he likely would be tortured if
removed to the designated country of removal, then he is
entitled to [Convention Against Torture] relief and may not be
removed to that country (although he still may be removed to
other countries).”).2
1 Certain well-defined classes of aliens are ineligible to seek
withholding of removal and some forms of relief under the
Convention Against Torture. For example, withholding of removal
does not apply to aliens who have themselves persecuted others or
who may pose “a danger to the security of the United States.” 8
U.S.C. § 1231(b)(3)(B); id. § 1231 note (“Exclusion of Certain
Aliens”); 8 C.F.R. § 1208.16(d).
2 Because the Immigration and Nationality Act’s protections slowed
down removal proceedings, in 1996 Congress created “expedited”
removal procedures in which the Executive removes aliens without
giving them a hearing. 8 U.S.C. § 1225; see also DHS v.
Thuraissigiam, 140 S. Ct. 1959, 1964-65 (2020). But even as
Congress accelerated the removal process for many aliens, it
excluded from those expedited proceedings aliens with credible

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* * *
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.
II
A
When 2020 began, many people had not yet heard of
COVID-19. But by the end of March, much of the nation was
locked down. The rest of that year was defined by uncertainty,
a changing disease, limited knowledge even within the medical
community, and the need for immediate private and public
action.
Section 265 of Title 42 was part of the Executive’s early
response. In March 2020, HHS issued an interim final rule to
implement § 265 and “enable the CDC Director to suspend the
introduction of persons into the United States.” 85 Fed. Reg.
16,559, 16,563 (Mar. 24, 2020). This interim rule defined the
asylum claims or credible fears of persecution in their home
countries. Thuraissigiam, 140 S. Ct. at 1965.

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“introduction into the United States of persons from a foreign
country” as “the movement of a person from a foreign
country . . . so as to bring the person into contact with persons
in the United States . . . in a manner that the Director determines
to present a risk of transmission of a communicable disease.”
Id. at 16,566. That definition covered “those who have
physically crossed a border of the United States and are in the
process of moving into the interior in a manner the Director
determines to present a risk of transmission of a communicable
disease.” Id. at 16,563.
Two days later, the CDC applied that interim final rule and
issued an order banning certain “covered aliens” from entering
the United States from Canada or Mexico. 85 Fed. Reg.
17,060, 17,061 (Mar. 26, 2020). “Covered aliens” are aliens
“who are traveling from Canada or Mexico (regardless of their
country of origin), and who must be held longer in congregate
settings in [Ports of Entry] or Border Patrol stations to facilitate
immigration processing.” Id. As a general matter, that means
aliens who “lack valid travel documents.” Id.
In September 2020, HHS and the CDC issued a final rule
implementing § 265. 85 Fed. Reg. 56,424 (Sept. 11, 2020). It
reiterated the interim final rule and noted that § 265 refers to “a
suspension of the right to introduce such persons and property.”
Id. at 56,442. It asserted that this “suspension” clause in § 265
grants the CDC the “authority to temporarily suspend the effect
of any law, rule, decree, or order by which a person would
otherwise have the right to be introduced or seek introduction
into the U.S.” Id. at 56,426.
Since then, the CDC has continued to reissue its § 265
order. The only substantial change came in February 2021,
when the CDC excluded unaccompanied minors from the
definition of “covered aliens” following the decision in P.J.E.S.

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v. Wolf, 502 F. Supp. 3d 492, 501 (D.D.C. 2020). 86 Fed. Reg.
9942 (Feb. 17, 2021); 86 Fed. Reg. 38,717 (July 22, 2021). The
CDC issued its most recent § 265 order on August 5, 2021. 86
Fed. Reg. 42,828.
In carrying out those § 265 orders, the Executive has
expelled “covered aliens” without allowing them to apply for
asylum or seek relief from removal to a place where they will
face persecution. App. 214.3
B
The Plaintiffs are six families of aliens covered by the
CDC’s latest order, which we’ll call the § 265 Order. They
sued the Executive on behalf of a class of all families similarly
covered by the § 265 Order. They want the Executive to stop
expelling them under the power it claims § 265 provides. They
claim that § 265 does not empower the Executive to expel
them; that the § 265 Order violates the Immigration and
Nationality Act’s provisions for asylum, withholding of
removal, and relief under the Convention Against Torture; and
that the § 265 Order is arbitrary and capricious.
In September 2021, the district court certified the
Plaintiffs’ class and preliminarily enjoined the Executive from
expelling them under the § 265 Order. Huisha-Huisha v.
Mayorkas, No. CV 21-100 (EGS), 2021 WL 4206688, at *1
(D.D.C. Sept. 16, 2021). In assessing the Plaintiffs’ likelihood
of success on the merits, the district court agreed with the
Plaintiffs’ primary argument that § 265 does not provide for
3 The Executive has formally provided a limited opportunity for
covered aliens to seek relief under the Convention Against Torture,
but the parties in this case dispute whether that opportunity exists in
practice. App. 212.

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expulsions. Id. at *11. On the other injunction factors, the
district court concluded the Plaintiffs faced irreparable harm
that tipped the balance of equities in their favor because of the
“violence, persecution, and other victimization” they could
suffer if they are expelled from the country under the § 265
Order. Id. at *15-18.
At the Executive’s request, we stayed the preliminary
injunction while we resolve the Executive’s appeal. Huisha-
Huisha v. Mayorkas, No. 21-5200 (D.C. Cir. Sept. 30, 2021).
We review the district court’s decision to grant the
Plaintiffs’ request for a preliminary injunction for abuse of
discretion, its legal conclusions de novo, and its findings of fact
for clear error. In re Navy Chaplaincy, 697 F.3d 1171, 1178
(D.C. Cir. 2012).
In doing so, we apply the Winter test: “A plaintiff seeking
a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public
interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008).
III
The Plaintiffs make several merits arguments on which
they are not likely to prevail.
A
We begin with the Plaintiffs’ broadest argument — that 42
U.S.C. § 265 applies only to third parties who “introduce” other
people or property into the country. If so, § 265 would cover
common carriers and other third-party transportation

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providers.4 But it would not cover individuals who enter the
country.
Section 265 gives the Executive the power to prohibit “the
introduction of persons or property” into the United States.
Contrary to the Plaintiffs’ contention, that provision is most
naturally read to include the entry of individuals who pose a
danger to public health.
To be sure, common carriers can introduce people into the
country. But individuals can also introduce themselves. See
Lambert v. Paul W. Senne Funeral Home, Inc., 98 N.E.2d 519,
522 (Ill. App. Ct. 1951) (“The undisputed evidence shows that
plaintiff did not introduce himself into the situation”); Bales v.
State, 63 Ala. 30, 36 (1879) (“Yet, there can be no doubt, if a
juror, having a disqualifying opinion, should introduce himself
into the jury-box, by concealing, or by failing to disclose it
from mere ignorance, a conviction by a verdict in which he
participated would be set aside”). So § 265 covers both. And
when President Hoover invoked § 265 in 1929 — the only time
it was used before 2020 — his order applied to the introduction
of individuals “by transshipment or otherwise.” Exec. Order
No. 5143 (June 21, 1929), App. 201 (emphasis added).
Congress might have been clearer if it had used a word like
“entry” rather than “introduction” when referring to the
Executive’s power to prohibit individuals from coming here.
But Congress did refer to the “suspension of entries” in § 265’s
title. See Almendarez-Torres v. United States, 523 U.S. 224,
234 (1998) (“the title of a statute and the heading of a section
are tools available for the resolution of a doubt about the
4 For ease of reading, we’ll use the familiar phrase “common
carriers” to cover the slightly more inclusive but also more unwieldy
phrase “third-party transportation providers.”

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meaning of a statute” (cleaned up)); Antonin Scalia & Bryan
Garner, Reading Law: The Interpretation of Legal Texts 221
(2012) (“The title and headings are permissible indicators of
meaning.”).
In addition, Congress’s choice of the word “introduction”
rather than a word like “entry” makes sense in this context for
two reasons.
First, Congress expressly intended to cover both “persons
and property.” Both can be “introduced” into the country.
Property is introduced by third parties, and individuals are
introduced by third parties or themselves.
Second, by saying “introduction” rather than “entry,”
Congress found a concise way to cover both individuals and
common carriers. In contrast, if Congress had permitted the
Executive to prohibit only the “entry” of individuals, the
Executive may not have been able to prohibit common carriers
from bringing people into the country. That would have been
an odd result because passenger ships were a major means of
immigration when § 265’s predecessor was enacted in 1893
and when § 265 was enacted in 1944.
The statutory provisions surrounding § 265 provide
further confirmation that § 265 applies to individuals who
introduce themselves into the country. Unlike § 265, its
surrounding provisions single out “vessels” and other common
carriers, which makes § 265’s omission of a common-carrier
reference look intentional. 42 U.S.C. §§ 267(b), 269(a), 270,
271(b). We don’t place undue weight on the “‘easy-to-say-so-
if-that-is-what-was-meant’ rule of statutory interpretation,” but
that rule is especially strong here because Congress enacted
§ 265 in the same legislation as the statutory provisions
regulating common carriers. Comm’r v. Beck’s Estate, 129

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F.2d 243, 245 (2d Cir. 1942); cf. DHS v. MacLean, 574 U.S.
383, 391 (2015) (“Congress generally acts intentionally when
it uses particular language in one section of a statute but omits
it in another.”).
To be candid, because ships were a major means of
immigration, we don’t doubt that the readers of § 265 would
have thought primarily of passenger ships when its predecessor
was enacted in 1893 and when it was enacted in 1944. But for
whatever reason — and we’ve described several possibilities
— Congress went further. A statute’s “remedy often extends
beyond the particular act or mischief which first suggested the
necessity of the law.” District of Columbia v. Heller, 554 U.S.
570, 578 (2008) (quoting Joel Prentiss Bishop, Commentaries
on Written Laws and Their Interpretation § 51 (1882)).
In addition, we cannot apply the constitutional avoidance
canon to exclude individuals from the scope of § 265. It’s true
that applying § 265 to American citizens would raise serious
constitutional questions. That exercise of power would be
“breathtaking.” Alabama Association of Realtors v. HHS, 141
S. Ct. 2485, 2489 (2021); see also Doe v. Mattis, 928 F.3d 1, 8
(D.C. Cir. 2019) (“A fundamental attribute of United States
citizenship is a right to remain in this country and to return after
leaving.” (cleaned up)). But the Plaintiffs are not American
citizens. Neither are any of the individuals covered by the
order under review. In the immigration context, the law often
allows policies that “would be unacceptable if applied to
citizens.” Reno v. Flores, 507 U.S. 292, 305-06 (1993)
(cleaned up); see also id. at 314 n.9 (“The constitutional doubts
argument has been the last refuge of many an interpretive lost
cause. Statutes should be interpreted to avoid serious
constitutional doubts, not to eliminate all possible contentions
that the statute might be unconstitutional.” (cleaned up)). And
in any event, the Plaintiffs’ preferred reading of the statute

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would permit violators of a § 265 order to be imprisoned for up
to a year, which could still raise constitutional concerns if used
to keep American citizens out of the country.
B
Next, the Plaintiffs argue that even if § 265 applies to
individual aliens who introduce themselves into the United
States, the Executive cannot expel those aliens because § 265
does not authorize expulsions. The District Court agreed with
the Plaintiffs. Huisha-Huisha, 2021 WL 4206688, at *11. We
do not.
Two statutes — § 265 and 8 U.S.C. § 1227(a)(1)(B)
— appear to provide the Executive with ample authority to
expel such aliens.
Start with the first of those statutes — § 265. Recall that
it allows the Executive to “prohibit, in whole or in part, the
introduction of persons and property from” any places that it
designates during a public-health emergency. And recall that
the Executive has used that power during the COVID-19
pandemic to issue several orders that prohibit covered aliens
from entering the United States. That statutory power could be
rendered largely nugatory if the Executive could not take any
action against a covered alien who disregarded the prohibition
and managed to set foot on U.S. soil.
The § 265 Order also means covered aliens who enter at
this time are here illegally. That brings into play the second
statute — § 1227(a)(1)(B). Recall that it says, “Any alien who
is present in the United States in violation of . . . any . . . law of
the United States . . . is deportable.” 8 U.S.C. § 1227(a)(1)(B).
That means, barring any exceptions Congress creates

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elsewhere, the Executive can expel aliens who are here
illegally.5
So to sum up, the Executive has declared covered aliens’
introduction illegal (under § 265), and as a general matter, the
Executive can expel aliens who are here illegally (under
§ 1227(a)(1)(B)).
The Plaintiffs reply that aliens finish introducing
themselves once they cross the border, so any power to expel
them for violating the § 265 Order ends there — an inch inside
the country. But that runs into a recent Supreme Court
precedent. In DHS v. Thuraissigiam, the Court said that “an
alien who is detained shortly after unlawful entry cannot be
said to have ‘effected an entry.’” 140 S. Ct. 1959, 1982-83
(2020) (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).
No doubt, aliens who make it one foot over the border are
on U.S. soil and are thus entitled to certain statutory
protections. Id. at 1983 (such an alien “has only those rights
regarding admission that Congress has provided by statute”).
But that doesn’t mean they have been fully “introduced” into
the United States as § 265 uses the term, especially given that
§ 265 strives to prevent a “serious danger of the introduction
of . . . disease into the United States,” not merely to stop a
disease at the border.
5 That power is nothing new. See Act of March 3, 1891, ch. 551,
§ 10, 26 Stat. 1084, 1086 (“That all aliens who may unlawfully come
to the United States shall, if practicable, be immediately sent back on
the vessel by which they were brought in.”); Act of February 5, 1917,
ch. 29, 18, 39 Stat. 874, 887 (“all aliens brought to this country in
violation of law shall be immediately sent back . . . to the country
whence they respectively came”).

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20
In light of that statutory authority, we have no occasion to
reach the question whether, even if no statute gave the
Executive an expulsion power — in other words, even if the
Executive is operating in Youngstown Category Two rather
than Youngstown Category One — Article II’s Vesting Clause
would alone empower the Executive to expel the Plaintiffs. See
U.S. Constitution art. II, § 1, cl. 1 (“The executive Power shall
be vested in a President of the United States of America.”).6
The District Court may, however, wish to consider that
question. “The exclusion of aliens . . . . stems not alone from
legislative power but is inherent in the executive power to
control the foreign affairs of the nation.” U.S. ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950). And as with
exclusion, perhaps so too for expulsions: “Removal decisions,
including the selection of a removed alien’s destination, may
implicate our relations with foreign powers and require
consideration of changing political and economic
circumstances.” Jama v. ICE, 543 U.S. 335, 348 (2005)
(cleaned up).
6 When Congress authorizes executive action, the Executive’s power
is at its height (Category One). Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). When
Congress is silent, the Executive can exercise only its independent
powers (Category Two). Id. at 637. And when Congress has curbed
those independent powers, the Executive’s power is at its “lowest
ebb” (Category Three). Id.; see also Zivotofsky ex rel. Zivotofsky v.
Kerry, 576 U.S. 1, 10 (2015) (“To succeed in this third category, the
President’s asserted power must be both ‘exclusive’ and ‘conclusive’
on the issue.” (quoting Youngstown, 343 U.S. at 637-38 (Jackson, J.,
concurring))).

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C
The Plaintiffs argue that when aliens are expelled under
the § 265 Order, the Executive is operating in neither
Youngstown Category One nor Youngstown Category Two.
They say 8 U.S.C. § 1158(a)(1) puts the Executive’s actions in
Youngstown Category Three.
Section 1158(a)(1) entitles aliens — even those who enter
the country illegally — to apply for asylum before they are
expelled.7 According to the Plaintiffs, the Executive violates
§ 1158(a)(1) when it expels aliens before allowing them an
opportunity to apply for asylum.
That argument deserves attention from the District Court
when it considers the merits. It may be the closest question in
this case. But on its merits, at this stage of the litigation, the
Plaintiffs have not shown they are likely to succeed.
In normal times — when the Executive has not invoked
§ 265 — the Plaintiffs are of course correct about § 1158(a)(1).
So the question is how, if at all, we can reconcile § 265 and
§ 1158(a)(1). See Epic Systems Corp. v. Lewis, 138 S. Ct.
1612, 1624 (2018) (when a court is “confronted with two Acts
of Congress allegedly touching on the same topic,” the court
must “strive to give effect to both” (cleaned up)); see also
Scalia & Garner, Reading Law 180 (“The provisions of a text
7 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the
United States or who arrives in the United States (whether or not at
a designated port of arrival and including an alien who is brought to
the United States after having been interdicted in international or
United States waters), irrespective of such alien’s status, may apply
for asylum in accordance with this section or, where applicable,
section 1225(b) of this title.”).

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22
should be interpreted in a way that renders them compatible,
not contradictory.”).8
The best reconciliation of the two statutes is based on the
discretionary nature of asylum. The Executive “may grant
asylum.” 8 U.S.C. § 1158(b)(1)(A). Or it may not. It is a
matter of executive “discretion.” INS v. Cardoza-Fonseca, 480
U.S. 421, 423 (1987) (§ 1158 “authorizes the Attorney General,
in his discretion, to grant asylum to an alien”). And here, for
public-health reasons, the Executive has shown an intent to
exercise that “discretion” by foreclosing asylum for the specific
subset of border crossers covered by its § 265 Order.
It’s true that the § 265 Order forecloses more than just a
grant of asylum; it also forecloses the statutorily mandated
procedures that aliens use to apply for asylum. But if the
asylum decision has already been made — by the § 265 Order
— then those procedures would be futile. And perhaps § 265’s
text alludes to the suspension of those procedures with its
reference to the “suspension of the right to introduce such
persons and property” as “is required in the interest of the
public health.”
This harmonization might explain why Congress has
excluded from asylum some categories of aliens — such as
those who have persecuted others — but has not categorically
8 Chevron is of no help to the Executive. See Chevron, U.S.A., Inc.
v. NRDC, Inc., 467 U.S. 837 (1984). Chevron deference does not
apply when an agency interprets a statute “in a way that limits the
work of a second statute” that a different agency administers. Epic
Systems, 138 S. Ct. at 1629. Here, the CDC administers § 265, but
the Department of Homeland Security administers § 1158, as well as
the two types of relief under § 1231 that we discuss later. See 8
C.F.R. § 100.1.

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23
excluded from asylum aliens with communicable diseases. 8
U.S.C. § 1158(b)(2). Congress may have trusted that the
Executive would use § 265 to protect the country from the
introduction of a communicable disease from abroad when the
dangers are sufficiently pronounced to warrant the invocation
of that statute’s grant of authority.
IV
The Plaintiffs’ final argument concerns two protections
that limit where the Executive can expel aliens, although they
do not govern whether the Executive can expel aliens. The first
protection, called “withholding of removal,” precludes the
Executive from removing aliens to places where they will
likely be persecuted. 8 U.S.C. § 1231(b)(3)(A). The second
protection, relief under the Convention Against Torture,
precludes the removal of aliens to places where they will likely
be tortured. Id. § 1231 note (“United States Policy With
Respect to Involuntary Return of Persons in Danger of
Subjection to Torture”); see also 8 C.F.R. § 208.16(c); 28
C.F.R. § 200.1.
The Plaintiffs argue that the § 265 Order violates those two
limits on where the Executive can expel aliens. On that
question, the Plaintiffs have shown they are likely to succeed
on the merits.
A
Under the first provision, the Executive “may not remove
an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A).

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24
Unlike asylum relief under § 1158, withholding-of-
removal relief under § 1231(b)(3)(A) is mandatory. INS v.
Cardoza-Fonseca, 480 U.S. 421, 444 (1987) (aliens “who can
show a clear probability of persecution are entitled to
mandatory suspension of deportation and eligible for
discretionary asylum”). In other words, unlike § 1158,
§ 1231(b)(3)(A) gives the Executive no discretion that it can
exercise through an executive order. So if the Executive expels
an alien to a place prohibited by § 1231(b)(3)(A) — and if
another statute does not create an exception to that prohibition
— then the Executive is acting at its “lowest ebb” in
Youngstown Category Three. Here, in its defense of the § 265
Order, the Executive does not assert such a Category Three
power.
Therefore, to expel aliens to places prohibited by
§ 1231(b)(3)(A), the Executive must identify a statute that
creates an exception to § 1231(b)(3)(A). It says § 265 is that
statute. But we see no conflict between § 265 and
§ 1231(b)(3)(A).
Consider first what § 1231(b)(3)(A) does not say. It does
not prohibit the Executive from immediately expelling aliens.
And it does not provide them with the lawful status that § 265
forecloses. So applying § 1231(b)(3)(A) and § 265 to an alien
would not make that alien’s presence both legal and illegal at
the same time.
Now consider what § 265 does not say. It says nothing
about where the Executive may expel aliens. Neither does
§ 1227(a)(1)(B). Section § 1231(b) governs that aspect of
aliens’ expulsions. See 8 U.S.C. § 1231(b) (“Countries to
which aliens may be removed”). In particular, § 1231(b)(3)(A)

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25
says the Executive cannot expel them to a place where they will
likely be persecuted.
As a result, we can give effect to both statutes. And
because we can, we must. See Epic Systems Corp. v. Lewis,
138 S. Ct. 1612, 1624 (2018). 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)).
B
Closely related to § 1231(b)(3)(A), the Convention
Against Torture provides aliens with protections that Congress
codified in a note to § 1231. Under those protections, the
Executive cannot expel an alien to a country in which the alien
“demonstrates that he likely would be tortured.” Nasrallah v.
Barr, 140 S. Ct. 1683, 1687 (2020).
Like § 1231(b)(3)(A), those protections are mandatory.
Id. Like § 1231(b)(3)(A), they limit only where aliens can be
expelled. Id. And like § 1231(b)(3)(A), they grant aliens no
lawful status in the United States. See id. at 1691.
Our earlier analysis of § 1231(b)(3)(A) thus applies
equally to the protections that Congress has enacted to
implement the Convention Against Torture. For the same
reasons that § 265 does not allow the Executive to contravene
§ 1231(b)(3)(A), the Executive cannot contravene the
Convention Against Torture.9
9 On its face, the CDC’s § 265 Order promises to allow Convention-
Against-Torture claims to a limited degree. The parties dispute
whether that promise is illusory in practice. The District Court did
not reach that issue, and we need not do so here. It is a fact-bound
inquiry best addressed first by the District Court.

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26
C
The Executive argues that § 265 permits it to suspend
§ 1231’s limits on where the Executive can expel aliens. It
relies on § 265’s reference to “a suspension of the right to
introduce . . . persons or property.”
But § 1231 does not give aliens a “right to introduce” for
§ 265 to suspend. Its protections do not permit aliens to enter
the country. Nor do they give aliens a right to ask the Executive
for lawful status once they are here. Instead, § 1231 governs
where the Executive can expel aliens — a limit on executive
discretion far afield from any right of aliens “to introduce”
themselves into the country.
* * *
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.
That does not make their presence here legal. Nor does it
give them a path to asylum. Nor does it stop the Executive
from detaining them.10 Nor does it curb the Executive’s power
to expel them to a country where they will not be persecuted or
tortured. It does not even mean the Plaintiffs are certain to
succeed on the merits of their § 1231 claim after it has been
fully litigated: No one should read our opinion to bind the
District Court or future circuit panels regarding the final
answer to the challenging merits questions raised by this case.
10 See 8 U.S.C. § 1231 note (“Nothing in this section shall be
construed as limiting the authority of the Attorney General to detain
any person under any provision of law”).

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27
See University of Texas v. Camenisch, 451 U.S. 390, 395
(1981) (“it is generally inappropriate for a federal court at the
preliminary-injunction stage to give a final judgment on the
merits”).
With that, we 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.
V
Because the Plaintiffs are likely to succeed on the merits
of their § 1231 claims, we apply the other preliminary
injunction factors to decide whether the Plaintiffs are entitled
to relief on those claims.
We conclude that the District Court did not abuse its
discretion in finding that the Plaintiffs have established they
will suffer irreparable injury absent a preliminary injunction
requiring the Executive to afford them withholding-of-removal
and Convention-Against-Torture protections. We also
conclude that the District Court did not abuse its discretion in
determining that the balance of equities favors their request.
A
The Executive makes no credible attempt to deny that the
Plaintiffs will suffer irreparable harm if they are expelled to

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28
places where they will be persecuted or tortured. It admits it is
“aware of . . . the quite horrific circumstances that non-citizens
are in in some of the countries that are at issue here.”
Transcript of Oral Argument at 27:13-16. And for covered
aliens who have already been forced to walk the plank into
those places, the record is replete with stomach-churning
evidence of death, torture, and rape. App. 344-47, 356-58, 366-
67.
The Executive replies that the Plaintiffs will not suffer
irreparable harm absent an injunction because vacating the
preliminary injunction will “simply preserve the pre-litigation
status quo.” Appellant’s Br. at 53. But that’s backwards. “The
status quo is the last uncontested status which preceded the
pending controversy.” District 50, United Mine Workers of
America v. International Union, United Mine Workers of
America, 412 F.2d 165, 168 (D.C. Cir. 1969) (emphasis added)
(cleaned up). The traditional goal of a preliminary injunction
is to preserve that status quo. See id. And in this case, that
status quo is the regime in place before the CDC’s § 265 orders.
See 11A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2948 (3d ed. 1998)
(“Courts also have awarded preliminary injunctions when it is
necessary to compel defendant to correct injury already
inflicted by defining the status quo as ‘the last peaceable
uncontested status’ existing between the parties before the
dispute developed.”).
To be sure, in and of itself, expulsion “is not categorically
irreparable” harm. Nken v. Holder, 556 U.S. 418, 435 (2009).
But elsewhere, the Executive has played up the same injuries
from expulsions it plays down here. In defending its repeal of
the “Remain in Mexico” policy, the Executive recently said
that sending similarly situated aliens to dangerous places
“exposes migrants to unacceptable risks” of “extreme

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29
violence.” Petition for Writ of Certiorari at 11, 15, Biden v.
Texas, No. 21-954 (U.S. Dec. 29, 2021). It cited “persecution,
abuse, and other harms.” Id. at 7. And it stated that a policy
enabling those injuries does not “align with” its “values.” Id.
at 11.11
B
Because the Plaintiffs’ irreparable harm is not credibly
disputed, the final question is whether the remaining factors
favor the Plaintiffs. Those factors are “the balance of equities
and the public interest.” See Doe v. Mattis, 928 F.3d 1, 23
(D.C. Cir. 2019). “When a private party seeks injunctive relief
against the government,” those two remaining factors
“generally call for weighing the benefits to the private party
from obtaining an injunction against the harms to the
government and the public from being enjoined.” Id.
Here, that weighing exercise is one-sided. As explained
above, the Executive has in effect conceded that an injunction
would be of tremendous benefit to the Plaintiffs. It would spare
them “extreme violence.” Petition for Writ of Certiorari at 11,
Biden v. Texas, No. 21-954 (U.S. Dec. 29, 2021). Plus, the
Supreme Court has said that the public has a strong interest in
“preventing aliens from being wrongfully removed,
particularly to countries where they are likely to face
substantial harm.” Nken, 556 U.S. at 436.
On the other side of the scales is the Executive’s
questionable claim that COVID-19’s spread is slowed in a
11 The Executive says the § 265 Order allows for case-by-case
humanitarian exceptions. App. 151. But the Executive has not
argued that those exceptions have prevented the harms that the
Plaintiffs established in the record. App. 344-47, 356-58, 366-67.

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30
meaningful way by the CDC’s § 265 Order — which the
Plaintiffs say covers just 0.1% of border crossers. App. 458.
To begin with, the Plaintiffs’ likelihood of success on the
merits lightens the Executive’s stated interests. In Youngstown
Sheet & Tube Co. v. Sawyer, for example, the Supreme Court
affirmed the district court’s preliminary injunction of an illegal
executive order even though a wartime President said his order
was “necessary to avert a national catastrophe.” 343 U.S. 579,
582 (1952). More recently, the Supreme Court confirmed that
“our system does not permit agencies to act unlawfully even in
pursuit of desirable ends.” Alabama Association of Realtors v.
HHS, 141 S. Ct. 2485, 2490 (2021); see also NFIB v.
Department of Labor, 142 S. Ct. 661, 666 (2022) (staying an
illegal vaccine mandate even though the government said the
mandate would save more than 6,500 lives).
Of course, “the public has a strong interest in combating
the spread of” COVID-19. Alabama Association of Realtors,
141 S. Ct. at 2490. But this is March 2022, not March 2020.
The CDC’s § 265 order looks in certain respects like a relic
from an era with no vaccines, scarce testing, few therapeutics,
and little certainty. Cf. Roman Catholic Diocese of Brooklyn
v. Cuomo, 141 S. Ct. 63, 78 (2020) (Breyer, J., dissenting) (“the
need for action is immediate, the information likely limited, the
making of exceptions difficult, and the disease-related
circumstances rapidly changing”). The evidence of the
difference between then and now is considerable. See Kiran
Stacey, ‘Full Blown’ Pandemic Phase of Covid Nearly Over in
U.S., Declares Anthony Fauci, Financial Times (Feb. 8, 2022),
https://www.ft.com/content/3800e619-3404-4e57-a9eb
-dab311405c2a; Natalie Andrews & Sabrina Siddiqui, Some
Democrats Push Biden to Embrace Normalcy as Covid-19
Cases Ease, Wall Street Journal (Feb. 12, 2022),
https://www.wsj.com/articles/some-democrats-push-biden-to

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31
-embrace-normalcy-as-covid-19-cases-ease-11644667202.
We cannot blindly defer to the CDC in these circumstances.
Absent the § 265 Order, the Executive observes that
Customs and Border Protection officials will spend more time
with the covered aliens. But the Order itself notes that CBP
personnel have access to effective vaccines, abundant testing,
and plenty of face masks. App. 137, 141, 146 n.90; see also
Update on Implementation of COVID-19 Vaccination
Requirement for Federal Employees, The White House (Dec.
9, 2021), https://www.whitehouse.gov/omb/briefingroom
/2021/12/09/update-on-implementation-of-covid%E2
%81%A019-vaccination-requirement-for-federal-employees
(as of last December, 89.5% of Department of Homeland
Security employees had received at least one dose of the
COVID-19 vaccine). And covered aliens held in congregate
settings are given new masks every day. App. 141.
The Executive also speculates about a risk of COVID-19
spreading from aliens held in congregate settings to the general
public. But as we’ve stated multiple times, the preliminary
injunction affirmed here does not require “catch and release.”
It does not bar the Executive from detaining covered aliens
until they can be expelled. It only requires the Executive to
refrain from expelling them to a place where they will likely be
persecuted or tortured. And through an expedited removal
process enacted by Congress in 1996, the Executive can
quickly expel aliens with non-credible claims for relief under
§ 1231(b)(3)(A) and the Convention Against Torture.
We are not cavalier about the risks of COVID-19. And we
would be sensitive to declarations in the record by CDC
officials testifying to the efficacy of the § 265 Order. But there
are none. See Transcript of Oral Argument at 32:12-17.

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32
To be sure, as with most things in life, no approach to
COVID-19 can eliminate every risk. But from a public-health
perspective, based on the limited record before us, it’s far from
clear that the CDC’s order serves any purpose. The District
Court therefore did not abuse its discretion in determining that
the balance of equities favors the Plaintiffs.
* * *
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.
So Ordered.

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