COVID-19 Expulsions to Continue?

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October 29, 2021

IRLI shows why activist court should be reversed

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the DC Circuit Court of Appeals supporting the government’s appeal of a lower-court injunction against the Trump-initiated policy of expelling illegal aliens who cross the border under a public health statute. The appellate court had previously suspended the injunction, allowing the expulsions, meant to protect the nation against COVID-19, to continue pending appeal.

In its brief, IRLI tears into the flawed reasoning of the lower court, which argued that the power Congress gave the executive in the health statute to “prohibit the introduction” of aliens at a land border did not include the power to expel aliens who had already been “introduced” by crossing the border. Even if the court’s flawed definition of “introduced” were correct, IRLI points out, the power Congress gave the executive to “prohibit” the introduction of aliens is illusory and cannot be executed if it does not include a power to expel aliens who violate its prohibitions. It is obvious that Congress did not grant an illusory power in such an important area as the public health.

“The lower court’s ruling in this case was both absurd and dangerous,” said Dale L. Wilcox, executive director and general counsel of IRLI. “To say that federal officers can prohibit people from crossing the border, but then have to stand there and do nothing if they do cross the border, is ridiculous. We hope the DC Circuit sees the glaring error of that ruling, and allows this vital national program to go on.”

The case is Huisha-Huisha v. Mayorkas, No. 21-5200 (DC Circuit).

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