Will COVID Expulsions Keep Going?

September 13, 2022

IRLI shows appellate court why Biden’s termination of program is unlawful

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in the Fifth Circuit Court of Appeals in a case putting at issue whether the Biden administration may terminate the Trump-initiated policy of expelling illegal aliens who cross the border from a country—such as Mexico—where COVID-19 is prevalent. A federal district court struck down that termination, and now the administration seeks a reversal in the Fifth Circuit.

Earlier, IRLI, representing Texas, won an injunction against Biden’s weakening of the COVID-19 expulsion program through large exceptions. When the administration responded to this injunction by deciding to terminate the entire program, Texas joined the present case.

In its brief opposing reversal of the district court’s block on that termination, IRLI shows why the termination violated federal law. Under the Administrative Procedure Act, an agency action is unlawful if it is “arbitrary and capricious.” And courts have explained that an action is arbitrary and capricious if the agency failed to consider relevant factors.

Here, a glaringly relevant factor is the impact of a law requiring the administration to detain all aliens who might have a communicable disease for observation and testing, and not release them if they are contagious. Given the administration’s self-created shortage of detention resources, it was obviously a relevant consideration whether ending COVID-19 expulsions would make the administration violate the health-detention law on a massive scale, endangering the public health in the process. Yet the administration never even considered this factor.

“It doesn’t take too many resources, comparatively speaking, just to summarily exclude people at the border to protect the public from a pandemic,” said Dale L. Wilcox, executive director and general counsel of IRLI. “It takes far more to detain them and test them. The administration should have thought about its inability to detain and test if it ended expulsions, but it did not. We hope the Fifth Circuit recognizes this, upholds the district court, and keeps this vital program—which now is back in its original form, lacking the exceptions we got rid of in our earlier case—in force.”

The case is Louisiana v. Centers for Disease Control and Prevention, No. 22-30303 (Fifth Circuit).