Refugee and Immigrant Center for Education and Le v. Kristi Noem

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5243 September Term, 2024

1:25-cv-00306-RDM

Filed On: August 1, 2025

Refugee and Immigrant Center for Education

and Legal Services, et al.,

Appellees

v.

Kristi Noem, Secretary of the U.S.

Department of Homeland Security, in her

official capacity, et al.,

Appellants

BEFORE: Millett, Pillard, and Katsas, Circuit Judges

ORDER

Upon consideration of the emergency motion for stay pending appeal, the amicus

curiae briefs in support of that motion, the opposition to the motion, and the reply; and

the motion to expedite, the opposition thereto, and the reply, it is

ORDERED that the administrative stay entered on July 11, 2025, be dissolved. It

is

FURTHER ORDERED that the emergency motion for stay pending appeal be

denied in part and granted in part. The motion is granted to clarify that the class

definition currently applies only to all individuals who (1) are present in the United States

while Proclamation 10888 and/or its implementation is in effect, (2) are not statutorily

ineligible for all forms of relief from removal listed in point (3), and (3) absent the

Proclamation and/or its implementing guidance, would seek asylum, 8 U.S.C. § 1158,

withholding of removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b), or

withholding under the Convention Against Torture, see Foreign Affairs Reform and

Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-822 (1998)

(codified at 8 U.S.C. § 1231 note).

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5243 September Term, 2024

The motion for stay also is granted as to the district court’s orders vacating the

Proclamation’s implementing guidance on applications for asylum, enjoining removal of

any class members without complying with the asylum statute, and declaring unlawful

the Proclamation insofar as it purports to suspend or to restrict access to asylum. In all

other respects, the motion is denied.* It is

FURTHER ORDERED that this appeal be expedited and the following briefing

schedule apply:

Appellants’ Brief August 22, 2025

Appendix August 22, 2025

Appellees’ Brief September 12, 2025

Appellants’ Reply Brief September 26, 2025

The Clerk is directed to calendar this case for argument on the first appropriate

date following the conclusion of briefing. The parties will be informed later of the date of

oral argument and the composition of the merits panel.

Due to the expedited nature of this case, the court will not entertain dispositive

motions. The parties should therefore address in their briefs any arguments otherwise

properly raised in such motions.

Appellants should raise all issues and arguments in the opening brief. The court

ordinarily will not consider issues and arguments raised for the first time in the reply

brief.

To enhance the clarity of their briefs, the parties are urged to limit the use of

abbreviations, including acronyms. While acronyms may be used for entities and

statutes with widely recognized initials, briefs should not contain acronyms that are not

*

A concurring statement from Judge Millett, a statement concurring in part and

dissenting in part from Judge Pillard, and a statement concurring in part and dissenting

in part from Judge Katsas are attached.

Page 2

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5243 September Term, 2024

widely known. See D.C. Circuit Handbook of Practice and Internal Procedures 43–44

(2024); Notice Regarding Use of Acronyms (D.C. Cir. Jan. 26, 2010).

Parties are strongly encouraged to hand deliver the paper copies of their briefs to

the Clerk’s office on the date due. Filing by mail may delay the processing of the brief.

Additionally, counsel are reminded that if filing by mail, they must use a class of mail

that is at least as expeditious as first-class mail. See Fed. R. App. P. 25(a). All briefs

and appendices must contain the date that the case is scheduled for oral argument at

the top of the cover. See D.C. Cir. Rule 28(a)(8).

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Selena R. Gancasz

Deputy Clerk

Page 3

MILLETT, Circuit Judge, concurring in the order granting

a stay in part and denying a stay in part: On January 20, 2025,

President Trump issued Proclamation 10888, which declares

that “the current situation at the southern border qualifies as an

invasion” because “[t]he sheer number” of noncitizens

“entering the United States has overwhelmed the system” and

is “prevent[ing] the Federal Government from obtaining

operational control of the border.” Proclamation 10888,

Guaranteeing the States Protection Against Invasion, 90 Fed.

Reg. 8,333, 8,334 (Jan. 20, 2025). The Proclamation and

subsequently issued agency guidance prevent any person

crossing the border outside a designated port of entry, as well

as any person crossing at a designated entry port without a visa

and other required documentation, from seeking asylum or

other removal protections.

Thirteen individuals subject to the Proclamation and its

implementation, as well as three nonprofit organizations, filed

a class action lawsuit. The district court granted summary

judgment in their favor, declared the implementing guidance

unlawful and vacated it, enjoined agency officials from

perpetuating that same unlawful action under the Proclamation,

and certified a class consisting of all individuals who are or will

be subject to the Proclamation. The government now seeks a

stay of the district court’s decision pending appeal.

I would grant the stay in part and deny it in part. The

government is likely to succeed in showing that the class

definition should be modified. It is also likely to succeed in

arguing that the Proclamation and its implementing guidance

effect an upfront, categorical discretionary denial of asylum as

permitted by circuit precedent. The government, however, is

unlikely to show that the Proclamation or its implementing

guidance otherwise lawfully allows the removal of noncitizens

already present in the United States, or that the Proclamation

or its implementing guidance complies with the statutorily

mandatory withholding of removal provisions required by the

2

Immigration and Nationality Act and the Convention Against

Torture, as codified in federal law.

I

A

1

The Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1101 et seq., establishes, among other things, a

comprehensive framework governing the admission or entry of

foreign persons into the United States. Section 1182 of the INA

specifically delineates the grounds of “[i]nadmissib[ility],” and

identifies predetermined classes of foreign persons who are

ineligible for admission. 8 U.S.C. § 1182(a)(1)–(10). With

respect to foreign persons, the terms “admission” and

“admitted” are defined as “the lawful entry of the alien into the

United States after inspection and authorization by an

immigration officer.” Id. § 1101(a)(13)(A).

“Entry,” as a matter of immigration law historically and in

precedent, means “any coming of an alien into the United

States, from a foreign port or place or from an outlying

possession, whether voluntarily or otherwise * * * .” Pub. L.

No. 82-414, § 101(a)(13), 66 Stat. 163, 167 (1952); see also

Barber v. Gonzales, 347 U.S. 637, 641–642 (1954) (explaining

that this definition codified a technical and historical

understanding of the term “entry” as requiring “an arrival from

some foreign port or place”).

Section 1182(f), in turn, allows the President “by

proclamation” to “suspend the entry” of any foreigners he finds

“would be detrimental to the interests of the United States.” 8

U.S.C. § 1182(f). This suspension can last “for such period as

3

he shall deem necessary[.]” Id. Section 1182(f)’s

proclamation power “provides a safeguard against the danger

posed by any particular case or class of cases that is not covered

by one of the [admission] categories in section 1182(a).”

Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986),

aff’d, 484 U.S. 1 (1987). Courts afford great deference to the

President’s decisions regarding “whether and when to suspend

entry[,] * * * whose entry to suspend[,] * * * for how long[,]

* * * and on what conditions[.]” Trump v. Hawaii, 585 U.S.

667, 684 (2018).

Relatedly, 8 U.S.C. § 1185, entitled “Travel control of

citizens and aliens,” allows the President to adopt “reasonable

rules, regulations, and orders” to supplement and effectuate the

INA’s statutory provisions governing any foreign person’s

“depart[ure] from or ent[ry into] * * * the United States * * *

subject to such limitations and exceptions as [he] may

prescribe.” 8 U.S.C. § 1185(a)(1). While the language of

Section 1185(a)(1) expressly allows regulation of a foreigner’s

choice to depart from the United States, the Supreme Court has

indicated that this provision also governs the involuntary

removal process. Trump v. Hawaii, 585 U.S. at 683 n.1 (“8

U.S.C. § 1185(a) * * * grants the President authority to adopt

‘reasonable rules, regulations, and orders’ governing entry or

removal of aliens[.]”).

Congress has “plenary power” over the creation of the

Nation’s immigration laws. Zadvydas v. Davis, 533 U.S. 678,

695 (2001); see Trump v. Hawaii, 585 U.S. at 683 (“[Congress]

has establishe[d] numerous grounds on which an alien abroad

may be inadmissible to the United States and ineligible for a

visa.”); Immigration and Nationality Service v. Chadha, 462

U.S. 919, 940 (1983) (“The plenary authority of Congress over

aliens under Art. I, § 8, cl. 4 is not open to question[.]”); see

also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S.

4

320, 339–340 (1909) (explaining that “over no conceivable

subject is the legislative power of Congress more complete”

than “over the right to bring aliens into the United States * * *

[or the] impos[ition] [of] particular restrictions on the coming

in of aliens”); see generally U.S. CONST., Art. I, § 8, cls. 4, 18.

The President also has a constitutional role in immigration

law given his control over foreign affairs and duty to faithfully

execute the immigration laws. See U.S. CONST., Art. II, §§ 2–

3; American Ins. Ass’n. v. Garamendi, 539 U.S. 396, 414

(2003) (“[T]he historical gloss on the ‘executive Power’ vested

in Article II of the Constitution has recognized the President’s

‘vast share of responsibility for the conduct of our foreign

relations.’”) (quoting Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 610–611 (1952) (Frankfurter, J., concurring));

United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542

(1950) (“The exclusion of aliens is a fundamental act of

sovereignty. The right to do so stems not alone from legislative

power but is inherent in the executive power to control the

foreign affairs of the nation.”).

In the exercise of its legislative power over immigration,

Congress has “delegated to the President authority to suspend

or restrict the entry of aliens in certain circumstances.” Trump

v. Hawaii, 585 U.S. at 683. See generally Arizona v. United

States, 567 U.S. 387, 394 (2012) (“The Government of the

United States has broad, undoubted power over the subject of

immigration and the status of aliens.”); Fiallo v. Bell, 430 U.S.

787, 792 (1977) (“[T]he power to expel or exclude aliens [i]s a

fundamental sovereign attribute exercised by the

Government’s political departments[.]”) (formatting

modified).

Finally, the Constitution also vests Congress with the

power to “repel Invasions.” U.S. CONST., Art. I, § 8, cl. 15. In

5

addition, Article IV calls upon the “United States” to “protect

each [State] against Invasion[.]” U.S. CONST., Art. IV, § 4.

The same clause calls upon the “Legislature, or * * * the

Executive (when the Legislature cannot be convened)” to

protect each state “against domestic Violence.” Id. While

“primarily a legislative power,” these clauses empower the two

branches to work together to counter invasions. Texas v. White,

74 U.S. (7 Wall.) 700, 701 (1868), overruled on other grounds,

Morgan v. United States, 113 U.S. 476 (1885); see Luther v.

Borden, 48 U.S. (7 How.) 1, 43 (1849); see also Refugee &

Immigrant Center for Educ. & Legal Servs. v. Noem,

(“RAICES”) No. CV 25-306 (RDM), 2025 WL 1825431, at *38

(D.D.C. July 2, 2025).

2

As relevant here, federal law provides three forms of

removal protection for foreign individuals who have entered

the United States without authorization.

First, the INA authorizes the Attorney General and

Secretary of Homeland Security to grant asylum to any

individual who is a “refugee” within the meaning of the INA.

8 U.S.C. § 1158(b)(1)(A); see also id. § 1103(a)(1) & (3). A

“refugee” is a person “unable or unwilling to return to” or

“avail * * * herself of the protection of” her country of

nationality or the last country she resided in “because of

persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social

group, or political opinion[.]” Id. § 1101(a)(42)(A). Asylum

confers a number of benefits, including protection from

deportation or removal, id. § 1158(c)(1)(A), 8 C.F.R. § 208.22,

a pathway to lawful permanent residence, 8 C.F.R. § 209.2,

and, eventually, citizenship, 8 U.S.C. § 1429.

6

Any noncitizen can seek asylum “irrespective” of that

person’s legal “status[.]” 8 U.S.C. § 1158(a)(1). But the

ultimate decision whether to grant asylum, even to those

meeting the statutory criteria, rests in the discretion of the

Attorney General or Secretary of Homeland Security. Id.

§ 1158(b)(1)(A). 1

Second, individuals whom the government seeks to expel

can obtain withholding of removal. The INA forbids the

Attorney General from removing a noncitizen “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). 2

Third, a noncitizen can seek relief from removal under the

Foreign Affairs Reform and Restructuring Act of 1998

1

The asylum statute forbids individuals from applying for such

relief if (1) the Attorney General determines that the applicant can be

sent to a country where her life or freedom will not be threatened and

she will have a full and fair opportunity to seek asylum there; (2) the

applicant fails to apply within one year of arrival; or (3) the applicant

was previously denied asylum. 8 U.S.C. § 1158(a)(2)(A)–(C). The

government does not claim that the Proclamation or implementing

guidance applies solely to individuals who meet these exceptions.

2

The INA identifies four categories of persons who are

statutorily ineligible to receive withholding of removal. See 8 U.S.C.

§ 1231(b)(3)(B) (individuals are ineligible if they participated in the

persecution, torture, or extrajudicial killing of others; were convicted

of a serious crime and are a danger to the community; committed a

serious nonpolitical crime outside the United States; or otherwise are

a danger to the security of the United States) (citing 8 U.S.C.

§ 1227(a)(4)(D)). The government does not claim that the

Proclamation or guidance applies only to persons in those categories.

7

(“FARRA”), which implements the United Nations

Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment, Pub. L. No. 105-277,

§ 2242, 112 Stat. 2681-822 (1998) (codified at 8 U.S.C. § 1231

note). The INA requires the agencies carrying out immigration

laws to prescribe regulations to implement the Convention

Against Torture, 8 U.S.C. § 1231 note (b), by forbidding the

removal of individuals to countries where they are likely to be

tortured, 8 C.F.R. § 208.16(c)(4); id. § 1208.16(c)(4). 3

Withholding under the INA and the Convention Against

Torture are mandatory, not discretionary. See Huisha-Huisha

v. Mayorkas, 27 F.4th 718, 725 (D.C. Cir. 2022); see also

Nasrallah v. Barr, 590 U.S. 573, 575 (2020) (“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[.]”); Immigration and Nationality Service v.

Aguirre-Aguirre, 526 U.S. 415, 419 (1999) (“[W]ithholding is

mandatory if an alien establish[es] that it is more likely than

not that [he] would be subject to persecution on one of the

specified grounds[.]”) (formatting modified).

The withholding provisions provide more limited relief

than asylum. Specifically, they ensure only that individuals

will not be removed to countries where they will be threatened

or tortured, but they “do not entitle [them] to any legal status in

the United States” or to avoid removal to other countries where

3

Individuals who are categorically ineligible for withholding

of removal are also ineligible for Convention Against Torture relief.

See 8 C.F.R. §§ 208.16(d)(2), 1208.16(d)(2) (citing the withholding

of removal exceptions, 8 U.S.C. § 1231(b)(3)(B)). The government

does not claim the Proclamation or guidance apply only to persons

falling within these exclusions.

8

they will not face persecution or torture. Huisha-Huisha, 27

F.4th at 725; see Nasrallah, 590 U.S. at 575.

B

1

In issuing the Proclamation, the President invoked 8

U.S.C. §§ 1182(f) and 1185(a)(1) and Article II of the

Constitution. See Proclamation 10888, Guaranteeing the States

Protection Against Invasion, 90 Fed. Reg. 8,333 (Jan. 20,

2025). The Proclamation first suspends “entry into the United

States” on or after January 20, 2025 of persons “engaged in the

invasion across the southern border[.]” Proclamation § 1. The

Proclamation further suspends the “entry into the United

States” of persons who—regardless of their point of entry—

“fail[], before entering the United States, to provide Federal

officials with sufficient medical information and reliable

criminal history and background information as to enable”

immigration officials to make statutorily required judgments

about admissibility, 8 U.S.C. § 1182(a)(1)–(3). See

Proclamation § 3. The Proclamation prohibits all persons

subject to the Proclamation from invoking statutory protections

“that would permit their continued presence in the United

States, including but not limited to” the asylum statute, 8

U.S.C. § 1158. Proclamation §§ 2–3.

Lastly, the Proclamation directs the Secretary of the

Department of Homeland Security, in coordination with the

Attorney General and Secretary of State, to “take appropriate

actions as may be necessary to achieve the objectives of [the

Proclamation], until [the President] issue[s] a finding that the

invasion at the southern border has ceased,” and to “take all

appropriate actions to repel, repatriate, or remove” any person

“engaged in the invasion across the southern border of the

9

United States on or after the date of this order.” Proclamation

§§ 4–5.

2

To carry out the directives of the Proclamation, the

Department of Homeland Security issued informal guidance to

immigration enforcement officials. See ECF No. 52-1. In two

emails sent February 4, 2025, the Department directed the

immediate implementation of the Proclamation at the borders.

The first email provided “Update[d] Field Guidance” for “all

Southwest Border Sectors.” Id. at 5. That email defines

“illegal alien invading the United States” to mean “an alien

who crosses between the ports of entry on the southern land

border[.]” Id. It also states that “aliens invading the United

States are not permitted to apply for asylum.” Id.

A second “Field Guidance” email advised that entry is

suspended at the southern, northern, and coastal borders for all

individuals who “fail[], before entering the United States, to

provide Federal officials with sufficient medical information

and reliable criminal history and background information as to

enable” immigration officials to make statutorily required

judgments about admissibility, 8 U.S.C. § 1182(a)(1)–(3).

ECF No. 52-1 at 13; Proclamation § 3. In addition, those

persons “are restricted from invoking provisions of the INA,

including asylum, that would permit their continued presence.”

ECF No. 52-1 at 13.

In addition, both guidance emails direct that noncitizens

subject to the Proclamation may now be removed either by

“212(f) Direct Repatriation” or by “212(f) Expedited

Removal[.]” ECF No. 52-1 at 5–6, 13–14. The only difference

between the two pathways is that persons subject to 212(f)

expedited removal “are served with a Notice to Alien Ordered

10

Removed[,]” while those issued a 212(f) Direct Repatriation

order do not receive a removal order. ECF No. 59 at 7. The

government explained that the distinction matters because

“repatriations do not carry the same immigration or criminal

consequences as expedited removal[.]” Id. at 8. Which

procedure will be applied depends on the “totality of the

circumstances.” ECF No. 52-1 at 5, 13.

Both removal pathways displant several statutory

protections from removal and their accompanying procedures.

For example, existing published regulations require an

immigration officer both to read a form to a person at the border

or who has entered the United States saying “U.S. law provides

protection to certain persons who face persecution, harm or

torture upon return to their home country,” and then to instruct

the individual to advise the officer about any “fear” or

“concern” about “being removed from the United States or

about being sent home.” See 8 C.F.R. § 235.3(b)(2)(i)

(requiring immigration officers to read Form I-867A to

noncitizens); RAICES, 2025 WL 1825431, at *14; see also 9

Charles Gordon et al., Immigration Law and Procedure, App’x

B, Ex. 16K (2024) (reproducing the text of Form I-867A). If

the individual “indicates an intention to apply for asylum, or

expresses a fear of persecution or torture, or a fear of return to

his or her country,” the immigration officer must refer that

person for an interview by an asylum officer and provide

information about the credible-fear interview process, the right

to consult with other persons before the interview, and the right

to request review by an immigration judge of the asylum

officer’s credible fear determination. 8 C.F.R. § 235.3(b)(4).

The guidance provided to asylum officers under the

Proclamation, however, prohibits adherence to those published

regulations and, instead, provides that only those persons who

of their own accord “manifest[] fear” to an immigration officer

11

will be given a “CAT [Convention Against Torture]-Only

Assessment[.]” ECF No. 52-1 at 43–44. The purpose of that

assessment is “to determine if it is more likely than not that the

individual will be tortured” in the country to which she may be

returned. Id. at 47. Immigration officials, however, will “not

assess[] [the risk of] persecution on account of a protected

ground.” Id.; contrast 8 U.S.C. § 1231(b)(3)(A). As a result,

the guidance extinguishes the mandatory statutory withholding

required by 8 U.S.C. § 1231(b)(3)(A). In addition, contrary to

existing regulations, individuals are denied the opportunity to

review the asylum officer’s initial determination of their

eligibility for withholding and are denied access to consultants

or legal representatives during the interview. Compare ECF

No. 52-1 at 38, 46, with 8 C.F.R. § 208.9(a)(1)–(b).

C

Thirteen individuals proceeding pseudonymously and

three nonprofit organizations—Refugee and Immigrant Center

for Education and Legal Services, Las Americas Immigrant

Advocacy Center, and the Florence Immigrant & Refugee

Rights Project—filed a putative class action challenging the

Proclamation and its implementing guidance. ECF No. 11 at

3–8 (Am. Compl. ¶¶ 9–19). The complaint named fifteen

defendants: President Trump, in his official capacity; the

Departments of Homeland Security, State, and Justice; three

components of the Department of Homeland Security

(Customs and Border Patrol, Immigration and Customs

Enforcement, and United States Citizenship Immigration

Services (“USCIS”)); and multiple agency officials sued in

their official capacity. Id. at 8–10 (Am. Compl. ¶¶ 20–34).

The complaint alleges that the Proclamation and its

implementation exceed the President’s authority under 8

U.S.C. §§ 1182(f) and 1185(a), Article II of the Constitution,

12

and the separation of powers. ECF No. 11 at 37–39 (Am.

Compl. ¶¶ 145–160). The complaint also asserts that the

Proclamation and its implementation violate the INA’s

prescribed procedures for removal, asylum, and withholding of

removal, 8 U.S.C. §§ 1225(b)(1)(A)(i), 1229, 1158,

1231(b)(3), as well as the Convention Against Torture, 8

U.S.C. § 1231 note, and its formal regulations, 8 C.F.R.

§§ 208.16, 1208.16. ECF No. 11 at 31–35 (Am. Compl.

¶¶ 112–122, 128–131). Finally, the complaint claims that the

Proclamation’s implementation runs afoul of the

Administrative Procedure Act, 5 U.S.C. § 706. ECF No. 11 at

35–37 (Am. Compl. ¶¶ 132–143).

Plaintiffs moved for class certification, ECF No. 13, a

preliminary injunction, ECF No. 14, and summary judgment,

ECF No. 51. The government cross-moved for summary

judgment. ECF No. 44. At the parties’ joint request, the

district court consolidated the preliminary injunction and

summary judgment proceedings. See Minute Order (Feb. 26,

2023).

On July 2, 2025, the district court granted in part the

Plaintiffs’ motions for summary judgment and class

certification. See RAICES, 2025 WL 1825431. First, the

district court granted in part the motion for class certification.

Id. at *46. The court certified a class of “[a]ll individuals who

are or will be subject to Proclamation 10888 and/or its

implementation, who are present or who will be present in the

United States[.]” ECF No. 72 (internal quotation marks

omitted).

Second, the court held that the President lacks statutory or

constitutional authority to (1) institute the “212(f) Direct

Repatriation” and “212(f) Expedited Removal” procedures, (2)

categorically foreclose all asylum and withholding of removal

13

applications, and (3) short-circuit the regulatory process for

withholding under the INA and the Convention Against

Torture. See RAICES, 2025 WL 1825431, at *31–45.

Third, the district court vacated the Department’s guidance

implementing the Proclamation as contrary to law, 5 U.S.C.

§ 706, and entered a declaratory judgment against all the

defendants except the President holding that the Proclamation

is unlawful “insofar as it purports to suspend or restrict access

to asylum, withholding of removal, or the existing regulatory

processes for obtaining CAT protection.” RAICES, 2025 WL

1825431, at *50–51.

Fourth, the district court permanently enjoined all

defendants other than the President from “implementing the

Proclamation, including by adopting extra-statutory expulsion

procedures”; removing noncitizens without complying with the

statutorily mandated withholding procedures under the

Convention Against Torture; and comprehensively barring

asylum. RAICES, 2025 WL 1825431, at *55.

The district court denied the government’s request for a

stay pending appeal and its order went into effect for the

individual plaintiffs immediately. See RAICES, 2025 WL

1825431, at *56; ECF No. 73 at 3. In so ruling, the court relied

on the government’s express representation that the

Department of Homeland Security “decided, in an exercise of

its prosecutorial discretion, not to employ the Invasion

Proclamation challenged in this suit as a basis for removal of

any of the named Plaintiffs currently in the United States

during the pendency of this litigation.” ECF No. 21 at 1. The

court then postponed the effective date of its order as to absent

class members and the plaintiff organizations for fourteen days

to allow the government an opportunity to seek a stay pending

14

appeal from this court. See RAICES, 2025 WL 1825431, at

*56; ECF No. 73 at 3.

The government appealed and moved to stay the district

court’s order pending the resolution of its appeal. This court

granted an administrative stay on July 11, 2025, except as to

the individual plaintiffs for whom the district court’s order

remains in effect.

II

A stay pending appeal is an “extraordinary” remedy.

Citizens for Resp. & Ethics in Washington v. Federal Election

Comm’n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam).

To obtain such exceptional relief, the stay applicant must (1)

make a “strong showing that [it] is likely to succeed on the

merits” of the appeal; (2) demonstrate that it will be

“irreparably injured” before the appeal concludes; (3) show

that issuing a stay will not “substantially injure the other parties

interested in the proceeding”; and (4) establish that “the public

interest” favors a stay. Nken v. Holder, 556 U.S. 418, 434

(2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776

(1987)).

III

I would grant the motion for a stay in part and deny it in

part. First, because the precise scope of the district court’s class

definition is unclear, the government is likely to succeed in

showing that the class definition must be clarified to apply only

to “[a]ll individuals who (1) are present in the United States

while Proclamation 10888 and/or its implementation is in

effect, (2) are not statutorily ineligible for all forms of relief

from removal listed in point (3), and (3) absent the

Proclamation and/or its implementation, would seek asylum, 8

15

U.S.C. § 1158, withholding of removal under the Immigration

and Nationality Act, 8 U.S.C. 1231(b), or withholding under

the Convention Against Torture, see FARRA, Pub. L. No. 105-

277, § 2242, 112 Stat. 2681-822 (1998) (codified at 8 U.S.C.

§ 1231 note).”

The government has failed, however, to make a strong

showing of likely success on its argument that the Proclamation

and its implementation lawfully authorize the removal of

noncitizens already present in the United States under the

guidance’s truncated procedures. In particular, the government

is unlikely to succeed in showing that the Proclamation and its

implementing guidance comply with the statutorily mandatory

withholding of removal provisions required by the INA and the

Convention Against Torture for all persons present in the

United States, as well as for those arriving at the borders and

ports of entry without needed documentation.

As for asylum, the government has demonstrated that it is

likely to succeed in showing that the Proclamation’s and

guidance’s prohibition on asylum claims together constitute an

advance and categorical discretionary denial of asylum by the

President and his Attorney General or the Secretary of

Homeland Security for all applicants crossing the Nation’s

borders.

A

The district court’s certification of a class action is

governed by Federal Rule of Civil Procedure 23. That Rule

requires plaintiffs to show that: “(1) the class is so numerous

that joinder of all members is impracticable; (2) there are

questions of law or fact common to the class; (3) the claims or

defenses of the representative parties are typical of the claims

or defenses of the class; and (4) the representative parties will

16

fairly and adequately protect the interests of the class.” FED.

R. CIV. P. 23(a); see Amgen Inc. v. Connecticut Ret. Plans &

Trust Funds, 568 U.S. 455, 460 (2013). There is no dispute in

this stay proceeding that prong one’s requirement of

numerosity is satisfied.

Plaintiffs must also demonstrate that their proposed class

falls into one of the categories listed in Rule 23(b). As relevant

here, a class may be certified under Rule 23(b)(2) when “the

party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief

or corresponding declaratory relief is appropriate respecting

the class as a whole[.]” FED. R. CIV. P. 23(b)(2).

Article III of the Constitution requires that plaintiffs in

federal court demonstrate their standing to file suit.

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). To

demonstrate standing, a plaintiff must show “(1) it has suffered

an ‘injury in fact’ that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.”

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167, 180–181 (2000) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–561 (1992)).

The individual plaintiffs in this case unquestionably have

standing to challenge the Proclamation and its implementing

guidance. In a suit “challenging the legality of government

action[,]” if the “plaintiff is [herself] an object of the action

* * * at issue[,] * * * there is ordinarily little question that the

action * * * has caused [her] injury, and that a judgment

preventing or requiring the action will redress it.” Lujan, 504

U.S. at 561–562.

17

Here, the government’s Proclamation and guidance injure

the individual plaintiffs by barring them from seeking asylum

or withholding of removal and by making it harder for them to

obtain Convention Against Torture protection. The

government has not disputed that “asylum, withholding of

removal, and CAT protection are valuable forms of relief[.]”

RAICES, 2025 WL 1825431, at *17. And, as the district court

found, each individual plaintiff submitted a declaration

“expressing a desire to seek asylum and setting forth facts

sufficient to state a plausible claim to asylum, withholding of

removal, or CAT protection.” See id. (citing ECF No. 12-1

(A.M. Decl.); ECF No. 12-4 (B.R. Decl.); ECF No. 12-5 (M.A.

Decl.); ECF No. 12-6 (G.A. Decl.)). In addition, the Plaintiffs’

injuries are redressable through a court order vacating the

implementing guidance, declaring the Proclamation unlawful,

and enjoining the agencies’ enforcement of the Proclamation.

As a result, there is no Article III barrier to class certification. 4

As for class members, no showing is required that every

single absent class member has standing in cases seeking only

injunctive or declaratory relief. See J.D. v. Azar, 925 F.3d

1291, 1324 (D.C. Cir. 2019); Carolina Youth Action Project;

D.S. by & through Ford v. Wilson, 60 F.4th 770, 778 (4th Cir.

2023); Olean Wholesale Grocery Coop., Inc. v. Bumble Bee

Foods LLC, 31 F.4th 651, 682 (9th Cir. 2022); see also 1

Newberg and Rubenstein on Class Actions § 2:3 (6th ed. 2025)

(“If a class representative has standing, the case is justiciable

4

Because the individual plaintiffs have standing, I do not

address the standing of the three association plaintiffs. See Biden v.

Nebraska, 600 U.S. 477, 493–494 (2023); Town of Chester, N.Y. v.

Laroe Estates, Inc., 581 U.S. 433, 439 (2017).

18

and the proponent of the class suit need not demonstrate that

each class member has standing.”). 5

Here the district court broadly included within the class

“[a]ll individuals who are or will be subject to Proclamation

10888 and/or its implementation, who are currently present or

who will be present in the United States[.]” ECF No. 72

(emphases added) (quotation marks omitted). The best and

most natural reading of the court’s language is that the class

encompasses only those persons who are or will be present in

the United States during the presumably limited time period

that the Proclamation and its guidance are in effect. A fair

reading of the class certification also suggests that, in

referencing those “subject to [the] Proclamation,” the district

court meant to include only those who are statutorily eligible

for the forms of relief at issue in this litigation—asylum,

statutory withholding under the INA, or Convention Against

Torture withholding.

5

The government argued before the district court that 8 U.S.C.

§ 1252(f)(1) barred the individual plaintiffs from obtaining any form

of relief, making their injuries non-redressable. The government

does not re-raise that argument in its stay motion, and for good

reason. Section 1252(f)(1) does not apply “with respect to an

individual alien against whom proceedings * * * have been

initiated[.]” 8 U.S.C. § 1252(f)(1). The Supreme Court has said that

this provision “‘prohibits federal courts from granting classwide

injunctive relief’ but ‘does not extend to individual cases.’” Garland

v. Aleman Gonzalez, 596 U.S. 543, 550 (2022) (quoting Reno v.

American-Arab Anti-Discrimination Comm., 525 U.S. 471, 481–482

(1999)). Seven of the individual plaintiffs were issued I-860 Notices

to Appear, initiating proceedings against them. See RAICES, 2025

WL 1825431, at *18 (citing ECF No. 43-3 at 3–5 (Hollinder Decl.

¶¶ 4–11)).

19

The government is likely to succeed in showing that those

limitations are necessary to ensure the class includes only those

persons who are or will be affected by the litigation. To make

those criteria more explicit, I would, to the extent necessary,

stay the district court’s class certification judgment in part

pending appeal so that the class includes only: “All individuals

who (1) are present in the United States while Proclamation

10888 and/or its implementation is in effect, (2) are not

statutorily ineligible for all forms of relief from removal listed

in point (3), and (3) absent the Proclamation and/or its

implementing guidance, would seek asylum, 8 U.S.C. § 1158,

withholding of removal under the Immigration and Nationality

Act, 8 U.S.C. 1231(b), or withholding under the Convention

Against Torture, see FARRA, Pub. L. No. 105-277, § 2242,

112 Stat. 2681-822 (1998) (codified at 8 U.S.C. § 1231 note).”

With the class definition clarified, the government’s

remaining arguments challenging the class certification are

unlikely to succeed. See Gov’t Stay Mot. 14–17.

B

The Proclamation and its implementation rely on Sections

1182(f) and 1185(a) of Title 8 for the asserted authority not just

to prevent the entry of foreign individuals, but also to remove

noncitizens already present within the United States.

Essentially for the reasons provided in the district court’s

thorough opinion, the government is unlikely to succeed on

appeal in showing that those authorities empower the

government’s wholesale displacement of mandatory statutory

removal procedures.

20

1

Federal immigration law treats the entry and removal of

noncitizens already present in the United States differently, and

it has done so for decades. See Zadvydas, 533 U.S. at 693

(“The distinction between an alien who has effected an entry

into the United States and one who has never entered runs

throughout immigration law. * * * [O]nce an alien enters the

country, the legal circumstance changes * * * whether [the

noncitizen’s] presence here is lawful, unlawful, temporary, or

permanent.”); Leng May Ma v. Barber, 357 U.S. 185, 187

(1958) (“[O]ur immigration laws have long made a distinction

between those aliens who have come to our shores seeking

admission * * * and those who are within the United States

after an entry, irrespective of its legality.”); see also East Bay

Sanctuary Covenant v. Trump, 932 F.3d 742, 773–774 (9th Cir.

2018).

That difference is because, as the district court explained,

the INA contains different sections with distinct provisions that

specify (1) who may or may not lawfully enter or seek

admission to the United States, (2) which previously admitted

persons are subject to removal, (3) what protections each

category of persons can claim, and (4) the procedures for

removal. See RAICES, 2025 WL 1825431, at *4 (citing 8

U.S.C. §§ 1181, 1182, 1184, 1227, 1158, 1231, 1225(b)(1),

1229a).

As relevant here, Congress has legislated a comprehensive

and carefully calibrated set of removal procedures. Regular

removal procedures are provided in 8 U.S.C. § 1229a, and

expedited removal in § 1225(b)(1). Section 1229a provides the

“sole and exclusive procedure” for removal of noncitizens

“[u]nless otherwise specified in [the INA].” 8 U.S.C.

§ 1229a(a)(3). Section 1225(b)(1)’s expedited removal

21

procedure is one such “otherwise specified” provision that

applies to two classes of inadmissible noncitizens. See id.

§ 1182(a)(6)(C), (a)(7). These detailed procedures provide

extensive guidelines for who may be removed, on what

grounds, and what specific procedural safeguards are

mandated. Under both ordinary removal and expedited

removal, the opportunities to apply for asylum under Section

1158, withholding of removal under 8 U.S.C. § 1231(b)(3)(A),

and withholding under the Convention Against Torture are

available.

2

The Proclamation grounds its authority in Section 1182(f),

which provides:

Whenever the President finds that the entry of any

aliens or of any class of aliens into the United States

would be detrimental to the interests of the United

States, he may by proclamation, and for such period

as he shall deem necessary, suspend the entry of all

aliens or any class of aliens as immigrants or

nonimmigrants, or impose on the entry of aliens any

restrictions he may deem to be appropriate.

8 U.S.C. § 1182(f).

By its plain text, Section 1182(f) authorizes a President to

suspend only the “entry” of noncitizens into the United States.

At the time of Section 1182(f)’s adoption, the INA defined

“entry” as “any coming of an alien into the United States, from

a foreign port or place or from an outlying possession, whether

voluntarily or otherwise * * * .” Pub. L. No. 82-414,

§ 101(a)(13), 66 Stat. 163, 167 (1952). In 1996, Congress

adopted the term “admission,” which is defined as “the lawful

22

entry of the alien into the United States after inspection and

authorization by an immigration officer.” 8 U.S.C.

§ 1101(a)(13)(A).

Section 1182(f) says nothing about removal of persons

already present and grants the President no authority to suspend

statutorily mandated removal requirements. As a result, 8

U.S.C. § 1229a remains the “sole and exclusive procedure” for

the removal of noncitizens present in the United States. 8

U.S.C. § 1229a(a)(3).

Case law confirms that reading. Prior to this Proclamation,

Section 1182(f) has been used only to authorize emergency

measures to prevent noncitizens from entering the territorial

land or waters of the United States. Sale v. Haitian Centers

Council, Inc., 509 U.S. 155 (1993); Trump v. Hawaii, 585 U.S.

667; Trump v. International Refugee Assistance Project, 582

U.S. 571 (2017); Goodluck v. Biden, 104 F.4th 920 (D.C. Cir.

2024); Doe #1 v. Trump, 957 F.3d 1050 (9th Cir. 2020); East

Bay Sanctuary Covenant, 932 F.3d 742; Sesay v. Immigration

and Nationality Service, 74 F. App’x 84 (2d Cir. 2003); see also

Proclamation No. 5377, 50 Fed. Reg. 41,329 (1985) (President

Reagan, acting pursuant to Section 1182(f), suspending the

entry into the United States of officers or employees of the

Cuban government or the Cuban Communist Party.).

The government cites no precedent for extending Section

1182(f) far beyond its textual limits to allow the suspension of

laws governing the removal of persons already in the United

States. Nor can that be inferred. Congress is fully aware of the

longstanding statutory distinction in immigration law between

entry on the one hand, and removal of those present on the

other. Congress also knows how to authorize expedited or

emergency removal procedures, and when it does so, it uses the

word “removal” explicitly. See 8 U.S.C. §§ 1229a (“Removal

23

proceedings”), 1225(b)(1) (“[E]xpedited removal of

inadmissible arriving aliens”)

The government’s argument also ignores that Congress

authorized a President only to “suspend” entry into the United

States. A suspended opportunity is very different from an

extinguished one. Suspensions, by definition, are temporary

measures. Suspension, WEBSTER’S SECOND NEW INT’L

DICTIONARY 2541 (unabr. ed. 1952) (“[S]tate or period of being

* * * temporarily stopped, interrupted, abrogated, etc.”);

Suspension, BLACK’S LAW DICTIONARY 1616 (4th ed. 1951)

(“A temporary stop, a temporary delay, interruption, or

cessation.”); Suspension of a right, BLACK’S LAW DICTIONARY

1616 (4th ed. 1951) (“It differs from extinguishment, because a

suspended right is susceptible of being revived, which is not the

case where the right was extinguished.”); Suspension, 10

OXFORD ENGLISH DICTIONARY 258 (def. 1b) (1933) (“The state

of being temporarily kept from doing, or deprived of,

something.”); see Trump v. Hawaii, 585 U.S. at 687 (“We agree

* * * that the word ‘suspend’ often connotes a ‘defer[ral] till

later[.]’”) (quoting WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 2303 (1966)). That is why Section 1182(f)

provides that a suspension only lasts “for such period as [the

President] shall deem necessary[.]” 8 U.S.C. § 1182(f). The

Proclamation, in fact, acknowledges the necessarily temporary

character of its provisions. See Proclamation Preamble

(“suspending the physical entry of aliens involved in an

invasion into the United States across the southern border until

[the President] determine[s] that the invasion has concluded”)

(emphasis added); see also Gov’t Stay Mot. 11 (describing the

suspension power as a “narrow, time-limited authority”).

By contrast, removing individuals in violation of statutory

protections prohibiting their removal are, by their very nature,

permanent. Once a person is removed to a place where she

24

faces persecution, likely harm, or torture, that person is fully

and completely deprived of the protections of the INA’s

removal provisions, and she faces the very harms in the country

of return that Congress said it would not permit. Nor do those

removed have any right—even if they had any practical

capacity—to return to reclaim those protections once the

Section 1182(f) emergency ends.

In short, while the opportunity to make an “entry” can be

unsuspended, the opportunity to prevent removal to a place of

persecution, harm, torture, or death cannot.

The government leans heavily on Huisha-Huisha, 27 F.4th

718, as necessarily linking the power to exclude with the power

to remove. That is incorrect.

In Huisha-Huisha, this court concluded that the Surgeon

General’s authority under a different statute, 42 U.S.C. § 265,

to prohibit the “introduction of persons and property” into the

United States when they pose a “serious danger of the

introduction of [a communicable] disease into the United

States” includes the “authority to expel” such persons. Huisha-

Huisha, 27 F.4th at 729 (citing 42 U.S.C. § 265).

As the district court well explained, RAICES, 2025 WL

1825431, at *34–36, the government’s equation of Section 265

and 8 U.S.C. § 1182(f) is wrong for two central reasons.

First, as noted, Huisha-Huisha addressed an entirely

different statutory provision—a public health law and not an

immigration law. See Public Health Service Act of 1944, Pub.

L. No. 78-410, 58 Stat. 682 (codified as amended at 42 U.S.C.

§ 201 et seq.). The ability to exclude individuals or products

that pose a communicable health threat to the United States

25

rests on that separate and distinct authority to contain and

prevent the spread of disease.

Section 1182(f), by contrast, is part of an immigration law

that has long separated the process of exclusion—of barring

entry—from the process of removing persons who are already

in the United States.

Second, and relatedly, the public health provision (Section

265) uses very different language. It allows the Department of

Health and Human Services through the Surgeon General to

prevent not the entry, but the “introduction” into the United

States of persons or property posing a health risk. So Section

265 grants a broad power to prevent diseases like COVID-19

from affecting and infecting the people of the United States.

The “introduction” of a disease, in other words, follows

contagious persons across the border as they risk introducing

the illness again and again into different populations and areas.

Because germs and bacteria are impervious to border lines, the

power to prevent the introduction of disease would be

“nugatory” if it allowed the Surgeon General only to police the

borders and not to address those who “managed to set foot on

U.S. soil.” Huisha-Huisha, 27 F.4th at 729; see RAICES, 2025

WL 1825431, at *35; Suspension of Introduction of Persons

Into United States from Designated Foreign Countries or

Places for Public Health Purposes, 85 Fed. Reg. 16,559,

16,563 (Mar. 24, 2020) (Center for Disease Control regulation

defining “introduction into the United States” as “the

movement of a person from a foreign country * * * into the

United States so as to bring the person into contact with others

in the United States * * * in a manner that the [CDC]

determines to present a risk of transmission of the

communicable disease[.]”) (emphases added).

26

In contrast, Section 1182(f)’s plain text allows a President

only to suspend “entry,” and not to regulate the removal of

those already present in the United States.

3

The Proclamation also invokes Section 1185(a), which

says:

Unless otherwise ordered by the President, it shall be

unlawful * * * for any alien to depart from or enter or

attempt to depart from or enter the United States

except under such reasonable rules, regulations, and

orders, and subject to such limitations and exceptions

as the President may prescribe[.]

8 U.S.C. § 1185(a)(1).

That provision adds nothing to the government’s

argument. Section 1185(a)(1) outlaws a noncitizen from

“enter[ing]” or attempting to “enter” the United States except

as allowed by rules, regulations, or orders prescribed by the

President. The Proclamation no doubt constitutes a

presidential order barring noncitizens from “enter[ing]” the

United States. All agree on that.

What matters here is that Section 1185(a)(1) says not a

word about the power to remove those who are already present

in the United States.

As for the language about regulating “depart[ures],” that

allows the President to regulate a noncitizen’s own

“depart[ure]” or attempt to depart. By its plain terms, Section

1185(A)(1) makes it unlawful “for an alien to depart * * * or

attempt to depart” except as permitted by presidential rule,

27

regulation, or order. Yet the government points to nothing in

the Proclamation or its implementing guidance that speaks to

how noncitizens may choose to depart. The Proclamation and

guidance, instead, seek to force persons already in the United

States to leave heedless of the threat of persecution, harm,

torture, or death they face. Limiting the freedom to leave is not

the same as the forcible expulsions undertaken by the guidance

here.

In any event, even if Section 1185(a)(1) reaches forced

departures and I assume that forced departures means

“removal,” the government is still no better off. See Trump v.

Hawaii, 585 U.S. at 683 n.1. That is because Section

1185(a)(1) only allows “reasonable rules, regulations, and

orders[.]” 8 U.S.C. § 1185(a)(1). That is common-fare

statutory language used to grant an agency regulatory authority

to implement the law Congress passed, not to cast it aside. See,

e.g., id. § 1224 (“The Attorney General is authorized (1) by

regulation to designate as ports of entry for aliens arriving by

aircraft any of the ports of entry for civil aircraft designated as

such in accordance with law; (2) by regulation to provide such

reasonable requirements for aircraft in civil air navigation[.]”);

United States v. Witkovich, 353 U.S. 194, 199–200 (1957)

(interpreting 8 U.S.C. § 1231(a)(3)(D)’s language authorizing

the Attorney General to make “reasonable written restrictions”

on the conduct of noncitizens as a “limitation” on the Attorney

General’s power that must be in line with the “legislative

scheme” as a whole); see also FCC v. Consumers’ Research,

No. 24-354, 2025 WL 1773630, at *13 (U.S. June 27, 2025)

(describing how the Supreme Court has previously affirmed

Congress’s authorization to the FCC in the Communications

Act to set “just and reasonable” rates, because such an

authorization “was not unbridled” in light of the “broader

statutory contexts, which informed [its] interpretation and

supplied the content necessary to satisfy the intelligible-

28

principle test”) (citing National Broadcasting Co. v. United

States, 319 U.S. 190, 225–226 (1943)); Industrial Union

Department, AFL-CIO v. American Petroleum Inst., 448 U.S.

607, 642–645 (1980) (discussing the Occupational Safety and

Health Act’s authorization for the Secretary of Labor to

promulgate “reasonably necessary or appropriate” health and

safety regulations).

Put more simply, like Section 1182(f), Section 1185(a)(1)

empowers the President to control who may cross the Nation’s

borders. It says nothing about the forcible ejection of those

already present in the United States, let alone the authority to

do so outside of the INA’s prescribed procedures. While the

government believes that its power to prevent entry would have

greater effect if it included the power to remove, that policy

complaint must be directed to Congress.

To that same point, it bears emphasizing that nothing about

the power to remove persons who are already present

strengthens the President’s exercise of his temporary power to

suspend entry. Entry and removal are distinct processes aimed

at different stages of immigration control that operate on

opposite sides of the border with different statutory protections.

While the government may now prefer otherwise, this court

must take immigration law as the Political Branches (including

the Executive) wrote it.

C

The government’s attempt to extra-textually expand

Section 1182(f) through its implementing guidance also is

unlikely to succeed on appeal as to the withholding provisions.

Under binding circuit precedent, though, the Proclamation

combined with the guidance likely could be read as exercising

29

the Executive’s discretionary authority to categorically deny

asylum upfront.

1

The government has not demonstrated that it will likely

succeed in showing that its guidance lawfully abrogated the

statutorily mandated withholding obligations and procedures.

Congress has withheld from the Executive the authority to

remove a noncitizen to a country where they will be persecuted

on the basis of race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C.

§ 1231(b)(3)(A). In those cases, withholding of removal is

“mandatory[,]” Aguirre-Aguirre, 526 U.S. at 419; Huisha-

Huisha, 27 F.4th at 725, and the government “must provide” it,

Huisha-Huisha, 27 F.4th at 725. Full stop.

As a result, if it wants to remove noncitizens “to places

prohibited by § 1231(b)(3)(A), the Executive must identify a

statute that creates an exception to § 1231(b)(3)(A).” Huisha-

Huisha, 27 F.4th at 731–732. Yet it has identified none.

Nothing in Sections 1182(f) or 1185(a) mentions removal at

all, let alone displaces the statutory withholding-from-removal

provisions. And the word “entry” is too little to do that work

given its long-established usage in immigration law. See pp. 2,

20–21, supra. Tellingly, even in Huisha-Huisha, where this

court held that public health officials’ more robust authority to

prevent the “introduction” of disease covered both barriers to

entry and removal, this court was explicit that Section 265 did

not supplant the statutory mandate that removal to a country be

withheld if the person’s life or freedom would be threatened in

that country based on one of the statutorily protected

characteristics, 8 U.S.C. § 1231(b)(3)(A). See Huisha-Huisha,

27 F.4th at 732. The court explained that “we can give effect

30

to both [Sections 265 and 1231(b)(3)(A)]. And because we

can, we must.” Id. So too here: The government can both

suspend “entry” under the Proclamation to address its declared

emergency, and comply with statutory withholding-of-removal

requirements. Because it can do both, it must.

But the government has backhanded Congress’s

command. The implementing guidance is explicit that “USCIS

is not assessing persecution on account of a protected ground”

in making removal decisions, nor is any other part of the

government making the statutorily mandated assessment prior

to removal. ECF No. 52-1 at 38, 47; see also id. at 20, 24

(instructing Customs and Border Patrol agents to “refer[]” to

USCIS any individuals “who manifest a fear of the country to

which CBP intends to return them”).

To put it more clearly, the guidance on its face refuses to

provide persons in the United States the statutory withholding-

of-removal protections that Congress has “mandat[ed.]”

Aguirre-Aguirre, 526 U.S. at 419.

2

As the district court well explained, the government has

equally failed to show a likelihood that its implementing

guidance comports with the withholding requirements under

the Convention Against Torture. See RAICES, 2025 WL

1825431, at *44–45.

As with withholding of removal under 8 U.S.C.

§ 1231(b)(3)(A), the bar against removal to a country where the

person will be tortured is “mandatory[.]” Huisha-Huisha, 27

F.4th at 725; 8 C.F.R. §§ 208.16(d) (“[A]n application for

withholding of deportation or removal to a country of proposed

removal shall be granted if the applicant’s eligibility for

31

withholding is established[.]”), 1208.16(d) (same); see also

Nasrallah, 590 U.S. at 575 (“If the noncitizen demonstrates

that he likely would be tortured if removed to the designated

country of removal, then he is entitled to CAT relief and may

not be removed to that country[.]”); Igiebor v. Barr, 981 F.3d

1123, 1127–1128 (10th Cir. 2020) (“Relief under the CAT is

mandatory if the convention’s criteria are satisfied.”) (citation

omitted); Andrade-Garcia v. Lynch, 828 F.3d 829, 835 (9th

Cir. 2016) (“[B]oth CAT protection and withholding of

removal are mandatory forms of relief.”).

Congress provided that the Convention’s resolute

protection should be implemented by agency regulations, and

the Departments of Homeland Security and Justice have

enacted notice-and-comment regulations doing just that. 8

C.F.R. §§ 208.1–30, 1208.1–33. The regulations require a two-

stage process for handling Torture Convention claims. At the

first stage, an asylum officer conducts a credible fear screening

where the applicant must demonstrate that there is “a

significant possibility” that she is eligible for the Convention’s

protection. Id. §§ 208.30(e)(3), 1208.30(e); see also id.

§§ 208.1(a)(1), 1208.1(a)(1).

If the applicant clears that threshold, an asylum officer

conducts a second interview, which must take place at least

twenty-one days after the applicant receives a record of the

officer’s determination from the initial screening, allowing the

individual to consult, gather evidence, and obtain

representation if desired. 8 C.F.R. § 208.9(a)(1)–(b). The

purpose of the second interview is “to elicit all relevant and

useful information” for the Convention Against Torture

determination. Id. § 208.9(b). The applicant “may have

counsel or a representative present, may present witnesses, and

may submit affidavits of witnesses and other evidence.” Id. To

qualify for Convention Against Torture protection, the

32

applicant must demonstrate in the second interview that “it is

more likely than not that he or she would be tortured if removed

to the proposed country[.]” Id. §§ 208.16(c)(2), 1208.16(c)(2).

The implementing materials cast aside all that law and

collapse the process into a single interview that requires the

applicant when first detained to carry her ultimate burden of

proving she will likely be subjected to torture, without the

benefit of time to assemble evidence or to prepare a

presentation. In addition, the presence of counsel or another

representative is forbidden. In the now-prescribed single

“CAT-Only Assessment[,]” the applicant cannot have a

consultant or legal representative in the room with her and is

not “entitled to” any “consultation period.” ECF No. 52-1 at

44–46; see id. at 38 (USCIS is “unable to accommodate a

consultant or attorney at the interview” because interviews are

conducted in “secure facilities[.]”).

Nothing in the Proclamation or other agency action

purports to withdraw the published regulations or to explain

why affording a person already in the United States the

opportunity to obtain advice and evidence to meet her burden

of proof of torture is inconsistent with preventing the “entry”

of noncitizens at the border. Nowhere has Congress prescribed

torture or death as a tolerable consequence for unauthorized

entry. Quite the opposite, Congress has forbidden it, and so

have longstanding agency regulations implementing the

Convention. Circuit precedent does the same. Huisha-Huisha

is explicit that even the emergency power to prevent the spread

of plagues and epidemics does not allow the government to

forgo established protections against removal to a place of

torture. 27 F.4th at 732.

Tellingly, the government’s stay papers make no argument

that Sections 1182(f) or 1185(a) authorize it to displace the

33

Convention Against Torture or its implementing regulations.

That silence falls far short of demonstrating a likelihood of

success.

3

The Proclamation’s and its implementing guidance’s

foreclosure of asylum applications likely will succeed on

appeal, although the question is close and difficult, just as it

was in Huisha-Huisha. There, this court explained that perhaps

“the closest question” in that case was whether an emergency

public-health power to prevent the introduction of persons or

property that could convey disease allowed the government to

preclude all asylum applications. Huisha-Huisha, 27 F.4th at

730.

As already explained, the power to foreclose the “entry”

of noncitizens into the United States does not, by itself, provide

the authority to remove persons who are already in the United

States. See pp. 20–21, supra.

But the asylum statute itself likely allows such suspension

of its protections. Section 1158(a)(1) authorizes persons

“physically present in the United States or who arrive[] in the

United States” to request asylum. 8 U.S.C. § 1158(a)(1). That

right applies regardless of immigration status. Id.

At the same time, the asylum statute is explicit that the

final decision of whether to grant or deny asylum is “committed

to the [Secretary of Homeland Security or] Attorney General’s

discretion.” Aguirre-Aguirre, 526 U.S. at 420; see 8 U.S.C.

§ 1158(b)(1)(A) (“The Secretary of Homeland Security or the

Attorney General may grant asylum[.]”); Moncrieffe v. Holder,

569 U.S. 184, 187 (2013) (Asylum is a “form[] of discretionary

relief[.]”).

34

So while Sections 1182(f) and 1185(a)(1) say nothing

about the Executive’s power to foreclose or preemptively deny

asylum applications during an emergency, the asylum statute

likely does so. To be sure, the statute seems to envision

individualized grants or denials of asylum after a person has

submitted an application. 8 U.S.C. § 1158(a)(1) (Any

individual “physically present in” or “who arrives in the United

States * * * may apply for asylum[.]”). But this court held in

Huisha-Huisha that such categorical and upfront rejections of

asylum are permissible in emergency situations for limited

periods of time. 27 F.4th at 730–731. This court explained that

because granting asylum is “a matter of executive

‘discretion[,]’” the President could “foreclose[]” both the

“grant of asylum” and “the statutorily mandated procedures

that aliens use to apply for asylum.” Id. at 731 (citation

omitted). “[T]hose procedures would be futile[,]” this court

reasoned, because the President’s Section 265 order “already

* * * made” the asylum decision. Id.

So the only question on appeal will be whether the

Proclamation and implementing guidance similarly have

already made the asylum decision, apart from the

Proclamation’s reliance on Sections 1182(f)’s and 1185(a)(1)’s

provisions governing only entry. While it is a close call,

Huisha-Huisha likely supports the asylum bar.

First, the Proclamation twice expressly bars noncitizens

from “invoking” Section 1158. Proclamation § 2 (Noncitizens

“engaged in the invasion across the southern border * * * are

restricted from invoking provisions of the INA that would

permit their continued presence in the United States, including

* * * 8 U.S.C. § 1158[.]”); see also id. § 3 (“I * * * restrict

[noncitizens’] access to provisions of the INA that would

permit their continued presence in the United States, including

35

* * * 8 U.S.C. § 1158.”). Both references cite directly to the

asylum statute. Id. §§ 2–3. In addition, the implementing

guidance from the Department of Homeland Security—an

agency statutorily authorized to make discretionary asylum

decisions, 8 U.S.C. § 1158(b)(1)(A)—is explicit that

noncitizens “are not permitted to apply for asylum.” ECF No.

52-1 at 5, 11 (emphasis in original).

At this very preliminary stay stage, the government

appears likely to succeed in showing that those additional

references to the asylum statute suffice for the Attorney

General or the Secretary of Homeland Security to categorically

pre-deny asylum such that allowing applications would be

futile, and that invocation of that power under Section 1158 is

separate and independent of the power in 8 U.S.C. § 1182(f) to

suspend “entry.” The Proclamation and guidance contain far

more language about foreclosing asylum than the emergency

order addressed in Huisha-Huisha did. That order, in fact, was

silent on the subject. See Public Health Reassessment and

Order Suspending the Right to Introduce Certain Persons from

Countries Where a Quarantinable Communicable Disease

Exists, 86 Fed. Reg. 42,828 (Aug. 5, 2021). Yet this court

found that such silence was sufficient to close the door on the

asylum process across the board.

To be sure, Huisha-Huisha addressed a statute that

allowed restrictions on noncitizens to apply both at the border

and inside the United States. 27 F.4th at 729. That is very

different from Sections 1182(f) and 1185(a)(1). That is why it

may be at least sufficient, if not necessary, that the

Proclamation and implementing materials reference the asylum

statute itself in imposing a categorical bar. The question is

close and, as in Huisha-Huisha, it remains open to definitive

resolution by a merits panel. See Huisha-Huisha, 27 F.4th at

730 (Plaintiffs’ argument that the Executive violates the

36

asylum statute by expelling noncitizens before they have an

opportunity to seek relief “deserves attention from the District

Court when it considers the merits.”). But Huisha-Huisha’s

decision on review of a preliminary injunction makes it likely

at this similarly preliminary stay stage that the government will

succeed.

*****

In sum, the government has failed to show that it is likely

to succeed in arguing that the Proclamation complies with the

INA’s withholding of removal and Convention Against Torture

withholding requirements. While a very close question, the

government appears likely to succeed in showing that it has

permissibly suspended the asylum process during the

emergency period. Accordingly, I would stay that portion of

the district court’s permanent injunction requiring the

government to allow asylum applications pending appeal while

the Proclamation remains in effect.

D

Finally, the government is unlikely to succeed in showing

that 8 U.S.C. § 1252(f)(1) barred the district court from issuing

class-wide injunctive relief in this case. Gov’t Stay Mot. 17–

18. Section 1252(f)(1) provides that:

Regardless of the nature of the action or claim or of

the identity of the party or parties bringing the action,

no court (other than the Supreme Court) shall have

jurisdiction or authority to enjoin or restrain the

operation of the provisions of part IV of this

subchapter, as amended by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

other than with respect to the application of such

37

provisions to an individual alien against whom

proceedings under such part have been initiated.

8 U.S.C. § 1252(f)(1). Part IV of the INA encompasses 8

U.S.C. §§ 1221–1232.

Section 1252(f)(1) “generally prohibits lower courts from

entering injunctions that order federal officials to take or to

refrain from taking actions to enforce, implement, or otherwise

carry out the specified statutory provisions[,]” except against

an individual in proceedings. Garland v. Aleman Gonzalez,

596 U.S. 543, 550 (2022). That bar applies even if the

government’s administration of a covered provision violates a

federal statute or regulation. Id. at 552–554. 6

It is unlikely that Section 1252(f)(1) bars the class-wide

relief entered here for the simple reason that the court did not

enjoin the government’s operation of any provision covered by

Part IV of the INA. The district court instead enjoined

government officials (other than the President) from relying on

the Proclamation to continue enforcing the content of the

implementation guidance that the district court had separately

declared unlawful and vacated. The Proclamation, of course,

is grounded not in Part IV of the INA, but in 8 U.S.C.

§§ 1182(f) and 1185(a), which are in Part II of the INA.

RAICES, 2025 WL 1825431, at *52. The district court also

enjoined the government to comply with the asylum statute, 8

U.S.C. § 1158(a), which is in Part I of the INA, and the

Convention Against Torture provision, which is in a different

statute altogether, FARRA, and was only placed at 8 U.S.C.

6

As the district court’s decision did not resolve any

constitutional claims raised by Plaintiffs, this case, at this juncture,

does not pose the question of whether Section 1252(f)(1) applies to

the remediation of constitutional violations not otherwise

redressable.

38

§ 1231 note by the United States Code’s codifiers, not

Congress. See RAICES, 2025 WL 1825431, at *52; see also

United States v. Lanier, 520 U.S. 259, 267 n.6 (1997); Warner

v. Goltra, 293 U.S. 155, 161 (1934) (“The compilers of the

Code were not empowered by Congress to amend existing law,

and doubtless had no thought of doing so.”).

In addition, to comply with Section 1252(f)(1), the district

court declined to enjoin the government to comply with the

withholding of removal statute, 8 U.S.C. § 1231(b)(2), which

is covered by Section 1252(f)(1). RAICES, 2025 WL 1825431,

at *54.

The government objects that the injunction could have the

indirect effect of causing the government to have to adhere to

the INA’s Part IV withholding provisions when it undertakes

removal actions, or to employ the INA’s expedited removal

procedures, 8 U.S.C. § 1225(b)(1), which also are in Part IV.

But nothing in the injunction requires the government to

remove anyone. The injunction requires only that if the

government chooses to remove individuals, it may not rely on

the unlawful provisions of the Proclamation or the vacated

guidance. To the extent the government chooses to undertake

removals, it is the INA itself, not the injunction, that prescribes

the lawful process. Said another way, the injunction requires

only that, if the government chooses to remove noncitizens, it

does not do so in excess of its authority under 8 U.S.C.

§§ 1182(f) and 1185(a), or in violation of the asylum statute or

Convention Against Torture mandate.

The government has failed to show that Section

1252(f)(1)’s bar reaches that far. Instead, it has identified at

most a “collateral effect” of the injunction, which the Supreme

Court says is outside Section 1252(f)(1)’s bounds. See Aleman

Gonzalez, 596 U.S. at 553 n.4 (indicating that “a court may

39

enjoin the unlawful operation of a provision that is not

specified in § 1252(f)(1) even if that injunction has some

collateral effect on the operation of a covered provision”)

(citing Gonzales v. DHS, 508 F.3d 1227, 1233 (9th Cir. 2007));

Al Otro Lado v. Executive Off. for Immigr. Rev., 138 F.4th

1102, 1126 (9th Cir. 2025) (“The Supreme Court

acknowledged our collateral-effect rule in Aleman Gonzalez

and left it undisturbed.”). 7

IV

The remaining factors weigh against granting a stay any

broader than I would provide.

As the party seeking a stay, the government bears the

burden of demonstrating that it will suffer an irreparable injury

during the time this appeal is pending. Nken, 556 U.S. at 433–

434. It has not done so.

“To begin with, the Plaintiffs’ likelihood of success on the

merits lightens the Executive’s stated interests.” Huisha-

Huisha, 27 F.4th at 734. Whatever the effects of the

Proclamation at the southern border, ECF No. 44-5 (Gunduz

Decl. ¶ 43), “our system does not permit agencies to act

unlawfully even in pursuit of desirable ends[,]” Alabama Ass’n

of Realtors v. Department of Health & Human Servs., 594 U.S.

758, 766 (2021); see also Youngstown, 343 U.S. at 582 (The

President’s determination that an order “was necessary to avert

a national catastrophe” did not overcome the lack of

7

The government does not argue in its stay petition that 8

U.S.C. § 1252(f)(1) limits courts’ ability to enter class-wide

declaratory relief or to vacate the agency’s implementation guidance

under 5 U.S.C. § 706. Those arguments accordingly are forfeited

here.

40

congressional authorization). That is especially true here

because, as the district court explained, denying a stay simply

requires the government to adhere to mandatory statutory

procedures and standards. See RAICES, 2025 WL 1825431, at

*55.

By contrast, a full stay would irreparably harm Plaintiffs

and the class members. The government maintains that the

district court lacks authority to provide relief once individuals

are removed under the Proclamation and guidance. See

RAICES, 2025 WL 1825431, at *56; see also ECF No. 55 at

14–15. If true, then, without a stay, class members may never

be able to obtain the protections against removal that Congress

mandated.

Even more pressingly, without a stay, class members will

continue to be removed to countries where they face

persecution, torture, and death—all of which are undoubtedly

irreparable harms. See Huisha-Huisha, 27 F.4th at 733

(persecution and torture are irreparable harms); Mozilla Corp.

v. FCC, 940 F.3d 1, 62 (D.C. Cir. 2019) (same as to death).

The named plaintiffs in this case have averred, for example,

that:

• “We are from Afghanistan, and we came to the United

States with the intention of seeking asylum. I and my

family fear persecution, torture, and death at the hands

of the Taliban.” ECF No. 65-1 (A.M. Supp. Decl.

¶ 3).

• “I am from Egypt, and I came to the United States

with my wife with the intention of seeking asylum

because I had been previously imprisoned and tortured

in Egypt by the ruling military regime for my pro-

democracy views. * * * * I cannot return to Egypt

41

because I will once again be imprisoned and tortured.”

ECF No. 65-4 (M.A. Supp. Decl. ¶¶ 3, 13).

Notably, the government does not dispute that Plaintiffs

and class members will suffer persecution, torture, and death

should they be removed. 8

Finally, the public interest also counsels against a stay as

“there is a public 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.

V

For the foregoing reasons, I would grant in part and deny

in part the government’s motion for a stay pending appeal. I

also would grant Plaintiffs’ request for expedited merits

briefing and argument.

8

The district court has not yet decided whether it has authority

to provide relief to removed individuals, noting that the “question is

a difficult one[.]” RAICES, 2025 WL 1825431, at *56. I also do not

address that question at this stay stage. I note only that, as the district

court explained, “a substantial possibility exists that continued

implementation of the Proclamation during the pendency of an

appeal will effectively deprive tens of thousands of individuals of the

lawful processes to which they are entitled.” Id.

PILLARD, Circuit Judge, concurring in part and dissenting

in part: I would grant the stay in part as to portions of the class

definition, and deny the stay in all other respects. I join Judge

Millett’s statement explaining why we stay portions of the class

definition to the extent they are unclear, and her reasons for

denying the motion to stay in all other respects but one. I

disagree with the decision to stay the district court’s order to

the extent it enjoins what Defendants assert is a valid,

categorical determination to deny asylum and the right to apply

for asylum under the Proclamation and its implementing

guidance. Largely for the reasons stated by the district court, I

conclude that Defendants have failed to make a “strong

showing” that the Proclamation and its implementing guidance

lawfully deny Plaintiffs the right to apply for asylum and, if

they establish that they qualify, to be considered for asylum

under 8 U.S.C. § 1158. Nken v. Holder, 556 U.S. 418, 426

(2009). I write separately only to explain my conclusions

regarding the asylum issue.

Plaintiffs are noncitizens physically present in the United

States who are entitled by section 1158(a) to apply for asylum.

The Proclamation, at least as Defendants interpret and apply it,

unlawfully deprives Plaintiffs of that right as well as the right

under section 1158(b)(1) to be considered for a grant of asylum

if they show they are eligible to receive it.

Section 208(a)(1) of the INA provides noncitizens

physically present in the United States a statutory right to apply

for asylum:

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

2

for asylum in accordance with this section or, where

applicable, section 1225(b) of this title.

8 U.S.C. § 1158(a)(1). Noncitizen applicants within the United

States may, at the unreviewable discretion of the executive, be

granted asylum if they prove that they are eligible. Eligible

applicants are those who establish inability or unwillingness to

return to (and obtain the protection of) the country of their

nationality because of “persecution or a well-founded fear of

persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

Id. § 1101(a)(42)(A) (defining refugee), incorporated in 8

U.S.C. § 1158(b)(1)(A) (Conditions for granting asylum—In

general—Eligibility).

Under the plain text of the asylum statute, noncitizens who

are “physically present” in the United States are guaranteed the

right to apply for asylum. Id. § 1158(a)(1). The statutorily

mandated right to apply is reinforced by other provisions of the

INA that similarly require the government to interview and

consider for asylum any noncitizen who “indicates . . . an

intention to apply for asylum”—even if the noncitizen is

“inadmissible” under other provisions of the INA. Id.

§ 1225(b)(1)(A), (B). As the district court persuasively

explained, the INA itself makes “clear that, even though

asylum is itself a discretionary form of relief, providing aliens

with the opportunity to apply for asylum (and the opportunity

to be heard) is mandatory.” Mem. Op. 91.

I.

I do not agree with Judge Millett’s conclusion that “the

asylum statute itself likely allows . . . suspension” of the rights

of the entire plaintiff class to apply for asylum. Millett Op. 33-

34. It is of course true that the ultimate decision whether to

3

grant asylum is a matter of executive discretion. See 8 U.S.C.

§ 1158(b)(1); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 441

(1987) (“Section 208(a) . . . is a discretionary mechanism

which gives the Attorney General the authority to grant the

broader relief of asylum to refugees.”). Nonetheless,

Defendants have not made the requisite strong showing that the

executive’s power under the INA to deny asylum in the

exercise of discretion authorizes it to make such a categorical,

ex ante decision via guidance.

Notably, the asylum statute delineates a process by which

the executive may determine in advance that certain classes of

noncitizens are ineligible to receive a grant of asylum. But that

decision must be both “consistent with” the asylum statute and

established “by regulation,” with the attendant formalities of

administrative rulemaking. 8 U.S.C. § 1158(b)(2)(C); see also

id. § 1158(d)(5)(B); see Mem. Op. 93-94. In 2018, for

instance, when the executive sought to render ineligible for

asylum noncitizens who entered the country in contravention

of any future presidential proclamation barring entry along the

southern border with Mexico, the Attorney General issued an

interim final rule to that effect. See Aliens Subject to a Bar on

Entry Under Certain Presidential Proclamations; Procedures

for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018). The

executive has not complied with the requisite rulemaking

process here. Neither the Proclamation nor the implementing

guidance was issued through notice and comment rulemaking

or as an interim final rule under 5 U.S.C. § 553(b)(B).

Indeed, it is not at all clear that the Proclamation or

guidance documents even purport to “preemptively deny

asylum applications” submitted by the class members. Millett

Op. 34-35. Sections 2 and 3 of the Proclamation suspend and

impose restrictions on the “entry” of noncitizens attempting to

come into the country across the southern border, or to come in

4

without sufficient documentation. 90 Fed. Reg. 8333, 8335

§§ 2, 3 (Jan. 20, 2025). As one of the restrictions on entry, the

Proclamation bars noncitizens from “invoking” or “access[ing]

. . . provisions of the INA that would permit their continued

presence in the United States, including, but not limited to,

section 208 of the INA, 8 U.S.C. 1158.” Id. That is the

Proclamation’s only reference to the asylum statute, and it is a

restriction on entry into the country.

Neither the Proclamation nor the implementing guidance

says anything about ineligibility to be considered for asylum or

suspension of the right to apply for it—rights the INA generally

makes available to noncitizens who have entered the country

despite the Proclamation’s entry ban. To the contrary, section

5 of the Proclamation, which directs various executive officers

to “repatriate” and “remove” noncitizens who make it across

the border, does not mention the asylum statute at all. Removal

is an INA-defined process, and it accommodates asylum

applications. See 8 U.S.C. §§ 1229a(c)(4), 1225(b)(1)(A)(ii).

II.

Even if the executive had validly decided to deny asylum

to all migrants entering the United States unlawfully since

January 20, 2025, the INA does not authorize Defendants to

categorically deny as futile the statutorily mandated

opportunity to apply.

A.

Plaintiffs are likely to succeed in establishing that

foreclosing the opportunity to apply is contrary to the INA.

That is so despite the intuitive appeal to the conclusion that

protecting Plaintiffs’ right to apply for asylum matters little if

the executive has already authoritatively announced an

5

intention to deny asylum. The INA explicitly guarantees to all

noncitizens present on U.S. soil the right to apply for asylum,

with only three exceptions. The right does not apply to

(1) certain noncitizens who can be removed to a safe third

country, (2) certain noncitizens who fail to apply for asylum

within one year of arriving in the United States, and (3) certain

noncitizens who have previously applied for and been denied

asylum. 8 U.S.C. § 1158(a)(2). Tellingly, there is no such

carveout for noncitizens who are ineligible for asylum and

whose applications will ultimately be rejected. That is so even

in cases governed by the INA’s mandatory bar against granting

asylum to certain noncitizens, such as noncitizens who have

persecuted others or have been convicted of serious crimes.

See 8 U.S.C. § 1158(b)(2)(A). The INA prohibits those

noncitizens from receiving asylum. But it leaves intact the

right of those noncitizens to apply for asylum in the first place.

The Department of Justice has consistently reaffirmed that

same understanding of the vigor of the right to apply for asylum

within the INA’s statutory scheme. Recall the Attorney

General’s 2018 interim final rule, mentioned above, rendering

ineligible for asylum noncitizens who entered the country in

contravention of Presidential directives. The proposed rule

emphasized that the new “restriction on eligibility to [receive]

asylum is consistent with . . . 8 U.S.C. 1158(a)(1),” because the

regulation “establishes a condition on asylum eligibility, not on

the ability to apply for asylum.” 83 Fed. Reg. at 55941. The

Department’s supporting citation clarified that the “exceptions

and bars to granting asylum,” whether identified in the INA or

promulgated by the executive, are separate from and do not

affect the “conditions for applying for asylum” described in

Section 1158(a). Id. (emphasis added). That is why the

Department’s regulations specify that noncitizens who are

categorically ineligible for asylum are subject only to

“mandatory denial of an asylum application.” 8 C.F.R.

6

§ 208.13. They are not barred from making the application in

the first place.

Importantly, the INA expresses Congress’s vision for the

nation’s immigration system in a single comprehensive and

internally coherent statute. As the Proclamation itself

acknowledges, the INA establishes a “complex and

comprehensive scheme” governing immigration. 90 Fed. Reg.

at 8333. One implication of that comprehensiveness is that the

outer bounds of authority delegated to the executive to make

discretionary asylum eligibility and removal decisions are

necessarily delimited by the statute’s mandatory procedures.

Those limits include Section 1158(a)(1)’s requirement to allow

noncitizens on U.S. soil to apply for asylum.

It thus squarely violates the INA to conclude that the

asylum provision’s mandatory protections can be overcome by

the executive’s need to address quintessential immigration

issues. The INA itself expresses the “balance that Congress

struck” between providing asylum to those in need and

facilitating efficient removals. Mem. Op. 92-93. The

executive has no power to override that policy choice based on

its own assessment that the statutory processes are unnecessary

or unduly cumbersome.

B.

That the executive here bases its authority to foreclose

mandatory asylum procedures on discretionary provisions

contained in the same statute that establishes those mandatory

procedures renders Huisha-Huisha v. Mayorkas inapposite.

There, we analyzed an emergency order of the Centers for

Disease Control at the Department of Health and Human

Services that banned introduction into the United States of

certain noncitizens as a measure to limit contagion during the

7

Covid-19 pandemic. 27 F.4th 718, 725-27 (D.C. Cir. 2022).

Critically, that order was issued pursuant to the Surgeon

General’s “Section 265” authority to “suspen[d] . . . the right

to introduce” persons into the United States in response to

“serious danger” of spreading a communicable disease from a

foreign country to the United States. 42 U.S.C. § 265.

In line with CDC’s interpretation of its statutory power to

suspend the “introduc[tion]” of persons into the United States,

we interpreted Section 265 to authorize the executive to

prevent foreign persons from coming “into contact with

persons in the United States” or “moving into the interior” of

the country after crossing the border, including by summarily

expelling them from the country. Huisha-Huisha, 27 F.4th at

725, 729. We accordingly held that the Section 265 order

against introducing potentially infected persons into the United

States permissibly applied to authorize exclusion of persons

seeking to enter and summary removal, without the

opportunity to seek asylum, of persons who had managed to

enter the United States before they were detected.

We recognized in Huisha-Huisha that the Section 265

authority granted to the executive during a public health

emergency conflicted with Section 1185(a)’s requirement that

“aliens—even those who enter the country illegally—[be

allowed] to apply for asylum before they are expelled.” Id. at

730. To “harmoniz[e]” the two statutes, we reasoned that

Section 265’s express authorization of the Surgeon General to

effect “a suspension of the right to introduce such persons . . .

[as] is required in the interest of the public health” supported

the order’s suspension of the INA’s otherwise-required asylum

procedures when the “dangers” to the public health “are

sufficiently pronounced.” Id. at 730-31.

8

That reasoning is inapplicable here, where we are

interpreting only the INA itself, a comprehensive and internally

consistent statute that affords noncitizens—even those whose

asylum applications will ultimately be denied—the opportunity

to apply for asylum and to receive an “individualized

decision[].” Cardoza-Fonseca, 480 U.S. at 444. That the INA

may be “ineffective” at preventing threats to the public health,

Proclamation, 90 Fed. Reg. at 8334, does not authorize the

President to rewrite Congress’s statute. The asylum statute

includes none of the sweeping language underpinning our

reading of Section 265 at issue in Huisha-Huisha, and

Defendants do not contend that the executive has here invoked

authority under that public health law. Even if it were the case

that the “asylum decision has already been made” by the

Proclamation, Huisha-Huisha, 27 F.4th at 731, Defendants

have made no strong showing that they are likely to succeed in

establishing that the INA itself grants the executive authority

to eliminate Plaintiffs’ right to apply for asylum established by

that very statute.

Staying the district court’s injunction based on Huisha-

Huisha is all the more problematic in light of our explicit

warning against extrapolating the holding of that case too far:

“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.” Id. at 733.

That warning is especially pertinent here, where the

government seeks a stay pending appeal. Its burden is

accordingly higher than it was on the merits appeal from the

preliminary injunction in Huisha-Huisha, requiring not just a

likelihood of success on the merits of its claims, but a “strong

showing” to that effect. Nken, 556 U.S. at 426.

***

9

In my view, Defendants have failed to make a strong

showing that they are likely to succeed on the merits of their

arguments that (1) the executive has lawfully made an ex ante,

categorical decision to deny asylum to every person entering

the United States in contravention of the Proclamation, or

(2) even if it had made such a determination, such an asylum

bar complies with the INA and revokes the Plaintiffs’ statutory

right to apply for asylum. I respectfully dissent from that

portion of the court’s ruling.

KATSAS, Circuit Judge, concurring in part and dissenting

in part: The Immigration and Nationality Act authorizes the

President to suspend the entry of aliens into the United States

by proclamation. Invoking this authority, the President

suspended entry of certain aliens crossing the southern border,

and the Department of Homeland Security then issued informal

guidance implementing the proclamation. The proclamation

and guidance impose truncated procedures for effecting

removal of covered aliens, bar covered aliens from applying for

asylum, provide no mechanism for covered aliens to seek

withholding of removal under the INA, and narrow the

regulatory processes for covered aliens to seek withholding of

removal under the United Nations Convention Against Torture

(CAT). The district court held that the proclamation and

guidance are unlawful in all of these respects, and it granted

final injunctive relief to a class of aliens who are or will be

affected by the proclamation or guidance. The government

seeks a stay pending its appeal, which the Court grants only in

part. As summarized below, I mostly agree with the disposition

and the analysis set forth by Judge Millett.

First, the proclamation and guidance likely cannot impose

truncated procedures for the removal of covered aliens. The

proclamation rests on section 212(f) of the INA, which permits

the President to “suspend the entry of all aliens or any class of

aliens” whenever he finds the entry to be “detrimental to the

interests of the United States.” 8 U.S.C. § 1182(f). This

provision grants the President sweeping power to control the

“entry” of aliens into the United States. See Trump v. Hawaii,

585 U.S. 667, 684 (2018). But entry and removal are distinct

concepts, in ordinary usage and under the INA. As to removal,

section 240 of the INA establishes adjudicatory procedures that

“shall be the sole and exclusive procedure[s] for determining

whether an alien may be … removed from the United States,”

unless “otherwise specified” in the INA itself. 8 U.S.C.

§ 1229a(a)(3). And section 235(b) establishes distinct

procedures for the “expedited removal” of aliens covered by

2

that provision. Id. § 1225(b). The President’s broad power to

impose “entry” restrictions likely does not override these

otherwise mandatory removal processes.

Second, the proclamation and guidance likely can bar

covered aliens from applying for asylum. The asylum statute

provides that any alien physically present in the United States

“may apply for asylum.” 8 U.S.C. § 1158(a)(1). But it confers

no right to asylum, which is solely “a matter of executive

‘discretion.’” Huisha-Huisha v. Mayorkas, 27 F.4th 718, 730

(D.C. Cir. 2022) (quoting INS v. Cardoza-Fonseca, 480 U.S.

421, 423 (1987)). Huisha-Huisha involved the exclusion of

aliens under 42 U.S.C. § 265, which allows the government to

prohibit the “introduction” into the United States “of persons

or property” likely to spread a communicable disease. See 27

F.4th at 723–24. We held that the government, in the course of

exercising that authority, likely could decide in advance to

“foreclos[e] asylum” for covered aliens. Id. at 731. And once

the “asylum decision ha[d] already been made,” the

government also likely could bar those aliens from filing

“futile” asylum applications. See id. In my view, the same

reasoning extends to aliens covered by a section 212(f)

proclamation suspending entry.

Third, the proclamation and guidance likely cannot

supersede statutory and treaty protections regarding

withholding of removal. The INA prohibits the government

from removing an alien to any country where his life or

freedom would be threatened on account of various protected

characteristics. 8 U.S.C. § 1231(b)(3)(A). Similarly, the CAT

prohibits removal to any country where the alien would likely

be tortured. See id. § 1231 note. Unlike asylum, these

substantive protections are mandatory. See Nasrallah v. Barr,

590 U.S. 573, 575 (2020) (CAT); Cardoza-Fonseca, 480 U.S.

at 429 (INA). The regulations establishing procedures for

3

adjudicating CAT claims likewise are mandatory. And these

various withholding provisions have nothing to do with who

may or may not lawfully enter the country.

Fourth, the class definition is likely overbroad. Article III

of the Constitution empowers the federal courts to provide

relief only to parties “who have suffered, or will imminently

suffer, actual harm.” Lewis v. Casey, 518 U.S. 343, 349

(1996); see, e.g., SBA List v. Driehaus, 573 U.S. 149, 159

(2014); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

In providing for class actions, Federal Rule of Civil Procedure

23 does not permit courts to change substantive law, much less

change the constitutional law of Article III standing. So, in

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), the

Supreme Court stated that “Article III does not give federal

courts the power to order relief to any uninjured plaintiff, class

action or not.” Id. at 431 (quoting Tyson Foods, Inc. v.

Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts, C.J.,

concurring)). And in Trump v. CASA, 145 S. Ct. 2540 (2025),

the Supreme Court recently held that federal courts likely lack

the power to issue “universal” injunctions that “prohibit

enforcement of a law or policy against anyone.” Id. at 2548.

Here, the district court granted permanent injunctive relief to

“all individuals who are or will be subject to Proclamation

10888 and/or its implementation.” ECF 72 (cleaned up); see

ECF 73. This class appears to include aliens abroad who were

not physically present in the United States when this suit was

filed, or even when the injunction was entered. On that

interpretation, the injunction would extend relief to a large

number of individuals who lack Article III standing. See Defs.

of Wildlife, 504 U.S. at 564. In my view, this raises serious

constitutional problems.

Nonetheless, at this early stage of the appeal, I would

afford no relief on the class-definition point beyond what Judge

4

Millett proposes. We have held that courts may award class-

wide injunctive relief under Federal Rule of Civil Procedure

23(b)(2) if only one member of the class has standing. See J.D.

v. Azar, 925 F.3d 1291, 1323–24 (D.C. Cir. 2019). In my view,

this one-plaintiff rule makes sense when, but only when, the

class seeks an “indivisible remedy” that courts cannot dole out

plaintiff by plaintiff, or class-member by class-member. See

CASA, 145 S. Ct. at 2564–65 (Thomas, J., concurring); see also

id. at 2557 & n.12 (majority). And in my view, this case

involves no such indivisible remedy because awarding

complete relief to any one plaintiff or class-member would be

readily feasible. Nonetheless, the impact of TransUnion and

CASA on J.D. is a hard question, and I do not think the Supreme

Court has so clearly abrogated J.D. as to warrant a stay on that

basis. Moreover, the relief sought in J.D.—an injunction

against enforcement of certain government policies regarding

access to abortion for unaccompanied minors in government

custody, see 925 F.3d at 1300—seems to me just as divisible

as the relief sought here.

Finally, I dissent from the denial of a stay on one point

regarding the remedial limitations imposed by 8 U.S.C.

§ 1252(f)(1). That provision states that no court other than the

Supreme Court “shall have jurisdiction or authority to enjoin

or restrain the operation of the provisions of part IV of this

subchapter”—i.e., part IV of subchapter II of chapter 12 of

Title 8, which consists of 8 U.S.C. §§ 1221 through 1232—

“other than with respect to the application of such provisions

to an individual alien against whom proceedings under such

part have been initiated.” In Garland v. Aleman Gonzalez, 596

U.S. 543 (2022), the Supreme Court held that section

1252(f)(1) “prohibits lower courts from entering injunctions

that order federal officials to take or to refrain from taking

actions to enforce, implement, or otherwise carry out the

specified statutory provisions,” except in “individual” cases not

5

involving “classwide injunctive relief.” Id. at 550. The

specified part IV provisions include section 1229a, which sets

forth ordinary removal procedures, and section 1225(b)(1),

which sets forth expedited removal procedures. The district

court held that the proclamation and guidance impermissibly

sought to supplant these mandatory removal procedures. As

noted above, the court was likely correct on this point, so it

properly enjoined application of the proclamation and guidance

to the named plaintiffs to that extent. But because such an

injunction commanded the government to use the part IV

provisions to conduct removals, section 1252(f)(1) barred the

extension of this injunctive relief to absent class members.

My colleagues describe the injunctive relief as operating

on executive actions grounded in section 1182(f), which lies

outside of part IV. But as the district court explained, the

enjoined provisions and actions amounted to “an extra-

statutory system for expelling aliens from the United States,”

ECF 71 at 121, which is likely unlawful precisely because it

conflicts with sections 1229a and 1225(b)(1). Aleman

Gonzalez indicated that section 1252(f)(1) does not bar class-

wide injunctive relief against the operation of a provision

outside part IV simply because the injunction “has some

collateral effect on the operation of” provisions inside part IV.

See 596 U.S. at 553 n.4. But in the only cited case involving

such a collateral effect, the enjoined provision was held invalid

for reasons having nothing to do with any part IV provision.

See Gonzales v. DHS, 508 F.3d 1227, 1231–34 (9th Cir. 2007).

That seems to me quite different from the situation here, where

the court restrained the operation of statutory provisions

outside part IV because they conflict with provisions inside it.

In my view, the latter kind of case involves a court ordering the

government to “enforce, implement, or otherwise carry out” the

part IV removal provisions, thereby triggering section

1252(f)(1). See Aleman Gonzalez, 596 U.S. at 550. And it is

6

no answer to say that the government need not carry out any

removals at all, which would be a wholesale abdication of its

enforcement responsibilities under the INA.