Case 6:22-cv-00013 Document 1 Filed on 04/22/22 in TXSD Page 1 of 24
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`United States District Court
`Southern District of Texas
`Victoria Division
`
`STATE OF TEXAS,
`Plaintiff,
`
`v.
`ROCHELLE WALENSKY, in her official
`capacity as Director of the Centers for
`Disease Control & Prevention;
`CENTERS FOR DISEASE CONTROL &
`PREVENTION;
`XAVIER BECERRA, in his official capacity as
`Secretary of Health and Human Services;
`U.S. DEPARTMENT OF HEALTH & HUMAN
`SERVICES;
`ALEJANDRO MAYORKAS, in his official
`capacity as Secretary of Homeland
`Security;
`U.S. DEPARTMENT OF HOMELAND SECURITY;
`CHRISTOPHER MAGNUS, in his official
`capacity as Commissioner of U.S.
`Customs & Border Protection;
`U.S. CUSTOMS & BORDER PROTECTION;
`TAE JOHNSON, in his official capacity as
`Acting Director of U.S. Immigration &
`Customs Enforcement; and
`U.S. IMMIGRATION & CUSTOMS
`ENFORCEMENT;
`Defendants.
`
`Case 6:22-cv-13
`
`Complaint
`The Biden Administration’s disastrous open border policies and its
`1.
`confusing and haphazard COVID-19 response have combined to create a
`humanitarian and public safety crisis on our southern border. The Defendants
`now seek to eliminate their Title 42 border-control measures, which are the
`only rules holding back a devastating flood of illegal immigration. But they
`
`
`
`United States District Court
`Southern District of Texas
`Victoria Division
`
`STATE OF TEXAS,
`Plaintiff,
`
`v.
`ROCHELLE WALENSKY, in her official
`capacity as Director of the Centers for
`Disease Control & Prevention;
`CENTERS FOR DISEASE CONTROL &
`PREVENTION;
`XAVIER BECERRA, in his official capacity as
`Secretary of Health and Human Services;
`U.S. DEPARTMENT OF HEALTH & HUMAN
`SERVICES;
`ALEJANDRO MAYORKAS, in his official
`capacity as Secretary of Homeland
`Security;
`U.S. DEPARTMENT OF HOMELAND SECURITY;
`CHRISTOPHER MAGNUS, in his official
`capacity as Commissioner of U.S.
`Customs & Border Protection;
`U.S. CUSTOMS & BORDER PROTECTION;
`TAE JOHNSON, in his official capacity as
`Acting Director of U.S. Immigration &
`Customs Enforcement; and
`U.S. IMMIGRATION & CUSTOMS
`ENFORCEMENT;
`Defendants.
`
`Case 6:22-cv-13
`
`Complaint
`The Biden Administration’s disastrous open border policies and its
`1.
`confusing and haphazard COVID-19 response have combined to create a
`humanitarian and public safety crisis on our southern border. The Defendants
`now seek to eliminate their Title 42 border-control measures, which are the
`only rules holding back a devastating flood of illegal immigration. But they
`
`
`
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`failed to follow the Administrative Procedure Act in attempting this
`destructive rescission of Title 42. Without justification or concern for Texans,
`the Defendants unlawfully disregarded the APA’s notice-and-comment
`requirements, refused to consider numerous factors of crucial importance to
`their rulemaking, and laid bare the incoherence of their decision-making. The
`State of Texas respectfully requests preliminary and permanent injunctive
`relief to block Defendants’ termination of Title 42.
`
`Parties
`
`A. Plaintiff.
`Plaintiff State of Texas is a sovereign State of the United States of
`2.
`America. It spends significant amounts of money providing services to illegal
`aliens. Those services include education services and healthcare, as well as
`many other social services broadly available in Texas. Federal law requires
`Texas to include illegal aliens in some of these programs. As the number of
`illegal aliens in Texas increases, the number of illegal aliens receiving such
`services likewise increases.
`The Emergency Medicaid program provides health coverage for low-
`3.
`income children, families, seniors, and the disabled. Federal law requires
`Texas to include illegal aliens in its Emergency Medicaid program. The
`program costs Texas tens of millions of dollars annually.
`The Texas Family Violence Program provides emergency shelter and
`4.
`supportive services to victims and their children in Texas. Texas spends more
`than a million dollars per year on the Texas Family Violence Program for
`services to illegal aliens.
`
`2
`
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`The Texas’s Children’s Health Insurance Program offers low-cost
`5.
`health coverage for children from birth through age 18. Texas spends tens of
`millions of dollars each year on CHIP expenditures for illegal aliens.
`Further, Texas faces the costs of uncompensated care provided by
`6.
`state public hospital districts to illegal aliens which results in expenditures of
`hundreds of millions of dollars per year.
`These harms will only grow over time. As DHS and federal courts
`7.
`have found, incentives matter: reducing the likelihood that an alien will be
`released into the United States reduces the number of aliens who attempt to
`enter the United States illegally. Texas v. Biden, No. 2:21-cv-67, 2021 WL
`3603341, at *6, *18–19 (N.D. Tex. Aug. 13, 2021); cf. Zadvydas v. Davis, 533
`U.S. 678, 713 (2001) (Kennedy, J., dissenting) (“An alien . . . has less incentive
`to cooperate or to facilitate expeditious removal when he has been released,
`even on a supervised basis, than does an alien held at an [ICE] detention
`facility.”).
`
`B. Defendants.
`Defendant Centers for Disease Control and Prevention is a
`8.
`constituent agency of Defendant U.S. Department of Health and Human
`Services. CDC conducts specified functions under the Public Health Service
`Act, including exercising authority delegated by HHS.
`Defendant Rochelle Walensky is the Director of CDC. Texas sues her
`9.
`in her official capacity.
`10. Defendant Xavier Becerra is the Secretary of HHS. Texas sues him
`in his official capacity.
`11. Defendant U.S. Department of Homeland Security oversees the
`Defendants U.S. Customs and Border Protection and U.S. Immigration and
`
`3
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`Customs Enforcement, which are constituent agencies of DHS. DHS and its
`constituent agencies enforce the INA, and DHS has a duty to enforce orders
`issued by the CDC under the Public Health Safety Act and its regulations.
`12. Defendant Alejandro Mayorkas is the Secretary of DHS. Texas sues
`him in his official capacity.
`13. Defendant Christopher Magnus is the Commissioner of CBP. Texas
`sues him in his official capacity.
`14. Defendant Tae Johnson is the Acting Director of ICE. Texas sues him
`in his official capacity.
`
`Jurisdiction and Venue
`15. The Court has jurisdiction over this dispute because it arises under
`the Constitution and laws of the United States. See 28 U.S.C. §§ 1331, 1346,
`1361; 5 U.S.C. §§ 702–703. It has jurisdiction under 5 U.S.C. §§ 705–706 and
`28 U.S.C. §§ 1361 and §§ 2201–2202 to render the declaratory and injunctive
`relief that Texas requests.
`16. This district is a proper venue because the State of Texas resides in
`this district and a substantial part of the events or omissions giving rise to
`Texas’s claims occurred here. 28 U.S.C. § 1391(e).
`
`Facts
`
`A. The INA’s detention and enforcement requirements.
`
`1. Detention and enforcement generally.
`17. The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135,
`and the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., charge DHS
`with enforcing the United States’ immigration laws. Under the immigration
`laws, “several classes of aliens are ‘inadmissible’ and therefore ‘removable.’”
`Dept. of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020) (citing
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`8 U.S.C. §§ 1182, 1229a(e)(2)(A)). Among these classes are aliens who lack a
`valid entry document when
`they apply
`for admission. 8 U.S.C.
`§ 1182(a)(7)(A)(i)(l). Applicants for admission include both aliens who arrive in
`the United States and aliens who are present in the United States without
`having been lawfully admitted, who are deemed to have applied for admission.
`8 U.S.C. § 1225(a)(1).
`18. An inadmissible alien may be removed; the standard process involves
`an evidentiary hearing before an immigration judge at which the alien may
`present evidence and argue against removal. Thuraissigiam, 140 S.Ct. at 1964.
`However, this process is slow, and while “removal is being litigated, the alien
`will either be detained, at considerable expense, or allowed to reside in this
`country, with the attendant risk that he or she may not later be found.” Id.
`19. To address these problems, Congress created more expedited
`procedures that apply to aliens who are “present in the United States who
`[have] not been admitted” and to aliens “who arrive[] in the United States
`(whether or not at a designated port of arrival. . . .).” 8 U.S.C. § 1225(a)(1).
`These aliens are subject to expedited removal if they (1) are inadmissible
`because they lack a valid entry document; (2) have not “been continuously
`physically present in the United States for the two years preceding their
`inadmissibility determination; and (3) are among those whom the Secretary of
`Homeland Security has designated
`for expedited removal. See
`id.
`§ 1225(b)(1)(A). Once an immigration officer determines that such an alien is
`inadmissible, the alien must be ordered “removed from the United States
`without further hearing or review.” Id. § 1225(b)(1)(A)(i).
`20. Whether subject to the standard removal process or the expedited
`process, aliens who intend to claim asylum or who claim a credible fear of
`persecution are not deportable while that claim is being investigated. See 8
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`U.S.C. §§ 1158, 1225(b)(1). But those aliens must be detained until their
`entitlement to asylum is determined. Id. § 1225(b)(1)(B)(ii), (2)(A); see
`Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018) (citing 8 U.S.C.
`§ 1225(b)(1), (2)). DHS may “for urgent humanitarian reasons or significant
`public benefit” temporarily parole these aliens, but it may do so “only on a case-
`by-case basis.” 8 U.S.C. § 1182(d)(5)(A).
`
`2. Detention and enforcement to protect public health.
`inadmissible aliens is those who have a
`21. Another class of
`“communicable disease
`of public health
`significance.” 8 U.S.C.
`§ 1182(a)(1)(A)(i). The INA defines a “communicable disease of public health
`significance” by referring to “regulations prescribed by the Secretary of Health
`and Human Services.” Id.
`22. There are two circumstances under which aliens must be detained to
`determine whether they are inadmissible for public-health reasons. First, they
`must be detained if DHS has reason to believe they are “afflicted with” such a
`disease. 8 U.S.C. § 1222(a). Second, they must be detained if DHS “has received
`information showing that any aliens are coming from a country or have
`embarked at a place” where such a disease is “prevalent or epidemic.” Id. This
`detention must enable “immigration officers and medical officers” to conduct
`“observation and an examination sufficient to determine whether” the aliens
`are inadmissible. Id.
`
`B. The COVID-19 pandemic and the federal response.
`In the words of the CDC itself, COVID-19 “is a quarantinable
`23.
`communicable disease caused by the SARS-CoV-2 virus.” Order Suspending
`the Right to Introduce Certain Persons, 86 Fed. Reg. 42,828, 42,830 (Aug. 5,
`2021). Since it emerged in late 2019, “SARS–CoV–2, the virus that causes
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`COVID–19, has spread throughout the world, resulting in a pandemic.” Id.
`Since COVID-19 was first declared a public-health emergency in January
`2020, the federal government has implemented a number of COVID–19
`mitigation and response measures.
`
`1. The original Title 42 orders.
`24. The Public Service Health Act, Pub. L. 78-410, 58 Stat. 682 (1944),
`permits CDC’s Director to “prohibit, in whole or in part, the introduction of
`persons and property from such countries or places as he shall designate . . .
`for such period of time as he may deem necessary.” 42 U.S.C. § 265. This power
`may be employed whenever the Director determines there is “a communicable
`disease in a foreign country,” that “there is a serious danger” that the disease
`will be introduced to the United States, and that the danger “is so increased by
`the introduction of persons or property from such country that a suspension of
`the right to introduce such persons and property is required in the interest of
`the public health.” Id. The Director may then issue the prohibition “in
`accordance with regulations approved by the President.” Id. Though the Act
`had been law since 1944, no such regulations were promulgated until 2020.
`25. The first Title 42 rule was issued in March 2020 as an interim final
`rule. See 85 Fed. Reg. 16,559 (Mar. 24, 2020). At the same time, the CDC
`expressly invited “comment on all aspects of this interim final rule, including
`its likely costs and benefits and the impacts that it is likely to have on the
`public health, as compared to the current requirements under 42 CFR part 71.”
`Id. at 16,559.
`26. CDC received 218 comments during the 30-day comment window.
`The final rule “establishe[d] final regulations under which the Director [of the
`CDC] may suspend the right to introduce and prohibit, in whole or in part, the
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`introduction of persons into the United States for such period of time as the
`Director may deem necessary to avert the serious danger of the introduction of
`a quarantinable communicable disease into the United States.” 85 Fed. Reg.
`56,424, 56,448 (Sep. 11, 2020) (codified at 42 C.F.R. § 71.40). The day the rule
`became effective, October 13, 2020, the CDC issued its October Order—its
`Order Suspending the Right to Introduce Certain Persons From Countries
`Where a Quarantinable Communicable Disease Exists. 85 Fed. Reg. 65,806–
`12 (Oct. 13, 2020).
`27. Though issued under the Final Rule, the October Order was the
`latest in a series of orders issued under the interim final rule.1 As had the
`earlier orders, the October Order suspended introducing covered aliens into
`the United States, a suspension lasting until CDC determined that “the danger
`of further introduction of COVID-19 into the United States has ceased to be a
`serious danger to the public health.” Id. at 65,812. The suspension was based
`on findings that:
`• COVID-19 is a communicable disease that poses a danger to the public
`health;
`• COVID-19 is present in numerous foreign countries, including Canada
`and Mexico;
`• Because COVID-19 is so globally widespread, there is a serious danger
`that it will be carried into the land ports of entry and Border Patrol
`stations at or near the United States’ borders with Canada and Mexico,
`and from there into the interior of the country;
`
`
`1 The first two of these covered only 30 days each. The third such order required that
`its propriety be reviewed every 30 days. 85 Fed. Reg. at 17,060 (Mar. 26, 2020); 22,424
`(Apr. 22, 2020); 31,503, 31,507–08 (May 26, 2020).
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`• If their entry were not suspended, covered aliens would go through
`immigration processing at the land ports of entry and Border Patrol
`stations, which would require many of them (typically aliens who lack
`valid travel documents and are therefore inadmissible) to be held in the
`congregate areas of the facilities, in close proximity to one another, for
`hours or days;
`• Holding them in such settings would increase the already serious danger
`to the public health of the United States; and
`• This increased danger rose to the level that it required a temporary
`suspension of the introduction of covered aliens into the United States.
`Id. at 65,810.
`28. Customs and Coast Guard officers have the duty to “aid in the
`enforcement of quarantine rules and regulations,” 42 U.S.C. § 268, and the
`Order noted that CDC had requested “that DHS aid in the enforcement [of]
`this Order because CDC does not have the capability, resources, or personnel
`needed to do so.” Id. at 65,812. CDC needed this assistance because its own
`public health tools were not “viable mechanisms given CDC resource and
`personnel constraints, the large numbers of covered aliens involved, and the
`likelihood that covered aliens do not have homes in the United States.” Id.
`29. The October Order applied to all covered aliens, defined as aliens
`“seeking to enter the United States . . . who lack proper travel documents,”
`“whose entry is otherwise contrary to law,” or “who are apprehended at or near
`the border seeking to unlawfully enter the United States.” Id. at 65,807.
`30. The October Order noted that expulsions under CDC’s prior orders
`had “reduced the risk of COVID-19 transmission in [ports of entry] and Border
`Patrol Stations, and thereby reduced risks to DHS personnel and the U.S.
`health care system.” Id. at 65,812. It further noted that “[t]he public health
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`risks to the DHS workforce—and the erosion of DHS operational capacity—
`would have been greater” without the initial suspension order. Further, the
`suspension orders “significantly reduced the population of covered aliens in
`congregate settings in [ports of entry] and Border Patrol stations, thereby
`reducing the risk of COVID-19 transmission for DHS personnel and others
`within these facilities.” Id.
`31. DHS began using its Title 42 authority to expel aliens in March 2020,
`and the population of aliens processed under Title 8 (the ordinarily applicable
`immigration rules) plummeted. Out of more than 253,000 total southwest
`border encounters under Title 8 in Fiscal Year 2020, fewer than 25,000
`occurred in the last six months of that year.2 During that same six-month
`period, nearly 200,000 aliens were rapidly expelled under Title 42.
`
`2. Subsequent Title 42 orders.
`32. On August 3, 2021, CDC issued an order largely re-affirming the
`October Order. Pub. Health Reassessment & Order Suspending the Right to
`Introduce Certain Persons, 86 Fed. Reg. 48,828 (Aug. 5, 2021). The only change
`of any significance in the August Order was its confirmation of two previous
`amending orders that had excluded unaccompanied minors from Title 42’s
`purview. See 86 Fed. Reg. at 42,837–38. The August Order summarized the
`contemporary state of the pandemic. It noted that “[c]ongregate settings,
`particularly detention facilities with limited ability to provide adequate
`physical distancing and cohorting, have a heightened risk of COVID-19
`outbreaks.” Id. at 42,833. CBP facilities themselves have “[s]pace constraints
`
`
`2 The statistics in this complaint are taken from Sw. Border Land Encounters, U.S.
`CUSTOMS AND BORDER PROT., https://www.cbp.gov/newsroom/stats/southwest-land-
`border-encounters (last visited Apr. 22, 2022).
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`[that] preclude implementation of cohorting and consequence management
`such as quarantine and isolation.” Id. at 42,837. More, the “[c]ountries of origin
`for the majority of incoming covered [aliens] ha[d] markedly lower vaccination
`rates” than did the United States—of the top five originating countries, El
`Salvador, at 22%, had the highest rate of vaccinated persons; Guatemala and
`Honduras, the two lowest, had 1.6% and 1.8%, respectively. Id. at 42,834 &
`n.57.
`33. The August Order conceded that “the flow of migration directly
`impacts not only border communities and regions, but also destination
`communities and healthcare resources of both.” Id. at 42,835. Indeed, it came
`only days after the Defendants released more than 1,500 COVID-positive
`illegal aliens into the city of McAllen, Texas.
`Since August 2021, Defendants have used their Title 42 authority to
`34.
`expel only half of the illegal border crossers DHS has encountered. The number
`of aliens encountered at the southwest border between August 2021 through
`March 2022 totaled nearly 1.46 million, with just over half of those expelled
`under Title 42. Only 66,289 illegal aliens encountered at the border were
`removed or returned under Title 8; more than half a million—525,252—were
`released or paroled into the United States.3
`35. On March 4, 2022, in response to a request from Texas, the Northern
`District of Texas issued a preliminary injunction prohibiting the Defendants
`from excluding unaccompanied minors from Title 42 “based solely on their
`
`
`3 These data are derived from monthly status reports that the government filed in Texas
`v. Biden, No. 2:21-cv-00067, ECF Nos. 106, 112, 115, 119, 124, 129, 133 & 136 (N.D.
`Tex.). They correspond roughly with the data CBP places online (see https://
`www.cbp.gov/newsroom/stats/custody-and-transfer-statistics)
`but
`are more
`comprehensive because they also include data from ICE.
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`status as unaccompanied alien children.” See Texas v. Biden, No. 4:21-cv-
`00579, slip op. at 36 (N.D. Tex. Mar. 4, 2022). In response, CDC issued yet
`another order the next week, stating that applying Title 42 to unaccompanied
`minors was “not necessary to protect U.S. citizens” and once again terminating
`Title 42’s application to those minors. 87 Fed. Reg. 15,243, 15,245 (Mar. 17,
`2022) (signed Mar. 11, 2022). However, as had the August Order, it continued
`Title 42’s application to individuals in family units and single adults. Id.
`
`C. CDC Terminates Title 42.
`
`1. The Termination Order itself.
` On April 1, 2022, Defendant Walensky issued an order terminating
`36.
`Title 42. Exh. A, Pub. Health Determ. & Order Regarding the Right to Introduce
`Certain Persons, 87 Fed. Reg. 19,941 (Apr. 6, 2022) (signed Apr. 1, 2022).
`According to Walensky, as of April 1, there was “no longer a serious danger
`that the entry of covered noncitizens . . . into the United States will result in
`the introduction, transmission, and spread of COVID-19[.]” Id. at 19,944. In
`reaching this conclusion, she purported to consider “migration patterns,
`sanitation concerns, and any improvement or deterioration of conditions at the
`U.S. borders.” Id. at 19,943. While conceding that “the introduction,
`transmission, and spread of COVID-19 into the United States is likely to
`continue to some degree,” she nonetheless considered the threat that illegal
`aliens would spread COVID-19 to no longer be “the serious danger to public
`health that it once [was], given the range of mitigation measures now
`available.” Id.
`37. Among the factors Walensky identified as having changed, id. at
`19,949–51, were:
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`• “[W]idely available [testing] in the United States,” which “may decrease
`the necessity for testing residents in congregate settings[.]” Yet
`Walensky does not discuss whether the Defendants are capable of
`testing illegal aliens they encounter for processing. That number totaled
`more than 221,000 in March 2022—roughly 70,000 more than CBP had
`estimated would occur, and roughly 40,000 more than CBP predicts
`would occur in a “medium encounter” scenario once the Title 42 program
`ends. CBP itself predicts roughly 360,000 to 540,000 encounters per
`month in a high or very-high scenario. See DHS Sw. Border
`Coordination Ctr., Sw. Border Strategic Concept of Operations, at 2–3
`(Mar. 28, 2022).
`• An increase in the number of persons around the world who are “fully
`vaccinated with a primary vaccine series[.]” Yet Walensky discusses
`global numbers rather than numbers in Mexico and the Northern
`Triangle of Guatemala, El Salvador, and Honduras, from which most
`illegal aliens come—much less numbers actually observed in illegal
`aliens themselves. And most countries in the Western Hemisphere have
`approved one or both of the Sinopharm and Sinovac vaccines; Walensky
`does not note what proportion of the numbers, either generally or from
`the most relevant countries, are made up of those largely ineffective
`vaccines.
`• Wider availability of treatments for COVID-19. Yet Walensky does not
`note that the cost of those treatments for illegal aliens in Texas will be
`borne by charity-care providers and the State itself through its federally
`mandated Emergency Medicaid program.
`• “DHS mitigation measures,” such as DHS facilities’ “incorporat[ing]
`some of the recommended COVID-19 mitigation measures for
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`congregate settings” and DHS’s goal “to provide vaccinations to up to
`6,000 migrants a day . . . across the Southwest Border by May 23, 2022.”
`Yet Walensky does not note which mitigation measures DHS has
`adopted or the effectiveness of those measures. Nor does she note
`whether DHS is capable of meeting its announced goal, much less
`whether it could vaccinate the 540,000 illegal aliens CBP predicts may
`be encountered each month.
`38. Even when she must acknowledge the obvious, Walensky does not
`grapple with it. Walensky recognizes that the Termination Order itself “will
`lead to an increase in the number of noncitizens being processed in DHS
`facilities[,] which could result in overcrowding in congregate settings.” Id. at
`19,956. And she acknowledges that DHS’s projection of even further increases
`in encounters, leading to even further crowding in DHS facilities. Id. She
`dodges these concerns by noting that “DHS reports that it is taking steps to
`plan for such increases” and that delaying the termination until May 23 will
`“provide DHS with time to scale its vaccination program, as well as ready its
`operational capacity [and] implement appropriate COVID-19 protocols.” Id. at
`19,955–56. But the Termination Order does not discuss what DHS’s plans are,
`how it will achieve them, and whether its goals are even achievable.
`39. There is good reason to believe that DHS’s stated goals are illusory.
`DHS itself has represented that “increasing detention capacity is costly and
`time-consuming” and would likely require “several months inspecting
`potential facilities, hiring additional staff, procuring additional supplies, and
`negotiating contracts with relevant third parties.” See Defs.’ Post-Trial Mem.
`of Law, Texas v. United States, No. 6:21-cv-00016, ECF 223 at 34 (Mar. 18,
`2022). And “[f]urther, absent an additional appropriation from Congress, DHS
`would have to finance this expansion in detention capacity by transferring
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`funds from other DHS components, like the Coast Guard or Secret Service, or
`reprogramming funds within ICE, thus harming other DHS missions that are
`crucial to national security.” Id. The Termination Order does not state why a
`mass remodeling-testing-and-vaccination regime would be any more
`achievable—particularly on the short timeline between the Termination Order
`and its effective date.
`40. The Termination Order claims that it is “not a rule subject to notice
`and comment under the Administrative Procedure Act.” 87 Fed. Reg. at 19,956.
`It does so on two putative bases. First, it asserts good cause to avoid furnishing
`notice and considering comments because “it would be impracticable and
`contrary to the public interest . . . to delay the effective date of this termination
`beyond May 23.” Id. Second, it asserts that the APA’s foreign affairs exception
`by claiming without offering any detail or explanation that “this Order
`concerns ongoing discussions with Canada, Mexico, and other countries
`regarding immigration and how best to control COVID-19 transmission over
`shared borders.” Id.
`
`2. The Termination Order compared to other public-health
`orders.
`41. The Termination Order itself acknowledges that one of Walensky’s
`earlier orders, the Air Traveler Testing Order, requires that “[a]ll air
`passengers two years or older with a flight departing to the United States from
`a foreign country” must show either “a negative COVID-19 viral test result” no
`more than a day old or “documentation of having recovered from COVID-19 in
`the past 90 days.” 87 Fed. Reg. at 19,947 fn. 82 (citing Reqts. for Negative
`COVID-19 Test or Documentation of Recovery from COVID-19 for All Airline or
`Other Aircraft Passengers Arriving in the U.S., 86 Fed. Reg. 69,256 (Dec. 7,
`2021)). The Air Traveler Testing Order states that it “is necessary to reduce
`
`15
`
`
`
`Case 6:22-cv-00013 Document 1 Filed on 04/22/22 in TXSD Page 16 of 24
`
`the risk of transmission of the [COVID-19] virus” and that it will remain in
`effect until it “is no longer necessary to prevent the further introduction,
`transmission, and spread of COVID-19 into the United States.” 86 Fed. Reg. at
`69,260. Visitors who do not comply with those requirements are not allowed to
`enter the United States, and an aircraft that has not confirmed that its
`passengers comply may not enter the United States or allow passengers to
`disembark there. Id. at 69,261.
`42. A directive by Defendant Mayorkas, the Land Traveler Vaccination
`Order, is similar. There, Mayorkas ordered that, “due to the risk of continued
`transmission and spread of . . . COVID-19 between the United States and
`Mexico,” only aliens “who are ‘fully vaccinated against COVID-19’ and can
`provide ‘proof of being fully vaccinated against COVID-19’ upon request” would
`be allowed to enter the United States from land ports-of-entry along the U.S.–
`Mexico border. Notif. of Temp. Travel Restrictions Applicable to Land Ports of
`Entry and Ferries Svc. Between the U.S. and Mex., 87 Fed. Reg. 3425, 3428
`(Jan. 24, 2022). As support for this decision, he cited CDC’s recommendations,
`id. at 3426, and noted that CBP had assessed “that a testing option is not
`operationally feasible given the significant number of land border crossers that
`go back on forth on a daily, or near-daily basis, for work or school” and that
`CBP faced “additional operational challenges associated with verifying test
`results, given the wide variation in documentation,” id. at 3426 fn. 10. The
`Termination Order does not mention this order.
`43. The Land Traveler Vaccination Order parallels the Air Traveler
`Vaccination Order. There, Walensky mandated that air travelers visiting the
`United States furnish on demand proof of vaccination against COVID-19 or an
`approved excuse for not having one. Am. Order Implementing Pres. Procl. On
`Advancing the Safe Resumption of Global Travel During the COVID-19
`
`16
`
`
`
`Case 6:22-cv-00013 Document 1 Filed on 04/22/22 in TXSD Page 17 of 24
`
`Pandemic, 86 Fed. Reg. 61,224 (Nov. 5, 2021). Those who are unable to do so
`must quarantine or isolate themselves for two weeks after arriving in the
`United States. Id. at 61,228.
`44. Another Walensky order, the Masking Order, requires all persons in
`“transportation hubs” and “traveling on conveyances into and within the
`United States” to wear masks to “mitigate the further introduction,
`transmission, and spread of COVID-19 into the United States and from one
`state or territory into any other state or territory.” See Reqt. for Persons to Wear
`Masks While on Conveyances & at Transp. Hubs, 86 Fed. Reg. 8025, 8026 (Feb.
`1, 2021).4
`45. The Termination Order attempts to distinguish the Masking Order
`on several grounds, 87 Fed. Reg. at 19,946 fn. 57:
`• First, “conveyances and transportation hubs . . . are locations where
`large numbers of people may gather and physical distancing can be
`difficult.” But the same is true of facilities where illegal immigrants are
`detained.
`• “[M]any people need to take public transportation for their livelihoods.”
`But the same is true of aliens who attempt to enter the United States
`either to find work or to claim asylum.
`• “Passengers (including young children) may be unvaccinated and some
`on board, including personnel operating the conveyances or working at
`the transportation hub, may have underlying health conditions that
`
`
`4 The Masking Order was recently enjoined as beyond CDC’s statutory authority,
`inadequately explained, and issued without good cause to dispose of notice-and-
`comment requirements. See Health Freedom Defense Fund, Inc. v. Biden, No. 8:21-cv-
`1693 (M.D. Fla. Apr. 18, 2022). Though the federal government has appealed that
`decision, CDC has announced it will no longer enforce the order.
`
`17
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`
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`Case 6:22-cv-00013 Document 1 Filed on 04/22/22 in TXSD Page 18 of 24
`
`cause them to be at increased risk of severe illness.” The same is true of
`illegal aliens themselves; those traveling with illegal aliens; and those
`working at facilities where illegal aliens are detained, transported, or
`processed.
`• Unvaccinated persons “may not have the option to disembark or relocate
`to another area of the conveyance.” The same is true of illegal aliens
`themselves, particularly those who are smuggled by human traffickers;
`those who are traveling with illegal aliens; and those working at
`facilities where illegal aliens are detained, transported, or processed.
`• “Transportation hubs are also places where people depart to different
`geographic locations, both across the United States and around the
`world. Therefore, an exposure in a transportation hub can have
`consequences to many destination communities if people become
`infected after they travel.” The same is true of facilities where illegal
`aliens are detained, transported, or processed—particularly given the
`federal government’s practice of transporting illegal aliens throughout
`the country for further processing after they are paroled.
`
`D. Irreparable Harms to Texas.
`46.
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