Will empathy for immigrants survive COVID-19?

Only three things are certain — death, taxes and if there’s a major coronavirus epidemic in the United States, President Donald Trump will do whatever he can to prevent infected aliens from entering the country and to remove the ones who are already here.

Surprisingly, he may find it easier than some of his other immigration control attempts, assuming that COVID-19 deaths across the country begin to rise.

Trump can identify and exclude aliens at ports of entry who have the coronavirus

Setting economic consequences aside, keeping visitors with coronavirus out would be relatively easy.

In the midst of a major coronavirus pandemic, Trump could require a medical examination of every alien who wants to enter the United States. The examination could be performed by authorized physicians in their home country before the alien travels to the United States. 

Medical exams usually are just required of aliens seeking admission as permanent residents. Nonimmigrant visitors normally do not have to have a medical exam. A medical exam, however, can be required of any alien if there is reason to think that he or she may be inadmissible on health-related grounds.

Aliens who have a communicable disease of public health significance, such as COVID-19, are inadmissible under 8 USC §1182(a)(1)(A)(i).

8 USC §1182(g) provides a discretionary waiver for this exclusion ground, but it is limited to aliens who have a specified relationship with a United States citizen or a lawful permanent resident, or an alien who has been issued an immigrant visa and aliens who are VAWA self-petitioners.

Aliens who are here unlawfully present a much greater challenge

A study performed by three Yale-affiliated researchers using mathematical modeling on a range of demographic and immigration operations data indicates that there likely are more than 22.1 million undocumented aliens in the United States, many of whom will be infected by COVID-19 as it spreads throughout the country. They are already here, and their impact on the coronavirus issue won’t become evident until they get sick — more of which in a moment.

Also, Trump cannot deal with the undocumented aliens who have already been apprehended and placed in removal proceedings. The immigration court has a backlog of 1,101,061 cases, and it only completed 276,523 cases in fiscal 2019. At that rate, it would take four years to clear the backlog even if no new cases were given to the court, which isn’t going to happen. Trump would have to resort to extreme measures to make a meaningful increase in the immigration court’s productivity, but this would be true even if there were no coronavirus epidemic. The epidemic just makes the need to resort to such measures more urgent.

There is a possible — if questionable — action for these people.

8 U.S.C. §1361 puts the burden of proof on the alien in removal proceedings to show the time, place, and manner of his entry into the United States. If he cannot establish a lawful entry, he will be presumed to be in the United States in violation of law, which is a deportation ground under 8 USC §1227(a)(1)(B).

If asylum relief were not available, group hearings could be held at which the aliens could be sworn in and then asked to raise their hands if they think they can establish a lawful entry or that some other form of relief is available to them.

The ones who raise their hands could be questioned individually to determine whether they should have a full hearing.

The judge could then offer voluntary departure in lieu of deportation to the ones who would not be having a full hearing, give them a brief explanation of how that would benefit them, and then issue his orders.

Would this be due process? Probably not, but to prevail on appeal with a due process violation claim, the aliens generally would have to establish prejudice, which means showing that the outcome could have been different if their right to due process had not been violated. Very few of them would be able to make such a showing.

Can Trump eliminate asylum applications?

Yes — to a great extent he can.

The asylum provisions provide that aliens physically present in the United States may apply for asylum, but there are exceptions. Asylum also may be denied on the basis of disqualifying conduct, such as having been convicted of a particularly serious crime.

• Safe third country. Asylum is not available to an alien who can be sent pursuant to a bilateral or multilateral agreement to a country where he will not be persecuted and where he will have access to a full and fair procedure for determining an asylum claim or equivalent protection. Trump is already using this provision.

• Time limit. An alien has to file his asylum application within one year after the date of his arrival in the United States unless he can show a change in circumstances.

Also, 8 USC §1158(b)(2)(C) permits the Attorney General to establish additional eligibility limitations and conditions. If America is in the midst of a major coronavirus epidemic, asylum applicants could be required to prove that they do not have the virus, such as by presenting a specified type of medical certificate.

When would an epidemic be bad enough to warrant Draconian measures?

Here’s where the rubber really hits the road.

I expect Congress to become receptive to extreme measures when Members of Congress start dying from COVID-19, which might not take long if the virus starts spreading through the Capitol.

Many in Congress are more than 60 years old, which puts them at the highest risk of death from contracting COVID-19, according to the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19). There are 119 Democrats and 83 Republicans who are over 60.

I also expect the public to demand removal of infected aliens if they start occupying critical care facilities that are needed to sustain the lives of American citizens.

Another tipping point would be if hospitals are bankrupted by the cost of caring for coronavirus patients who do not have medical insurance or the ability to pay for their medical care without it. Many people will blame uninsured undocumented aliens, regardless of whether they are actually responsible.

In other words, I do not think concern for the welfare of undocumented immigrants is going to be as important as self-preservation if people all over the country start dying.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.