Could we see ‘internment camps’ for undocumented aliens in the US?

Will undocumented aliens with the coronavirus be put in internment camps the way Japanese Americans were in World War II?

It may seem farfetched, but America has interred people before for posing a threat to our country.

For instance, President Franklin D. Roosevelt declared war on Japan when it attacked the American naval base at Pearl Harbor. A few months later, in response to intelligence reports that the Japanese were going to invade the West Coast, Roosevelt ordered the Secretary of War to remove Japanese Americans from areas on the West Coast which were considered “military zones.”

Approximately 120,000 Japanese Americans, including 70,000 citizens, were taken from their homes and put into internment camps at various locations around the country.

A Japanese American citizen challenged the internments in court, but the courts held that the internments were an acceptable response to wartime danger.

The COVID-19 epidemic is not a military invasion, but it is likely to spread rapidly through the United States if it is not contained, and it is already killing people. The Centers for Disease Control and Prevention (CDC) has estimated that it could kill as many as 1.7 million people in the United States.

It will be called “a quarantine” if large groups of undocumented aliens are held at detention centers to prevent the spread of a deadly contagious disease, not “an internment.”

“Internment” refers to isolating people for military or political reasons — but both detain people against their will in response to an emergency situation.

President Donald Trump is using quarantines to protect America from the COVID-19 epidemic while he simultaneously attempts to prevent contagious, undocumented aliens from entering the country and to remove the ones who are already here.

Trump’s authority

The authority to establish quarantines comes from 42 U.S. Code §264 of the Public Health Service Act, which authorizes the promulgation and enforcement of regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

8 USC §1182(f) authorizes the president to “suspend the entry of all aliens, or any class of aliens” whose entry he “finds . . . would be detrimental to the interests of the United States.” 

The Supreme Court has held that this provision “exudes deference to the President in every clause” and gives the president mostly unfettered discretion to decide “when to suspend entry,” “whose entry to suspend,” “for how long,” and “on what conditions.”

It seems likely therefore that the Supreme Court also would uphold suspensions to permit medical screening of aliens seeking entry into the United States who may have a deadly communicable disease.

Medical facilities for treating COVID-19

Reducing the entry of contagious aliens will not prevent the virus from spreading, but it could reduce the demand for hospitalization that will occur if they are admitted and become seriously ill.

The CDC expects the COVID-19 epidemic to cause a severe shortage in hospital facilities. It estimates that as many as 21 million people might need hospitalization, and the United States only has 925,000 hospital beds. 

What will happen when hospitals have to choose between providing life sustaining care to an American citizen and giving it to an alien who is in the United States illegally?

Moreover, this isn’t just about providing care for COVID-19 patients. According to Dr. Michele Carbone, when the available Intensive Care Unit (ICU) beds are occupied by patients who have COVID-19, operations that require ICU space cannot be performed. Some of the patients who need these operations will die if they can’t get them.

Proclamations

Trump issued a proclamation in January 2020 that suspends the entry of any foreign national who has been in mainland China during the 14-day period preceding the alien’s attempt to enter the United States. 

The proclamations also requires the DHS Secretary “to regulate the travel of persons and aircraft to the United States to facilitate the orderly medical screening and, where appropriate, quarantine of persons who enter the United States and who may have been exposed to the virus.”

In February, Trump issued a second proclamation, which requires the same suspension for foreign nationals who have been in Iran; and in March, he issued a third proclamation which suspends the entry of foreign nationals who have been in the Schengen Area of Europe.

The Schengen Area consists of 26 countries that have signed the Schengen agreement to eliminate border restrictions between the signatory countries.

Should undocumented aliens stop coming here?

If the spread of the virus increases, DHS may have to quarantine all of the aliens caught crossing the border illegally and all of the undocumented aliens who are apprehended in the interior too. They all would have to be screened for COVID-19, and there still is a shortage of resources for conducting COVID-19 tests. 

Many of these aliens will be quarantined at large, crowded detention centers for lengthy periods of time. COVID-19 could spread rapidly through these centers, infecting most, perhaps even all of the detainees.

Asylum is likely to be the only relief that is available to them, but the eligibility provision, 8 USC §1158(b)(1)(A), just states that aliens who establish that they are eligible “may” be granted asylum. It is a matter of discretion, and immigration judges are not likely to grant discretionary relief that would permit aliens who have a deadly, contagious disease to remain in the United States.

However you look at it, this is not a good time to be an undocumented alien in the United States.

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.