Undocumented aliens should stay away as COVID-19 rages in the US

People thinking this is a good time to try to get into the United States should think again.

The United States currently has the third highest number of confirmed COVID-19 cases in the world. Only China and Italy have more. The United States has more than 55,000 cases, with more than 700 deaths, and it is still in the initial phase of the epidemic.

In addition to the risk of getting sick, the U.S. is taking drastic actions that are particularly hard on foreign visitors and undocumented immigrants.

New authority for the CDC director

The focus on fighting the pandemic includes the border.

The Department of Health and Human Services just published an interim final rule — effective immediately — that authorizes the director of the Centers for Disease Control and Prevention (CDC) to suspend the entry of aliens from foreign countries and places he designates.

The director can issue such a suspension when he determines that:

1. By reason of the existence of a communicable disease in a foreign country or place, there is serious danger of the communicable disease being brought into the United States, and
2. This danger would be so increased by admitting people from such a country or place, that a suspension of admitting them into the United States is required in the interest of the public health.

(The term “place” refers to any location specified by the director, including any carrier, and “carrier” means a ship, aircraft, train, road vehicle, or other means of transportation.)

The United States has entered into agreements with Canada and Mexico to limit all non-essential travel across shared borders. “Non-essential” means travel that is considered tourism or is recreational in nature.

CBP will no longer detain illegal immigrants apprehended at the border in its holding facilities. It will return them to the country they entered from — Canada or Mexico. If this is not possible, CBP will return them to their country of origin.

According to Mexico’s foreign Secretary, Marcelo Ebrard, Mexico has only agreed to do this if the illegal crossers being returned are Mexicans or are from Central America.

CBP will take aliens apprehended after making an illegal entry to the nearest port of entry, fingerprint them, and then run their prints through government computer records. If they are not wanted by the police or a government agency, they will be released on the foreign side of the port of entry.

Of course, they can go to another section of the border after they are released and make another illegal entry, but 8 U.S.C. §1325 makes a second illegal entry a felony. The penalty, if convicted, is a fine and/or jail for up to two years.

Aliens in detention

8 U.S.C. §1182(a)(1)(A)(i) makes aliens who have a communicable disease of public health significance inadmissible. This means that aliens in detention who were apprehended at or near the border would have to be tested to see if they have COVID-19, and the ones who do could not be released unless their inadmissibility is waived under 8 U.S.C. §1182(g).

Exclusion grounds do not apply to aliens who are already in the United States.

The waiver is only available to aliens who have a specified relationship with a United States citizen, an alien lawfully admitted for permanent residence, an alien who has been issued an immigrant visa, or they are self-petitioners under the Violence Against Women Act. 

Risk of contracting COVID-19 in detention facilities

Rep. Ilhan Omar (D-Minn.) and 14 other Democratic representatives sent a letter to Chad Wolf, the acting Secretary of DHS, in which they ask him, among other things, how he plans to prevent COVID-19 outbreaks at immigration detention facilities.

According to Dr. Homer Venters, former chief medical officer of the New York City Jail System, “People with risk factors for serious complications and death cannot be protected inside jails, prisons, and immigration detention centers.”

If the White House Coronavirus Guidelines for America were to be followed, older detainees would be kept in isolation and the rest would be held in groups of no more than 10 people; but it seems quite unlikely that DHS will follow these guidelines at its immigration detention centers, where space is already at a premium.

Very few aliens will be able to apply for asylum

Asylum is likely to be the only relief available to most undocumented aliens, but the eligibility provision, 8 USC §1158(b)(1)(A), states that aliens who establish that they are eligible “may” be granted asylum. This means 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.

In any case, few undocumented aliens will be able to get an asylum hearing.

Although most immigration courts have not been closed yet, they are only hearing detained cases. Hearings scheduled for aliens waiting in Mexico pursuant to the Migrant Protection Protocol have been cancelled.

The National Association of Immigration Judges, the American Federation of Government Employees, and the American Immigration Lawyers Association have asked the Department of Justice to close all of the immigration courts.

USCIS also accepts asylum applications, but USCIS has closed its offices.

Undocumented aliens would be wise to stay out of 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.