When the existence of a communicable disease in a foreign country presents a serious danger of the introduction of such disease into the United States, and that danger would be increased by the introduction of persons or property from such country, 42 U.S.C. § 265 permits the Executive Branch to prohibit people from that country from entering the U.S.
The Trump administration used this authority to prohibit people from entering the United States by land from Mexico or Canada, and the Biden administration has continued the practice. The original order applies primarily to migrants attempting to enter the United States without valid entry documents who otherwise would be subjected to immigration processing at crowded border patrol processing centers.
A group of asylum-seeking migrants sued the Department of Homeland Security (DHS) in a U.S. District Court, claiming — among other things — that the order violates their right to apply for asylum. In a preliminary decision issued on Sept. 16, 2021, the District Court granted a temporary injunction requiring DHS to suspend the order pending the outcome of the suit. DHS appealed to the D.C. Court of Appeals.
On Friday, March 4, the appeals court issued a decision permitting DHS to expel covered migrants pending the outcome of its suit in the District Court, but only to places where they will not be persecuted or tortured.
Decision
The asylum seekers claimed that section 265 applies to third parties who “introduce” other people or property into the country, not to the individuals who are introduced.
The court observed that section 265 might have been clearer if Congress has used a word like “entry” instead of “introduce,” but Congress did refer to the “suspension of entries” in its title for the section. The use of the word “introduction” rather than a word like “entry” makes sense in view of the fact that Congress intended the prohibition to cover both “persons” and “property.” Property can’t make an entry.
The asylum seekers also claimed that section 265 does not authorize expulsions.
But the court observed that the authority to prohibit the introduction of people into the United States would be meaningless if the border patrol could not take action against a covered migrant who manages to set foot on American soil. The border patrol has no authority over illegal crossers until they are in the United States.
Moreover, section 265 applies to migrants who enter illegally, and INA section 1227(a)(1)(B) provides that any migrant who is present in the United States in violation of law is deportable.
The asylum seekers also claimed that immediate expulsion prevents them from exercising their right under INA section 1158(a) to apply for asylum.
The court observed that section 265 has to be reconciled with INA section 1158(a) — which can be done on the basis of the discretionary nature of asylum. The administration may grant asylum, or it may not. It is a matter of executive discretion.
The administration has decided, for public-health reasons, to exercise that discretion by foreclosing asylum for the specific subset of border crossers covered by the section 265 order, which also forecloses the statutorily mandated procedures that migrants use to apply for asylum. But when the administration has decided, as it has here, that it is going to deny asylum as a matter of discretion, the proceedings would be futile.
Such harmonization might explain why Congress has explicitly excluded aliens in specified categories from receiving asylum, such as applicants who have persecuted others, but it has not categorically excluded applicants with communicable diseases. Congress may have trusted that the administration would only use section 265 to protect the country from the introduction of a communicable disease from abroad when the danger warrants it.
Nevertheless, DHS cannot expel migrants who claim that they fear persecution or torture without considering the credibility of their claims in expedited removal proceedings. If they can establish a credible fear of persecution or torture in these proceedings, they would be entitled to a hearing on an application for withholding of removal under INA section 1231(b)(3)(A) or for protection under the Convention Against Torture. Relief under these provisions is not discretionary. It’s mandatory.
The court emphasized, however, that these provisions just prohibit sending a migrant to the country where he would face the persecution or torture; they do not provide a path to asylum or any other legal status in the United States — and they do not prevent DHS from expelling the migrant to a country where he would not be persecuted or tortured.
Not an acceptable solution
Expedited removal proceedings would require CBP to hold the migrants in crowded detention facilities for a considerable amount of time while their claims are being considered, which is what the order was intended to prevent. It would subject the migrants to an increased likelihood that they will contract COVID-19 if they don’t already have it — or spread it to others if they do.
And if the migrant is going to be expelled in any case, there is no point to conducting proceedings of any kind. Just don’t send him to the country where he claims he would be subjected to persecution or torture.
The most significant precedent this decision sets is that the administration can refuse to accept asylum applications so long as it does not deport the asylum seekers to the country where they claim they would be persecuted.
As a purely technical matter, this does seem to be correct — and there are other situations in which it would be very useful to be able suspend consideration of asylum applications. For instance, no administration has ever found a way to reduce the immigration court backlog significantly. It was only 129,505 cases in fiscal 1998; it rose to 1,457,615 cases in fiscal 2021; and, as of the end of January, it had reached 1,636,999 cases.
Would a suspension of asylum applications make it possible to bring the backlog down to a manageable level?
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 his blog at https://nolanrappaport.blogspot.com.