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Border reopens to tourism, but asylum seekers are left out—11-12-21
Immigration news, in context
This is the 102nd edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we examine the changing pandemic-related rules for entry to the U.S., including a recent easing of land border restrictions.
In Under the Radar, we look at how some Biden officials shut down a plan to provide vaccines to humanitarian migrants.
In Next Destination, we discuss the ongoing efforts to resettle Afghan refugees, particularly children.
The Big Picture
The news: The U.S. land borders with Canada and Mexico have reopened for “non-essential” travel for vaccinated noncitizens with nonimmigrant status, allowing cross-border communities to fully reconnect for the first time in over a year-and-a-half but leaving out asylum seekers who have been waiting for the chance to apply for humanitarian protections.
For the first time since March 2020, certain travelers can enter the U.S. via land borders after the administration announced new rules easing restrictions for vaccinated travelers. Border communities have rejoiced at the resumption of what has long been a unique way of cross-cultural life, particularly given the density of families in which some members may live in the U.S. and some in Mexico. Beyond that, tourism and commerce from Mexico have long been an important lifeline for communities along the U.S. southern border, and the resumption of this travel will be a boon for their economies. At the same time, restrictions haven’t been lifted on the entry of asylum seekers.
There are a few separate concepts at play here, so perhaps the best way to give a full picture of the current circumstance is to separate people into buckets and sub-buckets around how they’ve been affected by coronavirus-related restrictions specifically—
U.S. Persons: These are U.S. citizens and permanent residents, who enjoy enhanced protections under the law and, crucially, in general cannot be turned away upon an attempt to return to the United States; federal judges have established clear precedent that they have a presumptive right to return, only abridged for permanent residents in certain very specific circumstances like having spent a certain amount of time abroad. Even then, they are entitled to a process, and cannot simply be denied access.
Land travel: Given the aforementioned legal precedents, there have never been enforceable restrictions against returning U.S. citizens and residents, and they have been freely able to pass through land borders into the United States since the beginning of the pandemic.
Air travel: U.S. persons were not restricted from returning to the U.S. via aircraft until this year. On January 25, the Centers for Disease Control and Prevention issued an order under Title 42 (the same public health title being used to justify expulsions; more on that later) requiring passengers over 2 years old—including U.S. citizens and residents—boarding flights to the U.S. to have had a negative COVID-19 test from the three days before their flight if they were fully vaccinated, or from the day before if they were unvaccinated. This could be accomplished because it wasn’t preventing the entry of U.S. persons once they landed, it was preventing them from boarding flights at all. These restrictions remain in effect.
One quirk here—people who had been approved as immigrants to the United States, i.e. granted immigrant visas whose purpose was to allow for permanent resettlement, but had not already traveled to the country and received permanent residence, were restricted from doing so by Proclamation 10014. The order was issued by President Trump in April 2020, leaning on the expansive powers of Immigration and Nationality Act section 212(f) (which we’ve discussed at length before). President Biden rescinded this order in February.
Noncitizens with nonimmigrant status: This encompasses all non-U.S. persons who would be traveling under a nonimmigrant designation, which effectively means anything that isn’t a green card or an immigrant visa, such as students, temporary workers, and tourists.
Land travel: While it may be natural to assume that U.S. authorities have utilized the same legal provisions to restrict the land entry of nonimmigrant travelers and asylum seekers, Customs and Border Protection has actually relied on a customs law to prohibit the entry of nonimmigrant visa holders. Specifically, 19 U.S.C. § 1318(b)(1)(C) and (b)(2) grant the agency the power to, in response to a national emergency declaration (as obviously exists for the COVID-19 pandemic), broadly restrict operations along the border. Beginning in March of 2020, CBP began issuing one rule each for the borders with Mexico and Canada which blocked all but “essential” travel. For nonimmigrants, this was considered to be people traveling for medical purposes; to educational institutions; working in the United States (i.e. those already with work there, not those would be looking for work); for emergency or public health purposes; for cross-border trade (e.g. truck drivers); for diplomatic or governmental reasons; and members of the U.S. armed forces and their families.
This did not include merely visiting or conducting tourism, which essentially cleaved in half cross-border communities that were used to frequent leisure and family travel from northern Mexico. It is a shift in this policy that is currently being celebrated, as the latest version of this same order (of which there have been multiple versions) maintains the same restrictions, but only for unvaccinated travelers. As of November 8, fully vaccinated nonimmigrant travelers are permitted to enter through land ports for non-essential reasons. The restrictions on unvaccinated individuals are slated to extend at least through January 21, 2022.
Air travel: There has never been an across-the-board prohibition on most nonimmigrant air travel to the United States as there was with land border crossings. Instead, a variety of different orders and policies enacted sweeping restrictions for particular categories of nonimmigrant and those arriving from certain countries. As we’ll note in more depth below, countries and areas including China, Iran, the United Kingdom, the Schengen Zone, and Brazil, among others, were hit with particular restrictions on travel not specifically against their citizens but against coming from their territory. (There were some exceptions, such as for diplomatic personnel.) Separately, Proclamation 10052, issued by Trump in June 2020, prohibited the entry of certain types of nonimmigrants due to their supposed threat to the U.S. labor market. These were H-1B and H-2B work visas, J exchange, training, and education visas, and L executive visas. Like the restrictions on immigrants, this proclamation was rescinded by Biden in February.
Simultaneous to the easing of restrictions on land entry, a new Biden proclamation did away with these country-based restrictions on travel for vaccinated travelers, which has also meant that tourists and other nonimmigrant visitors from countries like the U.K. have started newly arriving in the U.S. as of this week.
Noncitizens with no status: All attempted entrants with no visa or any other type of entry document. The majority of these would be migrants arriving at the border in order to petition for asylum. They obviously have no predetermined right to enter the country, but by domestic and international law should be permitted to seek humanitarian protections.
Land travel: Very quickly after the pandemic was declared a national emergency, the CDC issued the first so-called Title 42 order, specifically citing the public health law 42 U.S.C § 265—which gave health officials the power to restrict the entry of “persons or property” from foreign countries from which there was high risk of “introduction of [a communicable] disease.” As we’ve discussed plenty of times before, this is essentially a pretext to enact a draconian anti-asylum scheme, and also is of dubious legality as far as expulsions (which, you’ll note, happen post-introduction). There have been some targeted exemptions put in place and the implementation is ad hoc and dependent in large part on Mexico, but as of now Title 42 remains active and in use to deny entry to or expel would-be asylum seekers. Other border policies, like Remain in Mexico, also restrict entry, but are not specifically tied to COVID.
Even as other noncitizen and vaccinated travelers are now being permitted to cross into Mexico for leisure purposes, vaccinated asylum seekers are still being turned away. This is very obviously an utter refutation of the pretext that this is necessary for public health, and may come into play in the ongoing litigation against the order.
Air travel: This doesn’t really come into play, as people without status are not permitted to board aircraft to the United States under any circumstances, pandemic or no pandemic. There are very limited exceptions, such as individuals with advance or humanitarian parole, and they haven’t been targeted under any specific restrictions beyond those already mentioned above for all air travelers.
How we got here
Weeks before coronavirus became part of everyday life—or before the Trump administration began preparing for it—the federal government responded to the looming threat of a pandemic by banning travelers from countries that had been hit hard by the virus.
The Trump administration issued a ban on travel from China on January 31, 2020, and a subsequent ban on travel from Iran on February 29. Both travel bans prohibited anyone who had been physically present in either country in the 14 days prior to their planned travel date to the U.S. from entering the country, with some glaring exceptions, including U.S. citizens and permanent residents. If a Chinese national had a trip planned to the U.S., they wouldn’t be able to travel unless they first went to a different country, stayed there for 14 days, and then went to the United States. A U.S. citizen or permanent resident, meanwhile, faced no restrictions on their travel.
None of this attracted much public attention. But in mid-March, Trump issued a third proclamation, this time restricting travel from the 26 countries in the Schengen Area. This proclamation was almost identical to the ones affecting travel from China and Iran, but unlike the other two, it sent both travelers and the media into a frenzy. Thousands of travelers—including U.S. citizens and permanent residents, who were exempted from the restrictions—flocked to airports across Europe, hoping to get back home before the ban went into effect.
Each airport terminal was a superspreader event in the making: most travelers didn’t have masks, since public health experts hadn’t yet admitted that masks could prevent COVID transmission, and were crammed together in close quarters. The World Health Organization warned countries that travel bans were not only ineffective, but could also violate its International Health Regulations. But the Trump administration’s pandemic response team, helmed by pre-America’s sweetheart-status Anthony Fauci, claimed that travel bans were necessary since most infections were coming from Europe.
The “closure” of the U.S.’s land borders with Canada and Mexico came later, on March 21. Both bans only restricted non-essential travel, because, as former acting Homeland Security secretary Chad Wolf said at the time, the administration wanted to “continue to maintain a strong economic supply chain across our borders.” As was the case with earlier restrictions on travel, this did not affect U.S. citizens or permanent residents who were returning home. Canada’s land border was similarly closed to U.S. citizens at first, but Canadian authorities eased the restrictions earlier this year. But the U.S. kept extending its own restrictions, barring all non-essential travel via land borders until reversing course this month.
These travel restrictions were disastrous for communities along both the northern and southern borders. Before the pandemic, it was common for tens of thousands of people to cross each day at each port of entry to shop, visit friends or relatives, and even to go to school.
And, of course, there was also Title 42. We’ve gone over Title 42 countless times. As a quick reminder, it’s a public health rule that allows officials to deny entry to anyone whose presence in the U.S. could contribute to the introduction or spread of an infectious disease. Since last March, the policy has been used as a near-total ban on asylum at the U.S.-Mexico border. Under Title 42, migrants who would have previously been granted entry into the U.S. to apply for asylum—meaning they would have had to argue their case before an immigration judge and may have still faced deportation in the end—have instead been expelled into Mexico en masse.
Unlike deportations, expulsions don’t leave a legal record, meaning many migrants now try to cross the border numerous times. Title 42 has swelled the ranks of Mexican and Central American asylum seekers in Mexican border towns; it was the legal rationale behind the Biden administration’s decision to expel thousands of Haitian asylum seekers. And, most notably, it is by no means being applied evenly along the border. While Mexicans, Haitians, and Central Americans are regularly expelled, migrants from Venezuela and Brazil are largely granted entry. The selective nature of Title 42—along with the fact that public health officials told Trump it would do nothing to slow the spread of COVID—puncture holes in the public health justification. But the Biden administration has clung to the policy, keeping it in place for months after senior officials claimed they would begin phasing it out, and it remains the only one of the above policies that is still in place.
Unvaccinated nonimmigrant travelers remain broadly prohibited from entering the U.S., which may seem like a good policy on the surface but which some advocates have pointed out acts as a sort of de facto restriction against poorer countries with more limited vaccine access. One thing to keep an eye out for is if at some point the administration reevaluates whether it’s worth maintaining these restrictions, perhaps if U.S. vaccination rates reach a level so as to ensure a sort of herd immunity at which point there is decreased risk of introduction of new variants, for example.
There is also, of course, the question of how the easing of these border restrictions intersects with what is still a very harshly restrictive posture towards humanitarian migrants specifically. Title 42 has never been particularly easy to justify, but that justification is only getting harder and harder as the administration keeps chipping away at its own rationales. It’s difficult to imagine a federal judge seeing, on the one hand, the welcoming of vaccinated tourists, and on the other, the turning away of supposedly hazardous vaccinated asylum seekers. This may be a particularly heavy straw on the way to breaking Title 42’s back.
From a broader perspective, the lifting of air travel restrictions specifically will have an enormous tourism impact, just in time for the holidays. For areas of the United States that were counting on the resumption of normal tourism, it’s a blessing. It will also mean that a number of temporary workers who would be coming from countries in the Schengen zone or China, for example, will actually be able to enter and work, which will have some significant implications for industries like hospitality and tech.
Under the Radar
Top Biden aides shut down plan to vaccinate migrants in U.S. custody
This summer, as the Delta variant was spreading throughout the country, a group of officials within the Biden administration devised a plan to vaccinate migrants who had been allowed into the country—but some of the president’s top aides, led by Susan Rice, called the plan off, the Washington Post reported this week. Rice and other senior officials reportedly claimed that vaccinating migrants would send a message that the border was open, encouraging even more migrants to attempt the journey to the U.S., even as the asylum system remained largely shut down under Title 42.
The Post’s report is the second to detail the schism within the Biden administration. On one side are officials who want the administration to be more welcoming to migrants than its predecessor; on the other are those who “are more enforcement-minded on the issue,” as one source within the administration told CBS News’s Camilo Montoya-Galvez.
The abandoned vaccination effort was reportedly one of many immigration debates within the White House. Officials have also disagreed about questions of enforcement and policies like Title 42. On Friday, the United Nations Special Rapporteur on the Human Rights of Migrants, Felipe González, said denying vaccines to migrants is a “grave violation of the human rights of migrants in detention.”
Resettlement process for Afghan refugees begins
In the coming weeks, thousands of Afghan families will reach their final destinations in the U.S., finally moving out of the military bases where they’ve been living for weeks or even months. But thousands of Afghans, some of whom are in hiding, remain stranded in their country—including the parents of children who are already in the U.S.
According to Reuters, approximately 1,300 Afghan children were evacuated to the U.S. without their parents or legal guardians. These children were placed in the care of the Department of Health and Human Services, and more than 1,000 have been released to relatives or other sponsors thus far. As of November 8, 266 Afghan children remained in government-operated shelters or long-term foster care arrangements, along with more than 10,000 other children, many of whom are unaccompanied migrants from Central America. Many of the Afghan children have no relatives or other sponsors in the U.S., Reuters reports.