Discover more from BORDER/LINES
Week 23: Pandemic Edition
Immigration news, in context.
This is the twenty-third 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.
Recently, we rolled out a way for you to support the work we do every week to untangle these complex concepts. If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.
This week’s edition:
In The Big Picture, we explain the limitations and legal justifications of the White House’s recent coronavirus-related travel restrictions.
In Under the Radar, we dig into advocates’ concerns that continuing to detain and deport immigrants will spread coronavirus in ICE facilities and to other countries.
In Next Destination, we explain immigration judges’ concerns over the spread of coronavirus in immigration courts and discuss a leaked CBP document showing the agency’s pandemic response powers.
The Big Picture
The news: President Trump issued his third coronavirus-related travel restriction, as immigration judges called for courts to be closed, an uncertain situation emerged in immigration detention, immigrants feared getting tested and going to the hospital, and El Salvador went on lockdown.
In response to the pandemic, the president stunned Americans and Europeans alike with an unexpected presidential proclamation restricting the entry of visitors and intending immigrants who’d been in the 26-nation Schengen area — which includes most of the European Union plus a few non-EU countries — in the 14 days prior to their attempted travel to the United States, as of 11:59pm EDT today. (Some noted that the U.K. had been “exempted,” from the ban, which is not technically correct as it does not form part of the Schengen area; whether or not this makes sense is a different question.)
“The potential for undetected transmission of the virus by infected individuals seeking to enter the United States from the Schengen Area threatens the security of our transportation system and infrastructure and the national security,” it reads.
U.S. citizens and permanent residents will be unaffected, as are, supposedly, their spouses, parents — if the citizen or resident is unmarried and under 21 — and children — if the child is unmarried and under 21. Also exempted are a variety of diplomatic and international treaty personnel, child adoptees, service-members, people traveling specifically in relation to coronavirus mitigation, air and sea vessel crew members, and others that can be admitted at the discretion of the government, for example in relation with a law enforcement purpose.
None of this was very clearly laid out during the president’s announcement of the policy Wednesday night, leading to mass confusion at airports abroad as Americans feared they wouldn’t be able to return to the U.S., a scene reminiscent of the hours after the first travel ban in January 2017. Ultimately, the ban is almost identical to those issued restricting entry from China and Iran on January 31 and February 29, respectively.
The three proclamations collectively prohibit the entry of people who were physically present in the territories described, meaning that they can affect citizens of other countries, and not every citizen of the targeted countries is affected (though of course Iran remains part of the separate travel ban). They also direct the Secretaries of State and Homeland Security to implement the proclamations “as it relates to visas” and “as it applies to the entry of aliens,” and to ensure it is applied “at and between all United States ports of entry.” It also directs these officials, plus the Secretary of Transportation, to “ensure that any alien subject to this proclamation does not board an aircraft traveling to the United States.”
In practice, this means that anyone not exempted in the proclamation and present in the territories described cannot reach the United States directly, though they could travel elsewhere and then attempt to enter the U.S. after a fourteen-day period (which is about the longest incubation period for the coronavirus). There have been some reports that U.S. visa interviews in China have been cancelled, though that may have more to do with mitigation at the U.S. embassies and consulates than implementing the proclamation. Most E.U. citizens don’t require a visa to visit the U.S., though the proclamation also includes any nonimmigrants and immigrant visa holders. This means any business or student travelers who are in the Schengen zone as of midnight will be barred unless they spend two weeks elsewhere.
There are a few areas of uncertainty. It’s not entirely clear how the exemption process works at the point of boarding a flight if, say, a married couple of one U.S. citizen and one foreign citizen doesn’t happen to be carrying proof of marriage with them. The government hasn’t said much publicly about implementation, and there isn’t that much data on how it’s gone so far.
The three proclamations were issued under 8 U.S.C. § 1185(a), which generally permits the president to establish immigration controls, and 8 U.S.C. § 1182(f), an extremely expansive statute that allows the president to restrict “any aliens or of any class of aliens” from entering the country if their admission would be “detrimental to the interests of the United States.” We have written at length about this 1182(f) before, as it is the same part of federal law used by the president in an attempt to restrict the entry of immigrants without health insurance and to issue national-security related travel bans.
While those applications of the statute were much more of a stretch — to the point that the first two versions of the travel ban were struck down and the health insurance proclamation is currently enjoined — this application seems more in line with its intended function, to allow the president to respond to a specific, extant threat.
That said, it’s not exactly clear how this action now will diminish the threat. The virus is in the United States and spreading, and several public health experts have questioned whether it’ll help in controlling the virus.
How we got here
The Schengen travel restriction isn’t Trump’s first coronavirus-related proclamation, but it certainly is the one that has gotten the most attention. Trump issued a proclamation limiting travel to the U.S. from China on January 31, which affects all non-citizens or permanent residents who were in China “during the 14-day period preceding their entry or attempted entry into the United States.” (The restrictions do not apply to people who were in Hong Kong or Macau.) Like the Schengen restrictions, this proclamation doesn’t apply to U.S. citizens, legal permanent residents, the spouses or children of citizens and permanent residents, and other categories detailed above.
A week before issuing the proclamation, Trump suggested the virus could be easily contained and said he wasn’t worried about it becoming a pandemic. “We have it totally under control. It’s one person coming in from China,” he said on CNBC’s Squawk Box. “It’s going to be fine.”
The president issued another proclamation on February 29 limiting travel from Iran, which had the second-highest coronavirus death toll after China. It also doesn’t apply to U.S. citizens or permanent residents, certain relatives, and other exempted categories of travelers. Practically speaking, it’s unclear how effective these restrictions will be. The exceptions for U.S. citizens and others mean that even if foreign nationals are banned from traveling to the U.S., Americans can still carry the virus — which experts say has an average incubation period of about five days, but can in some cases go undetected for more than two weeks — and unknowingly transmit it to others.
The pandemonium at European airports this week was reminiscent of the chaos caused by the administration’s first travel ban, which affected nationals of certain Muslim-majority countries. The similarities are more than superficial: The coronavirus proclamation was issued under the same statutes as the Muslim ban. In the case of the first travel ban and its subsequent iterations — the most recent of which blocks immigrant visas from Myanmar, Eritrea, Kyrgyzstan, and Nigeria, as well as diversity lottery visas from Sudan and Tanzania — the administration claimed the presence of travelers and immigrants from those countries could pose a threat to national security.
But the administration has also attempted to use the statute’s powers to deny entry to prospective immigrants on economic grounds. Trump issued a proclamation in October denying immigrant visas to people who couldn’t prove they’d be able to obtain non-subsidized health insurance within a month of their arrival in the U.S. In November, a federal judge in Oregon temporarily blocked the health insurance proclamation, preventing it from going into effect while a lawsuit against it proceeded.
Despite having a similar statutory framework, the coronavirus-related travel restrictions are less likely to be challenged in court. Several countries have begun limiting travel to and from areas that have been heavily affected by the pandemic, and it’s likely that will continue until the contagion is limited.
While multiple press reports have described the restrictions as being in place for 30 days, none of the proclamations actually have an official endpoint. All three “shall remain in effect until terminated by the President,” with recommendations from the Secretary of Health and Human Services coming every fifteen days. Depending on how the global situation continues to develop, it would be easy for the restrictions to remain in place indefinitely, in particular as increased testing balloons the number of confirmed cases in the U.S.
Given the president’s willingness to use 1182(f), and his having invoked it in response to the virus three times in eight weeks, it’s quite likely that further orders are coming down the pike. In fact, a cynical person might say that, if there are outbreaks in Mexico and the rest of Latin America — which have seen increases in confirmed cases this past week — the president will use that fact to issue a blanket restriction on entry for all or most of the region.
There is also 19 U.S.C. § 1318, which states that the government, through the commissioner of Customs and Border Protection, “when necessary to respond to a specific threat to human life or national interests, is authorized to close temporarily any Customs office or port of entry or take any other lesser action that may be necessary to respond to the specific threat.” This must seem like a tantalizing option to the likes of presidential adviser Stephen Miller, and should be regarded as a definite possibility.
The extent of the president’s ability to fully shut down the border is murky and largely untested; while the statute allows the border to be shut, there are countervailing legal obligations, including U.S. citizens’ substantive right to return, permanent residents’ right to a full hearing before a denial of entry, and the nation’s asylum obligations. There is no relevant case law, as the statute has only come up in decades-old cases concerning imports, not border closures. We may well find out soon how expansive this authority can be.
Under the Radar
Experts warn the U.S.’s detention and deportation policies could accelerate the spread of coronavirus
As local and state governments across the country tell people to limit travel and practice social distancing to slow down transmission of the virus, federal immigration authorities seem to have no plans to reduce ICE detention or pause deportations.
At a Wednesday congressional hearing, acting ICE director Matthew Albence said the agency will not release any detainees, including those with preexisting medical conditions, from detention as a preventative measure, according to the Washington Post. “The people that we have in detention are there because they are public safety threats or flight risks,” Albence said — though just last week, immigrant advocates in New York sued ICE over the “risk assessment” algorithm used to determine whether immigrants in its custody are eligible for bond, claiming it was facilitating blanket denials.
Albence said ICE has “extensive experience” keeping migrants in its custody in medical isolation, partly due to a mumps, measles, and flu outbreak that led to the quarantining of 4,000 to 6,000 detainees. But advocates say the substandard medical care offered in ICE detention will facilitate the spread of the disease, and they have reason to worry. (For more on the quality of medical care in ICE detention, we suggest reading this 2019 report by BuzzFeed News’s Hamed Aleaziz.)
There are also concerns that, if deportations continue at the same pace, that the U.S. could effectively export coronavirus to countries that have been relatively unaffected thus far. Three men recently deported from the U.S. to Honduras were placed in isolation after exhibiting symptoms of coronavirus, according to The Guardian. It’s unclear whether the men have tested positive for the virus or if they’ve been tested at all.
Per Reuters, the Honduran government temporarily suspended deportation flights from Mexico amid concerns that the country doesn’t have a way of quarantining deportees who exhibit symptoms. The suspension will only affect deportations by plane, which have accounted for about a quarter of deportations from Mexico to Honduras this year. It will not affect deportations from the U.S., where more than 1,600 people across the country have tested positive for the virus so far, according to the New York Times.
Honduras isn’t the only Central American country to take such measures. The president of El Salvador, which has yet to confirm any coronavirus cases, announced a national quarantine this week. All Salvadorans who enter the country from abroad — including, presumably, deportees from the U.S. — will be subject to a 30-day isolation period period as part of the quarantine.
Coronavirus could pose serious concern in ICE jails, immigration courts — The Washington Post
A Secret Report Exposes Health Care For Jailed Immigrants — BuzzFeed News
Honduras suspends deportation flights from Mexico on coronavirus fears — Reuters
US migrant deportations risk spreading coronavirus to Central America — The Guardian
El Salvador's president says the country has no coronavirus cases, declares a national quarantine —The Washington Post
Immigration judges’ union asks for postponed and remote hearings amid coronavirus concerns
The president of the union for judges in federal immigration courts is urging the Executive Office for Immigration Review, the agency within the Department of Justice that oversees these courts, to implement certain measures to limit the spread of coronavirus.
The National Association of Immigration Judges is calling on EOIR to postpone all master calendar hearings — the first hearing in an immigration case, where respondents are informed of their rights and have dates set for future hearings — for non-detained immigrants. These hearings “present a continuing and unacceptable risk in the current environment,” wrote Judge Ashley Tabaddor, the president of the association.
In addition to postponing scheduling hearings for non-detained immigrants, Tabaddor asked EOIR to expand the use of video-teleconference for master calendar hearings effective immediately. This is more likely to happen than postponed hearings for non-detained immigrants, largely because the immigration court system is already in the process of shifting towards video hearings. A Freedom of Information Act request filed by immigration attorney R. Andrew Free revealed that there were 95,492 video-teleconference immigration court hearings in 2019. During the first two and a half weeks of this year alone there were 25,351 video hearings, which suggests EOIR will continue ramping up the use of video-teleconferencing, pandemic or no pandemic.
This expansion has occurred despite due process concerns from attorneys and other advocates, who say video hearings affect judges’ perceptions of migrants’ credibility and allow the government to keep migrants detained for the duration of their cases, even in situations when they shouldn’t be. It’s possible that the administration will use the immigration judges’ association’s request to expand video hearings further — and that these hearings will be here to stay even after the pandemic passes.
Trump Is Having Tent Courthouses Built Along the Border. Here’s What They Look Like. — The New York Times
Immigration "Tent Courts" Aren't Allowing Full Access To The Public, Attorneys Say — BuzzFeed News
Jeff Sessions Is Quietly Transforming the Nation’s Immigration Courts — The Atlantic
New Trump administration policies fast-track some children’s immigration court hearings, including video pilot in Houston — Houston Chronicle
A leaked CBP pandemic response plan shows how the president’s powers could expand
Customs and Border Protection’s powers could increase under a pandemic, according to an internal CBP document obtained by The Nation’s Ken Klippenstein. The document, titled “Operations Plan for Pandemic Response,” was drafted during the 2007 avian flu epidemic and is the agency’s most recent pandemic plan, according to a Department of Homeland Security source who leaked the document to The Nation.
The plan gives CBP the power to designate areas “for medical segregation to safely detain travelers potentially infected with the pandemic flu virus, thereby, helping prevent the spread of the virus to other detainees, travelers, and CBP employees.” It also requires CBP to determine which of its facilities can be used to quarantine travelers exhibiting symptoms of the pandemic virus, and suggests that the agency may be able to quarantine people in “tent cities with portable latrines” if no such facilities are available.
It is also full of a list of “assumptions,” including one that terrorists will weaponize a pandemic to wreak havoc on Americans. One section quoted in The Nation’s report says CBP intelligence officers should “monitor terrorist groups for possible attempts to cause an intentional pandemic.” Though the document was drafted during the Bush administration’s “war on terror,” the Trump administration has also weaponized concerns about terrorism to expand immigration authorities’ powers and exclude travelers from certain countries.
It’s important to note that CBP’s pandemic plan doesn’t appear to be fully operational. It’s likely that CBP is monitoring international travelers for coronavirus symptoms, but anecdotal reports suggest U.S. citizens and permanent residents aren’t being screened at airports at the moment. As far as we know, CBP hasn’t begun setting up tent cities or other quarantine facilities, but the agency has the power to do so — and more — if the pandemic continues.
An Internal Pandemic Document Shows the Coronavirus Gives Trump Extraordinary Powers, The Nation