Nolan Rappaport, The Hill, March 25, 2020
People thinking this is a good time to try to get into the United States should think again.
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:
- 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
- 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.
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.
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.
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).
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.
USCIS also accepts asylum applications, but USCIS has closed its offices.
Undocumented aliens would be wise to stay out of the United States.