Topic Page: Covid-19 and Immigration
- Proposed regulations would clarify that DHS and DOJ "may consider emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics" in assessing whether an alien poses a danger to the national security and is therefore barred from receiving asylum, statutory withholding of removal, and withholding of removal under the Convention Against Torture (CAT).
- The regulations would specifically allow DHS to apply such restrictions in the credible-fear process.
- DHS could remove an alien barred thereunder from asylum and withholding, with no fear of torture, to be removed. The alien could seek review of that decision. If the IJ reversed that decision, DHS could remove that alien to a third country in which the alien has not asserted a fear, if the alien had received notice that such removal was a possibility.
- DHS would have discretion to remove aliens otherwise barred from those protections, but who had established that it is more likely than not they would be tortured in a specific country or country, to a third country (other than the one from which they claimed fear), or alternatively place those aliens into removal proceedings to apply for protection, again if they had received such notice. There would be no review of that decision.
- These proposed regulations provide a framework for assessing fear claims by aliens subject to indefinite travel restrictions issued by HHS in response to the current Wuhan coronavirus pandemic on May 21 under Title 42. Those restrictions bar the entry of aliens who entered illegally at the border or along the coast, or without documents at ports along the border and the coast.
- The regulations would also apply in the event of future pandemics or similar health emergencies.
On Thursday, the Executive Office for Immigration Review (EOIR) in the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued proposed changes to the regulations governing asylum, statutory withholding under section 241(b)(3) of the Immigration and Nationality Act (INA), and protection under the Convention Against Torture (CAT), as well as credible-fear determinations for aliens in expedited removal under section 235(b)(1) of the INA. Those changes would make clear that asylum officers (AOs) and immigration judges (IJs) could consider, on an emergency basis, specific public health concerns in assessing whether aliens claiming fear of persecution or torture pose a danger to the national security of the United States.
By way of background, pursuant to statute, an alien may not be granted asylum where "there are reasonable grounds for regarding the alien as a danger to the security of the United States." (Emphasis added.) Similarly, aliens are barred from statutory withholding where "there are reasonable grounds to believe that the alien is a danger to the security of the United States." (Emphasis added.)
The term "danger to the security of the United States" is not otherwise defined in the INA, reflecting the fact that Congress has given DOJ and DHS significant leeway in interpreting that term.
This bar also applies to one of the two different forms of CAT protection — withholding of removal under CAT. Specifically, by regulation, aliens subject to the bars in the INA to statutory withholding of removal (including as a "danger to the security of the United States") are not eligible for CAT withholding. As I have explained previously, there are no bars to the other form of CAT protection, deferral of removal.
The Notice of Proposed Rulemaking (NPR) published on Thursday would clarify that DHS and DOJ "may consider emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics" in assessing whether an alien poses a danger to the national security for purposes of the bars above.
Note that, even under the NPR, those health concerns would not be an absolute bar to such protection (DHS and IJs would retain discretion in applying the restrictions), nor would the proposed regulatory amendments be limited to the current Wuhan coronavirus pandemic. The proposed changes contain a number of conditions and triggers, under which DHS or an IJ may consider such health concerns.
Those triggers are "an ongoing declaration of a public health emergency under Federal law" (such as the current pandemic restrictions), or a determination by DOJ and DHS in consultation with the Department of Health and Human Services (HHS) that a disease is one "of public health significance" as defined in regulation and is "prevalent or epidemic" in designated countries abroad.
The proposals would also underscore and expand on current regulations allowing aliens who have been ordered removed but who have been granted statutory withholding, or withholding or deferral under CAT, to be removed to a third country, provided that it is not a country from which removal has been withheld or deferred.
The NPR, if enacted, would amend the credible-fear review process for aliens in expedited removal to be administratively removed to such third countries, without an order from an IJ.
Specifically, if an AO concludes than an alien who asserts a fear of torture poses a danger to the security of the United States (including under the public-health restriction) and is therefore barred from asylum, statutory withholding, and withholding under CAT, the AO will assess whether it is more likely than not that the alien would be tortured if removed.
If the alien establishes that it is more likely than not that he or she would be tortured, DHS would have "unreviewable discretion" to place the alien into removal proceedings, or alternatively to remove the alien to a third country from which the alien does not claim a fear. In order for DHS to do so, however, it would have to advise the alien seeking withholding or deferral, in advance, of the possibility that the alien could be removed to a third country, to allow the alien to withdraw his or her request for credible fear.
If the AO determines, however, that the alien is so barred and has failed to show that it is more likely than not that he or she would tortured, the alien can request IJ review of those determinations (which is required by statute). If the IJ vacates the AO's determinations, under the proposed regulation, and if the alien has received the aforementioned notice, DHS can again either place the alien into removal proceedings, or remove the alien to a third country, in its discretion.
These proposed regulations supplement indefinite travel restrictions issued by HHS in response to the current pandemic on May 21. Those restrictions, which I examined in-depth in a May 22 post, apply to aliens entering the United States illegally between the ports of entry along the border and the coasts, or without proper documents at those ports of entry, in accordance with authority provided in 42 U.S.C. §§ 265 and 268.
In essence, the referenced provisions in Title 42 allow HHS to prohibit the introduction of persons and property from any country in which it concludes there is a communicable disease that could be introduced into the United States, for as long as it deems necessary to prevent the introduction of that disease into this country. In May, the Border Patrol expelled 19,745 aliens apprehended along the borders pursuant to those restrictions from the United States.
Thursday's Notice of Proposed Rulemaking would provide a framework for the assessment of any protection claims made by aliens who are subject to that May 21 HHS order, as well as any aliens who would be subject to expulsion under any future orders.