Mexican Border Restrictions Implemented

Now, even smugglers and the cartels will feel the effects of the Wuhan flu

By Andrew R. Arthur on March 21, 2020
  • The White House announced that it will restrict all non-essential travel across the border with Mexico. These restrictions, which will "ensur[e] workers and goods are not impeded", do not apply to trade and business travel between the two countries.
  • Aliens who enter illegally or who are otherwise inadmissible will be expeditiously returned back across the border — seemingly regardless of whether they seek to claim credible fear.
  • These restrictions are apparently being instituted pursuant to the surgeon general's broad authority under 42 U.S.C. § 265 to prohibit "the introduction of persons and property from such countries or places as he shall designate" when he determines that "by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States."

On Friday, the White House announced that it had reached a "mutual agreement" with Mexico to restrict all "non-essential travel" across the Southwest border in response to the Wuhan pandemic. These restrictions include all aliens who enter illegally or who are otherwise inadmissible, who will be "expeditiously return[ed]" back across the border, seemingly regardless of whether they claim "credible fear" or not.

First, the caveats: "Trade and business travel" between the two countries will continue. It is not entirely clear what the administration means by "business travel", however.

Technically, aliens traveling on B-1 visas are "business travelers" by definition, as are those who are transiting the border on employment-based visas, but it is not clear whether those aliens are covered by the restriction.

This is a fairly salient point as it relates to the large numbers of Mexican nationals and residents who enter the United States on a daily basis on Border Crossing Cards (BCCs) to shop and visit. As the State Department notes, "The [BCC] is both a BCC and a B1/B2 visitor's visa," so Mexican nationals and residents with BCCs may be permitted to enter the United States, so long as they are entering under the B-1 visa category.

Retail shopping in the United States is not covered under the terms of the B-1 visa, however (visitation plainly is not), so BCC holders entering to purchase retail goods could be barred. It has never been my experience, however, that U.S. Customs and Border Protection (CBP) officers get into the details when admitting BCC holders, but that may change under these restrictions.

That said, the White House announcement states that these restrictions will not apply to U.S. citizens and lawful permanent residents (who would be exempted by law in most cases anyway) as well as to "individuals with valid travel documents". This latter category would logically include all BCC holders as well as every other foreign national with a valid passport and visa. Most of that travel would not fall within the classification of "essential travel", however, so it will be interesting to see how the administration applies these restrictions.

The White House announcement also makes clear that it "ensur[es] workers and goods are not impeded", so the hundreds if not thousands of Mexican nationals who cross the border on a daily basis to work in the United States are likely not subject to these restrictions.

Now that the caveats are out of the way, expeditious return of illegal entrants and those who lack entry documents (who are currently subject to expedited removal, which thanks to the huge credible fear loophole has more or less been a misnomer for some time) is a major step.

The White House has offered some extremely sound bases for this decision, however, each of which is directly related to public health and/or officer safety:

The United States will expeditiously return aliens who cross between ports of entry or are otherwise not allowed to enter the country, as the facilities in which these aliens would normally be held cannot support quarantine for the time needed to assess potential cases.

These aliens are processed in stations designed for short-term processing, where distancing is not a viable option, creating a serious danger of an outbreak.

The Centers for Disease Control and Prevention (CDC) has determined that these conditions present a serious infection control challenge and are a risk to public health.

Should an outbreak occur at these facilities, local medical facilities would be forced to devote extensive resources and may become overwhelmed.

This action will also protect the health of our country's dedicated border agents and other law enforcement personnel, who are vital to the security of our Nation. [Emphasis added.]

I discussed the CDC quarantine (or "Q") stations in my March 14 post, "WaPo Misses Key Points on Wuhan Flu". There are 20 of them in the United States, but only two close to the Southwest border: one in San Diego and one in El Paso. Given the stress on the public health system in the interior of the United States caused by the need to respond to the Wuhan flu in communities across the country, it is doubtful that CDC could set up new ones along the border anytime soon.

It appears that the administration is utilizing the sweeping powers conferred on the surgeon general by 42 U.S.C. § 265, which states:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose. [Emphasis added.]

This is not a new provision, or one that the Trump administration pushed for: It dates to the Franklin Roosevelt administration, and was signed five days before D-Day.

While there have been challenges to many of the president's efforts to control the border in the last three-plus years, I would note that most of those actions (such as the travel restrictions in Presidential Proclamation 9645), have largely rested on the president's authority under sections 212(f) (suspension of entry or imposition of restrictions by president) and 215(a) (travel control of citizens and aliens) of the Immigration and Nationality Act (INA).

The surgeon general's authority under 42 U.S.C. § 265 appears to be fairly absolute (although the same is true of the president's authority under sections 212(f) and 215(a) of the INA, both of which have been subject to challenge), and would also appear to supersede the expedited removal provision in section 235(b) of the INA. Simply put, those aliens would not be "applicants for admission", because they would not be allowed in the country at all.

And at a time that the governor of California (our most populous state) has ordered all of its nearly 40 million residents to remain at home to slow the spread of Wuhan flu, it would be difficult to argue that this action is "arbitrary and capricious".

It is significant that the Mexican government agreed to these restrictions. As a matter of law, Mexico is generally only obligated to accept the return of its own nationals, not nationals of third countries. That said, Mexico is likely interested in protecting the health of its own citizens from the Wuhan flu (as my colleague Jason Peña reported on March 18, Mexico is turning away any migrant infected with the disease at its own southern border), which means stopping the flow of unscreened migrants through that country.

Most of those migrants are headed to the United States, so if the United States will not accept them, they likely will not pay smugglers to assist them in transiting through Mexico, and will not enter Mexico to begin with.

Which means that those smugglers, and the cartels to whom they must pay transit fees, will feel the economic pain of the Wuhan flu that many legitimate businesses in the United States are currently suffering. It could not happen to better groups of people.