Senator Patrick Leahy (D-Vt.) and nine other Democratic senators wrote a letter to DHS Acting Secretary Chad F. Wolf in which they accuse him of exploiting the COVID-19 pandemic to summarily expel large numbers of people arriving at our border in clear contravention of existing federal laws.

DHS has been engaging in such expulsions to implement the CDC's “Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists,” which was issued pursuant to 42 U.S.C. § 265 of the Public Health and Welfare Act.

According to the senators, “DHS has gone far beyond the parameters of CDC’s limited order and granted itself sweeping powers to summarily expel large, unknown numbers of individuals arriving at our border.”

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They argue that contrary to existing law, DHS is depriving aliens arriving at the border of an opportunity to apply for asylum or other forms of humanitarian protection.

The senators acknowledge that the courts have interpreted section 212(f) of the INA as giving the Executive Branch extraordinary authority to deny entry to certain aliens, but they claim that this provision is limited to specific classes of individuals and therefore does not apply to this situation.

I understand the concern they are expressing over depriving aliens arriving at our border of an opportunity to apply for humanitarian relief, but the administration is using emergency measures to deal with a COVID-19 crisis that are well within the scope of its authority.

The order

42 U.S.C. § 265 authorizes the Surgeon General of HHS to prohibit the entry of people from a foreign country who may have a communicable disease. CDC is part of HHS too. The pertinent part of this provision reads as follows:

“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 … from such country that a suspension of the right to introduce such persons … is required in the interest of the public health, the Surgeon General, … shall have the power to prohibit, in whole or in part, the introduction of persons … from such countries or places as he shall designate in order to avert such danger.”

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CDC Director Dr. Robert R. Redfield, explains in the order that the suspension applies to persons traveling to the United States from Canada or Mexico (regardless of their country of origin) who do not have valid entry documents or are apprehended in the vicinity of the border after making an entry without inspection.

The senators are expressing concern primarily about undocumented aliens coming from Mexico.

According to the COVID-19 Dashboard maintained by the Center for Systems Science and Engineering at Johns Hopkins University, COVID-19 cases have been confirmed in 185 countries, including Mexico and all of Central America.

Most of the undocumented aliens coming from Mexico who are not Mexicans come from Central America.

Redfield explains that in the absence of the suspension, undocumented aliens are held for processing in the crowded common areas of the 328 Ports of Entry (POEs) and the 136 Border Patrol stations. This presents a serious danger of spreading COVID-19 among the aliens being processed — and everyone else at the stations — and from there into the interior of the country.

The order, therefore, requires CBP to return them to the country from which they entered the United States — or to their country of origin — as quickly as possible to minimize the amount of time they spend in the common areas.

According to newspaper accounts, undocumented aliens who are apprehended in the vicinity of the Mexican border after making an illegal entry are returned to Mexico in an average of 96 minutes. They are processed in the field without setting foot in a Border Patrol station.

Section 212(f)

President Donald J. Trump could have suspended the entry of these undocumented aliens without relying on the CDC — simply by issuing a proclamation pursuant to his 212(f) authority, which is much broader than the senators are indicating. The pertinent part of this section reads as follows:

“(f) Suspension of entry or imposition of restrictions by President.

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants …”

In Trump v. Hawaii, the Supreme Court held that section 212(f) “entrusts to the president the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The sole prerequisite to exercising this authority is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States.

The Court notes that if congress had intended to constrain the president’s power to determine who may enter the country pursuant to this authority, it could have chosen language directed to that end.

We are not the only country that is restricting entries

According to an April 1, 2020, report from the PEW Research Center, the movement of people across international borders has come to a standstill in much of the world as countries close their borders to foreign visitors because of COVID-19 fears. More than 90 percent of the people in the world live in countries that have travel restrictions due to COVID-19.

For a description of the restrictions being imposed by countries around the world, see The New York Times article, “Coronavirus Travel Restrictions, Across the Globe.”

Before the suspension order went into effect, the Border Patrol apprehended more than 31,000 aliens a month who had crossed the Mexican border illegally between POEs, and approximately 7,200 aliens a month were found to be inadmissible at the POEs.

If there is a safe way to provide the processing that the senators are demanding during the COVID-19 crisis, I don’t know what it would be.

In any case, I am satisfied that the administration is not exceeding its authority with the emergency measures the senators are complaining about.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.