Entry Restrictions at the Northern and Southern Borders in Response to COVID-19

Entry Restrictions at the Northern and Southern Borders in Response to COVID-19

Legal Sidebari

Entry Restrictions at the Northern and
Southern Borders in Response to COVID-19
Updated April 27, 2020
In response to the global spread of COVID-19, the federal government has issued several orders
restricting the entry of foreign nationals into the United States. Many of these restrictions were
implemented through President Trump’s authority under Section 212(f) of the Immigration and
Nationality Act (INA) to suspend the entry of non-U.S. nationals (aliens) whose entry the President “finds
... would be detrimental to the interests of the United States.” One proclamation issued on January 31,
2020, suspends the entry of foreign nationals who have been in mainland China within the prior 14 days.
A second proclamation issued on February 29, 2020, suspends the entry of foreign nationals who have
been in Iran in the prior 14 days. Two more proclamations issued in March 2020 restrict the travel of
foreign nationals from countries in the Schengen Area, Ireland, and the United Kingdom within the prior
14 days. Finally, a proclamation that took effect on April 23, 2020, suspends the entry of aliens on
immigrant visas for 60 days, for the stated purposes of protecting Americans from job competition during
the economic recovery and reducing strain on the domestic health care system. This last proclamation
would appear to have limited impacts in the near term. The Department of State had already suspended
most immigrant visa processing around the world. Further, among other limitations and exceptions, the
proclamation does not apply to the spouses or children of U.S. citizens, to healthcare professionals or EB-
5 investors, or to aliens who already held immigrant visas as of the proclamation’s effective date. The
proclamation would impact some categories of immigrant visa applicants—including, among others,
parents of U.S. citizens—if its entry restrictions remain in place after the Department of State resumes
visa processing.
The Trump Administration has taken other action, relying on authority outside INA Section 212(f), to
restrict the movement of foreign nationals over land borders into the United States. Two orders restrict
non-essential travel by foreign nationals into the United States through ports of entry on the land borders
with both Canada and Mexico. Additionally, the Centers for Disease Control and Prevention (CDC), a
component of the Department of Health and Human Services (HHS), has issued an order (along with
implementing regulations) suspending the “introduction” of foreign nationals from countries with
COVID-19. These new orders raise a number of legal issues—most notably their effect on migrants
seeking asylum in the United States.
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Restrictions on Non-Essential Travel from Canada and
Mexico into the United States
U.S., Canadian, and Mexican officials have mutually determined that non-essential travel between the
United States and its respective contiguous countries poses additional risk of the transmission and spread
of COVID-19. Accordingly, U.S. Customs and Border Protection (CBP), a component of the Department
of Homeland Security (DHS), issued two identical orders (one applying to U.S.-Mexico travel and the
other applying to U.S.-Canada travel). Both temporarily restrict non-essential travel at land ports of entry
from Canada and Mexico into the United States.
The two orders, effective March 20, 2020, “suspend normal operations and process” at land ports of entry,
except for “essential travel.” “Essential travel” includes (1) travel for medical purposes; (2) travel to
attend educational institutions; (3) travel to work (e.g., individuals who work in agriculture who must
travel between the United States and Canada); (4) travel for emergency response and public health
purposes (e.g., responses to COVID-19); (5) lawful cross-border trade (e.g., commercial truck drivers);
(6) official government or diplomatic travel; (7) members of armed forces returning to the United States;
and (8) military-related travel or operations. The rules specify that “essential travel” does not include
travel for tourism purposes, such as sightseeing, recreation, gambling, or attending cultural events. The
rules clarify that these restrictions will not “interrupt legitimate trade” or interfere with “critical supply
chains,” such as food, fuel, and medicine. The two orders also contain broad exceptions for U.S. citizens
and lawful permanent residents and members of the military. The restrictions are temporary and were
originally scheduled to remain in effect until April 20, 2020. The restrictions have since been extended for
30 additional days (May 20, 2020).
These rules do not apply to air, freight rail, or sea travel between the United States and the respective
country, though apply to passenger rail and ferry travel. The rule also grants the CBP Commissioner
discretion to allow the processing of travelers not engaged in essential travel “on an individualized basis
and for humanitarian reasons or for other purposes in the national interest.”
Legal Authority
On March 13, 2020, the President declared the COVID-19 outbreak a “national emergency” under the
National Emergencies Act (NEA), which made available several statutory authorities. Upon a national
emergency declaration (or other instances in which there is a “specific threat to human life or national
interests”), the Tariff Act of 1930, codified in 19 U.S.C. § 1318, authorizes the federal government to
eliminate or modify temporarily services and procedures at ports of entry or to take “any other action that
may be necessary to respond directly to the national emergency or specific threat.”
The restrictions placed on non-essential travel across the international land borders seem to accord with
the broad authority delegated by Congress to the Executive in times of emergency. While the NEA does
not define a “national emergency,” Presidents have issued national emergency declarations under the
statute for matters less threatening to the public health and safety than the COVID-19 pandemic (and,
indeed, it seems likely that the President’s determination that the pandemic constitutes a national
emergency would be treated by a court as a non-reviewable political question). The Tariff Act, in turn,
gives CBP wide latitude to limit services at ports of entry in response to a declared emergency or a
“specific threat to human life or national interests,” as well as “any other action that may be necessary” to
respond directly to those threats and emergencies. This broad delegation of authority seems sufficient for
CBP to restrict travel temporarily across the U.S. border to deter the spread of COVID-19.

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But exercise of this authority to limit services at ports of entry does not resolve legal questions concerning
the treatment of persons arriving at the United States border, either at or between ports of entry, who seek
asylum or related forms of relief. These subjects are discussed in more detail below.
Public Health-Based Suspension of the Introduction of
People Typically Held in CBP Facilities
The Trump Administration has also taken steps that appear to terminate most asylum processing for aliens
encountered near the southern border until May 20, 2020. Questions remain, however, about how these
measures work in practice and whether they comply with INA provisions concerning asylum and related
protections from persecution or torture.
On March 20, 2020, the CDC Director issued an order that “suspends the introduction” into the United
States of aliens “traveling from Canada or Mexico (regardless of their country of origin) who would
otherwise be introduced into a congregate setting in a land Port of Entry (POE) or Border Patrol Station at
or near the United States borders with Canada and Mexico.” (The original order was set to expire on April
20, 2020, but the CDC Director extended it through May 20, 2020.) The order clarifies that this
description is intended to cover aliens who cross the border unlawfully between ports of entry or who
present themselves at ports of entry without valid entry documents. Under the INA, such aliens are
inadmissible to the United States but may initiate claims for asylum or related protections from
persecution or torture. To evaluate such claims, DHS typically must conduct screening interviews or refer
the aliens directly to proceedings in immigration court where they may pursue their claims. At the outset
of such procedures, CBP typically holds asylum seekers in short-term custody in its facilities near the
border. (A CRS Infographic gives an overview of asylum processing at the border under Trump
Administration policies that were in effect before the CDC order.)
The CDC order does not expressly direct DHS to suspend asylum processing at the border. But it does
provide that aliens without valid entry documents must be returned “to the country from which they
entered the United States, their country of origin, or another location as practicable, as rapidly as possible,
with as little time spent in congregate settings as practicable under the circumstances.” DHS, which is
responsible for implementing the CDC order, has released information suggesting that it interprets the
order to require it to forgo standard asylum processing in most cases so that it may rapidly remove aliens
and minimize their time in CBP facilities. Specifically, a DHS Fact Sheet states that “CBP will no longer
detain illegal immigrants in our holding facilities and will immediately return these aliens to the country
they entered from – Canada or Mexico. Where such a return is not possible, CBP will return these aliens
to their country of origin.” Further, one news report says it obtained a copy of an internal CBP operation
plan instructing officers to conduct all processing “in the field” to the “maximum extent possible.” (While
the CDC order mentions the operational plan, CBP has neither responded to the news report nor published
an official version of the plan.) The reported plan makes a limited exception for aliens who affirmatively
claim a fear of torture in the receiving country—with supervisory approval, officers may transport such
aliens to a “designated station.” No exception exists for aliens who claim asylum or a fear of persecution,
according to the reported plan. CBP statistics show that the agency expelled 6,306 aliens under the CDC
order during the last ten days of March 2020.
The CDC order does not apply to certain groups, including U.S. citizens, lawful permanent residents, and
aliens with “valid travel documents” who present themselves at ports of entry. For example, the CDC
order would not apply to a Mexican national arriving at a port of entry with a valid visa, although he or
she would be subject to the restrictions on non-essential travel imposed by the DHS measures discussed
previously. The CDC order also has a catch-all exception for those who DHS determines “should be

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excepted based on the totality of the circumstances.” The order does not mention unaccompanied alien
children (UACs), but news reporting has suggested that UACs have been expelled under the order.
Legal Issues
For statutory authority, the CDC order relies primarily on Section 362 of the Public Health Service Act,
codified in 42 U.S.C. § 265, which authorizes the CDC Director to “to prohibit, in whole or in part, the
introduction of persons and property” into the United States to avert the spread of a communicable
disease. Until the COVID-19 outbreak, the statute does not appear to have been invoked as the basis for a
prohibition on the movement of people into the United States. Before CDC amended its regulations last
week to lay the groundwork for the March 20, 2020 order, the regulations implementing the statute
provided only for “the suspension of the introduction of property into the United States and the
procedures to quarantine or isolate persons”; the former regulations did not address the suspension of the
introduction of persons into the United States.
If DHS implements the CDC order by removing aliens encountered near the border without screening
their eligibility for asylum or related protections, one of the primary legal questions that could arise is
whether this implementation comports with the INA. A few INA provisions mandate asylum procedures.
INA § 208(a)(1), the asylum statute, provides that “[a]ny alien who is physically present in the United
States or who arrives in the United States (whether or not at a designated port of arrival . . .), irrespective
of such alien’s status, may apply for asylum in accordance with this section.” In addition, INA §
235(b)(1)(A)(ii) provides that an alien apprehended at or near the border who is subject to expedited
removal—including one who entered without inspection or who presents at a port of entry without valid
documents—must be referred to an asylum officer for a screening interview if “the alien indicates either
an intention to apply for asylum . . . or a fear of persecution.” Next, INA § 241(b)(3) prohibits the
removal of an alien to a country where he or she would face persecution on account of a protected ground.
This provision is commonly interpreted as codifying the non-refoulement obligation in the 1967 Refugee
Convention, to which the United States is a party. Finally, if DHS seeks to effectuate the removal of UAC,
8 U.S.C. § 1232 provides that the UAC “shall” be placed in removal proceedings and transferred to HHS
custody within 72 hours, except in cases where the UAC is a national of a contiguous country and opts to
voluntarily return to that country in lieu of being placed in proceedings.
Because the executive branch has not previously sought to suspend asylum processing at the border on the
basis of a public health order issued under 42 U.S.C. § 265, courts have not grappled with the legality of
such an action. However, a line of recent cases considered a somewhat analogous statutory conflict. A
2018 Trump Administration policy sought to render aliens ineligible for asylum if they entered the
country unlawfully. The policy relied on a combination of the President’s authority to suspend the entry
of aliens under INA § 212(f) and the authority of DHS and the Attorney General to create some asylum
ineligibilities by regulation under the asylum statute. A federal district court blocked the policy upon
reasoning that it likely violated the asylum statute’s “clear[] command[] that immigrants be eligible for
asylum regardless of where they enter.” The Supreme Court declined to grant the government a stay of
that order, and the Ninth Circuit recently affirmed the district court’s decision. Thus, the policy remains
blocked while litigation over its legality continues. Whether a reviewing court would reach the same
result in a lawsuit challenging DHS’s implementation of the CDC order might depend largely upon
whether the court interprets the public health authority with respect to communicable diseases under 42
U.S.C. § 265 to confer broader powers to limit entry than the statutory authorities underlying the 2018
policy for unlawful entrants.

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Author Information

Kelsey Y. Santamaria
Ben Harrington
Legislative Attorney
Legislative Attorney

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