By Dessie Otachliska, J.D.
The COVID-19 pandemic has upended nearly every aspect of American life, but one facet of federal policy that may appear largely unchanged is the imposition of restrictions on immigration and international travel. Although many of the policies ostensibly adopted to mitigate the threat caused by the novel coronavirus seem to parallel the discriminatory anti-immigrant initiatives and rhetoric espoused by the Trump administration, many of them have arguably been undertaken with the intent to protect American public health and economic recovery.
The Trump Administration Seeks to Limit Immigration
When President Trump announced his 2016 presidential bid in a June 2015 speech, he infamously declared that “[w]hen Mexico sends its people [to the United States], they’re not sending the best. . . . They’re bringing drugs, they’re bringing crime.” The speech proved to be a harbinger for the remainder of Trump’s 2016 campaign and the duration of his term as President of the United States, both of which were characterized by virulent anti-immigrant rhetoric and, subsequently, administration policies that sought to limit migration and impose harsher penalties on undocumented residents. President Trump’s most highly publicized anti-immigration initiatives included the wall along the southern U.S. border he claimed Mexico would pay for, the travel ban he sought to impose on several majority Muslim nations, and, most appallingly, the family separation crisis, wherein American border patrol and immigration officials separated migrant children from their parents and guardians as they attempted to cross the U.S.-Mexico border, confining them in government detention facilities at the border.
The immigration policies pursued by the Trump administration enjoyed low levels of success; many of the President’s central campaign promises and high-profile initiatives stagnated or engendered significant public outcry. For example, the President was unable to compel Mexico to pay for construction of additional miles of primary barrier along the southern border, instead spending approximately $15 billion dollars of U.S. government money to erect just 5 additional miles of primary barriers and 25 additional miles of secondary barriers (as of August 2020) behind the newly-erected primary ones, despite a 2018 administration proposal that called for 722 miles of new wall and fencing. Additionally, after tremendous public backlash to the family separation policy, President Trump signed an executive order in June 2018 that provided for the preservation of migrant families being held in detention facilities “where appropriate and consistent with law and available resources.”
Unlike the border wall and the family separation policy, however, the President’s travel ban, which he initially described as a “total and complete shutdown of Muslims entering the United States,” was an element of his immigration platform that he was successfully able to impose and maintain despite legal challenges to the policy. A challenge to the ban was brought by the state of Hawai’i in federal district court, alleging that Presidential Proclamation 9645, which implemented the travel restrictions, exceeded the president’s statutory and constitutional authority and was motivated by anti-Muslim animus. Hawai’i District Court Judge Derrick Watson initially granted the state’s request for a temporary injunction, finding that the “constitutional injuries and harms . . . and the questionable evidence supporting the Government’s national security motivations” were sufficient to infer a likelihood of success for the case’s plaintiffs on the merits of their argument that the travel ban violated the Establishment Clause of the United States Constitution. After a protracted journey through the American justice system, the Supreme Court ultimately heard oral arguments in Trump v. Hawai’i in April 2018.
Although the travel ban case arose in the context of national security and foreign policy, traditionally left to the political branches to regulate, the Court did not refuse to look beyond the “facially legitimate and bona fide” justifications for the challenged policy (in this case, the country’s national security interest), instead applying rational basis review to determine whether the restrictions were rationally related to a legitimate government objective. Because the national security interest invoked by the government (“preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices”) was an independent, constitutional justification for the travel ban that was unrelated to any anti-Islamic animus, the Court found the travel ban constitutional under rational basis review. Despite Justice Sotomayor’s dissent, which lamented that the 5-4 decision “[left] undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns,” the Court’s holding in Trump v. Hawai’i marked a significant victory for the administration’s anti-immigration agenda.
Immigration and COVID: The Administration Seeks Further Limits on Travel, Visas, and Asylum
Despite the Trump administration’s mixed record on the implementation of immigration policies over its first three years in office, the COVID-19 pandemic breathed new life into the President’s anti-immigration agenda. Contagious, dangerous, and brought from abroad, the coronavirus proved an ideal bogeyman to justify the implementation of additional restrictive immigration policies. The administration’s anti-immigration COVID-19 agenda included the imposition of new travel regulations to contain the spread of the virus, limits on green card and visa applications, and significant restrictions on asylum claims. In contrast to some earlier immigration-related agenda items, however, many of these restrictions on migration were arguably also motivated by public health concerns around minimizing COVID exposure and transmission for the American public.
In answer to the rapid initial spread of COVID-19, the administration closed U.S. borders to would-be entrants from China, Iran, numerous European Union countries, and many others. While these measures aimed to reduce the risk of COVID exposure and transmission through international travel, rather than simply seeking to restrict migration into the United States, experts are divided as to their efficacy. In response to a new, rapidly spreading mutation of the virus that emerged in late 2020, the European Regional Director of the World Health Organization (WHO) urged limiting travel in order to mitigate its transmission. However, in assessing the travel restrictions, WHO cited research finding that “restricting the movement of people and goods during public health emergencies is ineffective in most situations.” Moreover, the bans imposed at the beginning of the pandemic often appeared too delayed to be effective. One report authored by the CATO Institute found that, as of April 7, 2020, the United States had 10.7 million airport entries from countries with confirmed cases of COVID-19. Additionally, the U.S. government waited an average of 18 days to impose travel restrictions after a country confirmed cases of COVID, with the latency period lasting as long as two months in cases. Despite these concerns, the pandemic-related travel restrictions target a less homogenous group of nations and are more credibly related to a legitimate governmental objective – the protection of public health – than the travel ban that was upheld in Trump v. Hawai’i.
As a further measure to counter the threats posed by the COVID-19 pandemic, the President issued two proclamations regarding the “Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak.” The proclamations imposed restrictions on holders of immigrant visas and nonimmigrant visas (such as the H-1B visa for highly skilled workers and the H-2B visa for seasonal, nonagricultural workers), respectively. While these proclamations (which the President extended in December 2020 to continue into March of 2021, two months past the end of his term) did restrict the movement of American visa holders, the Trump administration justified them as a bulwark against further economic disruption and public health threats caused by the coronavirus. The December 2020 proclamation extending the earlier orders justified the protracted restrictions on the grounds that the pandemic “continue[d] to disrupt Americans’ livelihoods,” and that the “effects of COVID-19 on the United States labor market and on the health of American communities [was] a matter of ongoing national concern.” However, the latter proclamation amounted to a “near-total ban” on green cards and significant restrictions on temporary work visas, resulting in a level of immigration restriction unprecedented in recent history, causing critics to allege that the COVID-related reasoning ostensibly motivating the restrictions was merely a diversion from an opportunistic attempt by the administration to implement tangible restrictions on immigration already enjoying official sanction.
Finally, pandemic-related safety conditions have also resulted in the imposition of limits on asylum claims. In late March 2020, the Centers for Disease Control and Prevention (CDC) issued a public health order closing the U.S.-Mexico border to migrants and, based on the Department of Homeland Security (DHS)’s interpretation of the CDC’s order, denying them the ability to request asylum. In the six weeks following implementation of the order, U.S. Customs and Border Patrol (CBP) agents denied entry to approximately 20,000 people, including 400 unaccompanied children. By August, the number had ballooned to over 105,000. While there may be a credible public health justification for limiting migration during a global pandemic, under DHS’s implementation of the CDC border guidance, CBP agents are empowered to turn away asylum seekers without individualized assessments of their asylum petitions. As a result, federal agents have begun to expel prospective migrants in an average of 96 minutes, admitting only two asylum seekers in the first two months after the order’s adoption. With asylum seekers and other migrants held in overcrowded, unsanitary detention conditions maintained by U.S. Immigration and Customs Enforcement (ICE), rapid expulsion may be safer for asylum seekers, at least from a COVID-19 perspective, than further consideration of their cases. Nonetheless, many critics of the policy decry it as a pretextual means to categorically deny asylum to all who seek it.
With the Biden administration in the White House, American immigration policy is functionally certain to change. President Biden’s campaign website condemned President Trump’s immigration strategy as “misguided” and asserted that the “United States deserves an immigration policy that reflects our highest values as a nation.” As a tangible sign of change, President Biden rescinded the travel ban on his very first day in office. However, with the COVID-19 pandemic reaching new levels of infection every day, a fast-spreading mutation poised to become its most virulent strain, and the challenges with the vaccination rollout across the country, it is likely that at least some of President Biden’s containment strategies will impose restrictions on immigration and international travel. What form these restrictions will take, and what impact they will have on those who seek safe harbor in America, however, remains to be seen. But one thing is certain: the restrictions chosen will become a formative test of the Biden presidency.
This post was originally published on the COVID-19 and the Law blog.
Dessie Otachliska graduated from Harvard Law School in May 2021.
