The US Immigration Ban: The right solution during Covid-19 and beyond?

Updated: May 19, 2020 12:28:00 PM

As per Section 1 of the Proclamation, the entry of aliens into the United States as immigrants has been suspended and limited, subject to the scope and exceptions detailed in Section 2, for an initial period of 60 days.

US Immigration Ban, covid 19, US labour market, covid 19 outbreak, illegal immigrants.,COVID-19 Outbreak, latest news, latest news on coronavirus outbreakIt also states that existing immigrant visa laws are inadequate for recovery from the Covid-19 outbreak.

By Arjun Dewan and Arjun Mukherjee

The President of the United States of America, on 22.04.2020 issued a Presidential Proclamation titled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”. This proclamation came into effect from 11:59 pm ET on 23.04.2020.

As per Section 1 of the Proclamation, the entry of aliens into the United States as immigrants has been suspended and limited, subject to the scope and exceptions detailed in Section 2, for an initial period of 60 days. Certain categories of aliens have been exempted from the suspension, including medical professionals [working to combat Covid-19] and their spouse & child, spouse & child of a US Citizen and aliens entering through the EB-5 Immigrant investor programme etc.

No doubt every nation by virtue of its sovereignty has the power to permit, restrict and regulate the entry of non-citizens or aliens. The United States has formally incorporated these powers into its statutes so as to enable the President to make such decisions as and when required. The above Proclamation was issued by virtue of Sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and Section 301 of title 3, United States Code [USC]. Briefly stated, Section 212(f) titled “Suspension of entry or imposition of restrictions by President” provides the President with necessary authority to temporarily suspend or restrict the entry of any aliens or a class of aliens. No time limit however has been stipulated.

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The United States passed its first restrictive Federal immigration law known as the Page Act of 1875, followed by the Chinese Exclusion Act of 1882. These were the first enactments of its kind which restricted the entry of immigrants into the United States. Following this, various other laws were created for placing restrictions on immigration which eventually culminated into The Immigration and Nationality Act enacted in 1952. This Act was essentially a consolidation act of the various immigration laws already in place and forms part of the USC. The USC is simply a compilation of all applicable laws in the United States and Title 8 of the USC deals with ‘Aliens and Nationality’.Adopted during the Cold War, the primary purpose of Section 212(f) was to deal with ‘National Security’ concerns during wartime, which authorized the President to restrict entry of non-citizens or aliens. However, the language of Section 212(f) only requires the President to find that such entry would be detrimental to the interests of the United States. No threshold has been prescribed either.

President Trump was elected as President in the year 2016 following a populist and nationalist campaign promising a strong stand on immigration, while claiming American jobs were being poached by illegal immigrants. He promised to make America great again. President Trump has always followed a seemingly anti–immigration policy putting Americans first. While American citizens ought to be priority, a balanced approach is required when it comes to immigration. President Trump had issued a Presidential Proclamation on 27.01.2017 exercising the same powers restricting the entry of nationals of certain countries into the United States. The reason for the restriction was claimed to be terrorism and national security concerns. This Proclamation was subjected to judicial review whereby the Supreme Court eventually in a 5-4 judgment in ‘Trump v. Hawaii’, authored by Chief Justice John Roberts concluded that the ban fell ‘squarely’ within the powers conferred upon the President.

Issuance of a Presidential Proclamation restricting entry of aliens into the United States is a fairly common event. Around 43 Proclamations were issued by previous Presidents prior to President Trump, including about 19 by President Obama. However the present one sees a distinct departure from the norm, with purely economic grounds as the reason. The Proclamation is primarily aimed at countering a poor economy with high domestic unemployment and depressed demand for labour, on account of the serious and unfortunate impact of Covid-19. It claims to protect the interests of the ‘last in’ and ‘first out’ category of American employees who would bear the brunt of excess labour supply and reduced jobs. It also states that existing immigrant visa laws are inadequate for recovery from the Covid-19 outbreak. The solution as suggested,claims that pausing immigration would put ‘unemployed Americans first in line for jobs’ as the country re-opened. It is on these grounds that the entry of immigrants has been suspended and restricted.

The U.S. Bureau of Labor Statistics has reported unemployment numbers in the United States at 14.1% as of April 2020, which is indeedalarming, andany government is expected to take necessary counter measures. However what is unclear, is would a ban on immigration really be the solution, especially considering immigration into the United States is already regulated by an extensive vetting process. Further, at a time when the world is practically locked down and all international travel already stands suspended, one would again deliberate the validity of the reasoning behind this.

The Proclamation through Section 3(c) categorically states that it would not be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This clause seems to be inserted to comply withthe international convention, however the language used does not inspire much confidence as it only recognises their ability to seek asylum. Interestingly, the office of the US Citizenship and Immigration Services on its website, states that in response to Covid-19, the asylum offices will send cancellation notices for asylum interviews and automatically reschedule such interviews. No timeline is available on the website.

Whether this Presidential Proclamation will be subjected to judicial scrutiny or not is yet to be seen. Going by precedents, the authority of the President is clearly unfettered and the Courts may not be inclined to dissect the reasoning of a President, especially when done in ‘national interest’, that too in the wake of a global pandemic. However on a lager perspective, it cannot be overlooked that a material policy shift has been embarked upon without the wisdom of Congress, and one which has the potential to change the very fabric of the United States. The Proclamation has effectively undone the entire immigration process and put in place a sweeping ban on immigration, which may potentially continue indefinitely. Such policy decisions are usually debated and deliberated with extensive research. Surely in the larger interest, judicial scrutiny ought to consider this aspect and perhaps new precedents would be set.

Lastly, one cannot overlook the fact that this is a re-election year. Public sentiment is vulnerable in light of the pandemic and masses are open to accepting and appreciating any step in ‘National interest’. What is essential is to formulate immigration policy after due deliberation and not as a knee jerk response to a pandemic wreaking havoc on the economy. It would be wise to proceed with caution, so as to avoid a situation which does more harm than good.

(The authors are Advocates, Delhi High Court. Views expressed are personal.)

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