Suggested Citation: Ray Fang, Invisible Wall – None to Low Burden for the Government to Exclude, Cornell J.L. & Pub. Pol’y, The Issue Spotter (March, 7, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/invisible-wall—none-to-low-burden-for-the-government-to-exclude.
Invisible Wall – None to Low Burden for the Government to Exclude
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Title 42 expulsion during Pandemic
Section 265 of the Public Health Service Act (42 U.S.C. § 265) promulgated that when the CDC determines by reason that there is a communicable disease in a foreign country and that if the suspension of the right to introduce the persons and property into the United States is in the interest of public health, the CDC shall have the power to prohibit, in whole or in part, the introduction of such person or property into the United States. Since March 2020, the CDC issued public health emergency order and allowed rapid expulsion of border crossers, which include asylum seekers, without a hearing which overrides immigration law that allows Asylum seekers to enter without authorization and apply at the ports of entry. The grant of asylum is purely discretionary, and even if the asylee established a well-founded fear of persecution under Title 8, they may still not be allowed to stay. When such asylum seekers are removed, they will typically be deported to their home country, where they allegedly will face persecution and torture. Such removal might violate International Convention Against Torture (“Torture Convention”) and Federal Statutes and Regulations (8 C.F.R § 208.16) if the claimed persecutions were true.
Moreover, the federal Statutes give the CDC extremely broad discretion and authority when commutable diseases exist. Such authority not only may override immigration law but also can easily impede international traffic and trade and arbitrarily restrict civil liberty without a public health emergency declaration. For example, section 264 of the Public Health Service Act (42 U.S.C. § 264) and 42 C.F.R 71.32(a) gives the CDC broad authority regarding apprehension, detention, examination, or conditional release . . . shall apply only to individuals coming into a state . . . arriving from a foreign country . . .” Whenever the CDC has reason to believe an arriving person is exposed. Although this section does not discriminate based on citizenship, the problem is the CDC can apprehend, detain, and examine any arrivers without having to have a reasonable belief that the arrivers were exposed. For example, suppose, in early 2020, when Covid-19 quickly spread throughout Northern Italy, travelers from Southern Italy arrive at the port of entry. It seems like, under the statute and regulation, the CDC does not have to enquire about which part of Italy those travelers were staying in Italy or whether they have visited Northern Italy (Lombardy Region) or been in close contact with people from that area. Instead, it can decide to detain, quarantine, and examine such travelers solely based on the fact that they came from Italy because the CDC has reason to believe they were exposed.
In both cases discussed above, the CDC consistently has an extremely low burden of proof, such as “has a reason” or “by reason,” to issue orders that can severely interfere with civil liberties and potentially cause human rights violations under the Convention, should the expulsions push asylum seekers lives in peril. Why does the government agency enjoy such a low burden when the stakes are this high? Should the CDC, when issuing expulsion or quarantine orders, at least have some reasonable belief that such extraordinary measures are necessary?
Denial of Asylum on the ground of terrorism:
The government, when reviewing Immigration or Asylum applications, also enjoys a low burden of proof to deem an applicant a terrorist and inadmissible under the Immigration and Nationality Act Section 212(d)(3)(B) (8 U.S. Code § 1182). For immigrant or refugees from certain counties that are plagued by terrorist organizations, such as Afghanistan, the primary tactic used by D.H.S. to deny asylum applications is the “terrorism bar,” which renders an applicant ineligible unless they could show by a preponderance of evidence that the terrorism bar should not apply (Matter of R-S-H-, 23 I&N Dec. 629, 640 (BIA 2003)). However, The Board of Immigration Appeals (BIA) in Matter of M-B-C-, 27 I&N Dec. 31, 37 (BIA 2017), established in 2017 that for the D.H.S. to meet the initial burden, it only needs to show “some evidence a reasonable factfinder could conclude” that the asylee materially contributed to a terrorist organization.
What is material support? It turns out material supports need not be “material.” Moreover, shockingly, although under which was issued in 2007, a duress exception may be granted under certain circumstances and can only be considered when the support was contributed to an undesignated terrorist organization, there is no general duress exemption. In numerous cases, federal courts held that material support to terrorist activities includes both voluntary and involuntary activities. In Matter of A-C-M, 27 I&N Dec. 303 (BIA 2018), one of the most shocking decisions upheld by the court, the respondent, a Salvadoran woman, was forced to cook for the Salvadoran guerrillas under the threat of being killed and was forced to witness her husband digging his own grave before getting shot, was deemed inadmissible because being forced to cook for them was deemed within the meaning of “material support.” BIA held that “an alien provides “material support” to a terrorist organization, regardless of whether it was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.”
It’s worth noting that under criminal law, to convict a defendant in the United States for terrorism, the prosecution must meet the burden of “beyond reasonable doubt.” Why is it so easy for the government to deem someone a terrorist and inadmissible under immigration law? It is true that the court has repeatedly held that disputes on immigration-related issues are of civil nature, which means “beyond reasonable doubt,” as the standard for criminal convictions, does not apply in immigration adjudication. However, the “terrorist bar” effectively convicts individuals seeking immigration benefits for terrorism with “some evidence” and without de minimis or duress exception.
It is not politically or ideologically controversial to say the government has a high interest in protecting its people from terrorists and providing protections for refugees who have suffered terrorist persecution, which should have been the purpose of the “terrorist bar.” However, in some cases, being forced to provide resources to terrorist organizations at gunpoint is the ground on which the asylum seeker is seeking protection, but government could use the exact same ground as “some evidence” to deny asylum application due to “material” contribution to the same terrorist organization that persecuted them. Such practice protects neither the people in the United States nor the asylum seekers to whom the government has the duty to protect the Convention and federal law. Instead, it seems like a tactic used by the government to reject asylum seekers for the sake of rejecting them.
Nobody denies the importance of protecting the residents living in the United States from infectious diseases or terrorism. However, it is also important for the government to recognize something legally possible does not make it the right thing to do. Even if the current law sets an unreasonably low burden of proof, the government should always keep in mind that its duty is to protect the people rather than taking advantage of the low burden to exclude the vulnerable.
Ray Fang is a second-year law student at Cornell Law School. Ray studied financial accounting in college and earned a Master of Accounting emphasizing in taxation before coming to Cornell Law.