A rarely used fine could limit the spread of the coronavirus to the United States

As doctors struggle to prevent a pandemic’s spread across the U.S., federal officials have another partial remedy available — a rarely used fine intended to help safeguard our borders. 

The Centers for Disease Control and Prevention (CDC) is responding to an outbreak of respiratory disease caused by a new type of coronavirus that was detected initially in Wuhan City, China. Wuhan has been locked down for more than a month.

The disease has been named, the “coronavirus disease 2019” (COVID-19), but its pathology is still being determined.

Widespread transmission of COVID-19 in the United States would translate into large numbers of people needing medical care at the same time. Health care providers and hospitals could be overwhelmed, and no medications have been approved yet for treating it.

Moreover, it is going to be very difficult to contain. Unlike the situation in 2003 with severe acute respiratory syndrome (SARS), people who are contagious with COVID-19 may not be noticeably sick. In fact, most cases have been mild.

On Jan. 30, 2020, the World Health Organization (WHO) declared the outbreak a “public health emergency of international concern.” WHO advises all countries to prepare for containment, including active surveillance, early detection, isolation and case management.

Keeping COVID-19 out of the United States

President Trump’s son Donald Trump Jr. has been criticized for claiming in a tweet that “the coronavirus outbreak shows how important it is for us to keep our borders secure.” For instance, one reaction was “walls don’t keep out viruses.”

Of course, that is true. Walls won’t keep COVID-19 out of the United States, but strong border security does make it harder for contagious people who have COVID-19 to make an illegal entry into the United States.

How effective is it? No one knows how effective any border security measure is. It is not possible to determine how many aliens have succeeded in making undetected, illegal entries between the more than 300 official land, air and sea ports of entry. It is a certainty, however, that keeping as many people with COVID-19 out of the country as possible will save lives.

On Jan. 31, 2020, President Trump issued an executive order suspending the entry of people from other countries who pose a risk of transmitting COVID-19.

His order declares that “the entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the People’s Republic of China … during the 14-day period preceding their entry or attempted entry into the United States is hereby suspended.”

This is subject to a number of exceptions, such as for lawful permanent residents of the United States and aliens who are the spouses of U.S. citizens or lawful permanent residents.

Border security measures that aren’t being used enough

Chinese nationals are attempting to enter the United States illegally. As recently as last month, a group was intercepted by the Coast Guard.

It may be time to dust off a little-used provision of the law to deter these attempts.

In addition to criminal sanctions for bringing aliens to the United States who do not have visas or any other entry documents, substantial civil penalties can be imposed. 8 U.S.C. §1323(a)(1) reads as follows:

“It shall be unlawful for any person, including any transportation company, or the owner … of any vessel or aircraft, to bring to the United States from any place outside thereof (other than from foreign contiguous territory) any alien who does not have a valid passport and an unexpired visa.” 

Subparagraph (b) requires carriers who violate that provision to pay a $3,000 fine for each alien he brings to the United States in violation of this provision, in addition to an amount equal to what the alien paid for his transportation. Moreover:

“No vessel or aircraft shall be granted clearance pending the determination of the liability to the payment of such fine or while such fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such fine.”

Subparagraph (c) provides that a carrier can avoid having to pay the fines by showing that he “did not know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported was an alien and that a valid passport or visa was required.”

These fine provisions were used to stop a mass exodus from Cuba in late April 1980, when Cuba’s Premier, Fidel Castro, opened the door to all Cubans who wanted to leave Cuba and former President Carter announced that the Cuban refugees would be welcomed with ”open hearts and open minds.”

Notwithstanding that assurance from the president, the American government imposed more than $100 million in fines on boat captains who brought 125,000 undocumented Cubans to Florida’s shores that year, and the Board of Immigration Appeals held that the carriers were not entitled to rely on Carter’s invitation as a defense to those fines.

Apparently, these fine provisions have been neglected since then.

According to the Executive Office for Immigration Review’s fiscal 2018 Statistics Yearbook, which is the most recent, the board did not receive any fine case appeals between fiscal 2014 and 2018.

The threat of a deadly COVID-19 pandemic more than justifies a renewed interest in enforcing those fine provisions, and speed in doing it is essential. COVID-19 has reached almost 60 countries already, and it has infected more than 83,000 people.

Lives depend on using every means available for dealing with this pandemic.

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.