The Volokh Conspiracy
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Immigration, Vaccines, and Religion (Oh My)
A confluence of three hot-topic issues, from a Dec. 3, 2024 Department of Homeland Security decision. Note that the claim here is a statutory religious exemption claim, not a constitutional claim under the Free Exercise Clause, though the statute is interpreted in light of the Supreme Court's First Amendment jurisprudence about the kinds of lines courts shouldn't try to draw when it comes to religious beliefs. Note also that this was decided at the end of the Biden Administration, so there's little reason to think that it stems from the Trump Administration's likely more vaccine-objector-friendly position.
Section 212(a)(1)(A)(ii) of the [Immigration and Nationality] Act makes a noncitizen inadmissible to the United States if they fail to present documentation of having received certain vaccinations. Section 212(g)(2) of the Act provides for a waiver of this ground of inadmissibility in certain circumstances, including when the requirement of a vaccination would be contrary to the noncitizen's religious beliefs or moral convictions. USCIS [U.S. Citizenship and Immigration Services] guidance provides that a noncitizen who … seeks [such] a waiver … must demonstrate the following criteria for the waiver to be approved: (1) they are opposed to vaccinations in any form; (2) the objection is based on religious belief or moral convictions; and (3) the religious belief or moral conviction is sincere.
The Applicant, a 13-year-old minor in the physical custody of her father since March 2022, sought adjustment of status to that of a lawful permanent resident …. In support of her application, the Applicant submitted a … Report of Immigration Medical Examination and Vaccination Record, reflecting that she is seeking a waiver of the vaccination requirements based on religious beliefs or moral convictions.
Accordingly, the Applicant … submitted a statement of her custodial parent (father) explaining the basis for objecting to all vaccinations based on, inter alia, their Christian faith, genetic material being in some vaccines, the biblical passage that man was created in God's image, and that biblical references to man being designed perfectly by God. The Applicant's father has not permitted the Applicant to take any vaccinations since he took custody in the United States from the Applicant's mother, who resides in Ukraine, in March 2022.
On appeal, the Applicant presents evidence that she is opposed to all vaccines and that she has not taken any vaccinations since her father became custodian in the United States, including evidence that she withdrew from … High School on account of refusing to take the hepatitis A two-shot series and refusing the chicken pox vaccine. She also presents evidence that she is now home-schooled through an online academy, leaving the high school that required vaccinations.
The Applicant argues that the Director erred in requiring her to prove her faith, state the church or other religion that she is affiliated with, and present scientific evidence or other research supporting the Applicant's conclusion that vaccinations are against her beliefs. She asserts that the Free Exercise Clause of the Constitution does not demand adherence to a tenet or dogma of an established religious sect, relying on Frazee v. Illinois Dep't of Emp. Sec. (1989) ("… we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.") and Thomas v. Rev. Bd. (1981) ("The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner… correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.").
Upon de novo review, we agree that the Director misapplied the requirements for a waiver under … the Act. In addition, the record on appeal now includes new evidence clarifying the Applicant's religious opposition to all vaccinations, directly addressing the deficiency noted by the Director, and specifically showing that the Applicant has not been vaccinated since coming into her father's custody and entering the United States in 2022.
We note that USCIS must assess the Applicant's current circumstances and beliefs to determine if she is presently opposed to all vaccines in any form. The fact that she may have received vaccines as a minor when under her mother's custody and care does not render her ineligible for a waiver … the Act, as we must assess the present sincerity of the beliefs that have led to her declining all vaccines since residing under her father's custody as of March 2022.
Here the decision cited a USCIS policy manual section that provides,
The applicant's objection to the vaccination requirement on account of religious belief or moral conviction may be established through the applicant's sworn statement. In this statement, the applicant should state the exact nature of those religious beliefs or moral convictions and establish how such beliefs would be violated or compromised by complying with the vaccination requirements.
Additional corroborating evidence supporting the background for the religious belief or moral conviction, if available and credible, should also be submitted by the applicant and considered by the officer. For example, regular participation in a congregation can be established by submitting affidavits from other members in the congregation, or evidence of regular volunteer work.
The officer should consider all evidence submitted by the applicant.
The decision then concluded:
The Director has not reviewed the new evidence, which may have an impact on the Applicant's eligibility for a waiver …. As such, we find it appropriate to remand the matter for the Director to consider the new evidence and determine if the Applicant has established that she is currently opposed to vaccinations in any form based on sincere religious beliefs or moral convictions….
