There is No Public Health Rationale for a Categorical Ban on Asylum Seekers

On March 20, the Trump administration closed United States land borders to all but essential travel through joint agreements with Canada and Mexico.

The new COVID-19 border restrictions included exemptions for truck drivers, temporary workers, students, and others, with one glaring omission: asylum seekers and unaccompanied children seeking U.S. protection.

People fleeing persecution are protected under U.S. and international law, and the United Nations Refugee Agency (UNHCR) has confirmed that countries must not deny entry to asylum seekers solely because of the COVID-19 pandemic.

Nonetheless, the Centers for Disease Control and Prevention (CDC), relying on logistical claims by the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), issued an order on March 20 purporting to allow the U.S. government to immediately turn back asylum seekers and unaccompanied children at the border. Some 10,000 migrants have been sent back to Mexico since then, joining the tens of thousands the administration has already returned to dangerous border towns through the “Remain in Mexico” program.

Last month, Physicians for Human Rights (PHR) released a joint statement with other human rights organizations calling for the border to be reopened to asylum seekers in accordance with U.S. legal obligations. In the statement, we outlined a path for safe asylum processing at the border.

This latest attack on the right to seek asylum is immigration policy masquerading as public health policy. We at PHR believe it is imperative that the public understands how little a basis the CDC order has in science. To help facilitate this, we asked six infectious disease epidemiology experts to respond to the CDC’s public health justifications for closing the border to asylum seekers.

There is No Logic to a Categorical Ban

The abrupt change in U.S. policy is premised on the notion that asylum seekers, as a group, pose a greater public health threat than the students, temporary workers, and others who are still permitted to cross the border.

The public health experts PHR consulted agreed that there is no public health rationale for a ban on asylum seekers as a group.

“The virus is a non-discriminating agent,” said Dr. Ronald Waldman, physician and professor of global health at George Washington University and president of Doctors of the World – USA. “There is no reason why asylum seekers would be more likely to be at risk of contracting or transmitting the virus than any other group of people.”

Professor Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University, agreed: “It makes no sense. In public health, any time there is a categorical classification—any time there is a category about who you apply your measure to or who you don’t—is highly suspect. The courts suspect it. Public health people suspect it. There is no scientific evidence for it. And it’s discriminatory.”

For Dr. Monik Jiménez, Assistant Professor at Harvard Medical School and Harvard T.H. Chan School of Public Health, it’s clear the classifications are based on political motivations. “They’re not based on sound epidemiological evidence of groups that may be at higher or lower risk,” she told us.

Laurie Garrett, Pulitzer-prize winning journalist and pandemic expert, said of asylum seekers, “There is no particular reason to single them out. And there is no particular reason to believe that closing the border has any effect whatsoever on the spread of disease. The disease is already here.”

The U.S. is currently reporting the highest COVID-19 infection rate in the Americas, with community transmission already occurring in all 50 states, noted Sanjana Ravi, senior analyst at the Johns Hopkins Center for Health Security and senior research associate at the Johns Hopkins Bloomberg School of Public Health. “By refusing to let asylum seekers enter the U.S. – thereby condemning them to live in dangerous and unsanitary conditions in Mexico, where social distancing measures may be impossible to implement – the Trump administration… is actively undermining public health.”

Dr. Gregg Gonsalves, Assistant Professor in Epidemiology of Microbial Diseases at Yale School of Medicine and co-director of the Yale Global Health Justice Partnership, said that if the U.S. government were really worried that an individual asylum seeker was carrying COVID-19, the government could simply test them, as it could with a member of any other group. There was no logical consistency, he said, to excluding an asylum seeker but not a truck driver, since both could be asymptomatic carriers.

“If somebody is at risk of persecution and/or death,” he said, “and you’re worried about the potential for them to transmit coronavirus, test them for the virus rather than leaving them to die a more certain death from the political conditions at home.”

Risks vs. Benefits

Even if the U.S. government acknowledged that asylum seekers pose no greater risk than groups whose travel it considers essential, it might justify its decision to bar asylum seekers based on a weighing of risks and benefits. Its argument might be that groups like truck drivers and temporary agricultural workers provide an essential benefit while asylum seekers do not.

But, Gonsalves questioned the very notion of letting a cost-benefit analysis dictate asylum policy. “The idea that we are going to start to open the doors based on how economically useful somebody is to us in the context of them requesting asylum, it just doesn’t seem morally right and doesn’t really seem to make sense from an epidemiological perspective.”

Ravi focused on the fact that the U.S. is prohibited from turning away asylum seekers under international law. “Neglecting to uphold this obligation not only reinforces the misconception that refugees and asylum seekers are vectors of disease,” she said, “but also makes it exceedingly difficult for asylum seekers to access shelter, healthcare, and other needed social services. And ultimately, a State’s failure to dismantle barriers to accessing these services – particularly among vulnerable populations like asylum seekers – is what amplifies the risk of disease transmission.”

Waldman also framed this as a question of fundamental rights and characterized the ability to seek asylum as itself an essential benefit for the U.S. “It allows us to exercise our most deeply held values during a time when they could be challenged.”

Gostin agreed. “I would argue that asylum seekers provide at least the same level of ‘benefit.’ It is a different kind of benefit, one that is moral, ethical and in compliance with human rights and the international rule of law.”

Jiménez disputed the premise that asylum seekers are not capable of offering the material benefits that agricultural workers and truck drivers bring: “Asylum seekers are not coming here to be put in detention facilities. They are coming here because they need safety. And they want to work. That need to work is a very universal and fundamental desire for most people who are coming to the U.S. So, I think the way that we process asylum seekers and cage them keeps them from becoming important contributors to our society in all aspects.”

She emphasized that such cost-benefit analysis “really is motivated by political interest and not what we need scientifically.”

Garrett cautioned against such reasoning, too. “I think you end up buying into the whole question of weighing the value of one human being against another.”

Safer Quarantine Options Are Available

The CDC order describes ports of entry and Border Patrol stations as, by definition, “congregate settings” that are not designed for social distancing and therefore cannot safely accommodate asylum seekers.

It states: “many aliens covered by this order may lack homes or other places in the United States where they can self-isolate.” In actuality, an October 2019 study of 607 asylum seekers waiting in Mexico found that almost 92 percent had family or close friends in the United States.

The border closure is therefore premised on the false assumption that asylum seekers must be detained in congregate settings, when in fact the vast majority could be screened for symptoms like everyone else, referred to health services for additional testing if necessary, and then released to family or friends in the U.S. with whom they could safely quarantine.

“If the State is so concerned about congregate settings,” Gonsalves said, “they should maybe clear the federal jails and prisons and ICE detention centers.” He cited the dozens of cases around the country in which CBP, Immigration and Customs Enforcement (ICE), and the Bureau of Prisons are fighting release orders by arguing that facilities are equipped to handle social distancing. The federal government, he said, cannot “have it both ways.” Either federal detention centers are equipped to handle social distancing, or they are not.

From a public health standpoint, Garrett said, allowing asylum seekers to quarantine with family in the U.S. would be far better than detention. “If the asylum seekers… have access to a lower density co-housing situation in a home or an apartment, then the latter is clearly preferable form a purely health point of view.”

Gostin agreed. “After all, it would just be following the advice that CDC is giving everybody.”

Options for Asylum Seekers with Family or Friends in the U.S.

There would still be logistical questions as to how asylum seekers could safely travel from the border to their final destination, though.

“In terms of transport,” Gostin said, “it’s always a problem, but we have experience with it. We had to do it with the evacuees from Wuhan. We had to do it with the evacuees from the cruise ships. And so, you need to make safe provision for them to be moved.” The question, he said, was less about logistics than political will. “They just have to think it’s politically important and morally important and provide the capacity and planning.”

Waldman noted that asylum seekers would have access to the same public and private transit options as everyone else in the state. “I think it has been made clear that states can establish their own rules and regulations,” he said, “and it means that anybody who is in a state becomes subject to those.” If buses were still operating in the state, for example, asylum seekers could take them like anyone else, sitting at appropriate distances from other passengers.

Garrett emphasized that on buses, people should be seated two rows apart, very sparsely, which would require a third or a quarter as many passengers as usual. The driver should be behind plexiglass, and everyone should be issued masks, gloves, and hand sanitizer. Individual transport would be ideal to people’s destination cities.

Gonsalves said that something similar could be achieved in any U.S. government transport of asylum seekers: Passengers could sit in the back of the van, with a plexiglass barrier separating them from the driver, as is already the case in police cars.

Jiménez proposed that the government leverage community strengths and facilitate a “safe distancing pickup process by family members themselves.”

“Let’s call it what it is,” she said. “This is a racist policy against the Latinx community. There is incredible strength within the Latinx community that is underappreciated by the white majority. And so leveraging that community strength, those culturally relevant and healthy family bonds, could facilitate methods to decrease government burden with respect to having to provide transportation for everyone.”

The government’s job, she said, would be to ensure there was “culturally appropriate, relevant messaging to inform people if they wanted to do self-quarantine in their homes.”

This would be possible with “very deliberate collaboration between the healthcare system, the public health system, law enforcement, and community advocates.”

Options for Asylum Seekers without U.S.-Based Family or Friends

For asylum seekers who did not have family or friends with whom to stay, Waldman stated that accommodating them in shelters or vacant hotels, where they could have their own rooms, would be a viable option. “If people are screened on admission and determined to be not infected, then I don’t see the problem,” he said, “as long as they comply with the rules or regulations in the jurisdiction where they end up.”

Cities across the country—Chicago, Durham, Greensboro, Los Angeles, Minneapolis, Oakland, and others— are doing exactly this to allow homeless people to quarantine safely: transporting them by buses, vans, or other means to now-empty motels, hotels, and YMCAs.

The large network of religious and other community organizations already working in many U.S. towns along the border to help asylum seekers, such as Annunciation House in El Paso, can also help with immediate transportation, housing, and medical needs.

Jiménez said that all of these options “are absolutely great solutions that are there and are being under-utilized in addition to school dormitories,” which some students are pushing their universities to open to homeless people or individuals released from carceral settings.

Gonsalves noted that Yale had opened up its dormitories to first responders and that New York City had numerous vacant hotel rooms. “It’s not like we are wanting for empty hotel rooms or other kinds of settings,” he said. “There are plenty of places to put people right now.”

“I think it’s disgusting,” Jiménez said, “that we have so many empty spaces and so many people who need to be in those spaces, and we’re not connecting them.”

She also emphasized that any housing situation for asylum seekers needs to take into account their high level of trauma. “I think it is really important that we provide safe spaces to not further retraumatize individuals.”

Local Hospital Capacity Should Not be an Impediment

Another premise of the CDC order is that the possible entry of asylum seekers with COVID-19 would overwhelm already strained local hospital systems at the border.

Waldman disputed this assertion. “It’s not a viable statement right now because I don’t think that there is a problem with health system capacity on the border yet. I’m not saying it couldn’t happen later on. But for now, there isn’t.” And again, he said, the same would be true for the other groups that are still allowed to enter. “I understand their reasoning, but I don’t think it’s tenable. The imperatives for allowing asylum seeking to continue outweigh the concerns.”

Gostin noted that hospitals in some parts of the country are “overrun and overwhelmed.” But he said that if people are sick and need help, they do have the right to health.

According to Ravi, hospital systems at the southern border are indeed generally “overburdened and underfunded,” but “ignoring the rights of asylum seekers will not solve this problem, especially in the context of a pandemic caused by a virus that does not respect national borders.” She said the solution would be for U.S. government to increase federal funding for local and regional hospitals “by increasing Medicare and Medicaid reimbursements for healthcare facilities serving these communities, and/or by appropriating supplemental funds through the Hospital Preparedness Program.”

Garrett said, “In theory, humanity cares about these people, and they are already at the border. They’re just on one side of it. So local hospitals in theory are already overwhelmed if they have COIVD-19. They’re just on the Mexican side of the border rather than the American side.”

“There are ways to work around that,” Jiménez said, again emphasizing that messaging was key. Hospital emergency rooms did not have to be the first destination for all sick asylum seekers who were sheltering in place in the U.S. Community health workers are more likely to be trusted and, if reimbursed appropriately, could do virtual check-ins. They could share correct health information to help people understand whether they needed to be triaged by primary care or urgent care facilities rather than emergency rooms, and therefore minimize unnecessary use of the medical system.

Jiménez referred to the “healthy immigrant effect,” citing statistics that immigrants generally tend to be healthier than the average person who is in the US and may be at lower risk of complications. “On average, you’re not getting super sick people who are coming. You have to be well enough to make that journey.” 

Gonsalves noted that if a large group of people with COVID-19 symptoms sought to cross the border, “The CDC can ban people with communicable diseases from coming into the country.” However, application of the policy would have to be consistent. “If they say people who come with fever are going to be turned away or thrown into quarantine, it has to be for everyone coming in.” There is “no logical consistency or rationale for applying it to one group of people and not the other.”

Crowded Border Encampments Are Another Reason to Allow in Asylum Seekers

The CDC order states, “Medical experts believe that community transmission and spread of COVID-19 at asylum camps and shelters along the U.S. border is inevitable, once community transmission begins in Mexico.”

“It is true,” Garrett said, “that refugee camps, whether they’re in Syria or Lebanon or in Bangladesh or Mexico, are dangerous settings for transmission of all sorts of diseases.”

“That doesn’t mean that the answer is therefore you have to stay there, and we’re going to wall you off to protect the rest of humanity that is more fortunate,” she said. “The answer is that those settings should become as quickly as possible conduits to getting people to safer places to live.”

Gostin, too, acknowledged that asylum seekers in crowded camps in Mexico are at high risk of contracting the virus. “But why would you keep them at high risk?” he asked. “Wouldn’t you want to mitigate their risk and then when they come, to do comprehensive testing and medical assessment? And if it turns out that your testing and medical assessment does confirm that they are high risk, then the guidance is for them to shelter in place.”

The problem, he said, was that “The Trump administration is conflating its immigration policy with its public health policy, and it shouldn’t do that.”

Jiménez said that the government was using this justification to keep out asylum seekers when it could also apply to other groups coming from equally dense settings, like urban areas. If we are going to put those same sorts of qualifications,” she said, “then it needs to be across the board, and not applied to one specific group, because otherwise, it’s racist.”

Gonsalves stressed that people are going to cross the border illegally anyway. “A managed process is much better than a process of denial in both senses of the term: denying asylum seekers but also denying the fact that you are creating the wave of infection that you are so worried about by the way you are applying your policies.” A lot of border states, he observed, were late adopters of social distancing measures. The internal spread of COVID was always the greatest risk, so denying entry to asylum seekers now is “incoherent.”

Global Context

Reportedly, as of April 1, Mexico, which has a much smaller asylum agency than the U.S., was determined to continue accepting asylum seekers, although doing so inconsistently. European countries like Norway and Sweden also continue to recognize the right to seek asylum at their borders.

“Several countries have modeled excellent approaches toward processing asylum seekers amid the ongoing pandemic that effectively address public health concerns around COVID-19 without compromising human rights considerations,” Ravi said. “Portugal, for example, has temporarily granted all asylum-seekers full citizenship until the end of June, thereby ensuring that they have access to healthcare.”

Yet even Canada has recently closed its border to asylum seekers, demonstrating the currency of mistaken assumptions about border closure. Asylum seekers who were previously able to request asylum at informal border crossings will now be sent back to the United States, where they may face deportation to their home countries, in violation of the principle of non-refoulement, which prohibits the return of people to dangerous settings.

Gonsalves responded to Canada’s decision by noting that the time for travel bans to prevent spread of COVID-19 had long passed. “Local spread is by far the most powerful epidemiological factor in the perpetuation of the epidemic,” he said. “We know epidemics are excuses for xenophobia, for sort of hyper ethnonationalism, and sometimes epidemics are excuses for bad policymaking.”

Gostin agreed. “Governments and people behave quite differently in crisis than they would otherwise, but you can’t let a crisis fundamentally erode our commitment to democratic freedoms, the rule of law, and human rights.”

Image: Cesar, 35, an asylum seeker from Nicaragua waits with his wife, Carolina, 25, (Right) and his eight-year-old son Donovan to enter the US port of entry to change their asylum court dates on April 6, 2020 at the Paso del Norte International Bridge in Ciudad Juarez in the state of Chihuahua, Mexico. Photo by Paul Ratje/Agence France-Presse via Getty Images

 

About the Author(s)

Joanna Naples-Mitchell

Human rights lawyer and the U.S. Researcher at Physicians for Human Rights. Follow her on Twitter (@joanna_nm)