Last Thursday the Trump administration issued the latest in a long line of administrative rules that unlawfully ban and punish asylum seekers and others pursuing related humanitarian protections in the United States. The proposed rule, titled “Security Bars and Processing” (and separate from another harmful asylum-related rule from early June), marries two of the president’s favored pretexts: national security and public health. But it has nothing to do with either. Rather, this is the president leaning hard into his anti-immigrant agenda as November approaches and his political prospects wane.
Promulgated by the Departments of Homeland Security and Justice, the proposed rule purports to “mitigate the risk of a deadly communicable disease being brought to the United States, or being further spread within the country,” through four dangerous changes to the asylum system:
First, the proposed rule would add public health emergencies to the national security grounds on which people seeking asylum or withholding of removal (a lesser form of relief for those who don’t qualify for asylum for particular reasons) could be denied. Specifically, asylum seekers for whom DHS determines that “entry would pose a risk of further spreading infectious or highly contagious illnesses or diseases, because of declared public health emergencies in the United States or because of conditions in their country of origin or point of embarkation to the United States” would be banned for “pos[ing] a significant danger to the security of the United States.”
Second, the rule would make these same bars applicable at the initial credible fear screening stage for asylum seekers in expedited removal proceedings. In other words, DHS would have the power to swiftly deport asylum seekers who DHS determines pose “a danger to the security of the United States” on public health grounds, without affording them basic due process protections. In particular, they would not have their claim heard before an immigration judge.
Third, the rule would force those seeking protection under the Convention against Torture (CAT) to demonstrate at the initial credible fear screening stage that they would more likely than not be tortured in their country of removal. This would require that torture survivors — who make up a shockingly high percentage of the refugee and asylum-seeking populations, according to multiple studies — spontaneously raise and then prove their CAT claim when they are fresh off a typically perilous journey to the United States. That is asking the near-impossible of many survivors, who can and often do suffer profound psychological harm from their trauma, including shame, stigma, denial, communication difficulties, and damage to memory.
Finally, even for those who manage at this initial stage to convince DHS that it is more likely than not that they would be tortured in their prospective country of removal, the rule would nevertheless allow removal to a third country.
As Human Rights First has explained, if the rule were to take effect as proposed, it would have consequences both devastating and senseless. This is especially the case given the administration’s concurrent efforts to expand expedited processing of asylum seekers into the interior of the United States. For example, the rule could:
- “Bar from asylum (and the lesser withholding of removal relief) asylum-seeking nurses, doctors, health aides, cleaners and other essential personnel who have ‘come into contact with’ COVID-19 while risking their lives in the pandemic response in the United States;
- Bar asylum-seekers from refugee protections who have fallen ill from COVID-19 while in the United States waiting for an asylum hearing, including asylum-seekers who contract coronavirus in ICE detention centers;
- Bar asylum-seekers from refugee protection merely because they recently came from a country other than the United States where COVID-19 is prevalent, even if they have a well-founded fear of persecution;
- Block asylum-seekers coming to U.S. airports, land ports of entry, or after crossing the border from requesting protection, if they were recently in a country where COVID-19 is prevalent, such as Russia, Brazil, El Salvador, even if they are not in fact infected; …
- Allow the administration to potentially extend the ban to other diseases, including treatable conditions like gonorrhea, syphilis and TB, to block even more asylum-seekers.”
These aren’t tradeoffs for additional security; they’re desired ends. Indeed — at the risk of covering some already well-trodden ground — here are three reasons that demonstrate why the proposed rule would not, and is not intended to, safeguard national security.
There is no genuine public health rationale for excluding asylum seekers.
Over the last several months, scores of public health professionals have made clear that barring asylum seekers serves no legitimate public health purpose. Joanna Naples-Mitchell, U.S. researcher at Physicians for Human Rights, painstakingly dismantled claims to the contrary in an April Just Security post.
In May, 57 public health experts at leading public health schools, medical schools, hospitals, and other institutions across the United States, who are working at the forefront of the pandemic response, wrote to DHS Secretary Alex Azar and Centers for Disease Control Director Robert Redfield. They objected to the March 20 CDC order that underlies a companion asylum ban and makes equivalent public health claims. (See Naples-Mitchell’s post for more detail on the March 20 order.)
“There is no public health rationale for denying admission to individuals based on legal status,” the experts wrote.
The order’s stated justification is that the migrants and asylum seekers who are subject to it would normally be held by Customs and Border Protection (CBP) in “congregate settings” for prolonged periods of time. However, instead of holding individuals in facilities widely recognized as dangerous and unsanitary, CBP has the discretion and legal authority to parole adults and families seeking asylum or other legal protection, and the government could facilitate the expeditious release of unaccompanied children from custody. A recent study found that of several hundred asylum seekers currently at the Mexico-U.S. border, 92 percent have family or friends they could live with in the United States. Allowing individuals to shelter in place with family or friends would reduce the need for quarantine facilities, resolving another concern stated in the CDC order.
The experts then provided a roadmap, using evidence-based public health measures, for safely processing asylum seekers and others crossing the U.S. border.
Last month, in a rare rebuke of the CDC in its own backyard, a coalition of Georgia public health, medical, and other professionals similarly condemned the CDC’s order and urged the director to rescind it:
In Georgia, we take justifiable pride in the CDC and applaud it when it insists on science-based public health measures in the face of political attacks, including during the current pandemic … [F]or this reason, we are deeply dismayed that you have chosen to sacrifice CDC’s independence and allow CDC’s voice to be used instead to advance the current administration’s anti-immigration policies. This not only damages the CDC’s reputation as a global public health authority, but it hurts all of us who have come to depend on CDC for credible, unbiased guidance.
To the extent the proposed rule would impact Americans’ safety, it cuts the wrong way.
As a colleague and I have written elsewhere,
Immigrants of all stripes … are disproportionately on the front lines providing all of us with essential services [during the pandemic], often at tremendous personal risk. Immigrants are more likely to work in the very jobs we depend on at this perilous moment. Nearly 30% of doctors and 40% of health aides in the United States are foreign born, and immigrants disproportionately work in the service or food industries that keep us fed during this crisis. They are also becoming sick and dying in alarming numbers to do so.
This includes refugees, asylum seekers, and the many torture survivors among them. Indeed, at the Center for Victims of Torture, the vast majority of our clients receiving rehabilitation services are asylum seekers, who include nursing home and daycare staff, personal care attendants, delivery drivers, grocery store and other food supply chain employees, and poultry plant workers.
By further diminishing the possibility that asylum seekers can come to the United States and instead facilitating their return to danger — especially when public health experts have emphasized that fair treatment of refugees does not undermine efforts to combat COVID-19 —the proposed rule would needlessly make all of us less safe.
The president’s stance on the pandemic is purely political.
It has become clear over the past several months that the president, his campaign, and certain senior administration officials will say and do just about anything in the COVID-19 context that they believe to be politically advantageous. And while Trump’s administration has long been plagued by hypocrisy, some of this group’s recent COVID-19-related statements and actions, viewed alongside DHS and DOJ’s justification for the proposed rule, reveal particularly pernicious contradictions.
The administration has repeatedly and dangerously downplayed the risk COVID-19 poses. Trump has asserted that 99 percent of cases are “totally harmless.” A senior adviser accused the CDC of “undermining the President” by publishing a report about the virus’ risks for pregnant women. Trump’s campaign “directed the removal of thousands of ‘Do Not Sit Here, Please!’ stickers” from seats at his rally in Tulsa, where COVID-19 cases are now spiking.
Meanwhile, the proposed rule emphasizes the risks. It lists “severe manifestations of the disease,” including acute pneumonia, acute respiratory distress syndrome, septic shock, and multi-organ failure; reports a 3.4 percent death rate worldwide; and notes:
During the height of the spread of COVID-19 within the United States and internationally, there were significant numbers of deaths and the rates of infection increased rapidly, indicating the critical need to reduce the risk of further spread by limiting and restricting admission and relief to aliens who may be carrying the disease and could pose further risk to the U.S. population.
The rule also relies on the claim that non-citizens arriving in the United States from “countries suffering the acute circumstances of an international pandemic … pose a significant danger to other aliens in congregate settings.”
Strikingly, while the administration is actively working to subvert CDC guidance regarding reopening schools (which are also “congregate settings”), DHS and DOJ attempt to justify the proposed rule almost entirely on the basis of CDC documents and materials, including guidance, travel notices, situation summaries, and the March 20 order (see pages 41202, 41203, 41204, 41205, 41208, and footnotes 1, 2, 3, 7, 8, 9, 10, 11, 12, 14, 15, 21, 24, 27, 28, 31, 32, 36, and 40).
Depending on the issue and its perceived electoral implications, COVID-19 is either a benign nuisance over which the country must stop fretting, or a catastrophic national emergency that presents an imminent and severe risk to everyone. Perhaps most alarming, what unites these otherwise irreconcilable positions is that the disparate policies and practices they seek to rationalize unnecessarily put people’s health and well-being in additional jeopardy.
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The country is facing actual security threats both at home and abroad — from racially motivated police violence, to the Russian/Taliban bounty operation, to the militarized suppression of dissent. Torture survivors and victims of other forms of persecution seeking safe haven in the United States is not one of them. The president’s obsession with the latter coupled with a malevolent indifference to the former isn’t about national security or public health. It’s about who will sit in the Oval Office come January.