United States: Public Comment Opposing Proposed Rules on Security Bars and Processing

August 10, 2020

Lauren Alder Reid, Assistant Director
Office of Policy
Executive Office for Immigration Review
Department of Justice
Department of Homeland Security

Andrew Davidson, Asylum Division Chief
Refugee, Asylum and International Affairs Directorate
U.S. Citizenship and Immigration Services

RE: Public Comment Opposing Proposed Rules on Security Bars and Processing – RIN 1615-AC57 / USCIS Docket No. 2020-0013; RIN 1125-AB08 / A.G. Order No. 4747-2020

The proposed “Security Bars and Processing” rule [rule] expands the definition of national security to incorporate public health bars in an unprecedented, unnecessary, and arbitrary way that would enable refoulement, or the return of asylum seekers to persecution. I, Yael Schacher, a historian of U.S. refugee policy and asylum law and Senior U.S. Advocate at Refugees International, submit this comment on behalf of Refugees International, an independent organization that has called on the U.S. government to promote solutions to displacement crises and provide protection to refugees since 1979.

The proposed rule is unprecedented and a violation of U.S. and international law. After World War II, when the United States administered a refugee admissions program, the Public Health Service worked closely with the International Refugee Organization and the U.S. consular and immigration authorities to check the health of each applicant. Individualized determinations could be appealed and reviewed; having a contagious disease might defer, rather than bar, admission and highlight the need for specialized treatment.[1] When the United States ratified the Protocol to the U.N. Convention Related to the Status of Refugees in 1968, the Secretary of State in a letter transmitting the Protocol to the President for signature noted that, “deportation of a refugee is a particularly serious measure, and it would not be humanitarian to deport a refugee for reasons of health.”[2] Indeed, the Department of State and the Department of Health, Education and Welfare explicitly rejected a proposed reservation to Refugee Protocol on “health related grounds”; in doing so, the United States recognized that it could not expel a refugee with a “contagious disease.”[3] Further, Congress codified the non-refoulement obligation in the withholding of removal provision of the Refugee Act of 1980 “with the understanding that [the provision] is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.”[4] So Congress did not intend the exception to this provision for those for whom “there are reasonable grounds for regarding…as a danger to the security of the United States” to be a public health bar.[5] And, when, in 1996, Congress adopted a bar on withholding of removal and asylum for those whom there are “reasonable grounds to believe is a danger to the security of the United States,” it was, again, not intended to be a public health bar. It was intended to apply to those deportable on terrorism related grounds.[6] Congress did not apply the “health-related grounds” of inadmissibility that exist in INA § 212(a)(1) to those seeking asylum.[7] The UNHCR made clear in an advisory opinion in 2006 that the danger sufficient to trigger the national security exception to the non-refoulement obligation is equivalent to “a serious danger to the foundations or the very existence of the State.”[8]

Nonetheless, the proposed rule insists otherwise, arguing that “danger to the security of the United States” should be read “to encompass concerns beyond” those explicitly referred to by Congress concerning national defense and the threat of terrorists.[9] It justifies this through reference to the decision in Yusupov v. Attorney General (3rd Circuit, 2008) that the bar applies to those who pose “any non-trivial level of danger to national security.” But, as the rule concedes in footnote 53, the court ruled “the alien must actually pose” this danger, while the proposed rule bars anyone “within a class of aliens arriving from a country” where the pandemic is prevalent. This is clear violation of the individualized, case-by-case determinations required under the statute (as recognized by the Attorney General in Matter of A-H- , also cited in the rule, and in Yusupov).[10] Further, legal guidance issued by UNHCR with respect to the COVID-19 pandemic makes clear that blanket measures may not be adopted that categorically deny people seeking protection an effective opportunity to seek asylum. “[I]mposing a blanket measure to preclude the admission of refugees or asylum-seekers… without evidence of a health risk . . . would be discriminatory and would not meet international standards.” While states may use health measures such as testing or quarantine, as needed, UNHCR has noted that “such measures may not result in denying [asylum seekers] an effective opportunity to seek asylum or result in refoulement.”[11]

Like the March 20, 2020 order[12] from the Centers for Disease Control and Prevention that DHS is currently using to block asylum seekers at the border under the pretext of COVID-19, this rule is justified as a way to prevent spread of COVID-19 in detention facilities and to prevent community spread within the United States. As Refugees International and public health experts have emphasized, neither are reasonable or adequate justifications given the prominence of COVID-19 in the United States and available safe border screening procedures and alternatives to detention.[13] In contrast, many European countries have implemented public health measures while also protecting access to asylum, such as medical screenings at borders, health certification, and temporary quarantine; most, if not all, of these countries have drastically reduced the spread of COVID-19 within their borders.[14] The proposed rule baselessly singles out asylum seekers as a threat to public health when there is no justification to do so. The rule does not apply to tourists, business travelers, or students.

Indeed, the scapegoating of asylum seekers in this proposed rule is even more unconvincing than in previous administration rules. The rule claims that asylum seekers must be barred because of the “threat” they pose for the U.S. economy without actually quantifying that danger in any way and claiming that the rule overall is not “economically significant.”[15] Moreover, the rule is so poorly drafted and imposes such vague standards that it can be used to bar asylum seekers with treatable diseases[16] and does nothing to prevent the spread of COVID-19. The rule requires that the bar be applied to asylum seekers at the credible fear screening stage[17] (illegally elevating the Congressionally mandated “low” standard[18]) but also to those awaiting asylum proceedings in the United States, who may have been infected while in U.S. immigration detention. As the current expulsion and Remain in Mexico policies make clear, eliminating asylum protections at the border can be counter-productive because it leads to border encampments and irregular movements that make controlling outbreaks more difficult. Finally, the rule allows DHS to send asylum seekers to undisclosed third countries[19] where they might not only face persecution but also COVID-19 or the stigma directed at those thought to have it, problems that Refugees International has documented.[20]

The United States can, and must, both safeguard public health and uphold U.S. laws and treaties protecting the lives of refugees seeking safety and freedom. This proposed rule does neither and should be withdrawn.

Sincerely,

Yael Schacher
Senior U.S. Advocate
Refugees International

[1] U.S. Displaced Persons Commission, Memo to America: Final Report of the U.S. Displaced Persons Commission (Washington, U.S. Govt. Print. Off. 1952). 178.

[2] Letter from Dean Rusk to President Johnson, July 25, 1968, in Sen. Ex. Doc. K., 90th Congress, 2nd Session, VIII.

[3] Dep’t of Health, Edu., and Welfare, Memorandum for Ambassador Graham Martin re: Protocol Relating to the Status of Refugee, July 22, 1968; Dep’t of Health, Edu., and Welfare, Letter to Ambassador Graham Martin re: Protocol Relating to the Status of Refugee, July 16, 1968. Even the considered reservation would have allowed a refugee with a contagious disease who entered the United States directly from their country of origin to “remain here [the United States], subject to ‘such internal measures’ as are deemed necessary.”

[4] H.R. Conf. Rep. No. 96-781, at 20 (1980).

[5] INA § 241(b)(3)(B)(iv); 8 U.S.C. § 1231(b)(3)(B)(iv).

[6] INA §§ 208(b)(2)(A)(iv), 241(b)(3)(B)(iv); 8 U.S.C. §§ 1158(b)(2)(A)(iv), 1231(b)(3)(B)(iv).

[7] Before 2010, when Human Immunodeficiency Virus (HIV) was the only specific illness codified in the INA as a communicable disease of public health significance, the HIV ban did not apply to asylum seekers or those seeking withholding of removal. Those asylees with HIV applying to adjust their status to lawful permanent residence could seek a waiver based on family unity or humanitarian grounds.

[8] UN High Commissioner for Refugees (UNHCR), Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees, 6 January 2006, available at: https://www.refworld.org/docid/43de2da94.html

[9] 85 Fed. Reg. 41209.

[10] An adjudicator must determine that “information about [a noncitizen] supports a reasonable belief that the [noncitizen] poses a danger” Matter of A-H-, 23 I. & N. Dec. 774, 788 (A.G. 2005).

“We must take the statute to mean what it says: “is” indicates that Congress intended this exception to apply to individuals who (under a reasonable belief standard) actually pose a danger to U.S. security. It did not intend this exception to cover [noncitizens] who conceivably could be such a danger or have the ability to pose such a danger (a category nearly anyone can fit). Yusupov v. Atty. Gen.., 518 F.3d 185, 201 (3d Cir. 2008), as amended (Mar. 27, 2008).

[11] UN High Commissioner for Refugees (UNHCR), Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response, 16 March 2020, available at: https://www.refworld.org/docid/5e7132834.html

[12] https://www.cdc.gov/quarantine/order-suspending-introduction-certain-persons.html

[13] Yael Schacher and Chris Beyrer, Expelling Asylum Seekers is Not the Answer: U.S. Border Policy in the Time of COVID-19, https://www.refugeesinternational.org/reports/2020/4/26/expelling-asylum-seekers-is-not-the-answer-us-border-policy-in-the-time-of-covid-19; Public Health Measures to Safely Manage Asylum Seekers and Children at the Border, https://www.humanrightsfirst.org/resource/public-health-measures-safely-manage-asylum-seekers-and-children-border ; Letter to DHS Secretary Wolf and Attorney General Barr Signed by Leaders of Public Health Schools, Medical Schools, Hospitals, and Other U.S. Institutions, https://www.publichealth.columbia.edu/public-health-now/news/public-health-experts-urge-us-officials-withdraw-proposed-rule-would-bar-refugees-asylum-and-and

Moreover, even under Proposed Rule, both CBP and ICE would continue to hold people in congregate settings during the credible fear process

[14] United Nations High Commissioner for Refugees, Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the COVID-19 Pandemic (Apr. 15, 2020), https://data2.unhcr.org/en/documents/download/75453.

[15] 85 Fed. Reg. 41209; 85 Fed. Reg. 41214.

[16] The rule (85 Fed. Reg. 41215) gives DOJ/DHS the authority to declare a broad list of communicable diseases threats to national security. The list includes treatable conditions, such as gonorrhea, syphilis, Hansen’s disease (leprosy) and tuberculosis, and diseases which do not present a risk of widespread public transmission. (https://www.law.cornell.edu/cfr/text/42/34.2 )

[17] 85 Fed. Reg. 41213.

[18] H.R. Rep. No. 104-469, at 158

[19] 85 Fed. Reg. 41213, 412161.

[20] Deportation with a Layover, https://www.refugeesinternational.org/reports/2020/5/8/deportation-with-a-layover-failure-of-protection-under-the-us-guatemala-asylum-cooperative-agreement

Harmful Returns, https://www.refugeesinternational.org/reports/2020/6/16/harmful-returns-the-compounded-vulnerabilities-of-returned-guatemalans-in-the-time-of-covid-19