Expelling Asylum Seekers Is Not the Answer: U.S. Border Policy in the Time of COVID-19

On March 20, 2020, the U.S. Department of Health and Human Services issued an interim final rule (Rule) directing the Centers for Disease Control and Prevention (CDC) “to suspend the introduction of persons from designated countries or places, if required, in the interest of public health.” On the same day, the CDC issued an order (Order) applying this new authority to persons lacking valid travel documents who enter the United States by land from Canada or Mexico on the grounds that they could be “vectors” for transmission of COVID-19. The Order, initially in effect for 30 days, was extended for an additional 30 days on April 20, 2020, and can continue to be renewed indefinitely.

This issue brief argues that the Rule and Order are not justified on public health grounds and illegally target asylum seekers for expulsion. Taken together, they represent an attempt by the current U.S. administration to exploit the COVID-19 pandemic crisis in the service of a long-term political goal to limit asylum seeking at the southern border.  

The authority invoked by the Rule (42 U.S.C. 265) is incommensurate, unprecedented, and misapplied. There is no public health rationale for treating asylum seekers as a special class to be excluded and expelled. The provision in the Rule and Order directing their summary expulsion is in violation of U.S. domestic and international obligations to those seeking refuge. Moreover, the epidemiologic evidence is clear that the period of preventing introduction of COVID-19 to U.S. populations has now long passed. Instead, the evidence suggests that our highest priority as a nation must now be to reduce community spread through tools like social distancing, personal protective equipment, hand washing and other hygiene measures, and self-isolation at home. These same tools can be made to work effectively for asylum seekers at the U.S. border. 

An Unprecedented Measure

The authority invoked in the Rule and Order has never been used before, and other measures have been adequate and effective in the past.

The Rule and Order rely upon section 362 of the 1944 Public Health Service Act (42 U.S.C. 265) authorizing the Surgeon General (and now the Department of Health and Human Services) to prohibit “the introduction of persons and property” from foreign countries where there is a communicable disease. This authority applies when their introduction would “so increase” the “serious danger” of the introduction of the disease into the United States.

No administration has ever previously sought to invoke such authority to prohibit entry of persons.¹ Instead, all previous administrations have combatted the spread of contagious disease by relying on quarantine provisions of the public health law² and the health exclusion in the immigration law.³

During the second and third decades of the twentieth century, there were quarantine stations at ports of entry all along the U.S.-Mexico border at which crossers were disinfected and inspected and their property fumigated. A very small percentage of border crossers were medically barred.⁴ By the early 1940s, these stations had ceased operations given the low prevalence of contagious disease and an increase in commercial aviation leading to more arrivals at airports, which was recognized in a provision of the 1944 Public Health Service Act authorizing the application of the law’s provisions to aircraft.⁵ There was also medical screening of immigrants before they left their home countries. And the 1944 Public Health Service Act included a provision tasking consular officers with providing reports to the Surgeon General on health conditions at their stations.⁶

The Rule amends 42 CFR Part 71 by creating a new section 71.40 that permits the Director of the CDC to issue an order suspending the entry of non-citizens into the United States. The CDC asserts that the Rule is necessary to give full effect to Section 362 of the Public Health Service Act. Yet the regulation being amended, 42 CFR § 71.40, relating to the suspension of goods into the United States, was codified in early 2017 as part of a revision of the CDC quarantine and inspection authority in the wake of the agency’s experiences fighting Ebola, SARS, and MERS. At the time, in the face of highly contagious diseases that could spread to the United States, the CDC did not invoke the authority to include blanket suspensions of individuals attempting to enter the United States. And, the 2017 rule included numerous due process protections accorded to persons subject to apprehension, quarantine, or other containment measures.⁷ The current Rule includes no such protections. As discussed further below, the Order provides no procedure at all, authorizes expulsion without a hearing, denies access to the statutory asylum screening and protection, and may even be applicable to those traveling far from the border.

Targeting Asylum Seekers for No Public Health Purpose

The language of section 362 of the 1944 Public Health Service Act comes directly from section 7 of the 1893 Quarantine Act (27 Stat. 452), a provision giving the president permission to prohibit “introduction of persons or property” from a foreign country if he deemed the regular quarantine provisions inadequate to protect the health of the country. The use of the word “persons” was deliberate, as it was meant to include any traveler who might be carrying the disease, regardless of citizenship status.⁸ But the Order issued under the Rule effectively targets only asylum seekers and targets them for expulsion.

The Rule claims to be aimed at preventing the introduction of individuals for whom isolation or quarantine is not a practical solution and/or where individuals have been in congregate settings “(i.e., ships, aircraft, trains, and road vehicles) or terminals with shared sitting, sleeping, eating, or recreational areas, all of which are conducive to disease transmission,” but the Rule does not actually apply to such individuals universally. 

The Order is carefully crafted to apply only to immigrants entering the United States by land without valid documents and who would otherwise be introduced into a congregate setting in a land Port of Entry (POE) or Border Patrol station near the border. The Order does not apply to those who cross the border without documents but do not ask for asylum, since they are subject to expedited removal and not detained in crowded border detention facilities. The Order does not apply to U.S. citizens or permanent residents, who can enter. It does not apply at airports; it does not bar travel by tourists arriving by plane or ship, even though these modes of transportation are explicitly listed as congregate settings with higher risk of disease transmission. So, the rule does not actually do what it claims is necessary, namely bar “international travel and migration” to prevent “transmission of infectious biological agents.” (Rule, page 16,560).

A travel restriction (85 FR 16547) issued by the U.S. Department of Homeland Security (DHS) on March 20 simultaneous to the Rule limits cross-border U.S.-Mexico traffic to “essential travel,” but provides broad exceptions for travel related to education, trade and commerce, as well as other non-essential travel at the discretion of the Commissioner of Customs and Border Protection. Allowing these populations to cross the U.S.-Mexico border reflects the government’s recognition that population migration controls described in the Order are not a meaningful way to reduce COVID-19 exposures and transmissions. These factors only underscore the critical point: The Order unreasonably targets asylum seekers for discriminatory treatment.

There is no requirement in the Rule that any individualized determination be done to establish if the barred asylum seeker is actually infected or contagious. Asylum seekers as a “class of persons” are presumed to be “potential vectors of disease” and a danger to the public health of the United States. The epidemiologic justification for treating asylum seekers as a special class has no rational basis in science—persons seeking asylum are not at elevated risk for infection, and are not in risk categories for occupational exposure (such as first responders or health care workers). There is no reason to assume, as the Order asserts, that asylum seekers would be a particular burden on border region healthcare providers at this time—especially given the overall youthfulness of the asylum seeking population.⁹ There is no apparent health system strain or capacity problem at the southern border at this time. More importantly, perhaps, those persons to whom the Order does not apply and who are permitted to cross the border or enter through Texas airports would put as much or more strain on it than asylum seekers—again, demonstrating the discriminatory dimension of this measure.

In light of the status of COVID-19 exposure in the United States, there is no scientific evidence to support the claim the “The United States is in a phase where suspending the introduction of persons from certain countries or places…could still materially reduce the transmission and spread of COVID-19 in the United States.”(Rule, page 16564). The Order is based on a fundamental assumption that the United States needs to close its borders to some groups of people to reduce the spread of COVID-19. This was an outdated public health approach by March 20, but by the time the CDC order was renewed on April 20, the United States accounted for just over 32 percent of all reported COVID-19 cases worldwide, some 814,000 out of the 2.5 million cases reported. This makes the United States by far the most COVID-19 affected country globally and makes people with travel or residence history in the United States a risk for other nations and not the converse. More importantly, even if you accept the incorrect assumption about the effectiveness of bars to entry, there is no basis to single out the particular group targeted in the Order.

The Rule’s capacious definition of “introduction” includes “those who have physically crossed a border of the United States and are in process of moving into the interior,” in conflict with the plain language of Public Health Service Act statute. While the April 20 extension of the Order concedes that “community transmission of COVID-19 is occurring,” it argues that “there are significantly fewer cases in the interior of the United States,” and therefore the Order is necessary to prevent spread there by asylum seekers who enter at the southern border. But, on the same day as the Order was extended, the worst U.S. prison outbreak of COVID-19 in a facility in Marion County, Ohio had 1,828 confirmed infections among detainees and staff, an estimated 73 percent of all inmates in the facility. The second largest prison outbreak in the country occurred several weeks previous, in Cook County, Illinois. These outbreaks originated among the domestic population in the prisons and occurred in the interior of the country, far from the southern border and both coasts.

In sum, it cannot now be argued that “serious danger” to the public health of the United States is “so increased” by the introduction of asylum seekers at the southern border that would justify the invocation of section 362 of the 1944 Public Health Service Act (42 U.S.C. 265). Moreover, nothing in section 362 of the 1944 Public Health Service Act provides for the expulsion of those who have already entered or been introduced to the country. The Rule fails to offer asylum seekers subject to it an opportunity to request protection (as required by 8 U.S.C. § 1158(a)(1)); expelling asylum seekers contradicts the fundamental prohibition of non-refoulment, or return of individuals to places where they may face serious harm amounting to persecution (UN Refugee Convention and Protocol and Act of 1980, Pub. L. No. 96-212).¹⁰ As a recent United Nations High Commissioner for Refugees (UNHCR) Handbook makes clear, “[r]efoulement must be the last possible way to eliminate or alleviate the danger and it must be proportionate, in the sense that the danger to the country or to its community must outweigh the risk to the refugee upon refoulement.” 

The CDC Order offers no legal basis for CDC-based expulsions without any asylum or non-refoulement safeguards. U.S. Federal courts have held that invocation of quarantine and medical exclusion provisions cannot violate the 1980 Refugee Act. In the early 1990s, the administration established a quarantine for HIV positive Haitian asylum seekers at Guantanamo Bay, Cuba. In 1993, a federal court ruled that the asylum seekers could neither be quarantined indefinitely nor expelled to their home countries, a violation of the mandatory prohibition against refoulement in the 1980 Refugee Act.¹¹ After the ruling, the asylum seekers with HIV were safely paroled into the United States, where a much larger number of individuals were already living with HIV/AIDS. 

Flawed Assumptions and Terrible Consequences

The Order suggests that it is the processing and detention practices employed by CBP in handling asylum seekers at the border that are the true danger to the nation’s public health. “CBP holds asylum seekers,” the Order relates, “in the common areas of [border] facilities, in close proximity to one another, for hours or days, as they undergo immigration processing. The common areas of such facilities were not designed for, and are not equipped to, quarantine, isolate, or enable social distancing by persons who are or may be infected with COVID-19.” Detaining asylum seekers in crowded border facilities for several days does indeed make it difficult to prevent the spread of COVID-19 within those facilities. But, DHS is not required to so detain asylum seekers; CBP has the legal authority to parole asylum seekers from the border pending credible fear interviews or to defer their inspection. And, the CDC could help DHS establish a new protocol for the processing of asylum seekers at the border that addresses the threat of the spread of COVID-19 and respects U.S. obligations under the Refugee Act. This could involve release of asylum seekers to the homes of family members or friends where asylum seekers could socially distance and self-isolate and be permitted to continue their cases in immigration court. The Order falsely presumes that asylum seekers “lack” these homes, but the vast majority of asylum seekers have them.¹²

Instead of conditional release, the Order calls for the moving of asylum seekers “to the country from which they entered the United States, or their country of origin, as rapidly as possible.” So far, the practices adopted by CBP to do this have included the taking of biometrics in the field and the transporting of asylum seekers to ports of entry in ways that do not consistently minimize spread of COVID-19 (because they do not make use of effective social distancing, enough personal protective equipment, and hand sanitizer ¹³ nor provide asylum seekers with statutorily required refugee screening regarding their fear of return to persecution.¹⁴ Expelling anyone who is sick with COVID-19 to vulnerable countries where they cannot get care and will likely die may itself amount to a violation of non-refoulement—and, in any event, is inhumane.

The Order’s only acknowledgment of humanitarian protection is its statement that it “does not apply to persons whom customs officers of DHS determine, with approval from a supervisor, should be excepted based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” These is an insufficient substitute for statutory schemes designed to give due process and other procedural guarantees to vulnerable populations who seek protection in the United States. The Rule and Order do not reconcile a new interpretation of the 1944 Public Health Services Act with the more recently passed 1980 Refugee Act and Trafficking Victims Protection Reauthorization Act of 2008.

And the consequences have been cruel and inhumane. Thousands of individuals including reportedly at least 400 children—from Cuba, Ecuador, El Salvador, Honduras, Guatemala, and Mexico—have already been expelled to Mexico. The Border Patrol expels some individuals in the middle of the night in dangerous places, putting them at even greater risk of attack or  kidnapping. Central American asylum seekers expelled under the Order have reportedly been detained by Mexican migration officials, denied an opportunity to seek asylum in Mexico, and deported or left abandoned at the Mexico-Guatemala border. Border Patrol officers are also rapidly expelling some non-Mexican nationals to their home countries. Recent reports of infections occurring in reception centers in countries of origin suggest that the indiscriminate removal or expulsion of people without conducting reasonable health inspections may expose even more people to illness. Shelters are closed to new individuals as a result of the pandemic. Poverty and food insecurity, already widespread in many of the areas to which asylum seekers are being expelled, has been exacerbated by the pandemic. The expulsion procedures sanctioned by the Rule and Order not only risk returning asylum seekers to persecution, but also expose thousands to violence, substandard living conditions, and great risk of infection in makeshift camps or in countries of origin that lack adequate systems to safeguard their health or extend humanitarian protection.

Recommendations for a Sound and Humane Border Policy

The suspension authority in 42 U.S.C. 265 is to be invoked only after consideration of alternatives. The Rule and Order fail to adequately consider reasonable alternatives—such as quarantine and isolation—that would not violate U.S. legal obligations or put asylum seekers at risk.

The Rule points only to the “arrival in U.S. ports of cruise ships” as an example of why quarantine or isolation has become logistically challenging and “consumed disproportionate agency resources” (Rule, page 16560), but there is no suggestion that arrivals of such ships involved a large number of individuals who are not U.S. citizens or lawful permanent residents coming into the United States. Although the Rule (page 16564) states that “quarantine, isolation, and conditional release, in combination with other authorities, while not perfect solutions, can mitigate any transmission or spread of COVID-19 caused by the introduction of U.S. citizens or lawful permanent residents into the United States,” it does not explain why this distinction should be drawn on the basis of such immigration status. Like U.S. citizens and lawful permanent residents, asylum seekers are likely to already have a home in the United States where they can quarantine or isolate after entry. In addition, although the Order claims that quarantine and monitoring of self-isolation would pose a challenge for CDC’s resources, it does not explore the possibility of implementing quarantine using other resources or coordinating with State and local authorities. The federal courts have already outlawed, as a violation of the Refugee Act, a Rule barring asylum-seeking at the border based upon an argument regarding “strain” on resources.

Instead of detention or expulsions, DHS could engage in non-discriminatory screening and self- isolation measures that would respond to public health concerns while preserving the right to seek asylum.   

CBP officers should facilitate social distancing to the extent possible during processing at ports of entry and in the field. Border officers and asylum seekers should wear masks or cloth coverings over mouth and nose and be provided with and asked to use hand sanitizer before and after exchanging documents, using any fingerprint machinery, or touching other surfaces. Apprehended asylum seekers should be held for the absolute minimum of time required to assess their status, ask them about their fear of return, and identify if, as the majority do, they have relatives or other supporters who are willing to accept them. With respect to the smaller percentage of asylum seekers that do not have family or other close ties to stay with, faith-based and community groups have mobilized to assist these people in finding a place to stay. DHS should use community-based alternatives to detention, which have proven successful. Any arrival who is displaying symptoms of COVID-19 (such as fever and dry cough), but does not require hospitalization, should be sent home to isolate (as the CDC recommends for persons within the country). For those who are symptomatic and lack these homes, DHS and the CDC should work with local health authorities to provide access to facilities like unused motel rooms that allow those who are ill to actually isolate away from other people rather than in congregate settings—a measure being used for homeless populations in many U.S. localities.

 

Yael Schacher is the Senior U.S. Advocate at Refugees International.  Chris Beyrer, an epidemiologist specializing in infectious disease, is the Desmond M. Tutu Professor of Public Health and Human Rights at Johns Hopkins Bloomberg School of Public Health. He serves as a member of Refugees International’s Advisory Council.

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Endnotes

[1] Alan Kraut, Silent Travelers: Germs, Genes, and the Immigrant Menace (Basic Books, 1994) 60.

[2] Now section 361, 42 U.S.C. 264, which call for examination, disinfection, quarantine, isolation, and conditional release of individual arrivals to the United States who are determined to have been infected with or exposed to specific communicable diseases

[3] Now INA 212(a)(1)(A)(i), which provides that individual immigrants who are determined “to have a communicable disease of public health significance” are inadmissible.

[4] John McKiernan-Gonzalez, Fevered Measures: Public Health and Race at the Texas-Mexico Border, 1848-1942 (Duke UP, 2012) 240-244.

[5] Section 367, 42 U.S.C. 270.

[6] Section 365, 42 U.S.C. 268.

[7] Department of Health and Human Services, Centers for Disease Control and Prevention, Final Rule, Controlling Communicable Diseases, 82 Fed. Reg. 6890 (Jan. 19, 2017).

[8] A December 1892 bill (H.R. 9990) from the House Committee on Immigration and Naturalization that proposed giving the President the power to suspend immigration to prevent introduction of a contagious disease was jettisoned by Congress in favor of a January 1893 quarantine bill from the House Committee on Interstate and Foreign Commerce (H.R. 9757) that gave the President the power to prohibit introduction of all persons and property coming from foreign countries where contagious disease existed. 

[9] A recent empirical study found that no relationship between the number of asylum seekers who apply for protection at the southern border, or who are permitted to enter the United States at the southern border to continue their asylum proceedings, and the prevalence of infectious diseases like the flu. U.S. Immigration Policy Center at the University of California, San Diego, “COVID-19 and the Remaking of U.S. Immigration Policy? Empirically Evaluating the Myth of Immigration and Disease,” (Apr. 22, 2020) https://usipc.ucsd.edu/_files/usipc-myth-immigration-disease-final.pdf.

[10] Although the text accompanying the interim final rule states that CDC will consult with the Department of State regarding U.S. international legal obligations in fashioning orders based on the rule, the Order issued by the CDC on the same day and under the powers granted by this Rule fails to even reference U.S. domestic and international obligations to asylum-seekers. By contrast, earlier COVID-19 related travel restrictions on China (Proclamation 9984), Iran (Proclamation 9992), the Schengen zone (Proclamation 9993), and the United Kingdom (Proclamation 9996) have all included explicit exceptions for those seeking protection in the United States.

[11] Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y 1993)

[12] An October 2019 study by the US Immigration Policy Center at UCSD of 607 asylum-seekers forced to wait in Mexico found that nearly 92 percent had family or close friends in the United States https://usipc.ucsd.edu/publications/usipc-seeking-asylum-part-2-final.pdf

[13] This is illustrated in photographs posted by Border Patrol on social media that indicate a lack of social distancing and the apparent use of the same gloves to take biometrics from numerous migrants. https://twitter.com/USBPDepChiefRGV/status/1242219442462957568/photo/1

[14] Dara Lind, Leaked Border Patrol Memo Tells Agents to Send Back Migrants Immediately—Ignoring Asylum Law, ProPublica, April 2, 2020, https://www.propublica.org/article/leaked-border-patrol-memo-tells-agents-to-send-migrants-back-immediately-ignoring-asylum-law; https://www.documentcloud.org/documents/6824221-COVID-19-CAPIO.html; Customs and Border Protection (CBP), “Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions,” available at https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title- 42-statistics (between March 21 and March 31, CBP officers and Border Patrol agents blocked or expelled 6,375 individuals at the southern border under the IFR and CDC Order); During the first half of April 2020, referrals of individuals requesting asylum for credible fear interviews with an asylum officer have declined by 80% compared to the first half same period last year. U.S. Citizenship and Immigration Service, “Semi-Monthly Credible Fear and Reasonable Fear Receipts and Decisions,” https://www.uscis.gov/tools/reports-studies/immigration-forms-data/semi-monthly-credible-fear-and-reasonable- fear-receipts-and-decisions.