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Proposed DHS and DOJ Rule Seeks to Further Restrict Asylum Access Beyond the COVID-19 Pandemic

On July 9, 2020, the Department of Homeland Security and the Executive Office for Immigration Review released a proposed rule that would give both agencies increased authority to restrict asylum access at the U.S. border. The rule proposes classifying asylum-seekers coming from a place where a contagious or infectious disease is prevalent as a threat to the national security to the United States. Like the Title 42 order issued by the Department of Health and Human Services in conjunction with the Centers for Disease Control in March 2020 regarding COVID-19, the July 9 proposed rule represents an additional lever the White House hopes to pull to further limit asylum access for migrants coming to the United States. While public health experts have urged HHS and the CDC to withdraw policies that bar entry to asylum-seekers on public health grounds, the new rule would not only expand the public health authorities to restrict asylum, but also blur the line between DHS and HHS authorities regarding health issues, further complicating border management and asylum processes.

According to DHS and EOIR, the rule proposes that both agencies may consider emergency public health concerns based on communicable diseases as potential threats to national security when making asylum determinations. Should they find reasonable grounds for determining that an asylum-seeker poses a danger to the security of the United States based on public health concerns, a migrant would be ineligible for asylum or the protection of withholding of removal in the United States. Via the proposed rule, DHS and EOIR plan to make four reforms to the U.S. immigration system by:

  1. Clarifying that the “danger to the security of the United States” bars to eligibility for asylum and withholding of removal apply in the context of public health emergencies related to the possible threat of introduction or further spread of international pandemics into the United States.
  2. Making these security bars applicable in credible fear screenings in the expedited removal process so that migrants subject to the bars can be expeditiously removed.
  3. Streamlining the screening for deferral of removal eligibility1 under the Convention Against Torture in the expedited removal process to allow for the expedited removal of individuals ineligible for deferral.
  4. Restoring DHS’s discretion to either place migrants ineligible for asylum pursuant to public health grounds into regular, formal removal proceedings in immigration court, or remove them to third countries where they would not face persecution or torture. While migrants would still have the opportunity to apply for protections in the U.S. under the Convention Against Torture, the proposed rule would also allow DHS to remove people applying for such protections to safe third countries to pursue relief there.

The rule’s finalization2 would allow DHS to bar migrants with certain communicable diseases, or who come from a country or region where such a disease is prevalent, and the migrant may have come in contact with the disease. Specifically, the rule would give the agency authority to bar asylum-seekers on grounds of any possible or potential threat to national security based on a communicable disease in a country from which the migrant traveled. The proposed rule would give DHS and EOIR authority to determine whether an individual exhibits symptoms consistent with being afflicted with any contagious disease, and would allow the agencies to determine that illness is a communicable disease of public health significance. If so, the agencies could deem the migrant in question a national security threat to public health in the United States and be ineligible for asylum. While the proposed rule instructs DHS and EOIR to consult with HHS regarding potential communicable diseases that could be an international threat, the rule blurs the line of which agency is responsible for determining whether the disease could result in a public health crisis in the United States, and incorporating yet another mechanism DHS can utilize to deter migrants from seeking asylum.

While Section 212 of the Immigration and Nationality Act already includes health-related grounds of inadmissibility that apply to immigrants and nonimmigrants seeking entry to the United States, but those bars generally do not apply to migrants seeking asylum.3 Thus, the proposed rule seeks to expand the bar to asylum from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996, in which Congress established six mandatory bars to asylum eligibility.4 By amending the statue to consider a communicable disease as a national security threat, the proposed rule would be expanding and broadening the grounds on which DHS and DOJ could bar a migrant from asylum. Although the COVID-19 pandemic was the Trump administration’s original rationale for deterring individuals at the border, the proposed rule’s language makes it clear it is designed to outlive the current pandemic and apply more broadly. Even though the United States is now the world’s largest COVID-19 hotspot, the White House continues to use the virus as an argument to further restrict asylum access. Finalizing the rule will undoubtedly have lasting effects beyond the current administration as to how asylum is processed at the border.

If the United States wants a better border management and asylum system to prevent future disease outbreaks, it could incorporate a health screening into the asylum process as they currently do with refugees processed abroad.5 Leading U.S. public health experts have already recommended evidence-based public health measures that can be used to safely process asylum-seekers during the COVID-19 pandemic. Allowing DHS officers and EOIR adjudicators who lack the proper knowledge and training to diagnose a communicable disease during a credible fear interview or immigration hearing grants them authorities that normally would be under the purview of HHS. If the United States wants to ensure fair asylum processing at the border, classifying migrants who may or may not have a communicable disease as national security threats, regardless of whether that disease is of pandemic or public health crisis potential, is a slippery slope towards limiting asylum access permanently.

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End Notes:

1 Deferral of removal is one of the two types of protection under the Convention Against Torture. Withholding of removal under CAT prohibits returning migrants to a specific country where they would face torture. It is a more secure form of protection than deferral of removal. Withholding of removal can be terminated only if DHS establishes that a migrant is not likely to be tortured in that country. Deferral of removal also prohibits returning migrants to a specific country where they would face torture. However, deferral of removal is granted to migrants who likely would face torture but who are ineligible for withholding of removal under CAT, for example, certain criminals. Deferral of removal is a more temporary form of protection. It can be terminated more quickly and easily if a migrant no longer is likely to be tortured in the country of removal, or if the U.S. government receives assurances that the migrant will not be tortured if returned. In the case of the proposed rule, DHS and DOJ are maintaining they have the discretion to still remove an individual to an amenable third country if they would more than likely not face torture there.
2 The comment period of the proposed rule ended on August 10, 2020.
3 The INA explicitly lists seven diseases as communicable diseases of public health significance. They are chancroid, gonorrhea, granuloma inguinale, infectious leprosy, lymphogranuloma venereum, active tuberculosis, and infectious syphilis. Additional diseases may be designed by regulation by CDC.
4 The six bars prohibiting the granting of asylum are migrants who (1) ordered, incited, assisted, or otherwise participated in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States” before arriving in the United States; (4) are a “danger to the security of the United States”; (5) are inadmissible or removable under a set of specified grounds relating to terrorist activity; or (6) were “firmly resettled in another country prior to arriving in the United States.” IIRIRA sec. 604(a) (codified at INA 208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi)).
5 In this process, HHS and state public health officials monitor refugees with potential health considerations.

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