COVID-19 Border Restraint At Odds With Refugee Obligations

By Suzanne Monyak
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Law360 (March 24, 2020, 8:13 PM EDT) -- The Trump administration's latest border restrictions, handed down under a rarely used public health statute to combat the coronavirus pandemic, likely flout U.S. obligations to not return people to countries where they will be persecuted.

The Centers for Disease Control and Prevention's order, which took effect Saturday, instructs border agents to swiftly return to Mexico, Canada or other countries all migrants who cross the U.S. land border or arrive at a port of entry without proper documentation, in an effort to keep them out of crowded facilities where the virus could easily spread.

The directive does not, however, carve out any process for officers to screen migrants who may be fleeing persecution in their home countries and seeking asylum or other protections in the U.S., putting the order's legal authority in direct conflict with the U.S.' own refugee laws — and creating pressure for federal courts to step in.

"You've got two different congressional statutes that are seemingly in conflict, and how do you reconcile the conflict?" said Theresa Cardinal Brown, director of immigration policy at the Bipartisan Policy Center. "I can't say whether it's legal or not; I don't think anybody can until it gets to court, and the court has to decide."

When asked if Border Patrol officers would screen migrants for possible asylum claims before returning them, a spokesperson for U.S. Customs and Border Protection told Law360 that "asylum cases will be assessed on a case-by-case basis."

He declined to elaborate on how officers would or could evaluate possible fear claims without taking migrants into custody, which the administration is aiming to avoid, saying that information is "law enforcement-sensitive."

"If the path for an asylum-seeker without papers to bring a claim under these restrictions were to be made public, they would be exploited by human smugglers," the spokesperson said.

Unaccompanied minors will not be swiftly returned under the new restrictions, but will continue to be placed in the custody of the U.S. Department of Health and Human Services' refugee office.

Sarah Pierce, an immigration attorney and policy analyst at the nonpartisan Migration Policy Institute, called the conflict "an issue of first impression" that will likely have to land at the courts, though no lawsuits have yet been filed.

"Because it's such a blatant violation of U.S. immigration laws, I'd be very surprised if it wasn't challenged quickly," she added.

'Uncharted Territory'

The CDC order draws upon a 1944 statute known as the Public Health Service Act, which was passed in the wake of President Franklin Roosevelt's New Deal public health reforms.

The law aimed to modernize the U.S. health system as the country emerged from World War II and combat the health crises of that day; for example, it created a program to fight the spread of tuberculosis and designated additional grant money for states and localities struggling to address the disease, which infected more than 83,000 people in the U.S. in 1953, according to the CDC.

The law also included the provision at issue here, which allows the surgeon general to prevent the "introduction" of people "by reason of the existence of any communicable disease in a foreign country" that may be spread to the U.S.

But immigration experts say this provision, now 42 U.S. Code Section 265, has yet to be used since it was passed more than 75 years ago.

Brown, who worked at the U.S. Department of Homeland Security and U.S. Customs and Border Protection under the Bush and Obama administrations and was involved in pandemic planning during the H1N1 virus outbreak, said she was aware of such restrictions but couldn't recall a time in which they had been used to block people at the border during her 25-year career.

Border restrictions are "always in the playbook," she said, but they "just hadn't been pulled out before in this way."

"We're in new, uncharted territory," Brown added.

Pierce predicted that the CDC restrictions would likely be defeated in court if no proper asylum-screening process is put in place, arguing the law would then run up against U.S. obligations under the principle of non-refoulement in international law, or the principle that countries should not send people back to places where they will be persecuted.

That principle, which has been codified in U.S. immigration law, also tanked the Trump administration's attempt to strip asylum eligibility from migrants who crossed the U.S. border in between entry ports. The Ninth Circuit upheld a lower court order preventing the administration from enforcing the policy last month.

"We have the administration acting under a statute that's on the books, but what they're doing is in direct violation of other statutes on the books. I have a hard time believing that even with these extraordinary circumstances that this would hold up in court," Pierce said.

The 1944 provision also predates key changes to U.S. immigration laws, including the decision to sign on to the 1967 Refugee Protocol, an international treaty, and the Refugee Act of 1980, which amended the federal immigration statute to adopt the protocol's standards.

And as countries around the globe tighten their borders in response to the global pandemic, the United Nations High Commissioner for Refugees has explicitly stated that "blanket" measures to bar asylum-seekers or refugees without evidence those individuals are a public health risk "would be discriminatory and would not meet international standards."

The 1944 provision "cannot override multiple laws passed by Congress in the generations since it was passed and our obligations under international law," said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

The statute further shows its age by using outdated language that no longer aligns with the terminology used in those more recently passed immigration laws.

Pierce also noted that the CDC order and accompanying documents take pains to avoid using more modern immigration language and instead sticks "strictly" to terms in the 1944 law. The order posted over the weekend mentions "asylum" only twice, both times to highlight the risk of infection in Mexican border camps but never to specifically state the restriction's effect on asylum-seekers at the border.

The government attorneys may be thinking "if they somehow couch this in that 1944 law, that they can somehow ignore all of the immigration laws," she said.

Moreover, the administration has used the law to create what appears to be an "entirely new process," Pierce said, where migrants are returned faster than under other rapid deportation programs like expedited removal.

The new restrictions also appear to allow Border Patrol agents to return migrants more quickly than under the Trump administration's controversial Prompt Asylum Claim Review program, or PACR, and the Humanitarian Asylum Review Process, or HARP, said Yael Schacher, senior U.S. advocate at Refugees International.

Those two programs have been called "legal black holes" for screening and sending back asylum-seekers before they can access attorneys, a legal services nonprofit claimed in a recent lawsuit in D.C. federal court.

The CDC said in its Federal Register notice that the agency will coordinate with the secretary of state "in order to ensure compliance with the international legal obligations of the United States," but Schacher called that reference "lip service."

"There doesn't seem to be any call for Border Patrol to do any fear-screening whatsoever. I think that's what's so startling," Schacher told Law360.

Viral 'Breeding Grounds'

Further, restricting asylum claims could actually aggravate a public health crisis, policy experts have warned.

Schacher said the border camps in northern Mexico, where migrants await their U.S. court dates — which have been postponed over concerns about the virus — "will become breeding grounds for the virus."

The CDC order itself notes that Mexico has fewer resources than the U.S. and that "medical experts believe that community transmission and spread of COVID-19 at asylum camps and shelters along the U.S. border is inevitable."

The government is faced with a "balance of interests" between protecting public health and limiting people's time in facilities and in contact with agents, while also giving asylum-seekers and others access to a full immigration process, said Brown.

But she noted that instead of investing in better immigration infrastructure that could have allowed the system to rise to the occasion, the administration opted instead for deterrence policies.

"I can see an articulable arguable policy reason to invoke this," Brown said. "But because we have not made those investments in the asylum system to allow for the exception, to make sure those laws are not in conflict, we have set up that conflict."

Schacher also pointed to President Donald Trump's comments Friday when announcing the restrictions, when he said the border measures would "reduce the incentive for a mass global migration."

"I just don't trust that everything in this document is about protecting public health and not some of the goals this president has," she said.

Reichlin-Melnick agreed.

"When the first measure the government takes to deal with people crossing the border is to immediately do what it's wanted to do for three years, there's a strong suspicion that politics was involved," he said.

--Editing by Philip Shea and Bruce Goldman.

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