Trump Admin. Looks To Deny Asylum Over Health Fears

By Suzanne Monyak
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Law360 (July 8, 2020, 5:59 PM EDT) -- The Trump administration proposed a policy on Wednesday that would allow officials to quickly turn away asylum-seekers deemed a health risk, the latest effort to further tighten U.S. borders due to the coronavirus pandemic.

The U.S. Department of Homeland Security and Department of Justice's proposal would allow migrants to be labeled a "danger to the security of the United States," and thus ineligible for asylum and other protection, if they are considered to pose a threat to public health.

Officials would look at the conditions in the individual's home country and in countries traveled through to evaluate the risk that the individual would spread disease in the U.S., the proposal says. This bar could be applied shortly after migrants enter the U.S., allowing the federal government to quickly deport them without a full immigration court hearing.

Nermeen Arastu, co-director of the City University of New York School of Law's Immigrant & Non-Citizen Rights Clinic, told Law360 that the proposal would "make line-level immigration officers public health arbiters."

She also raised concerns that officers with U.S. Customs and Border Protection can apply the asylum restrictions at the credible fear stage, or the first initial screening given to migrants to evaluate their asylum claim.

"CBP can deny asylum-seekers a right to even apply for asylum on pretextual 'public health' grounds, cutting them out of the process before they have even had a shot to make their claim in violation of U.S. and international law," Arastu said. "The implications couldn't be scarier."

DHS and DOJ said Wednesday that the policy "is designed primarily to implement necessary reforms to our nation's immigration system so that the departments may better respond to the COVID-19 crisis and, importantly, may better respond to, ameliorate and even forestall future public health emergencies."

The departments also said that the policy would minimize the time migrants spend in government custody to reduce exposure to border officers.

The rule doesn't apply to individuals who have already entered the U.S. or applied for asylum.

Immigrant advocates, however, raised eyebrows at the administration's purported health justifications. The United States boasts the highest number of confirmed cases of COVID-19 worldwide at more than 3 million, according to data published by Johns Hopkins University.

Mexico and Canada, in comparison, have fewer than 400,000 confirmed coronavirus cases combined, according to the data.

Anwen Hughes, deputy legal director at Human Rights First, accused the Trump administration of using the coronavirus outbreak "as an excuse" to turn away asylum-seekers. Hughes also said that the rule would block asylum-seekers who work in health care, like nurses and doctors, because of their contact with coronavirus patients.

"This new rule flies in the face of our legal obligations to asylum-seekers and seems to lack any real public health justification," he said in a statement.

Jennifer Minear, president of the American Immigration Lawyers Association, called it "an unconscionable attempt to scapegoat vulnerable people who are seeking humanitarian protection under the pre-textual ruse of safeguarding the public health."

The proposal would essentially formalize an existing order issued by the Centers for Disease Control and Prevention in March that has allowed border officers to swiftly turn back migrants, including children and asylum-seekers, who arrive in the U.S. without legal documentation.

However, this proposed asylum bar would extend beyond the existing coronavirus pandemic. The proposal says that there is "always a risk of another emerging or re-emerging communicable disease that may harm the public in the United States."

The policy is the latest floated by the Trump administration to severely cut back on asylum. The administration published a proposal last month that would overhaul the U.S. asylum system and make it harder for migrants to qualify.

DHS also recently finalized a rule forcing asylum-seekers to wait a year before they can apply to work in the U.S. while their application is pending.

--Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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