By Asher Stockler

Law360 (December 22, 2020, 10:59 PM EST) -- The Trump administration finalized a rule on Tuesday that will categorically prevent immigrants who fear persecution in their home countries from seeking refuge in the United States if they present a public health risk.

The controversial regulation, expected to take effect mere days after the inauguration of President-elect Joseph Biden, creates new bars on eligibility for asylum and for two programs that prevent deportation where persecution is likely to follow: withholding of removal and the Convention Against Torture.

During public health emergencies, such as the COVID-19 pandemic, asylum-seekers and other immigrants who fear persecution will be ineligible for lawful status if they exhibit symptoms of the disease or have recently come into contact with an infected person.

The administration justified the issuance of the public health rule as a "clarification" of the existing statute which bars admission where an immigrant poses "a danger to the security of the United States."

In addition to the symptom-based criteria, to be set forth by the Attorney General or Secretary of Homeland Security, the new rules also empower the administration to designate certain countries or zones as public health risks if a major infectious disease is prevalent there. If an immigrant comes from or has visited a designated country and is still within the longest-known incubation period for the infectious disease at issue, asylum would remain off the table.

Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, said the travel rule could potentially be interpreted to apply retroactively, after an immigrant has visited a country but before that country has been designated.

Around the time the rules were proposed, over 170 public health experts decried the changes as scientifically unsound, saying they would "undermine public health and further endanger people seeking protection."

"The rule ignores and misuses the science and core principles of public health," the scientists wrote in an August letter to Attorney General William Barr and acting Homeland Security Secretary Chad Wolf. "There is no public health rationale to applying public health measures differently based on immigration status. Yet the rule bars asylum-seekers who have even briefly transited through a country where a covered disease is prevalent without regard to whether an individual has been exposed."

Diseases that would trigger the travel bar — upon a finding of a public health risk by the attorney general and secretary of Homeland Security — include cholera, the plague, yellow fever and gonorrhea.

The American Immigration Council argued in comments following the proposed rule that the categorical nature of the new regulations render them flatly illegal, referencing immigration court precedent requiring individualized determinations of an immigrant's level of risk. Furthermore, the group said, Third Circuit precedent requires that the statute applies only to an immigrant who "is" an actual security risk, not an immigrant who "could" be a security risk because of their travel history or other factors.

To comply with its obligations under the Convention Against Torture, the administration said that immigrants otherwise barred under the new rules could still be eligible for deferral of removal under the treaty, which prevents an immigrant's deportation to a country where they would likely face torture at the hands of their government.

Deferral of removal, however, is a somewhat tenuous form of protection that can be terminated more easily, such as if the U.S. is sufficiently assured that an immigrant will not face torture.

Because the regulations allow asylum officers to consider the eligibility bars during preliminary screenings, the American Immigration Council argued that the rule would be applied illogically: An immigrant's health status could be evaluated by a nonmedical official, and this evaluation could occur months before a final determination on the asylum claim is made, well outside the incubation period for many infectious diseases.

Nevertheless, asylum officers would be empowered at this preliminary stage to conduct health screenings that could bar eligibility. The American Immigration Council said that the law requires the "security risk" language to be applied "at the time of adjudication" of the claim for asylum later on, by which point a disease may have run its course.

A DHS spokesperson did not return a request for comment.

--Editing by Steven Edelstone.

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