By Suzanne Monyak

Law360 (December 21, 2020, 6:23 PM EST) -- The Trump administration is plowing forward with a proposal that would allow border officials to turn away asylum-seekers deemed a health risk, as the administration works to cement its immigrant restrictions before leaving office next month.

The White House budget office completed its review on Friday of the proposed asylum changes, paving the way for the U.S. Department of Justice and the U.S. Department of Homeland Security to potentially finalize and implement the policy in the final days before President-elect Joe Biden is inaugurated.

The policy is the latest immigration rule to be pushed forward during the lame-duck period. In the past month, the Trump administration has moved to enforce its asylum-sharing agreements with El Salvador and Honduras, while finalizing policies that will narrow the window for migrants to apply for asylum, overhaul asylum eligibility criteria and raise immigration court fees.

But the timing is tight, as administrations are required to build in a 30-day delayed effect for substantive policy changes. That requirement, however, can be waived when there's a "good cause," an exemption that the Trump administration has not previously been afraid to claim for policies related to the coronavirus pandemic.

The proposed version of the rule, released in July, drew more than 5,000 public comments during the month it was open for feedback.

Under the proposal, asylum-seekers could be turned away before they are even given an initial asylum screening, barring them from seeking asylum in the U.S. based on an immigration officer's determination of their health and whether they would spread diseases within the U.S.

Migrants would 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. The policy would also extend beyond the COVID-19 pandemic and apply to other health concerns.

The U.S. already excludes some immigrants on public health grounds, such as by requiring green card seekers from abroad to produce vaccination records and undergo medical exams, but immigrant advocates argued that the government does not have the authority to impose additional health bars that are evaluated by unqualified border officers and immigration judges.

"Tasking people who are mostly lawyers to make medical determinations does not comport with the role that Congress gave asylum officers and immigration judges, makes arbitrary enforcement a near-certainty, and substantially raises the risk of refoulement," the American Immigration Council and the American Immigration Lawyers Association wrote in a joint comment.

Yael Schacher, senior U.S. advocate at Refugees International, also warned in a comment that the rule could be used to send back asylum seekers with treatable illnesses.

"The United States can, and must, both safeguard public health and uphold U.S. laws and treaties protecting the lives of refugees seeking safety and freedom. This proposed rule does neither and should be withdrawn," she said.

Spokespeople for the DOJ and DHS didn't return requests for more information about the final rule on Monday.

--Editing by Steven Edelstone.

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