Use of Public Health as Pretext to Ban and Block Refugees

Over objections of senior Centers for Disease Control and Prevention (CDC) experts and following instructions by Trump Administration officials, the CDC issued a highly flawed and roundly-criticized order used by the Department of Homeland Security (DHS) to block and expel asylum seekers and unaccompanied children. The March 20, 2020 order, indefinitely extended on May 19, 2020, and re-issued with minor modifications on October 13, 2020, has led to secret expulsions of thousands of children, families and adults to danger in Mexico or the countries they fled. These expulsions occur without screenings for international protection needs, as required under U.S. refugee and anti-trafficking laws and in violation of U.S. treaty obligations. Among those returned to danger are political dissidents expelled to Nicaragua who are now in hiding and unaccompanied Central American children expelled alone to Mexico.

At the same time, border crossings by U.S. citizens and other border traffic deemed “essential” have continued with more than 40 million pedestrians, car, bus and train passengers entering the United States through the southern border between April 2020 and September 2020, according to data from the Bureau of Transportation Statistics.

Distinguishing the CDC order from reasonable health measures, a Washington Post editorial concluded that “[i]t’s a different thing to impose a systematic, draconian, extralegal regime, one never contemplated by Congress, whose effect is to ignore and override 40 years of asylum and immigration law.” Noting that “it is precisely in times of emergency that any country faces its most severe tests – ones that call into question the nation’s essential character and values,” the editorial board warned that the administration was “betraying this country’s long tradition as a beacon to those fleeing oppression.”

In early November 2020, a Biden campaign spokesperson told CBS News that, if elected, a Biden Administration would “review this policy and make the appropriate changes to ensure that people have the ability to submit their asylum claims while ensuring that we are taking the appropriate COVID-19 safety precautions, as guided by the science and public health experts.” The U.N. Refugee Agency has made clear that “it is possible for a country both to protect the public health of its people and to ensure access to territory for people forced to flee their homes” and, in November 2020, the UNHCR Assistant High Commissioner for Protection urged states to ensure that “measures restricting access to asylum must not be allowed to become entrenched under the guise of public health.” In late November 2020, a federal court issued a preliminary injunction blocking DHS from expelling unaccompanied children under the CDC order and finding that the government was not likely to prevail on its assertion that the U.S. public health laws cited as authority for the CDC order authorize expulsions.