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April 23, 2020

Comment on Interim Final Rule: Suspension of Introduction of Persons Into United States

April 23, 2020

On March 20, 2020, the Centers for Disease Control and Prevention (CDC) of the Department of Health and Human Services (HHS) issued an interim final rule (IFR), 85 FR 16559-16567, that would “create a procedure for CDC to suspend the introduction of persons from designated countries or places, if required, in the interest of public health.”

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On the same day, CDC issued an order (Order), 85 FR 17060-17088, invoking the authority supposedly granted by the IFR to suspend the entry of persons without valid travel documents who seek to enter the United States via the land borders with Mexico and Canada on the ground that they could be “vectors” for transmission of COVID-19. The Order, which was originally in effect for 30 days, was extended for 30 days on April 20, 2020, and is subject to further 30-day extensions.

Citing the CDC Order, the Department of Homeland Security (DHS) has blocked and expelled from the United States thousands of individuals, families, and unaccompanied children, including many asylum seekers, without any legal process. Migrants from Cuba, Ecuador, El Salvador, Honduras, Guatemala, and Mexico, including reportedly at least 400 children, have already been expelled to Mexico. In some cases Border Patrol pushes unaccompanied children back into Mexico with adults whose relationship to the child has not been checked, placing children at risk of trafficking. The Border Patrol expels some individuals in the middle of the night in dangerous areas, putting them at even greater risk of kidnapping and assault. DHS is also rapidly expelling some non-Mexican nationals to their home countries, including asylum seekers and hundreds of unaccompanied children, without any legal process, to places where their lives are at risk. At U.S. ports of entry, Customs and Border Protection (CBP) officers turn away and expel asylum seekers and are not processing those who have waited months to request protection.

Human Rights First is gravely concerned about the impact of the IFR and vehemently object to the orders subsequently issued by the CDC. Under the guise of a public health response to the COVID-19 pandemic, the IFR and CDC orders effectively carry out the administration’s long-held goal of closing the southern border to people seeking life-saving protection in the United States. Blocking asylum seekers and unaccompanied children from requesting protection and expelling them without any of the legal process due to them violate U.S. refugee, immigration and antitrafficking laws passed by Congress, as well as due process and U.S. treaty obligations to protect people at risk of return to persecution and torture, and are completely contrary to child welfare standards.

We urge HHS to immediately rescind the IFR and the CDC orders implementing the IFR and ensure that any future regulations or orders related to border restrictions allow for the safe and orderly entry and processing of asylum seekers and unaccompanied children with appropriate public health safeguards while respecting U.S. laws that protect people seeking safety. Further, the administration should: 1) end all policies and practices that endanger refugees, create chaos, and violate U.S. law and treaties, including the Migrant Protection Protocols (MPP), and the Interim Final Rule issued on July 16, 2019, 84 FR 33829-33845, barring virtually all asylum seekers entering through the southern border from asylum eligibility, asylum cooperative agreements being used to transfer asylum seekers to Guatemala and potentially other dangerous Central American countries that lack effective refugee protection systems, as well as the Prompt Asylum Claim Review and the Humanitarian Asylum Review Process that effectively block asylum seekers from accessing legal representation before or during credible fear interviews; 2) ensure humane and safe conditions at all DHS facilities, in line with the recommendations of public health experts and meeting all legal standards including the Flores Settlement Agreement and DHS internal detention policies; and 3) address the actual causes of forced displacement in the region.

We note that HHS is accepting comments only as to the IFR and claims that the March 20 Order and its April 20 extension, issued under the authority established by the IFR, are not subject to notice and comment. The administration’s attempt to evade comment on these orders deprives the public of an opportunity to meaningfully comment on the impact of the IFR itself. The March 20 Order, which was issued simultaneously with the IFR, reflects the intended implementation of the IFR, and makes plain that the authority to suspend entry conferred under the IFR violates U.S. laws and treaty obligations and fails to actually address the public health concerns for which it was purportedly issued. Without an opportunity to comment on the Order, it is impossible for members of the public to comment on “all aspects of the interim final rule,” including the costs of implementation and the potentials benefits of issuing the IFR. As such, the comment of Human Rights First addresses both the IFR and its implementing Order.

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