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August 10, 2020

Comment on Proposed Security Bars and Processing

August 10, 2020

Human Rights First submits these comments in response to the Department of Homeland Security (DHS) and Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) Notice of Proposed Rulemaking published in the Federal Register on July 9, 2020. The proposed rule would use public health as a pretext to gut humanitarian protections for families, adults, and children seeking safety in the United States and deport them to persecution and torture in violation of U.S. law and international treaty obligations.

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Through this proposed rule, the administration seeks to exploit specious public health claims to evade its legal obligations and deport refugees to persecution and torture. The proposed rule would ban, block, and deport people seeking asylum in the United States by mislabeling them as threats to national security on public health grounds. It also grants DHS and DOJ broad powers to declare a host of diseases—many of which are treatable and/or do not present a risk of widespread transmission—as public health threats and bar asylum seekers as a result. Diseases declared as public health emergencies in the United States would also be used to automatically bar asylum seekers from protection. Perversely, the rule would bar from asylum people who have “come into contact with” COVID-19, including while carrying out essential duties as healthcare workers in the United States or while in U.S. immigration detention where official negligence has allowed cases of COVID-19 to proliferate. As a result of the proposed rule, refugees with well-founded fears of persecution and/or likely to be tortured will be deported, and many summarily removed without an asylum hearing.

Leading public health experts have concluded that proposed rule is not based on sound public health principles, is detrimental to public health, and ignores evidence-based measures that would both protect public health and uphold U.S. legal obligations to protect people seeking safety in the United States. Indeed, this administration has long sought to exploit public health to block and deport asylum seekers. For months, the administration has been using COVID-19 as a pretext to block asylum seekers at the border, expelling over 109,000 people including children and people seeking asylum without an opportunity to apply for legal protections required under U.S. law and treaty obligations. Public health experts have concluded that the March 20, 2020 order from the Centers for Disease Control and Prevention (CDC) that DHS has used to carry out these expulsions relies on similarly specious justifications and disregards evidence-based measures for safe processing of asylum seekers.

Using this sweeping and unprecedented new rule to bar and deport refugees on purported public health grounds would violate U.S. law and treaty obligations. The proposed rule attempts to exploit a narrow exception under U.S. asylum and international refugee law that limits protections for certain individuals who pose a serious threat to the national security of the refugee hosting country, but as discussed in detail below, this limited exception cannot be used to ban refugees on public health grounds nor to bar entire classes of people seeking refugee protection. In response to the COVID-19 pandemic, UNHCR has made clear that “imposing a blanket measure to preclude the admission of refugees or asylum-seekers . . . without evidence of a health risk and without measures to protect against refoulement, would be discriminatory and would not meet international standards.”

The agencies have failed to, and cannot, articulate any rational justification for the proposed rule. As public health experts have noted, this rule, like the March 20 CDC order, is “xenophobia masquerading as a public health measure.” Human Rights First urges the agencies to withdraw the proposed rule in its entirety and comply with the United States’ obligations under domestic and international law to guarantee humanitarian protections for people fleeing persecution and torture.

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