A proposal unveiled Wednesday would give the U.S. government the power to categorically disqualify migrants from asylum and another form of humanitarian relief from deportation if it determines they could spread an infectious disease, like the novel coronavirus, inside the country.
The proposed rule by the Departments of Justice and Homeland Security is the latest in a series of actions the Trump administration has taken humanitarian programs that Congress established to provide refuge to foreigners fleeing persecution and torture in their home countries.
U.S. asylum law allows officials to bar certain migrants from requesting humanitarian protection, including those who are determined to pose "a danger to the security" of the country. The new regulation would expand the definition of that statutory language to include those who officials determine could spread a contagious disease.
The restriction would apply not only to those who exhibit symptoms of a communicable disease, but to migrants who hail or traveled through countries where an outbreak is "prevalent or epidemic," as designated by the U.S. or foreign governments.
"[Migrants] whose entry would pose a risk of further spreading infectious or highly contagious illnesses or diseases, because of declared public health emergencies in the United States or because of conditions in their country of origin or point of embarkation to the United States, pose a significant danger to the security of the United States," the draft rule said.
Migrants who are rendered ineligible for asylum and "withholding of removal," the other lesser form of protection from deportation, may still request for their removal to be deferred under the United Nations Convention Against Torture. But even if they pass the heightened eligibility interviews for this protection, the draft rule suggests it could allow officials to deport these asylum-seekers to third countries, rather than allowing them to stay in the U.S.
Advocates for migrants and refugees strongly criticized the proposed policy on Wednesday, accusing the Trump administration of again citing the coronavirus to justify long-sought restrictive changes to the decades-old U.S. asylum system.
"This rule represents the single broadest attack on the concept of asylum in the United States because it would eliminate almost all options for a person to seek humanitarian protection," Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, told CBS News.
Since late March, the Trump administration has been quickly expelling most unauthorized migrants at both land borders, including unaccompanied children and those seeking asylum, citing broad authorities in a public health order by the Centers for Disease Control and Prevention (CDC) aimed at containing the coronavirus. Like the CDC order, the administration argued that Wednesday's draft rule would shield border officials, immigrant detainees and the general American public from potentially infected migrants.
While coronavirus transmission has been increasing in Latin America, especially in Mexico and Brazil, the world's No. 2 hotspot, the U.S. continues to lead all countries in confirmed cases and deaths. More than 3 million people have tested positive for the virus in the U.S. and over 131,000 have died.
Reichlin-Melnick said the draft rule could serve as an insurance policy of sorts for the administration in the event the CDC directive is withdrawn or held up in court. The American Civil Liberties Union (ACLU) has been challenging the policy in court andlast month before a federal judge appointed by President Trump that it was likely to prove the policy is unlawful, especially because of its application on unaccompanied minors.
"These rules operate as a plan B for the Trump administration," Reichlin-Melnick said. "If the Trump administration's attempt to use the CDC order to ban refugees is struck down, this would give them another way to end asylum for people arriving at our southern border."
Before the coronavirus became widespread in the U.S., the Trump administration implemented, with mixed results because of court challenges, several fundamental changes to the asylum system, arguing it has been exploited by migrants seeking better economic opportunities. Advocates for migrants have argued the policies place vulnerable refugees, including families and children, in harm's way and ignore America's image as a leading safe harbor for those fleeing persecution.
Wednesday's proposal is expected to be published in the federal government's journal of regulations on Thursday, after which the public will have 30 days to comment on it. Though it is unclear when a final rule would go into effect, its text signaled that it could be used well beyond the coronavirus pandemic.
"This rule not only would provide the Departments with important tools for safeguarding America from COVID-19 (should the disease still be a threat when a final rule is published), but it would also clarify the availability of critical tools within the Departments' statutory authority should another pandemic strike," the proposal said.
The Departments of Justice and Homeland Security did not respond to requests for comment.