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Last month saw the largest regulatory assault on asylum yet, with the Department of Homeland Security (DHS) and the Department of Justice (DOJ) proposing rules that would eviscerate protections in blatant violation of U.S. and international law. But DHS and DOJ were not done.

Before comments closed, they dropped another proposed regulation that ventured into new, yet familiar territory: weaponizing public health to bar asylum seekers.

This new rule would literally label asylum seekers a “danger to the security” of the United States if there is the slightest risk that they could be exposed to a contagious disease. Asylum seekers would never see a judge, unless they met an unreasonably high burden that will result in the inevitable deportations of most. Even torture survivors would not be safe: DHS would further reserve the "discretion" to deport them to a third country before their day in court.

DHS tries to justify these draconian, inhumane, and unlawful changes under the pretext of the COVID-19 crisis and protecting public health. Their reasoning is nonsensical and alarming for three reasons.

1. Asylum laws cannot be suspended in times of crisis.

Forty years ago, Congress unanimously adopted the international mandate not to return refugees straight back to their persecutors. U.S. and international asylum protections, born out of the atrocities of global warfare and genocide, were precisely a response to unprecedented crisis. The U.S. cannot put those humanitarian obligations on pause, including during a pandemic.

Truthfully, asylum seekers would be prudent to avoid coming to the United States, given the historic failure to contain the virus here; however, prudence is a privilege they lack while fleeing for their lives. That’s why Congress ensured the timeless right to fair asylum processing.

2. Public health experts overwhelmingly reject this proposed rule.

In a letter to DHS Secretary Chad Wolf and Attorney General William Barr, 170 public health and medical experts recently exposed DHS and DOJ’s specious reasoning: the proposed regulation “ignores and misuses the science and core principles of public health” and is in fact “not designed to halt disease transmission.” Despite DHS and DOJ’s alarmist rhetoric, the proposed regulation would bar asylum seekers for treatable diseases and illnesses that do not pose a risk to the general public, such as gonorrhea, syphilis, tuberculosis, and Hansen’s disease (leprosy), among others. In their letter, the experts remind the agencies that protecting asylum seekers or public health is a false dilemma.

While health screenings may be advised, there is no evidence that walling off asylum seekers will mitigate the spread of infectious diseases. The greatest risk to the U.S. is not asylum seekers, but the continued use of detention. Migrant detention centers are tinderboxes for infectious diseases, and public health experts have urgently called on DHS to utilize the vast spectrum of release and community care options available as alternatives. For 91.9 percent of asylum seekers, this would mean sheltering at home safely with family or close friends — a sensible solution that would not further strain our public health system.

3. Exploiting public health to ban migration is not just callous—it’s racist.

The U.S. has a dark history of weaponizing public health to advance anti-immigrant views. In the 19th Century, lawmakers groomed the ideology that immigrants may carry “loathsome and contagious disease.” This view — predicated on racist, classist, and ableist stereotypes — laid the groundwork for selective medical screenings, deportations, and eugenics in the 20th century. Immigration became synonymous with contagion and a threat to domestic welfare.

In the 1980s, the U.S. imposed an immigration ban on individuals living with HIV/AIDS. Like today, the government ignored the elephant in the room: that the U.S. had the largest outbreak anywhere in the world. Instead, the U.S. began jailing Haitian asylum seekers in an HIV prison camp in Guantanamo Bay, where some refugees were told that “they could be at Guantanamo for 10 to 20 years or until a cure for AIDS is found.”

Today, the U.S. is far from shedding this racist ideology. In March, the Centers for Disease Control and Prevention (CDC) closed the border entirely, resulting in the unlawful expulsions of tens of thousands of migrants and asylum seekers. The CDC’s order was the first manifestation of a longstanding scheme to exploit public health as a pretext to close the border. This proposed rule is the second.

Meanwhile, public health experts have long debunked any link between migration and disease. Rather than spread the disease, immigrants are leading the fight against COVID-19.

In sum, calling asylum seekers a danger to national security violates asylum law, makes no scientific sense, and robs them of their humanity.

NIJC is calling on DHS and DOJ to rescind these proposed rules and encourages everyone to speak up against this racist, unlawful rule. Submit your own comments before 11:59 p.m. Eastern Standard Time on August 10.

You can read NIJC's comment regarding the rule here. 

Azadeh Erfani is a senior policy analyst at NIJC.