U.S. immigration law gives authorities the power to reject asylum seekers with a history of violence or criminal activity, on the grounds they could pose a danger to the United States. The proposed rule change would allow DHS and the Department of Justice to expand the definition of safety threats to “consider public health concerns based on disease when making a determination as to whether there are reasonable grounds to believe an alien is a danger to the security of the United States,” according to a regulatory notice.
Applicants arriving from countries with deadly communicable diseases would be ineligible for asylum and a lesser form of protection called “withholding of removal” that shields foreign nationals from deportation.
After posting in the Federal Register, the proposed rule change could take effect after a 30- to 60-day period for public comment, one DHS official said.
The United States has far more coronavirus deaths and confirmed infections than any other nation in the world, with public health officials warning the country is on pace to reach 100,000 new cases per day. The European Union has placed travel restrictions on U.S. travelers because of the virus’s rampant spread here.
Cases also are soaring in Mexico and other Latin American nations that are the source of most asylum applicants at the U.S. border, and the proposed rule change would disqualify them from gaining protection in the United States on public health grounds.
One senior DHS official involved in drafting the proposal said the asylum bar would only apply to those arriving from countries where a deadly and highly infectious communicable disease — such as covid-19 or ebola — is circulating.
The official said migrants who cross the border and state a fear of harm if deported — the first step in the asylum process — would still be eligible for protection under the UN Convention Against Torture, of which the United States is a signatory.
In practice, the Trump administration already has essentially closed the U.S. southern border to asylum seekers and others seeking refuge, citing the public health emergency created by the coronavirus pandemic. The vast majority of migrants taken into custody along the border have been “expelled” to Mexico or quickly deported through emergency procedures that have suspended conventional immigration rules. Records show that just a few dozen applicants have been allowed to remain in the country to apply for humanitarian relief.
Sarah Pierce, an analyst at the Migration Policy Institute in Washington, said the Trump administration’s latest asylum proposal would allow the government to keep obstacles in place once the pandemic subsides and emergency border controls are lifted. And she said it is consistent with the administration’s wider effort of building layers of enforcement mechanisms into the immigration system.
“They use multiple bureaucratic and policy tools to insulate their changes from litigation,” Pierce said. “The administration has been using the pandemic to move its immigration agenda forward.”
A record surge of Central American families and children across the Mexico border pushed migration levels to their highest point in more than a decade last year, as U.S. agents took nearly one million migrants into custody. Many stated a fear of death or harm if deported, and the influx exacerbated a backlog in U.S. immigration courts that now exceeds 1.1 million pending cases.
Since then, the Trump administration has issued a flurry of asylum-related policy decrees, regulatory changes and other restrictions, even as the federal courts have deemed several of its measures illegal. The Trump administration sent more than 60,000 border-crossers back to Mexico before the pandemic, requiring them to wait outside U.S. territory while their cases are adjudicated. It also has put asylum seekers on flights to Guatemala to apply for asylum there.
Late Wednesday a federal judge in Washington struck down the Trump administration’s policy disqualifying asylum seekers who did not first apply for protection in other nations they transited en route to the United States.
U.S. District Court Judge Timothy J. Kelly, a Trump appointee, said the government violated the Administrative Procedures Act by making the change without sufficient notice or justification.
The administration last month changed work authorization rules for asylum seekers, requiring them to wait a year to receive permission to have a job, saying the ability to seek legal employment had become an incentive to file frivolous claims.
Asylum applicants awaiting a court decision typically are allowed to work so they can provide for their families, and Trump administration officials have not said how they expect applicants to be financially independent.
Spencer S. Hsu contributed to this report.