Co-opting Coronavirus, Assailing Asylum

ARTICLES

CO-OPTING CORONAVIRUS, ASSAILING ASYLUM

ASHLEY BINETTI ARMSTRONG*†

ABSTRACT

The Centers for Disease Control (CDC) issued an Order on March 26,

2020, under Title 42, Section 265 of the Public Health Service Act, in the name

of combatting the spread of coronavirus. The Order has been called the

“Asylum Ban” because it effectively has sealed the southern border to protec-

tion-seekers, resulting in the pushback of nearly 400,000 asylees and unac-

companied children. This Article argues that the Trump administration has

contravened the rule of law by using the coronavirus pandemic as a convenient

pretext to end asylum in the U.S., and by violating the rights of protection-

seekers. In doing so, this Article makes four unique contributions, it: 1) pro-

vides a detailed account of the coronavirus-related travel restrictions and how

they have imposed a wholesale ban on asylum in the United States; 2) contex-

tualizes this harm within the Administration’s project to curtail protections for

vulnerable persons f‌leeing persecution and torture; 3) challenges the proffered

* Acting Assistant Professor, New York University School of Law. For helpful comments and con-

versations, I am grateful to Adam B. Cox, Jaya Ramji-Nogales, Shalini Bhargava Ray, Britta Redwood,

Milton C. Regan, Jr., Faraz Sanei, and Rachel Wechsler, as well as the participants of the New York

University School of Law Lawyering Scholarship Colloquium, and the Junior International Law Scholars

Association (JILSA) summer workshop—including Elizabeth Acorn, Stephen Arrigg Koh, and Ryan

Liss. For excellent research assistance, many thanks to Benjamin Brindis, Pauline Morgan, Iva Petkova,

and Andrea Smith. Finally, thank you to the Georgetown Immigration Law Journal editors for their

thoughtful and careful review of this Article. © 2021, Ashley Binetti Armstrong.

† This Article was drafted in the summer of 2020. Since the time of writing, the number of individu-

als affected by the Order has sharply increased, and the f‌igures here are current as of January 9, 2021.

However, given the highly dynamic nature of both immigration policy and the pandemic, certain legal

developments since late summer 2020—like the Trump administration’s “Death to Asylum Rule” (effec-

tive as of Jan 11, 2021)—are not addressed in this Article. See, e.g., Nolan Rappaport, What Trump’s New

‘Death to Asylum’ Rule Actually Says. THE HILL (Dec. 14, 2020), https://bit.ly/3imwW3p. The status of

litigation cited herein also may have evolved since the Article was drafted. Time will tell how the

incoming Biden administration and the courts will handle the CDC order and its progeny, and other

Trump administration laws that have precluded vulnerable asylum-seekers from accessing protection in

the United States.

361

health justif‌ications for the Asylum Ban as pandemic pretext; and 4) estab-

lishes that such measures violate the U.S.’s non-refoulement obligation by pre-

venting all meaningful access to asylum.

While the CDC order is a temporary measure, born of the coronavirus pan-

demic and the U.S. government’s response to it, the concerns raised in this

Article extend beyond this current political moment to the long-term implica-

tions of leveraging national laws and pretextual health concerns to close the

U.S. border to protection-seekers.

TABLE OF CONTENTS

INTRODUCTION ......................................... 362

I. THE CORONAVIRUS ASYLUM BAN: SEALING THE BORDER ......... 366

II. PANDEMIC PRETEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

A. Pretext and the Law............................ 374

B. “Racism Masquerading Poorly as Immigration Policy” . . . . . 376

1. Anti-Immigrant Rhetoric..................... 377

2. Law and Policy Measures. . . . . . . . . . . . . . . . . . . . . 379

C. Justifying the Asylum Ban. . . . . . . . . . . . . . . . . . . . . . . . 381

1. Introduction from Risky Locations?. . . . . . . . . . . . . . 382

2. The Impossibility of Social Distancing? . . . . . . . . . . . 384

3. The Absence of a Public Health Rationale. . . . . . . . . 385

III. BEYOND PANDEMIC PRETEXT ........................... 387

A. The Right to Apply for Asylum and the Non-refoulement

Obligation ................................... 388

B. The Asylum Ban Violates International Law. . . . . . . . . . . 392

C. The Trump Administration’s Response............... 395

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396

INTRODUCTION

Since its inception, the Trump administration has aimed to seal

the southern border to prevent migrants—including asylum-

362 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:361

seekers

1

—from entering the United States. When the coronavirus (COVID-

19) pandemic presented an avenue for the Administration to achieve this

goal, it seized the opportunity. Co-opting Title 42, Section 265,

2

a little-

known provision of the U.S. Code, the Centers for Disease Control (CDC)

issued an Order

3

on March 26, 2020.

4

The Order has effectively ended the

U.S. asylum regime and has resulted in the pushback of nearly 400,000 vul-

nerable protection-seekers

5

and unaccompanied children.

6

The practice of co-opting health concerns to justify xenophobic and nati-

vist immigration policies is deeply entrenched in this nation’s history.

Immigration restrictionists in the United States have argued for centuries that

migrants pose health risks,

7

whereas the actual magnitude of credible health

threats has been overemphasized.

8

These largely unfounded health-based

arguments “from the beginning .. . were used to weed out socially

1. A note on terminology: An “asylum-seeker” is someone who has f‌led their country of origin in

search of protection. A “refugee” is someone who is identif‌ied as having a well-founded fear of persecu-

tion because of their race, religion, nationality, membership in a particular social group, or political opin-

ion, and is unable or unwilling to avail himself of the protection of their country of origin or habitual

residence. Convention Relating to the Status of Refugees, adopted July 28, 1951, art. 1(a)(2), 19 U.S.T.

6259, 189 U.N.T.S. 137, 150 (entered into force Apr. 22, 1954) [hereinafter 1951 Convention]. The 1967

Protocol expanded the original refugee def‌inition by lifting the territorial and temporal restrictions of the

1951 Convention (the Convention specif‌ically protected those who became refugees due to the events in

Europe before January 1951). 1967 Protocol relating to the Status of Refugees, art. 1, para. 3, Oct. 4,

1967, 606 U.N.T.S. 267 [hereinafter 1967 Protocol]. Every refugee is f‌irst an asylum-seeker, but not all

asylum-seekers are ultimately recognized as refugees.

2. 42 U.S.C. § 265. Enacted in 1944 as part of the Public Health Service Act, the provision allows the

government to limit entry to the United States where “by reason of the existence of any communicable

disease in a foreign country there is serious danger of the introduction of such disease into the United

States.” Id.

3. This Article uses “CDC order” and “Asylum Ban” interchangeably when referencing the March

26, 2020 order.

4. Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending

Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg.

17,060 (March 26, 2020) [hereinafter CDC order].

5. Under 42 U.S.C. § 265, the U.S. Border Patrol expelled 197,371 individuals and the Off‌ice of

Field Operations expelled 9,412 individuals from March 2020 through September 2020. FY 2020

Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions, U.S.

CUSTOMS AND BORDER PROT., https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-

and-title-42-statistics-fy2020 [https://perma.cc/4T22-2YKK] (updated Nov. 20, 2020). U.S. Border

Patrol expelled 183,552 individuals and Off‌ice of Field Operations expelled 7,724 under 42 U.S.C. § 265

from October 2020 through December 2020. Nationwide Enforcement Encounters: Title 8 Enforcement

Actions and Title 42 Expulsions, U.S. CUSTOMS AND BORDER PROT., https://www.cbp.gov/newsroom/

stats/cbp-enforcement-statistics/title-8-and-title-42-statistics [https://perma.cc/22KN-A9NW] (updated

Jan. 7, 2020).

6. 15,848 unaccompanied minors were expelled at the U.S. Southwest land border under Title 42

from FY 2020 thru FYTD 2021. See Southwest Border Encounters, U.S. CUSTOMS AND BORDER

PROT., https://www.cbp.gov/newsroom/stats/sw-border-migration [https://perma.cc/X8HQ-RMV8]

(last updated Jan. 7, 2021). On November 18, 2020, the United States District Court for the District of

Columbia granted a preliminary injunction enjoining the application of the CDC orders to

unaccompanied minors. P.J.E.S. v. Wolf, Civ. Action No. 20-2245 (EGS), 2020 WL 6770508 (D.D.C., Nov.

18, 2020).

7. See generally ALAN M. KRAUT, SILENT TRAVELERS: GERMS, GENES, AND THE IMMIGRANT

MENACE (Basic Books) (1994); Alan M. Kraut, Immigration, Ethnicity, and the Pandemic, 125 PUBLIC

HEALTH REPORTS 123 (2010); Howard Markel & Alexandra Minna Stern, The Foreignness of Germs:

The Persistent Association of Immigrants and Disease in American Society, 80 MILBANK Q. 757 (2002).

8. See Markel & Stern, supra note 7, at 758 (“[T]he social perception of the threat of the infected

immigrant was typically far greater than the actual danger.”).

2021] CO-OPTING CORONAVIRUS, ASSAILING ASYLUM 363