Current Developments Public Health as Pretext : the Evisceration of Asylum Law and Protections During a Pandemic

CURRENT DEVELOPMENTS

PUBLIC HEALTH AS PRETEXT: THE

EVISCERATION OF ASYLUM LAW AND

PROTECTIONS DURING A PANDEMIC

PRASHASTI BHATNAGAR*

As the United States continues to grapple with the devastation and grief

caused by COVID-19,

1

asylum-seekers and refugees are forced to navi-

gate the havoc of COVID-19 alongside aggressive attacks on asylum law

by President Donald Trump’s administration.

2

During this pandemic, the

Administration proposed to: categorically deny asylum claims arising out

of gender violence;

3

allow immigration judges to deny asylum-seekers

due process rights such as court hearings and testimony presentation;

4

and impose an exorbitant fee of $975 on immigration-related appeals.

5

The Administration also arbitrarily denied Employment Authorization

Documents (EADs) to asylum-seekers;

6

indefinitely closed the U.S.

border, expelling more than 100,000 people (including over 2,000

* Prashasti Bhatnagar, JD-MPH Candidate, 2022, Georgetown University Law Center and Johns

Hopkins Bloomberg School of Public Health; B.S. Sociology, summa cum laude, 2018, University of

Minnesota Twin Cities. © 2021, Prashasti Bhatnagar.

1. See, e.g., Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020) (declaring a national emer-

gency because of COVID-19); COVID-19’s Historic Economic Impact, in the U.S. and Abroad, JOHNS

HOPKINS UNIV. (Apr. 16, 2020), https://hub.jhu.edu/2020/04/16/coronavirus-impact-on-european-

american-economies/; Denise Lu, The True Coronavirus Toll in the U.S. has Already Surpassed 200,000,

N.Y. TIMES (Aug. 12, 2020), https://www.nytimes.com/interactive/2020/08/12/us/covid-deaths-us.html.

2. See, e.g., Asylum Seekers & Refugees, NAT’L IMMIGR. JUST. CTR., https://immigrantjustice.org/

issues/asylum-seekers-refugees (last visited Sept. 14, 2020).

3. Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,

85 Fed. Reg. 36,264 (proposed on Jun. 15, 2020) (to be codified at 8 C.F.R. pt. 208, 235, 1003, 1208,

1235).

4. Id.

5. Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11,866 (proposed on Feb.

28, 2020) (to be codified at 8 C.F.R. pt. 1003, 1103, 1208, 1216, 1235, 1240, 1244, 1245).

6. Asylum Application, Interview, and Employment Authorization for Applicants, 85 Fed. Reg.

38,532 (Aug. 25, 2020) (codified at 8 C.F.R. pt. 208, 274).

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