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Sabi Ardalan
Clinical Professor of Law and Director, Harvard Immigration and Refugee Clinical Program

Sixty people in bunk beds in one room. A communal bathroom. Time in the ‘hole’ – or solitary confinement – if sick. That is how one asylum-seeking client describes the situation in immigration detention during COVID-19. Held in private, for-profit detention centres for more than 16 months, this client has difficulty breathing, a racing heart, and other complications from a stab wound he suffered before fleeing his home country. In recent weeks, he has described constant and debilitating body aches and pain. But despite repeated requests to see a doctor, he has not received any medical attention. 

This client’s case is just one example of the disproportionate and devastating impact of the COVID-19 pandemic in the United States – and, as important, the Trump administration’s malicious response to it – on refugees and asylum seekers.  

Lawsuits challenging immigration detention during COVID-19 have met with varying degrees of success across the country. The judge who heard this client’s case has thus far refused to order his release, convinced by the warden that social distancing was possible. Some judges have, however, mandated the release of immigrants from detention, citing the rapid spread of COVID-19. Others have ordered Immigration and Customs Enforcement to assess whether medically vulnerable immigrants should be detained. But this piecemeal approach has left many of the approximately 50,000 immigrants detained each day in the US at risk of contracting the virus.  

For asylum seekers who are not detained, circumstances are also dire. Many face significant barriers to obtaining medical treatment, collecting unemployment or other forms of financial assistance, and acquiring basic necessities, from food to toilet paper and diapers. Asylum seekers are often in jobs that place them at the greatest risk of contracting COVID-19. My clients work as aides to the elderly and sick, as childcare providers, as janitors and landscapers, and in food services – professions which do not allow them to work from home.

Language barriers and fears of immigration enforcement have prevented many from seeking the medical care they so desperately need. A former client’s daughter called and texted frantically because her mother had a high fever for days and couldn’t move. She was losing hope after trying unsuccessfully to treat her with home remedies since she could not reach her doctor. A community activist described pleading with an undocumented friend to call the 911 emergency number after she spent the night gasping for breath. COVID-19 has put into stark relief fundamental flaws in the safety net and systemic and structural racism which permeate access to health care in the US, with people of colour dying of the virus at disproportionately higher rates

And amid the pandemic, immigration court filings continue, as do hearings for detained immigrants, including unaccompanied children, and deportations. Calls by the national immigration judges union, prosecutors, attorneys, and scholars, alike, to shut the immigration courts and stop immigration enforcement, consistent with public health protocols, have thus far gone unheeded.  

As part of its ongoing efforts to restrict immigration to the US, the administration has used the pandemic to close the borders with Canada and Mexico, with only limited exceptions for such ‘essential travel’, such as delivery of food and medicine. An order issued in March by the Centers for Disease Control and Prevention (CDC) led to the immediate expulsion of asylum seekers and unaccompanied children who seek to enter the US without documentation from Mexico or Canada. In just two weeks following the order, US Customs and Border Protection summarily deported about 10,000 people to Mexico. 

The CDC order and accompanying rule rely on an arcane section of the Public Health Service Act of 1944 authorizing the Surgeon General to suspend ‘introduction of persons’ into the United States on public health grounds. The order purports ‘to protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019 (COVID–19)’. 

In reality, the CDC order and emergency Department of Health and Human Services rule are merely another unlawful gambit in the Trump administration’s attempts to eviscerate asylum protection. The order builds, for example, on the unlawful Migrant Protection Protocols, informally known as the Remain in Mexico policy, through which the US has already forced more than 60,000 asylum seekers to wait in Mexico for their day in US immigration court.

The summary expulsions under the CDC order fly in the face of the non-refoulement obligation under the Refugee Act of 1980, which codified into US law the international legal duties contained in the 1951 Refugee Convention and its 1967 Protocol. The statute and treaties both require that the US not return individuals to countries where their lives or freedom would be threatened on account of their race, religion, nationality, political opinion or membership in a particular social group. 

Moreover, despite the Trump administration’s misguided efforts to declare otherwise, US law specifically provides that people can apply for asylum if they are ‘physically present’ in the US, ‘whether or not [they arrived] at a designated port of arrival … irrespective of [their] status’. Advocates, including the Harvard Immigration and Refugee Clinical Program where I work, have called for a halt to these expulsions in light of US obligations under both domestic and international law to provide protection to individuals who fear return to persecution or torture. 

And while the country struggles with the pandemic, the administration on May 1 published yet another attack on the rights of asylum seekers – an agreement with Honduras, signed in September 2019, to transfer asylum seekers from the US to Honduras. This agreement, similar to the ones with Guatemala and El Salvador, fails to provide asylum seekers with the effective protection the Refugee Convention requires. As ongoing litigation challenging the Guatemala agreement makes clear, such transfer agreements put asylum seekers at grave risk of refoulement in violation of the Refugee Convention and the Convention against Torture, along with the US statute and regulations incorporating those treaties into domestic law.  

You’d be forgiven if you wondered how the administration is finding time to pursue so many dehumanising and deadly policies even as the US now leads the world in both confirmed cases of COVID-19 and total deaths. Failure to develop robust testing and contact tracing measures has freed up a lot of time. Meanwhile, our clients continue to fight for their lives.

The constant barrage of anti-immigrant rhetoric and rollback of asylum seekers’ rights during COVID-19 is immoral and illegal. We need to protect the rights of the world’s most vulnerable people during this pandemic, not use the pandemic as an excuse to trample on them.   

Professor Sabi Ardalan is Clinical Professor of Law and Director of the Harvard Immigration and Refugee Clinical Program
@HLS_Immigration


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