COVID-19 public health orders should not target asylum seekers

The recent move to expel 10,000 asylum seekers from U.S. Customs and Border Patrol (CBP) facilities at the U.S.-Mexico border is no act of generosity. These individuals, families and children have left violence and poverty behind them and furtively travelled thousands of miles seeking safety and opportunity in the U.S. For them, there is no way forward, and no way back.

Recently, President Trump issued an executive order to ban immigration to the United States for 60 days, particularly for foreign nationals seeking permanent residence. The order, which was in part intended to protect “American” jobs from immigrants, does nothing to prevent COVID-19, and may actually be detrimental for the economy, adding to the list of migration restrictions made under the guise of public health response.

As COVID-19 statistics skyrocket across the globe, undocumented asylum seekers are particularly at risk. In many ways, this mass expulsion does not change matters for asylum seekers. Whether they are located in informal settlements and shelters in Mexico or confined in detention centers in the U.S., they are at very high risk of contracting COVID-19. There is no possibility of social distancing. 

Countries around the world are closing their borders to those who seek asylum from persecution. Those persons, held in detention while their claims are being judged, are terrified of becoming infected by COVID-19 while waiting for their asylum claims to be heard. If there ever was a time to re-evaluate our treatment of asylum seekers and how we establish and maintain public health standards in detention facilities, it is now. 

Here in the U.S., the “Remain in Mexico” policy has driven thousands of asylum seekers to stay in informal settlements and shelters in Mexico under foul conditions that increase their chances of becoming infected with COVID-19. On March 20, the U.S. government, under Title 42, specifically sections 362 and 365 of the Public Health Services Act, allowed the U.S. Customs and Border Protection (CBP) to turn away asylum seekers at the border, including unaccompanied children, who previously would have been granted entry. The Remain in Mexico policy and this new public health order threaten the future of asylum and refugee law in the U.S. and may worsen the novel coronavirus pandemic.

Paradoxically, by not allowing asylum seekers into the U.S., they would be at reduced risk of infection given the high U.S. prevalence of COVID-19 and the relatively low proportion of asylums being granted by the Trump administration. But this is a short-sighted argument that ignores the international obligation to protect life, including from dangers other than COVID-19. Asylum seekers are sent to dangerous areas where they are overwhelmingly the victims of homicide, assault, rape, kidnapping and torture. Policies that deny asylum exchange the risk of an infection, which we have the public health tools to prevent, for almost certain harm. Rather, asylum seekers should be allowed into the U.S. and other countries, protecting their immediate health and safety, while minimizing their risk of transmission. This brings us to our next point — detention.

Detaining asylum seekers while their cases are adjudicated should be avoided as they are not criminals and do not pose a security risk to the U.S. public. During a pandemic, detention of asylum seekers is a recipe for disaster, not only for those detained, but also for those working in these facilities, as well as the local communities where they are located.

Many detention facilities run by CBP and Immigration and Customs Enforcement (ICE) have been criticized for severe overcrowding, poor sanitary conditions and insufficient medical care. Recent internal Department of Homeland Security (DHS) reports found no access to shower facilities for children; no clean clothes for adults; expired food; dilapidated, moldy and unusable bathrooms at CBP and ICE facilities. Asylum seekers found themselves in a detention system ill-equipped to adhere to CDC’s public health guidelines for detention facilities during the COVID-19 pandemic.

 In the U.S., there have been between 3,000-8,000 detainees in CBP custody at any time, and over one-third are held in “short-term detention” longer than the 72 hours recommended before transfer or release. As the number of asylum seekers and migrants crossing the border has reportedly dramatically declined since the border closures, the number of detainees in CBP has likely declined. The new policy has emptied many CBP facilities but has also deprived detainees of due process, the right to legal review of their asylum claims.

Across the nation, approximately 35,000 individuals are held in ICE custody in facilities that are at capacity or above, and there are more than 3,500 unaccompanied children in Office of Refugee Resettlement (ORR) shelters awaiting a placement that has since been suspended. Several claims have been filed for the release of small groups of vulnerable detainees in many states, but only handfuls have been granted. A federal judge has given the Department of Health and Human Services (HHS) and ICE less than a week to justify keeping children in custody, and threatens to order the release of thousands. A much more drastic reduction of detainees, such as that urged by federal judges, is needed to even aspire to meet public health guidelines.

So far, there have been at least 65 confirmed cases of COVID-19 in ICE detention centers, including 15 staff members and 50 detainees in several states. Four unaccompanied children have tested positive for COVID-19 in ORR shelters in New York. Detention centers have already demonstrated that they are unable to respond to disease outbreaks and some basic health conditions, let alone a pandemic. Some detainees across the country have gone on a hunger strike to protest their mistreatment and fear they are “sitting ducks” during the pandemic.

Municipalities around the world have shown that they can rapidly increase the capacity of health care systems by repurposing idle convention centers or erecting tent camps in open spaces. ICE itself has proposed building quarantine facilities at the border, which if utilized appropriately, could possibly preserve a safe asylum process. Unaccompanied children can be moved more quickly from ORR facilities to foster families. Many asylum seekers have family members willing to sponsor them in the U.S. And for those who don’t, states that are already working on placing other populations without stable housing and formerly incarcerated in secure hotels, can do the same with those seeking asylum.

These and other innovations will help the entire population, nationals and non-nationals alike, by minimizing the consequences of the pandemic through reducing hotbeds of transmission and preventing excess burden on health systems everywhere. Similar methods can be used for those asylum seekers who are able to cross the border into the U.S. and seek protection, while minimizing their risk of contracting COVID-19. 

Failing to uphold asylum and refugee law under the guise of a public health order, while putting those already in detention at increased risk of COVID-19, is not sound public policy in the short or long-term. For the globe to quell this pandemic, countries, communities and individuals must work together. We need to be motivated by evidence-informed policy and principles of justice, which provide for better security than any wall could bring.

Orit Abrahim is a fellow at the Johns Hopkins Center for Humanitarian Health. Dr. Paul Spiegel is a professor of the practice at the Johns Hopkins Bloomberg School of Public Health and director of the Johns Hopkins Center for Humanitarian Health.