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Trump immigration order brings new debate: Is suspending migration to the United States about public health — or politics?

“There’s effectively no asylum being offered at the land border right now.”

SHARE Trump immigration order brings new debate: Is suspending migration to the United States about public health — or politics?

A view of the Rio Grande, Nuevo Laredo, Tamaulipas, Mexico (left) and Laredo, Texas, (right) Wednesday, Aug. 21, 2019, from International Bridge No. 2.

Edward A. Ornelas, For the Deseret News

SALT LAKE CITY — On Monday night, President Donald Trump announced on Twitter that he planned to temporarily suspend all immigration to the United States in an effort to protect American jobs and prevent the spread of COVID-19. If implemented, the measure would be the most restrictive immigration policy to date of an administration that has long endeavored to aggressively crack down on migration.

“In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” Trump wrote on Twitter, “I will be signing an Executive Order to temporarily suspend immigration into the United States!”

On Tuesday, President Trump clarified that the executive order will last 60 days, will apply only to people seeking green cards, and won’t affect workers entering the country on a temporary basis. He signed the order Wednesday afternoon.

During the past month, the Trump administration has cited the COVID-19 outbreak as a justification for unprecedented restrictions on migration, measures that have particularly affected asylum-seekers and unaccompanied minors. In recent weeks, the United States has expelled more than 6,000 migrants, using new emergency powers enabling the federal government to turn border crossers away, according to new Customs and Border Protection data

The emergency powers were granted by a public health order issued by the Centers for Disease Control and Prevention that went into effect March 21, which gave the U.S. government the power to suspend the migration of non-U.S. citizens or lawful residents to the U.S. at the northern and southern borders.

Asylum-seekers and unaccompanied minors are entitled to due process protections under U.S. asylum law. But citing the CDC rule, border officials are bypassing these protections and expelling migrants, returning migrants of all ages back to Mexico in an average of 96 minutes, The Washington Post reported.

The public health crisis brought about by COVID-19 may have given the Trump administration its best opportunity yet to put in place some of the measures it had been seeking to implement long before the crisis hit, according to Christopher Wilson, the deputy director of the Mexico Institute at the Wilson Center, a nonpartisan policy think tank based in Washington, D.C.

“At the crux of the issue is one question,” said Wilson. “Are these temporary measures designed to respond to an acute public health crisis, or at their core are these really just measures that complete the immigration policy of the Trump administration and take it to its most extreme implementation?”

Is it legal to expel asylum-seekers?

Under the new CDC rule, the Trump administration has allowed border officials to expel asylum-seekers — people who say they are fleeing persecution in their home country. 

Under the Refugee Act of 1980, the United States is obliged by law to recognize valid asylum claims, and asylum-seekers who present themselves at the border are normally entitled to legal representation and a chance to appear before a judge to determine if they will be granted protected status in the United States.

But now, migrants who make asylum claims are not being given a “credible fear screening” to determine whether their claim is legitimate, and are not being given a lawyer or a court date. Customs and Border Protection are not testing migrants for signs of illness before expelling them, according to the Post

“There’s effectively no asylum being offered at the land border right now,” said Sarah Pierce, policy analyst at the Migration Policy Institute.   

In addition, since March 21, the U.S. government has expelled more than 299 unaccompanied minors, Customers and Border protection told Axios.

Under normal conditions, underage migrants who arrive in the United States without a parent are protected by U.S. anti-trafficking laws, and usually are housed in Department of Health and Human Services shelters until they can be safely placed with family members or guardians. But under Trump’s orders, minors are being removed from the country, the Post reported.

On April 3, Customs and Border Protection did not refer any children to shelters run by the Department of Health and Human Services’ Office of Refugee Resettlement, the first time in recent memory that has occurred, the Post reported.

“The Trump administration is definitely violating the Trafficking Victims Protection Act,” said Pierce.

The CDC’s rule is based on a provision of the 1944 Public Health Service Act that authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. The law was originally intended to regulate the screening of people and goods upon entering the United States for diseases, and policies for quarantining those who were ill before allowing them to enter, wrote Lucas Guttentag, a professor of law at Stanford University, in a recent essay.

But the provision was never intended to be interpreted as grounds for expelling immigrants preemptively as a whole group, he argued.

In fact, when the law was first proposed in 1892, an early draft actually did include a provision that would allow the president to “suspend immigration” as a supplement to quarantine authority. But, in the end, the reference to immigration was eliminated in response to concerns that all travelers — including U.S. citizens — could carry diseases and that immigrants “should not be singled out or stigmatized.”  

“Nothing indicates that the law was intended to authorize creation of an alternative immigration enforcement system or implied ground of exclusion, much less to authorize deportation or expulsion,” wrote Guttentag.

Are migrants a threat to public health?

The CDC order is based on a fundamental premise: that migrants entering the United States could pose a threat to the health of the American public. 

The CDC order drew attention to the cramped, under-resourced nature of the migrant detention facilities and the inability for detainees to effectively social distance while waiting for their cases to be processed. In such conditions, detainees may spread COVID-19 to one another, the order stated, as well as to border protection officers who work in the facilities.

As of April 1, the ICE website reported 11 confirmed COVID-19 cases in detention centers — six detainees and five staff.

“Every week, our border agents encounter thousands of unscreened, unvetted and unauthorized entries from dozens of countries. And we’ve had this problem for decades,” Trump said on March 20. “(Du)ring a global pandemic, they threaten to create a perfect storm that would spread the infection to our border agents, migrants and to the public at large.”

Zach Berger, an associate professor at Johns Hopkins University School of Medicine, recently warned against the public health risks associated with holding migrants in detention during COVID-19, describing conditions in border facilities as “squalid,” lacking sufficient bathrooms, hand soap, clean clothing and personal hygiene supplies.

“There are no trained health care providers on staff,” he stated. “We have no idea who’s testing (for COVID-19) or if there’s testing. We don’t know how many cases have been diagnosed, and we won’t know the mortality rate. I can paint very dark scenarios which might come to pass, but we probably won’t know until afterward.”

Christopher Wilson with the Wilson Center says he believes there is a legitimate public health risk associated with continuing to hold migrants in detention facilities during the COVID-19 outbreak.

“I’m sympathetic to the public health concern of having a bunch of migrants who have undergone very little in the way of health screenings being put in holding cells in large groups which is absolutely what can happen when significant numbers of migrants are apprehended at the U.S.-Mexico border,” he said. “That’s a real problem.”

But physician Hannah Janeway, a director of the Refugee Health Alliance, who has been in Tijuana, Mexico, working closely with migrant shelters to prepare for the virus, said the United States is in part to blame for the build-up of migrants in large groups at the border, which she says can be attributed to a number of U.S. immigration policy decisions.

Those include the lack of adequate numbers immigration judges to process asylum claims quickly, the decision to hold asylum-seekers in facilities rather than parole them and allow them to be housed with family until their court hearing, and the Remain in Mexico policy which has blocked migrants from crossing the border to have their asylum claims processed on U.S. soil and forcing them to live in migrant shelters at the border while they wait — where they are now acutely vulnerable to the spread of COVID, she said.

“When you take an infectious disease like COVID that is extremely very violent and spreads very quickly in conditions like the ones that people are being forced to live in by these policies, what you end up getting is people who are trapped between the dangerous conditions they fled from, which is why they’re seeking asylum, and a wall that they can’t cross because of these policies, and there’s nowhere for them to go except wait for this pandemic to descend upon them in a city that already doesn’t have good public health resources,” she said.

Janeway also wonders why, if public health is the primary driver behind the CDC rule, the U.S. government is still letting U.S. citizens cross the border regularly for work and other purposes. 

“If this policy was really designed to prevent the spread of disease, then the United States wouldn’t be letting U.S. citizens and permanent residents to go in and out of Mexico which is what it’s continuing to do,” she said.

Yael Schacher, a historian and senior U.S. advocate for Refugees International, agrees.

“We’re not effectively sealing our border against COVID, we are effectively sealing our border against asylum-seekers,” she said.

The CDC order indicates that the migration restrictions are temporary, but Pierce with the Migration Policy Institute doubts that the Trump administration will be eager to lift the restrictions, even after the crisis has receded.

“Considering this is something that the administration has been working towards for years, I do not expect the administration to walk it back willingly,” she said. “Once the crisis is obviously over, I fully expect that how, when and if this ends, it’ll be at the hands of a federal court judge.”