MSF reaffirms opposition to US rule using public health concerns as pretext to shut out asylum seekers

Doctors Without Borders Médecins Sans Frontières (MSF) submitted the following comment in opposition to the rule initially proposed by the US Department of Justice (DOJ) and the Department of Homeland Security (DHS) and posted in the Federal Register on July 9, 2020: “Security Bars and Processing”— RIN 1615-AC57 / USCIS Docket No. 2020-0013; RIN 1125-AB08 / A.G. Order No. 4747-2020. This rule was scheduled to take effect on January 22, 2021, and then delayed until December 31, 2021. The Biden administration is currently seeking public comment on “whether that rule represents an effective way to protect public health while reducing barriers for non-citizens seeking forms of protection in the United States." MSF is calling for the Security Bars rule to be revoked. 

Doctors Without Borders/Médecins Sans Frontières (MSF) submits this comment to object to the rule proposed on July 9, 2020, that uses public health concerns as a pretext to bar asylum seekers from the United States. As an international, independent medical humanitarian organization, MSF is asking the Department of Homeland Security (DHS) and Department of Justice (DOJ) to rescind the proposed rule in its entirety.

MSF submitted a comment voicing its objection to the proposed Security Bars and Processing rule in August 2020. In our comment, we opposed the instrumentalization of the COVID-19 pandemic by the Trump administration to undermine the US asylum system. We noted that the rule would deny protection to individuals seeking safety in the US and force them back to places where they may face violence or persecution. We also expressed our view that the US government is perfectly capable of simultaneously preserving protections to asylum seekers while safeguarding public health. Maintaining these same concerns, MSF welcomes the Biden administration’s review of the proposed rule as part of its stated effort to expand pathways for protection in the US. The lives and safety of thousands of vulnerable people seeking asylum depend on withdrawing this rule.

MSF provides medical assistance to people affected by conflict, epidemics, disasters, or exclusion from health care. Since 2012, MSF has provided medical and mental health care to thousands of migrants and asylum seekers on the migration routes through Mexico to the US. A large percentage of the patients we have treated along the route have fled their home countries because they fear for their lives. They have a right to be heard and to be given a chance to find safety.

Since the beginning of the COVID-19 pandemic, we have seen the US government wield public health as a cudgel with which to break the asylum system. The misuse of Title 42 authority to block and expel thousands of asylum seekers to danger in Mexico and other countries is a case in point. The continued implementation of the Title 42 expulsion policy by the Biden administration is deeply disappointing and in direct opposition to its declared objective of rebuilding the US asylum system. Retaining the proposed rule would further entrench Trump-era efforts to slash protections for asylum seekers instead of reversing these harmful policies.

The proposed rule eliminates humanitarian protections for most people seeking safety in the US relying on specious public health arguments with no basis in medical fact. Based on unsound reasoning, it creates bars to asylum and withholding of removal protections by labeling those seeking safety in the US as threats to national security on public health grounds. These bars violate US and international law by enabling the return of asylum seekers to potential danger, torture, and persecution.

The rule grants Department of Justice (DoJ) and Department of Homeland Security (DHS) officials—with no medical or public health training—the authority to make health determinations with profound implications for access to asylum and humanitarian protections. It empowers immigration authorities to deny protection to those who appear to be infected and those who transit through countries where COVID-19 is prevalent, without regard to actual exposure, risk, or health status. It also ignores the reality that COVID-19 transmission in the US has been and remains among the highest in the world. Stopping asylum seekers at the border has not had a positive impact on the epidemiological curve in the US, but it has had dangerous and even deadly consequences for some of those forced to remain in Mexico.

In addition to being discriminatory and categorical, the rule is counterproductive from a public health standpoint. MSF has responded to countless disease outbreaks around the world for almost 50 years, and we know that public health measures work best when they are inclusive. They fail when vulnerable people, like migrants and asylum seekers, are excluded. The exclusion of specific populations from health care does not prevent disease, but it does prevent appropriate health-seeking behaviors. An inclusive approach to asylum that respects the dignity of all persons would also protect public health by ensuring that people enter the US can be appropriately followed by the public health system. An inclusive approach would allow the early identification and rapid treatment of ill persons as well as timely vaccination efforts.

As it has done within the US, the Biden administration must bring back evidence-based public health measures to the border. This administration must put an end to the false narrative of asylum seekers as vectors of disease. To ensure the health and safety of both asylum seekers and those processing their claims, the US government can employ a range of effective public health measures. These include the use of open, well-ventilated spaces—preferably shaded, outdoor spaces—for processing asylum seekers; processing those seeking asylum as rapidly as possible to limit the risk of exposure; and quickly paroling asylum seekers into the US and avoiding the use of detention and holding in other congregate settings. These actions would not only benefit asylum seekers but would also help protect the people working at the border and US public health interests.

Rather than enact more rules that further dismantle the US asylum system, the US government must dedicate the resources necessary to safely and rapidly process asylum seekers at its border in line with US and international law. The Security Bars and Processing rule must be rescinded.