The current pandemic illustrates conflicts that can arise between individual rights and the needs of the larger population.  The conflict is seen clearly in the context of immigration, as individuals’ ability to cross borders is increasingly restricted.  The Centers for Disease Control’s new restriction on border crossings, however, goes beyond public safety to target the most vulnerable immigrants – asylum seekers and unaccompanied minors. In doing so, it violates U.S. law and international obligations.

The new restriction comes not from immigration authorities, but through an interim final rule and accompanying order from the CDC. Originally in effect until April 20, the order has now been extended until the CDC determines “that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger,” that is, indefinitely. The order “suspends the introduction” of “covered persons” across the U.S. southern and northern borders, but does not apply to U.S. citizens, permanent residents, or persons holding visas.  In other words, it applies principally to persons coming to our border to seek asylum.  It makes no exception for unaccompanied minors.

The CDC explains that the number of people seeking admission and the time required to process them in congregate areas present too great a risk of coronavirus transmission at the border. Thus, they ordered that “covered persons” be moved from the United States as rapidly as possible.  The Department of Homeland Security, on the CDC’s behalf, already has expelled more than 20,000 adults and children within two hours of their arrival.

Advocates raise concerns about the order, including whether the CDC can create what is effectively a deportation process outside existing statutory framework and whether the perceived risk arises from DHS processes rather than from the possibility of transmission.  But the most critical concern is the order’s failure to consider the United States’ obligations to asylum seekers.

The absence of protection for these vulnerable immigrants ignores critical rights and obligations.  Individuals at our borders have a statutory right to apply for asylum. We are also prohibited under international treaties from returning asylum seekers to places where they would be in danger on account of certain protected grounds.  Nor can we return an individual to a place where he would be in danger of torture.  Our statutes also mandate protections for unaccompanied minors.

Ordinarily, the United States fulfills these obligations through the “credible fear” process, under which individuals who fear return are interviewed by an asylum officer whose decision is subject to review by an immigration judge. As the CDC order is being applied, however, DHS is returning asylum seekers and unaccompanied minors at our southern border without inquiry or the opportunity to request asylum. The one exception — included in Customs and Border Patrol guidance but not in the CDC order — is to refer to U.S. Citizenship and Immigration Services individuals who spontaneously state a “reasonably believable” fear of torture.

The U.N. High Commissioner for Refugees has recognized that, while states may temporarily close their borders to limit the transmission of coronavirus, such measures must be “non-discriminatory, necessary, proportionate, and reasonable.”  In particular, blanket measures precluding the admission of asylum seekers without measures to protect against returning them to harm are a breach of international law.

The CDC expulsion order is one more step in the Trump administration’s relentless efforts to limit asylum. These efforts include the Remain in Mexico program, under which the United States has returned tens of thousands of asylum seekers to Mexico to await their immigration hearings, and prohibition on asylum for applicants who traveled through a “safe third country” without first seeking and being denied asylum there. Moreover, a series of Attorney General decisions have overturned precedent to provide narrower interpretations of asylum.

Public safety and the safety of immigration officers must certainly be considered.  But there are humane alternatives to a blanket expulsion order, including health screening, testing, quarantine, and self-isolation. Using these measures to mitigate the risk of transmitting coronavirus would allow the United States to protect public health while also complying with our immigration laws and international obligations.

Evangeline Abriel is a clinical professor of law at Santa Clara University School of Law, where she directs the Immigration Appellate Practice Clinic.