COVID-19, Asylum, and False Binaries of Detention

Katherine R. Peeler and Scott H. Podolsky

Aurelia had traveled more than 2,000 miles, mostly on foot, with her 7-year-old daughter, Heidy, to the Mexico-Arizona border from Guatemala. In her 24 years, Aurelia had endured a life of poverty, rape, and death threats to her and her daughter by her partner. Throughout, their would-be protectors—the police—did nothing. So they fled, seeking asylum in the United States. That was in 2017. Today, if Aurelia and Heidy—not their real names—were to arrive at the southern border requesting asylum, they would be turned away. The United States has all but closed its borders to those who seek its refuge under the guise that it is necessary to maintain public health.

On 20 March 2020, the Centers for Disease Control and Prevention (CDC) issued an order suspending the “introduction of certain persons from countries where a communicable disease exists.” The authority for this order comes under the Public Health Service Act, which authorizes the Director of the CDC to “suspend the introduction of persons into the United States when the Director determines that the existence of a communicable disease in a foreign country … creates a serious danger of the introduction of such disease into the United States … that a temporary suspension of such introduction is necessary to protect the public health.” At first glance, this makes sense. We are in the middle of an uncontrolled pandemic. To protect public health, all possible risk factors for increased spread must be controlled, one of which is the entry of persons who may unwittingly be SARS CoV-2 positive, the causative agent of COVID-19.

While SARS-CoV-2 is a novel coronavirus, quarantine and refusal of entry are not novel measures. The term quarantine, deriving from the Italian word for “40”, dates to 14th and 15th century plague concerns and the requirements for ships in Venetian ports to be detained for 40 days before disembarkment. Quarantine in America dates to the 1647 attempt by the Massachusetts Bay Colony to quarantine ships from the West Indies, where plague raged. Use of quarantine was controlled locally for two centuries, focused on incoming ships with contagious scourges as smallpox, cholera, and yellow fever. In 1878, after a particularly catastrophic yellow fever outbreak originating in New Orleans, Congress passed the “Act to Prevent the Introduction of Contagious or Infectious Diseases into the United States,” shifting quarantine powers to the federal government.

By 1893, the focus shifted from commercial ships to those bearing immigrants, with Congress passing an “Act Granting Additional Quarantine Powers and Imposing Additional Duties upon the Marine-Hospital Service.” Throughout the late 19th and early 20th century waves of immigration, discrimination clearly tracked along racial, ethnic, and class lines, especially with respect to Eastern European Jews, Asians, and Mexicans. In 1944 Congress passed the Public Health Services Act, further formalizing the authority of the federal government “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions.” In 1967, this authority shifted to the National Communicable Disease Center (now the CDC), where it remains.

A closer look at the CDC order reveals its specious logic—and perhaps its ties to older biases. The order specifically targets individuals arriving to land or coastal ports of entry through Mexico and Canada without valid travel documents, that is, immigrants seeking asylum or other legal protections. Travel through those ports related to trade, education, or commerce continues, through which COVID-19 is certainly spreading. The CDC argues that these immigrants pose an inherently higher risk to public health because their processing necessitates at least a temporary stay in a congregate facility—a detention center. The CDC’s official interviews with the Department of Homeland Security (DHS) reveal that detention centers are not presently able to deploy the necessary public health interventions such as the provision of personal protective equipment, keeping people physically separated, or screening those with COVID-19 symptoms.

But the choice between mitigating the spread of COVID-19 and offering protection to those who seek it is not binary. US Customs and Border Patrol has the discretion and legal authority to parole people seeking asylum or other protection, making detention unnecessary. Almost 92% of immigrants awaiting asylum hearings on the Mexican side of the border have close family or friends living in the United States. Thus, most people could be processed safely at US borders, then paroled to people they already know where they could stay in quarantine. Public health experts agree that the CDC’s order targeting asylum-seekers is discriminatory and does not protect public health. Alternative evidence-based solutions to processing people on arrival exist and would preserve non-refoulement and the right to seek asylum as guaranteed by the 1980 Refugee Act, which was signed by President Carter 40 years ago.

Over 20 countries in Europe recognize the importance of operating a safe system for asylum during this pandemic. Since the original CDC order was placed, DHS has expelled more than 21,000 people seeking protection at US borders, placing the country  in violation of the Refugee Act and the 1967 Refugee Protocol. More than 1000 immigrants expelled have been unaccompanied children many of whom will have experienced assault during their journey to the United States. In closing the borders, these children are denied due process in violation of the bi-partisan 2008 Trafficking Victims Protection Act—leaving them as easy prey for continued assault in border camps. These policies are pouring gasoline on the fire of one public health crisis under the false pretense that a different fire at home is being mitigated.

Right now, thousands of Aurelias and Heidys are finishing their journeys north only to realize their last hope for safety is gone. The current discriminatory policy is steeped in history but not in evidence. In this pandemic, we must learn from the former and make decisions based on the latter.

Katherine R. Peeler, MD is Instructor of Pediatrics and Global Health and Social Medicine at Harvard Medical School, Attending Physician in the Division of Medical Critical Care at Boston Children’s Hospital, and Medical Expert for Physicians for Human Rights, Boston, USA. Email:

Scott H. Podolsky, MD is Professor of Global Health and Social Medicine at Harvard Medical School, and Director at the Center for the History of Medicine at Francis A. Countway Library of Medicine, Boston, USA.