Monday, September 26, 2022

Immigration Article of the Day: Persecuted and Removed: Migrants’ Potential Challenges to Expulsion under the U.S. Public Health Code by Mark Rook


Persecuted and Removed: Migrants’ Potential Challenges to Expulsion under the U.S. Public Health Code by Mark Rook


Congress passed the Public Health Service Act in 1944. The executive branch has used Section 362 of this Act, now codified as 42 U.S.C. § 265, to expel migrants seeking access to the United States since the onset of the ongoing COVID-19 pandemic. Asylum seekers have disputed the enforcement of 42 U.S.C. § 265 in domestic courts. U.S. federal agencies maintain that their enforcement actions are permissible.

The United States enforces the principle of non-refoulement as part of the Immigration and Nationality Act. The principle of non-refoulement, established by the Convention and Protocol Relating to the Status of Refugees, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prohibits a country from returning asylum seekers to countries where they would endure persecution based on their “race, religion, nationality, membership of a particular social group or political opinion.” The President of the United States has also signed international agreements and treaties that grant a universal right to health, even to individuals who have not yet entered the country. Furthermore, this Note contends that the U.S. government may have violated an international right to asylum by preventing non-citizens from being able to seek relief at the border.This Note argues that the United States has violated the principle of non-refoulement in its implementation of 42 U.S.C. § 265 and that an asylum seeker would likely succeed in a challenge to the statute in a domestic court on this basis because non-refoulement is a domestically binding obligation. A challenge based on the right to asylum, however, may not succeed because domestic courts have not yet recognized an international right to seek asylum. Furthermore, this Note also explains that a challenge to 42 U.S.C. § 265 based on international health law would not succeed because the United States does not view the relevant treaties as legally binding, and no claim on those bases has ever succeeded in a domestic court.


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