Washington International Law Journal


COVID-19 restrictions on access to asylum likely violate non-refoulement obligations under international and federal law, and while they are extreme, they are not unique. There is a small but growing body of scholarly literature that rightly argues that such policies are pretextual covers used to enact restrictive immigration policy goals, but these arguments generally arise from an ahistorical perspective. This article positions restrictive COVID immigration policies in a broader historical context and argues that the United States has a long history of weaponizing fear of disease and contagion from migrants to justify restrictive immigration policies. The article offers a historical view both to demonstrate and question this long pattern of dangerous, xenophobic behavior, and to caution against using such blunt and sweeping policies in the future. Part I describes various COVID-19 border closure policies and the ongoing public health and refugee policy discussions surrounding such policies, with a particular focus on United States law. Part II then provides an account of international and United States non-refoulement obligations. Part III situates the current policies within a broader historical framework, providing examples of earlier proposed and enacted immigration policies that sought to restrict migration into the United States on public health grounds.

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