The U.S. Department of Homeland Security (DHS) has allowed a regulation to go into effect that will require asylum officers to consider public health emergencies caused by a communicable disease when deciding whether an alien is barred from asylum or withholding of removal. An alien can be barred from both asylum and withholding of removal if an asylum officer determines that they are “a danger to the security of the United States” under longstanding immigration statutes. The rule, which was originally prompted by the Covid-19 pandemic, went into effect on December 31, 2025.
According to the new regulatory text, if a communicable disease has triggered an ongoing declaration of a public health emergency under federal law, then an alien is ineligible for asylum if that alien (1) exhibits symptoms indicating that he or she is afflicted with the disease, per guidance issued by the DHS secretary or attorney general; or (2) has come into contact with the disease within the number of days equivalent to the longest known incubation and contagion period for the disease.
Moreover, if the secretary of Homeland Security and the attorney general, in consultation with the secretary of Health and Human Services, determine that the “physical presence … of aliens who are coming from a country or countries … where such disease is prevalent or epidemic … would cause a danger to the United States”, then any alien who is within the “number of days equivalent to the longest known incubation and contagion period for the disease” will also be found ineligible for asylum or withholding under the same statutory grounds. The grounds for mandatory denial described above, however, do not apply to aliens applying for asylum or withholding of removal upon return from Canada to the United States and pursuant to the Agreement Between the Government of the United States and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the United States and Canada’s safe third country agreement).
The rule was originally finalized during the first Trump administration in December 2020, but was slated to become effective on January 22, 2021 (two days into the Biden-Harris administration). The Biden-Harris administration delayed the rule’s effective date, however, multiple times. DHS stated that the delays were necessary because of a preliminary court order against a different but related regulation (referred to commonly as the “Global Asylum rule”) and policy conflicts with the Biden-Harris administration’s asylum agenda.
The second Trump administration, however, withdrew a handful of provisions that were included in DHS’s December 2020 version. Most notably, DHS chose to exclude language authorizing DHS to return aliens who were ineligible for asylum to third countries (countries other than the United States and their country of origin). In its December 2025 Federal Register notice, DHS stated that it was withdrawing these provisions to avoid confusion. Given the agency’s increasing use of third-country removals, however, the department may have concluded that express regulatory authorization to conduct third-country removals is unnecessary.