Assessment: U.S. Compliance with the Refugee Convention at its 70th Anniversary

As the world marks the 70th Anniversary of the 1951 Refugee Convention on July 28, 2021, the United States continues to flout its legal obligations under the Convention, endangering lives, failing to lead by example in upholding human rights and undermining refugee law globally. While the Biden administration has taken steps towards ending some Trump administration policies that endangered people seeking refuge, over six months after President Biden took office, his administration has failed to overturn – and in some cases chosen to use – other harmful policies that blatantly violate the Refugee Convention, its Protocol and refugee law enacted by Congress. Gravely concerning, the Biden administration continues to block refugees from seeking asylum at ports of entry and expels refugees to danger at the southern border, while the President and other officials have made public statements that undermine the right to seek asylum. Overall, this assessment concludes that the Biden administration is using or maintaining policies that flagrantly violate the Refugee Convention and, despite steps towards ending some policies, has made insufficient progress to comply with U.S. legal requirements to protect refugees.

The Biden administration has taken some important steps in the past six months towards bringing the United States into compliance with the Refugee Convention and other treaty obligations, including:

• Officially terminating the “Remain in Mexico” program or Migrant Protection Protocols (MPP) and processing into safety over 12,000 people subjected to MPP to await their court proceedings in the United States, but further steps are necessary to bring to safety all individuals subjected to this horrific policy;
• Vacating flawed and illegal rulings of former Attorney General Jeff Sessions, including Matter of A-B-, Matter of A-C-A-A-, and Matter of L-E-A-, in an important step to restore protections for countless refugees, including those persecuted by deadly gangs and perpetrators of gender-based violence;
• Suspending and initiating the process to terminate the Asylum Cooperative Agreements, which the Trump administration used to summarily deport nearly a thousand asylum seekers to Guatemala without access to U.S. protections, though further steps are needed to rescind the regulation authorizing these agreements and to bring to safety asylum seekers sent to danger under this policy; and
• Issuing Executive Order 14013 to rebuild the U.S. resettlement program, rescinding the anti-refugee orders of the previous administration, taking steps to improve equities and efficiencies in processing refugees and Afghan allies, increasing the fiscal year (FY) 2021 refugee admissions goal to 62,500 (after widespread criticism), restoring regional allocations and resettlement based on vulnerability, and exploring opportunities to respond to climate-induced migration.

Despite these important steps, the Biden administration continues to endanger refugees and violate core requirements of the Refugee Convention and Protocol, including:

• The administration continues to wield the Trump administration’s Title 42 policy to block and expel asylum seekers to life-threatening dangers in violation of U.S. refugee law and Articles 3, 31 and 33 of the Convention, failing to restart asylum processing at ports of entry over six months after taking office. Human Rights First has tracked over 3,276 kidnappings and attacks against asylum seekers and migrants expelled or stranded at the border since the Biden administration took office. Rather than restoring asylum processing in compliance with U.S. and international law, President Biden and other administration officials continue to make public statements that undermine asylum and discourage refugees from exercising their legal right to seek protection in the United States.
• The Department of Homeland Security (DHS) and the Department of Justice (DOJ) have not rescinded regulations authorizing the asylum entry ban and third country transit ban, which violate Articles 31, 33 and 34 of the Refugee Convention. While President Biden’s Executive Order directed agencies to review these regulations and the Spring 2021 Unified Regulatory Agenda confirmed U.S. agencies will take action to modify or rescind these rules in November, these illegal and dangerous bans – which endanger refugee lives, separate their families and undermine integration – remain on the books at this time.
• Since President Biden took office, DHS has nearly doubled the number of immigrants jailed in ICE custody, drastically increased the detention of adult asylum seekers, and essentially designated asylum seekers as a detention and deportation priority, flouting Article 31 of the Refugee Convention and Article 9 of the International Covenant on Civil and Political Rights. Though the administration has made efforts to reduce prolonged detention of families, its jailing of adults, including asylum seekers, is inhumane and violates international law.
• DHS has not yet launched effective and proven community-based case support inititives for asylum seekers awaiting court hearings, instead subjecting them to detention and invasive ankle shackles.
• The administration has made insufficient progress in improving the significant operational, vetting, and processing reforms that merit urgent attention to enable the administration to resettle as many refugees as possible this year and next. In particular, family reunification cases, including Priority 3 and I-730 (follow-to-join) caseloads, face years-long delays.

On May 19, 2021, the U.N. Refugee Agency’s (UNHCR) Assistant High Commissioner for Protection warned that attempts to deny asylum seekers access to territory at a country’s borders … jeopardize the safety of those in need of international protection and “threaten the long-respected refugee protection regime,” noting that: “It is ironic, that, as we celebrate the 70th anniversary of the Refugee Convention, attempts are being made to weaken its principles and spirit.” The very next day, in a rare public statement explicitly directed at the United States, the U.N. High Commissioner for Refugees urged the United States to “swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”

The Biden administration must swiftly restore U.S. adherence to the Convention and its Protocol. Compliance with refugee law is not an option that can be evaded in the face of political fears of xenophobic, racist rhetoric. Instead, the administration should ensure the United States welcomes people seeking refuge with dignity, upholding both U.S. refugee law and humanitarian values. In addition, the Biden administration must sharply step up its efforts to restore the U.S. refugee resettlement program by welcoming as many refugees as possible this fiscal year under the new refugee admissions goal and honoring President Biden’s promise to rebuild the program. In prior blueprints, papers, and public letters, Human Rights First and other organizations have detailed recommendations for a humane, fair and effective asylum system.

Background

In the wake of World War II, the United States played a lead role in drafting the Refugee Convention, which specifies key protections for people forced to flee persecution. By later acceding to the Refugee Protocol, the United States promised to abide by the Convention’s legal requirements, including its non-refoulement prohibition against returning refugees to places where their lives or freedom are at risk.

The U.S. Congress subsequently enacted the Refugee Act of 1980, incorporating the Convention’s definition of a refugee and creating asylum and resettlement in U.S. law to protect refugees. But beginning in 2017, the Trump administration launched a barrage of policies that blatantly violated U.S. legal obligations under both the Refugee Convention and U.S. refugee law. As a candidate, President Biden promised to uphold the right to seek asylum and end the Trump administration’s detrimental asylum policies within his first 100 days in office. In a February 2, 2021 executive order, President Biden affirmed that his administration would “restore and strengthen” the U.S. asylum system. However, the Biden administration has continued to use, and failed to rescind, Trump-era policies that eviscerate protections for refugees and violate the Refugee Convention.

Metrics to Measure Compliance with Refugee Convention

As Human Rights First outlined in its May 2021 paper, in order to report on the Biden administration’s progress or failure to uphold US legal commitments under the Convention, the organization has been monitoring key metrics including whether the Biden administration has taken steps to:

• Restart U.S. asylum protections at the southern border consistent with refugee law and end the use of Title 42 public health authority to block and expel asylum seekers;
• Fully end the Remain in Mexico program, implementing additional wind-down steps and bringing asylum seekers – including those denied protection under the flawed policy – into the United States;
• Rescind the asylum transit and entry bans which will, if not ended, return refugees to persecution and life-threatening dangers, separate families, and undermine integration;
• Restore protections the Trump administration sought to end for refugees persecuted by deadly gangs and perpetrators of domestic violence, vacating Trump administration Attorney General rulings and making progress towards issuing new regulations;
• Launch legal representation, case support initiatives, and improvements that ensure fair and accurate asylum adjudication, rejecting use of rights-violating detention and barriers to asylum;
• Rescind regulations that curtail access of asylum seekers to work authorization, which prevents asylum seekers from supporting themselves and their families; and
• Increase the number of refugees resettled, expand processing, address backlogs and logjams delaying family reunification and other refugee resettlement, and formally propose a goal of resettling 125,000 refugees for fiscal year 2022.

Outlined below is our assessment of the Biden administration’s progress and lack of progress in upholding U.S. commitments under the Refugee Convention and its key provisions. We have measured the administration’s progress with the following metric:

► Steps taken toward upholding Refugee Convention

► Insufficient improvement to comply with Refugee Convention

► Continuing serious violations of Refugee Convention

In addition to policies addressed in this assessment, there are additional Trump administration policies that violate or undermine U.S. compliance with the Refugee Convention, its Protocol and U.S. refugee law, and Human Rights First has urged the Biden administration to end all of these policies.