Indefinite Suspension of Protections for Asylum Seekers and Unaccompanied Children Under May 19, 2020 Order by the Centers for Disease Control and Prevention

May 27, 2020

Dear Acting Secretary Wolf and Director Redfield:

Our 262 legal, faith-based, humanitarian, human rights, and community organizations, many of which advocate on behalf of asylum seekers, immigrants, unaccompanied children, and survivors of domestic violence and sexual assault, write to strenuously object to the administration’s exploitation of the COVID-19 pandemic as a pretext to implement indefinite, illegal and life-threatening restrictions on humanitarian protections at the southern U.S. border.

Public health experts have concluded that the March 20 order from the Centers for Disease Control and Prevention (“CDC”), which the Department of Homeland Security (“DHS”) is using to eviscerate Congressionally mandated and treaty-based protections for children, families, and adults seeking safety at the border, “is based on specious justifications and fails to protect public health.” On May 19, CDC recklessly extended the much-criticized order indefinitely – fulfilling the administration’s long-sought goal of eliminating these life-saving protections.

In just six weeks, DHS used the CDC order to block and remove at least 21,000 people – including likely thousands of asylum-seekers and over 1,000 unaccompanied children – expelling them to places where they face risk of kidnapping, rape, and murder, without the legally required opportunity to seek protection in the United States. Under the CDC order, border officers are expelling some Central American children and asylum seekers to Mexico, refusing to accept protection requests from Cameroonian, Cuban, Eritrean, Venezuelan and other asylum seekers, and blocking screenings for asylum seekers returned to Mexico under the so-called Migrant Protection Protocols, including those kidnapped and tortured there. People expelled to their home countries face not only the dangers they initially fled but also increasing levels of domestic violence that may drive more women and children to seek asylum and repressive enforcement of public health measures by governments and armed non-state forces.

These expulsions blatantly violate U.S. law and treaty obligations to protect those seeking humanitarian protection. Members of Congress have written that the administration’s legal justification is “deeply flawed” and “raises serious questions about … the Administration’s respect for the rule of law.” The U.N. Refugee Agency has made clear in legal guidance on COVID-19 that states cannot impose “blanket measure[s]” to block asylum seekers. The administration’s sham attempt to show it meets its legal obligations to refugees by offering fear of torture screenings is absurd. Internal guidance reportedly circulated by DHS indicates that Border Patrol agents are instructed to refer for interviews only those asylum seekers who make an “affirmative, spontaneous” request for protection that is “believable.” As a result, only 59 of the thousands of asylum seekers subject to the CDC order have reportedly even been referred for limited torture screenings; the results are equally farcical – only two people have passed. DHS border officers are not trained in, and should not be, making decisions about asylum. It is also not reasonable to expect survivors of persecution or torture to communicate their fears effectively without prompting to armed, uniformed border officers.

The administration cannot disregard federal laws that explicitly recognize the vulnerability of unaccompanied children arriving at the border seeking protection, many of whom are fleeing trafficking or fear persecution. In April, DHS expelled more than 90 percent of children found at the border without a parent or guardian, transferring only 58 to the authority of the Office of Refugee Resettlement (“ORR”). Expelling these children puts them at risk of being returned to trafficking, abuse, or other violence and violates the Trafficking Victims Protection Reauthorization Act, which mandates that children arriving alone must be transferred to ORR, provided appropriate care and protection, and given an opportunity to have their protection requests considered. During this global pandemic, this legal framework is especially important.

For women and children fleeing domestic violence the administration’s effective elimination of asylum during the pandemic could not have come at a worse time. Danger is rising for abused women and children sheltering at home when home is not safe, including a surge in violence against girls and women in Latin America and the Caribbean. While few women and children suffering from domestic violence will likely reach the U.S. border given pandemic-related restrictions on movement in many countries, we are concerned that those seeking asylum in the United States are now being promptly returned to this danger with no effective legal process.

Last month, hundreds of our organizations warned the administration that these illegal expulsions put the lives of unaccompanied children and asylum seekers in peril. Instead of heeding those warnings, the administration has instead chosen to extend this dangerous injustice indefinitely. We urge DHS to immediately halt expulsions of unaccompanied children and those seeking humanitarian protection and restore the rule of law at our borders. We call on the CDC to rescind its order and allow for the entry and processing of people seeking refuge in the United States.

As public health experts have explained, U.S. agencies can effectively respond to the needs of asylum seekers and unaccompanied children at the border during the pandemic while safeguarding the health of border officers, those seeking protection, and the general public, and upholding U.S. law and treaty obligations. Decisions relating to COVID-19 should be aimed at saving, not endangering lives, and should be driven by evidence-based public health measures and respect for human rights.