Leading by Example or Undermining Protection: U.S. Compliance with the Refugee Convention at its 70th Anniversary

On July 28, 2021, the world will mark the 70th Anniversary of the 1951 Refugee Convention. In the wake of World War II, the United States played a lead role in drafting this 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 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.

Yet four months after taking office, the Biden administration has still not taken steps to end many Trump policies that flout the Refugee Convention and is still using a Trump administration policy to expel asylum seekers in violation of both the Refugee Convention and U.S. refugee law.

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, and externalize asylum, jeopardize the safety of those in need of international protection and “threaten the long-respected refugee protection regime.” The Assistant High Commissioner warned 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.”

When the world marks the 70th anniversary of the Refugee Convention on July 28, 2021, will the United States be leading by example by upholding its Refugee Convention legal commitments, or will it still be maintaining Trump policies that subvert the Refugee Convention and international law? To answer this question, Human Rights First will track the administration’s progress – or lack of progress – on the areas identified below, which correspond to key provisions, referred to as “articles,” of the Refugee Convention. We will release a brief report on progress in these areas to coincide with the July 28 anniversary. As detailed below, key metrics will include 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; 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.