U.S. Asylum and Border Policies Resulting in Human Rights Violations
Human Rights First’s Submission for the Office of the High Commissioner for Human Rights (OHCHR) Special Rapporteur on the Human Rights of Migrants pursuant to Human Rights Council Resolution 43/6
Human Rights First’s four-decades long experience in representing, researching, and advocating for refugees seeking humanitarian protections in the United States and pushing the U.S. government to uphold domestic asylum law and international obligations to refugees informs this submission. It highlights illegal U.S. practices that violate the human rights of migrants and asylum seekers who have been and remain blocked from fair access to the U.S. asylum system and often returned to grave dangers. Many of these policies were initiated by the prior administration, but the Biden administration continues to implement and/or has yet to rescind them.
I. U.S. ASYLUM AND BORDER POLICIES RESULT IN HUMAN RIGHTS VIOLATIONS
Use of COVID-19 as Pretext to Eliminate Refugee Protections
The United States has used the COVID-19 pandemic as a pretext to summarily expel thousands of asylum seekers to danger while denying them access to the U.S. asylum system or preliminary protection screenings,1 as required by U.S. law and treaty obligations.2 In May 2021, the U.N. Refugee Agency (UNHCR) issued a rare public statement regarding and urging the United States “to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”3 Despite pledges to reverse President Trump’s cruelty at the U.S.-Mexico border, President Biden has continued to implement the expulsion policy which endangers children, drives family separations, and illegally returns asylum seekers to danger, including Black and LGBTQ refugees who face bias-motivated violence in Mexico.4
Since March 2020, the U.S. Department of Homeland Security (DHS) has carried out the expulsion policy using an interim final rule5 issued by the U.S. Department of Health and Human Services and orders6 by the U.S. Centers for Disease Control and Prevention (CDC) that purport to invoke authority under public health laws codified in Title 42 of U.S. law. The initial CDC order, which was issued under pressure from senior Trump Administration officials and over objections of CDC medical experts,7 was re-issued with minor modifications in August 2021 under the Biden administration.8 The current CDC expulsion order has been repeatedly renewed for 60-day periods9 despite persistent objections from leading epidemiologists and other medical experts10 as well as members of the U.S. Congress11 that the order to bar and expel asylum seekers lacks a public health justification.
Human Rights First has tracked at least 8,705 violent attacks and kidnappings suffered by asylum seekers turned away or stranded in Mexico, as a result of the Title 42 policy and other restrictions on access to asylum at the border, since President Biden took office in January 2021.12 They include: an 18-year-old Nicaraguan political dissident expelled to Mexico under Title 42 even though he had twice been kidnapped there; a transgender Honduran asylum seeker expelled by DHS to Mexico where she had been kidnapped with another transgender woman who remains missing; and a Honduran asylum seeker who was held hostage for days after Mexican immigration agents turned him over to a cartel following his expulsion by DHS under Title 42.13 Many of these families and individuals are subject to brutal conditions, made worse by the pandemic; without safe and secure housing, adequate medical care, or sufficient food.14 While unaccompanied children were exempted from the expulsions policy under both the Trump and Biden administrations in the wake of public outcry and judicial orders,15 the continued use of “public health” expulsions against adults and families has prompted desperate families to send children alone across the border to escape violence, threats, human trafficking, and other dangers, fueling thousands of family separations.16
The expulsion policy has resulted in the illegal refoulement of asylum seekers. The Biden administration has also expelled migrants and asylum seekers to other countries where they face persecution and other violence. Since January 2021, the United States has expelled nearly 20,000 Haitian adults and children, including asylum seekers, to Haiti without access to the asylum process17 despite increasing political instability and violence. As of late February 2022, direct Title 42 expulsions also reportedly continue to other countries including El Salvador, Guatemala, and Honduras.18
Mexican asylum seekers have also been illegally blocked from requesting protection at U.S. ports of entry and/or expelled back to Mexico19 – the country from which they are fleeing persecution often by cartels that exercise significant control over large expanses of Mexican territory.20 Onward or chain refoulement of asylum seekers expelled by the United States to Mexico has repeatedly occurred as Mexican migration officials have deported asylum seekers without an opportunity to seek protection, at times pushing them across the southern Mexican border to remote regions of Guatemala.21 UNHCR has warned that the Title 42 expulsion policy “increases the risk of chain refoulement – pushbacks by successive countries – of vulnerable people in danger, in contravention of international law and the humanitarian principles of the 1951 Refugee Convention.”22 In November 2021, the U.N. High Commissioner for Refugees repeated his call for an end to Title 42 expulsions, noting that these expulsions “often result in chain deportations that can expose people to grave risks.”23
Leading U.S. public health experts have repeatedly concluded that these restrictions on asylum lack a public health justification and threaten the health and safety of migrants.24 According to public health experts, the CDC expulsions orders have “no scientific basis as a public health measure.”25 Indeed, at the same time asylum seekers are prevented from requesting protection along the border, including at ports of entry, vaccinated tourists and other visitors with visas have been permitted to enter the United States through southern border ports of entry since November 2021,26 underscoring the discriminatory nature of the provisions targeting asylum seekers.27 Leading public health professionals have repeatedly called on the CDC to adopt science-based measures to safeguard public health while processing asylum seekers at the border during the pandemic.28
In 2021, the Biden administration exempted a small fraction of asylum seekers and migrants from expulsion on a case-by-case basis. However, these exemptions, which ended in August 2021,29 were insufficient to protect the thousands of individuals seeking asylum at the southern U.S. border, did not comply with U.S. domestic and international law obligations, were inaccessible to asylum seekers without legal representation, led to disparate and discriminatory access to asylum, endangered legal service providers participating in the process, and exposed the small number of asylum seekers that sought to access exemptions to kidnapping attempts, violent attacks, and fraud by criminal groups in Mexico.30
Policies like Title 42 and metering (discussed below) that block or reduce asylum processing at ports of entry drive crossings of the border away from ports of entry by asylum seekers who are unable to access protection at official border posts, as reports by the DHS Office of Inspector General have confirmed.31 As a result asylum seekers have undertaken increasingly deadly crossings away from ports of entry often at the mercy of brutal cartels that kidnap, torture and extort migrants and exercise significant control over much of the U.S.-Mexico border region.32
Deadly and Farcical “Remain in Mexico” Policy Returns
First implemented by the Trump administration in January 2019, the Remain in Mexico (RMX) policy – officially dubbed the “Migrant Protection Protocols” – has resulted in massive human rights violations against migrants and asylum seekers forcibly returned to Mexico. In early December 2021, the Biden administration restarted (under a court order33 which is currently on appeal34) returning migrants and asylum seekers to Mexico under RMX. In a December 2021 letter, dozens of members of the U.S. Congress35 condemned the administration’s reimplementation of RMX and urged it to reverse its decision to expand the potential scope of nationalities subject to RMX.36 The administration has indicated that it will use RMX to return people to Mexico who cannot be expelled under Title 42 because they are “not covered” or “excepted from the [Title 42] CDC order.”37 Used together, the RMX and Title 42 policies allow DHS to block and return or expel an even broader range of migrants and asylum seekers to Mexico.
During the two years that the Trump administration implemented RMX, Human Rights First tracked at least 1,544 publicly reported cases of kidnappings, murder, torture, rape and other violent attacks against people returned to Mexico.38 At least two asylum seekers returned to Mexico under RMX were murdered, including a Salvadoran asylum seeker killed in Tijuana, who left behind a wife and child,39 and a 19-year-old Cuban asylum seeker killed in Ciudad Juárez just days before he was to be processed out of MPP and brought to safety in the United States.40 In its second attempt to terminate the policy, DHS confirmed that “individuals awaiting their court hearings in Mexico under MPP were subject to extreme violence and insecurity at the hands of transnational criminal organizations that profited by exploiting migrants’ vulnerabilities” and that “the United States has limited ability to ensure the safety and security of those returned to Mexico.41
In addition, RMX was a due process charade that drastically restricted access to counsel, legal information, and the ability of asylum seekers to attend and participate in their own immigration hearings.42 Of the nearly 70,000 people placed in RMX under the Trump administration, only 52343 people—less than one percent—were granted relief while in the program. Just to attend their U.S. immigration court appointments, asylum seekers were forced to risk kidnapping and violence.44 Many were abducted while traveling through border regions to attend hearings or directly outside U.S. ports of entry before or after hearings.45 For the asylum seekers who were put into this process, the dangers, lack of counsel, and abhorrent conditions forced many to give up on their requests for U.S. asylum protection.46 Many families and individuals not brought into the United States during the initial winddown of RMX remain in danger in Mexico.47
The RMX policy cannot be made fair or safe because it is fundamentally flawed. At base, the policy’s core features are to separate asylum seekers from attorneys who could represent them and send them to a place where their safety cannot be secured given the widespread control of cartels that target asylum seekers for kidnapping, torture, and extortion and the complicity of Mexican officers who fail to protect or are complicit in these attacks. The UNHCR representative to the United States has stated in response to the reimplementation of RMX that “the announced adjustments to the policy are not sufficient to address [UNHCR’s] fundamental concerns” about the safety and due process rights of asylum seekers subjected to RMX.48 Indeed, CBP officers have return migrants and asylum seekers to grave danger in Mexico through the reimplemented RMX, including individuals who were previously harmed there. Government records indicate that despite a change in the procedures and standard in the new RMX fear screening process, the percentage of individuals receiving positive fear determinations is nearly unchanged.49 Individuals who had been kidnapped or tortured in Mexico prior to their placement in RMX have not passed these flawed fear screenings, including a man who had recently been kidnapped near the border in Mexico and tortured with electrocution and beatings.50
Asylum Turn-backs via So-called “Metering”
DHS has at times intentionally reduced the number of asylum seekers processed at land ports of entry since at least 2016, turning them back to Mexico and forcing them to wait, often for months, in dangerous regions of Mexico to request U.S. asylum protection.51 DHS fully instituted this so-called “metering” policy across the Southern Border in July 2018.52 By August 2019, asylum waitlists along the U.S.-Mexico border had topped 25,000 with wait times exceeding seven months.53 Asylum seekers turned away at U.S. ports of entry, including Mexican asylum seekers, have been subjected to violence and exploitation.54 Forced to wait in highly dangerous parts of Mexico, some have risked their lives to cross the border between ports of entry.55 Human Rights First’s reports detail many examples of asylum seekers turned away at U.S. ports of entry and pushed back to danger. They include a Honduran family with three children who was kidnapped after having been turned away from the border three times, a woman raped in Mexico after three attempts to seek protection in the U.S., and a Guatemalan woman who was kidnapped after border agents turned her back.56
In September 2021, a federal court judge ruled that the government’s use of “metering” to turn back asylum seekers at ports of entry was likely unlawful under U.S. immigration law.57 Subsequently, DHS released a memo that purported to end “metering” at ports of entry by rescinding several Trump-era memoranda which had instituted the policy.58 Human Rights First has urged that, in future guidance, DHS and CBP leadership make clear to CBP officers that it is a core responsibility and top priority to ensure respect and compliance with U.S. refugee laws and treaty obligations. As of January 2022, with Title 42 being used to block asylum claims at ports of entry, CBP appears to still be employing “queue management” to turn back people seeking protection at ports of entry.59
“Asylum Cooperative Agreements” and Other Unsafe Third-Country Arrangements
Under a safe third-country agreement, the United States and another country recognize that both countries effectively protect refugees seeking asylum from persecution and would provide access to a full and fair procedure for determining their asylum claim.60 With an agreement in place, asylum seekers who request protection in the United States after first passing through the “safe” country may be returned there to seek refuge. The only instance of such a treaty is the United States’ longstanding agreement with Canada, which entered into force in 2004 and governs people seeking asylum at the U.S.-Canada land border.61 Refugee claimants facing return to the United States from Canada have challenged the implementation of this Safe Third Country Agreement (STCA) in litigation62 currently ongoing before the courts in Canada on the basis that the United States mistreats asylum seekers and fails to protect them.
Under the Trump administration, the United States entered into so-called “Asylum Cooperative Agreements” (ACAs) with Guatemala, El Salvador, and Honduras, which the Biden administration subsequently suspended and moved to terminate.63 ACAs are distinctive from safe third-country agreements in that they enable the U.S. government to expel asylum seekers, without any opportunity to seek U.S. humanitarian protection, to countries through which they may never have transited without regard for their risk of further persecution in those countries nor for the receiving countries’ capacity to effectively assess their asylum claims. The U.S. government expelled at least 945 asylum seekers to Guatemala under the ACA before its termination in January 2021; none had been granted asylum there.64 The Biden administration has provided no recourse for those illegally expelled to Guatemala and denied the opportunity seek U.S. protection.65 The agreements with Honduras and El Salvador were never implemented.
The Biden administration also continues to misuse public health authority under Title 42 of the U.S. Code to expel some asylum seekers to third countries. As explained above, the administration has expelled tens of thousands of non-Mexican migrants and asylum seekers to Mexico without providing an opportunity to seek U.S. humanitarian protection and without assessing their risk of persecution in Mexico. As of January 2022, the Biden administration is also expelling to Colombia some Venezuelan asylum seekers who had previously resided there.66 The United States is carrying out these expulsions to Mexico and Venezuela in the absence of any formal third country arrangements and therefore without guarantees that expelled individuals will be safe from persecution or afforded a fair opportunity to seek refugee protection.
Other Bars to Asylum at the U.S. Border
On November 9, 2018, then President Trump issued a presidential proclamation which, together with a DHS and DOJ interim final rule that took affect the same day, barred asylum for individuals who enter the United States between ports of entry.67 This policy is currently enjoined by federal court order.68 The Court of Appeals for the Ninth Circuit has confirmed that the rule unlawfully conflicts with the text and purposes of U.S. refugee law and is inconsistent with U.S. obligations under international law, including Article 31 of the Refugee Convention.69 In February 2021, President Biden rescinded the presidential proclamation issued by President Trump in.70 While the Biden administration reaffirmed in an August 2021 status report its plans to “modify and rescind” the DHS/DOJ rule, review remained pending as of February 2022.71
A July 16, 2019 interim final rule (“third-country transit ban”) barred asylum for almost all refugees who traveled through another country on their way to seek protection at the U.S.- Mexico border and elevated the preliminary fear screening standard.72 As a result, refugees form Cameroon, Cuba, Honduras, Nicaragua, Venezuela, and other countries – some of whom were forced to wait in extreme danger in Mexico under RMX – were denied asylum and many asylum seekers were blocked from accessing the U.S. asylum system and deported after failing fear screening interviews.73 Federal courts74 twice blocked the rule, which UNHCR concluded was inconsistent with U.S. Refugee Convention obligations.75 The transit ban separates families, leaving spouses and children stranded in danger and unable to reunite with family already in the United States. DHS has not yet published new rulemaking following review of whether to rescind the third-country transit ban.76
On December 11, 2020, the Trump administration finalized the so-called “Death to Asylum” rule that would effectively incorporate the asylum bans discussed above and expanded the third- country transit ban to all asylum seekers (not just those who initially sought protection at the southern border).77 The rule, which was enjoined before taking effect,78 would also heighten the standard governing initial fear screenings and significantly narrow the grounds for asylum.79 DHS has not yet published rulemaking which it has stated will “propose to rescind or modify the remaining portions” of the rule.80
On December 23, 2020, DHS and DOJ under the Trump administration published a final rule that exploits the pandemic by using baseless public health claims to bar refugees from protection who arrive from or transit through a country where COVID-19 or potentially other contagious diseases are prevalent – labeling them a “danger to the national security of the United States.”81 Under the rule, covered asylum seekers would be barred from refugee protection in the United States in violation of U.S. law and international treaty obligations, all but ensuring their deportation to persecution or torture. Epidemiologists and medical experts have concluded that the rule is “xenophobia masquerading as a public health measure”82 and would in fact undermine public health.83 The Biden administration has repeatedly paused the rule’s implementation due to ongoing litigation against a related regulation and as it is “reviewing and reconsidering” the rule and “whether to modify or rescind” it.84 In December 2021, the U.S. government requested additional comments on whether to further delay the rule’s implementation. 85
II. U.S. POLICIES AND PRACTICES VIOLATE INTERNATIONAL TREATY OBLIGATIONS
U.S. border policies and regulations gutting refugee protections violate U.S. non-refoulement obligations under Article 33 of the 1951 Convention relating to the Status of Refugees (binding on the United States through its accession to the 1967 Protocol relating to the Status of Refugees), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and customary international law, to refrain from returning people to countries where they would be at risk of persecution, torture or other serious harm. UNHCR has warned that U.S. policies such as Title 42 increase the risk of chain refoulement, or pushbacks by successive countries of people in danger “in contravention of international law and the humanitarian principles of the 1951 Refugee Convention.”86
Penalizing Asylum Seekers
U.S. border policies, including the asylum entry ban and Title 42, also violate Article 31 of the 1951 Refugee Convention prohibiting states from penalizing refugees based on their manner of entry to a country where they are seeking international protection. DHS and the U.S. Commission on International Religious Freedom have previously acknowledged that the referral of asylum seekers for criminal prosecution may violate U.S. treaty obligations.87 Scholars have also concluded that the U.S. expedited removal process constitutes an unlawful penalty based on an asylum seeker’s manner of entry.88
U.S. border policies also violate Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States signed in 1966 and ratified in 1994. ICERD requires state parties to guarantee “the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.”89 Restricting access to asylum and placing refugees at higher risk of refoulement based on their race and national origin, as Title 42 and RMX do, constitutes prohibited discrimination under Article 5 of ICERD.90
Human Rights First recommends that the Special Rapporteur:
Ensure the Special Rapporteur includes and highlights human rights violations that result from “pushback” policies (including turning away asylum seekers by intentionally limiting processing capacity and failing to provide adequate resources and staff for handling asylum requests and using the COVID-19 pandemic as an excuse to block asylum seekers and expel them to countries where they are at risk of persecution or torture and/or chain refoulement).
Condemn the use of the COVID-19 pandemic as a pretext to summarily block and expel asylum seekers without individual assessment or access to asylum procedures and return them to places where their safety is at risk and cannot be secured.
Urge States to heed recommendations of public health experts aimed at swiftly and safely processing asylum seekers requesting protection at or after crossing borders and caution States that public health considerations should not be misused to deny people seeking refuge access to life saving protection.
Encourage national, bilateral, and multilateral efforts to rescind policies intended to deny refugees access to asylum procedures and to provide redress for resulting violations of human rights.