Report
Published on December 16, 2020
The Trump Administration continues to break U.S. laws and treaty obligations that protect refugees from persecution, returning to danger people seeking protection at the southern border. In addition to implementing its notorious “Remain in Mexico” program, the Trump Administration has weaponized public health powers since the beginning of the pandemic to ban children, families, and adults from requesting asylum at official ports of entry and to expel those who cross the border in search of protection – delivering them back either to the countries they fled or to escalating violence in Mexico.
The Department Homeland Security (DHS) is expelling refugees without providing them the protection safeguards required by Congress, using as pretext orders that the Centers for Disease Control and Prevention (CDC) issued on the instructions of White House officials and over the objections of the CDC’s own senior experts. The March 2020 order, indefinitely extended in May and reissued in October, has led to secret expulsions of asylum seekers, including dissidents flown back to Nicaragua and handed over to the very authorities who jailed and tortured them. At the same time, crossings by U.S. citizens and others deemed “essential” have continued with 40 million pedestrians and vehicle passengers entering through the southern border between April and September 2020.
Under Remain in Mexico – the perversely named “Migrant Protection Protocols (MPP)” – the administration continues to return asylum seekers and other migrants to areas of Mexico where violence is escalating. Asylum seekers from, among other countries, Cuba, El Salvador, Guatemala, Honduras, Nicaragua, and Venezuela are forced to wait in Mexico for U.S immigration court hearings delayed indefinitely since March 2020 because of the pandemic. Many have been kidnapped, raped, and assaulted. The number of reported attacks continues to rise – now at least 1,314 – despite reduced in-person research due to pandemic-related travel restrictions.
This is both a humanitarian disgrace and a legal travesty.
Turning away asylum seekers at the border spurns the U.S. commitment to providing safe haven to refugees and serves no public health rationale, as public health experts have repeatedly stressed. These experts note that fair treatment of refugees does not undermine efforts to combat COVID-19, and that these goals “are not in conflict and can be served side by side.” U.N. Refugee Agency (UNHCR) legal guidance makes clear that a public health emergency cannot justify “blanket measure[s]” blocking asylum seekers and, in November 2020 the UNHCR Assistant High Commissioner for Protection urged states to ensure that “measures restricting access to asylum must not be allowed to become entrenched under the guise of public health.”
The administration’s effective elimination of humanitarian protections at the border violates U.S. asylum and anti-trafficking laws, due process protections, and treaty obligations. In late November 2020, a federal court preliminarily blocked DHS from using the CDC order to expel unaccompanied children, finding that the administration is unlikely to show that U.S. public health laws authorize expulsions. In early 2021, the Supreme Court will consider a challenge to MPP, which the Ninth Circuit found likely violates U.S. immigration laws and treaty mandates to prevent the return of refugees to persecution.
Remain in Mexico and CDC expulsions are on a long list of illegal and dangerous Trump Administration policies aimed at curtailing asylum and punishing those who seek U.S. protection, including a ban on asylum for people who cross into the United States between ports of entry, a ban on asylum for people who travel through other countries (where they are not safe), and agreements to send asylum seekers to third countries – Guatemala, Honduras and El Salvador – that are not safe for refugees and do not have effective asylum systems.
An amicus brief submitted by the union representing U.S. Citizenship and Immigration Services (USCIS) asylum officers described these policies as “an assault” on the U.S. commitment to the persecuted. Along with new regulations that decimate asylum, these policies not only illegally turn away refugees but prevent those who manage to receive limited forms of protection from bringing their children and spouse to safety – leaving refugees with the choice of pursuing U.S. protection or remaining permanently separated from their families.
In early November 2020, a Biden campaign spokesperson told CBS News that, if elected, he would “direct the CDC and DHS to review this policy and make the appropriate changes to ensure that people have the ability to submit their asylum claims while ensuring that we are taking the appropriate COVID-19 safety precautions, as guided by the science and public health experts.” The Biden campaign also pledged, on its first day, to end MPP.
Instead of blocking people seeking humanitarian protection, the U.S. government should employ measures recommended by public health experts – such as distancing and masks, health screenings, testing, and use of non-congregate settings – to expeditiously process and parole asylum seekers under existing legal authority, pending immigration court proceedings. Case management alternatives to detention can be employed where asylum seekers sheltering with family or friends need additional appearance support.
To gather information for this report, Human Rights First researchers interviewed asylum seekers, immigration attorneys, academic researchers, humanitarian volunteers, and legal monitors. The interviews were conducted remotely because of pandemic-related restrictions on movement in both the United States and Mexico. Staff also reviewed reports from the media and human rights organizations. This report builds on our prior reporting on MPP in March 2019, August 2019, October 2019, December 2019, January 2020, and May 2020.
Downloads:
