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May 13, 2020

Pandemic as Pretext: Trump Administration Exploits COVID-19, Expels Asylum Seekers and Children to Escalating Danger

The Trump Administration is exploiting the coronavirus crisis to pursue its long-held goal of preventing refugees from seeking and receiving humanitarian protection in the United States. Under the guise of a much-criticized Centers for Disease Control and Prevention (CDC) order, the Department of Homeland Security (DHS) is expelling asylum seekers and unaccompanied children without the legally required processes to countries where they face persecution, trafficking, and other serious violence. With little public debate, the administration has essentially eliminated asylum at the U.S.-Mexico border.

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But public health is a pretext, not its priority. The CDC order has no public health rationale, according to numerous public health experts, who stress that fair treatment of refugees, as required under U.S. law, does not undermine efforts to combat the virus. These goals “are not in conflict and can be served side by side.” Yet even as the administration pushes states and businesses to reopen, Acting Customs and Border Protection (CBP) Commissioner Mark Morgan has signaled that the agency would keep flouting its legal obligations to process asylum seekers, unaccompanied children, and others at the border.

At the same time, despite escalating violence in Mexico, the administration continues to implement the Remain in Mexico policy threatening the lives of asylum seekers. Since the so-called Migrant Protection Protocols (MPP) went into effect in January 2019, DHS has returned thousands of asylum seekers primarily from Cuba, El Salvador, Guatemala, Honduras, Nicaragua, and Venezuela to Mexico. Waiting there for U.S immigration court hearings, many have been kidnapped, raped, and assaulted. In fact, the number of reported attacks on returned asylum seekers continues to rise—now to 1,114—despite reduced in-person research due to the pandemic.

Remain in Mexico and CDC expulsions join a long list of other illegal and dangerous Trump Administration policies aimed at curtailing asylum, including a ban on asylum for people who cross into the United States between ports of entry to seek protection, a ban on asylum for people who transit 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.  

These policies are both immoral and illegal. Not only do they spurn the country’s tradition of providing safe haven to refugees, they violate U.S. asylum, immigration, and anti-trafficking laws, due process protections, and binding treaty obligations. U.N. Refugee Agency (UNHCR) legal guidance makes clear that a public health emergency cannot justify “blanket measure[s]” blocking asylum seekers. Members of the U.S. Senate and House of Representatives have questioned the legality of the expulsion policy and described the administration’s apparently post hoc legal justification for the policy as “deeply flawed.”

Instead of blocking people seeking humanitarian protection, the administration can employ sensible measures recommended by public health experts, such as safe distancing, masks, and hand sanitizer, to expeditiously process asylum seekers who should be paroled to shelter with family under existing legal authority, pending their immigration court proceedings. Unaccompanied children should be swiftly transferred to Office of Refugee Resettlement (ORR) custody, again with the use of health safeguards. Asylum seekers should not be subjected to detention given its health risks and human rights violations, but case management and other alternatives can be employed in cases where additional appearance support is necessary. 

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, and January 2020.

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