The Denied Right to Asylum under United States Pushback Policies
A Human Rights Based Analysis
The right to asylum is enshrined in international, regional and domestic laws, and exists for asylum seekers, or individuals who are unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Central to the right of asylum is the concept of non-refoulement, that an asylum seeker must not be returned to a country in which they face threats to their life or freedom. The right of non-refoulement is so significant within international law that it is considered of jus cogens status, which means returning a migrant to danger can never under any circumstances be committed and is deemed as grave a crime as slavery, genocide and human trafficking. The right to asylum and protection from refoulement are both threatened when States push back refugees from their borders.
Pushbacks have been defined by the Special Rapporteur on the human rights of migrants as:
“various measures taken by States which result in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to cross or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement.”
Pushbacks endanger the rights of asylum seekers by not allowing them individual credible fear interviews to start their asylum petitions, and instead forcibly return them to wait in often dangerous conditions across the border, where violence is regularly specifically targeted at returned asylum seekers. This is a breach of the international obligations by the United States to protect the human rights of asylum seekers, who must reach a State border or a State actor to request protection. Pushbacks are practiced by States and collectives of States around the world along most migration routes by State and non-State actors:
“State actors (regular and border police, specialized units, and military and security agents), as well as in cooperation with non-State actors (unidentified paramilitaries, carriers, transport personnel and contractors, operators of commercial vessels, private security personnel and others) acting with the authorization, support or acquiescence of the State.”
Two examples of pushback policies by the United States are the Migrant Protection Protocols (more commonly known as ‘Remain in Mexico’) and Title 42.
Migrant Protection Protocols
The Migrant Protection Protocols began in January 2019 by U.S. President Trump and Mexican President López Obrador. This program changed the U.S. asylum procedure from allowing non-Mexican asylum seekers to reside within the U.S. while their cases were pending to remaining in Mexico, often within informal communities along the border where migrants are vulnerable to horrific abuse, such as kidnapping, extortion and rape. Migrants and asylum seekers, upon reaching the U.S. border or port of entry, faced summary expulsion, meaning they were immediately expelled from the country without the opportunity for a court hearing or credible fear interview to pursue an asylum claim. Customs and Border Patrol then often drove them to a border crossing to walk to the Mexican side. The program effectively prohibited some migrants from having their asylum cases heard by U.S. courts, as well as restricting access to legal advice and representation. Human Rights Watch states that the policy “was a fundamental part of the Trump administration’s efforts to eviscerate the US asylum system” and U.S. immigration law experts argue the MPP program was illegal.
Merely three months into MPP, the United Nations Special Rapporteur on the human rights of migrants addressed the Human Rights Council in March 2019 with concerns over the program. The Special Rapporteur urged that the U.S. government halt the program for concerns over collective expulsions, lack of due process, and for violating the jus cogens practice of non-refoulement. Time has shown these concerns to be true. U.S. Customs and Border Patrol has expelled migrants over 1.7 million times since March 2020 without the right to seek asylum. MPP ‘Remain in Mexico’ ended in August 2022, however asylum seekers still remain in Mexico through Title 42.
Title 42
A second example of a pushback policy is Title 42, which was implemented in March 2020 by the Trump administration at the beginning of the Covid-19 pandemic using a little used section of U.S. law concerning the “Suspension of entries and imports from designated places to prevent spread of communicable diseases” from the Public Health Service Act of 1944. The policy denies entry to individuals entering the U.S., however the American Immigration Council explains it “does not apply to U.S. citizens, lawful permanent residents, and their spouses and children, nor does it apply to U.S. military personnel or those who arrive at a port of entry with valid travel documents” who could also be carriers of Covid-19.
Proponents for the use of Title 42 cited concerns for the contagious virus spreading within crowded immigration holding facilities; critics argued it to be a deterrent against immigration, especially because Trump advisor Stephen Miller had attempted to implement Title 42 to close the border in 2019 — before the 2020 Covid-19 outbreak. Regardless of intent, a policy that was de jure to be a public health measure against the spread of Covid-19 by closing the U.S. borders with Mexico and Canada resulted in the de facto summary expulsion of migrants and asylum seekers en masse from these borders to their home countries or countries of last transit and suspending in-process asylum applications. Approximately 2.9 million migrants and asylum seekers have been intercepted by Customs and Border Patrol between April 2020 and March 2022, and an estimated 1.8 million of those were expelled under Title 42.
Despite its common reference as a ‘Trump-era’ immigration policy, and then-candidate Biden’s promise to “end Trump’s detrimental asylum policies…[to uphold the] right to seek asylum”, President Biden has actively continued the use of Title 42 for the first 2.5 years of his administration as part of his public health policies during the Covid-19 pandemic. Even after an announcement in September 2022 by President Biden that the Covid-19 pandemic was over, his administration continues to use Title 42 to expel Venezuelan migrants and asylum seekers — all the while admitting 100,000 Ukrainian refugees, more than 22,000 of whom were admitted at the U.S.-Mexico border despite Title 42 restrictions. The use of Title 42 against Haitians and Venezuelans, but not Ukrainians, appears to reveal more about Biden’s political goals than a dedication to the U.S. Refugee Act of 1980.
On November 15, 2022, a federal judge blocked Title 42 in the ruling of Huisha-Huisha v. Mayorkas, declaring the policy to be an “arbitrary and capricious” violation of the U.S. Administrative Procedure Act. The Biden administration requested a five week stay on the ruling to allow officials time to “prepare for an orderly transition to new policies at the border.” It is unknown what kind of policies will be put into place, but the Biden administration must institute immigration policies which uphold the human rights of migrants and refugees, including their right to asylum and non-refoulement.
Causal Analysis
The United States pushes back migrants and asylum seekers for a variety of reasons, including the growing backlog of asylum applications and little political appetite to pass updated immigration laws. Firstly, many assume that the large number of unprocessed asylum claims result from more migrants arriving at the U.S.-Mexico border. While indeed the number of new arrivals ebbs and flows through the years, the main causes are structural. The asylum adjudication process is chronically underfunded, resulting in a current nationwide backlog of 1.75 million cases. There is a need for more immigration judges and administration staff, however budgetary guidelines have preferenced immigration enforcement actions over case adjudication. Asylum is not the only section of immigration cases experiencing backlog, however, as overall visa processing times are critically delayed for months, years or decades.
Secondly, the Immigration and Nationality Act, which is the prevailing U.S. immigration law, has not been adequately amended to reflect more recent migration trends since its passage in 1952. As a result, current immigration law does not meet the demands of U.S. current residents, employment shortages, family reunification or humanitarian needs. As a result, asylum applicants currently experience years-long waiting times for their cases to be determined by U.S. immigration courts throughout the country.
Role Analysis: Human Rights Holders & Duty Bearers
A human rights based analysis addresses human rights violations through the lens of rights holders and duty bearers. The rights holders of the right to asylum are the men, women and children who arrive at the U.S. border who are unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. It is unto these individuals that the U.S. government, as duty bearer, has been obligated to protect in good faith.
The United States government and its Customs and Border Patrol are duty bearers of the international, regional and domestic right to asylum.
The duty bearers, the U.S. government and Customs and Border Patrol, are obligated to uphold its obligations as stated in international and regional refugee laws to which it is a signatory. The first codification of the right to asylum was in the 1948 Universal Declaration of Human Rights under article 14(1): “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. The rights of asylum seekers and the legal obligations of States were more fully defined with the Refugee Convention and then extended within the Optional Protocol relating to the Status of Refugees to include refugees not only from European displacements of WWII.
At the regional level in the Americas, the American Convention on Human Rights* article 22(7) states:
“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”.
At the domestic level, the U.S. laws related to the right of asylum are the Immigration and Nationality Act of 1952 and the Refugee Act of 1980, which incorporated the definition of a refugee from the United Nations 1951 convention into U.S. domestic law and provides the legal basis for the U.S. refugee program.
Refoulement is considered of jus cogens status, which means to return an asylum seeker to danger is considered as inhumane as slavery, genocide and human trafficking.
Furthermore, the non-derogable right of non-refoulement is guaranteed under other international human rights, refugee, humanitarian and customary law: explicitly under the Convention against Torture and International Convention for the Protection of All Persons from Enforced Disappearance, and implicitly under the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child*, the Convention on the Elimination of All Forms of Discrimination against Women*, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Right bearers must perform their human rights obligations “in good faith” as indicated in the Vienna Convention on the Law of Treaties (article 26). The horrific abuses and denied due process migrants experienced as a result of their denied right to asylum assuredly resulted in an untold number more of human rights violations, especially for women and children.
Capacity Gap Analysis
The challenge to the fulfilled right to asylum can be analyzed through capacity gaps, which are identified by evaluating the claims of the rights holder alongside the obligations of the duty bearer.
Recommendations
Immediate Causes
Any and all practices which violate the right to asylum and non-refoulement must end. Asylum seekers who arrive at the U.S. border, port of entry or a State official must have their asylum cases heard as soon as possible, while being ensured due process and ample time to retain an attorney, as the U.S. does not provide asylum seekers legal representation. Asylum seekers must not be pushed back across the border where they face threats to their life and liberty.
The Biden administration began a new asylum processing rule in May 2022 which allows asylum claims to be processed more quickly by asylum officers instead of backlogged immigration courts. Successful asylum seekers are granted asylum status, but those not successful are expedited for removal unless they file an appeal. Quicker adjudication by asylum officers will result in a higher number of asylum seekers losing their cases, as they will struggle to retain lawyers in time. Vera Institute of Justice found that only 3% of unrepresented cases nationwide are successful, versus 38% with representation. Unsuccessful applicants must be informed of their right to appeal and provided time and resources to do so.
Underlying Causes
To truly resolve the asylum backlog, the U.S. Congress must pass new human rights based immigration legislation which reflects current immigration trends, particularly employment shortages, family reunification and humanitarian needs — and explicitly prohibits violations against the right to asylum and non-refoulement.
*The U.S. signed but did not ratify, and therefore is not legally bound to abide by the treaty.
