Asylum Meters & Bans: Trump’s New Border Regime Violates the United States’ Duties under International Refugee Law

Chris Opila
Second-year student at University of Michigan Law School

Fleeing systemic corruption, poverty, and violence, thousands of Hondurans, El Salvadorians, and Guatemalans are walking north through Mexico in a so-called “caravan,” intent on seeking asylum in the United States. Decrying the journey as an invasion, the Trump Administration has attempted to cajole transit countries into stopping the caravan before it reaches the US-Mexico border, deployed the National Guard to the border, and promulgated an interim final rule that bars anyone who unlawfully entered the United States via Mexico from receiving asylum.

This blog post assesses the legality of the administration’s executive actions with respect to the obligations of the United States under the 1967 Protocol Relating to the Status of Refugees. It argues that the newly-issued interim rule of restricting asylum to those who enter at ports of entry and the unofficial policy of metering the number of refugees allowed to enter the United States at these points both violate the United States’ obligations to refugees under the 1967 Protocol Relating to the Status of Refugees.

United States’ Obligations Under International Refugee Law

 While the United States is not a signatory to the 1951 Convention Relating to the Status of Refugees, it did ratify the 1967 Protocol without reservation. This treaty bound the United States to uphold the rights of refugees as delineated in Articles 2–34 of the Refugee Convention. And the United States incorporated these international obligations into its domestic immigration law with the passage of the Refugee Act of 1980.

States’ obligations to refugees under the Refugee Convention and Protocol accrue at different stages in the asylum process.[1] Some duties, such as the proscription against non-refoulment in Article 33, adhere once a refugee falls under the state’s jurisdiction.[2] Others, such as the prohibition on penalties for illegal entry or presence in Article 31 attach once a refugee is physically present inside the state’s borders.[3] And, others still attach once a refugee begins the adjudication process, receives formal recognition as a refugee, and/or obtains residence.[4]

Refugee status is a declaration, not a bestowment.[5] It inheres once an individual’s factual situation satisfies the criteria of the refugee definition, independent of – and generally before – a formal decision from an adjudicator.[6] Therefore, a refugee’s rights in a state depend not on whether a judge has found them to be a bona fide refugee, but rather on their level of attachment to the state, generally defined by their stage in the asylum process. And, “entitlement to these rights persists until and unless an individual is found not to be refugee.”[7]

United States’ Asylum Regime at the US-Mexican Border Disregards its International Obligations

Assessed under the above framework, the United States’ new border asylum regime violates its obligations under the 1967 Protocol by depriving individuals under its jurisdiction and within its borders of rights they have acquired under the 1967 Protocol. At points of entry on the US-Mexico border, border patrol agents meter the number of individuals allowed to enter the United States and apply for asylum each day and turn away the rest. This pushes individuals to enter the United States unlawfully without inspection, conduct that renders them ineligible to receive asylum under the new rule. The de facto metering policy violates the United States’ obligation under Article 33 not refoul individuals under its jurisdiction to Mexico without assessing their safety there. The new rule, in turn, violates the United States’ duty under Article 31 not to penalize asylum applicants inside its borders for unlawful entry.

Metering the number of refugees entering the United States at the US-Mexico border violates United States’ obligation to not refoul refugees[8] because it removes refugees under the United States’ jurisdiction to Mexico without first assessing their safety in Mexico. Determining whether the United States has incurred an obligation to an individual under Article 33 does not turn on whether the individual is physically present in the United States but rather on whether the United States has exercised jurisdiction over them.[9] An individual requesting entrance to the United States at its border has entered the United States’ jurisdiction.[10] Therefore, the United States has a duty under Article 33 not to refoul them.[11] Under the metering system, border patrol agents are not discharging this Article 33 obligation. This obligation does not require the United States to grant or even process the asylum claim of each individual in its jurisdiction;[12] but, it does require the United States to ensure that each individual in its jurisdiction is not removed – either directly or indirectly – to a place where their life or freedom would be in danger on account of a protected ground.[13] To implement the metering system, border patrol officers are ordering individuals at the US-Mexico border to  return to Mexico or wait indefinitely in line. This is a return to Mexico absent an assessment of whether such return poses direct or indirect risks to life or freedom, and so is a violation of the United States’ duty of non-refoulment under Article 33.[14]

The new rule disregards the United States’ obligation under Article 31 to not penalize refugees on account of their illegal entry or presence because it makes anyone who entered the United States from Mexico unlawfully ineligible for asylum. Article 31 adheres to individuals once they are physically present inside the United States’ borders [15] and indemnifies them from penalties arising from any unlawful presence or entrance provided they present themselves to authorities and establish that their unlawful entrance was incidental to their flight.[16] It also precludes the United States from using unlawful entrance as an excuse to deprive individuals of refugee status.[17] The new rule ignores these obligations by penalizing unlawful entry with an asylum ban and not conditioning penalties for unlawful entrance to its relevance to individuals’ flight.

Conclusion

 President Trump’s attempts to justify the new asylum regime under the auspices of a national emergency grant international legitimacy to neither the metering policy nor the new rule. While Article 9 allows the United States to take provisional measures it considers to be essential to national security in times of grave and exceptional circumstances, it requires measures be particularized to individuals. Regardless of whether a caravan of a couple thousand individuals is a grave and exceptional circumstance, the current metering system and the asylum bar are not particularized to individuals. Rather, they sweep broadly, catch everyone attempting to seek asylum at the US-Mexico border in their scope, and are thus unlawful.[18]

[1] James Hathaway & Michelle Foster, The Law of Refugee Status 26 (2nd ed. 2014).

[2] Id. at 26 n.55.

[3] Id. at 26 n.56.

[4] Id. at 26 nn.57–58. These rights are not relevant to the discussion at bar but include a right to freedom of movement, employment, and housing. Id.

[5] See Id. at 1.

[6] Id.

[7] Id.

[8] UN High Commissioner for Refugees (UNHCR), Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ¶ 12 (Jan. 26, 2007), http://www.refworld.org /docid/45f17a1a4.html.

[9] See James Hathaway & Michelle Foster, supra note 1, at 40; UNHCR, supra n. 8, at ¶¶ 35–36.

[10] See UNHCR, supra note 8, at ¶ 7.

[11] See UNHCR, supra note 8, at ¶¶ 20, 24.

[12] See James Hathaway & Michelle Foster, supra note 1, at 33–34.

[13] See James Hathaway & Michelle Foster, supra note 1, at 47–49.

[14] See Id. Even if there was proposed safe-third country agreement with Mexico, the metering policy would still violate Article 33 because the required safety assessment must be individualized, not collectivized. See Id., at 36.

[15] Id. at 26 n. 56.

[16] See Id. at 29 n. 75. An individual does not have to enter the United States directly from their home country to enjoy from this Article’s protection as long as he has a plausible explanation for not applying for asylum in any of the countries through which he passed along the way. Id.

[17] See Id. at 28.

[18] The American Civil Liberties Union, the Southern Poverty Law Center, the Center for Constitutional Rights and other nonprofits have challenged the new rule in court and a federal district court has enjoined the implementation of the new rule on statutory grounds.

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