March 23, 2020
Chad F. Wolf, Acting Secretary of Homeland Security (by electronic mail)
Re: U.S. Government’s Stated Intention to Expel Asylum Seekers is Illegal
Dear Acting Secretary Wolf:
Our organizations write to make absolutely clear that: (i) expulsions of migrants without adequate fear screenings and subsequent due process would be illegal under U.S. and international law; and (ii) government officials following instructions to implement such expulsions would be acting in furtherance of illegal orders. We call on the U.S. government to clarify immediately how actual and potential asylum seekers’ rights are protected under these new protocols, including full transparency on guidance sent to CBP officers and agents and CBP’s operational plan.
At a press conference yesterday you announced that starting at midnight on Saturday March 21, 2020, DHS will be immediately returning all non-citizens who enter or attempt to enter the United States without travel authorization.1 While there is uncertainty about particulars -- and initially Mexico’s Foreign Minister Ebrard stated that it will not accept non-Mexicans outside the “Remain in Mexico” policy2 -- you indicated rapid removals will take place.3 Acting CBP Commissioner Morgan stated on FOX News that the announcement is a “game changer,” agreeing that “all asylum applications [are] suspended” between ports of entry4 (which contradicts his own agency’s statement that migrants “are being assessed on a case by case basis”5 ).
CBP says that at ports of entry “CBP will suspend processing of inadmissible individuals,” a category including asylum seekers,6 and that “[i]n between POEs, Border Patrol agents will be given tools necessary to identify [non-citizens] at the border and to adjudicate some cases in the field at initial encounter. This will enable our agents to rapidly make a decision whether to take someone into custody, or to send them without any further Title 8 processing to the nearest Port of Entry to expel them to Mexico or Canada.”7 (Emphasis added.) For persons not amenable to expulsion north or south, according to the Centers for Disease Control order on which DHS’s action is based “DHS will, where necessary use repatriation flights to move covered [non-citizens] on a space-available basis, as authorized by law [sic].”8 The CDC order does not address why the Department of Justice continues dangerous and unnecessary prosecutions of some migrants for entry/reentry offenses.
No explicit provision is made for inquiring into fear of return to Mexico, Canada, or an individual’s country of origin. Border Patrol agents are generally not trained to conduct fear screenings: life-or-death determinations that are impossible to conduct fairly “in the field at initial encounter.”9 This appears to mean that no credible-fear interviews will be conducted and 2 that persons fleeing persecution, who are otherwise eligible for consideration of their asylum claims, will be summarily removed from the United States without any process whatsoever.10
The United Nations High Commissioner for Refugees emphasized in a legal analysis released on March 16 that “while States may put in place measures which may include a health screening or testing of persons seeking international protection upon entry and/or putting them in quarantine, such measures may not result in denying them an effective opportunity to seek asylum or result in refoulement. . . . Denial of access to territory without safeguards to protect against refoulement cannot be justified on the grounds of any health risk.” (Emphasis added).11 Expert organizations including Doctors Without Borders and Physicians for Human Rights have this week urged the administration not to use public health as an unsupported cover for immigration-policy changes: “Turning back men, women and children seeking refuge is not in accordance with public health guidance and will only endanger more lives and will make all of us less safe.” 12
As a party to the U.N. Protocol Relating to the Status of Refugees, the United States has an obligation under that treaty and its implementing U.S. statute, the 1980 Refugee Act, not to “remove an alien to a country if [DHS] decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also INS v. AguirreAguirre, 526 U.S. 415, 427 (1999). In addition, prior to U.S. ratification of the U.N. Convention Against Torture, also implemented via domestic law,13 see INS v. Stevic, 467 U.S. 407, 429-30 (1984), the Department of State emphasized that the Convention’s explicit prohibition of all torture, regardless of the circumstances, was understood by CAT’s drafters as “necessary if the Convention is to have significant effect, as public emergencies are commonly invoked as a source of extraordinary powers or as a justification for limiting fundamental rights and freedoms.”14 Both these legal obligations of the United States are at serious risk of repeated violations under DHS’s hasty and counterproductive commands.
In a brief expressing their opposition to the “Remain in Mexico” policy (MPP), current USCIS employees previously urged that “[a]sylum officers are duty bound to protect vulnerable asylum seekers from persecution. However, under the MPP, they face a conflict between the directives of their departmental leaders to follow the MPP and adherence to our Nation’s legal commitment to not returning the persecuted to a territory where they will face persecution. They should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.” 15 Once again, DHS is now placing federal officials in untenable moral and legal jeopardy by ordering asylum seekers to be returned without adequate fear screening or due process. We are united in condemning DHS’s illegal course of action and urge its reversal.
Please contact Sirine Shebaya, Executive Director, National Immigration Project of the National Lawyers Guild at sirine@nipnlg.org to discuss this urgent matter.
Sincerely,
The Advocates for Human Rights African Services Committee Al Otro Lado Aldea - The People’s Justice Center Alliance San Diego America’s Voice American Civil Liberties Union American Friends Service Committee Amnesty International USA Asian Americans Advancing Justice | AAJC Asian Americans Advancing Justice-Atlanta ASISTA Asylum Seeker Advocacy Project Asylum Seeker Assistance Project Bellevue Program for Survivors of Torture Black Alliance for Just Immigration (BAJI) Casa de Esperanza: National Latin@ Network for Healthy Families and Communities Catholic Legal Immigration Network, Inc. Center for Constitutional Rights Center for Gender & Refugee Studies Center for Safety & Change Center for Victims of Torture Central American Resource Center – DC Christian Community Development Association 4 Church World Service Coalition for Humane Immigrant Rights (CHIRLA) Columban Center for Advocacy and Outreach Columbia Law School Immigrants’ Rights Clinic Community Resource Center Daughters of Charity of St. Vincent de Paul, USA Disciples Refugee & Immigration Ministries Don’t Separate Families DRUM- Desis Rising Up and Moving Evangelical Lutheran Church in America Families Belong Together First Friends of NJ & NY The Florence Immigrant & Refugee Rights Project Fordham Law School Feerick Center for Social Justice Franciscan Action Network Freedom Network USA Haitian Bridge Alliance HealthWorks Ending Detention HIAS Hofstra Asylum Clinic, Maurice A. Deane School of Law at Hofstra University Hope Border Institute Human Rights First Human Rights Initiative of North Texas Human Rights Watch Immigrant & Non-Citizen Rights Clinic - CUNY Law School 5 Immigrant Defenders Law Center Immigration Services and Legal Advocacy (ISLA) International Refugee Assistance Project International Rescue Committee John Elledge & Assoc PC Juntos Justice for Migrant Families WNY Justice Strategies Keep Tucson Together Community Legal Clinic Kids in Need of Defense Kino Border Initiative Latin America Working Group Lawyers’ Committee for Civil Rights for the San Francisco Bay Area The Leadership Conference/Education Fund Leadership Conference of Women Religious Legal Aid Justice Center MADRE, Inc. Mennonite Central Committee U.S. Washington Office Migrant Center for Human Rights National Advocacy Center of the Sisters of the Good Shepherd National Association of Social Workers National Council of Churches National Immigrant Justice Center National Immigration Law Center National Immigration Project of the National Lawyers Guild 6 National Lawyers Guild, Indiana Chapter Network in Solidarity with the People of Guatemala (NISGUA) New Sanctuary Coalition New York Law School Asylum Clinic Northern Manhattan Coalition for Immigrant Rights (NMCIR) Northwest Immigrant Rights Project Oxfam America Physicians for Human Rights Project South Public Counsel Quixote Center Reformed Church of Highland Park RGV Rapid Response -RGVEVN Rian Immigrant Center Safe Passage Project San Diego Immigrant Rights Consortium Sanctuary for Families Santa Fe Dreamers Project Service Employees International Union (SEIU) Sisters of Mercy of the Americas - Justice Team Snohomish Immigration Advocacy Sojourners South Bay People Power Southern Border Communities Coalition Southern California Immigration Project 7 Southern Poverty Law Center Still Waters Anti-trafficking Program Survivors of Torture, International T’ruah: The Rabbinic Call for Human Rights U.S. Committee for Refugees and Immigrants (USCRI) Union for Reform Judaism Unitarian Universalist Service Committee The United Methodist Church - General Board of Church and Society United We Dream University of the District of Columbia Law School Immigration & Human Rights Clinic University of Maryland Carey Immigration Clinic Washington Office on Latin America Welcoming Immigrants Housing Project Witness at the Border Women’s Refugee Commission Young Center for Immigrant Children’s Rights
1. Subsequently, the Centers for Disease Control released an emergency interim final rule, based on a 1944 public-health statute, 42 U.S.C. §§ 265, 268 see https://www.federalregister.gov/documents/2020/03/24/2020-06238/control-of-communicablediseases-foreign-quarantine-suspension-of-introduction-of-persons-into. That rule and statute cannot supersede the protection obligations described in this letter.
2. See https://twitter.com/diazbriseno/status/1241017890322747399?s=20. On Saturday March 21, 2020, the Washington Post reported that Mexico would “accept deportees from . . . Guatemala, Honduras and El Salvador – as long as they are adults in good health,” directly from Border Patrol “field processing tents,” implying that not even the bare process under Remain in Mexico will be accorded. See https://t.co/OMgwtjwmAV. Remain in Mexico was recently declared unlawful by the U.S. Court of Appeals for the Ninth Circuit but allowed to continue by the Supreme Court pending resolution of the case’s legal merits. Responding to the Saturday report, an unnamed Mexican official stated that “Central Americans will be accepted if they are in MPP or get a humanitarian visa. . . . If not — Mexico will make a decision case by case.” 8 https://twitter.com/Haleaziz/status/1241455273618722816?s=20. For the Mexican government’s official statement, see https://www.gob.mx/sre/documentos/nota-informativa-relacionesexteriores-no-11.
3. From DHS’s representations this week, it is uncertain whether these removals would even adhere to the paltry process of expedited removal under 8 U.S.C. § 1225.
4. The Ingraham Angle (Mar. 20, 2020), https://youtu.be/Y139y21A7s0
5. “Trump administration to impose new restrictions at border, leaving asylum seekers in limbo.” ABC News (Mar. 20, 2020), https://abcnews.go.com/Politics/trump-administration-imposerestrictions-border-leaving-asylum-seekers/story?id=69717143
6. CBP is apparently also eliminating asylum applications at ports of entry, promising on March 20, 2020 to “suspend or reduce routine queue management procedures at the limit line,” meaning that its current metering policy (see https://www.splcenter.org/presscenter/trump-asylum-transitban-blocked) of making asylum seekers wait for weeks or months will be even worsened. “Officials did not say whether any asylum-seeker will be referred to a USCIS screening.” https://twitter.com/camiloreports/status/1241166425747849216?s=20
7. Statement available at https://twitter.com/lorenzozazueta/status/1241062362779660290?s=20.
8. Centers for Disease Control, “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists.” (Mar. 20, 2020), 16, https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3- 20-20_3-p.pdf
9. The few CBP field personnel who have recently been trained are not capable of providing unbiased screening, see https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrolabuses/asylum-officers-are-being-replaced-cbp-agents
10. According to two unnamed “U.S. officials,” “migrants from nations like Cuba, Haiti and China will be held in U.S. detention and placed on deportation flights.” Nick Miroff, “Mexico to begin taking back Central American deportees as emergency border crackdown takes effect.” Washington Post (Mar. 21, 2020), https://t.co/OMgwtjwmAV
11. Refoulement is when a government returns migrants to a country where their lives or liberty may be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. See UN High Commissioner for Refugees (UNHCR), Key Legal Considerations on access to territory for persons in need of international protection in the context of the COVID-19 response (Mar. 16, 2020), https://www.refworld.org/docid/5e7132834.html
12. “Responding to the COVID-19 Crisis While Protecting Asylum Seekers.” (Mar. 19, 2020), https://docs.google.com/document/d/1beORFZsFhKgSd17qoOLkes9A0FeNCIyoGB5MiWOsB KU/edit 9
13. The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) announced the policy of the United States not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture. Michael John Garcia, Congressional Research Service, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens (Jan. 21, 2009), 5, https://fas.org/sgp/crs/intel/RL32276.pdf.
14. President’s Message to Congress Transmitting the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong. Serial Set at 5 (1990) (quoted in Michael John Garcia, Congressional Research Service, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens (Apr. 4, 2006), 2-3, https://trac.syr.edu/immigration/library/P1339.pdf.
15. Quoted in National Citizenship and Immigration Services Council 119, “Union Statement on the Current State of the US Refugee Program.” (Letter to Rep. Zoe Lofgren, Mar. 4, 2020), 6, https://docs.house.gov/meetings/JU/JU01/20200227/110569/HHRG-116-JU01-20200227- SD033.pdf