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Public Comment Opposing Proposed Asylum Bars

Andrew Davidson
Asylum Division Chief
Refugee, Asylum and International Operations Directorate
U.S. Citizenship and Immigration Services
Department of Homeland Security
111 Massachusetts Avenue, NW
Washington, DC 20529

Lauren Alder Reid
Assistant Director, Office of Policy
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 1800
Falls Church, VA 22041

Submitted via Federal eRulemaking Portal: http:// www.regulations.gov

Re: Public Comment Opposing Proposed Rule on Security Bars and Processing, Docket Number USCIS 2020– 0013

Dear Mr. Davidson and Ms. Reid:

Human Rights Watch submits this comment in opposition to the proposed rule by the US Department of Homeland Security (DHS) and the Executive Office for Immigration Review, an agency of the US Department of Justice (DOJ), on Security Bars and  Processing, Docket No: USCIS 2020-0013 / A.G. Order No. 4747-2020, published in the Federal Register, vol. 85, pp. 41,201–41,219, on July 9, 2020.  

Human Rights Watch is a nonprofit, nongovernmental human rights organization. We operate in 90 countries and have been investigating, documenting, and exposing human rights abuses around the world for four decades. We have published numerous reports on the human rights of migrants and asylum seekers within the US immigration system, and on the persecution people have faced because of their race, religion, nationality, membership in a particular social group, or political opinion in countries around the world.

The proposed rule would treat “aliens whose entry would pose a risk of further spreading infectious or highly contagious illnesses or diseases, because of declared public health emergencies in the United States or because of conditions in their country of origin or point of embarkation to the United States,” 85 Fed. Reg. at 41,208, as a “danger to the security of the United States,” barring them from asylum and withholding of removal under sections 208(b)(2)(A)(iv) and 241(b)(3)(B)(iv) of the Immigration and Nationality Act. The proposed rule would also apply this bar, including its use on public health grounds, to the preliminary credible-fear screening stage.

For the following reasons, we urge that the proposed rule be withdrawn in its entirety.

I.          The Proposed Rule Is Premised on a Spurious Public Health Basis

The proposed rule purports to respond to “emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics.” 85 Fed. Reg. at 41,201. In fact, the proposed rule is not based on sound public health principles; to the contrary, it disregards or misapplies the science and core principles of public health.

First, there is no public health rationale for applying public health measures differently based on immigration status. Rational and proportionate public health measures for Covid-19 and some other communicable diseases include testing and quarantine, but immigration status should not affect how these measures are carried out.

Second, the timing of the proposed rule and its extensive discussion of Covid-19, 85 Fed. Reg. at 41,202–41,206, suggest that DHS is attempting to justify the rule as a response to the ongoing pandemic. But the proposed rule will not halt transmission of SARS-Cov-2, the virus that causes Covid-19, or other infectious diseases, and indeed could exacerbate transmission risks. The timeframe set out in the proposed rule—that an asylum seeker who may have come into contact with a communicable disease at any point in the past[1]—is far too expansive to reflect the real risks of transmission. The proposed rule also has the potential to erode public trust, including among refugees and asylum seekers who have lived in the United States for many years and may have come in contact with a communicable disease within the United States, causing them to be reluctant to report such contact to health care providers or authorities.

Third, the proposed rule is premised on a mischaracterization of the processing capacity of US Customs and Border Protection (CBP), the agency that is the first point of official contact for many people seeking asylum upon or shortly after their arrival in the United States, and the options available to both CBP and Immigration and Customs Enforcement (ICE), which among other functions is responsible for longer-term immigration detention facilities. The background discussion to the proposed rule states, for example, that “ICE often detains aliens for time periods ranging from several days to many weeks,” 85 Fed. Reg. at 41,204, and suggests that CBP must hold people seeking asylum in “congregate settings” for lengthy periods, id. In fact, government planning documents and court findings show that CBP can process people in a few hours.[2] Moreover, CBP and ICE have discretion to release adults and families under appropriate reporting requirements, and CBP should expeditiously transfer unaccompanied children to the custody of the US Department of Health and Human Services’ Office of Refugee Resettlement (ORR), the agency charged by law with their care and protection.[3]

Fourth, the proposed rule is overly broad. While it purports to address current and future diseases that could cause a pandemic, the proposed rule applies to any “communicable disease of public health significance” as defined in 42 C.F.R. § 34.2. See 85 Fed. Reg. at 41,211, 41,215, 41,217 (proposed 8 C.F.R. §§ 208.13(c)(10), 208.16(d)(2)(ii)(A), 1208.13(c)(10), and 1208.16(d)(2)(ii)(A)). It would allow DHS and DOJ to ban refugees based on their potential or alleged contact with a wide range of other diseases, including those that are not subject to U.S. quarantine laws, are treatable, or do not present risk of widespread public transmission, such as gonorrhea, syphilis, tuberculosis, and Hansen’s disease (leprosy).[4] In addition, if HHS redesignated the human immunodeficiency virus (HIV) as a communicable disease of public health significance, as it did until 2010,[5] people would be barred under the proposed rule from asylum and withholding if they were living with HIV.[6]

Fifth, the proposed rule is disproportionate to any public health benefit; it is in effect a blanket ban on asylum and withholding of removal. As the Office of the UN High Commissioner for Refugees (UNHCR) has observed, “imposing a blanket measure to preclude the admission of refugees or asylum-seekers, or of those of a particular nationality or nationalities, without evidence of a health risk . . . would be discriminatory and would not meet international standards.”[7]

In short, the proposed rule is not necessary, proportionate, or reasonable to the aim of protecting public health.

II.         The Proposed Use of the National Security Bar Is Inconsistent with the Statute and with US Obligations Under International Law

The proposed rule is doubly pernicious because it improperly attempts to shoehorn a purported public health protection—in this case a specious one—into the national security bar to asylum and withholding. The national security bar to asylum applies in cases where the Attorney General determines that “there are reasonable grounds for regarding the alien as a danger to the security of the United States.”[8] A similar bar applies to withholding of removal under section 241(b)(3) of the Immigration and Nationality Act.[9]

The current US asylum framework is the product of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (Mar. 17, 1980), “a clear statement of intention of the United States Congress to move away from a refugee and asylum policy which, for over forty years, discriminated on the basis of ideology, geography and even national origin, to one that was rooted in principles of humanitarianism and objectivity.”[10]

In enacting the Refugee Act of 1980, Congress intended to implement the United States’ obligations under the Protocol relating to the Status of Refugees (the Refugee Protocol), which incorporated the substantive protections of the Convention relating to the Status of Refugees (the Refugee Convention).[11] Congress enacted the Refugee Act “with the understanding that it is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.”[12] As the US Supreme Court observed, “The principal motivation for the enactment of the Refugee Act of 1980 was a desire to revise and regularize the procedures governing the admission of refugees into the United States,” INS v. Stevic, 467 U.S. 407, 425 (1984), and to make “U.S. statutory law clearly reflect[] our legal obligations under international agreements,” id. at 426 n. 20.[13]

In particular, the withholding provision, including the national security bar, tracks the prohibition of refoulement in article 33 of the Refugee Convention. As the US Supreme Court observed in 1993, the “history of the 1980 Act does disclose a general intent to conform our law to Article 33 of the Convention.”[14] Similarly, the US Court of Appeals for the Third Circuit has stated, “The adoption of essentially identical language to that contained in Article 33 . . . is important because it is one of the strongest indicators that Congress intended to incorporate the understanding of the Protocol developed under international law into the U.S. statutory scheme.”[15]

The proposed rule should therefore reflect the international prohibition of refoulement for two related reasons: regulations should be consistent with obligations under international law,[16] and they should be consistent with the purpose of the statute they implement.[17]

A.         The National Security Bar Was Not Intended to Cover Health Issues

During the drafting of the Refugee Convention, the United States was reluctant to allow any exception to the prohibition of refoulement. The US delegate stated that “it would be highly undesirable to suggest in the text of that article [article 33] that there might be cases, even highly exceptional cases, where a man might be sent to death or persecution.”[18]

Similarly, with respect to article 32 of the Refugee Convention, which sets forth the rule that refugees lawfully in the territory may not be expelled except on grounds of national security or public order, the United States urged against including the public order exception because of its “ambiguity” and because the ground “embraced too much,” allowing for its misuse “as a pretext for getting rid of any refugee on the ground that he was, for one reason or another, an undesirable person.”[19] In particular, the United States opposed the expulsion of refugees “because they had been sick,” among other reasons.[20]

The US understanding that health-related reasons should not be a basis for expulsion of refugees or an exception to the protection against refoulement is confirmed by government memoranda preceding US ratification of the Refugee Protocol. Although the US Department of Health, Education and Welfare initially recommended a reservation to the Refugee Protocol to allow exclusion on “health related grounds,”[21] it withdrew that recommendation before the administration sought the Senate’s advice and consent to ratification.[22] When Secretary of State Dean Rusk asked President Lyndon B. Johnson to submit the Refugee Protocol to the Senate, he observed that “[a]s refugees are by definition without a homeland, deportation of a refugee is a particularly serious measure, and it would not be humanitarian to deport a refugee for reasons of health . . . .”[23]

B.         The Proposed Rule Does Not Meet the High Threshold in International Law for the National Security Exception in Article 33 of the Refugee Convention

The drafting history and subsequent authoritative interpretations of the Refugee Convention also establish that the national security exception has a high threshold. The Office of the United Nations High Commissioner for Refugees (UNHCR) has repeatedly directed that the bar only be applied in “extreme cases” and “with the greatest caution”[24] and has emphasized that “[t]he threat to security exception to States’ non-refoulement obligations, like any exception to human rights guarantees, must be interpreted restrictively . . . .”[25]

The Refugee Convention and Refugee Protocol expressly provide that UNHCR has a supervisory role over the application of these treaties.[26] States party to each of the convention and the protocol “undertake to co-operate” with UNHCR and “shall in particular facilitate” its supervision of these treaties.[27] These specific obligations were, in fact, added to the treaties at the recommendation of the United States.[28] UNHCR interpretations of the provisions of the Refugee Convention and Refugee Protocol are accordingly authoritative views that states should take into account in implementing these treaties.[29]

The danger posed must be very serious: a UNHCR commentary prepared by the legal scholar Paul Weis observes that “[n]ot every reason of national security may be invoked.”[30] UNHCR has concurred with the assessments of another noted legal scholar, Walter Kälin, that the requirement “can only mean that the refugee must pose a serious danger to the foundations or the very existence of the State, for his or her return to the country of persecution to be permissible.”[31] Acts less serious than the following would not be sufficient to meet this “particularly stringent”[32] threshold: espionage,[33] “attempts to overthrow the government of the host State through violence or otherwise illegal means,”[34] acts of terror,[35] or other “acts of a rather serious nature endangering directly or indirectly the constitution, government, the territorial integrity, the independence, or the external peace of the country concerned.”[36] As the Third Circuit observed, “International law scholars agree (unanimously so far as we can tell) that Article 33.2 carves out a limited exception to mandatory withholding, and that the ‘danger’ sufficient to threaten national security encompasses only serious acts.”[37]

Any application of the national security exception must also be “a proportionate response to the perceived danger. There must be a rational connection between the removal of the refugee and the elimination of the danger; refoulement must be the last possible resort to eliminate or alleviate the danger; and, the danger to the country of refuge must outweigh the risk to the refugee upon refoulement.”[38]

The proposed rule does not meet the stringent threshold required under article 33 of the Refugee Convention. In addition, as described in section I of this comment, the proposed rule is not a proportionate response to the threat it purports to address, is not premised on a rational connection between removal of refugees and the elimination of the alleged danger, and the alleged danger does not outweigh the risks to those who would be removed.

C.          Properly Applied, the National Security Bar Requires an Individualized Determination

UNHCR has concluded that application of the national security exception to article 33 of the Refugee Convention “requires an individualized determination.”[39] In similar terms, the scholars Elihu Lauterpacht and Daniel Bethlehem observe, “It will not satisfy the requirement that there be ‘reasonable grounds’ for regarding a refugee as a danger to the security of the country for such an assessment to be reached without consideration of his or her individual circumstances.”[40]

More generally, decisions to apply the national security exception “must be reached in accordance with due process of law which substantiates the security threat and allows the individual to provide any evidence which might counter the allegations.”[41]

Applying the national security exception without these safeguards amounts to arbitrary and summary expulsion. The use of the national security exception to preclude whole categories of people from seeking asylum or receiving withholding of removal is akin to collective expulsion.[42] As UNHCR warns, “[t]he summary rejection of asylum-seekers at borders or points of entry may amount to refoulement.”[43] Collective expulsion is prohibited under international law.[44]

The proposed rule does not include the crucial safeguards of an individualized determination to apply the national security bar, including a requirement that authorities substantiate the security threat and the opportunity of the individual affected to respond to the state’s allegations.   

D.         The Proposed Use of the National Security Bar Is Inconsistent with Obligations Under the Convention against Torture, the International Covenant on Civil and Political Rights, and Customary International Law

The  Convention against Torture and the International Covenant on Civil and Political Rights, treaties to which the United States is a party, prohibit returns in circumstances where people would face a substantial risk of torture. [45] The prohibition of refoulement is also a rule of customary international law,[46] and in the case of returns to risk of torture, the prohibition is a peremptory norm of international law.[47] These obligations are in addition to the nonrefoulement provision of the Refugee Convention.

There are no exceptions, including on national security grounds, to the prohibition of refoulement under the Convention against Torture. The Convention against Torture’s nonrefoulement provision both reflected article 33 of the Refugee Convention and also drew on caselaw interpreting the European Convention on Human Rights, which protects against return to a risk of torture without exceptions for national security.[48] Reviewing the drafting history of the convention, the legal scholars David Weissbrodt and Isabel Hörtreiter concluded that “it was a deliberate decision of the drafting committee not to adopt the limitations of the Convention on Refugees.”[49]

The UN Committee against Torture, the treaty body that provides authoritative guidance on states’ obligations under the Convention against Torture, has confirmed that “[t]he principle of ‘non-refoulement’ of persons to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture is . . . absolute.”[50]

The committee has also noted:

Each state party must apply the principle of non-refoulement in any territory under its jurisdiction or any area under its control or authority, or on board a ship or aircraft registered in the State party, to any person, including persons requesting or in need of international protection, without any form of discrimination and regardless of the nationality or statelessness or the legal, administrative or judicial status of the person concerned under ordinary or emergency law.[51]

Compliance with the nonrefoulement obligation under the Convention against Torture requires individual, impartial, and independent examination of “[e]ach case” in a way that provides “essential procedural safeguards.”[52]  In particular, “[c]ollective deportation, without an objective examination of the individual cases with regard to personal risk, should be considered as a violation of the principle of nonrefoulement.”[53]

Under the ICCPR, states are obligated not to extradite, deport, expel, or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm.[54] As with the nonrefoulement obligation of the Convention against Torture, the obligation under the ICCPR does not allow for exceptions.[55]

Deferral of removal, the far more limited form of protection available under US law to people who establish that they are “more likely than not to be tortured in the country of removal” but are subject to a mandatory bar to withholding of removal,[56] does not satisfy the United States’ obligations under the Convention against Torture and the ICCPR. Deferral of removal does not protect against removal to a third country.[57] It is “effective only until terminated,”[58] and the government may request termination at any time,[59] triggering a termination hearing in which the individual concerned again bears the burden of establishing eligibility for deferral of removal.[60] The Attorney General may also order termination at any time, without a hearing, “based on diplomatic assurances forwarded by the Secretary of State.”[61] The regulations specify: “Once assurances are provided . . . , the alien's claim for protection under the Convention Against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.”[62] A person who receives deferral of removal may be detained at the discretion of DHS.[63]

The procedures for termination based on diplomatic assurances afford no process for affected individuals to have notice of and respond to any decision to seek diplomatic assurances or to review and contest diplomatic assurances once they are given. It is not clear what mechanisms for monitoring, enforcement, and remedies for noncompliance, if any, the United States establishes with the state providing diplomatic assurances. As UN and other authorities have observed, diplomatic assurances are unreliable if the state giving them has a track record of engaging in torture or allowing other actors to do so.[64] In fact, there is abundant evidence that people sent to countries with diplomatic assurances have subsequently been tortured.[65]

Deferral of removal is deficient in other respects. Removal to a third country may result in indirect refoulement if those who are removed could be subject to onward deportation or have no real alternative other than returning to a place of danger.[66] Protracted detention may create conditions in which people feel they have no realistic option other than accepting return, even to risk of serious harm, in which case it is also a form of indirect refoulement.[67]

Any use of the proposed rule to bar people from withholding of removal in circumstances where they would face substantial risk of torture upon removal would violate the United States’ obligations under the Convention against Torture, the ICCPR, and customary international law.

III.        The Proposed Rule Would Result in Denials Based on Circumstances Created by the Government, Offending Notions of Fundamental Fairness

Under the proposed rule, circumstances US authorities impose would trigger the national security bar. For example:

  • People held in immigration detention: ICE continues to detain many people seeking asylum, despite outbreaks of Covid-19 in immigration detention. At the beginning of July 2020, those held in ICE detention included about 260 family members, about half of them children.[68] The proposed rule could be used to bar people held in ICE detention if they exhibit symptoms or are exposed to Covid-19 even though their symptoms of or exposure to the virus is the result of ICE’s negligence.
  • People subject to the so-called Migrant Protection Protocols (MPP): US immigration authorities have sent more than 60,000 people to Mexico while their US asylum hearings are pending; more than 13,000 of these cases are still pending.[69] DHS and DOJ initiated and expanded MPP, often referred to as the “Remain in Mexico” program, even though senior administration officials knew or should have known that most people sent to Mexico under the program would have to rely on the limited, overstretched humanitarian services available in Mexican towns bordering the United States. From the start of the program, DHS and DOJ had ample warning of overcrowded shelters, food insecurity, concerns about the ability to maintain good hygiene, and the heightened risk these conditions posed for the spread of contagious disease. DHS has refused most requests for exemption or release from MPP on humanitarian grounds, as Human Rights Watch and other groups have found. And at the beginning of the pandemic, when Mexican states on the US border had few or no known cases of Covid-19, DHS rejected calls to release people from MPP to allow them to join family members or friends in the United States while their asylum claims proceed. The proposed rule asserts that “the existence of COVID-19 in Mexico presents a serious danger of the further introduction of COVID-19 into the United States,” 85 Fed. Reg. at 41,204, but fails to note that the MPP policy has exacerbated the very conditions the United States cites by forcing asylum seekers to remain in heavily congested areas near border crossings because of “metering” and MPP policies.[70]

Other potential uses of the proposed rule would also result in absurd outcomes. For instance, nurses, doctors, paramedics, and any other essential workers who are asylum seekers would be barred from asylum and withholding of removal if they have or are deemed to have “come into contact” with Covid-19 or another disease designated as a danger to the security of the United States. In another such example, as noted in section I of this comment, the proposed rule sets no temporal limit on the application of the bar. As a result, any contact with a disease that is eventually designated a public health emergency could bar asylum and withholding of removal regardless of how long ago the contact occurred and even if the likelihood of transmission is negligible.

Conclusion

The proposed rule is not based on sound public health principles; it will not halt transmission of SARS-Cov-2, the virus that causes Covid-19, or other infectious diseases, and indeed could exacerbate transmission risks. It would violate the United States’ obligations under the Refugee Protocol, the Convention against Torture, the International Covenant on Civil and Political Rights, and customary international law. It is inconsistent with the Refugee Act of 1980, enacted to bring the United States into compliance with its obligations under the Refugee Protocol. Its application would lead to denials of asylum and withholding of removal based on circumstances US authorities have created and other absurd outcomes that offend notions of fundamental fairness.

We request that DHS and EOIR take these comments into account and withdraw the proposed rule in its entirety.

Please contact us if you have questions regarding our comments. Thank you for your consideration.

Sincerely,

Michael Garcia Bochenek
Senior counsel 

Kyle Knight
Senior researcher

 

[1] Security Bars and Processing, 85 Fed. Reg. 41,201, 41,211; 41,215; 41,217–41,218 (July 9, 2020) (proposed amendments to 8 C.F.R. §§ 208.13, 208.16, 1208.13, 1208.16).

[2] See Human Rights First, CDC Relied on False Assertions in Issuing Covid-19 Order Being Used to Illegally Override US Asylum Laws 1 (June 2020),  https://www.humanrightsfirst.org/sites/default/files/CDCReliedonFalseAssertionsinIssuingOrderUsedtoIllegallyOverrideAsylumLaw.pdf (viewed July 21, 2020).

[3] See Immigration and Nationality Act (INA) § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A) (US Department of Homeland Security (DHS) has authority to parole individuals into the United States); 8 C.F.R. § 212.5 (describing circumstances under which US Customs and Border Protection (CBP) can parole an individual into the United States); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, tit. II, § 235(b)(3), 122 Stat. 5044, 5077 (Dec. 23, 2008), codified at 8 U.S.C. § 1232(b)(3) (except in the case of exceptional circumstances, unaccompanied children in the custody of any federal department or agency, including DHS, must be transferred to the Office of Refugee Resettlement (ORR) within 72 hours after determining that they are unaccompanied children).

[4] See US Citizenship and Immigration Services, Policy Manual, Communicable Diseases of Public Health Significance (July 30, 2020), https://www.uscis.gov/policy-manual/volume-8-part-b-chapter-6 (viewed Aug. 4, 2020).

[5] See id.

[6] When the human immunodeficiency virus (HIV) was designed a “communicable disease of public health significance,” people living with HIV were generally subject to inadmissibility bars, but even then were not barred from asylum. See Susanna E. Winston and Curt G. Beckwith, The Impact of Removing the Immigration Ban on HIV-Infected Persons, 25 Aids Patient Care & STDs 709-711 (2011); US Department of Justice, Executive Office of Immigration Review, Fact Sheet: Asylum and Withholding of Removal Relief, Convention Against Torture Protections (Jan. 15, 2009), https://www.justice.gov/sites/default/files/eoir/legacy/2009/01/23/AsylumWithholdingCATProtections.pdf (viewed Aug. 4, 2020).

[7] UNHCR, Key Legal Considerations on Access to Territory for Persons in Need of International Protection in the Context of the Covid-19 Response, ¶ 6 (Mar. 16, 2020).

[8] INA § 208(b)(2)(A)(iv), 8 U.S.C. § 1158(b)(2)(A)(iv). Congress  added the “danger to the security of the United States” bar to asylum in 1996 when it revised the withholding and asylum provisions as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).

[9] INA § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv) (“reasonable grounds to believe that the alien is a danger to the security of the United States”). Regulations implementing the INA and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (ratified by United States Oct. 21, 1994), also provide for withholding of removal. See 8 C.F.R. §§ 208.16(c), 1208.16(c). Withholding of removal under the Convention against Torture is unavailable to a person to whom the national security exception applies. Id. §§ 208.16(d)(2), 1208.16(d)(2).

[10] Deborah Anker, The Refugee Act of 1980: An Historical Perspective, in 5 In Defense of the Alien 89, 89 (1982).

[11] Protocol relating to the Status of Refugees (Refugee Protocol), Jan. 31, 1967, 606 U.N.T.S. 267 (accession by United States Nov. 1, 1968); Convention relating to the Status of Refugees (Refugee Convention), July 28, 1951, 189 U.N.T.S. 137. The Refugee Protocol removed the temporal and geographic restrictions contained in the Convention relating to the Status of Refugees. See Refugee Protocol, art. I.

[12] H.R. Conf. Rep. No. 96-781, at 20 (1980).

[13] See also INS v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987) (noting that “one of Congress' primary purposes was to bring United States refugee law into conformance with” the Refugee Protocol); INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (same); Negusie v. Holder, 555 U.S. 551 (2009) (same); Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir.1996) (“[T]he Refugee Act was enacted to fulfill our treaty obligations under the [1967] U.N. Protocol for the benefit of aliens . . . who claim to be fleeing persecution in their homelands.”); Yusupov v. Att’y Gen., 518 F.3d 185, 203 (“Congress intended to protect refugees to the fullest extent of our Nation’s international obligations.”).

[14] Sales v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 178 (1993).

[15] Yusupov, 518 F.3d at 203 n.32 (3d Cir. 2008) (citing Haitian Centers Council, 509 U.S. at 180 & n. 36; Cardoza-Fonseca, 480 U.S. at 429, 432, 437).

[16] The requirement that obligations under international law be performed in good faith is a general principle of international law. See Vienna Convention on the Law of Treaties, May 23, 1969, 1115 U.N.T.S. 331, pmbl. (“the principles of . . . good faith and the pacta sunt servanda rule are universally recognized”), art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”). See also, e.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (statutes enacted by Congress “ought never to be construed to violate the law of nations if any other possible construction remains . . . .”).

[17] See, e.g., Fed. Express Corp. v. Holowecki, 552 U.S. 389, 401-02 (2008) (rejecting an interpretation of a regulation because it would be in "tension with the structure and purposes" of the authorizing statute).

[18] UN Economic and Social Council, Ad Hoc Committee on Refugees and Stateless Persons, Summary Record of the Fortieth Meeting, U.N. Doc. E/AC.32/SR.40 (Sept. 27, 1950), at 31, https://undocs.org/E/AC.32/SR.40 (viewed Aug. 1, 2020).

[19] UNHCR, The Refugee Convention 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis 222 (1990), https://www.refworld.org/docid/53e1dd114.html (viewed August 1, 2020). In this regard, the delegate of the United States stated that “[h]is main fear was that the term ‘public order’ might mean much more than what it appeared to mean on the surface.” Ad Hoc Committee on Refugees and Stateless Persons, Summary Record of the Fortieth Meeting, U.N. Doc. E/AC.32/SR.40, at 14.

[20] UNHCR, The Refugee Convention, 1951: The Travaux préparatoires, at 222.

[21] Memorandum to Ambassador Graham Martin, special assistant to the Secretary of State for refugee and migration affairs, from Andrew B. Nighswander, assistant to the secretary, US Department of Health, Education and Welfare, July 16, 1968, at 5 (on file with Human Rights Watch).

[22] Memorandum to Ambassador Graham Martin, special assistant to the Secretary of State for refugee and migration affairs, from Andrew B. Nighswander, assistant to the secretary, US Department of Health, Education and Welfare, July 22, 1968 (on file with Human Rights Watch).

[23] Letter of Submittal from Dean Rusk, Secretary of State, to President Lyndon B. Johnson, July 25, 1968, in Protocol Relating to the Status of Refugees: Message of the President of the United States Transmitting the Protocol Relating to the Status of Refugees, Done at New York on January 31, 1967 (1968), at viii.

[24] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 154 (1992); UNHCR, Note on the Principle of Non-Refoulement (Nov. 1997); Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Nonrefoulement: Opinion, in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection 87, 134 (Erika Feller, Volker Türk & Frances Nicholson eds., 2003) (bar should be applied with “particular caution”); UNHCR, Addressing Security Concerns Without Undermining Refugee Protection, UNHCR’s Perspective, ¶ 29 (Rev. 2, Dec. 17, 2015) (the threshold for applying an exception to the nonrefoulement principle is “particularly stringent”).

[25] UNHCR, Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees, at 1 (Jan. 6, 2006). See also id. at 3-4.

[26] Refugee Convention, art. 35; Refugee Protocol, art. 2

[27] Id.

[28] “At the second session of the ad hoc Committee, the US representative thought that the Committee in drafting Article 30 [article 35 of the Refugee Convention as ultimately adopted] had been hesitant to bind Contracting States too definitely to cooperate with the UN High Commissioner for Refugees. . . . The amendment proposed in the US representative's comment was therefore designed to remove the hesitant tone of Article 30.” UNHCR, The Refugee Convention 1951: The Travaux Préparatoires Analysed, at 254. For the official summary of this drafting meeting, see Ad Hoc Committee on Refugees and Stateless Persons, Summary Record of the Fortieth Meeting, U.N. Doc. E/AC.32/SR.40, at 34-35.

[29] See Walter Kälin, Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond, in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection 627 (Erika Folker, Volker Türk & Frances Nicholson eds., 2003); Volker Türk, UNHCR’s Supervisory Responsibility, 14 Revue québécoise du droit internationale 135 (2001).

[30] UNHCR, The Refugee Convention, 1951: The Travaux préparatoires, at 245.

[31] Walter Kälin, Das Prinzip des Non-refoulement 131 Bern and Frankfurt am Main: Peter Lang, 1982), cited in UNHCR, Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees, at 5 (Jan. 6, 2006).

[32] UNHCR, Addressing Security Concerns Without Undermining Refugee Protection—UNHCR's Perspective, ¶ 29. Accord Elihu Lauterpacht & Daniel Bethlehem, The Scope & Content of the Principle of Non-Refoulement, ¶ 169 (2001).

[33] UNHCR, The Refugee Convention, 1951: The Travaux préparatoires, at 245.

[34] Kälin, Das Prinzip des Non-refoulement, at 131, quoted in UNHCR, Advisory Opinion Regarding the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention, at 5 n.25 (Jan. 6, 2006).

[35] Id.

[36] Atle Grahl-Madsen, Commentary on the Refugee Convention 1951: Articles 2-11, 13-37, at 236 (manuscript 1963, published by UNHCR 1997), https://www.unhcr.org/3d4ab5fb9.pdf (viewed August 1, 2020).

[37] Yusupov, 518 F.3d at 203 n.30 (citing James C. Hathaway, The Rights of Refugees Under International Law 346 (2005); Lauterpacht & Bethlehem, The Scope and Content of the Principle of Non-Refoulement, ¶¶ 170, 191; Grahl-Madsen, Commentary on the Refugee Convention 1951, at 236; UNHCR, The Refugee Convention, 1951: The Travaux Preparatoires Analysed, at 342-43). The Supreme Court has cited several of these works by international law scholars as authoritative. See INS v. Cardoza-Fonseca, 480 U.S. 421, 440 n. 24 (1987) (Grahl-Madsen); Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 710 n. 3 (1976) (Lauterpacht and Bethlehem); id. at 728 n. 14 (Marshall, J., dissenting) (Lauterpacht and Bethlehem).

[38] UNHCR, Advisory Opinion on the Scope of the National Security Exception, at 2. See also UNHCR, Addressing Security Concerns Without Undermining Refugee Protection—UNHCR's Perspective, ¶ 28.

[39] 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, ¶ 9 (Jan. 26, 2007).

[40] Lauterpacht & Bethlehem, The Scope and Content of the Principle of Non-Refoulement, ¶ 174.

[41] UNHCR, Addressing Security Concerns Without Undermining Refugee Protection—UNHCR's Perspective, ¶ 28.

[42] Interpreting the prohibition on collective expulsions in Protocol No. 4 to the European Convention on Human Rights, Sept. 16, 1963, E.T.S. 46, art. 4, the European Court of Human Rights uses the following test: a collective expulsion is “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.” Čonka v. Belgium, App. No. 51564/99 (Eur. Ct. H.R. Feb. 5, 2002), ¶ 59. Even when each person receives an individual examination, the Court looks at the content and context of expulsion orders to determine whether they amount to collective expulsion. Id. It has found, for instance, that limited reference to personal circumstances in deportation orders, large numbers of deportations carried out at the same time, public announcements that deportation operations would take place, the use of identical wording in deportation orders, the fact that people ordered deported had difficulty contacting lawyers, and the failure of authorities to complete asylum procedures amounted in combination to collective expulsion. Id. ¶¶ 61-63.  

[43] Id. ¶ 11.

[44] See, e.g., Human Rights Committee, General Comment No. 15: The Position of Aliens Under the Covenant, ¶ 10 (Apr. 11, 1986); UN Human Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, U.N. Doc. A/HRC/7/12, ¶ 49 & n.36 (Feb. 25, 2008) (“All cases of expulsion should be decided upon on an individual basis and States should ensure that no collective expulsions take place.”); Office of the UN High Commissioner on Human Rights, Expulsion of Aliens in International Human Rights Law, at 16 (OHCHR Discussion Paper Sept. 2006) (“collective expulsions are unlawful under international and regional human rights law”).

[45] Convention against Torture, art. 3.

[46] See, e.g., 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, ¶ 15 (stating UNHCR’s view that the prohibition of refoulement is a rule of customary international law).

[47] See, e.g., Prosecutor v. Anto Furundzija, Trial Chamber Judgment ¶ 144 (International Criminal Tribunal for the former Yugoslavia (Dec. 10, 1998) (“This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.”).

[48] See David Weissbrodt and Isabel Hörtreiter, The Principle of Non-Refoulement: Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non-Refoulement Provisions of Other International Human Rights Treaties, 5 Buff. Hum. Rts. L. Rev. 1, 7 (1999). See also, e.g., Chahal v. United Kingdom, 23 Eur. Ct. H.R. 413, ¶ 2(5) (1996); Ahmed v. Austria, 24 Eur. Ct. H.R. 278 (1996).

[49] Weissbrodt and Hörtreiter, The Principle of Non-Refoulement, at 16.

[50] Committee against Torture, General Comment No. 4 on the Implementation of Article 3 of the Convention in the Context of Article 22, U.N. Doc. CAT/C/GC/4, ¶ 9 (Sept. 4, 2018).

[51] Id. ¶ 10 (emphasis added).

[52] Id. ¶ 13.

[53] Id. See also id. ¶ 18(a) (calling on states to take steps to ensure “the right of each person concerned to have the case examined individually and not collectively”).

[54] Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment), ¶ 9 (Mar. 10, 1992); Human Rights Committee, General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, ¶ 12 (May 26, 2004).

[55] See Human Rights Committee, General Comment No. 20, ¶ 3 (“The text of article 7 allows of no limitation.”).

[56] See 8 C.F.R. §§ 208.16(c)(4), 1208.16(c)(4) (“Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal.”); 208.17(a), 1208.17(a) (“An alien who: has been ordered removed; has been found . . . to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal . . . shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.”).

[57] Id. §§ 208.17(b)(2), 1208.17(b)(2).

[58] Id. §§ 208.17(b)(1)(iii), 1208.17(b)(1)(iii).

[59] Id. §§ 208.17(d)(1), 1208.17(d)(1) (“The [government’s] motion shall be granted if it is accompanied by evidence that is relevant to the possibility that the alien would be tortured in the country to which removal has been deferred and that was not presented at the previous hearing.”).

[60] Id. §§ 208.17(d)(3), 1208.17(d)(3) (“The burden is on the alien to establish that it is more likely than not that he or she would be tortured in the country to which removal has been deferred.”).

[61] Id. §§ 208.17(f), 1208.17(f).

[62] Id. §§ 208.18(c)(3), 1208.18(c)(3).

[63] Id. §§ 208.17(c), 1208.17(c).

[64] See, e.g., UN General Assembly, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/59/324, ¶¶ 30-37 (Sept. 1, 2004); UNHCR, UNHCR Note on Diplomatic Assurances and International Refugee Protection, ¶¶ 23-26 (Aug. 2006); Suresh v. Canada (Minister of Citizenship and Immigration), ¶ 124, [2002] 1 S.C.R. 3 (Can.). See also Committee against Torture, General Comment No. 4, ¶¶ 20, 27-28.

[65] For instance, after Sweden expelled Ahmed Agiza, an asylum seeker, to Egypt in 2001 based on assurances against torture from the Egyptian government, he was beaten and subjected to electric shock in an Egyptian prison, despite arrangements for post-return monitoring by Swedish diplomats. The Committee against Torture found in 2005 that Sweden had violated its absolute obligation not to return a person to a risk of torture and stated that “the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.” Committee against Torture, Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003, ¶ 13.4 (May 24, 2005).

    In another case, the U.S. government transferred Maher Arar, a dual Canadian-Syrian citizen, from New York via Jordan to Syria in 2002 based on Syria’s diplomatic assurances of humane treatment.  Arar was released in October 2003. An independent fact finder appointed by an official Canadian Commission of Inquiry into Arar's treatment concluded in 2005 that Arar had been tortured in Syrian custody, despite Syrian assurances to the contrary and several visits from Canadian consular officials. In 2006, the Commission of Inquiry itself concluded that Arar's torture in Syria is a “concrete example” that diplomatic assurances from countries with records of very serious human rights violations have no value and do not provide a safeguard against torture. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of Professor Stephen J. Toope, Fact Finder (Oct. 14, 2005), at 17-19, https://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/06-12-13/www.ararcommission.ca/eng/ToopeReport_final.pdf (viewed Aug. 6, 2020); Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations 176 n.19 (2006), https://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/06-12-13/www.ararcommission.ca/eng/AR_English.pdf (viewed Aug. 6, 2020).

    See also, e.g., Andrea Prasow (Human Rights Watch), Diplomatic Assurances: Empty Promises Enabling Torture, Jurist, Oct. 6, 2011 (discussing cases of torture in Libya after transfers following diplomatic assurances), https://www.jurist.org/commentary/2011/10/andrea-prasow-diplomatic-assurances/ (viewed Aug. 6, 2020); Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture (2005), https://www.hrw.org/report/2005/04/14/still-risk/diplomatic-assurances-no-safeguard-against-torture (viewed Aug. 6, 2020); Human Rights Watch, Empty Promises: Diplomatic Assurances No Safeguard Against Torture (2004), https://www.hrw.org/report/2004/04/14/empty-promises/diplomatic-assurances-no-safeguard-against-torture (viewed Aug. 6, 2020).

[66] See Committee against Torture, General Comment No. 4, ¶ 12; International Law Commission, Draft Articles on the Expulsion of Aliens, with Commentaries, art. 10, in UN General Assembly, Report of the International Law Commission, U.N. Doc. A/69/10, ¶ 44 (2014).

[67] See Committee against Torture, General Comment No. 4, ¶ 14.

[68] See Spencer S. Hsu, US Might Separate Families After Judge Orders ICE to Free Migrant Children, Wash. Post, July 7, 2020, https://www.washingtonpost.com/local/legal-issues/us-may-separate-families-after-federal-judge-orders-ice-to-free-migrant-children/2020/07/07/a1758ad6-c067-11ea-b178-bb7b05b94af1_story.html (viewed Aug. 6, 2020).

[69] Transactional Records Access Clearinghouse, Syracuse University, Details on MPP (Remain in Mexico) Deportation Proceedings by Hearing Location and Attendance, Representation, Nationality, Month and Year of NTA, Outcome, and Current Status (June 2020), https://trac.syr.edu/phptools/immigration/mpp/ (viewed Aug. 6, 2020).

[70] See, e.g., Human Rights Watch, US: Mexican Asylum Seekers Ordered to Wait, Dec. 23, 2019, https://www.hrw.org/news/2019/12/23/us-mexican-asylum-seekers-ordered-wait (viewed Aug. 6, 2019);

Human Rights Watch, US Move Puts More Asylum Seekers at Risk: Expanded “Remain in Mexico” Program Undermines Due Process, Sept. 25, 2019, https://www.hrw.org/news/2019/09/25/us-move-puts-more-asylum-seekers-risk (viewed Aug. 6, 2020); Human Rights Watch, “We Can’t Help You Here”: US Returns of Asylum Seekers to Mexico (2019), https://www.hrw.org/report/2019/07/02/we-cant-help-you-here/us-returns-asylum-seekers-mexico (viewed Aug. 6, 2020).

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