On May 14, the Center for Justice and International Law (CEJIL), the Latin America Working Group (LAWG), the National Immigration Project of the National Lawyers Guild (NIPNLG), and the Washington Office on Latin America (WOLA) presented an urgent appeal before the United Nations’ Rapporteur on the Human Rights of Migrants, Dr. Felipe González, requesting his intervention to address the ongoing grave harm to the life and integrity of migrants and asylum seekers at the U.S. southern border as a result of the Trump administration’s recent change in policy requiring summary expulsions of migrants.
In the context of the global coronavirus pandemic, on March 20, the United States adopted a new regulatory framework establishing a mechanism to suspend access of certain non-citizens to the United States for defined periods of time and under certain public health-related conditions. The new regulation empowers the director of the Centers for Disease Control and Prevention (CDC), as a matter of public health, to issue orders prohibiting “[i]ntroduction into the United States of persons from a foreign country…so as to bring the person into contact with persons in the United States.”
With its new legal authority, the CDC issued the Order Suspending Introduction of Certain Persons from Countries where a Communicable Disease Exists. Specifically, this order suspends the introduction of persons lacking documentation authorizing their entry into the United States from accessing the territory of the United States from its land borders with Mexico and Canada.
While the order initially suspended the entry of undocumented migrants for a 30-day period, the CDC extended the suspension on April 20. Yesterday, the CDC issued another extension, stating that the order “shall remain in effect until the CDC director determines that the danger of further introduction of COVID-19 into the United States from covered aliens has ceased to be a serious danger to the public health.”
With the application of this new policy, according to official government statistics, in March and April alone, more than 20,000 persons, including unaccompanied children, were expelled or denied admission to the United States on its southern border with Mexico. And between March 21 and May 14, the U.S. government conducted only 59 screening interviews under the Convention Against Torture, with just two findings of reasonable fear.
The regulation and the CDC order leave no doubt that their intention is to prevent people without proper documentation from entering the United States, yet they completely fail to guarantee that persons are protected against non-refoulement. Under international law, non-refoulement is a principle that forbids a country from returning asylum seekers to a country or territory in which they would likely be in danger of persecution.
In addition, the guidance provided to Customs and Border Protection (CBP) on how to implement the CDC order makes no mention of refugee status determination procedures, and completely undermines the identification of individuals in need of protection under the Convention Against Torture. According to the guidelines, CBP should limit these procedures to persons “that make an affirmative, spontaneous, and reasonably believable claim.” This, paired with CBP’s refusal to process asylum applicants at ports of entry, exacerbates the U.S. government’s contradictory stance of discouraging unauthorized crossings yet failing to provide regular channels for those seeking protection.
According to CBP, the first weeks of the regulation’s implementation by way of the CDC order led to more than 80 percent of the people who arrived at the southern border without proper documentation being returned to Mexico within two hours of their arrival. With the application of this new policy, the United States has completely eliminated the possibility of seeking international protection at the border and has forced vulnerable migrants to return to dangerous Mexican border towns where they lack safe shelter, food, and water. In this context, the possibility of social distancing or hygiene practices aimed at preventing COVID-19 contagions is almost non-existent.
Furthermore, there have been several documented cases of asylum seekers who have been expelled from the United States to Mexico’s northern border towns who are then subject to Mexican migration enforcement. Some of those asylum seekers have been detained and forcibly transferred to Mexico’s southern border, where they were abandoned or forced to cross clandestinely into neighboring Guatemala despite border closures.
Once in Guatemala, migrants must try to cross back into Mexico on their own or face the risk of apprehension and detention by Guatemalan authorities for transiting during curfew hours. In this way, the regulation and CDC order are leaving migrants and asylum seekers in situations of extreme vulnerability amidst border closings and tightened enforcement across the region due to the pandemic. The risks to their lives and integrity are tremendous.
In this context, the signatory organizations present this urgent appeal asking the United Nations Rapporteur on the Human Rights of Migrants to: