Amidst Attack, a Legal Defense of the Right to Asylum

By Daisy Ni (PO ’21)

In light of the caravan of migrants, thousands in number, traveling from Central America toward the United States, President Trump has released a new series of startling anti-immigration policy Tweets, including the idea of banning asylum seekers. The administration has already taken steps over the past few years to reduce the number of asylum cases, which it sees as exploitable “loopholes” in U.S. immigration law. If a full ban were enacted, the policy would have drastic ramifications, both symbolic and actual—the indefinite suspension of asylum seekers represents a policy never before implemented in the U.S., and many human rights activists are already voicing concerns over its legality.

Internationally, the U.S. is obligated to adhere to non-refoulement, which prohibits the expulsion or return of an individual to a place where they would be in danger. This principle was officially enshrined in Article 33(1) of the 1951 Convention Relating to the Status of Refugees, and further bound by the convention’s 1967 Protocol. The Convention Against Torturesimilarly articulates the duty to not return a person to a state where they may face torture or other serious harms. Together, these agreements lay out explicitly the right to apply for asylum, a right that the U.S., as a party to the 1967 Protocol and the Convention Against Torture, is bound to honor.

Denying asylum seekers would thus be violating the principle of non-refoulement. It is worth noting that the 1951 Convention on Refugees does establish an exception for the right to asylum in Article 33(2), stating that the benefit of non-refoulement “may not… be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is.” However, the commentary on the convention—published by the Division of International Protection of the UN High Commissioner for Refugees—asserts that Article 33(2) “clearly calls for deciding each individual case on its own merits.” The commentary further states that “the authorities in many cases ought to give a refugee fair warning and a chance to amend his ways, before expulsion to a country of persecution is seriously considered.” Thus, the article cannot be used as a justification to deny asylum to a broad group of individuals without discrimination, as Trump is seeking to do. It also clearly requires more demands of the government in the process of expulsion than the administration is prepared to consider; even if Trump claims that asylum seekers are a risk to national security, the article requires him to grant seekers a second chance of correction on a case-by-case basis, disqualifying his blanket refusal to even accept them into the country.

Non-refoulement has similarly been codified within U.S. domestic laws, as well, most notably through the Refugee Act of 1980. Under federal law, individuals seeking asylum must present themselves at a U.S. port of entry or already be in the states. They are granted the asylum status if they can express a credible fear of persecution in their home country.

The Trump administration, in banning asylum seekers, would thus be violating domestic obligations, a conflict that it navigated through the 2017 Muslim ban. In that case, the administration had invoked U.S. Code §1182(f), which states that the president may “suspend the entry of all aliens or any class of aliens” whenever he finds that immigration “would be detrimental to the interests of the United States.”

The president’s power under §1182(f) has been determined to be extremely broad, as interpreted by the Supreme Court’s upholding of the Muslim ban. In the court’s ruling, Chief Justice Roberts wrote that “[§1182(f)] exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”

Despite this precedent, the case of the migrant caravan differs from that of the previous Muslim ban. The court’s ruling depended substantially on the fact that the countries selected in the Muslim ban were identified as having ties to terrorism. In fact, Chief Justice Roberts wrote that the “sole prerequisite set forthin §1182(f) is that the President find that the entry of the covered aliens would be ‘detrimental to the interests of the United States.’” This burden on the administration to identify an issue of national security may be more difficult today—since most members of the caravan are from Central America, countries lacking the same ties to terrorism as did the previous, it is unclear whether the administration can use the same legal argument as before.

The Trump administration’s consideration on banning asylum seekers continues a pattern of disregard for human rights; moreover, it continues a general pattern of the U.S.’s disregard for international agreements. The U.S. has still not ratified many significant human rights treaties such as the International Covenant on Economic, Social, and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. It is one of seven countries that have not ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and one of only two to not have ratified the Convention on the Rights of the Child.

Even when the U.S. does ratify international treaties, it often weakens the provisions by adding reservations that negate the efficacy of certain rights. For example, the U.S. typically declares treaties as “not self-executing,” meaning that without legislation passed by Congress, it alone is unenforceable in domestic courts. The U.S. has also previously limited the scope of the treaty as to not offer any additional rights than what the Constitution already protects. Together, such measures can strip away the legal foundation of international agreements, blocking citizens from invoking international rights in domestic courts.

If enacted, the measure to stop accepting asylum seekers would certainly see challenges in court. It may also face international pressure, although it remains uncertain whether that could influence the Trump administration’s decision-making or implementation approaches. Ultimately, it reveals the extent to which the U.S. has strayed from a model of human rights, presenting a continuing underlying contradiction between the pathways of policies today and the values of equality and liberty upon which the country was founded.


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