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University of New South Wales Law Journal Student Series |
‘A PATTERN OF DISCRIMINATION’: THE UNITED STATES, REFUGEES AND BARRIERS TO ASYLUM
BEATRIZ LINSAO
The drafting of the 1951 Convention relating to the Status of Refugees[1] (‘Refugee Convention’) and the establishment of the Office of the United Nations High Commissioner for Refugees (‘UNHCR’), represented a culmination of international efforts geared towards protecting refugees. However, while many States have since developed comprehensive asylum procedures, a major limitation of the Convention is its inability to dictate the domestic migration-control policies of State parties. The unfortunate result is that, in an effort by States to limit the access of individuals to asylum procedures, such processes are only available to those who are within a State’s territory. Since the principle of non-refoulement prohibits States from directly returning (‘refoule’) an asylum seeker to persecution, this has, in turn, led to States creating policies that seek to bar admission to a State’s territory and thus deny their ability to trigger a State’s protection obligations. This essay’s focus is on the recent migration control policies adopted by the United States (‘US’) which have had the effect of preventing asylum seekers from physically reaching its territory. Specifically, the focus is on the country’s responses to the refugee crisis originating in the Northern Triangle region of Central America, consisting of Guatemala, Honduras and El Salvador, as well as from Mexico. Although not a signatory to the 1951 Convention, the US acceded to the 1967 Protocol Relating to the Status of Refugees[2] and as such is bound by international legal obligations and to adhere to the purpose of the Convention. This essay will argue that the policies that the US has implemented against asylum seekers arriving at the US-Mexico border breaches these obligations. A discussion of the exact nature of the spirit and purpose of the Refugee Convention will be followed by an analysis of the US’ ‘remain in Mexico’ turnback policy, the ‘zero-tolerance’ approach, and the judicial narrowing of the grounds of asylum which will reveal that such practices operate in contravention of the spirit and purpose of the Refugee Convention by preventing people from accessing the US protection regime and returning them to persecution.
The spirit and the purpose of the Refugee Convention can be determined through an assessment of the context in which it was developed, and the legal and protection obligations it confers upon States.
Historically, the first United Nations’ efforts geared towards the protection of refugees were developed in a climate of an emerging human rights culture in the aftermath of The Second World War (1939–1945).[3] The UN Relief and Rehabilitation Administration (‘UNRRA’), created in 1943 and one of the first institutions of the United Nations (‘UN’) to address the plight of displaced persons, was focused on the voluntary repatriation of displaced persons and emphasised the principle that no-one should be forced to return to their country of origin.[4] Later, a more comprehensive approach was adopted by the International Refugee Organization (‘IRO’) when it was established in 1948. It sought to embed legal protection in the response to refugee crises and focused on the settlement of refugees. As the IRO began to disband in the early 1950s, the UNHCR Office was established in 1950 with a mandate to provide legal protection to refugees.[5] Notwithstanding its initial three-year mandate, the UNHCR’s core concern was refugee protection and the promotion of the durable solutions of voluntary repatriation, local integration and resettlement.[6]
Accordingly, the Refugee Convention was drafted in 1951; a multinational treaty outlining the international responsibilities of signatory States. It was underpinned by a focus on legal protection and the construction of the refugee identity,[7] and marked by a vision of providing relief and developing long-term solutions. Notably, the Refugee Convention decreed a number of legal obligations on acceding States, including:[8]
• Non-discrimination as to race, religion or country of origin;[9]
• The provision of access to courts to refugees;[10]
• The principle that asylum seekers should not be penalised for entering a country ‘illegally’;[11]
• The expulsion of a refugee only on the grounds of national security and public order, and;[12]
• Non-refoulement which states that refugees should not be returned to face persecution or the threat of persecution.[13]
The Refugee Convention also emphasised the idea that refugee assistance is based on humanitarian goals and that providing assistance should not cause tensions between States, highlighting the importance of responsibility-sharing and the necessity of international cooperation.[14] Although it was initially limited to persons who became refugees as a result of events before 1 January 1951, this limitation was lifted by the later 1967 Protocol which then freed the application of the Refugee Convention from any temporal limitations.
This historical development is indicative of the spirit and purpose of the Refugee Convention. It represents an international effort to provide legal and practical protection for refugees, governed by an international treaty that is cognizant of the barriers of seeking asylum, such as a lack of legal travel authority (as addressed in article 31), and places measures to overcome these to achieve its ultimate goal of facilitating refugee protection. It can thus be said with certainty that the drafters of the Refugee Convention did not envisage that State parties would then develop an array of policies that are specifically designed to deny an asylum seeker’s access to their territory and thereby render them unable to trigger that State’s protection obligations.
In fact, in spite of the underlying focus on mandating protection for refugees and asylum seekers, a major limitation in the Refugee Convention is its lack of jurisdiction in controlling a State’s domestic admission policies.[15] In other words, while States develop comprehensive protection regimes, as per their obligations under the Refugee Convention, they are free to control the entrance of arriving asylum seekers and thereby are also free to prevent their access. As will be explored, this presents major problems and allows States to enforce non-admission policies against asylum seekers at their border.
Further, despite the apparent optimism of refugee efforts in the 1950s, it is important to note that even from the beginning, States were hesitant to relinquish even some control over their national immigration policies to the UNHCR. The Western nations were concerned that the UNHCR would be a threat to their sovereignty and would impose excessive financial burdens on them, and so sought to limit the amount of material assistance they provided.[16] The US in particular, despite providing the bulk of funding to both UNRRA and the IRO,[17] eventually viewed their commitment to the the two organisations as financial burdens, would not guarantee any funding to the UNHCR and only provided financial contribution in 1955, a decision knowingly made to inhibit the UNHCR’s ability to provide material assistance to refugees.[18]
In addition, the US was weary of committing to open-ended, permanent obligations[19] and actively tried to limit the scope and independence of the UNHCR and pursued policies that best reflected its own foreign policy priorities and allowed them to facilitate refugee protection for their own political advantage.[20] For the US, politics surrounding the issue of refugees has arguably always been a ‘game of cards’,[21] and its determination of which refugees to accept and admit into their territory has always been, to a significant extent, informed by their national and foreign policy interests.[22] For example, the enthusiasm of the US in welcoming Communist defectors as refugees was largely a weapon in the battle of ideologies during the Cold War and a visible way to aid those who supported their anti-Soviet sentiment.[23] In contrast, they then deliberately sought to limit the eligibility of Jewish refugees who they viewed as nothing but ‘urban, socialist troublemakers’.[24] Although the blatant discrimination was justified by America’s need for agricultural, not urban, workers, President Truman, in reluctantly signing the bill in which these provisions were found,[25] still lamented it as ‘forming a pattern of discrimination and intolerance wholly inconsistent with the American sense of justice’.[26]
Such attempts to restrict the amount of assistance and to reduce protection responsibilities are, in hindsight, foreboding of larger problems to come. In fact, it is clear that, in limiting support for the UNHCR and controlling the eligibility of certain refugees, the US was motivated by restrictionist and nationalist fears underpinned by a security mania and a desire to control ‘outsider’ threats.[27] The mania was rooted in a deep concern that people who ‘have known no liberty at all’[28] are inherently security risks and fluctuated over time: during World War II, it was a fear of Jewish ‘fifth column’ spies, while during the Cold War, the fear became that of Communist ‘sleepers’.[29] This restrictionist attitude and nationalist fears can be seen in contemporary immigration discourse in the United States, in relation to refugees arriving from Central America, and have led to a number of policies that operate to specifically prevent refugees from reaching American territory so as not to trigger their protection obligations.
The source of the US’ legal obligations to refugees is found not only in the 1951 Refugee Convention (although they are not a signatory, they acceded to the 1967 Protocol on November 1, 1968) but also in their domestic law through the Refugee Act of 1980.[30] As such, they are bound to comply with international legal protection obligations but also to give effect to the spirit and purpose of the Refugee Convention as discussed above.
Unfortunately, since the conception of the Refugee Convention almost 70 years ago, the responses of the US have become drastically more marked by nationalism and the fear that refugees pose a threat to sovereignty, borders, and national identities.[31] Refugee protection has now become a very polarising social issue and refugees are often portrayed as threats that need to be restricted and turned away.[32] With the increase of policies that deny access to signatory State territories, the irony is that many states nowadays have a good system in place to provide protection but only if those seeking are within the State’s territory.[33]
The major problem with policies that deny entry to American territory is that, in essence, they turn away asylum seekers and force them to return to a risk of persecution, contrary to the principle of non-refoulement and the purpose of protection manifested in the Refugee Convention. Applying statutory interpretation principles, the doctrine of non-refoulement should have no territorial limits and should apply both inside and outside of a State’s borders.[34] However, American judicial development has created an ‘unprecedented domestic rule of territorial non-refoulement’[35] which states that neither article 33 of the Refugee Convention nor domestic law[36] can be read to prohibit the actions of the nation outside of its own territory. The implication of this is that the US can legally turn back, deny access to, or restrict the entry of foreign nationals so long as they are outside their territory. This rule was formed in the case of Sale v Haitian Centers Council, Inc.,[37] where the US Supreme Court interpreted article 33 of the Refugee Convention, the source of the principle of non-refoulement, as availing no protection against deportation for ‘aliens’ outside of US territory.[38] The sole dissenting judgment by Blackmun J, however, argued that the majority had construed the term ‘return’ or ‘refouler’, as found in article 33, as narrower than its ordinary meaning’[39] and had improperly concluded that the protection under article 33 would only apply once the refugee is at the point of initial entry.[40] Further, Blackmun J noted that the lack of geographical limitations in article 33(1), in light of the geographical limitation included in article 33(2), can be inferred to mean that the principle of non-refoulement was intended to apply both inside and outside of a State’s territory.[41]
This approach is followed in current US policies which seek to prevent refugees from reaching its territory, thereby denying them access from asylum procedures. The underlying justification is that if the asylum seeker is not within US territory, then the protection obligations that the country owes them under international and domestic law have no effect. This has been described as a ‘myopic’ and ‘dangerous international precedent’[42] that has inappropriately narrowed the meaning of non-refoulement despite the fact that the original drafters of the Convention did not address the issue of extraterritoriality.[43] This practice is strongly in contrast to the spirit and the purpose of the Refugee Convention as contemplated by the contracting parties[44] and operates to restrict the ability of otherwise eligible asylum seekers from Central America to access American protection.
Metering is one of the main policies in operation along the US-Mexico border. It occurs at the cusp of the border and gives power to Customs and Border Protection (‘CBP’) officers to deny asylum seekers any access to American territory and force them to ‘remain in Mexico’ or otherwise return to their country of origin. The policy of metering is used to ‘cap’ the number of people who can request at a port of entry each day, while those who arrive after the limit is reached are added to a waitlist.[45]
The US Department of Homeland Security has been administering this turnback policy as early as 2016 under the Obama administration, before officially implementing it under the Trump administration in April 2018. It is enforced along the US-Mexico border by CBP agents. The purpose of the policy is to limit the number of people requesting asylum at official ports per day,[46] although it only applies to those arriving without official or valid documentation.[47] The metering policy is apparently an essential response to the ‘unprecedented rise in asylum requests’ and is a tool to manage the ‘safety and health concerns’ that have resulted from overcrowding at legal points of entry.[48] The intended message to prospective asylum seekers can reasonably supposed to be that there is no room for them in the US and that they must wait before seeking protection.[49] In essence, what is occurring is that thousands of asylum seekers, before their claims for protection are even presented to any authority, are being turned away at the border and are being instructed to wait in Mexico until CBP have enough resources and time to process their claims.[50]
The result is that these individuals and families fleeing persecution are being forced to wait weeks or months before accessing any protection procedures.[51] In the meantime, these asylum seekers are waiting in crossing points along the border, which have become the ‘“unofficial waiting room” of the US.[52] Here, they are exposed to potentially life-threatening risks of becoming victims of crime, violence, kidnapping and trafficking, especially due to the high gang and cartel presence on the Mexican border.[53] They are also vulnerable to detention and deportation by Mexican immigration officials.[54] Further exacerbating the predicament is the fact that the wait period is indefinite and can span months, with no guarantee that they will eventually even be allowed to cross. Worryingly, there are also reports that the CBP agents patrolling the border are deliberately dissuading people from seeking asylum by threatening them with longer wait times and separation from their family or from their children.[55] Some of these individuals who are being denied access to asylum procedures are gay men from the Northern Triangle countries,[56] where homophobia and violence against LGBTQI people is a rampant issue,[57] or a family being pursued by a gang from their home country of Honduras,[58] who are therefore at a high risk of persecution.
This practice effectively prevents asylum seekers from reaching the US and accessing protection there and is in clear contravention of the spirit and purpose of the Refugee Convention. Instead of trying to facilitate protection for refugees, the US is actively making it more difficult for people to claim asylum on their territory and physically turning people away. This is not only against the spirit of the Convention but arguably also falls foul of their legal obligation of non-refoulement found in article 33. The protection against refoulement is of great importance to asylum seekers as it is a safeguard against being returned to where they were experiencing persecution.
These exact arguments were raised by a group of class action plaintiffs, who were asylum seekers affected by the metering policy, in a suit against the Department of Homeland Security in the case of Al Otro Lado, Inc., et al. v Kirstjien Nielsen, Secretary, US Department of Homeland Security.[59] In defending the policy, the government argued that they constitutionally possess plenary power to make laws over immigration and to control the ‘flow of travel across the ... border’.[60] Further, the US administration relies on the determination in the Sale v HCC case to argue that, because the asylum seekers are being turned back while they are still in Mexico, the metering policy does not affect their protection obligations under the Refugee Convention and their own Refugee Act.[61]
However, the Advisory Opinion of the UNHCR on the 1951 Convention[62] (though not binding, it is generally used as a guidance tool for interpreting the 1951 Refugee Convention),[63] paints a largely different picture. The Advisory Opinion specifically states that violations of the principles of non-refoulement include not only the removal or deportation of asylum seekers within a State’s territory, but also non-admission at the border.[64] Harking back to the argument that the principle of non-refoulement has no territorial limitations, and despite the current precedent of domestic American law, their policy of turning back asylum seekers without even hearing their claims for protection nullifies the purpose of the US signing the 1967 Protocol as it allows them to ‘systematically restrict the number of asylum seekers who can access the asylum process’.[65]
Reflecting this approach, on 29 July 2019, Magistrate Judge Crawford of the Federal District Court of Southern California in hearing the appeal of Al Otro Lado et al. v Kevin McAleenan, Acting Secretary of US Department of Homeland Security,[66] partially denied the government’s motion to dismiss and ruled that the act of ‘arriving ... in the US is considered an ‘ongoing process’ that encompasses not only the actual physical arrival within territorial boundaries but also arrival at the border.[67] The court determined that even though the plaintiffs were outside of American territory, they are still entitled to the protections owed by the US since they were in the process of ‘arriving’.[68] Though the ruling was recent and there have been no developments since, this positive decision means that the plaintiffs’ lawsuit against the Department of Homeland Security may proceed and challenge the metering policy in the court system.[69]
The spirit of the Refugee Convention is one that is characterised by compassion and a genuine desire to provide relief to displaced persons and implement durable solutions that provide long-term aid, yet the metering policy does nothing but deprive individuals of their right to seek asylum and then returns them to persecution and danger.
It can also be argued that the metering policy is punitive and infringes article 31 of the Refugee Convention which states that refugees should not be penalised for entering a country ‘illegally’. The reasoning behind this provision is reflective of the understanding that persons in danger and fleeing persecution cannot be expected to leave their country and enter another in a regular manner, and thus should not be penalised for this.[70] The metering policy only applies to those arriving without any proper documentation and, despite claims of constrained resources, metering, in practice, is operating to punish asylum seekers who are seeking to enter ‘irregularly’. The US government is also dressing its current restrictive approach as a security concern. National security, is, of course, important for any nation and those who arrive without proper documentation may present a security risk as the receiving country has no information about their identity. However, these concerns are questionably inflated and are motivated by the same security mania that has arguably influenced US refugee policies since the 1950s.[71] The September 11 terrorist attacks undoubtedly had a profound impact on the US and terrorism is now considered a major security risk, which the administration is using to justify its ‘misguided and ugly agenda’.[72] The reality should be that concerns over national security should not unduly deprive asylum seekers of their right to protection, especially when they have not even had a chance to bring their claims forward for assessment.
On 6 April 2018, then Attorney General Jeff Sessions announced that all of the US Attorney’s Offices situated along the southwest US-Mexico border would be enforcing a new ‘zero-tolerance’ policy that prohibits illegal entry or attempted illegal entry by a foreign national.[73] Individuals apprehended are to be met with ‘the full prosecutorial powers of the Department of Justice’[74] and be detained in federal criminal facilities.
Working in combination with the metering policy, the zero-tolerance approach highlights the restrictive attitude to refugee protection adopted by the Trump administration, aimed at limiting the ability of foreign nationals arriving by the border to reach US territory. Those who arrive at legal crossing points are subjected to a metering policy that has forced thousands to remain in Mexico or return to their country of origin, while those who enter illegally are penalised and are criminally prosecuted. There can be no doubt that US refugee policy is operating to systematically restrict and prevent the ability of asylum seekers to reach American territory and to consequently submit themselves for protection under the Refugee Convention. The contradiction here is that a justification offered by officials for the zero-tolerance policy is its ability to discourage migrants from ‘illegally’ entering the US and submitting fraudulent asylum requests,[75] however, individuals who do enter ‘legally’ through official channels are still equally denied their right to asylum.
The Trump administration has further justified this policy initiative by citing it as a protective measure to guard the US against invasion by Central American migrants.[76] Not only does this perpetuate the pattern of discrimination that began in the 1950s by allowing nationalist, restrictionist fears about security to eclipse the nation’s protection obligations, the zero-tolerance approach is undoubtedly contrary to the spirit and purpose of the Refugee Convention. It is another way through which the administration is using fears of national security to inappropriately deny people of their right to seek asylum. Further, it is difficult to argue how national security is a genuine concern underpinning the zero-tolerance policy when individuals are targeted on a blanket approach, regardless of criminal history (or lack thereof).[77] If CBP does find that a foreign national has serious criminal history, they may then be referred to the Department of Justice for criminal prosecution.[78] Individuals who are not referred may then be returned to their home countries or transferred to immigration detention.[79]
The zero-tolerance policy is in clear contravention of article 31 which prohibits the prosecution of asylum seekers entering ‘illegally’. As discussed above, penalising asylum seekers for irregular entry fails to recognise their plight and the fact that they are fleeing persecution and thus not necessarily in a position to organise regular entry. However, the zero-tolerance policy goes a step further. In a policy memorandum guideline issued by the US Citizenship and Immigration Services, it is emphasised that asylum is a discretionary form of relief and that statutory eligibility is merely the first step and must then be supplemented by a favourable exercise of discretion by the decision-maker.[80] The memorandum, however, places much emphasis on the consideration of the negative factor of unlawful entry. Plainly, it is highlighted that unlawful entry is a serious adverse factor that could be considered in assessing to a claim for asylum.[81] This is a serious breach of the purpose of the US’ international obligations under the Refugee Convention.
Although now reversed by a Presidential Executive Order,[82] the introduction of the zero-tolerance policy was also accompanied by the family separation policy which saw children being taken away from their parents who were being kept in separate federal criminal facilities.[83] There is no doubt that this practice was against the spirit of the Refugee Convention. One of the durable solutions developed by the UNHCR is resettlement, and although resettlement is not available for everyone, there are the seven specific UNHCR Resettlement Submission Categories that are prioritised for resettlement. One of these is ‘family reunification’ and although the right to family reunification is not included in the 1951 Refugee Convention, it was referred to in a UN Conference on Refugees in 1951 as an ‘essential right of the refugee’.[84] The fact that the US enforced a policy that forced children under the age of 18 away from their parents is reflective of their restrictionist attitudes and blatant implementation of acts that derogate from the intended purpose of refugee protection.
Aside from breaches of legal obligations, the zero-tolerance policy cannot be described as anything but acting against the spirit and purpose of the Refugee Convention. The Convention was built on a foundation of compassion that was sympathetic to the plight of displaced persons and endeavoured to promote the provision of relief and material assistance to such individuals. The zero-tolerance policy operates on the approach that all irregular entrants, even those seeking asylum, are doing something ‘illegal’ and must be punished, even though the effect is that they are violating the rights of asylum seekers who are fleeing legitimate threats of violence and persecution.[85] By immediately apprehending any individual caught entering ‘illegally’, the US is punishing irregular asylum seekers and depriving them of the opportunity to have their claims for asylum assessed. The spirit of the Refugee Convention symbolises efforts to reduce barriers to asylum but the metering and zero-tolerance approach are stark examples of US initiatives that seek to increase the hurdles for Central American asylum seekers arriving at their border.
On a final note, and essential to this discussion of the US’ restrictive admission policies, is the Trump administration’s recent manoeuvre to narrow the classes of persons eligible for asylum. Although not technically a policy that prevents people from physically reaching US territory, it is vital to discuss this recent American legal development as it is an administrative decision specifically intended to limit the ability of people from Central America to apply for protection. In addition to all the barriers already put in place to deter and prevent asylum seekers originating from Central America to set foot on American soil, this recent decision undeniably acts as the ‘most consequential’[86] and restrictive non-admission policy discussed in this essay.
The fifth ground for seeking asylum found in the refugee definition in article 1A(2) of the Refugee Convention is ‘membership of a particular social group’ (‘MPSG’). This is perhaps the most broad of the five criterion and the American courts have interpreted it to specifically exclude the class of persons fleeing from gang and domestic violence. Arguably, whether deliberately or not, this is an initiative that works to circumvent protection obligations owed to persons specifically fleeing Central America.
Although United Nations guidelines advise against the interpretation of the MPSG criteria as a ‘catch-all’ that applies to merely anyone fleeing persecution, it requires that a State’s interpretation of it still aligns with the purpose and object of the Refugee Convention.[87] The UNHCR definition states that the MPSG criteria may be understood to reflect:
... [A] particular social group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.[88]
In a recent decision made in June 2018 in the Matter of A-B-,[89] it was held by Attorney General Jeff Sessions that to successfully claim asylum on the basis of MPSG, the applicant must belong in a particular social group which exists independently of the harm asserted in the application for asylum.[90] It was also held that it is not enough to satisfy a claim for asylum if the basis is simply that the government of the State is ineffective in policing certain crimes, and further, if the persecutor is a non-government group, the applicant must be able to show that their government is either unwilling or unable to provide assistance, or has actually condoned such behaviour.[91] The decision specifically noted that asylum claims based on domestic or gang violence perpetrated by non-governmental actors will unlikely qualify the applicant for protection.[92]
This outcome is significant in that it disproportionately affects asylum seekers originating from Central America. The Northern Triangle suffers high levels of violence due to organised criminal groups, extremely high homicide rates, sexual violence, disappearances, forced recruitment into armed gangs, and extortion[93] and most asylum claims made by Central Americans on the southwest border are based on gang, cartel or gender violence.[94] The decision to exclude this class of persons appears sinister when it is considered that the Northern Triangle region in particular has been called the ‘deadliest zone in the world outside of war zones’.[95] The region hosts the largest drug market in the world and is rampant with organised gangs and violence.[96] The decision also fails to recognise the power of these criminal groups and their country’s inability to control them and appears to specifically exclude Central American refugees.[97] As such, the removal of gang violence as a ground for asylum is blatantly against the spirit of providing refugee protection as the US has now systemically excluded an extremely vulnerable group of people from availing themselves to protection.
This may be in breach of article 3 of the Refugee Convention which prohibits discrimination as to race and country of origin. Although not doing so explicitly, this decision has allowed the US to disproportionately discriminate against Central American refugees, most of whom will no longer have eligible grounds of asylum. This is arguably motivated by a security mania and a fear of being ‘invaded’ by Central American migrants.[98] This preoccupation with nationalist concerns once again places the US in contravention of the Refugee Convention. The spirit of the Convention is to safeguard protection of vulnerable people fleeing persecution, regardless of their nationality,[99] yet this move by the US indiscriminately excludes a significant portion of people seeking asylum from Central America, despite the fact that their claims are real, legitimate and the persecution they face in a gang-ridden, violent region is unparalleled.
An analysis of the current US migration control policies that serve to deny entry to asylum seekers are quite plainly in breach of the Refugee Convention. The three policies discussed, metering; zero-tolerance and the narrowing of the grounds of asylum, have demonstrated how the US has failed to not only comply with its legal obligations under the Refugee Convention but also to effectuate the spirit of non-discriminatory and non-punitive refugee protection which underpins it.
[1] Convention Relating to the Status of Refugees, signed 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’).
[2] Protocol Relating to the Status of Refugees, signed 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Protocol’).
[3] Susan Kneebone, Loretta Baldassar and Dallal Stevens, ‘Conflicting Identities, Protection and the Role of Law’ in Susan Kneebone et al (eds), Refugee Protection and the Role of Law (Routledge, 2014) 3.
[4] Leon Gordenker, Refugees in International Politics (Columbia University Press, 1987) 22–3.
[5] Gil Loescher, ‘UNHCR’s Origins and Early History: Agency, Influence, and Power in Global Refugee Policy’ (2017) 33(1) Refuge 77, 78.
[6] Ibid.
[7] Kneebone, Baldassar and Stevens (n 3) 4.
[8] Only the following articles were chosen as they are most relevant to the discussion in this essay.
[9] Refugee Convention (n 1) art 3.
[10] Ibid art 16.
[11] Ibid art 31.
[12] Ibid art 32.
[13] Ibid art 33.
[14] UN High Commissioner for Refugees (UNHCR), The 1951 Convention Relating to the Status of Refugees: Its Relevance in the Contemporary Context (February 1999) 1–2 (‘Continuing Relevance’).
[15] Kneebone, Baldassar and Stevens (n 3) 12.
[16] Loescher (n 5) 78.
[17] Ibid.
[18] Jérôme Elie, ‘The Historical Roots of Cooperation between the UN High Commissioner for Refugees and the International Organization for Migration’ (2010) 16(3) Global Governance 345, 347–8.
[19] Ibid 347.
[20] Ibid 347; Loescher (4) 78; Gil Loescher and John A Scanlan, Calculated Kindness: Refugees and America’s Half-Open Door, 1945 to the Present (Free Press, 1986) 37–8.
[21] Loescher and Scanlan (n 20) xvi.
[22] Ibid xvii.
[23] Ibid 19.
[24] Ibid 20.
[25] This was the Displaced Persons Act, Pub L 80–774 (1948).
[26] Loescher and Scanlan (n 20) 21.
[27] Ibid 27.
[28] Ibid 27.
[29] Ibid 27.
[30] Pub L No 96-212, 94 Stat 102 (1980).
[31] Kneebone, Baldassar and Stevens (n 3) 15.
[32] Ibid 15.
[33] Bill Frelick, Ian M Kysel and Jennifer Podkul, ‘The Impact of Externalization of Migration controls on the Rights of Asylum Seekers and Other Migrants’ (2016) 4(4) Journal on Migration and Human Security 190, 191.
[34] GS Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 246.
[35] Harold Hongju Koh, ‘The Enduring Legacies of Haitian Refugee Litigation’ (2016–17) 61(1) New York Law Review 31, 41–2.
[36] The domestic law referred to here is section 243(h)(1) of the Immigration and Nationality Act which pertains to the state’s power relating to the deportation of aliens.
[37] Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v. Haitian Centers Council, Inc., et al. [1993] USSC 89; 509 U.S. 155 (1993) (‘Sale v HCC’).
[38] Sale v HCC 155–6.
[39] Ibid 192.
[40] Ibid 191.
[41] Ibid 193.
[42] Andrew G Pizor, ‘Sale v. Haitian Centers Council: The Return of Haitian Refugees’ (1993) 17(4) Fordham International Law Journal 1061, 1099–1100.
[43] Ibid 1102.
[44] Ibid 1103.
[45] ‘”Metering” at the Border’, Weekend Edition Saturday (NPR, 29 June 2019) <https://www.npr.org/2019/06/29/737268856/metering-at-the-border>.
[46] Leandra H Hernandez and Sarah De Los Santos Upton, ‘Critical Health Communication Methods at the US-Mexico Border: Violence Against Migrant Women and the Role of Health Activism’ (2019) 4(1) Frontiers in Communication 1, 4.
[47] Hillel R Smith, ‘The Department of Homeland Security’s Reported “Metering” Policy: Legal Issues’ (Research Paper, Congressional Research Service, 13 August 2019) 1.
[48] Ibid 2.
[49] Dara Lind, ‘The US Has Made Migrants at the Border Wait Months to Apply for Asylum. Now the Dam is Breaking’, Vox (News Report, 28 November 2018) < https://www.vox.com/2018/11/28/18089048/border-asylum-trump-metering-legally-ports>.
[50] Smith (n 47) 3.
[51] Ibid.
[52] Lind (n 49).
[53] Amnesty International, ‘No Safe Place’ (Report, November 2017) < https://www.unhcr.org/en-us/5a2ee5a14.pdf> 20 (‘No Safe Place’); Human Rights First, ‘Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border’ (Report, December 2018) 2, 12.
[54] Human Rights First (n 53) 2.
[55] Smith (n 47) 3; J Anna Cabot, ‘Problems Faced by Mexican Asylum Seekers in the United States’ (2014) 2(4) Journal on Migration and Human Security 361, 366.
[56] Human Rights First (n 53) 2.
[57] Amnesty International, ‘No Safe Place’ (n 53) 20.
[58] Human Rights First (n 53) 2
[59] (SDD Cal, No 3:17-cv-02366, 29 November 2018) <https://ccrjustice.org/sites/default/files/attach/2018/12/Gov%27t%20Memo%20ISO%202d%20MTD.pdf> (‘Al Otro Lado v Nielsen’).
[60] Ibid 1.
[61] Smith (n 47) 6.
[62] 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 (‘Advisory Opinion’).
[63] Amnesty International, ‘USA: “You Don’t Have Any Rights Here”: Illegal Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States’ (Report, 2018) n 7 (‘You Don’t Have Rights Here’).
[64] UNHCR, ‘Advisory Opinion’ (n 62) 3[7].
[65] Al Otro Lado v Nielsen (n 59) 1.
[66] (SDD Cal, No 17-cv-02366-BAS-KSC, 29 July 2019) <https://ccrjustice.org/sites/default/files/attach/2019/07/Order%20granting%20in%20part%20and%20denying%20in%20part%20MTD%207.29.19%20_1.pdf> (Al Otro Lado v McAleenan’).
[67] Ibid 38–9.
[68] Ibid 44.
[69] Smith (n 47) 1.
[70] UNHCR, Continuing Relevance (n 14) 1.
[71] International Crisis Group, ‘How to Save the US Refugee Admissions Program’ (Report, 12 September 2018) 19.
[72] Elisa Massimino, ‘The Unites States’ Role in International Human Rights under the Trump Administration’ (2019) 51 Case Western Reserve Journal of International Law 119, 133.
[73] Jeff Sessions, ‘Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry’ (Press Release 18-417, United States Department of Justice, 6 April 2018).
[74] Ibid.
[75] Congressional Research Service, ‘The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy’ (Congressional Report, 26 February 2019) 1.
[76] Doris Meissner, Faye Hipsman, and T Alexander Aleinikoff, ‘The US Asylum System in Crisis: Charting a Way Forward’ (Report, Migration Policy Institute, September 2018) 17.
[77] Human Rights Watch, ‘Q&A: Trump Administration’s “Zero-Tolerance” Immigration Policy’ (Web Page, 16 August 2018).
[78] Congressional Research Service (n 75) 4.
[79] Ibid.
[80] US Citizenship and Immigration Services (‘USCIS’), ‘Guidance for Processing Reasonable Fear, Credible Fear, Asylum and Refugee Claims in Accordance with Matter of A-B-’ (Policy Memorandum, 11 July 2018) 7–8.
[81] Ibid 7–8.
[82] Executive Order No 13841, 83 FR 29435 (20 June 2018).
[83] Congressional Research Service (n 75) 2.
[84] UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, A/CONF.2/108.Rev.1 (25 July 1951).
[85] Congressional Research Service (n 75) 2.
[86] Meissner, Hipsman, and Aleinikoff (n 76) 17.
[87] UNHCR, Guidelines on International Protection: ‘Membership of a Particular Social Group’ within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/02 (7 May 2002) 2.
[88] Ibid [11].
[89] 27 I&N Dec 316 (A.G. 2018).
[90] Ibid 316(6).
[91] Ibid 316(7).
[92] Ibid 320.
[93] UNHCR, ‘Northern Triangle of Central America Situation’ (Fact Sheet, February 2017) 1–2.
[94] Meissner, Hipsman and Aleinikoff (n 76) 18.
[95] Nicolás Rodríguez Serna, ‘Fleeing Cartels and Maras: International Protection Considerations and Profiles from the Northern Triangle’ (2016) 28(1) International Journal of Refugee Law 25, 25.
[96] Ibid.
[97] Ibid; Lorena S Rivas-Tiemann, ‘Asylum to a Particular Social Group: New Developments and Its Future for Gang-Violence Victims’ (2011) 47(2) Tulsa Law Review 477, 494–5.
[98] Meissner, Hipsman and Aleinikoff (n 76) 17.
[99] Massimino (n 72) 137.
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