This piece was originally published in the Washington Post.
The coronavirus has crowded out many policy debates. But in one area, immigration, it is fusing with the Trump administration’s broader agenda.
Using covid-19 as a cover, the administration is making its most overt move yet to eliminate the right to seek asylum in the United States. Officials claim that because of coronavirus, beginning March 21, they swiftly can return or repatriate asylum seekers at the U.S.-Mexico border. This unprecedented move violates U.S. and international law and may actually exacerbate the spread of covid-19 at the border. It also betrays the core promise of the 1980 Refugee Act, signed 40 years ago this week.
With this law the United States belatedly accepted the definition of a refugee established by the 1951 U.N. Convention and 1967 Protocol on the Status of Refugees. The Act passed Congress with overwhelming bipartisan support and made resettling refugees from abroad a part of the nation’s immigration policy. But the Act also accorded people fleeing persecution a chance to seek asylum if they arrived at U.S. borders or already were in the United States.
The law established that people could seek asylum regardless of their immigration status or mode of entry and prohibited U.S. authorities from sending asylum seekers to a place where their lives or freedom would be threatened. It is crucial to remember this right now, given the all-out assault on the U.S. asylum system by the Trump administration, which began even before the coronavirus. The proposed new ban on asylum that would turn back asylum seekers will endanger the lives of even more refugees and further jeopardize our collective public health by sending people to live on the Mexican side of the border where they will lack adequate shelter and care and where there is no way to prevent the spread of coronavirus. As the United Nations High Commissioner for Refugees has written, turning away asylum seekers would send them into “orbit” in search of a refuge and, as such, may contribute to the further spread of the disease.
Before the passage of the Refugee Act in 1980, the United States was violating the human rights of asylum seekers, in particular the thousands of Haitians who arrived in Florida by boat. Instead of having their asylum cases heard they were systemically detained by the Immigration and Naturalization Service, denied due process in the immigration courts and threatened with deportation to the persecution they had fled.
Haitian leaders and refugee advocates in New York and Florida protested against this treatment and, in May 1979, sued the government in federal court in Haitian Refugee Center v. Civiletti. In his 1980 decision, Judge James Lawrence King (a Nixon-appointee) excoriated the U.S. government for violating the rights of Haitians and prejudging their claims. As King wrote, the evidence presented at trial was “both shocking and brutal, populated by the ghosts of individual Haitians — including those who have been returned from the United States — who have been beaten, tortured, and left to die in Haitian prisons.”
King also referred to convincing evidence provided by Amnesty International and the Lawyers Committee for International Human Rights (now Human Rights First) that asylum seekers were mistreated both by U.S. immigration authorities and upon return to Haiti.
As the litigation was going on, members of Congress worked on the language of the Refugee Act. Amnesty and the Lawyers Committee suggested to then-Rep. Elizabeth Holtzman (D-N.Y.) language be added specifically to prevent people from being returned, as Haitians had been, and safeguard the right to seek asylum upon reaching anywhere in the United States. Without such a safeguard written into the law, the right to seek asylum would not be secure outside of South Florida, where Judge King’s ruling applied. Grounding the right to seek asylum in a statute also makes it harder to limit federal court review of executive branch policies that violate it.
Holtzman adopted Amnesty’s language into the House version of the bill, and it became the first provision of section 208 of the Immigration and Nationality Act. Holtzman’s language explicitly provided for the right to seek asylum not only to those who came by sea but also to those who crossed a land border or arrived at a border port of entry. Unfortunately, Holtzman did not accept the Lawyers Committee’s recommendation that the Refugee Act also include “guidelines” for determining who would be eligible for asylum and how they would prove it. It left these procedures to the executive branch.
Nonetheless, as she wrote in her report on the bill, “The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law.”
Almost immediately after the Refugee Act went into effect in April 1980, Fidel Castro allowed thousands of Cubans to sail to the United States. As the Carter administration devised a special program to deal with this influx, the development of general asylum procedures was put off (with only interim regulations published). Beginning in 1981, the Reagan administration embraced deterrence through interdiction, detention and externalization as the path to deal with asylum seekers, shirking the intention of Holtzman and Congress, which had ensured the right to seek asylum in the 1980 Act.
These strategies remain the norm to this day. As Sen. Ted Kennedy wrote in 1981, the Act would be an effective instrument only if U.S. leaders used it wisely, to serve the country’s humanitarian traditions. The U.S. government has not paid adequate attention or resources to ensure fair and efficient adjudication of asylum claims. Indeed, Congress itself appropriates no money to United States Citizenship and Immigration Services for asylum adjudication and has allowed the immigration courts to be weaponized against asylum seekers. Over the last three years, the Trump administration has engaged in an all-out assault on asylum that already has restricted the ability of many immigrants to qualify for refuge and sent over 60,000 people to wait in Mexico, where they are forced to live in dangerous, inhumane conditions in open-air encampments and shelters.
The anniversary of the Refugee Act should prompt Congress to find ways to uphold that law’s promise. One way to do so would be to pass the Refugee Protection Act (RPA). Like the Refugee Act of 1980, the RPA addresses both refugee resettlement from abroad and asylum, refusing to pit one against the other but rather considering both crucial forms of humanitarian protection. Further, the RPA not only restores the refugee admissions number to its historic level but also makes clear how a person seeking asylum can meet the United Nation’s definition of a refugee and how officers should assess asylum claims. The Act also reopens the cases of the thousands of asylum seekers turned away by the Trump administration at the border and calls for the creation of a resettlement program for refugees from Central America. Finally, the RPA provides that, after screening, asylum seekers should be released through parole to family or to community-based alternatives to detention.
While this, like so many other policy issues, might not seem like a front-burner priority in the middle of a pandemic wreaking havoc on the economy and public health, it is extremely important in this moment as the government strives to develop a border policy that protects public health in response to covid-19. As Holtzman urged in her op-ed this week: “We must recognize each other’s humanity, just as the Refugee Act inspired us to do 40 years ago.”
The United States has both the obligation and capacity to protect asylum seekers. Abiding by this commitment is not only the right thing to do but the smart thing to do in terms of public health. Any restrictions on entry at the border must include provisions that safeguard individuals from forced return to torture or persecution. The U.S. government must stop forcibly transferring asylum seekers to Mexico and Guatemala after prolonged detention in unsafe and overcrowded U.S. border facilities, which is both a violation of the right to seek asylum and a public health risk — especially with a highly contagious pandemic sweeping the country.
The administration should not close the border to asylum seekers in violation of the 1980 Refugee Act. U.S. border officials should continue to allow people to request asylum and be properly screened and referred to health facilities if necessary. Asylum seekers should then be provided with health information on prevention, isolation and distancing and released to continue their cases in immigration court through alternatives to detention to avoid remaining in enclosed or densely populated spaces that public health experts universally agree are detrimental amid the coronavirus outbreak.