Non-Refoulement under the Trump Administration

Since the start of the Trump administration, the federal courts have heard numerous challenges to a variety of government-imposed legal restrictions relating to refugees and asylum seekers. This Insight focuses on three specific and interrelated changes to the U.S. asylum system that have been litigated since late 2018: the administration’s bar on asylum applications from migrants who cross the border between ports of entry; its policy requiring asylum seekers to remain in Mexico pending their asylum hearing; and its asylum ban for applicants at the southwest border who have passed through a third country without lodging an asylum claim. This Insight considers how one of the most widely adopted and broadly binding rules of international human rights law—the principle of non-refoulement—has fared in this litigation. At first look, these restrictions might appear to signal a death knell for non-refoulement, but a closer exploration reveals serious engagement with its provisions by domestic courts and the administration itself.

The contemporary international legal norm of non-refoulement was first introduced by the 1951 United Nations (UN) Convention Relating to the Status of Refugees (the Refugee Convention or the Convention), which required that member states protect individuals meeting the definition of a refugee against return to the country in which they feared persecution.[1] In 1968, the United States signed and ratified the 1967 UN Protocol Relating to the Status of Refugees, which incorporates by reference the terms of the Refugee Convention.[2] 148 states have ratified one or both of these treaties.[3] The 1984 UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the CAT), with 168 states parties, includes a non-refoulement provision that offers protection to anyone fleeing torture committed by or with the consent of a government actor.[4] Subsequent international and regional human rights treaties have incorporated the non-refoulement principle, which consequently has reached the status of customary international law.    

Asylum Bar for Entering the U.S. Without Inspection

The administration’s first challenge to the non-refoulement principle came in the form of a Department of Justice and Department of Homeland Security regulation and presidential proclamation, both issued on November 9, 2018.[5] The interim final rule enabled the Attorney General to “establish additional limitations and conditions” limiting eligibility for asylum. The presidential proclamation barred asylum claims by migrants who enter the United States between ports of entry.

In justifying this bar, the final rule engages seriously with international refugee law. In an explanatory section entitled “Implementation of Treaty Obligations,” the rule references both the Refugee Convention and the CAT. Though the rule notes that these treaties “are not directly enforceable” under U.S. law because they are not self-executing, it also asserts that the limitations it places on asylum “are consistent with” the non-refoulement provisions of these treaties. Citing the Supreme Court in INS v. Cardoza-Fonseca,[6] the rule explains that the United States implements its non-refoulementobligations through withholding of removal, for which individuals subject to the bar remain eligible. This lesser form of relief is mandatory (unlike asylum, which is discretionary), but requires that applicants prove that they face a more likely than not chance of persecution, rather than the lower “well-founded fear” standard for asylum. The rule argues that as long as those who meet the refugee definition are eligible for withholding of removal without limitation, any restrictions on eligibility for asylum do not violate the principle of non-refoulement.

Starting from that claim, the rule addresses directly provisions of the Refugee Convention. Article 34 requires member states to “make every effort to expedite naturalization proceedings [for refugees] and to reduce as far as possible the charges and costs of such proceedings.” The rule notes that this provision does not require that all who meet the refugee definition receive asylum. Next, the rule discusses Article 31(1), which provides that member states “shall not impose penalties, on account of their illegal entry or presence, on refugees, who, coming directly from a territory where their life or freedom was threatened, enter or are present on the territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” In response, the rule alleges that limiting asylum eligibility is not a “penalty” under Article 31(1). Even as the administration highlights the limitations of the Refugee Convention in terms of domestic enforceability, it recognizes the treaty’s authority with detailed arguments claiming compliance with the treaty’s provisions.

In assessing the validity of the rule, the federal courts highlighted the salience of the treaty and the UN’s interpretation of its provisions. Four organizations sought a temporary restraining order (TRO) against the rule and proclamation the day they were promulgated; the TRO was issued ten days later in a decision that draws heavily on the Refugee Convention.[7] The district court notes that though the Convention is not self-executing and therefore does not “have the force of law” domestically, it offers a “useful guide in determining congressional intent in enacting” the U.S. statute governing asylum (the Refugee Act). The court next addresses the rule’s interpretation of Article 31(1) of the Refugee Convention, noting that the treaty provides an “interpretive guide” that helps, alongside the text and structure of the statute, to demonstrate Congress’s “unambiguous intent [that t]he failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process.” 

In the interlocutory appeal of the TRO, the Ninth Circuit opinion opens with the statement that, “For more than 60 years, our country has agreed, by treaty, to accept refugees.”[8] Judge Bybee quotes Article 31(1), reprinting the provision nearly in its entirety, and notes that Congress enacted the Refugee Act “to bring the INA into conformity with the United States’ obligations under the Convention.” In its analysis under the Administrative Procedure Act (APA), the Ninth Circuit determines that the rule is not a reasonable effort to interpret the INA, in part because “[i]n accordance with the [Refugee] Convention, Congress required the Government to accept asylum applications” regardless of whether the applicants arrived lawfully. “This provision reflects our understanding of our treaty obligation to not ‘impose penalties [on refugees] on account of their illegal entry or presence.’” In a terse opinion, the Supreme Court denied the appeal of the stay order, meaning that the asylum ban on migrants who enter the United States between ports of entry remains enjoined while the government appeals the preliminary injunction.[9]

Beyond the treaty language itself, the court also relied on the UN High Commissioner for Refugees’ (UNHCR) soft law interpretation of the Convention. In its decision on December 19, 2018 awarding the preliminary injunction, the district court chides the government for “fail[ing] to grapple with the reasoned views expressed” in an amicus brief filed by UNHCR, which emphasized that the term “penalties” in Article 31(1) includes procedural restrictions on asylum; that Article 33(1) protects “all refugees, including those who have not been formally recognized”; and that “neither withholding of removal nor protection under CAT provides an adequate substitute for the asylum” process because they are not available to all refugees.[10]

Return to Mexico Pending Asylum Hearing

Through three press releases issued on December 20, 2018 and January 24, 2019, DHS announced the implementation of the “Migrant Protection Protocols,” (MPP) through which non-Mexicans arriving at the southern land border without proper immigration documentation are returned to Mexico to await their day in court. On January 25, then-DHS Secretary Kirstjen Nielsen issued policy guidance for implementation of MPP that included a promise from Mexico to uphold its non-refoulement commitments and instructions to DHS officials not to return individuals to Mexico if they would more likely than not face persecution on a protected ground or torture in Mexico.[11] Again, even while undermining the treaty’s provisions and purpose, the administration engaged seriously with the terms of the Refugee Convention.

In response, UN actors again issued soft law analyses of the situation. The UN Special Rapporteur on the human rights of migrants released a statement directly challenging this “more likely than not” standard, describing it as an “extraordinarily high hurdle [that] effectively undermines the principle of non-refoulement,” and explaining that the promise from Mexico is insufficient to prevent refoulement, and that Mexico itself is hardly to be considered a safe country for refugees.[12]

On February 14, several organizations challenged the MPP as violating the Immigration and Nationality Act and the APA.[13] The Northern District of California issued a preliminary injunction on April 8; while declining to delineate the minimum non-refoulement obligations, it found that “defendants adopted the MPP without sufficient regard to refoulement issues.”[14]

On May 7, the Ninth Circuit stayed the preliminary injunction, meaning that the MPP is currently in effect. However, the concurring opinion by Judge Watford focused on the “international legal obligation” of non-refoulement, finding that the procedures DHS has adopted to prevent refoulement are “so ill-suited to achieving that stated goal as to render them arbitrary and capricious under the Administrative Procedure Act.” Both federal courts illustrated the deep relationship between international refugee law and domestic law.

UNHCR also gained another opportunity to articulate soft law regarding pushing asylum seekers back across a border. In an amicus brief filed on June 26, UNHCR clarified that while transfer of asylum seekers is permitted under international law, several safeguards must be in place.[15] First and foremost, such an arrangement must be “governed by a legally binding instrument, challengeable and enforceable in a court of law by affected asylum-seekers.” Moreover, before asylum seekers are transferred, the receiving state must provide an individualized decision about their admissibility, permit them to remain pending a decision in their asylum case, and treat them in accordance with the provisions of the Refugee Convention and human rights standards. The Ninth Circuit heard oral argument on the merits of the motion for a preliminary injunction on October 1 and a decision is awaited; their receptiveness to arguments grounded in international law remains to be seen.[16]

Asylum Ban for Transit Through a Third Country

The final challenge to the non-refoulement principle took the form of a DHS interim final rule issued on July 16 that prohibits asylum claims after that date by applicants who transited through a third country in which they did not apply for protection from persecution or torture prior to entering the United States at the southern land border.[17] Several organizations filed a lawsuit challenging the rule the day it came into effect.[18] The litigation can be fairly described as dizzying: a week later, the district court issued a nationwide preliminary injunction, which the Ninth Circuit then limited to its jurisdiction.[19] The nationwide injunction was restored by the district court on September 9; the next day, the Ninth Circuit issued an administrative stay of the injunction but denied the emergency motion for stay pending appeal.[20] The government appealed to the Supreme Court, which issued the next day a nationwide stay pending appeal of the preliminary injunction.[21]

The interim final rule engages with international refugee law. In addition to repeating the arguments made in the first asylum ban about the scope of non-refoulement in Articles 28, 31(1), and 34 of the Refugee Convention, it claims that specific practices are in accordance with international law. The rule notes that Mexico is a party to the Refugee Convention and has expanded the capacity of its asylum process in recent years. Finally, the rule compares itself to the European Union’s Dublin Regulation, which determines which EU member state is responsible for adjudicating an asylum application,[22] and cites UNHCR praise for Dublin as a burden-sharing device as evidence that the rule is valid. 

The district court begins its initial opinion by referencing the Refugee Convention and Protocol and noting that the Refugee Act of 1980 aimed to bring U.S. law into line with those treaties, which are not binding domestically but provide relevant guidance. It then highlights the government’s failure to produce evidence that Mexico “is in compliance with the relevant international instruments governing consideration of refugee claims” and that Mexico’s asylum process is “robust and capable of handling claims made by Central American aliens in transit to the United States.” In its briefing, the government made the surprising choice to cite reports by Amnesty International, Human Rights First, Médécins Sans Frontières, and UNHCR as evidence that Mexico is a safe location for asylum seekers. The district court finds that the government cherry-picked these reports, which when read in full, demonstrate that “the government’s contention is ungrounded in reality.”

On October 15, the UNHCR filed an amicus brief before the Ninth Circuit to support the plaintiffs’ application for a preliminary injunction.[23] It explains that the rule is inconsistent with the United States’ treaty obligations that require that all asylum seekers have access to a fair and efficient asylum procedure. Citing the UNHCR Executive Committee’s Conclusion No. 15, the brief further notes that “asylum should not be refused solely on the ground that it could be sought” elsewhere. It expresses a concern with chain refoulement and explains that not every refugee will meet the withholding of removal standard. Finally, UNHCR declares that the rule is not a permissible burden-sharing arrangement, describing the ways in which the rule’s informality differs from the formal legal processes laid out in the Dublin Regulation. We currently await a decision from the Ninth Circuit; again, it remains to be seen how persuasive the court will find these international legal arguments.

The Trump administration’s rules and proclamations present a serious challenge to the principle of non-refoulement. A closer look reveals that even while the government is dismantling key aspects of the asylum process, it acknowledges the binding nature of the non-refoulement principle and makes quite detailed claims of compliance with international refugee law, engaging with the language of the Refugee Convention. While an asylum system that actually complies with the United States’ treaty obligations would be preferable, the administration does to some extent take that law seriously. Moreover, the litigation has demonstrated domestic courts’ respect for the Refugee Convention, and has provided the UNHCR and plaintiffs with the opportunity to present detailed interpretations of aspects of non-refoulement beyond the spare language of the treaty itself. As the litigation proceeds, we may see this language adopted by the courts, turning soft law into binding domestic law. Whether the principle of non-refoulement has such binding power remains to be seen, but the conversations so far show that it exerts some compliance pull even on actors seeking to undermine its force.

About the Author: Jaya Ramji-Nogales is Associate Dean for Academic Affairs and the I. Herman Stern Research Professor at Temple University’s Beasley School of Law, where she teaches Refugee Law and Policy.  She is the author of numerous works on refugee and asylum law, and was a founding co-chair of ASIL’s Migration Law Interest Group.