Undermining the Right to Seek Asylum: Analysing the Proposed US Border Measures’ Impact on the Fundamental Human Rights of Migrants

by | Mar 21, 2024

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About Philip Collins

Philip Collins is an Immigration Attorney and PhD Researcher at the University of Galway focusing on International Refugee and Asylum Law and International Human Rights Law.

A 370-page bill that emerged earlier this year out of backroom negotiations between the US Senate and the White House would entrench into law some of the most restrictive asylum and immigration policies the US has seen in well over 30 years. Entitled the Emergency National Security Supplemental Appropriations Act 2024 (HR 815), the bill joins a similar proposition made last summer by the U.S. House of Representatives known as HR 2, or the Secure the Border Act 2023. If passed, these restrictions would add to the heavy burden asylum-seekers already face in light of the Biden Administration’s ‘2023 Asylum Transit Ban‘ (8 CFR s. 208.33) which exists as a backdrop to these negotiations. This regulation and these bills seek to:

  • Implement a “Border Emergency Authority” allowing the President to shut down the southern border after a certain number of daily arrivals and to deport arriving migrants without allowing them to claim asylum (HR 815, s. 3301);
  • Allow for the return of migrants to a contiguous country (Mexico) if the Department of Homeland Security cannot detain or remove them to their country of origin (HR 815, s. 3146);
  • Require migrants to have applied for and have been denied asylum in every transit country before arriving to the US to claim asylum (8 CFR s. 208.33(a)(iii));
  • Heighten the standard of proof for a finding of a “credible fear of persecution” from “significant possibility” to “more likely than not” (HR 2, s.102);
  • Make detention mandatory for all, including children (H.R. 2, s. 401).

Thus, the Democrat-majority Senate and the Republican-majority House of Representatives, along with the Biden Administration, all seem to agree that further crackdowns on the southern border are the appropriate response to the rising encounter rate of migrants. These crackdowns would follow suit with the Trump Administration’s former ‘Migrant Protection Protocols’ (aka ‘Remain in Mexico’ policy) and the COVID public-health measure ‘Title 42‘, both of which redirected migrants into danger while denying them a fair opportunity to seek asylum.

Historically, the right of individuals “to seek and to enjoy asylum” is among the core human rights listed in the Universal Declaration of Human Rights, a document that came into being with heavy involvement from the U.S. Indeed, the ‘right to seek’ language itself was first introduced by the US delegation. With the Refugee Act 1980, the US incorporated this concept into law – 8 US Code Section 1158(a)(1) states that an individual “who is physically present in the United States or who arrives in the United States… may apply for asylum…”. Moreover, the US ratified both the 1951 Refugee Convention and the subsequent Convention Against Torture, which both prohibit the expulsion of migrants and refugees into situations of irreparable harm or torture (aka non-refoulement). Yet, despite this history, both the ‘right to seek asylum’ and the ‘non-refoulement’ provisions have been subject to a long history of equivocation in the US that has only worsened in recent years.

The Asylum Transit Ban and these proposed bills further that equivocation by forcing preconditions, higher burdens of proof, and a “rebuttable presumption of ineligibility” for asylum (8 CFR 203.88(a)) on migrants, greatly restricting their ‘right to seek’ asylum under 8 USC 1158(a)(1) and, more broadly, international human rights and refugee law. Additionally, the use of other techniques, such as ‘metering’ – artificially limiting the number of asylum claims that can be made each day – come with the newly required use of the CBP One mobile application (8 USC § 208.33 (a)(2)(B)), which has been rife with difficulties from the beginning. The proposed Senate bill is even more explicit in eschewing the Refugee Convention’s authority, excluding its safeguards against non-refoulement by requiring that asylum interviews be conducted “only in the context of the border emergency authority” (H.R. 815, s. 3301; proposed s. 244B(e)(3)).

The result is that asylum-seekers are routinely cut off from a fair opportunity to seek asylum and suffer greatly from kidnapping, exploitation, and violence when sent back to situations of open danger. By these measures, US lawmakers have shown ­– in an election year when tensions are high and anti-immigrant sentiment is at a fever-pitch – their unwillingness to adhere to the principles the US once championed as a moral right for every person.

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