Over 180 Rights Groups Urge Trump Administration to Halt Border Expulsions, Protect Domestic Violence Survivors

The Honorable Chad F. Wolf
Acting Secretary of Homeland Security Washington, D.C. 20528
email: chad.wolf@hq.dhs.gov

cc: Alex M. Azar, Secretary of Health and Human Services Michael R. Pompeo, Secretary of State

Re: Restoring asylum protections for domestic violence survivors and all others seeking asylum during the global pandemic

Dear Acting Secretary Wolf:

The 182 undersigned national, state, and local organizations that advocate on behalf of survivors of domestic violence and sexual assault, asylum seekers, immigrants and stateless people call on you to rescind the blanket policy of turning back refugees from our borders. We understand the urgency of the COVID-19 pandemic has required the Administration to take action to reduce the virus’ transmission rate. However, closing our borders to asylum seekers flies in the face of public health principles, as well as our non-derogable treaty obligations. We are deeply concerned that this new policy will put survivors of domestic and sexual violence at particularly high risk of harm.

Domestic violence survivors and their advocates around the world have sounded the alarm in recent weeks about the rising danger for abused women and children sheltering at home when home is not safe.[1] The United Nations Secretary-General called attention on April 5, 2020 to a “horrifying global surge in domestic violence” as fear of the virus has grown, along with its social and economic consequences.[2] The U.S. National Domestic Violence Hotline has explained that when an abusive partner feels a loss of power and control, such as during a time of crisis, abuse often escalates in intensity and frequency. It is clear that pandemic-induced isolation measures, and health and economic stressors, can make survivors still more vulnerable. A number of countries have reported a spike in domestic violence related to COVID-19 restrictions on movement.[3]

Women and children in many countries cannot rely on local authorities to help them even during normal times, much less in this period of extreme social isolation. In a revealing glimpse of one government’s unhelpful response to the threat of rising domestic violence, Malaysian officials warned women not to be “sarcastic” to their husbands or “nag” them during that country’s lockdown, and apologized only after an international outcry.[4]

The current COVID-19 crisis only compounds the barriers that survivors of gender-based violence face seeking asylum in the United States. Within the last few years, the U.S. Department of Justice has all but closed the door on women seeking asylum from their abusive partners.[5] A host of unlawful policies has made the process more difficult and dangerous than ever: separating families, increasing incarceration, slowing down processing of new asylum claims at the border through the practice known as “metering,” and forcing people to wait in Mexico for their U.S. immigration court hearings under the Migrant Protection Protocols. More recently, the U.S. has further shirked its legal obligations to refugees by simply deporting people to Guatemala under an Asylum Cooperative Agreement, touting a legal fiction that they can safely seek asylum there.

The Department of Homeland Security (DHS) and the Centers for Disease Control and Prevention (CDC) have now cited the pandemic as justification to close our borders to asylum seekers entirely.[6] DHS’ position is that asylum seekers are not considered to be engaged in essential travel.[7] However, asylum seekers not only have compelling reasons to request entry but also have a right to seek protection that is guaranteed under U.S. law pursuant to U.S. treaty obligations under the 1967 Protocol Relating to the Status of Refugees and the 1984 Convention Against Torture.

During this pandemic, it is highly unlikely that large numbers of women and children suffering from domestic violence will be able to make their way to the southern border, given that many countries are requiring residents to shelter at home, and international travel has become extremely difficult.

However, we are concerned that those seeking asylum in the United States are now being promptly expelled with no legal process whatsoever.[8] In direct violation of U.S. law, border officials are not even inquiring why people without proper documentation are seeking to enter, nor are they asking whether they fear harm if they are refused entry. Instead, DHS officials have been instructed to expel everyone immediately except those who spontaneously express a fear of torture. If an asylum seeker does spontaneously express a fear of torture, the frontline border patrol officer must determine if the fear is “reasonably believable,” a legal standard that does not exist in U.S. immigration law and on which border patrol officers have not been trained. If the officer determines that the asylum seeker’s fear is reasonably believable, they must then get the approval of a superior officer, the chief patrol agent for the sector. Only after these steps is the asylum seeker allowed to express her fear of torture to an asylum officer. All others are summarily turned back. Reports as of early April indicate that some 7,000 people have been expelled in this manner since the new policy went into effect on March 20, 2020. There are no reports of anyone successfully convincing a border agent that she has a “reasonably believable” fear of torture. Many women arriving at the U.S. southern border are fleeing extensively documented extreme violence in their home countries. That not one of these women has been found to have a “reasonably believable fear” since expulsions began last month is a damning indication that this new procedure actually offers no exceptions.

The procedure described above is wholly inadequate to ensure that the United States abides by its obligations under the Convention Against Torture, implemented in U.S. law in the Foreign Affairs Reform and Restructuring Act of 1998. The procedure also fails entirely to meet U.S. obligations under the Refugee Protocol, implemented in U.S. law in the Refugee Act of 1980, as there is no provision for assessing an asylum seeker’s fear of persecution even if she spontaneously asserts such a fear. Protections under the Convention Against Torture and under the Refugee Protocol have different legal definitions and different standards of proof. Even if DHS was adequately assessing the claims of people who fear torture, this would be insufficient to protect those who fear persecution. We note that Senate Judiciary Committee Democratic Members wrote to you on April 7, 2020 posing a number of inquiries concerning the legal justification for closing U.S. borders to asylum seekers and questioning the compliance of such actions with U.S. treaty obligations.[9] Their concerns were echoed on April 10, 2020 by the Chairs of the House Committee on Foreign Affairs, the House Committee on Homeland Security, and the House Committee on the Judiciary.[10] We urge you to respond fully and completely to these inquiries.

An additional concern is that children traveling alone should benefit from the provisions of the Trafficking Victims Protection Act and are supposed to be exempt from the new policy barring asylum seekers. However, there are reliable reports that they, too, are being expelled, prompting congressional leaders to ask your Department to stop the practice immediately.[11] We ask that you respond swiftly to their requests.

As noted above, we fully support the adoption of all necessary measures to reduce the transmission rate of COVID-19. However, border restrictions can be managed in a manner which protects public health while respecting international human rights and refugee protection standards, including the principle of non-refoulement. Both the World Health Organization (WHO) and the United Nations High Commissioner for Refugees (UNHCR) have stressed that governments can put in place targeted, reasonable, and proportionate measures, such as screening or temporary limitations on movement, to protect both their own populations and those seeking asylum.[12]

In light of the guidance provided by WHO and UNHCR, we are particularly concerned that DHS in its new travel restrictions[13] and the CDC in its Order[14] and Interim Final Rule[15] fail even to mention asylum seekers. This is an astonishing omission since, as noted above, the Administration has had an intense focus on the issue of asylum seekers at our southern border for the last several years. The failure to mention asylum seekers, much less take their legal rights into account, is also puzzling since the CDC’s Interim Final Rule affirms that “In issuing orders pursuant to this interim final rule, CDC would coordinate with the Secretary of State in order to ensure compliance with the international legal obligations of the United States and to take due account of U.S. national and security interests.”[16] There is no indication of any such coordination with the Secretary of State, nor does the action taken by DHS and the CDC even attempt to comply with the United States’ international legal obligations.

The CDC Order lacks any legal analysis whatsoever that would reconcile public health imperatives with the United States’ legal obligation to asylum seekers, resting instead on information about the situation at the border supplied by DHS. Unfortunately, this information is woefully insufficient or incorrect in a number of respects.[17] Particularly concerning is the CDC’s assumption based on information provided by DHS that most asylum seekers would have nowhere to go except an immigration detention center if they were allowed to enter the United States. In fact, over 90% of asylum seekers presenting at the Southern border have family or close friends in this country.[18]

We know that the isolation necessary to slow the spread of this pandemic will result in countless more women and children suffering domestic violence. We also know that if we do not implement reasonable precautions at our border to ensure both public health and the protection of refugees, and instead continue to shut the door to the most vulnerable, we will fail those who turn to us for protection, as well as U.S. domestic and international law obligations, and our own best traditions. We urge you to rescind this flawed policy and replace it with targeted, reasonable, and proportionate measures to protect public health and ensure that women and children fleeing domestic violence and other refugees are not returned to persecution.

If you have any questions, please contact Kate Jastram, Director of Policy & Advocacy at the Center for Gender & Refugee Studies at jastramkate@uchastings.edu.

Respectfully,

Women’s Refugee Commission

Young Democrats of America Hispanic Caucus