Non-Refoulement v. The Supreme Court
Hi friends,
Last week, the U.S. Supreme Court issued a decision in Mullin v. Al Otro Lado, holding that a policy of turning back would-be asylum seekers at a U.S. port of entry before they cross the border did not violate the asylum provisions of the Immigration and Nationality Act (INA). In thinking about how to cover this decision with all of you, I realized I wanted both to give some background on what protections exist for asylum under international law (which is a topic I would generally cover in our monthly newsletter) and to discuss the details of the decision itself (which is something better suited to our weekly updates).
In the end, I decided to combine them both into a Foundations/The Brief special edition, because I did not want to choose. You can think of this as The Connection’s version of Taco Bell’s Crunch Wrap Supreme™️, if that is a metaphor that makes sense to you. (And if it does, you have either my congratulations or condolences, whichever feels right to you.)
Anyway. Back to asylum, and the decision at hand:
What was the decision in Al Otro Lado?
The case before the Supreme Court centered on a former U.S. immigration “turnback” policy, also known as “metering.” This policy was first enacted in November 2016, and under it, immigration officers blocked people from reaching U.S. points of entry (for example, keeping them from entering into arrival halls at the border) so they could not claim asylum. Instead, would-be asylum seekers had to remain in squalid and dangerous conditions on the border in Mexico, or repeat the dangerous journeys they’d made to the border in reverse.
The advocacy group Al Otro Lado challenged the policy through a class action lawsuit brought in the U.S. District Court for the Southern District of California. The provisions of the INA at issue were 8 U.S.C. §§ 1158(a)(1) and 1225(a)(1), which provide that a foreign national who is either present in, or arrives in, the United States may apply for asylum. The District Court granted summary judgment in the case and held that the U.S. government’s denial of inspection and asylum processing to those in the process of arriving in the United States was unlawful, and the government subsequently rescinded its policy in 2021. The U.S. Court of Appeals for the Ninth Circuit held that a person “arrives in” the United States when that person encounters a U.S. official at the border, and thus may claim, and apply for, asylum at that point.
The Supreme Court overturned the Ninth Circuit, holding, “An alien standing in Mexico does not ‘arriv[e] in the United States’ by attempting, and failing, to set foot in this country. An alien ‘arrives in the United States’ only when he crosses the border. The INA thus neither entitles an alien standing in Mexico to apply for asylum nor requires an immigration officer to inspect him.”
While the U.S. was not applying this policy at the time the Court’s decision came down, the government indicated to the Court that it “would like to resume the use of metering when border conditions warrant it.” As a result, I would not be surprised if the policy is reactivated in the days to come.
Is there a right to asylum under international law?
What people are generally referring to when they discuss the status of asylum under international law is something called the principle of non-refoulement, a French phrase that roughly translates to “no turning away.” This principle, which provides that no State shall return someone to a territory where their life or freedom would be at risk based on their membership in a protected group, such as race, nationality, religion, or political opinion, was enshrined in article 33(1) of the 1951 Convention Relating to the Status of Refugees.
That provision was incorporated by reference into the 1967 Protocol Relating to the Status of Refugees, to which the U.S. is a party. Article 1 of the Protocol states that parties to the Protocol “undertake to apply articles 2 to 34 inclusive” of the Refugee Convention.
The U.S. is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states in article 3 that no State party “shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
For its part, Article 14 of the Universal Declaration of Human Rights provides that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.”
Does the “metering” policy discussed in Al Otro Lado violate the principle of non-refoulement?
In my opinion, yes. Deliberately making it impossible to exercise a right violates that right. I really do think it’s that simple. But you don’t have to take my word for it.
In an amicus brief in the Al Otro Lado case, the Global Strategic Litigation Council, together with over 100 other organizations and individuals joining the brief, made a convincing case for arriving at the opposite conclusion to the one Justice Alito put forward in his Supreme Court opinion: specifically, they argue that the weight of judicial opinion and academic commentary, as well as the text, object, and purpose of the Refugee Convention, support the position that article 33(1) of the Convention applies at the border. The brief also cites commentary, advisory opinions, and legal statements from the U.N. Refugee Agency, UNCHR, explicitly stating that “the obligation of non-refoulement includes non-rejection at the frontier.” (You can find this cite in UNHCR’s 2012 Note on International Protection, available here.)
In 2021, the U.N. Special Rapporteur on the Rights of Migrants published a “Report on means to address the human rights impact of pushback of migrants on land and at sea.” The Special Rapporteur concluded that, “in the absence of an individualized assessment for each migrant concerned and other procedural safeguards, pushbacks result in human rights violations incompatible with States’ obligations under international human rights law, in particular, the prohibition of collective expulsion and refoulement.”
The Special Rapporteur underscored “that effective access to territory is an essential precondition for exercising the right to seek asylum.”
Of note, the report defines “pushbacks” as “various measures taken by States, sometimes involving third countries or non-State actors, which result in migrants, including asylum seekers, being summarily forced back, without an individual assessment of their human rights protection needs, to the country or territory, or to sea, whether it be territorial waters or international waters, from where they attempted to cross or crossed an international border.”
The report also highlights that “[p]ushbacks contribute to the perpetuation of dire living conditions, which have been documented as including physical abuse, sexual and gender-based violence and deprivation of the necessities of life. States cannot point to exceptional or disproportionate operational challenges (e.g. the size of migratory movements, or the existence of a public health emergency such as COVID-19) or to other circumstances to justify such actions.”
In sum, there are strong arguments that governments violate the principle of non-refoulement when they prevent asylum seekers from requesting asylum at the border; that Justice Alito was incorrect in defining “arrives in” so narrowly, particularly in light of the fact that the Refugee Act of 1980 specifically amended the INA in order to implement the Refugee Protocol; and that metering or pushback policies also increase the risk of additional human rights violations by holding people in untenable conditions at the border.
Is the U.S. stuck with the Supreme Court’s application of asylum law forever?
No, certainly not! As noted above, the U.S. government was not applying the policy when the SCOTUS decision came down, and it could always decide not to return to metering on the border. Alternatively, Congress could pass a law amending the INA to outlaw metering, and clarifying that the right to asylum applies when a person encounters a U.S. immigration official at the border. I know that neither of these outcomes seems very likely right now, even more so when you consider that the policy was first enacted under President Obama. However, I would urge you to remember that things do not have to remain static—they can change, and they can change for the better, even if it’s hard to remember that right now. The permanent rollback of this policy is something we can, and should, continue to push for.
ICYMI
Over the last month, we’ve covered:
- Updates on Colombian elections, the Ebola outbreak in the DRC, and escalating tensions between Russia and Europe;
- An internationally focused summer reading list for those looking for a new book or two to throw in their carryons;
- The confusing lead-up to an Iran deal;
- The terms of the U.S.-Iran MOU (this one is a short video explainer); and
- The imminent risk of atrocities in al-Obeid, Sudan.
And one bonus short: why Red Lobster’s Endless Shrimp isn’t a sufficient justification for the use of force under international law.
Thank you for joining us for this Crunchwrap Supreme special edition of our newsletter! I'll see you back here soon.
Alexis
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