Trump’s EO and U.S. Obligations to the Rest of the World

By Emily Patterson

The President’s executive orders on immigration have rightfully caused a whirlwind of concern and commentary. From the discrimination inherent in their terms to the chaos witnessed in their implementation, the President’s actions set a clear tone for how immigration will be treated during his term. One aspect of these actions deserves attention: the right to seek asylum and what that means in terms of international human rights law.

“…the United States has made the right to request asylum a matter of law.”

Having effectively acceded to the 1951 Convention on the Status of Refugees by virtue of formal accession to its 1967 Protocol, the United States has made the right to request asylum a matter of law. But a law has no meaning if the right it protects cannot be invoked. And the January 25 Executive Order 13767 “Border Security and Immigration Enforcement Provisions” [1] raises serious concerns about how claims for asylum will be treated. Section 11 of the EO on “Parole, Asylum, and Removal” says, “It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” It suggests parole and asylum provisions have been “illegally exploited.” [2]

On February 20, the Secretary of Homeland Security issued a memo on implementation of the EO which allows individual immigration officers to order someone removed “without further hearing or review” if the officer “determines that an arriving alien is inadmissible.” [3] Though the memo excepts unaccompanied children, those who “indicate an intention to apply for asylum” or relief under the Convention Against Torture, or those that claim to be US citizens or otherwise in possession of “a valid immigration status,” there are potentially grave implications associated with removal decisions. And the lack of due process and reviewability raise serious human rights concerns.

The 1951 Refugee Convention prohibits States from penalizing refugees “who, coming directly from a territory where their life or freedom was threatened…enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” [4] As well, States may not unnecessarily restrict the movement of refugees within their territory. [5] States may expel refugees “on grounds of national security or public order.” [6] However, such an expulsion is permissible “only in pursuance of the decision reached in accordance with due process of law.” As well, a refugee has the right “to submit evidence to clear himself, and to appeal to an be represented for that purpose before competent authority or a person or persons specially designated by the competent authority.” [7] Further, “the contracting state shall allow such a refugee a reasonable period within which to seek legal admission into another country.” [8]

It is questionable whether granting an immigration officer the power to make an apparently un-appealable decision complies with the terms of the Convention. It certainly does not appear to give an individual requesting protection from persecution a reasonable degree of due process—or any process at all.

Aside from the legal “technicalities,” policy makers should remember the legal “rationalities.” The protection of refugees aims to mitigate the irreparable damage suffered by an individual who has faced or who may face persecution: torture, discrimination, abuse. These are not minor inconveniences.

Those who work with refugees speak in terms of “protection.” Acquiring “protection” is the goal of laws and policies targeting refugees. An early step in achieving “protection” is the acquisition of legal status. Policies that make it more difficult to merely request that status forget the principle underlying “protection,” principles eloquently set out in the Universal Declaration of Human Rights:

[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

[D]isregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

[I]t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

PattersonAbout the Author

Emily Patterson is an international human rights lawyer based in Houston, Texas and currently serves as a vice-chair for the IRLC. She has worked on human rights and judicial reform in Kosovo, Somalia, Georgia, Montenegro, and the United States.

[2] Sec. 11(a)
[3] DHS Secretary Memo on Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, 20 Feb. 2017, p. 5-6.
[4] Article 31(1).
[5] Article 31(2).
[6] Article 32(2).
[7] Article 32(3).
[8] Article 32(3).

[Source: The Refuge (March 2017), Volume 1, Edition 1, pages 8-10]

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