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The Impact of COVID-19 on the Human Rights of Migrants in The

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The Impact of COVID-19 on the Human Rights of Migrants in The The Impact of COVID-19 on the Human Rights of Migrants in the United States Human Rights First’s Submission to the Office of the High Commissioner for Human Rights (OHCHR) Special Rapporteur on the Human Rights of Migrants This submission principally focuses on policies and practices implemented by the United States during the COVID-19 pandemic that violate refugee and human rights law, endanger asylum seekers, and use the pandemic as a specious excuse to subvert U.S. and international refugee law. Under the guise of policies purportedly adopted by the Trump administration to address the pandemic, the U.S. government under the Biden administration continues to violate U.S. law and international treaty obligations by denying asylum seekers access to the U.S. asylum system subjecting many to refoulement to their countries of persecution or to places where their lives or freedom would be threatened. Legal guidelines issued by the U.N. Refugee Agency (UNHCR) during the pandemic warned that denial of access to asylum without safeguards to protect against non-refoulement cannot be justified on the basis of public health.1 In May 2021, UNHCR urged the United States to restore access to asylum in line with international legal and human rights obligations.”2 Additionally, the Biden administration continues to further endanger asylum seekers by subjecting them to unnecessary and arbitrary detention during the pandemic. The prior failure of the Trump administration to release migrants and asylum seekers from crowded immigration detention centers resulted in preventable transmission, severe illness, and needless deaths, including at least 10 reported deaths in Immigration and Customs Enforcement (ICE) custody due to COVID-19.3 Since May 2021, COVID-19 cases have again spiked in ICE detention centers due in part to the agency’s continued failure to release migrants and implement widespread vaccination.4 The Biden administration has also continued Trump-era policies implemented during the pandemic that prevent refugees from integrating and naturalizing in the United States. This document draws on Human Rights First’s experience representing, researching, and advocating for refugees seeking humanitarian protections in the United States. I. CONTINUED IMPLEMENTATION OF TITLE 42 “PUBLIC HEALTH” EXPULSIONS HAVE FORECLOSED ACCESS TO THE U.S. ASYLUM SYSTEM FOR MANY REFUGEES Use of COVID-19 as Pretext to Eliminate Refugee Protections The United States has used the COVID-19 pandemic as a pretext to summarily expel asylum seekers to danger in Mexico and the countries where they fled persecution while denying them access to the U.S. asylum system or preliminary protection screenings, as required by U.S. law and treaty obligations.5 In March 2020, the U.S. Department of Homeland Security (DHS) issued an interim final rule to implement the expulsion policy6 which relies on orders7 from the U.S. Centers for Disease Control and Prevention (CDC) that were issued under pressure from senior Trump Administration officials and over objections of senior CDC medical experts.8 People expelled to Mexico under the policy are stranded in brutal conditions, made worse by the pandemic, and many have suffered violent attacks. Despite pledges to reverse President Trump’s cruelty at the U.S.-Mexico border, President Biden has continued to implement the expulsion policy which endangers children, drives family separations, and illegally returns asylum seekers to danger, including Black and LGBTQ refugees who face bias-motivated violence in Mexico. Human Rights First has tracked at least 492 attacks and kidnappings suffered by asylum seekers turned away or stranded in Mexico since President Biden took office in January 2021.9 The Biden administration has also expelled migrants and asylum seekers to other countries where they face persecution and other violence. For instance, in February and March 2021,10 over 1,400 Haitian adults and children, including asylum seekers, were expelled to Haiti11 without access to the asylum process. Human Rights First’s 1 reports detail cases of individuals expelled to danger in Mexico and to the countries from which they had fled persecution, including: • a Haitian asylum seeker expelled with her husband and baby to Haiti in February 2021, where she had been kidnapped and raped; • a young Mexican asylum seeker expelled back to Mexico who had sought protection in the United States after being abducted by cartel members; and, • a Nicaraguan political dissident who was detained with her husband and child, beaten, and issued death threats after the family was expelled by the U.S. government to Nicaragua.12 While unaccompanied children were exempted from the expulsions policy under both the Trump and Biden administrations in the wake of public outcry and judicial orders,13 the continued use of “public health” expulsions against adults and families has prompted desperate families to send children alone across the border to escape violence, threats, human trafficking, and other dangers, fueling family separation.14 Due to Mexico’s refusal in some border regions to accept expelled families with children younger than seven years old, U.S. Customs and Border Protection (CBP) has held some families in horrible conditions and treated them cruelly before transporting them great distances to expel them to other regions of Mexico.15 Leading U.S. public health experts have repeatedly made clear that these restrictions on asylum, which remain in place as of June 2021, lack a public health justification and threaten the health and safety of migrants.16 According to public health experts, the CDC expulsions orders have “no scientific basis as a public health measure.”17 Indeed, at the same time the U.S. government effectively eliminated asylum protections at the border, between March 2020 and March 2021, more than 110 million pedestrians and passengers crossed the U.S.-Mexico border into the United States, underscoring the discriminatory nature of the provisions targeting asylum seekers.18 Leading public health professionals have called on the CDC to rescind its order and to adopt rational, science-based measures to safeguard public health while processing asylum seekers and children at the border during the COVID-19 pandemic.19 UNHCR has made clear that measures like the CDC order violate international law, stating that “imposing a blanket measure to preclude the admission of refugees or asylum-seekers . without measures to protect against refoulement, would be discriminatory and would not meet international standards.”20 In May 2021, UNHCR issued a rare public statement regarding and urging the United States “to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”21 While the Biden administration has recently implemented a process to exempt a small fraction of asylum seekers and migrants from expulsion on a case-by-case basis, this process is insufficient to protect the thousands of individuals seeking protection at the southern border of the United States, does not comply with U.S. obligations under refugee laws and treaties (or U.S. domestic law), and is inaccessible to asylum seekers without legal representation.22 U.S. policies and regulations gutting refugee protections under the pretext of COVID-19 violate U.S. non- refoulement obligations under Article 33 of the 1951 Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), and customary international law prohibiting the return of people to countries where they would be at risk of persecution, torture, or other serious harm. Expulsions under Title 42 return refugees to persecution and torture without fear screening in violation of the 1951 Convention and CAT, separate families in contravention of the ICCPR and CAT, and create a risk of chain refoulement.23 Along with this submission, Human Rights First provides copies of its reports detailing the impact of this policy on asylum seekers and migrants. 2 Pandemic Restrictions Further Delay Safety for Asylum Seekers Subjected to the Migrant Protection Protocols (MPP) Specious COVID-19 restrictions, such as the Title 42 expulsion policy, are slowing efforts to remove individuals from dangerous conditions in Mexico. For the many individuals without active MPP cases, including those who were denied asylum in cursory proceedings, those with terminated or closed MPP cases, and those who were not eligible for the program in the first instance, ongoing pandemic restrictions bar refugees from accessing the U.S. asylum system. Even those who are eligible for the MPP wind down have faced serious violence and death due to the extremely slow processing times imposed upon individuals in MPP due to the pandemic. In May 2021, a 19- year-old Cuban asylum seeker was murdered in Ciudad Juárez just days before he was to be processed out of MPP and brought to safety in the United States.24 In addition, thousands of asylum seekers with unfairly denied or closed MPP cases are still “await[ing] further instructions” from the administration on when they will be brought to safety.25 Further, those in MPP are ineligible for the exemption process the administration has established for those impacted by border closures under the expulsion policy. Thus, newly arriving people can potentially access safety through the exemption process while individuals in MPP who have been languishing
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