Press Release

IACHR Concerned About Restrictions of the Rights of Migrants and Refugees in the United States During COVID-19 Pandemic

July 25, 2020

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) has observed with particular concern that—in the context of the COVID-19 pandemic— migrant and other persons in the context of international mobility (refugees, asylum seekers, stateless persons, and others) in the United States are allegedly facing serious restrictions in their rights and safeguards. The Commission, therefore, urges the State to adapt any measures taken to ensure protection from the pandemic, in order to preserve effective access to procedures and proceedings to request protection in keeping with the standards applicable to the human rights of all migrant persons.

The IACHR observes that the continuity and the combined effects of previously adopted policies—such as the Migrant Protection Protocols (MPP)—and the use of the special powers that stem from the Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists (issued by the United States’ Centers for Disease Control and Prevention (CDC) in response to the COVID-19 pandemic) have made it more difficult for asylum seekers and migrant persons who may require protection to access legal processes in compliance with the international obligations and commitments of the United States, and with the country’s own standards on the issue. This situation entails risks for the human rights of these individuals.

In this context, the IACHR warns against executive decisions and practices that question the validity of certain laws and jurisprudence or seek to change public policies aimed at protecting migrants, refugees, and other individuals who may require protection. These decisions and practices include the suspension of the Deferred Action for Childhood Arrivals (DACA) program, the publication of planned new rules that enable rapid expulsions and prevent assessments of a credible fear of persecution or torture in asylum proceedings, and efforts to end the Flores Settlement, concerning the treatment dispensed to migrant children.

First, the Commission is concerned that, based on the Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, migrants who cross the border from Mexico or Canada and are subsequently apprehended can be immediately removed from the country, without ever reaching the border patrol’s reception facilities as a way to prevent the potential spread of the COVID-19. This potentially prevents them from accessing appropriate protection mechanisms. Further, the extension and amendment adopted by the head of the CDC on May 19 also extends such practices to coastal border checkpoints.

In this context, according to the information provided by civil society organizations, a large number of asylum seekers and individuals who require special protection—including children and adolescents—have been returned, following speedy procedures like these. The IACHR observes that, over the period March–June 2020, by applying the mechanism triggered by the Order of the CDC to suspend the introduction of certain persons into the United States, the country’s border authorities expelled a total of 69,210 individuals through the country’s southwestern border, according to official figures published by US Customs and Border Protection (CBP). Considering these statistics, linked to provisions adopted to preserve public health and wellbeing, the application of this mechanism exceeded the number of arrests strictly linked to migration during this period. Over this period, migrant detentions fell from 23,309 to 2,796, while expulsions on public health grounds went from 6,927 in March to 27,504 in June this year.

The IACHR is also concerned about reports that, in most cases, individuals who were deported did not have an opportunity to inform US authorities of any protection concerns they might have under appropriate asylum proceedings. According to reports received by the IACHR, something similar is also happening—though less frequently—along the country’s northern border, with Canada.

Concerning the application of the Migrant Protection Protocols, which have been in place since January 2019, the Commission observes with concern multiple impacts in the context of the pandemic. This policy led thousands of individuals to await removal proceedings in Mexico. Additionally, hearings and other legal proceedings have been temporarily suspended in response to the pandemic. with no alternative being offered either to individuals who cross the border or to those who are awaiting resolution of their case in Mexico. Regarding this, the US has informed the Commission that no date has been set to restart safe hearings, although the State is working on multiple potential options reestablish hearings routinely and that relocation programs in Mexico and voluntary assisted programs are still in place. The Commission is also concerned about recent news of the first positive tests for COVID-19 in border encampments in Matamoros, Mexico, where almost 2,000 individuals are awaiting proceedings. Further, according to publicly available reports and to information provided to the Commission by human rights defenders, some individuals seeking international protection and awaiting proceedings in Mexico have been subjected to violence, including kidnappings.

The IACHR is also very concerned about the impact of special emergency powers on removal proceedings involving migrant children and adolescents who are either arriving in the United States or were already in the country. According to reports received by the Commission, these migrant children and adolescents are being returned rapidly to Mexico, to other countries, or to their home countries without an effective assessment of the risks they might face at their destination.

According to the applicable to the treatment of children and adolescents encountered by ICE, they need to be transferred to the Office of Refugee Resettlement (ORR) operated by the US Department of Health and Human Services. ORR is specialized in the care of migrant children and has the legal attribution to identify children's relatives in the territory and promote family reunification. In this context, the IACHR notes that, as a result of the suspension of procedures, the average length of stay in facilities managed by ORR increased by more than 100%, from 122 days in January 2020 to 294 days in May. In this regard, the Commission recalls that the State must identify and protect the best interests of children and ensure the safest and most adequate means to make family reunification viable, and prevent their separation.

Human rights defenders also told the IACHR that, over the period March–May 2020, almost 1,000 migrant children and adolescents were allegedly removed from the country based on the special powers that stem from the emergency declared by the CDC.

In this context, the IACHR acknowledges the role of the Judiciary to protect the fundamental rights of migrants and refugees, as evidenced by several recent court decisions. The Commission welcomed the United States Supreme Court’s decision of June 18 concerning DACA. In particular, this decision prevented the federal government from immediately ending the program, which protects almost 700,000 people from deportation. The Court’s opinion focused on ensuring compliance with procedural legal requirements and said that government arguments in favor of immediately ending the program were insufficient, although they might at some point be completed.

The IACHR also welcomes the decision adopted on June 26 by the United States District Court for the Central District of California. In this ruling, in compliance with the Flores Settlement, the court ordered the release by July 17 of all children and adolescents who had spent more than 20 days in detention at three facilities run by ICE, two of them in Texas and one in Pennsylvania. This followed evidence that several migrant children and adolescents had become infected with the COVID-19 virus.

Concerning conditions of access to US territory and removal proceedings, the Commission has been closely monitoring restrictive trends and their impact on thousands of migrants within and outside the United States. This monitoring process took place in the context of the working visit to the United States’ southern border conducted by the Commission on August 19–23, 2019. Following this visit, the Commission made a series of recommendations based on its findings. The IACHR believes that these recommendations continue to be valid, particularly in the current context of the COVID-19 pandemic. The Commission, therefore, stresses that these recommendations need to be considered when making decisions concerning migrants and asylum seekers.

The Commission further reminds States of the importance of ensuring that any measures they adopt to address the pandemic do not prevent or hinder protection for the human rights of displaced persons in their territory and subject to their jurisdiction. The IACHR also stresses the importance of preserving due process in all actions that might lead to expulsions from their territory or otherwise cause family separation. In this context, the Commission stresses that restrictions on movement must be necessary to pursue the legitimate goal of protecting life and health and that the context of the pandemic must not be used to weaken or reduce the various forms of protection granted by countries, such as refugee status, asylum, and subsidiary protection.

Finally, the IACHR notes Resolution 01/20, Pandemic and Human Rights in the Americas, and supplementary statements on the issue, including Resolution 04/19 concerning the Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking. These instruments are an important guide for States to be able to comply with their obligation to protect displaced persons, migrants, and refugees, and to provide members of these groups with the special care they may require.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 179/20