The closure of borders was not the only restrictive measure adopted by the previous administration to contain the COVID-19 pandemic: The immigration system has been severely impacted in a way that violates international and U.S. law, and must be addressed by the new administration.
The first steps should include resuming asylum-seekers’ and migrants’ access to their rights through a safe and legal process, and acknowledging the rights of asylum-seekers across the Americas.
In the previous administration, visa processing overseas by the Department of State came to a near halt. U.S. Citizenship and Immigration Services suspended in-person services at its offices for several months during the pandemic, postponing or rescheduling interviews for immigration applications. This delayed the ability of tens of thousands of immigrants to become green card holders or U.S. citizens.
Entry into the U.S. along the Mexican and Canadian borders — including by asylum-seekers and unaccompanied children — has been restricted. Immigration court hearings have been suspended and the few courts still open have limited services.
Tens of thousands of people remain in immigration detention despite the risk of COVID-19 transmission.
Suspending the processing of asylum-seekers and migrants violates international and domestic law. Nonrefoulement is a fundamental principle of international law that must be taken into consideration by U.S. measures to respond to COVID-19. Although countries have the sovereign power to regulate the entry of non-nationals, international law emphasizes that these measures may not prevent those seeking asylum from persecution. Thus, a state cannot return asylum-seekers to an unsafe foreign territory.
The Biden administration faces several challenges regarding the protection of these rights during the pandemic. However, with sufficient political will, these challenges can be overcome.
To respect the nonrefoulement principle, the administration must prohibit the removal of a migrant, asylum-seeker or refugee to a country with poor and limited health care as it creates threats to life and health.
Refugees and asylum-seekers must be exempted from border closures and entry limitations. Health measures, such as screening, testing and quarantine, can enable the safe management of arrivals while respecting humanitarian principles.
The U.S. has some pending commitments toward the achievement of mobility rights.
The Organization of American States, or OAS, promotes and protects human rights, especially with two legal instruments: the 1948 American Declaration of the Rights and Duties of Man and the 1969 American Convention on Human Rights. Both organs of the OAS — the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights — oversee compliance with the Convention.
In 1948, this nation joined with others in the Americas to adopt that declaration of rights. It states that “every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.”
This provision can be applied not only by the Inter-American Commission on Human Rights but also by U.S. courts.
The Biden administration has the historical duty to ratify the American Convention on Human Rights as well — a prerequisite to joining the Inter-American Court of Human Rights — so the U.S. will be required to take steps to comply in the future.
Claudia Donoso is an assistant professor of graduate international relations at St. Mary’s University and an expert on human security in border zones.
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