An unprecedented US policy authorizing the summary expulsion of migrants and asylum seekers because of the coronavirus pandemic violates international law, the United Nations has warned.
The Centers for Disease Control and Prevention (CDC) issued a sweeping order on 20 March encouraging the immediate deportation of non-citizens arriving overland without valid documents. The order cited an obscure quarantine law to claim the move is justified on public health grounds.
In the first 18 days to 8 April, 10,000 people were expelled within two hours of arriving on US soil – effectively denying them the legal right to seek international protection, according to Customs and Border Protection figures.
This amounted to 80% of all migrants and refugees being escorted back over the border into Mexico, where reports of kidnapping, trafficking and assaults by organised crime gangs and corrupt security forces are rife.
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This novel policy of systematic and rapid expulsions constitutes “refoulement” – the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution – which violates US and international laws and treaties designed to protect people at risk of persecution, torture and trafficking.
“We understand that in the current global Covid-19 public health emergency all governments have an obligation to enact measures to protect the health of their populations. While this may warrant extraordinary measures at borders, expulsion of asylum seekers resulting in refoulement should not be among them,” said Chris Boian from the UN Refugee Agency.
The vast majority of those expelled were men, women and children from Mexico and Central America’s northern triangle – El Salvador, Guatemala and Honduras – where a toxic mix of organized crime, state sponsored repression, extreme poverty and impunity has fueled an exodus of citizens in recent years.
Since taking power, the Trump administration has employed a variety of legally questionable measures to slash migration and roll back rights for asylum seekers without changing any laws.
For instance, since January 2019 tens of thousands of non-Mexican asylum seekers and migrants have been forced back into Mexico under the so-called Migrant Protection Protocols, where they must wait months or years for a court hearing in the US.
The new order singles out those without valid travel or immigration documents including asylum seekers for immediate expulsion on public health grounds, meanwhile excluding commerce and people with the correct documents from the same countries.
But the quarantine provision of the 1944 Public Health Service Act does not supersede other laws, or allow for selective application based on immigration status.
In a recent article for Just Security, the leading immigration law professor Lucas Guttentag, said: “The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws.”
As the coronavirus crisis unfolded, Trump initially minimized the gravity until cases and deaths started to escalate in the US, at which point he pivoted to blaming foreign nationals.
He has since used the pandemic to justify ramping up construction of the wall on the southern border. There is no evidence of undocumented migrants spreading coronavirus in the US, however, the US has deported dozens of infected migrants to Guatemala.
Related: Construction of US-Mexico border wall proceeds despite coronavirus pandemic
As countries across the world have enacted mitigation measures to tackle the pandemic, the right to freedom of movement has been forcefully restricted by repressive regimes in the northern triangle.
Over the past few weeks, Trump has used the daily White House coronavirus briefings to congratulate himself and the Mexican president, Andrés Manuel López Obrador, for a fall in numbers at the southern border.
About 570 people were apprehended every day during the first week of April – down by almost 50% compared to the first week of March, according to analysis by Adam Isacson, who runs the Washington Office of Latin America’s defense oversight program.
If the downward trend continues, April could see the lowest number of apprehensions in 50 years.
The controversial border quarantine order, which has been widely condemned by human rights, humanitarian and religious groups, must be renewed every 30 days.
Isacson said: “The danger is that the administration will use coronavirus as a pretext to maintain the expulsions for as long as possible. Right now, not only are courts barely in session, but there’s no litigation happening on this yet because the policy itself is mostly secret and it’s hard to reach plaintiffs on the Mexican side of the border.”