Court filing
Amicus Brief — United Nations High Commissioner for Refugees — Huisha-Huisha v. Mayorkas (2021-11-19, 4)
Filed November 19, 2021 in Nancy Huisha-Huisha v. Alejandro Mayorkas; one of 56 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the D.C. Circuit |
|---|---|
| Filed | 2021-11-19 |
Full text
ORAL ARGUMENT SCHEDULED ON JANUARY 19, 2022
No. 21-5200
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NANCY GIMENA HUISHA-HUISHA, ET AL.,
Plaintiffs-Appellees,
v.
ALEJANDRO MAYORKAS, ET AL.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA (CIV. NO. 1:21-CV-00100)
(HON. EMMET G. SULLIVAN, J.)
BRIEF OF AMICUS CURIAE UNITED NATIONS
HIGH COMMISSIONER FOR REFUGEES IN SUPPORT OF
PLAINTIFFS-APPELLEES AND AFFIRMANCE
ALICE FARMER
KAREN BAKER
UNITED NATIONS HIGH
COMMISSIONER FOR REFUGEES
1800 Massachusetts Avenue, N.W.
Washington, DC 20036
(202) 296-5191
(202) 296-5660 (fax)
VINCENT LEVY
Counsel of Record
DENISHA S. BACCHUS
HOLWELL SHUSTER & GOLDBERG LLP
425 Lexington Avenue
New York, NY 10017
(646) 837-5151
(646) 837-5150 (fax)
vlevy@hsgllp.com
dbacchus@hsgllp.com
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 1 of 43
i
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel of
record certifies as follows:
A. Parties and Amici
Except for amicus curiae and any other amici who had not yet en-
tered an appearance in this case as of the filing of the Brief for Defend-
ants-Appellants, all parties, intervenors, and amici appearing before
the district court and in this Court are listed in the Brief for Defend-
ants-Appellants.
B. Rulings under Review
References to the ruling under review appear in the Brief for De-
fendants-Appellants.
C. Related Cases
Amicus curiae agrees with the statement in the Brief for Defend-
ants-Appellants that there are no related cases within the meaning of
D.C. Circuit Rule 28(a)(1)(C).
/s/ Vincent Levy
VINCENT LEVY
DATED: NOVEMBER 19, 2021
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 2 of 43
ii
TABLE OF CONTENTS
I.
UNHCR PROVIDES AUTHORITATIVE REFUGEE LAW
GUIDANCE. ...................................................................................... 5
II.
INTERNATIONAL LAW REQUIRES PARTICULARIZED
ASSESSMENT OF THE RISK OF PERSECUTION PRIOR TO
EXPULSION REGARDLESS OF PUBLIC-HEALTH CONCERNS.
............................................................................................................ 9
A. THE REFUGEE CONVENTION AND PROTOCOL REQUIRE
ADHERENCE TO THE FOUNDATIONAL PRINCIPLE OF
NON-REFOULEMENT FOR REFUGEES ................................. 9
B. PUBLISHED AUTHORITATIVE GUIDANCE REFLECTS
STATES’ REQUIREMENTS TO IDENTIFY REFUGEES AND
PREVENT REFOULEMENT ..................................................... 16
C. THE U.S.’S SUMMARY EXPULSION POLICY VIOLATES
THE INTERNATIONAL LAW PRINCIPLE OF NON-
REFOULEMENT. ....................................................................... 21
III.
THE U.S. CAN BOTH PROTECT PUBLIC HEALTH DURING
COVID-19 AND COMPLY WITH INTERNATIONAL LAW. ....... 24
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 3 of 43
iii
TABLE OF AUTHORITIES 1
CASES
Barapind v. Reno,
225 F.3d 1100 (9th Cir. 2000) .................................................................. 9
Castaneda-Castillo v. Holder,
638 F.3d 354 (1st Cir. 2011) .................................................................... 9
Garcia v. Sessions,
856 F.3d 27 (1st Cir. 2017) ...................................................................... 7
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) .................................................................... 2, 6, 7, 10
Mohammed v. Gonzales,
400 F.3d 785 (9th Cir. 2005) .................................................................... 7
Murray v. The Charming Betsey,
6 U.S. 64 (1804) ...................................................................................... 10
N-A-M- v. Holder,
587 F.3d 1052 (10th Cir. 2009) ................................................................ 2
Negusie v. Holder,
555 U.S. 511 (2009) .............................................................................. 2, 6
Sale v. Haitian Ctrs. Council,
509 U.S. 155 (1993) .............................................................................. 2, 6
Usoyan v. Republic of Turkey,
6 F.4th 31 (D.C. Cir. 2021) .................................................................... 10
1 Pursuant to Circuit Rule 28(a)(2), “[a]uthorities upon which [UNHCR]
chiefly rel[ies] are marked with asterisks.”
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 4 of 43
iv
STATUTES
8 U.S.C. § 1231(b)(3) ................................................................................. 10
RULES
D.C. Circuit Rule 32(e)(1) ......................................................................... 31
Fed. R. App. P. 29(a)(5) ............................................................................ 31
Fed. R. App. P. 32(a)(5)(A) ....................................................................... 31
Fed. R. App. P. 32(a)(6) ............................................................................ 31
Fed. R. App. P. 32(a)(7) ............................................................................ 31
Fed. R. App. P. 32(f) .................................................................................. 31
OTHER AUTHORITIES
ANDREAS ZIMMERMAN & CLAUDIA MAHLER, THE 1951 CONVENTION
RELATING TO THE STATUS OF REFUGEES & ITS 1967 PROTOCOL: A
COMMENTARY (2011) ................................................................................ 5
Ctrs. for Disease Control & Prevention, Public Health Assessment and
Order Suspending the Right to Introduce Certain Persons from Coun-
tries Where a Quarantinable Communicable Disease Exists (Aug. 2,
2021), https://www.federalregister.gov/documents/2021/08/05/2021-
16856/public-health-reassessment-and-order-suspending-the-right-to-
introduce-certain-persons-from ............................................................. 23
Conseil d’État [Council of State], 7ème chambre, No. 440756, Jul. 8,
2020 (Fr.),
https://www.legifrance.gouv.fr/ceta/id/CETATEXT000042100831/ .... 28
United Nations Convention Against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23
I.L.M. 1027, 1465 U.N.T.S. 85 ............................................................... 12
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 5 of 43
v
*Convention Relating to the Status of Refugees, 19 U.S.T. 6259,
189 U.N.T.S. 150 (1951) .......................................... 1, 2, 6, 11, 12, 14, 16
CORNELIS W. WOUTERS, INTERNATIONAL LEGAL STANDARDS FOR THE
PROTECTION FROM REFOULEMENT, Intersentia (2009) .......................... 13
Eur. Asylum Support Office, EASO Case Law Database: Applicant
(Central African Republic), Case No. 440756, https://caselaw.easo.eu-
ropa.eu/pages/viewcaselaw.aspx?CaseLawID=1148 ............................ 28
Eur. Comm’n, Exemptions to coronavirus travel restrictions into the
EU, https://ec.europa.eu/info/live-work-travel-eu/coronavirus-re-
sponse/travel-during-coronavirus-pandemic/exemptions-coronavirus-
travel-restrictions-eu_en ........................................................................ 25
Eur. Comm’n, Guidance on the implementation of the temporary re-
striction on non-essential travel to the EU, on the facilitation of
transit arrangements for the repatriation of EU citizens, and on the
effects on visa policy (Mar. 30, 2020), https://ec.europa.eu/home-af-
fairs/system/files/2020-03/20200330_c-2020-2050-report_en.pdf ........ 26
Executive Comm. of the High Commissioner’s Programme, Gen. Conclu-
sion on Int’l Protection, Rep. of Exec. Comm. on Its Fortieth Session,
U.N. Doc. A/44/12/Add.1 (Oct. 13, 1989), https://www.unhcr.org/en-
us/excom/exconc/3ae68c43c/generalconclusion-international-protec-
tion.html ................................................................................................... 8
H.R. Rep. No. 96-781 (1980) (Conf. Rep.), as reprinted in 1980
U.S.C.C.A.N. 160 ...................................................................................... 9
JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL
LAW, Cambridge Univ. Press (2005) ...................................................... 13
Memorandum from Harold Hongju Koh, Former U.S. Dep’t of State Le-
gal Adviser, “Re: Ending Title 42 return flights to countries of origin,
particularly Haiti” (Oct. 2, 2021) ..................................................... 22, 24
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 6 of 43
vi
Norwegian Gov’t Sec. & Serv. Organization, The coronavirus situation:
Questions and answers about entry to Norway (Aug. 10, 2021),
https://www.regjeringen.no/en/topics/koronavirus-covid-19/Questions-
and-answers-coronavirus-situation-in-Norway/the-coronavirus-situa-
tion-questions-and-answers-aboutentering-norway/id2703365/?ex-
pand=factbox2830667 ............................................................................ 27
Rikspolisstyrelsen [Swedish National Police Board, or “Polisen”], Travel
to Sweden during the corona pandemic (updated Nov. 15, 2021),
https://polisen.se/en/the-swedish-police/the-coronavirus-and-the-swe-
dish-police/travel-to-and-from-sweden/ ................................................. 27
Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of
the Principle of Non-Refoulement: Opinion, in REFUGEE PROTECTION IN
INTERNATIONAL LAW: UNHCR’S GLOBAL CONSULTATIONS ON
INTERNATIONAL PROTECTION (Erika Feller et al. eds., 2003) ................ 13
Statute of the Office of the UNHCR, G.A. Res. 428(V), U.N. Doc.
A/RES/428(V) (Dec 14, 1950) ............................................................... 1, 6
U.N. Ad Hoc Comm. on Refugees and Stateless Persons, Ad Hoc Com-
mittee on Refugees and Stateless Persons, Second Session: Summary
Record of the Thirty-Fourth Meeting Held at the Palais des Nations,
Geneva, on Monday, 14 August 1950, at 3 p.m., E/AC.32/SR.34 (Sept.
22 1950), https://www.refworld.org/docid/3ae68c1d34.html ................ 15
UNHCR, Advisory Opinion on the Extraterritorial Application of Non-
Refoulement Obligations under the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol (Jan. 26, 2007),
http://www.unhcr.org/refworld/docid/45f17a1a4.html ................... 11, 17
UNHCR, Background on the Executive Committee (July 1, 2001),
https://www.unhcr.org/en-us/excom/announce/3b4f09faa/background-
executive-committee.html ........................................................................ 8
UNHCR, Conclusion of the Executive Committee No. 8 on Determina-
tion of Refugee Status - 1977 (Oct. 12, 1977), https://www.ref-
world.org/docid/3ae68c6e4.html ............................................................. 18
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 7 of 43
vii
*UNHCR, Conclusions of the Executive Committee on International
Protection and Durable Solutions in the Context of a Public Health
Emergency (Oct. 2021), https://www.refworld.org/do-
cid/617a510e6.html ...................................................................... 8, 24, 29
UNHCR, COVID-19 Protection Issues Global Monitoring: Borders and
Admission of Asylum Seekers (Database) (updated Nov. 18, 2021) (on
file with author) ..................................................................................... 27
UNHCR, Executive Committee’s membership by year of admission of
members,
https://www.unhcr.org/afr/excom/announce/40112e984/ex.html .......... 8
*UNHCR, Handbook and Guidelines on Procedures and Criteria for De-
termining Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees, U.N. Doc
HCR/1P/4/ENG/REV.3 (2011) ..................................... 6, 7, 16, 17, 19, 20
*UNHCR, Key Legal Considerations on Access to Territory for Persons
in need of International Protection in the Context of the Covid-19 Re-
sponse (Mar. 16, 2020),
https://www.refworld.org/docid/5e7132834.html ... 3, 7, 8, 10, 18, 19, 21,
22, 24, 29
UNHCR, MID-YEAR TRENDS 2021 (Nov. 11, 2021) .................................... 1
UNHCR, Note of the Principle of Non -Refoulement (Nov. 1997)
https://www.refworld.org/docid/438c6d972.html ................................... 11
UNHCR, Practical Recommendations and Good Practice to Address Pro-
tection Concerns in the Context of the COVID-19 Pandemic,
https://www.refworld.org/docid/5ede06a94.html ............................ 26, 28
UNHCR, Submission by the Office of the United Nations High Commis-
sioner for Refugees in the case of Hirsi and Others v. Italy (Mar.
2010), https://www.unhcr.org/refworld/docid/4b97778d2.html (last vis-
ited Nov. 11, 2021) ................................................................................ 11
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 8 of 43
viii
UNHCR, UNHCR concerned over U.S. expulsion flights under COVID-
19 asylum restrictions (Aug. 11, 2021), https://www.un-
hcr.org/news/press/2021/8/6113dfc14/unhcr-concerned-expulsion-
flights-under-covid-19-asylum-restrictions.html .................................. 13
UNHCR, UNCHR Legal Considerations with regards to the EU Com-
mission’s Guidelines for border management measures to protect
health and ensure the availability of goods and essential services
(Mar. 18, 2020),
https://www.refworld.org/docid/5E7882484.html .................................... 4
UNHCR, UNHCR Note on the Principle of Non-Refoulement (Nov.
1997), https://www.refworld.org/docid/438c6d972.html ................. 11, 26
UNHCR, Where We Work (2021),
https://www.unhcr.org/en-us/where-we-work.html ............................... 1
UNHCR & Inter-Parliamentary Union, A Guide to International Refu-
gee Protection and Building State Asylum Systems: Handbook for Par-
liamentarians N° 27 (Dec. 31, 2017), https://www.un-
hcr.org/3d4aba564.pdf ............................................................... 13, 19, 22
UNHCR et al., Agencias de la ONU expresan preocupación frente al de-
terioro de las condiciones humanitarias de las personas migrantes y
solicitantes de asilo en las fronteras norte y sur de México (Aug. 11,
2021), https://www.acnur.org/es-mx/noti-
cias/ul/2021/8/61143e084/agencias-de-la-onu-expresan-preocupacion-
frente-al-deterioro-de-las-condiciones.html ................................... 22, 23
*1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267,
19 U.S.T. 6223 ........................................................................ 1, 2, 6, 9, 11
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 9 of 43
ix
GLOSSARY OF ABBREVIATIONS
CDC
Centers for Disease Control and Prevention
UNHCR
United Nations High Commissioner for Refugees
UNGA
United Nations General Assembly
Joint App.
Joint Appendix
Refugee Convention Convention Relating to the Status of Refugees
Protocol
1967 Protocol Relating to the Status of Refugees
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 10 of 43
x
RULE 29 STATEMENT
All parties to this appeal have consented to the filing of this brief.
No person or entity other than amicus curiae United Nations High
Commissioner for Refugees and its counsel authored this brief or contrib-
uted money intended to fund its preparation or submission.
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 11 of 43
1
IDENTITY AND INTEREST OF AMICUS CURIAE
The Office of the United Nations High Commissioner for Refugees
(“UNHCR”), pursuant to authority delegated to it by the United Nations
General Assembly (“UNGA”), is responsible for the promotion and super-
vision of compliance with international refugee law. G.A. Res. 428(V),
U.N. Doc. A/RES/428(V), ¶¶ 1, 8(a) (Dec. 14, 1950) (“UNHCR Statute”).
Today, more than 70 years after its founding, UNHCR works in 132 coun-
tries and territories helping to respond to the needs of more than 82 mil-
lion forcibly displaced people worldwide. UNHCR, Where We Work
(2021),
https://www.unhcr.org/en-us/where-we-work.html;
UNHCR,
MID-YEAR TRENDS 2021 (Nov. 11, 2021).
Two treaties binding upon the United States—namely, (i) the 1951
Convention Relating to the Status of Refugees, 19 U.S.T. 6259, 189
U.N.T.S. 150 (July 28, 1951) (“Refugee Convention”) and (ii) the Refugee
Convention’s 1967 Protocol Relating to the Status of Refugees, 19 U.S.T.
6223, 606 U.N.T.S. 267 (Jan. 31, 1967) (the “Protocol”)—reiterate
UNHCR’s authority regarding international refugee law. Those treaties
require the United States and other States party to “co-operate with”
UNHCR “in the exercise of its functions,” and to “facilitate [UNHCR’s]
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 12 of 43
2
duty of supervising the application” of refugee law. Refugee Convention
art. 35; Protocol art. II.
In line with UNHCR’s mandate and the United States’ treaty obli-
gations, the “Supreme Court has consistently turned” to UNHCR and its
published guidance “for assistance in interpreting [U.S.] obligations un-
der the Refugee Convention.” N-A-M- v. Holder, 587 F.3d 1052, 1061-62
(10th Cir. 2009) (Henry, J., concurring) (per curiam) (collecting cases);
see, e.g., Negusie v. Holder, 555 U.S. 511, 536-37 (2009); Sale v. Haitian
Ctrs. Council, 509 U.S. 155 (1993); INS v. Cardoza-Fonseca, 480 U.S. 421,
439 (1987). Although UNHCR takes no position directly on the merits of
Plaintiffs-Appellees’ claims, UNHCR respectfully submits that this Court
should follow UNHCR’s interpretation of international refugee law (sum-
marized below), including as reflected in its published guidance.
STATUTES AND REGULATIONS
All applicable statutes and regulations are contained in the Briefs
for Defendants-Appellants and Plaintiffs-Appellees, respectively.
SUMMARY OF ARGUMENT
The August 2, 2021 Order of the Centers for Disease Control and
Prevention (“the CDC Order”) suspends entry to the United States
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 13 of 43
3
through its contiguous borders and enables the expulsion of certain cate-
gories of non-nationals without an assessment of refugee status. This
policy violates fundamental tenets of the Refugee Convention and its Pro-
tocol—and conflicts with UNHCR’s consistent and authoritative inter-
pretations of refugee law—because the policy breaches international le-
gal obligations prohibiting States from returning refugees to countries in
which they reasonably fear persecution based upon race, religion, nation-
ality, membership of a particular social group, or political opinion.
That does not mean the United States may not protect its nationals
from public-health risks associated with COVID-19. Time and again,
UNHCR has reiterated the “sovereign power” of States “[u]nder interna-
tional law . . . to regulate the entry of non-nationals.” UNHCR, Key Legal
Considerations on Access to Territory for Persons in Need of Interna-
tional Protection in the Context of the COVID-19 Response ¶ 1 (Mar. 16,
2020).1 That border-management authority includes the right to insti-
tute “measures to ascertain and manage risks to public health in the con-
1 https://www.refworld.org/docid/5e7132834.html (last visited Nov. 19,
2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 14 of 43
4
text of the current COVID-19 outbreak”—but it does not permit categor-
ical refoulement policies. UNHCR, UNHCR Legal Considerations with
regard to the EU Commission’s Guidelines for border management
measures to protect health and ensure the availability of goods and es-
sential services (Mar. 18, 2020).2
Other countries have taken public-health measures while abiding
by their international law obligations to allow asylum-seekers access to
the asylum procedures. Italy, for example, quarantines all non-nationals
at the border for 10 days. Norway, Austria, and Sweden employ a differ-
ent strategy, explicitly exempting those who fit the legal definition of ref-
ugee from entry restrictions. What a State cannot do, however, is imple-
ment a policy of blanket expulsion for potential refugees or asylum-seek-
ers—or of those of a particular nationality or nationalities—without evi-
dence that a particular individual presents a particular security risk, and
while taking no steps to avoid refoulement. That is not justified under
international refugee law since, insofar as a policy of blanket expulsions
results in the forcible return of refugees, it would be a clear violation of
2 https://www.refworld.org/docid/5E7882484.html (last visited Nov. 10,
2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 15 of 43
5
the United States’ obligations under the Refugee Convention and its Pro-
tocol.
ARGUMENT
I.
UNHCR PROVIDES AUTHORITATIVE REFUGEE LAW
GUIDANCE.
A. In 1950, delegates from the United States and other members of
the United Nations convened to draft an agreement to ensure that refu-
gees “are not turned back to countries where they would be exposed to
the risk of persecution.” ANDREAS ZIMMERMAN & CLAUDIA MAHLER, THE
1951 CONVENTION RELATING TO THE STATUS OF REFUGEES & ITS 1967
PROTOCOL: A COMMENTARY 281, 337 (2011). The result was the Refugee
Convention, which delineates the basic rights of refugees and asylum-
seekers under international law, and which, for more than seven decades
since its 1951 enactment, has served as the “cornerstone of the interna-
tional system for” refugee protection. G.A. Res. 49/169 (Dec. 23, 1994).
As discussed supra, UNHCR is formally responsible for the protec-
tion of refugees under international law. Its mandate—laid out by UNGA
statute and reiterated by multiple international treaties including the
Refugee Convention—requires UNHCR to (i) “[p]romot[e]” the Refugee
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 16 of 43
6
Convention and its Protocol, and (ii) “supervis[e] their application.”
UNHCR Statute ¶¶ 1, 8(a); Refugee Convention art. 35; Protocol art. II.
The Refugee Convention and its Protocol also require Contracting
States to cooperate with UNHCR in the fulfillment of its mandate. And,
in line with international law, the U.S. Supreme Court and federal courts
addressing U.S. law and obligations follow UNHCR’s written guidance
interpreting refugee law. See, e.g., Negusie, 555 U.S. at 536-37; Sale, 509
U.S. at 155; Cardoza-Fonseca, 480 U.S. at 439.
B. UNHCR exercises its supervisory responsibility in part by issu-
ing guidance, based on its seven decades of experience, on the interpre-
tation of the Refugee Convention, the Protocol, other relevant interna-
tional law instruments, and customary international law. Among
UNHCR’s most-authoritative and most-cited guidance—including by
U.S. courts—is the Handbook and Guidelines on Procedures and Criteria
for Determining Refugee Status, prepared at the behest of the United
States and other Contracting States. UNHCR, Handbook and Guidelines
on Procedures and Criteria for Determining Refugee Status Under the
1951 Convention and the 1967 Protocol Relating to the Status of Refu-
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 17 of 43
7
gees, U.N. Doc HCR/1P/4/ENG/REV.3 (2011)), at Foreword ¶ IV [herein-
after “UNHCR Handbook”].3 Indeed, as the U.S. Supreme Court has ex-
plained, the UNHCR Handbook provides “significant guidance” on inter-
preting U.S. obligations under refugee law. Cardoza-Fonseca, 480 U.S.
at 439 n.22.
UNHCR periodically supplements the guidance set forth in the
UNHCR Handbook by publishing “Guidelines”, “Guidance Notes”, “Advi-
sory Opinions,” and other practical, contemporary legal analyses. Garcia
v. Sessions, 856 F.3d 27, 55 n.31 (1st Cir. 2017) (citing guidance); Mo-
hammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (same).
Two recent publications—a March 2020 analysis titled “Key Legal
Considerations on Access to Territory for Persons in Need of Interna-
tional Protection in the Context of the COVID-19 Response” (“Key Legal
Considerations”), and the October 2021 “Conclusion of the Executive
Committee on International Protection and Durable Solutions in the
3 https://www.refworld.org/docid/4f33c8d92.html (last visited Nov. 11,
2021) (noting that the Executive Committee asked UNHCR to issue,
“for the guidance of Governments[,] a handbook relating to procedures
and criteria for determining refugee status”); see also infra n.5 (discuss-
ing significance of Executive Committee conclusions).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 18 of 43
8
Context of a Public Health Emergency” (“Executive Committee COVID-
19 Conclusion”)—are particularly relevant here.4
The analyses in both documents reflect a reasoned interpretation of
long-standing and unquestionable foundational principles of interna-
tional law, including international refugee and human-rights law, in the
context of COVID-19. Executive Committee conclusions, in particular,
are highly probative, as they are adopted by consensus among the 107
State members of UNHCR’s Executive Committee,5 including the United
States.
4 UNHCR, Key Legal Considerations on Access to Territory for Persons
in Need of International Protection in the Context of the COVID-19 Re-
sponse (Mar. 16, 2020), https://www.refworld.org/docid/5e7132834.html
(last visited Nov. 11, 2021); UNHCR, Conclusions of the Executive Com-
mittee on International Protection and Durable Solutions in the Con-
text of a Public Health Emergency (Oct. 2021), https://www.ref-
world.org/docid/617a510e6.html (last visited Nov. 11, 2021).
5 Executive Committee conclusions reflect important “international
guidelines” that UNHCR and States draw upon “when developing or
orienting their policies on refugee issues.” Gen. Conclusion on Int’l Pro-
tection, Rep. of Exec. Comm. on Its Fortieth Session, ¶ p, U.N. Doc.
A/44/12/Add.1 (Oct. 13, 1989), https://www.unhcr.org/en-us/excom/ex-
conc/3ae68c43c/generalconclusion-international-protection.html (last
visited Nov. 11, 2021); see also UNHCR, Background on the Executive
Committee (July 1, 2001), https://www.unhcr.org/en-us/excom/an-
nounce/3b4f09faa/background-executive-committee.html (last visited
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 19 of 43
9
II.
INTERNATIONAL LAW REQUIRES PARTICULARIZED
ASSESSMENT OF THE RISK OF PERSECUTION PRIOR TO
EXPULSION REGARDLESS OF PUBLIC-HEALTH CONCERNS.
A.
The Refugee Convention and Protocol Require Adherence to
the Foundational Principle of Non-Refoulement for Refugees
The United States became a party to the Protocol—and, by exten-
sion, the Refugee Convention—in 1968.6 H.R. Rep. No. 96-781, at 19
(1980), as reprinted in 1980 U.S.C.C.A.N. 160, 160; S. Exec. Rep. No. 14,
90th Cong., 2d Sess. 4 (1968). In 1980, Congress passed the Refugee Act,
by which “Congress sought to bring United States refugee law into con-
formity with the 1967 United Nations Protocol Relating to the Status of
Refugees[.]” Castaneda-Castillo v. Holder, 638 F.3d 354, 361 (1st Cir.
2011) (quoting Barapind v. Reno, 225 F.3d 1100, 1106 (9th Cir. 2000)).
In light of that objective, the Supreme Court has instructed, the Refugee
Nov. 11, 2021) (“The Committee’s Conclusions on international protec-
tion represent an important body of opinion on detailed aspects.”).
The United States has been a member of the Executive Committee
continuously since the Executive Committee was founded in 1958.
UNHCR, Executive Committee’s membership by year of admission of
members, https://www.unhcr.org/afr/excom/announce/40112e984/excom-
membership-date-admission-members.html (last visited Nov. 19, 2021).
6 Pursuant to Article 1 of the Protocol, States party “to the Protocol
[agree] to apply articles 2 to 34 inclusive of the Convention to refugees
as hereinafter defined.” Protocol art. 1.
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 20 of 43
10
Act’s provisions must “be interpreted in conformance with the [Proto-
col’s]” provisions—and thus, by extension, the Refugee Convention’s. See
supra n.6; Cardoza-Fonseca, 480 U.S. at 437. See also Murray v. The
Charming Betsey, 6 U.S. 64, 118 (1804) (noting that an Act of Congress
should not be construed to violate the law of nations “if any other possible
construction” exists); 8 U.S.C. § 1231(b)(3) (“Restriction on removal to a
country where alien’s life or freedom would be threatened”).
Two key aspects of the United States’ obligations are particularly
relevant in considering the question presented on this appeal because,
taken together, they require the United States to take steps to (i) identify
and (ii) protect “refugees” from “refoulement”—that is, from direct or in-
direct return to a country in which they face serious threats to their lives
or freedoms.7
1. First, international refugee law protects those who fear persecu-
tion in their country of origin (or for those who have no nationality, their
7 “The principle of non-refoulement” is not just required by treaty but
also “ha[s] been recognized as a norm of customary international law.”
Key Legal Considerations at 3 (citing materials); see Usoyan v. Republic
of Turkey, 6 F.4th 31, 41 n.4 (D.C. Cir. 2021) (“[C]ustomary interna-
tional law has essentially the same binding force under international
law as treaty law.”) (citation omitted).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 21 of 43
11
country of habitual residence). Under the Refugee Convention, a “refu-
gee” is any person who “is outside the country of his [or her] nationality
and is unable or . . . unwilling” to return to such country “owing to” a
“well-founded fear of being persecuted” based upon race, religion, nation-
ality, membership of a particular social group, or political opinion. Refu-
gee Convention art. 1(A)(2).8
2. The principle of non-refoulement is key to protecting refugees
under international law, and the Refugee Convention and its Protocol
both reflect this “cornerstone of asylum [and] international refugee law.”9
The non-refoulement principle prohibits States from allowing the
“exp[ulsion] or return (‘refouler’) [of] a refugee in any manner whatsoever
8 The Protocol removed prior geographic and timing limitations on the
definition of “refugee.” Protocol art. 1(2)-(3).
9 UNHCR, UNHCR Note on the Principle of Non-Refoulement (Nov.
1997), https://www.refworld.org/docid/438c6d972.html (last visited Nov.
19, 2021) [hereinafter “1997 Note”]; see also UNHCR, Submission by
the Office of the United Nations High Commissioner for Refugees in the
case of Hirsi and Others v. Italy ¶¶ 4.1.1-4.2.3 (Mar. 2010),
https://www.unhcr.org/refworld/docid/4b97778d2.html (last visited Nov.
11, 2021); UNHCR, Advisory Opinion on the Extraterritorial Applica-
tion of Non-Refoulement Obligations under the 1951 Convention relat-
ing to the Status of Refugees and its 1967 Protocol (Jan. 26, 2007),
http://www.unhcr.org/refworld/docid/45f17a1a4.html (last visited Nov.
19, 2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 22 of 43
12
to the frontiers of territories where his life or freedom would be threat-
ened on account of his race, religion, nationality, membership of a partic-
ular social group or political opinion.” Refugee Convention art. 33(1) (em-
phasis added). A State may therefore not send a refugee back to the ref-
ugee’s country of origin, or another country where she or he fears perse-
cution or serious harm, without violating international law.10
By prohibiting the return of a refugee to his or her country of origin
or another country where s/he fears persecution or serious harm “[i]n any
manner whatsoever,” the Convention also encompasses expulsion that
indirectly leads to a refugee’s return. Refugee Convention art. 33(1). Ref-
ugee law indeed prohibits not just direct refoulement, but also indirect or
chain refoulement— i.e., “the removal of a refugee or asylum seeker to a
third State in circumstances in which there is a risk that he or she might
be sent from there to a territory where he or she would be at risk.” Sir
10 The Convention Against Torture and Other Cruel, Inhuman or De-
grading Treatment or Punishment, to which the United States is also a
party, similarly provides that “[n]o State Party shall expel, return (‘re-
fouler’) or extradite a person to another State where there are substan-
tial grounds for believing that he would be in danger of being subjected
to torture.” United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment, Dec.
10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85.
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 23 of 43
13
Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the
Principle of Non-Refoulement: Opinion, in REFUGEE PROTECTION IN
INTERNATIONAL
LAW:
UNHCR’S
GLOBAL
CONSULTATIONS
ON
INTERNATIONAL PROTECTION (Erika Feller et al. eds., 2003).11 If, for ex-
ample, a non-Mexican refugee passes through Mexico to claim asylum at
the U.S. border, and the United States expels him or her to Mexico, then
the United States is jointly responsible under international refugee law
if Mexico returns him or her to his or her country of origin.12
3. Combined with the definition of a refugee, the non-refoulement
provision is key to the protection of persons fleeing persecution. Moreo-
ver, the principle recognizes only limited exceptions: the Convention
11 See also UNHCR & Inter-Parliamentary Union, A Guide to Interna-
tional Refugee Protection and Building State Asylum Systems: Hand-
book for Parliamentarians N° 27s (Dec. 31, 2017), https://www.un-
hcr.org/3d4aba564.pdf (last visited Nov. 11, 2021) [hereinafter “Guide
on Building State Systems”] (discussing article 33(1) and reaching the
same conclusion).
12 Press Release, UNHCR, UNHCR concerned over U.S. expulsion
flights under COVID-19 asylum restrictions (Aug. 11, 2021), reprinted
at https://www.unhcr.org/news/press/2021/8/6113dfc14/unhcr-con-
cerned-expulsion-flights-under-covid-19-asylum-restrictions.html (last
visited Nov. 19, 2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 24 of 43
14
makes no exception for public health, and also has no provision for any
sort of blanket exceptions based on nationality, legal or other status.
Take Article 33(2) of the Convention. It provides that a person who
qualifies as a “refugee”—and thus, who would otherwise be protected
from expulsion or return “to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion”—may be re-
turned where “there are reasonable grounds for regarding [him] as a dan-
ger to the security of the country in which he is, or who, having been
convicted by a final judgment of a particularly serious crime, constitutes
a danger to the community of that country.” Refugee Convention art.
33(2). Likewise, a more general provision in Article 9 provides for sus-
pension of some rights of particular individuals for reasons of national
security, again focusing upon the “particular person.”13
13 “Nothing in this Convention shall prevent a Contracting State, in
time of war or other grave and exceptional circumstances, from taking
provisionally measures which it considers to be essential to the national
security in the case of a particular person, pending a determination by
the Contracting State that that person is in fact a refugee and that the
continuance of such measures is necessary in his case in the interests of
national security.” Refugee Convention art. 9 (emphasis added).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 25 of 43
15
Notably, neither of these articles and no other part of the Refugee
Convention contains any exceptions or carve-out for public health. Nor
do the national-security exceptions discuss or encompass public-health
emergencies, or otherwise permit non-individualized derogation.
To the contrary, the Convention’s drafters “considered, but rejected,
an all-embracing power of derogation in time of national crisis,” with the
American delegate insisting that “any exception to the duties owed refu-
gees be limited to ‘very special cases.’”14 Where the Convention included
carve-outs, it specified that they must be exercised only with an individ-
ualized assessment. Refugee Convention arts. 9, 33(2). No blanket ex-
ception—for public health or otherwise—authorizes expulsion without
individualized assessment.
14 JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL
LAW 261-62, Cambridge Univ. Press (2005) (quoting UNHCR, State-
ment of Louis Henkin, UN Doc.E/AC.32/SR. 34-35 (Aug. 14-15, 1950));
see also U.N. Ad Hoc Comm. on Refugees and Stateless Persons, Ad Hoc
Committee on Refugees and Stateless Persons, Second Session: Sum-
mary Record of the Thirty-Fourth Meeting Held at the Palais des Na-
tions, Geneva, on Monday, 14 August 1950, at 3 p.m. (Sept. 22
1950), E/AC.32/SR.34, reprinted at https://www.refworld.org/do-
cid/3ae68c1d34.html (last visited Nov. 19, 2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 26 of 43
16
B.
Published Authoritative Guidance Reflects States’ Require-
ments to Identify Refugees and Prevent Refoulement
Non-refoulement requires that, upon a non-national’s appearance
at a State’s borders, the State must (i) identify whether the non-national
has a well-founded fear of persecution based on protected traits (i.e., is or
may be a “refugee”), and, if so, (ii) protect that non-national from (direct
or indirect) return to his country of origin. The only exception is if, based
on a particularized assessment, that particular non-national poses a spe-
cific security risk to the State.
1. The first of these steps—identification of “refugee[s]”—is critical
to a State’s ability to comply with its non-refoulement obligations. Refu-
gee Convention art. 1(A)(2) (defining refugee); id. art. 33 (prohibiting re-
foulement of defined refugees). Refugee status is declaratory (that is,
objective): a person is a refugee as soon as the criteria contained in the
Convention’s definition are fulfilled, which necessarily occurs prior to the
time at which refugee status is formally determined. UNHCR Handbook
¶ 28. So absent credible identification procedures, a State might breach
its non-refoulement obligations by expelling a non-national without
knowing the individual was a refugee. See UNHCR, Note on Determina-
tion of Refugee Status under International Instruments, ¶ 5 (Aug. 24,
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 27 of 43
17
1977) (“[A]ny person is a refugee within the framework of a given instru-
ment if he meets the criteria of the refugee definition in that instrument,
whether he is formally recognized as a refugee or not.”)15; cf. UNHCR,
Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees
and its 1967 Protocol, ¶¶ 9, 20 (Jan. 26, 2007) (States must “ensur[e] pro-
tection from refoulement . . . as soon as a person presents him- or herself
at the border”) (emphasis added).16
In order to give effect to their obligations under the 1951 Conven-
tion, Contracting States must put in place fair and efficient procedures
to identify refugees. UNHCR Handbook ¶ 189. While the 1951 Conven-
tion leaves it to Contracting States to establish procedures that corre-
spond with their domestic systems, those procedures must satisfy a num-
ber of basic requirements aimed at allowing an individual assessment of
15 https://www.unhcr.org/excom/scip/3ae68cc04/note-determination-refu-
gee-status-under-international-instruments.html (last visited Nov. 11,
2021).
16 www.unhcr.org/refworld/docid/45f17a1a4.html (last visited Nov. 11,
2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 28 of 43
18
an asylum application by a competent authority, and the State is re-
quired to consider, in good faith and with due diligence, the individual
circumstances of the person concerned. Id. ¶¶ 189-94; see also UNHCR,
Conclusion of the Executive Committee No. 8 on Determination of Refu-
gee Status - 1977 (Oct. 12, 1977).17
Through decades of published guidance, UNHCR has provided
technical assistance to States in establishing fair and efficient asylum
procedures. Starting from the person’s arrival, States have an affirma-
tive obligation to elicit information that might reveal potential refugee
status. See, e.g., Key Legal Considerations ¶ 3 (“States have a duty vis-
à-vis persons who have arrived at their borders[] to make independent
inquiries as to the persons’ need for international protection and to en-
sure they are not at risk of refoulement”) (italics in original). Thus, if
there is any reason to suspect that a non-national may fear return to his
or her country of origin, or other country where he or she fears persecu-
17 https://www.refworld.org/docid/3ae68c6e4.html (last visited Nov. 19,
2021); see also supra n.5 (discussing significance of Executive Commit-
tee conclusions).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 29 of 43
19
tion or serious harm—regardless of any clearly articulated need for pro-
tection—the State has a “duty” to make “independent inquiries as to the
person[’s] need for international protection.” Id.
If, during the course of such assessment, a State confirms that a
person has such a need—meaning he or she qualifies as a refugee—then
the State must protect him or her from refoulement, both directly (from
its borders to his or her country of origin or other country where he or she
faces persecution or serious harm) or indirectly (by way of expulsion to a
country that might return the individual to his or her country of origin
or other country where she or he faces persecution or serious harm). See
Guide on Building State Systems at 20; see also CORNELIS W. WOUTERS,
INTERNATIONAL
LEGAL
STANDARDS
FOR
THE
PROTECTION
FROM
REFOULEMENT 133, Intersentia (2009).
2. Given these parameters, the UNHCR Handbook instructs States
on the design of refugee-identification procedures consistent with the in-
ternational treaties—all of which make clear that the CDC Order runs
afoul of international refugee law by instituting a blanket policy.
The UNHCR Handbook encourages States to prioritize practicality
and be mindful that, as “an applicant for refugee status is normally in a
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 30 of 43
20
particularly vulnerable situation,” the applicant “may experience serious
difficulties, technical and psychological, in submitting his case to the au-
thorities of a foreign country, often in a language not his own.” UNHCR
Handbook ¶ 190. Thus, States should staff their refugee-identification
operations with “qualified personnel having the necessary knowledge and
experience, and an understanding of an applicant’s particular difficulties
and needs.” Id.
The UNHCR Handbook further recommends (id. at ¶ 192) that
States ensure the following with respect to every non-national:
The non-national is addressed by a “competent official (e.g.,
immigration officer or border police officer) . . . at the border
or in the [State party] . . . [who] ha[s] clear instructions for
dealing with cases which might come within the purview of
the relevant international instruments. He should be re-
quired to act in accordance with the principle of non‑re-
foulement and to refer such cases to a higher authority.”
The non-national receives “necessary guidance” about the
State’s refugee-identification procedure—including, if needed,
guidance from a “competent interpreter.” Among other
things, that guidance should indicate for the non-national the
“clearly identified authority . . . with responsibility for exam-
ining [any] request for refugee status.”
Any non-national who indicates an interest in refugee status
is “given the opportunity . . . to contact a representative of
UNHCR.”
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 31 of 43
21
Any non-national who applies for refugee status is “permitted
to remain in the country pending a decision” on his request,
in compliance with the principle of non-refoulement.
The specifics of this longstanding guidance are less important here
than the simple point they reflect: international law requires States to
conduct an individualized assessment, before a person is expelled, to
evaluate whether the individual is a qualifying “refugee.” That is the key
foundational principle that the CDC Order contravenes.
C.
The U.S.’s Summary Expulsion Policy Violates the Interna-
tional Law Principle of Non-Refoulement.
Applying this longstanding law and guidance, UNHCR has con-
cluded in published guidance that a summary-expulsion policy, such as
the one codified in the CDC Order, cannot be reconciled with the Refugee
Convention and its Protocol. There is no reasonable contrary conclusion.
To repeat, the “cardinal protection principle” of non-refoulement
prohibits State conduct that could “lead[] to” a refugee’s “‘return in any
manner whatsoever’ to an unsafe foreign territory.” Key Legal Consider-
ations ¶ 2 (citing Refugee Convention art. 33) (emphasis added). That
certainly proscribes enactment and implementation of a blanket policy—
like the CDC Order’s summary-expulsion policy—of “rejection at the [bor-
der] or non-admission to the territory,” because blanket rejection or non-
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 32 of 43
22
admission clearly may subject a refugee to direct and/or indirect re-
foulement. Key Legal Considerations ¶ 2 (citing Refugee Convention art.
33) (emphasis added). That is clear regardless of what Title 42 does or
does not allow under domestic law.
Nor can the United States justify the policy on the ground that it
may not be the country that directly subjects the refugee to harm or re-
turn: for again, the United States violates international law if it turns
away a refugee to a third country that itself returns the refugee to his or
her country of origin. See Guide on Building State Systems at 68 (dis-
cussing the obligation to prevent chain refoulement).18
18 Critics of the CDC Order have highlighted the risk that it impermissi-
bly enables direct refoulement to countries like Haiti. See, e.g., Memo-
randum from Harold Hongju Koh, Former U.S. Dep’t of State Legal Ad-
viser, “Re: Ending Title 42 return flights to countries of origin, particu-
larly Haiti” (Oct. 2, 2021), reprinted at https://www.polit-
ico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000 (last visited Nov.
11, 2021) [hereinafter “Koh Memo”]. However, the risk of chain re-
foulement is also concerning to the extent that the United States expels
non-nationals to Mexico. A recent joint statement by UNHCR, the
United Nations Children’s Fund, the United Nations High Commis-
sioner for Human Rights, the United Nations Entity for Gender Equal-
ity and the Empowerment of Women, and the International Organiza-
tion for Migration, warns that Mexican institutions—overwhelmed by
the pandemic—have recently been unable to guarantee refugees’ non-
refoulement (and other) rights. See UNHCR et al., Agencias de la ONU
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 33 of 43
23
In short, the CDC Order’s “suspension of” entry by (i) single adults
and family units (ii) traveling from Canada or Mexico (regardless of their
country of origin) (iii) “who would otherwise be held at [point of entry]
and U.S. Border Patrol Stations” upon entry violates international law
because it does not include a personalized assessment of refugee status
and does not adequately protect against direct and indirect refoulement.
CDC, Public Health Assessment and Order Suspending the Right to In-
troduce Certain Persons from Countries Where a Quarantinable Com-
municable Disease Exists (Aug. 2, 2021), at 42829-30, 42838, 42841.19
It is not sufficient that the CDC Order authorizes DHS to make
case-by-case exceptions “based on the totality of the circumstances, in-
cluding consideration of significant law enforcement, officer and public
safety, humanitarian, and public health interests.” Id. at 42841. Nor
does the CDC Order’s special screening of the subset of non-nationals
expresan preocupación frente al deterioro de las condiciones humanita-
rias de las personas migrantes y solicitantes de asilo en las fronteras
norte y sur de México (Aug. 11, 2021), https://www.acnur.org/es-mx/no-
ticias/ul/2021/8/61143e084/agencias-de-la-onu-expresan-preocupacion-
frente-al-deterioro-de-las-condiciones.html (last visited Nov. 11, 2021).
19 https://www.federalregister.gov/documents/2021/08/05/2021-
16856/public-health-reassessment-and-order-suspending-the-right-to-
introduce-certain-persons-from (last visited Nov. 11, 2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 34 of 43
24
that take on the burden of making an “affirmative, spontaneous[,] and
reasonably believable claim that they fear being tortured in the country
they are being sent back to” remedy those errors.20 Doc. No. 1919200
(Joint App.), at 212. The Order nowhere instructs DHS to individually
assess non-nationals to determine refugee status and, if a non-national
is a refugee, to guarantee his or her safety from refoulement. That is
what international law plainly requires.
III. THE U.S. CAN BOTH PROTECT PUBLIC HEALTH DURING
COVID-19 AND COMPLY WITH INTERNATIONAL LAW.
UNHCR has long acknowledged that States may take measures to
ascertain and manage risks to public health (such as testing and quaran-
tine), including at the border. Key Legal Considerations ¶ 5; see Execu-
tive Committee COVID-19 Conclusion (“[a]cknowledging that States
have the right to take measures to protect public health[,] while recalling
that such measures need to be implemented in a manner consistent with
States’ obligations under international law, including international refu-
gee” law).
20 As one former government official explains, under this provision,
“[m]igrants who arrive at the border are not screened for fears of perse-
cution upon return unless they affirmatively raise their fear, in what is
informally known as the ‘shout test.’” Koh Memo 2.
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 35 of 43
25
In line with that principle, it is entirely possible—and now com-
mon—to adopt public-health measures to stem the transmission of
COVID-19 without violating the Refugee Convention and its Protocol. To
date, UNHCR’s ongoing review has identified 75 countries with pan-
demic-era restrictions that, as written, include carve-outs to take account
of refugee status (including, where applicable under domestic law, asy-
lum-seekers) and abide by non-refoulement obligations.
Take, for example, the European Commission’s standards on travel
restrictions to the European Union during the pandemic, which provide:
To slow down the spread of coronavirus and protect the health and
well-being of all Europeans, some travel restrictions have been im-
plemented for travel into the EU from third countries . . . [But] the
temporary travel restrictions should not . . . apply to travel by peo-
ple with an essential need, including . . . persons in need of inter-
national protection or for other humanitarian reasons.
European Commission, Exemptions to coronavirus travel restrictions
into the EU. 21
The European standards’ explicit exception for “persons in need of
international protection”—including refugees—transforms what would
otherwise be an impermissible blanket policy into a policy that complies
21 https://ec.europa.eu/info/live-work-travel-eu/coronavirus-re-
sponse/travel-during-coronavirus-pandemic/exemptions-coronavirus-
travel-restrictions-eu_en (last visited Nov. 11, 2021).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 36 of 43
26
with the cardinal principle of non-refoulement. See 1997 Note; see also
European Commission, Guidance on the implementation of the tempo-
rary restriction on non-essential travel to the EU, on the facilitation of
transit arrangements for the repatriation of EU citizens, and on the ef-
fects on visa policy, 5 (Mar. 30, 2020) (excepting from restrictions “[p]er-
sons in need of international protection or for other humanitarian rea-
sons respecting the principle of non[-]refoulement.”).22
Indeed, as EU Member States have sought to abide by EU law,
some of them adopted “[t]argeted measures . . . for newly arrived asylum
seekers, such as self-isolation, quarantine, placement in emergency
structures and health screening.” Eur. Comm’n, The impact of COVID-
19 in the migration area in EU and OECD countries, 23 (Apr. 2021).23
22 https://ec.europa.eu/home-affairs/system/files/2020-03/20200330_c-
2020-2050-report_en.pdf (last visited Nov. 11, 2021); see also UNHCR,
Practical Recommendations and Good Practice to Address Protection
Concerns in the Context of the COVID-19 Pandemic, https://www.ref-
world.org/docid/5ede06a94.html (last visited Nov. 19, 2021) [hereinafter
“UNHCR Practical Recommendations”] (discussing practices in Europe
as of April 2020).
23 https://www.oecd.org/migration/mig/00-eu-emn-covid19-umbrella-in-
form-en.pdf (last visited Nov. 11, 2021).
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27
Such measures, as written and when properly implemented, would also
comply with non-refoulement obligations.24
UNHCR has collected additional data from States party to the Ref-
ugee Convention and its Protocol. Austria, for example, enacted a na-
tional decree restricting travel during the pandemic—but stipulated that
entry could not be refused where doing so would violate applicable law.
UNHCR, COVID-19 Protection Issues Global Monitoring: Borders and
Admission of Asylum Seekers (Database) (updated Nov. 18, 2021) (on file
with author). Norway and Sweden’s policies are similar. Id.25
24 Human rights advocates have disputed that EU members always
comply with the written policy (and international law) in practice. See,
e.g., Human Rights Watch, WORLD REPORT 2021: EVENTS OF 2020, 242
(2021) (“Nongovernmental and international organizations reported
cases of pushbacks, often accompanied by violence, or denials of access
to asylum at many EU land external borders, including in Greece, Croa-
tia, Slovenia, Bulgaria, Hungary, and Poland”). For purposes of this
brief, UNHCR takes no position on that issue.
25 See Norwegian Gov’t Sec. & Serv. Organization, The coronavirus situ-
ation: Questions and answers about entry to Norway (Aug. 10, 2021),
https://www.regjeringen.no/en/topics/koronavirus-covid-19/Questions-
and-answers-coronavirus-situation-in-Norway/the-coronavirus-situa-
tion-questions-and-answers-aboutentering-norway/id2703365/?ex-
pand=factbox2830667 (last visited Nov. 18, 2021) (Norwegian exception
for “asylum seekers and resettlement refugees); Rikspolisstyrelsen
[Swedish National Police Board, or “Polisen”], Travel to Sweden during
the corona pandemic (updated Nov. 15, 2021), https://polisen.se/en/the-
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28
France, by contrast, faced litigation before its highest administra-
tive court last year about the overbreadth of its travel restrictions. In
one case, the French Council of State denounced the French authorities’
wrongful expulsion of a non-national who attempted to seek asylum at
the French border.26 In light of the circumstances, “[t]he Council of State
concluded that by refusing [her] entry to the territory[,] the authorities
had manifestly infringed the right to asylum.” Id. France resumed reg-
ular processing for asylum applications—while adding hygiene measures
designed to combat COVID-19 transmission.
Altogether, these examples illustrate that States can both protect
public health and comply with international law. That practice accords
swedish-police/the-coronavirus-and-the-swedish-police/travel-to-and-
from-sweden/ (last visited Nov. 18, 2021) (Swedish exception for “[i]ndi-
viduals in need of international protection (e.g. asylum) or have other
humanitarian needs.”); see generally UNHCR Practical Recommenda-
tions.
26 Conseil d’État [Council of State], 7ème chambre, No. 440756, Jul. 8,
2020 (Fr.),
https://www.legifrance.gouv.fr/ceta/id/CETATEXT000042100831/ (last
visited Nov. 18, 2021); see Eur. Asylum Support Office, EASO Case Law
Database: Applicant (Central African Republic), Case No. 440756,
https://caselaw.easo.europa.eu/pages/view-
caselaw.aspx?CaseLawID=1148 (last visited Nov. 18, 2021) (English
summary).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 39 of 43
29
with UNHCR guidance on the proper exercise of States’ “sovereign power
to regulate the entry of non-nationals” while respecting international ref-
ugee law’s core precepts. Key Legal Considerations ¶ 1; see also id. ¶ 5
(“Denial of access to territory without safeguards to protect against re-
foulement cannot be justified on the grounds of any health risk.”); Exec-
utive Committee COVID-19 Conclusion ¶ k (noting that the Executive
Committee—including its member, the United States—“[w]elcomes steps
taken by States to ensure that measures taken to limit entry at borders
in connection with public health emergencies are . . . applied in a manner
which safeguards public health, while respecting the right to seek and
enjoy asylum and the principle of non-refoulement, and complying with
applicable obligations under international law, including international
refugee law”).
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 40 of 43
30
CONCLUSION
In UNHCR’s view, the CDC Order’s summary-expulsion policy can-
not be reconciled with the inviolable prohibition against refoulement un-
der international law.
NOVEMBER 19, 2021
Respectfully submitted,
/s/ Vincent Levy
VINCENT LEVY
Counsel of Record
DENISHA S. BACCHUS
HOLWELL SHUSTER & GOLDBERG LLP
425 LEXINGTON AVENUE
NEW YORK, NY 10017
(646) 837-5151
(646) 837-5150 (FAX)
ALICE FARMER
KAREN BAKER
UNITED NATIONS HIGH
COMMISSIONER FOR REFUGEES
1800 Massachusetts Ave., N.W.
Washington, DC 20036
(202) 296-5191
(202) 296-5660 (fax)
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 41 of 43
31
CERTIFICATE OF COMPLIANCE
This brief complies with the typeface and type style requirements
of Fed. R. App. P. 32(a)(5)(A) and Fed. R. App. P. 32(a)(7)(B) because it
has been prepared in a proportionally spaced typeface using Microsoft
Word 2016 in Century Schoolbook 14-point font.
This brief complies with the type-volume limitations of Fed. R. App.
P. 29(a)(5) and D.C. Circuit Rule 32(f) because it contains 5,658 words
excluding the parts exempted by Fed. R. App. P. 32(f) and D.C. Circuit
Rule 32(f).
/s/ Vincent Levy
VINCENT LEVY
DATED: NOVEMBER 19, 2021
USCA Case #21-5200 Document #1923351 Filed: 11/19/2021 Page 42 of 43
32
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the District
of Columbia Circuit by using the appellate CM/ECF system on November
19, 2021. I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.
/s/ Vincent Levy
VINCENT LEVY
DATED: NOVEMBER 19, 2021
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