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Brief of Amicus Curiae United Nations High Commissioner for Refugees, No. 3:18-CV-06180
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Patrick W. Pearsall, D.C. Bar No. 975801
Appearance Pro Hac Vice
1099 New York Ave., NW
Washington, DC 20001
(202) 639-6000
Brian Hauck, Cal. Bar No. 303058
633 W. 5th St.
Los Angeles, CA 90071
(213) 238-5100
Jenner & Block LLP
Counsel for Amicus Curiae Office of the United Nations High Commissioner for Refugees
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
East Bay Sanctuary Covenant; Al Otro Lado;
Innovation Law Lab; and Central American
Resource Center in Los Angeles,
Plaintiffs,
v.
Donald J. Trump, President of the United States,
in his official capacity; Matthew G. Whitaker,
Acting Attorney General, in his official
capacity; U.S. Department of Justice; James
McHenry, Director of the Executive Office for
Immigration Review, in his official capacity;
Executive Office for Immigration Review;
Kirstjen M. Nielsen, Secretary of Homeland
Security, in her official capacity; U.S.
Department of Homeland Security; Lee Francis
Cissna, Director of the U.S. Citizenship and
Immigration Services, in his official capacity;
U.S. Citizenship and Immigration Services;
Kevin K. McAleenan, Commissioner of U.S.
Customs and Border Protection, in his official
capacity; U.S. Customs and Border Protection;
Ronald D. Vitiello, Acting Director of
Immigration and Customs Enforcement, in his
official capacity; Immigration and Customs
Enforcement,
Defendants.
Case No. 3:18-CV-06810-JST
The Honorable Jon S. Tigar
BRIEF OF AMICUS CURIAE
OFFICE OF THE UNITED
NATIONS HIGH
COMMISSIONER FOR
REFUGEES IN SUPPORT OF
PLAINTIFFS
Hearing Date: Dec. 19, 2018
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
INTEREST OF AMICUS CURIAE ............................................................................................... 1
SUMMARY OF ARGUMENT ...................................................................................................... 2
ARGUMENT .................................................................................................................................. 6
I.
The United States Is Bound by the 1951 Convention and
the 1967 Protocol. ........................................................................................................ 6
II.
UNHCR Provides Authoritative Guidance in Interpreting
the 1951 Convention and 1967 Protocol. ..................................................................... 7
III.
The Revised Policy Is at Variance with the United States’
Obligations Under the 1951 Convention and the 1967 Protocol. ................................ 8
A. The Revised Policy Restricts the Right to Seek Asylum in
Violation of the 1951 Convention and the 1967 Protocol. ........................................... 9
B. The Revised Policy Creates a Penalty on Irregular Entry
That Is Prohibited by Article 31(1) of the 1951 Convention. ..................................... 12
C. The Revised Policy Risks Refoulement of Refugees in
Violation of Article 33(1) of the 1951 Protocol. ........................................................ 13
D. Neither Withholding of Removal Under the INA Nor Protection
Under the Convention Against Torture Is an Adequate
Substitute for the Asylum Process. ............................................................................. 15
CONCLUSION ............................................................................................................................. 17
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TABLE OF AUTHORITIES
CASES
Ali v. Lynch, 814 F.3d 306 (5th Cir. 2016) ......................................................................................8
B010 v. Canada, [2015] 3 S.C.R. 704 (Can.) ..........................................................................12, 13
BVerfG, 2 BvR 450/11 ¶ 31, Dec. 8, 2014 (Ger.) .........................................................................13
Fei Mei Cheng v. Attorney General, 623 F.3d 175 (3d Cir. 2010) ..................................................8
Gjerazi v. Gonzales, 435 F.3d 800 (7th Cir. 2006) ........................................................................17
Gutierrez-Rogue v. INS, 954 F.2d 769 (D.C. Cir. 1992) ...............................................................16
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ...........................................................2, 6, 7, 15, 16
INS v. Stevic, 467 U.S. 407 (1984) ................................................................................................16
Ling Huang v. Holder, 744 F.3d 1149 (9th Cir. 2014) ..................................................................15
M.A. v. INS, 899 F.2d 304 (4th Cir. 1990) .......................................................................................7
Mekhoukh v. Ashcroft, 358 F.3d 118 (1st Cir. 2004) .......................................................................8
Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) ...................................................................7
Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) ......................................................................8
R v. Asfaw [2008] UKHL 31 ..........................................................................................................13
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993) ..........................................................6, 14
Tagaga v. INS, 228 F.3d 1030 (9th Cir. 2000) ................................................................................2
Yusupov v. Attorney General, 518 F.3d 185 (3d Cir. 2008) ............................................................7
STATUTES
8 U.S.C. § 1158 ..............................................................................................................................10
8 U.S.C. § 1231 ..............................................................................................................................15
Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. ............................................7, 10, 15, 16
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 ......................................................2, 3, 6, 7
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LEGISLATIVE MATERIALS
S. Rep. No. 96-590 (1980) ...............................................................................................................7
OTHER AUTHORITIES
8 C.F.R. § 208.16 .....................................................................................................................15, 16
8 C.F.R. § 208.31 ...........................................................................................................................17
Ad Hoc Comm. on Statelessness, Status of Refugees & Stateless Persons, U.N.
Doc. E/AC.32/2 (1950) ........................................................................................................8, 12
Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations, 83
Fed. Reg. 55,934 (Nov. 9, 2018)..........................................................................2, 3, 13, 15, 17
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 .........1–9, 13, 15–17
Brief of the UNHCR as Amicus Curiae, Stevic, 467 U.S. 407 (1984) (No. 82-973) ....................16
Convention on the Privileges & Immunities of the United Nations, Feb. 13, 1946,
1 U.N.T.S. 15 .............................................................................................................................1
Convention Relating to the Status of Refugees, July 28, 1951,
189 U.N.T.S. 150 ...........................................................................................1–9, 11–13, 15–17
Cathryn Costello et al., Article 31 of the 1951 Convention Relating to the Status
of Refugees (2017) ...................................................................................................................13
Executive Comm. of the High Commissioner’s Programme, Note on International
Protection, U.N. Doc. A/AC.96/815 (1993) ........................................................................9, 14
Final Act of the United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons, July 25, 1951, 189 U.N.T.S. 138 .........................................17
G.A. Res. 49/169 (Dec. 23, 1994)....................................................................................................6
G.A. Res. 48/116 (Dec. 20, 1993)....................................................................................................2
G.A. Res. 428(V) annex, Statute of the Office of the UNHCR (Dec. 14, 1950) .........................1, 3
G.A. Res. 217 A(III), Universal Declaration of Human Rights (Dec. 10, 1948) ..................3, 8, 14
Guy S. Goodwin-Gill, Article 31 of the 1951 Convention Relating to the Status of
Refugees, in Refugee Protection in International Law 185 (Volker Türk et al.
eds., 2003) ................................................................................................................................12
Handbook on Procedures & Criteria for Determining Refugee Status, U.N. Doc.
HCR/1P/4/ENG/REV.3 (3d ed. 2011) .........................................................1, 4, 7–9, 11, 14, 16
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Elihu Lauterpacht & Daniel Bethlehem, The Scope & Content of the Principle of
Non-Refoulement, in Refugee Protection in International Law 87 (Erika Feller
et al. eds., 2003) .................................................................................................................14, 15
Presidential Proclamation Addressing Mass Migration Through the Southern
Border of the United States, 83 Fed. Reg. 57,661 (Nov. 9, 2018) .............................2–4, 13, 17
Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8487 (Feb.
19, 1999) ..................................................................................................................................17
UNHCR, A Guide to International Refugee Protection and Building State Asylum
Systems (2017).......................................................................................................................4, 9
UNHCR, Declaration of State Parties to the 1951 Convention and Its 1967
Protocol Relating to the Status of Refugees ¶ 4 (2002) .....................................................11, 16
UNHCR Exec. Comm., Conclusion No. 6 (XXVIII) (1977) .............................................10, 14, 15
UNHCR Exec. Comm., Conclusion No. 8 (XXVIII) (1977) ...........................................................9
UNHCR Exec. Comm., Conclusion No. 15 (XXX) (1979) ...........................................................13
UNHCR Exec. Comm., Conclusion No. 22 (XXXII) (1981) ........................................................15
UNHCR Exec. Comm., Conclusion No. 30 (XXXIV) (1983) ................................................15, 17
UNHCR Exec. Comm., Conclusion No. 58 (XL) (1989) ..............................................................12
UNHCR Exec. Comm. Conclusion No. 79 (XLII) (1996) ............................................................10
UNHCR, Follow-Up on Earlier Conclusions of the Sub-Committee on the
Determination of Refugee Status with Regard to the Problem of Manifestly
Unfounded or Abusive Applications, U.N. Doc. EC/SCP/29 (1983) ......................................11
UNHCR, Guidelines on Applicable Criteria & Standards Relating to the
Detention of Asylum-Seekers and Alternatives to Detention (2012) ......................................12
UNHCR, Note on Non-Refoulement (Submitted by the High Commissioner),
U.N. Doc. EC/SCP/2 (1977) ....................................................................................................14
U.S. Dep’t of Justice, Exec. Office for Immigration Review, Fact Sheet: Asylum
& Withholding of Removal Relief & Convention Against Torture Protections
(Jan. 15, 2009)..........................................................................................................................17
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INTEREST OF AMICUS CURIAE1
The Office of the United Nations High Commissioner for Refugees (“UNHCR”) has a
direct interest in this matter as the organization entrusted by the United Nations General Assembly
with responsibility for providing international protection to refugees and other persons under its
mandate. See G.A. Res. 428(V), annex, Statute of the Office of the UNHCR (Dec. 14, 1950)
(“UNHCR Statute”); G.A. Res. 48/116 (Dec. 20, 1993). UNHCR fulfills its mandate by
“[p]romoting the conclusion and ratification of international conventions for the protection of
refugees” and by “supervising their application and proposing amendments thereto.” UNHCR
Statute ¶ 8(a).
UNHCR’s supervisory responsibility is also expressly provided for in the Preamble and
Article 35 of the Convention Relating to the Status of Refugees (“1951 Convention”), July 28,
1951, 189 U.N.T.S. 150, and Article II of the Protocol Relating to the Status of Refugees (“1967
Protocol”), Jan. 31, 1967, 606 U.N.T.S. 267. Both treaties obligate State parties to cooperate with
UNHCR in the exercise of its mandate and to facilitate its supervisory role.
UNHCR exercises its mandate by issuing interpretations of the meaning of the 1951
Convention, the 1967 Protocol, and other international refugee instruments. It issues these
interpretations principally through its Handbook on Procedures & Criteria for Determining
Refugee Status (“Handbook”), U.N. Doc. HCR/1P/4/ENG/REV.3 (3d ed. 2011). UNHCR’s
Guidelines on International Protection and other UNHCR guidance documents supplement the
Handbook and provide comprehensive direction to States on their obligations to ensure the
protection of refugees. UNHCR also provides specific guidance to States in the form of
submissions to executive, legislative, and judicial branches of government.
1 No person other than UNHCR and its outside counsel authored this brief or provided funding
related to it. This brief does not constitute a waiver, express or implied, of any privilege or
immunity that UNHCR and its staff enjoy under applicable international legal instruments and
recognized principles of international law. See Convention on the Privileges & Immunities of the
United Nations, Feb. 13, 1946, 1 U.N.T.S. 15.
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UNHCR regularly presents its opinions to national courts, including to the federal courts
of the United States. Consistent with UNHCR’s role and experience, the Supreme Court and lower
federal courts have turned to UNHCR for “significant guidance” in interpreting international
refugee instruments. E.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987); Tagaga v.
INS, 228 F.3d 1030, 1035 n.11 (9th Cir. 2000). As the United States is a party to the 1967 Protocol,
and has thereby also “agreed to comply with the substantive provisions of” the 1951 Convention,
Cardoza-Fonseca, 480 U.S. at 429, UNHCR’s guidance is particularly relevant to this Court’s
interpretation of the United States’ treaty obligations and their implementation through domestic
statutory law by the Refugee Act of 1980 (“Refugee Act”), Pub. L. No. 96-212, 94 Stat. 102.
The views of UNHCR are informed by more than six decades of experience supervising
the treaty-based system of refugee protection created by United Nations Member States. UNHCR
has won two Nobel Peace Prizes for its work, and operates in some 130 countries in support of the
nearly 68.5 million people who remain forcibly displaced from their homes.
UNHCR submits this brief out of concern that the United States’ recent rule entitled Aliens
Subject to a Bar on Entry Under Certain Presidential Proclamations (“Interim Asylum Rule”), 83
Fed. Reg. 55,934 (Nov. 9, 2018), constitutes a substantial change in the United States’ asylum
policy that, if implemented, would be at variance with the United States’ obligations under
international law. UNHCR has a strong interest in ensuring that the United States’ asylum policy
remains consistent with the obligations that the United States undertook when becoming party to
the 1967 Protocol, and submits this brief to offer guidance to the Court on those obligations.
Consistent with its approach in other cases, UNHCR takes no position directly on the merits of
Plaintiffs’ asylum claims through this brief.
SUMMARY OF ARGUMENT
The United States is bound to certain international treaty obligations as they relate to
refugees, in particular those enshrined in the 1967 Protocol, to which the United States is formally
a party, and the 1951 Convention, which is incorporated by reference in the 1967 Protocol.
Essential to this body of international refugee law are core procedural and substantive individual
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rights that States must uphold, and which Congress incorporated into federal statutory law by
enacting the Refugee Act. By virtue of its authority and mandate under the UNHCR Statute, the
1951 Convention, and the 1967 Protocol, UNHCR provides authoritative guidance to States,
including the United States, on how to ensure compliance with their obligations under international
refugee law.
UNHCR is concerned that the Interim Asylum Rule, when considered alongside the
November 9, 2018, Presidential Proclamation Addressing Mass Migration Through the Southern
Border of the United States (“Proclamation”), 83 Fed. Reg. 57,661 (Nov. 9, 2018), creates a
national refugee policy (the “Revised Policy”) that is at odds with the United States’ obligations
under international law. In particular, the Revised Policy effectively denies the right to seek
asylum to any refugee who crosses into the United States from Mexico outside of a designated
port of entry. The Proclamation suspends the right of entry to “any alien into the United States
across the international boundary between the United States and Mexico” and exempts only
“alien[s] who enter[] the United States at a port of entry and properly present[] for inspection.” Id.
at 57,663. The Interim Asylum Rule makes individuals ineligible for asylum if “the alien is subject
to a presidential proclamation” that “suspend[s] or limit[s] the entry of aliens along the southern
border with Mexico.” Interim Asylum Rule, 83 Fed. Reg. at 55,952.
This blanket denial of asylum without due process for refugees who cross the United
States’ southern border irregularly is at variance with three well-established fundamental
principles of international law, namely, the right to seek asylum, the prohibition against penalties
for irregular entry, and the principle of non-refoulement.
First, UNHCR is concerned that the Revised Policy unduly restricts access to asylum.
International law establishes the right of every individual “to seek . . . in other countries asylum
from persecution.” G.A. Res. 217 A(III) art. 14(1), Universal Declaration of Human Rights (Dec.
10, 1948). The 1951 Convention and 1967 Protocol effectuate the right to seek asylum and
implicitly require a process whereby an asylum-seeker’s status can be determined.
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The 1951 Convention and 1967 Protocol define who is a refugee, as well as who is not
entitled to refugee protection by virtue of specific and limited exclusion clauses. They also
establish a prohibition on returning persons, whether directly or indirectly, to “the frontiers of
territories where [their] life or freedom would be threatened on account of [their] race, religion,
nationality, membership of a particular social group or political opinion”—known as the principle
of non-refoulement—which has also been recognized as a norm of customary international law.
1951 Convention art. 33(1).
A person is a refugee within the meaning of the 1951 Convention and 1967 Protocol as
soon as he or she fulfills the criteria in the definition of a refugee, which necessarily occurs prior
to the time at which his or her refugee status is formally determined. Recognition of refugee status
therefore does not make an individual a refugee but instead formally declares the person to be one.
Consequently, the 1951 Convention and 1967 Protocol implicitly require States to implement a
fair and efficient process for determining refugee status for asylum-seekers or to resort to group-
based protection mechanisms in the event of a large-scale influx. Handbook ¶¶ 28–29; UNHCR,
A Guide to International Refugee Protection and Building State Asylum Systems 30 (2017).
The Revised Policy effectively nullifies the right to seek asylum for all of those affected
because it denies access to asylum without an individualized or group-based protection process to
persons who crossed the southern border irregularly. Such a sweeping policy goes well beyond
the specific and limited exclusions on entitlements to refugee protection included in the 1951
Convention.
The exception included in the Proclamation, which allows asylum-seekers who enter the
United States through official ports of entry to apply for asylum, does not render the Revised Policy
consistent with international law. The 1951 Convention and 1967 Protocol do not foresee any
restrictions on the rights of individuals seeking asylum based on the manner of their entry.
UNHCR is concerned that the well-documented realities surrounding refugee flight, and
sometimes lengthy wait times at border checkpoints and associated dangers, will compel some
refugees to cross into the United States irregularly. Were these refugees to enter the United States
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irregularly, the Revised Policy would render them categorically ineligible to seek asylum, a result
international law does not permit.
Second, the Revised Policy fails to take into account Article 31(1) of the 1951 Convention,
which prohibits States from penalizing refugees for unlawful entry. Parties bound by Article 31(1),
generally commit to refrain from enforcing “penalties . . . on refugees” “on account of their illegal
entry or presence” in the relevant State’s territory. 1951 Convention art. 31(1). As Article 31(1)’s
drafting history shows, this provision was informed by experience with the realities of refugee
movements before, during, and after World War II, realities that make irregular entry in many
instances a precarious necessity. Consistent with the protective purpose of the 1951 Convention,
the word “penalties” in Article 31(1) has an inclusive meaning and in principle encompasses any
kind of civil, criminal, or procedural disadvantage—including the restriction of asylum itself. The
Revised Policy is at odds with this prohibition as it penalizes refugees who irregularly enter the
United States at its southern border by categorically denying them the right to seek asylum in the
United States, and putting them at risk of being returned to persecution solely because of their
manner of entry.
Third, the Revised Policy is at odds with the principle of non-refoulement—a core principle
of international refugee law. The 1951 Convention and the 1967 Protocol prohibit States from
“expel[ling] or return[ing] (‘refouler’) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership [in] a particular social group or political opinion.” 1951 Convention art.
33(1). The Revised Policy’s categorical prohibition on asylum for anyone who enters the country
irregularly at the southern border could result in the removal of refugees to countries where they
face the aforementioned risks, a result that is inconsistent with international law.
In light of these three deficiencies, UNHCR is concerned that the Revised Policy is at
variance with the United States’ obligations under international law, specifically the 1951
Convention and the 1967 Protocol. Given its mandated responsibility to supervise the
implementation of both treaties and to advise States of their duties under international refugee law,
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and mindful of Congress’s avowed intention through the Refugee Act to “bring United States
refugee law into conformance with” its international obligations, Cardoza-Fonseca, 480 U.S. at
436, UNHCR respectfully encourages the Court to consider the United States’ international law
obligations when evaluating Plaintiffs’ challenge to the Revised Policy.
ARGUMENT
I.
The United States Is Bound by the 1951 Convention and the 1967 Protocol.
The 1951 Convention was drafted with the intent of providing those fleeing persecution
with “the widest possible exercise of . . . fundamental rights and freedoms.” 1951 Convention
preamble. The treaty, which for more than six decades has served as the “cornerstone of the
international system for the protection of refugees,” clarifies the obligations of States to refugees,
as well as to persons seeking international protection whose refugee status has not yet been
formally determined. G.A. Res. 49/169 (Dec. 23, 1994). The 1951 Convention specifically
prohibits States from penalizing refugees for unlawful entry, expelling them, or returning them to
territory where their lives or freedom would be threatened on account of “race, religion,
nationality, membership of a particular social group or political opinion,” unless they fall within
its specific and limited exclusion clauses. 1951 Convention art. 31–33.
Though the United States is not formally a party to the 1951 Convention, it has ratified the
1951 Convention’s 1967 Protocol. Cardoza-Fonseca, 480 U.S. at 436–37. Because the 1967
Protocol explicitly incorporates “Articles 2 through 34 of the [1951] Convention,” by ratifying the
1967 Protocol, the United States agreed to comply with all of these “substantive provisions” of the
1951 Convention. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169 n.19 (1993); Cardoza-
Fonseca, 480 U.S. at 429.
The 1967 Protocol augments the 1951 Convention and expands the definition of “refugee”
by removing the geographic and temporal limitations that existed in the 1951 Convention. 1967
Protocol art. I(2)–(3). As a result of the 1967 Protocol, the status of “refugee,” along with the
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rights that accompany that status, apply to any individual who meets the definition. 1951
Convention art. 1(A); 1967 Protocol art. I(2); Handbook ¶ 28.
In 1980, in order to implement by statute the United States’ commitments under the 1951
Convention and the 1967 Protocol and bring “United States refugee law into conformance” with
international law, Congress amended the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1101 et seq., by enacting the Refugee Act. Cardoza-Fonseca, 480 U.S. at 436. Congress’s intent
in passing the Refugee Act was clear: The INA’s asylum provisions must “be construed consistent
with the Protocol.” S. Rep. No. 96-590 at 20, 96th Cong., 2d Sess. (1980). Congress thus gave
unambiguous guidance to the federal courts that the INA “protect[s] refugees to the fullest extent
of [the United States’] international obligations.” Yusupov v. Attorney General, 518 F.3d 185, 203
(3d Cir. 2008).
II.
UNHCR Provides Authoritative Guidance in Interpreting the 1951 Convention
and 1967 Protocol.
UNHCR exercises its supervisory responsibility by issuing interpretive guidance on the
meaning of provisions contained in the 1951 Convention and its 1967 Protocol. The Handbook,
which was prepared in 1979 at the request of Member States, including the United States, sets
forth authoritative guidance. Although the Handbook is not legally binding upon United States
officials, “Congress was aware of the criteria articulated in the Handbook when it passed the
[Refugee] Act in 1980, and . . . it is appropriate to consider the guidelines in the Handbook as an
aid to construction of the Act.” M.A. v. INS, 899 F.2d 304, 321 n.6 (4th Cir. 1990) (quoting
Memorandum from Theodore B. Olson, Assistant Attorney Gen., OLC, to David Crossland, Gen.
Counsel, INS (Aug. 24, 1981)). As the Supreme Court has recognized, the Handbook thus
provides “significant guidance” in construing the 1967 Protocol and the Refugee Act that
implemented it into domestic law. Cardoza-Fonseca, 480 U.S. at 439 n.22.
In addition to the Supreme Court’s recognition of UNHCR’s unique role, lower federal
courts also recognize that UNHCR’s “analysis provides significant guidance for issues of refugee
law,” Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005), and regularly rely upon
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UNHCR’s legal interpretations and policy statements in assessing refugee claims and policies.
See, e.g., Ali v. Lynch, 814 F.3d 306, 314 n.7 (5th Cir. 2016); Fei Mei Cheng v. Attorney General,
623 F.3d 175, 193 & n.13 (3d Cir. 2010); Poradisova v. Gonzales, 420 F.3d 70, 80 & n.5 (2d Cir.
2005); Mekhoukh v. Ashcroft, 358 F.3d 118, 126 & n.6 (1st Cir. 2004).
III.
The Revised Policy Is at Variance with the United States’ Obligations Under the
1951 Convention and the 1967 Protocol.
The right to seek asylum is firmly established in international law. Article 14(1) of the
Universal Declaration of Human Rights, whose adoption by the United Nations General Assembly
the United States strongly supported, establishes the right of the individual to “seek and to enjoy
in other countries asylum from persecution.” G.A. Res. 217 A(III) art. 14(1) (Dec. 10, 1948)
(“UDHR”). The 1951 Convention and 1967 Protocol give meaning to this right by defining
refugee to include those who have not been formally recognized as a refugee, and by elaborating
on refugees’ rights and protections. See 1951 Convention art. 1(A); 1967 Protocol art. I(2)–(3);
Handbook ¶ 28.
Among these embedded rights and protections are the right to seek asylum, protection
against penalties for illegal entry where the applicable conditions are fulfilled, and the principle of
non-refoulement, which help to ensure the protection of those fleeing persecution and are essential
to the full enjoyment of the other rights guaranteed by the 1951 Convention and 1967 Protocol.
These protections are designed to account for the reality that the “position of asylum-seekers may
. . . differ fundamentally from that of ordinary migrants.” UNHCR, Guidelines on Applicable
Criteria & Standards Relating to the Detention of Asylum-Seekers and Alternatives to Detention
12 (2012) (“Detention Guidelines”); Ad Hoc Comm. on Statelessness, Status of Refugees &
Stateless Persons, U.N. Doc. E/AC.32/2, ch. XI, art. 24 cmt. ¶ 2 (1950). By definition, refugees
are fleeing persecution and do not enjoy the protection of their country of origin and, as a result,
are among the most vulnerable of populations in the world. Handbook ¶ 190.
UNHCR is concerned that the United States’ recent refugee policy changes, reflected in
the Revised Policy, are at variance with its obligations under the 1951 Convention and 1967
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Protocol. The Revised Policy is inconsistent with three aspects of the United States’ international
law obligations. First, the Revised Policy’s categorical denial of asylum to a broad class of asylum-
seekers is at odds with the United States’ obligation to protect the right of access to asylum and to
provide a fair and efficient individualized process consistent with the standards set forth in
international law. Second, the Revised Policy’s categorical denial of asylum on the basis of
irregular entry is inconsistent with the United States’ obligation under Article 31(1) of the 1951
Convention not to penalize asylum-seekers. Finally, the Revised Policy is likely to result in the
refoulement of refugees who, despite being able to meet the criteria for refugee status, have been
categorically prohibited from asylum within the United States.
A. The Revised Policy Restricts the Right to Seek Asylum in Violation of
the 1951 Convention and the 1967 Protocol.
The 1951 Convention and 1967 Protocol define who is a refugee, and therefore entitled to
protection, without reference to official recognition. In other words, a grant of refugee status, or
asylum, does not make a person a refugee; it formally recognizes that the person is a refugee.
Handbook ¶ 28; UNHCR, Guide to International Refugee Protection, supra, at 30. In light of this,
“[i]t is obvious that, to enable States part[y] to the Convention and to the Protocol to implement
their provisions, refugees have to be identified.” Handbook ¶ 189. This embodies the right to seek
asylum, and States must provide all asylum-seekers with a fair and efficient process that allows
them to demonstrate their eligibility for refugee status under international law. Id. ¶¶ 189–90;
Executive Comm. of the High Commissioner’s Programme, Note on International Protection ¶ 11,
U.N. Doc. A/AC.96/815 (1993) (“Note on International Protection”).
That process must meet basic requirements. In particular, it must allow for an
individualized examination on whether the asylum-seeker meets the definition of a refugee as
established in the 1951 Convention and 1967 Protocol. See UNHCR Exec. Comm., Conclusion
No. 8 (XXVIII) ¶ (e) (1977); UNHCR Exec. Comm., Conclusion No. 30 (XXXIV) ¶¶ (e), (i)
(1983). Moreover, because some refugees have no choice but to enter a safe country irregularly,
see infra § III(b), States may not condition access to asylum procedures on regular entry. Ad Hoc
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Comm. on Statelessness, supra, ch. XI, art. 24 ¶ 2; UNHCR Exec. Comm., Conclusion No. 6
(XXVIII) ¶ (c) (1977); UNHCR Exec. Comm., Conclusion No. 79 (XLII) ¶ (j) (1996). In other
words, a fair asylum process must allow for the possibility that some refugees will need to cross
borders irregularly, and a State may not restrict asylum on this ground. Handbook ¶ 189.
The Revised Policy falls short of these requirements. The Revised Policy effectively
establishes a bar to access that denies asylum-seekers fair and efficient procedures to determine
their refugee claim. Although refugees who enter the United States at a designated port of entry
do retain access to asylum, the Revised Policy ignores the realities of refugee flight, which makes
it impossible for some refugees to present themselves at ordinary ports of entry. Moreover, it may
be impossible for some refugees to await the “lengthy delays” for processing at designated ports
of entry given the exigencies of their situation, and they may therefore be compelled to cross
irregularly. Dkt. No. 43 at 11:22–23.
UNHCR appreciates that States have operational demands to manage borders efficiently.
It further acknowledges that, in the interests of orderly operation of borders, States are within their
rights to manage access to asylum through the imposition of procedural requirements and
accelerated procedures. UNHCR, Fair and Efficient Asylum Procedures: A Non-Exhaustive
Overview of Applicable International Standards 2–3 (2005). However, UNHCR has serious
concerns about the categorical bar to the asylum process envisioned by the Revised Policy. States
may not use border management objectives to deny protection to entire categories of persons who
may satisfy the refugee definition.2
UNHCR also recognizes that screening procedures for the initial determination of refugee
status “may usefully include [a] special provision for dealing in an expeditious manner with
applications” that are “clearly abusive” or “manifestly unfounded.” UNHCR Exec. Comm.,
2 Where procedural bars appear in the INA, they are either premised on the notion that international
protection will be provided elsewhere or include exceptions for those who satisfy the refugee
definition and have good reason for failing to satisfy a State’s procedural requirements. See, e.g.,
8 U.S.C. § 1158(a)(2)(D).
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Conclusion No. 30, supra, ¶ (d). However, any such procedures must, taking into account “the
grave consequences of an erroneous decision,” be “accompanied by appropriate procedural
guarantees,” id. ¶ (e), and “no application [may] be treated as manifestly unfounded or abusive
unless its fraudulent character or its lack of any connection with the relevant criteria is truly free
from doubt,” UNHCR, Follow-Up on Earlier Conclusions of the Sub-Committee on the
Determination of Refugee Status ¶ 19, U.N. Doc. EC/SCP/29 (1983).3
Finally, although the 1951 Convention foresees that some individuals may be excluded
from refugee protection in exceptional circumstances, the Revised Policy does not conform to the
specific, limited restrictions that the 1951 Convention allows. Under the 1951 Convention, States
are to deny refugee protection to individuals who have committed heinous acts or serious common
crimes—and they may deny protection from refoulement to individuals who pose a “danger to the
security of the country in which” they are in and to individuals “who, having been convicted by a
final judgment of a particularly serious crime, constitute[] a danger to the community of that
country.” 1951 Convention art. 1(F), 33(2). These exclusions require individualized assessments
and “must be [interpreted] restrictive[ly].” Handbook ¶149. The Revised Policy, by establishing
a categorical bar to asylum based on irregular entry, is thus outside the careful framework for
access to asylum provided for by the Convention.
At its core, the international refugee protection regime requires that an individual be
admitted to a procedure that assesses whether he or she meets the international definition of a
refugee in a fair and efficient manner or apply a group-based recognition mechanism. See
Handbook ¶ 44 (noting that in a “‘group determination’ of refugee status, . . . each member of [a]
group is regarded prima facie . . . as a refugee”). Such a procedural framework must provide safe
3 The underlying purpose behind such procedural provisions is to safeguard non-refoulement, a
foundational principle of the 1951 Convention. UNHCR, Declaration of State Parties to the 1951
Convention and Its 1967 Protocol Relating to the Status of Refugees ¶ 4 (2002) (providing for an
exception to asylum application filing deadline).
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access to, and process within, “the State where they are seeking admission as refugees.” UNHCR,
Fair and Efficient Asylum Procedures, supra, at 2.
B. The Revised Policy Creates a Penalty on Irregular Entry That Is Prohibited by
Article 31(1) of the 1951 Convention.
Because of their serious and urgent plight, refugees are “rarely in a position to comply with
the requirements for legal entry,” and it has long been recognized that refugees may often be forced
to “cross[] . . . frontier[s] clandestinely” to evade detection and ensure their safety. Ad Hoc Comm.
on Statelessness, supra, art. 24 cmt. ¶ 2. The framers of the 1951 Convention understood this
reality and, at the prompting of a joint proposal co-authored by the United States, incorporated
protections against punishment for irregular entry into the treaty. Guy S. Goodwin-Gill, Article
31 of the 1951 Convention Relating to the Status of Refugees, in Refugee Protection in International
Law 185, 190 (Volker Türk et al. eds., 2003). The resulting provision, Article 31(1), prohibits
States from “impos[ing] penalties, on account of their illegal entry or presence, on refugees who,
coming directly from a territory where their life or freedom was threatened . . . enter or are present
in their territory without authorization.” 1951 Convention art. 31(1).
The importance of Article 31(1)’s protection cannot be overstated, as penalties on irregular
entry endanger the fundamental right to asylum itself. As noted, in “exercising the right to seek
asylum, asylum-seekers are often forced to arrive at, or enter, a territory without prior
authorisation,” and if a State could refuse refugees asylum based on unlawful entry, such a refusal
would necessarily operate to return refugees to the dangers they fled in the first instance. Detention
Guidelines at 12; UNHCR Exec. Comm., Conclusion No. 58 (XL) (1989). Accordingly, and as
the Supreme Court of Canada recently explained, “[Article 31(1)’s] prohibition for domestic
admissibility provisions is clear. . . . ‘[A]n individual cannot be denied refugee status—or, most
important, the opportunity to make a claim for such status through fair assessment procedures—
solely because of the way in which that person sought or secured entry into the country of
destination.’” B010 v. Canada, [2015] 3 S.C.R. 704, 729 (Can.) (quoting Anne T. Gallagher &
Fiona David, The International Law of Migrant Smuggling 165 (2014)). The Revised Policy is
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inconsistent with this proscription, as it has the effect of categorically denying asylum to anyone
who crosses the United States’ southern border outside of a designated port of entry. See
Proclamation, 83 Fed. Reg. at 57,663; Interim Asylum Rule, 83 Fed. Reg. at 55,952.
The purpose of the 1951 Convention and 1967 Protocol is to ensure that all refugees can
effectively gain access to international protection, and to protect them from the imposition of
penalties on account of illegal entry or presence. Accordingly, the term “penalties” in Article
31(1) should be interpreted in a manner that protects, rather than prevents, refugees’ access to
asylum. UNHCR, Summary Conclusions on Non-Penalization for Illegal Entry or Presence 2
(2017); accord, e.g., B010, 3 S.C.R. at 729; Cathryn Costello et al., Article 31 of the 1951
Convention Relating to the Status of Refugees 33 (2017).4 UNHCR’s view is that the concept of
impermissible “penalties” in Article 31(1) encompasses civil or administrative penalties as well as
criminal ones. In sum, the refusal to allow a person who has entered a country without
authorization to apply for asylum amounts to a penalty at variance with Article 31(1) of the 1951
Convention.
C. The Revised Policy Risks Refoulement of Refugees in Violation of Article 33(1)
of the 1951 Protocol.
The principle of non-refoulement is established in the 1951 Convention, which in Article
33(1) prohibits States from “expel[ling] or return[ing] (‘refouler’) a refugee in any manner
4 Article 31(1) should also be interpreted to include those who transit through a third country before
seeking asylum. There is no obligation under international law for a person to seek international
protection at the first effective country, and “asylum should not be refused solely on the ground
that it could be sought from another State.” UNHCR Exec. Comm., Conclusion No. 15 (XXX)
(1979). Consistent with this principle of refugee law, Article 31(1)’s protections are available to
refugees who have arrived in a State from their country of origin after transiting through a third
state. See, e.g., R v. Asfaw [2008] UKHL 31, [19], [50] (appeal taken from Eng.) (“Article 31(1)
was intended to apply, and has been interpreted to apply, to persons who have briefly transited
other countries . . . .”); BVerfG, 2 BvR 450/11 ¶ 31, Dec. 8, 2014 (Ger.) (“[A] refugee does not
forfeit his protection under Article 31, Paragraph 1, simply because he entered from a third country
instead of his country of origin, provided that the third country is used only as a transit country
and the stay in the third country is not culpably delayed.” (translation of counsel)).
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whatsoever 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.”
1951 Convention art. 33(1). Article 33(1) has a broad reach and its protection against refoulement
extends to all refugees, including those who have not been formally recognized as such. Note on
International Protection ¶ 11; UNHCR, Note on Non-Refoulement (Submitted by the High
Commissioner) ¶ 19, U.N. Doc. EC/SCP/2 (1977). As a consequence, Article 33(1) also protects
all asylum-seekers whose status has not yet been determined. Note on International Protection ¶
11; Elihu Lauterpacht & Daniel Bethlehem, The Scope & Content of the Principle of Non-
Refoulement, in Refugee Protection in International Law 87, 116¬–18 (Erika Feller et al. eds.,
2003).
The principle of non-refoulement serves as “the cornerstone of asylum and of international
refugee law,” UNHCR, Note on the Principle of Non-Refoulement (1997), and is one of the “[c]ore
principles of the 1951 Convention,” Handbook at 1. The principle follows directly from the
international legal right to seek and enjoy asylum from persecution. UNHCR Exec. Comm.,
Conclusion No. 6, supra, ¶ (a); see UDHR art. 14. The proscription against returning vulnerable
individuals to a place where they are endangered “reflects the commitment of the international
community to ensure to all persons the enjoyment of human rights, including the rights to life, to
freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and
security of the person.” UNHCR, Note on the Principle of Non-Refoulement, supra. It is also
recognized as a principle of customary international law. Lauterpacht & Bethlehem, supra, at
149–63.
By categorically denying refugees the right to seek asylum if they have crossed the United
States’ southern border irregularly, the Revised Policy risks violating Article 33(1). The Revised
Policy’s requirements expressly render refugees who are present in the United States or at its
border subject to the risk of deportation, directly or indirectly, to the very States they have
desperately sought to escape. As the Supreme Court has made clear, such expulsion is forbidden
by Article 33(1). See Sale, 509 U.S. at 180, 182; see also Lauterpacht & Bethlehem, supra, at
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113–14; UNHCR Exec. Comm., Conclusion No. 6, supra, § (c); UNHCR Exec. Comm.,
Conclusion No. 22 (XXXII) § II(A)(2) (1981).5
D. Neither Withholding of Removal Under the INA Nor Protection Under the
Convention Against Torture Is an Adequate Substitute for the Asylum Process.
The Interim Asylum Rule purports to be consistent with the United States’ obligations
under international refugee law because it does not deny aliens the right to apply for withholding
of removal under the INA, see 8 U.S.C. § 1231(b)(3)(A), or the protection afforded by the federal
regulations that implement the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16(c).
Interim Asylum Rule, 83 Fed. Reg. at 55,939. However, UNHCR is concerned that neither
withholding of removal under the INA nor protection under CAT provides an adequate substitute
for the asylum procedures qualified by the Interim Asylum Rule. Nor do they extend refugees all
of the rights articulated in the 1951 Convention and 1967 Protocol.
Withholding of removal and protection under CAT are not available to all refugees.
UNHCR understands that in order to prove entitlement to withholding of removal under the INA,
an applicant “must demonstrate that it is more likely than not that he would be subject to
persecution” in his country of origin. Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).
By contrast, an alien is entitled to asylum if he makes the lesser showing of a well-founded fear of
persecution, which requires establishing “to a reasonable degree, that his continued stay in his
country of origin has become intolerable to him for the reasons stated in the definition [of a
refugee] or would for the same reasons be intolerable if he returned there.” Cardoza-Fonseca, 480
5 As noted, while Article 33(2) does create narrow exceptions to Article 33(1)’s prohibition against
refoulement, providing that the “benefit of [Article 33(1)] may not . . . be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgement of a particularly serious crime,
constitutes a danger to the community of that country.” 1951 Convention art. 33(2). However,
the Revised Policy goes beyond the Article 33(2) exceptions by creating a categorical ban on
refugees who cross irregularly at the United States’ southern border, putting these individuals at
grave risk of persecution. See UNHCR Exec. Comm., Conclusion No. 30, supra, ¶ (e). A State
relying on Article 33(2) must determine on an individual basis whether a refugee falls into one of
the Article 33(2) exceptions. See Lauterpacht & Bethlehem, supra, at 136–37.
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U.S. at 439–40 (quoting Handbook ¶ 42). Under the Revised Policy, a refugee who can
demonstrate a “well-founded fear of persecution” may nonetheless be denied even the most basic
rights that come with asylum under the 1951 Convention and 1967 Protocol, including protection
from refoulement, if she cannot make the “greater showing” that she is entitled to withholding of
removal under the INA. Gutierrez-Rogue v. INS, 954 F.2d 769, 772 (D.C. Cir. 1992).6
The statutory incorporation of protections provided by CAT are similarly unavailable to all
refugees who would otherwise qualify for asylum. UNHCR understands that under United States
law, an alien is entitled to protection under CAT only if he or she proves that “it is more likely
than not that he or she would be tortured if removed.” 8 C.F.R. § 208.16(c)(2). Like the standard
for withholding of removal, this standard is more difficult to meet than the internationally
prescribed standard for asylum: “[T]o show a ‘well-founded fear of persecution,’ an alien need
not prove that it is more likely than not that he or she will be persecuted in his or her home country.”
Cardoza-Fonseca, 480 U.S at 449. Moreover, because of its singular focus on torture, statutory
protection implementing CAT may be unavailable for refugees facing persecution “for reasons of
race, religion, nationality, membership of a particular social group or political opinion,” 1951
Convention art. 1(A)(2), even where the persecution entails serious violations of human rights,
such as unlawful “detention, arrest, interrogation, prosecution, imprisonment, illegal searches,
6 Although UNHCR recognizes that the Supreme Court’s opinion in INS v. Stevic, 467 U.S. 407
(1984)—in which the Court held that withholding of removal is available to only those who can
prove that it is more likely than not that they will be persecuted on removal, id. at 429–30—is
binding upon this Court, UNHCR notes that Article 33(1) of the 1951 Convention prohibits the
refoulement of any individual who can make the lesser showing of a “well-founded fear of
persecution.” See generally Brief of the UNHCR as Amicus Curiae at 12–29, Stevic, 467 U.S. 407
(No. 82-973). The purpose behind a lower threshold is to safeguard against refoulement given the
serious danger that refoulement poses. UNHCR, Declaration of State Parties to the 1951
Convention and Its 1967 Protocol Relating to the Status of Refugees, supra, ¶ 4. Moreover, even
if Article 33(1) did incorporate the more onerous “more likely than not” standard of proof, it is
still an inadequate substitute for asylum, which, as the Supreme Court has recognized, is available
to all individuals who can demonstrate a “well-founded fear of persecution.” Cardoza-Fonseca,
480 U.S. at 430–32.
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confiscation of property, [or] surveillance” that do not qualify as torture under federal law, Gjerazi
v. Gonzales, 435 F.3d 800, 808 (7th Cir. 2006).7
Finally, the 1951 Convention and 1967 Protocol also require States to provide substantive
guarantees for refugees that ensure a standard of treatment appropriate to their predicament and a
more humane life in the host country. For instance, States should endeavor to unite refugees with
their families and provide refugees with the possibility of naturalization. See 1951 Convention
art. 34; Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees
and Stateless Persons, July 25, 1951, § IV(B), 189 U.N.T.S. 138; Handbook ¶¶ 181–88; UNHCR
Exec. Comm., Conclusion 24 (XXXII) (1981). The same treatment is not necessarily available to
those who receive withholding of removal or protection under CAT. See U.S. Dep’t of Justice,
Exec. Office for Immigration Review, Fact Sheet: Asylum & Withholding of Removal Relief &
Convention Against Torture Protections 1, 6–7 (Jan. 15, 2009).
CONCLUSION
UNHCR is concerned that the refugee policy reflected in the Interim Asylum Rule and
Proclamation is at variance with the United States’ obligations under international law, and
requests the Court to consider those obligations when evaluating the merits of Plaintiffs’ claims.
Dated: December 5, 2018
Respectfully submitted,
/s/ Patrick W. Pearsall
PATRICK W. PEARSALL
Counsel of Record
Appearance Pro Hac Vice
D.C. Bar No. 975801
7 Although the Revised Policy provides individuals access to procedures that screen for potential
eligibility for withholding of removal and relief under CAT, those screening procedures require
applicants to show a “reasonable fear of persecution or torture,” 8 C.F.R. § 208.31(c), which not
only amounts to a “higher screening standard” than the “credible fear” standard that entitles an
alien to the asylum process, Regulations Concerning the Convention Against Torture, 64 Fed. Reg.
8487, 8485 (Feb. 19, 1999), but also exceeds the permissible bounds of screening under
international law. UNHCR Exec. Comm., Conclusion No. 30, supra.
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KARTHIK REDDY
D.C. Bar No. 1048848
1099 New York Ave., NW
Washington, DC 20001
(202) 639-6000
BRIAN HAUCK
Cal. Bar No. 303058
633 W. 5th St.
Los Angeles, CA 90071
(213) 239-5100
VAISHALEE YELDANDI
Ill. Bar No. 6327807
353 N. Clark St.
Chicago, IL 60654
(312) 222-9350
JENNER & BLOCK LLP
Counsel for Office of United
Nations High Commissioner for Refugees
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