Before leaving his post as Senior Legal Advisor to the State Department, Harold Hongju Koh penned a strongly-worded criticism of President Biden’s pandemic border policy and its current application to Haitians. He is the second high-level official in as many weeks to criticize the Biden team for their response to Haitian migrants. The first came in the form of a resignation letter by Daniel Foote, the former Special Envoy to Haiti, who wrote that he refused “to be associated” with Biden’s “inhumane” deportation policy. Koh’s came in the form of an internal memo outlining his legal objections to colleagues.

This policy, known as “Title 42,” was originally concocted by the Trump administration on dubious legal grounds as a means to close down the southern border to asylum seekers.  The policy was implemented on March 20, 2020, reportedly over the objection of the then-Director of the Centers for Disease Control and Prevention, Dr. Robert Redfield. Public health experts have repeatedly criticized the program, describing the public health justification as specious, and offering guidance in the form of alternate measures that could protect public health while permitting asylum seekers to obtain protection in the United States. In the face of law and science, the Biden administration stubbornly continues to implement a policy that, in Koh’s words, “violate[s] our legal obligation[s]” under the 1951 UN Convention Relating to the Status of Refugees and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, among other international human rights treaties, as well as federal law implementing those obligations.

Coming on the heels of the Foote resignation letter, the Koh memo has, appropriately, garnered substantial media attention. Somewhat lost in the mix is Koh’s specific legal analysis of the policy currently faced by asylum seekers at our southern border. Title 42 represents an unprecedented break with our obligations under international refugee law; while such a move was part and parcel of the Trump administration’s modus operandi, in Koh’s words, it “simply is not worthy of [the Biden] administration.”

Indeed, many of the statutory and international legal concerns raised by Koh’s memo were expressed in a sternly worded letter signed by then-Senator Kamala Harris and nine other senators to the Trump administration just last year. “A public health crisis does not give the Executive Branch a free pass to violate constitutional rights, nor does it give the Executive Branch permission to operate outside of the law,” the letter said. “Responding to crises while upholding our legal obligations is the very hallmark of the rule of law.”

Non-refoulement obligations at the border

The first legal exposition in Koh’s memo is that Title 42 violates the United States’ international legal obligations under the Refugee Convention by sending asylum seekers back to the countries in which they fear persecution without an individualized hearing. Article 33, known as the non-refoulement provision, prohibits states parties from “expel[ling] or return[ing]” a refugee to a country where she faces a threat to life or freedom on account of her “race, religion, nationality, membership of a particular social group or political opinion.” This provision of the Convention was implemented through the Refugee Act of 1980; as Koh notes, similar language appears in the statute at 8 U.S.C. 1231(b)(3)(A). Koh also references non-refoulement protections under the Convention Against Torture, which prohibit the return of non-citizens “where there are substantial grounds for believing that the person would be in danger of being subjected to torture,” defined as the intentional infliction of severe pain or suffering with the consent or acquiescence of a state actor.  As he notes, the legal obligation not to return to torture, implemented into domestic law through the Foreign Affairs Reform and Restructuring Act of 1998, brooks no exceptions.

The implementation of Title 42 at the southern border has from the start violated both of these international legal obligations by blocking access to protection procedures. Interpretations of these provisions issued by relevant treaty bodies clarify the obligations that attach to non-refoulement at the border. In an Advisory Opinion, the UN High Commissioner for Refugees (UNHCR) lays out a general requirement in Article 33(1) that requires states to provide protection seekers with access to asylum proceedings. This obligation is reflected in the U.S. domestic statutory language, which makes clear that any non-citizen, whether or not they arrive at an official port of entry, and regardless of their immigration status, “may apply for asylum.” 8 U.S.C. 1158. The UN Committee Against Torture explains in its General Comment No. 4 that “collective deportation without an objective examination of the individual cases with regard to personal risk, should be considered as a violation of the principle of non-refoulement.”

In short, as Koh writes, in order to uphold U.S. non-refoulement obligations, migrants arriving at the border must be given the opportunity to express a fear of return through an individualized process. In the expedited removal process, which enables the speedy deportation of migrants apprehended within 100 miles of the border, immigration officers are required to ask four questions intended to provide migrants with an opportunity to express a fear of return.  Migrants who express such a fear are given the opportunity to elaborate on their asylum claim in a “credible fear interview” with an asylum officer, who may refer them to a more full-blown asylum hearing. This requirement is key to the legality of the process under international law, yet, as Koh notes, does not exist in Title 42 proceedings, which require migrants to proactively express a fear of their own accord.

Similarly, in the expedited removal process, a first-time entrant must prove only a credible fear, that is, a “significant possibility” that she will be able to meet the refugee definition in an asylum hearing at a future date. Under Title 42, a migrant at the border must show on the spot that it is more likely than not that she will face persecution or torture upon return. When understood against the baseline approach to asylum seekers, this procedural device can be seen for its perniciousness. Trump’s attempt to similarly tighten the credible fear standard was struck down by a federal court as “manifestly inconsistent with the two-stage asylum eligibility framework that the INA plainly establishe[d].”  Yet the Biden administration is implementing an unlawfully high standard against asylum seekers at the border under Title 42.

Those who thought that the Biden-Harris administration would implement a new approach to asylum at the border find themselves disheartened at this turn of events.

The “danger to security” exception to non-refoulement

As Koh explains, the Trump administration claimed that the “danger to security” exception found in Article 33(2) of the Refugee Convention authorizes Title 42 as an exception to the non-refoulement principle. Koh looks to both the text and travaux préparatoires (legislative history) of the Refugee Convention to make the case that this argument fails on both counts. UNHCR’s Advisory Opinion on the Extraterritorial Application of Non-Refoulement also supports his position. That treaty body guidance explains that the Convention Against Torture contains no exceptions, so migrants protected under that treaty must be given an opportunity to express their fear of return. While the Refugee Convention does contain such an exception, UNHCR makes clear that asylum seekers must receive an individualized determination of the applicability of that provision. And of course, public health officials, including Dr. Anthony Fauci, have stated clearly that migrants do not pose a public health threat, let alone one that could rise to the level of a “danger to security.”

Beyond law and science

These legal arguments form the foundation of Koh’s memo, which also discusses the dire situation in Haiti, and asks how it is possible that the Biden administration is returning Haitians given its expressed commitment to humanitarianism. As a firm believer in the rule of law, it is deeply concerning to see this administration doubling down on a border policy that is unsupported in domestic and international law, and flies in the face of public health guidance. As the Koh memo describes, just a few weeks ago, faced with a successful federal court challenge to the implementation of Title 42, the Biden administration appealed and obtained a stay. Rather than taking the opportunity to settle the case and bring the administration’s policies in line with our international legal obligations, it chose to persist in the Trump administration’s cruelties and blatant disregard of international refugee law and the Convention Against Torture. The Biden administration’s stated campaign goals of moving toward a legally valid, evidence-based, humanitarian approach to the southern border seem to have vanished. The claim to be on the side of law and of science rings hollow here, and that kind of corrosion can only spread to other policies.

Photo credit: Flanked by Secretary of State Antony Blinken (L) and Secretary of Homeland Security Alejandro Mayorkas (R), President Joe Biden attends a virtual meeting with Mexican President Andrés Manuel López Obrador in the Roosevelt Room of the White House on March 1, 2021(Anna Moneymaker-Pool/Getty Images)