The Biden administration is poised to resurrect a Trump-era policy, the transit ban, which in its most recent form was repeatedly struck down by the courts as unlawful. The new transit ban, the subject of a notice of proposed rulemaking, would create a “rebuttable presumption of asylum ineligibility” for individuals arriving at the southern border who have not sought “protection in a country through which they traveled” on their journey, “unless they meet exceptions that will be specified.” The announcement of the imminent policy change drew quick condemnation in a letter from members of Congress, as well as in separate letters from faith-based and civil rights and human rights organizations.
The new transit ban would violate the United States’ protection obligations to refugees, which are long-standing and solidly based in both international and domestic law. The United States acceded in 1968 to the Refugee Protocol, which incorporates the substantive provisions of the 1951 Refugee Convention. With congressional passage of the Refugee Act in 1980, the United States aligned its federal immigration statute with the provisions of the Refugee Convention and Protocol. The cornerstone of both international and domestic law is the principle of non-refoulement, the prohibition against returning refugees to any country where their lives or freedom would be threatened.
Although the U.S. refugee statute does permit the denial of asylum to those who pass through a “safe third country” en route to the United States and do not apply for protection there, the law sets forth two non-negotiable requirements – the country of transit must not be one where the asylum seeker’s life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion, and the asylum seeker must have access to a “full and fair” procedure for determining claims to protection. (The United States must also have a formal agreement with the third country.) These conditions are not met in the countries most asylum seekers travel through on their way to the United States.
The Biden administration will undoubtedly argue that because the proposed rule imposes only a rebuttable presumption instead of an outright prohibition, it is distinguishable from Trump’s legal ban and will pass legal muster. But the facts on the ground do not support even a presumption of safety and access to a full and fair procedure.
Furthermore, if the presumption of ineligibility is applied during credible fear screening interviews at the border, as part of the deeply flawed expedited removal process, it will be very difficult for asylum seekers to clear the hurdle it presents. The majority of asylum seekers navigate expedited removal without an attorney, and do not possess detailed knowledge of human rights conditions and asylum procedures in each of the countries they transited in order to make the case that they qualify for an exception. The United Nations High Commissioner for Refugees (UNHCR) has specifically recommended that “exclusion” decisions, which would include decisions such as those made on the applicability of the transit ban, not be made in accelerated procedures such as expedited removal.
All migrants arriving at the southern border have transited Mexico, and depending on their country of origin and route, they may have traveled through Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, or Panama before arriving to Mexico. With the possible exception of Costa Rica, none of these countries of transit offer the safety or access to a refugee protection system which would justify imposition of the ban.
Pervasive violence against migrants in Mexico, carried out by state as well as non-state actors, has been well-documented. The most recent U.S. State Department country conditions report noted the “targeting and victimization” of migrants, and in striking down the Trump transit ban in July 2020, the Ninth Circuit Court of Appeals cited the high levels of violence, including sexual violence, against asylum seekers in Mexico.
Even if Mexico were safe, which it is not, U.S. policies, such as Title 42, have overwhelmed its refugee system, preventing meaningful access to a “full and fair” procedure. A little over a decade ago – in 2011 – a total of 752 claims for refugee protection were lodged; in 2021 the number had soared to over 130,000. Funding has not kept pace, and the Mexican Commission for Refugee Assistance (COMAR) lacks resources for its core operations.
The four Central American countries south of Mexico – Guatemala, El Salvador, Honduras, and Nicaragua – are even less able to pass the safe third country test. Significant human rights abuses, including extrajudicial killings, torture, and disappearances, prevail at high levels in each country. Honduras, El Salvador, and Guatemala have the highest rates of femicides (gender-motivated killings) in the world, as well as extreme violence against LGBTQ+ individuals, while the brutal suppression of political opponents to the authoritarian regime in Nicaragua is well-documented.
Furthermore, not one of the four countries has anything approaching an adequate refugee protection system. Guatemala’s system has been described as “inadequate” and cumbersome, and El Salvador’s as having “major regulatory and operational gaps.” The system in Honduras is “nascent,” and those individuals who try to access it, especially women, children, and LGBTQ+ individuals, are especially vulnerable to abuse and sexual exploitation. Nicaragua is even more of an outlier, having ceased any cooperation with the UNHCR; in 2015 it suspended meetings of its refugee determination body, the National Commission for Refugees.
This leaves Costa Rica, a country with a population of five million, and Panama, a country of four million, as remaining countries of transit for the majority of asylum seekers arriving to the United States. Although they have human rights records far superior to any of the countries discussed above, access to protection is complicated by the unique circumstances in each.
Costa Rica, with its admirable human rights record, well-established asylum framework, and history of welcoming refugees, has long been viewed as a destination country for those seeking protection. In recent years, however, it has been swamped by claims for protection; in 2021 and 2022, it was among the top four countries globally for asylum claims registered. In the beginning of 2022, the UNHCR reported just under 1.44 million asylum seekers in the United States — a country of 332 million — and 204,730 applications in Costa Rica, a country of 5 million; in other words, Costa Rica is already taking approximately 10 times as many refugees per capita as the United States. The rising numbers have overwhelmed Costa Rica’s systems, resulting in delays, difficulty accessing protection, and a rise in “xenophobic, racist, and discriminatory” attitudes. This has also led to the adoption of restrictive asylum policies, including its own “safe third country” ban, and rules that limit the right to work and freedom of movement.
In contrast to Costa Rica, a country of destination, Panama has been seen as a country of transit. Migrants enter via the Isthmus of Darién, which straddles the border of Panama and Colombia. They then travel north on the infamously dangerous route known as the Darién Gap. Panama has also experienced a dramatic rise in numbers. In the seven years from 2013 to 2020, just over 100,000 migrants entered Panama through the Darién, while in 2021 alone, the number rose to 140,000.
Panama has a refugee protection system, but the process is difficult to access. The country applies its refugee laws in an extremely narrow manner, leading Panama to have an asylum approval rate of only 1 percent, and a record of having only granted asylum to 2,500 refugees since it began hearing claims. In-country experts consider refugee status to be “the single most difficult pathway” to obtain legal status in Panama. Even those who are recognized as refugees find it difficult to integrate due to laws which prohibit non-citizens from a broad range of professions. Human rights groups have proposed and advocated for migration reform so that ultimately Panama can become a “safe harbor for . . . refugees.” However, that day has yet to arrive.
The Biden administration could be forgiven if it were totally unaware of the conditions in the countries of transit – which are either patently unsafe, or beyond capacity. But lack of knowledge is not the case, making the administration’s actions all the more deplorable. With the planned implementation of his own version of a transit ban, Biden stands willing to outsource U.S. protection obligations to countries such as Costa Rica, which are already overwhelmed by a disproportionately high rate of asylum applications per capita, or in the alternative, to return those fleeing persecution to situations as violent as those they have fled.
But beyond the legal folly of resurrecting the ban is the shame that this administration should feel when it repudiates its international and domestic obligations, tries to offload its responsibilities to smaller countries with far less resources, and abandons not only refugees seeking protection, but its own moral high ground. One can only hope that the Biden administration will heed the call of lawmakers, faith leaders, and community groups to reconsider its plan to impose a transit ban. If it does not, it can anticipate a sustained critique throughout the notice and comment period, and beyond.