Article 14(1) of the Universal Declaration of Human Rights (UDHR), adopted in 1948, establishes the right to humanitarian protection for refugees who flee their countries under threat of death and violence.
The 1951 Convention Relating to the Status of Refugees and its 1967 Optional Protocol establishes the definition of a refugee and the principle of non-refoulement to any person who can defend his or her case before the respective government authorities.
Article 33 of the 1951 Convention on the Prohibition of Expulsion and Return (“refoulement”) states: “no Contracting State shall expel or return 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 of a particular social group or political opinion.”
However, Article 33 also determines that the benefits of this provision may not be invoked by a refugee who is considered, for well-founded reasons, to be “a danger to the security” of the country in which he is, or who, having been convicted of a particularly serious crime, constitutes a threat to the community of that country.
This second argument has been the ideal tool for the Trump Administration to block access to asylum for hundreds of Nicaraguan refugees who have spent much of their lives fighting the autocratic government of Daniel Ortega.
According to The Washington Post, asylum seekers and activists like Valeska Alemán and Moisés Alberto Ortega Valdivia have had to panic on U.S. government planes as they were being deported from the Mexican border back to Managua, without even having the opportunity to present their cases to U.S. immigration judges.
In an extensive report, Kevin Sieff, editor and correspondent for the Post in Latin America, explains how the Trump administration uses the public health order known as the 42 U.S.C. citing “the public health danger” of migrants to justify closing the asylum system during the pandemic.
While Mexico has agreed to accept Salvadorans, Guatemalans and Hondurans sent back from U.S. territory, Nicaraguans’ story is different.
“Throughout Nicaragua, armed and violent uniformed police or civilians in plain clothes acting as police (‘para-police’) continue to target anyone considered to be in opposition to the rule of President Ortega,” the department says in a travel warning. “The government and its affiliated armed groups have been reported to arbitrarily detain pro-democracy protestors, with credible claims of torture and disappearances.”
Despite diplomatically acknowledging the danger posed to activists and opponents of Ortega’s regime, the U.S. government has chosen to detain asylum seekers and put them on a plane back to the perilous destination from which they have attempted to flee with their families.
More than 100,000 Nicaraguans have fled the country. Of these, 85% have stayed in Mexico or Central America, and very few try their luck at immigration posts on the U.S. border.
The U.N. high commissioner for refugees has expressed concern about the policy. The international convention on refugee bars signatories from returning migrants to countries where they are liable to be persecuted or tortured, a principle known as non-refoulement.
“Everyone should have the opportunity to present their protection claim,” said Giovanni Bassu, the commissioner’s representative for Central America. “They should have access to due process. We have raised these concerns with different governments involved.”
Customs and Border Protection Commissioner Mark Morgan told reporters this month that agents may assess asylum claims and decide whether to refer them to asylum officers. But in practice, immigration lawyers say, that rarely appears to be happening.
“The 42 U.S.C. order has completely swallowed all other policies, and it basically says we’re going to expel everyone,” said Claudia Cubas, the litigation director for the Capital Area Immigrants’ Rights Coalition. “It’s a violation of both U.S. and international law.”
With information from The Washington Post.