The IACHR Expresses Concern about the Expulsion of People in a human mobility context from the United States and Mexico and calls on States to Ensure the Effective Protection of Their Rights

September 17, 2021

Washington, D.C. — The Inter-American Commission on Human Rights (IACHR) expresses its concern over the implementation of fast-track procedures to expel people in movement from the United States to the northern and southern borders of Mexico, and from there to different borders with Guatemala. In this respect, it calls on all States involved to guarantee the effective protection of the rights of people in human mobility; and in particular, to ensure due process guarantees during all procedures that may result in the imposition of an expulsion measure.

The IACHR has been tracking the changes in migration dynamics in North and Central America and the intensification of mixed migratory movements through its various monitoring mechanisms, mainly in relation to the return of people. In this context, it notes with concern the implementation of fast-track procedures to expel people in human mobility from the United States to the northern and southern borders of Mexico. At the same time, Mexico is reportedly expelling irregular migrants, including those who were expelled from the United States, to various borders with Guatemala.

Specifically, policies of this sort aim to discourage the movement of people by implementing measures that limit access to States' territories and migration, asylum, or protection procedures. In response, the IACHR has reiterated its concern that such measures, in combination with the lack of legal alternatives for international migration, are forcing people in the context of human mobility to seek out more distant, less travelled routes to move through the region. This increases the risk of falling victim to crimes such as human trafficking and thus to violations of their human rights.

In this context, the IACHR observes that when people are expelled from the country or returned to their countries of origin or habitual residence without their potential need for international protection having been adequately ascertained, they may again face similar situations to those that forced them to leave in the first place. In some cases, returnees allegedly do not have access to sufficient protection to ensure their safety and reintegration into their communities of origin.

According to available information, the IACHR warns that accelerated expulsion procedures are being implemented without assessing the potential need for protection; ensuring access to migration, asylum, or protection procedures; or applying the appropriate health protocols to prevent the spread of COVID-19 infection. In response, the Office of the United Nations High Commissioner for Refugees (UNHCR) issued a joint press release with other specialized agencies of the United Nations on August 11, in which they expressed their concern about the effects that the application of the Title 42 policy is having on people in human mobility —a United States administrative order which, based on public health interest, prohibits certain people from entering the United States. According to the United Nations, expulsion from the United States to southern Mexico would increase the risk of chain refoulement of people in vulnerable situations, which contravenes international law and the humanitarian principles of the 1951 Convention Relating to the Status of Refugees. In addition, they emphasize that the protection of public health —in the context of the COVID-19 pandemic— and the guarantee of access to asylum are fully compatible.

In line with the above, civil society organizations indicated that the people who have been expelled reported that both US and Mexican authorities had limited access to asylum or protection procedures and did not adequately assess the risks of returning them to the conditions that had forced them to move. Likewise, the Guatemalan Human Rights Ombudsperson has mentioned that a lack of coordination on the part of the Guatemalan authorities was causing the country's migration authorities not to register people entering the country from Mexico.

On the other hand, also according to information from civil society organizations, in addition to the flights from the United States to Mexico's southern border, there are ground expulsions of people who are detained within Mexico, mainly of Haitian nationality. The IACHR is concerned that, according to these organizations, they are expelling people who have documentation to support their stay in the country in regular circumstances, such as refugee applications to the Mexican Commission for Refugee Assistance (COMAR) or even full recognition of refugee status. In this respect, during the visit to the border crossing at El Carmen in August 2021, officials from the office of the Guatemalan Human Rights Ombudsperson allegedly observed a family with refugee status re-entering Guatemala along with unaccompanied children and adolescents who had been returned from Mexico and the United States.

In this context, the IACHR recalls that according to international obligations and commitments that derive from various international treaties and other instruments—among them, the American Declaration on Human Rights, the American Convention on Human Rights, the 1951 Convention Relating to the Status of Refugees and 1967 Additional Protocol, the Cartagena Declaration, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights—, the obligation to guarantee the principle of non-refoulement applies to all forms of forced returns, indirect or "chain" refoulement, deportation, expulsion, extradition, informal transfer or surrender, and other types of return. In particular, States must implement measures to ensure absolute respect for the principle of non-refoulement of people seeking asylum or other forms of international protection.

In relation to protection against the refoulement of persons in the context of human mobility, the Inter-American Court of Human Rights (IA Court) established in Advisory Opinion 21/14 of August 19, 2014, that the protection of the principle of non-refoulement included in Article 22(8) of the American Convention applies to all foreigners and not only to a specific category of foreigners, such as asylum seekers and refugees. Similarly, through Advisory Opinion 25/18 of May 30, 2018, the IA Court highlighted that the principle of non-refoulement is not only fundamental to the right to asylum but also serves as a guarantee of various non-derogable human rights, since it is rightly a measure whose purpose is to preserve the life, liberty, or integrity of the protected person. Furthermore, this principle has been deemed to constitute the "cornerstone of protection" of refugees and asylum seekers and is also a customary norm of international law.

On the other hand, the IACHR notes that the aforementioned forced returns are serious factors for the humanitarian situation at the borders that are posing challenges to receiving States in connection with protecting this group's human rights. It also notes that, without adequate humanitarian assistance, makeshift shelters are being set up that do not meet minimum habitability standards or that exceed their maximum permitted occupancy for providing adequate protection. This situation is extremely concerning in the context of the COVID-19 pandemic due to the lack of implementation of health protocols and other containment measures to prevent and respond to possible COVID-19 infections.

In addition to the above, the IACHR notes that returnees would face a situation of uncertainty upon their arrival at the Guatemalan border. This is due to the lack of options for accessing asylum or protection measures in another country and, in some cases, fear of returning to the conditions that originally forced them to move. In the case of women and other groups that are particularly at risk, such as children and adolescents, people with disabilities, indigenous people, or older people, the absence of measures that incorporate a human rights and intersectional approach could aggravate their vulnerability by expelling them without conducting an adequate assessment of possible protection needs.

In this regard, the State of Guatemala reported that agreements had been reached to ensure that people are returned to established border points in order to avoid risky situations and provide timely attention.. For its part, Mexico indicated that the current regulatory framework incorporates the protection and safeguarding of the human rights of people in human mobility. In particular, it recognizes the right of access to justice and due process and establishes clear procedures for access to international protection systems and the protection of migrant children. Additionally, both Mexico and Guatemala indicated that they would be working at the regional level so that safe, orderly and regular migration is promoted and the structural causes that generate forced displacement of people are addressed under the principle of shared responsibility.

In this regard, the IACHR calls on States to allow people in the context of human mobility to enter their respective territories for the purpose of guaranteeing access to procedures for recognizing refugee status, complementary protection, or migratory regularization. These measures should contemplate the particular needs of groups such as women and other particularly vulnerable groups such as children and adolescents, LGBTI people, indigenous peoples, people with disabilities, and older people and should be compatible with health containment measures adopted in the context of the COVID-19 pandemic.

Finally, the IACHR urges States in the region, particularly the United States, Mexico, Guatemala, to create and expand existing regular channels that are safe, accessible, and affordable for international migrants; and reiterates its call to implement mechanisms for regional cooperation and shared responsibility and to strengthen national asylum and protection systems, in a way that they adapt to the complex reality of migration dynamics in the region, to adequately identify protection needs, and provide timely responses. It is understood that as long as measures are not adopted to overcome the structural causes of forced migration, international migratory movements will continue to occur.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission on Human Rights is an autonomous organ of the Organization of American States whose principal functions are to promote the observance and defense of human rights and to serve as an advisory body to the Organization in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 243/21

4:24 PM