Nadler, Engel, Thompson, & Menendez Reject Administration's Legal Explanation for Halting Asylum Processing
Washington, D.C. – Today, Chairmen Jerrold Nadler of the House Committee on the Judiciary, Eliot L. Engel of the House Committee on Foreign Affairs, Bennie G. Thompson of the House Committee on Homeland Security, and Ranking Member Bob Menendez of the Senate Committee on Foreign Relations rejected the Trump Administration’s legal justification for its decision to halt asylum processing during the COVID-19 pandemic. After seeking answers on this issue for nearly two months, the lawmakers received a deeply flawed legal opinion from the Department of State in late April that the administration apparently concocted after the Asylum Ban had been in effect for more than a month.
Writing to Secretary of State Mike Pompeo, Secretary of Health and Human Services Alex Azar, and Acting Secretary of Homeland Security Chad Wolf, the four congressional leaders questioned the public-health rationale of the Asylum Ban, pointing out that it places no restrictions on travelers arriving by plane or boat from countries with high rates of COVID-19. The lawmakers questioned how the suspension of processing asylum claims is consistent with U.S. and international law and sought details about who has been affected by this policy since it went into place.
“Protecting public health and protecting individuals from persecution or torture are not mutually exclusive – the United States must do both. As such, we are deeply concerned that the Administration appears to be using the COVID-19 outbreak as a pretext to expel asylum seekers in clear violation of its obligations under domestic and international law to protect individuals fleeing persecution or torture,” wrote Nadler, Engel, Thompson, and Menendez. “The April 24 Opinion does not alleviate these concerns. Instead, the opinion raises serious questions about the accuracy of the Administration’s claims of protecting public health, the legality of the Asylum Ban, and the Administration’s respect for the rule of law.”
The letter gave the administration a May 22 deadline to provide additional answers and information.
Last month, Chairmen Nadler, Engel, and Thompson voiced concern about the administration’s then refusal to provide any explanation about the decision to halt the processing of asylum claims. The legal opinion that the administration ultimately provided is dated April 24, suggesting it was crafted well after the policy had been put into place. The administration’s legal opinion can be found here.
Full text of the letter follows and can be found here.
Dear Secretary Pompeo, Secretary Azar, and Acting Secretary Wolf:
As Committees of jurisdiction over refugee, asylum and national security laws, we write to express our concern over the Trump Administration’s deeply flawed legal “justification” of its March 20 decision to suspend asylum processing in response to the COVID-19 outbreak (the “Asylum Ban”). Notably, the Committees received this justification from the State Department on the evening of April 24 (the “April 24 Opinion”), a month and a half after the Committees’ request, and over a month after the announcement of the Asylum Ban—suggesting that the Administration developed this justification after implementing the ban. Protecting public health and protecting individuals from persecution or torture are not mutually exclusive – the United States must do both. As such, we are deeply concerned that the Administration appears to be using the COVID-19 outbreak as a pretext to expel asylum seekers in clear violation of its obligations under domestic and international law to protect individuals fleeing persecution or torture.
The April 24 Opinion does not alleviate these concerns. Instead, the opinion raises serious questions about the accuracy of the Administration’s claims of protecting public health, the legality of the Asylum Ban, and the Administration’s respect for the rule of law.
Therefore, we request that your agencies provide detailed answers to the following questions no later than 5:00 PM on Friday, May 22, 2020:
The Committees are prepared to engage directly and cooperatively with the Departments of State, Health and Human Services, and Homeland Security in the fulfillment of this request. Should the Departments not provide the requested responses by 5 PM on Friday, May 22, 2020, the Committees will consider additional measures to obtain this information.
Thank you for your prompt and thorough attention to this important matter.
ELIOT L. ENGEL
BENNIE G. THOMPSON
 See Control of Communicable Diseases; Foreign Quarantine; Suspension of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg. 16,559 (Mar. 24, 2020), effective Mar. 20, 2020.
 See, e.g., The Refugee Act of 1980, Pub. L. No. 96-212 (Mar. 17, 1980); INS v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987); Notice of Proposed Rulemaking, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62280, at n.158 (Nov. 14, 2019); 1951 Convention relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137; 1967 Protocol relating to the Status of Refugees, open for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
 See, e.g., United Nations High Commissioner on Refugees (“UNHCR”), Despite pandemic restrictions, people fleeing violence and persecution continue to seek asylum in Mexico, https://www.unhcr.org/news/briefing/2020/4/5ea7dc144/despite-pandemic-restrictions-people-fleeing-violence-persecution-continue.html (Apr. 28, 2020); and UNHCR, Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the COVID-19 Pandemic, https://data2.unhcr.org/en/documents/download/75453 (Apr. 15, 2020).
Enter your information to get the latest updates via our newsletter