Amid the flurry of executive orders issued and other actions taken by the second Trump administration in its first few days in power, including a number of actions on immigration, it may have been easy to overlook that the US State Department canceled scheduled travel to the United States for more than 10,000 people who had been approved to move here through the refugee resettlement program. This number includes approximately 1,600 Afghans vetted through a specific process set up after the US withdrawal from Afghanistan in 2021 and the Taliban’s return to power.
These individuals were not hoping to come to the United States and establish a claim for asylum based on the harm they have endured and the risk of sending them back to their country of origin. In contrast, these individuals have already successfully navigated a years-long process of proving to the satisfaction of a deeply skeptical US government that they have, in fact, endured great harm in their countries of origin and that they are at significant risk if they are forced to stay or return. During that process, they also proved that their entry poses no danger to the United States.
Leaving aside whether it is to the long-term benefit of the United States to make it almost impossible to join our population, even for those who have jumped through every possible legal hoop to get here (it isn’t), whether it makes strategic sense to abandon those, like the Afghan refugees, who have been put at risk through our actions and through their affinity with our ideals (it doesn’t), and whether there is any moral justification for closing our ports to those who have been tossed in the worst of tempests (there is not), these actions blatantly contravene long-settled legal commitments.
Non-refoulement in international law instruments
The principle of non-refoulement is one of the most cherished norms in international law. As first established in the UN Refugee Convention, the non-refoulement principle says, “No Contracting State shall expel or return (‘refouler’) 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.” The UN Convention against Torture also says, “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This principle is so firmly established that it is considered to have entered into customary international law. The phrase “non-refoulement” might be unfamiliar, but the concept is simple enough—once someone has proved to our satisfaction that they are at risk of persecution or torture, we cannot put them back in the path of that persecution or torture. But that is precisely what canceling these flights does.
US violations of longstanding asylum commitments
The standards for non-refoulement from the Refugee Convention and the Convention against Torture have both been integrated into US refugee law. Section 208(a) of the Immigration and Nationality Act provides for the granting of asylum under the terms specified in the Refugee Convention. Section 241(B)(3) of the same law further protects against the removal of someone who has not been granted asylum but shows that their “life or freedom would be threatened” because of certain characteristics if they were sent back to their country of origin. Courts in the United States have long held these laws to be reflective of the country’s treaty obligations and have applied the treaties in interpreting US asylum and refugee law.
A number of the administration’s other immigration policies, including the Remain in Mexico policy and securitization of the southern border, flirt with violating the non-refoulement principle. These are policies that fall under the broad term of “pushbacks”—stopping migrants from entering a country before they can have the chance to apply for asylum and potentially obtain refugee status. The UN special rapporteur on the human rights of migrants has said that such measures “are incompatible with States’ obligations under international human rights law, in particular the prohibition of refoulement,” but other analysts disagree as to whether pushbacks meet the definition of refoulement.
But canceling flights for those who have already qualified for refugee status is not a pushback—it’s a takeback. By endowing these individuals with refugee status and scheduling flights for their arrival, the United States has clearly established that we have effective control, and therefore jurisdiction, over them. It is thus unequivocally a violation of the principle of non-refoulement to renege on our promise and put them back in harm’s way. It is no surprise that these actions, along with the broader suspension of the refugee resettlement program, have already been challenged in the courts and enjoined by a federal judge, who emphasized both the contravention of clearly established domestic law and the practical harms of leaving refugees stranded.
Canceling these flights breaks apart families longing for reunification and risks the lives of those who have already experienced enormous risk and suffering. But it is also lawless, contradicting a long-held and deeply cherished principle of international law that has been firmly enshrined in the domestic legal regime. As the US Court of Appeals for the Ninth Circuit said with regard to prior Trump administration actions, “[f]or more than 60 years, our country has agreed, by treaty, to accept refugees.” To cancel flights for those already accepted is to turn our backs not only on those individuals but on more than 60 years of international and domestic law.