Blog post by Amala Karri, a postgraduate student in Refugee and Forced Migration Studies at the University of Oxford

Texas and the Biden Administration are in a legal battle: in December of 2023, Texas passed a law authorising state police to arrest and deport migrants who cross the border illegally. The Biden Administration sued on the grounds that immigration policy is the purview of the federal government, and the Texas police have no right to enforce it. Already, this has become a contentious, highly publicised case. On Tuesday March 19th, the Supreme Court provisionally allowed the law, SB4, to go into effect while the lower courts consider its legality; just hours later, the law was blocked by an appellate court. As the debate over federal and state power to enforce immigration laws plays out in U.S. courts over the coming weeks, there is another, equally important, issue to discuss: SB4 violates the internationally protected human rights of refugees and asylum-seekers. 

The main international treaty on the rights of refugees is the 1951 UN Convention Relating to the Status of Refugees. In 1968, the United States acceded to a revised UN Protocol Relating to the Status of Refugees, and in doing so, agreed to Articles 2 through 34 of the original convention. These Articles outline basic standards for the treatment of refugees. Texas’ law blatantly violates at least three rights outlined in Articles 2 through 34, rights that the U.S. agreed to protect and that the international community recognised as fundamental to the international refugee regime.

First, Article 31(1) of the Refugee Convention prohibits states from imposing penalties on refugees on account of their “illegal entry or presence” provided they meet three requirements: they come directly from a country where their life or freedom was threatened (this does not necessarily mean they cannot pass through other countries in between), they make themselves known to authorities without delay (such as by applying for asylum), and they have good cause for entering illegally (legal scholars recognise being a refugee as good cause). In other words, people fleeing life-threatening persecution may not have the option to enter a country legally and should not be punished for doing what they have to do to escape. Second, Article 31(2) says that states shall not restrict the movement of such refugees beyond what is “necessary”; detaining people for other reasons – such as to punish them for crossing the border – is illegal. Third, Article 33, the non-refoulement provision, prevents states from expelling or returning refugees to territories where they would face persecution that threatens their life or freedom.

Legal scholars have argued that “refugees” should be interpreted broadly to include people applying for refugee status whose claims have not yet been adjudicated. After all, if states arrest or deport people before evaluating their asylum claims, they very well may end up arresting and deporting people whose claims have merit. SB4 is a flagrant violation of the Refugee Convention because it empowers the Texas police to arrest or deport anyone who has crossed the border illegally, even people seeking asylum. People arrested under the law could face six months in jail for their first illegal crossing and up to twenty years for repeat offenses.

Under SB4, Texas police could arrest people who intend to apply for asylum but have not yet been able to. They could also arrest people who have begun the asylum process but whose claims have not yet been evaluated. Supreme Court Justice Sonia Sotomayor wrote in her dissenting opinion that “states may not consider federal asylum applications as a reason to abate state removal proceedings…Texas may remove or incarcerate many noncitizens with valid asylum…claims, in violation of U.S. treaty obligations.” Furthermore, after the Supreme Court temporarily allowed the law to go into effect, asylum seekers who had used the government’s CBP One app, which allows them to make an appointment at a port of entry and thus enter the country legally, expressed fear that their proof of a CBP One appointment might not be enough to protect them from arrest. SB4 thus clearly violates the international standards outlined in Articles 31(1), 31(2), and 33 by punishing, detaining, and deporting asylum seekers.

Defenders of SB4 may point out that it allows judges to drop criminal charges against migrants who agree to be deported to Mexico. This does not change its illegality. Forcing asylum seekers who enter illegally to choose between incarceration and deportation, in which case their asylum claim will not be evaluated, is still a punishment for illegal entry under Article 31(1). Arresting people unless they agree to be deported infringes on their right to free movement under Article 31(2). And people may agree to be deported to avoid incarceration or further punishment, even if they face further persecution and violence in Mexico, which would make their deportations a violation of Article 33. (For its part, Mexico has condemned the law and said that it will not accept any deportees from Texas).

These concerns – the international rights of asylum seekers and refugees – are unlikely to play a large role in the legal battle over SB4. After all, the actor challenging Texas is the federal government, which itself has violated the Refugee Convention on several occasions. For example, Biden Administration policies limit who can apply for asylum. The case thus is more focused on the balance between federal and state power. Nevertheless, while the discourse on SB4 and its legality grows, it is important not to lose sight on the immense human rights violations that this law authorises. The law is not just bad because it gives Texas police power usually reserved for the federal government; it is bad because it violates the United States’ treaty obligations regarding the rights of asylum seekers.

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.