Rejections at the Border: Concerning Patterns in the United States and European Union Asylum Policies, a Comparative View of the United States’ Title 42 Policy and Spain’s Pushbacks in Ceuta and Melilla

Michelle Furrer

January 2023 update: On December 27, 2022, the U.S. Supreme Court granted a stay in the case of Arizona, et al. v. Alejandro Mayorkas, Secretary of Homeland Security, effectively ruling it would keep Title 42 in place indefinitely until the Justices decide if the Biden Administration has the authority to terminate the program.^[1] Justice Neil Gorsuch dissented and argued that states are misusing the policy in response to “an immigration crisis at the border” as they know the public-health justification for the policy “has lapsed.”^[2] This stay prompted the Biden Administration to issue a suite of refugee and asylum policies on January 5, 2023. These policies, while offering a new pathway to Cubans, Haitians, and Nicaraguans with U.S. based sponsors, also expand the Title 42 expulsions policy^[3] “meaning that Cubans, Haitians, and Nicaraguans attempting to seek asylum at the U.S.-Mexico border will now—for the first time—be turned away without a basic screening for asylum or other protections.”^[4] Any continuation of the Title 42 policies will only hinder the internationally recognized right to seek asylum at the U.S.-Mexico border. 

This Comment analyzes the issue of whether the United States and Spain violate the principle of non-refoulement and the legal right to seek asylum with their actions and policies that keep migrants seeking asylum from reaching their borders. After a survey of the Spanish Guardia Civil border actions along the Spanish-Moroccan border in Ceuta and Melilla and the United States Migrant Protection Protocol and Title 42 policy along the U.S. southern border, I submit these border policies not only violate international asylum law, but also violate Spanish and U.S. codified domestic law.

Part II of this Comment discusses the international policy basis for European Union (EU) and United States (U.S.) refugee and asylum policies. Part III focuses on the EU and examines Spain and its border patrol, the Spanish Guardia Civil. In 2021 and 2022, the Spanish pushbacks, or rejections, at the Spanish-Moroccan border in North Africa gained international attention as the pushback policies return asylum seekers to Morocco and prevent them from applying for asylum. This Comment will then discuss the EU’s response and international responses to the pushback policies, including the concerning N.D. & N.T. v. Spain ruling by the European Court of Human Rights. Part IV will look at the United States asylum system and two policies, Migrant Protection Protocols and Title 42. Migrant Protection Protocols (MPP) is a Trump-era policy where certain foreign individuals seeking asylum on the U.S.-Mexico border could be returned to Mexico for the duration of their immigration proceedings. Title 42 is a public health policy that prevents migrants from applying for asylum at a U.S. Port of Entry under the guise of COVID-19 concerns. Title 42 has been supported by both political parties. Part IV will then discuss the international response to Title 42, which raises similar concerns to those related to the Spanish pushbacks. Finally, Part V will discuss the legal issues, use of force, and human rights concerns raised by Parts III and IV and present a call to action.

II. International Policy Basis of Refugee and Asylum Policies

The 1951 Refugee Convention (1951 Convention) and 1967 Protocol Relating to the Status of Refugees (1967 Protocol) are the cornerstones of refugee protection. The 1951 Convention was formed as a limited response to protecting the millions of European World War II refugees.^[5] “The 1967 Protocol removed these limitations and thus gave the Convention [the] universal coverage” it has today.^[6] Read together, the 1951 Convention and 1967 Protocol provide a basis for who qualifies as a refugee and outlines the rights of refugees as well as countries’ obligation to protect refugees.^[7] Article I of the 1951 Convention defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”^[8] The core principle of refugee law and asylum law “is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom.”^[9] Thus, according to this standard, no one can be deported, returned, or extradited until their request for protection is resolved.

A few decades later, Article 3 of the United Nations Convention Against Torture, introduced in 1984, expanded the concept of non-refoulement to persons seeking asylum, “stating that states parties may not ‘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.’”^[10] Asylum policies were then created to protect foreign nationals who met the international law definition of a “refugee.”

III. Asylum Policies

The European Union is a collection of European countries that identifies itself as “an area of protection for people fleeing persecution or serious harm in their country of origin.”^[11] Because the EU is an open border area with freedom of movement, the member states must have the same fundamental values and approach toward asylum seekers:

EU countries have a shared responsibility to welcome asylum seekers in a dignified manner, ensuring that they are treated fairly and their case is examined following uniform standards. This ensures that, no matter where an applicant applies, the outcome will be similar. Procedures must be fair, effective throughout the EU, and impervious to abuse.^[12]

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The EU codified the right to asylum and the right to international protection through Article 78 of the Treaty on the Functioning of the European Union (TFEU).^[13] It also provides for the prohibition of collective expulsion in Protocol No. 4 of the European Convention on Human Rights and the principle of non-refoulement in Article 19 of the EU Charter of Fundamental Rights.^[14] Spain codified the right to asylum and subsidiary protection in Ley 12/2009, de 30 de octubre.^[15]

Many European Union member states, including Spain, were among the first twenty-three signatories of the United Nations Convention Against Torture (UNCAT).^[16] By 1985, Spain was anxious to sign the treaty and prove its torture practices “were now a thing of the past.”^[17]

As an EU member state, Spain is bound to EU principles but has recently come under fire for migrant “pushback” border policies called “devoluciones en caliente” that began in 2020.^[18] These violent pushbacks occur mainly at the two Spanish enclaves, Ceuta and Melilla, in Morocco when State Security Forces expel migrants at borders without due process or legal guarantees. Spain cites many reasons for this policy, including sovereignty, safety, and terrorism from irregular migrants as these enclaves are EU external borders.^[19]

Ceuta and Melilla are two tiny Spanish enclaves on the coast of Northern Morocco and are the only pieces of European territory on mainland Africa.^[20] Historically, both port cities have been military and trade centers linking the two continents.^[21] The population of the two cities is roughly 150,000, covering a combined area of twelve square miles.^[22] The history of these cities is nuanced and complex.^[23] The sister cities trace their European ties back to the fifth century when they were colonized by the Carthaginians, Greeks, and Romans.^[24] Portugal seized control of Ceuta in 1415 after rule by various Berber and Arab dynasties while Spain conquered Melilla in 1497.^[25] Spain fought off many attacks on Melilla by Muslim forces, and finally, in 1556, Melilla came under Spanish rule, followed by Ceuta in 1688.^[26] Moving into the twentieth century, Spain retained Ceuta and Melilla after Morocco gained its independence from France.^[27] Both borders became heavily fortified in response to “pressure from African migrants seeking a better life in Europe.”^[28]

Tensions surrounding the Spanish-Moroccan border have undoubtedly existed for centuries; however, beginning in May 2021, the migrant situation in Ceuta gained international attention when an exceptionally large group of around 8,000 migrants from Morocco and Sub-Saharan Africa crossed into the Ceuta enclave in a single day.^[29] It emerged that the Moroccan border guards were understaffed that day and “turned a blind eye to the breach.”^[30] The incident rapidly became a diplomatic crisis between the two countries, leading Spain to send border reinforcements to the area.^[31] The Moroccan public also reacted by “launch[ing] a campaign on Twitter, with the slogans: ‘Ceuta and Melilla is not Spain’ and ‘Ceuta and Melilla are Moroccan – end colonialism.’”^[32] Spain’s response to this migrant surge was summary pushbacks, where in less than forty-eight hours, Spain returned over 6,000 migrants to Morocco.^[33]

Desperate migrants have turned to crossing the border en masse because of the lack of safe and legal migration channels.^[34] The most recent fatal pushback occurred on the Melilla-Moroccan border on June 24, 2022.^[35] Early in the morning, approximately 2,000 people, primarily Sudanese and South Sudanese men, attempted to enter Spain by scaling the six- to ten-meter-high chain-linked fences surrounding Melilla.^[36] Disturbing videos and photographs of the attempted crossing “show bodies strewn on the ground in pools of blood, Moroccan security forces kicking and beating people, and Spanish Guardia Civil launching teargas at men clinging to fences.”^[37] Moroccan authorities confirmed twenty-three migrants had died, stating many died in a stampede and others fell as they climbed the high fences;^[38] however, local human rights organizations claimed a higher death toll with many migrants lain injured for hours without medical treatment.^[39] The Moroccan Association of Human Rights (AMDH) published one of the most disturbing videos confirming reports that migrants were left in a pile to die after the attack by Moroccan forces.^[40]

  Another concerning video from the incident shows Moroccan security forces working alongside the Spanish Guardia Civil border agents on the Spanish side of the fence.^[41] “One Moroccan agent is seen marching a man off camera, while the videographer narrates that Moroccan agents were arresting people on Spanish territory.”^[42]

In addition to the concerning human rights violations and use of force on June 24, 2022, Spanish Guardia Civil also returned many migrants who had reached Melilla and Spanish soil back to Morocco.

Official sources said that about 500 people managed to reach Spain, but that only 133 remained in Melilla. The Interior Ministry confirmed that “rejections at the border took place” without specifying how many. “Rejections at the border” is the term in Spanish legislation for summary returns, through doors in the fences around Ceuta and Melilla, without any procedural safeguards or chance to apply for asylum.^[43]

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There is little question that this “rejection at the border” or “devoluciones en caliente” practice violates EU and international law.^[44]

Despite the right to asylum in the 1951 Convention and 1967 Protocol, and EU directives about non-refoulement and returning migrants to dangerous home counties, Spain has repeatedly blocked migrants seeking asylum and has physically removed them from Spanish soil.

The European Union sent mixed messages to member states by not condemning Spain’s violent migrant pushbacks. “The European Parliament has repeatedly called for Member States and EU agencies to comply with fundamental rights in their activities to protect the EU’s external borders.”^[45] The European Court of Human Rights ruled in several cases, including one directly involving the Melilla-Moroccan border, that authorizing the use of force, if it if does not violate human rights protections, is one of the measures a state can take to prevent unauthorized entry into its territory.^[46]

In the 2020 case N.D. & N.T. v. Spain, the Grand Chamber of the European Court of Human Rights rejected the complaint of two migrants that were pushed back to Morocco in 2014 on the Melilla-Morocco border by the Spanish Guardia Civil.^[47] The court overruled the 2017 Chamber judgment holding that Spain breached the prohibition of collective expulsion, Protocol No. 4 of the European Convention on Human Right. Further, the court placed the blame squarely on the migrants.^[48] Thus, Spain could continue with these migrant pushbacks. This ruling went against the fundamental human right to asylum—a human rights protection—and allowed countries to guard EU external borders as violently as they deemed necessary.

There was great concern back in 2020 that this N.D. & N.T. v. Spain ruling “[would] be perceived as a carte blanche for violent push-backs everywhere in Europe . . . . Push-backs at the border to Morocco are a longstanding Spanish practice, which has become a model for other states along the European Union’s external land borders.”^[49] Undoubtedly, there is a direct correlation with the court ruling and the continued violent pushbacks seen this year, in 2022.

After the Melilla tragedy, the EU agreed to improve migration cooperation with Morocco and expressed regret for the deaths that occurred. “The agreement will include support for border management, strengthening police cooperation – including joint investigations – and strengthening cooperation with EU agencies . . . ”^[50]

United Nations experts issued a press release on July 18, 2022 that called the June 24, 2022 pushback in Melilla “gravely concerning” and urged both the Spanish and Moroccan governments “to conduct an independent investigation of the incident and report progress.”^[51] The press release also conveyed the seriousness of the events and indicated that, based on the investigation and information gathered, they would assess law enforcement practices, their use of force, and legislation “against applicable human rights standards, including the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and the UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement.”^[52] While the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted in 1990 are not legally binding on Member States, such as Spain, the principles provide guidelines that countries are encouraged to adopt and implement.^[53]

International nongovernmental organizations have also responded to the Melilla tragedy. Judith Sunderland, Associate Director of the Europe and Central Asia Division at Human Rights Watch, made a statement concerning the horrific treatment of the migrants and concerning the duality of the EU’s asylum policies:

On the other side of Europe, Ukrainian refugees are rightly welcomed with open arms but here and elsewhere along Europe’s borders we see a total disregard for Black lives[.] . . . Large-scale attempts to climb over the fences around Melilla pose security concerns but in no way justify the violence we have seen. The men who died, and the survivors, deserve a credible investigation and to see those responsible held to account.^[54]

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Spain has largely ignored its responsibility for the deaths, with Spanish Prime Minister Pedro Sánchez accusing the smuggling “mafia” of organizing the mass crossing and personally thanking the Moroccan police and security forces for their help with policing the Spanish border.^[55]

IV. U.S. Asylum Policy

Turning now to the U.S. refugee and asylum policy, similar to Spain and many of the EU member states, the United States is a signatory country to the 1967 Protocol indicating the country’s intention and duty to recognize and help those seeking refuge.^[56] In 1980, the U.S. Congress passed the Refugee Act, which codified the 1951 Convention and 1967 Protocol definition of refugee into U.S. law, granted legal protection and created a legal duty to provide protection to foreign nationals arriving at the border who met the international law definition of “refugee.”^[57]  The United States then ratified the UN Convention Against Torture in 1994, making the provisions, including the principle of non-refoulement, the law in the United States.^[58]

Beyond the legal basis for refugee and asylum rights, the reception of immigrants and those seeking refuge has long been a part of the country’s history. The New Colossus, the poem on the Statue of Liberty by Emma Lazarus, famously states:

Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!^[59]

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Written in the late 1880s, the “huddled masses” refers to the large number of immigrants that arrived in the United States in the 1880s, most often through the port of New York.

There are two ways of applying for asylum in the United States: through the affirmative process with an asylum merits interview after a positive credible fear determination, or through the defensive process.^[60] An applicant must be “physically present” in the United States to obtain asylum through the affirmative asylum process.^[61] The physical presence concept is widely known because of the “wet foot/dry foot” delineations in the Cuban Adjustment of 1966, where Cubans who set foot on U.S. soil could seek asylum and apply for permanent residence.^[62] If Cubans were apprehended at sea, U.S. forces would return them to Cuba.^[63] This Comment focuses on those seeking asylum through an initial entry into the United States through a port of entry.

A. Migrant Protection Protocols

Two recent policies, the Migrant Protection Protocols (MPP) and Title 42, deviate from the U.S.’s long-held principle and law of non-refoulement. The Trump Administration launched MPP in early 2019 which came into effect first in San Diego and later in other U.S. southern border cities.^[64] MPP became known as the “Remain in Mexico” policy, where non-Mexican asylum seekers would arrive at the U.S. southern border and request asylum while on U.S. soil.^[65] This meant the migrants physically crossed the border between ports of entry or crossed at a port of entry. MPP allowed Customs and Border Protection agents to issue asylum seekers notices to appear in immigration court.^[66] Asylum seekers were then sent back to Mexico and their appearance in “court” was in the form of a video hearing from a tent set up in Mexico.^[67] Over 70,000 migrants were sent back to Mexico from January 2019 to December 2020, when Biden took office and terminated the policy.^[68]

Although the MPP policy granted migrants the legal right to seek asylum with a specific date and time for an immigration court hearing, the policy went against the long-held policy of non-refoulement because it sent asylum seekers back to some of the most dangerous border towns in Mexico.^[69] The United States government is obligated by law to ensure that migrants are not returned to persecution, and yet that is what many asylum seekers face when returned to Mexico.^[70] “Many of the cities that asylum seekers [were] forced to wait in while in Mexico are dangerous with high risks of kidnapping, extortion, and violence. Some of these cities have recently been or are currently subject to travel advisories by the US Department of State.”^[71] Human Rights First documented “at least 816 publicly reported cases of kidnapping, rape, torture, assault, and other violent attacks against asylum seekers and migrants returned to Mexico,” which is often the very violence migrants are fleeing from in their country of origin. This violence often prevents them from appearing in court, directly inhibiting them from presenting their case and applying for asylum.^[72] Further, returning the migrants to Mexico also potentially creates several due process issues, particularly a lack of access to U.S. council, who must cross the border to represent their clients.^[73]

There is no question Title 42 has prevented hearings on asylum cases. President Biden pledged to end MPP throughout his presidential campaign and halted the policy through executive order on day one of his presidency.^[74] By March 2021, almost all refugees at the infamous refugee camp in Matamoros, Mexico, had been processed into the U.S. and allowed to seek asylum.^[75]

No sooner after the Biden Administration sought to formally end the MPP, Texas and Missouri brought a lawsuit, Texas & Missouri v. United States, seeking to continue the MPP. On August 15, 2021, a federal judge ordered the federal government to:

enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA [Administrative Procedure Act] and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.^[76]

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Thus, the Biden Administration reopened negotiations with Mexico and began MPP 2.0 in December 2021. Biden v. Texas was brought before the United States Supreme Court in April 2022, raising the issue whether the Biden Department of Homeland Security could end the policy.^[77] The Supreme Court ruled 5-4 and gave the green light to end one of the most controversial immigration policies in recent U.S. history.^[78] As of August 2022, MPP is still in place as it awaits the lower court’s ruling to decide if the way the Biden Administration ended the policy was legally sufficient.^[79]

Like the MPP, Title 42 also goes against non-refoulement as well as the legal right to seek asylum, codified in the Refugee Act of 1980 and through immigration law policies. Title 42 is a policy enacted on March 20, 2020, by the Trump Administration in response to the COVID-19 pandemic.^[80] The policy was implemented as an emergency health directive that permitted the Center for Disease Control (CDC) Director to limit the entry of individuals for health reasons.^[81] Title 42 “prohibit[s] . . . the introduction into the United States of individuals when the director believes that ‘there is serious danger of the introduction of [a communicable] disease into the United States.’”^[82] Citing the order, CBP agents began expelling any individual who arrived at the US-Mexico border, effectively closing the southern border to all asylum seekers.^[83] One report in May 2022 indicated over 1.8 million migrants were expelled under Title 42.^[84]

Concerningly, the Associated Press reported on the Trump Administration’s alleged coercion of the CDC’s director to use CDC emergency powers to seal the borders, despite the “agency’s scientists who said there was no evidence the action would slow the coronavirus.”^[85] Thus, it is clear when looking at the other Trump-era immigration policies like MPP, that this Trump Administration policy was brought under the guise of public health but was directly aimed at dismantling the U.S. asylum system, contrary to international and domestic law.^[86] “Title 42 prevents people who clearly qualify for asylum under our laws – based on individual persecution in their homelands – from even making their case.”^[87] These asylum seekers were expelled from the U.S. to Mexico without the opportunity to make their case, which goes against the non-refoulement principle central to international and U.S. asylum law.^[88]

Similar to the violence that migrants faced under the MPP policy, the U.S. government has routinely sent asylum seekers back to Mexico where they become victims of kidnapping and violent assault or find themselves back in the violence they fled from.^[89] “Under the Biden administration, there are over 10,318 reported violent attacks, including kidnapping and rape, against people expelled to Mexico under Title 42. The harms of the Title 42 expulsions fall primarily on Black, Brown and Indigenous asylum seekers.”^[90] This inherent disparate racial impact raises civil rights concerns with the asylum system, discussed further in Section IV.D.

Migrants are also expelled under Title 42, violating non-refoulement and international asylum law.^[91] Since September 19, 2021, the United States has expelled over 7,000 Haitians after arriving at the U.S. Border.^[92] The American Immigration Council also indicates other asylum seekers are expelled to southern Mexico, “where the Mexican government then expels them to Guatemala in a process of ‘chain expulsions.’”^[93] Both examples are highly concerning.

Finally, Title 42 has created more chaos at the U.S.-Mexico border and has fueled illegal organized crime with desperate asylum seekers relying on smugglers.^[94] “Because Title 42 expulsions prevent people fleeing violence from seeking safety at U.S. ports of entry, the policy forces people to undertake repeated attempts to access asylum protections and U.S. immigration officials are actually prevented from enforcing U.S. immigration law.”^[95] A recent example of desperate migrants turning to smugglers was on June 27, 2022, when authorities discovered the bodies of fifty migrants in the back of a tractor-trailer in San Antonio, Texas.^[96] This was one of the worst smuggling-related mass fatalities in decades and indicates just how desperate migrants and asylum seekers have become.^[97]

Many public health experts have called for the end of the border practices as justified under Title 42, despite others claiming that Title 42 is needed to protect against the spread of COVID-19.^[98] Mirroring the Biden Administration’s effort to end MPP, when the administration announced plans to lift Title 42, a legal battle began when a Trump-appointed federal judge, granted a preliminary injunction, blocking the administration from lifting the policy.^[99] There are also legislative efforts in the 2023 House spending bills “for the Departments of Homeland Security and Health and Human Services [that would] would legislatively codify and indefinitely prolong the use of the Title 42 policy . . . .”^[100]

While House Democrats have called on the Senate to reject such legislation, Title 42 has become a political issue that will likely drag into future legislative terms. In the Senate, Arizona Democratic Senators Mark Kelly and Kyrsten Sinema, and a bipartisan group of senators introduced legislation in April 2022 that specifically delays the Biden Administration’s plan to end Title 42 for sixty days and calls for a “comprehensive, workable plan” for border communities.^[101]

D. Response to Title 42

The United Nations has expressed concerns that the United States is violating international law by expelling asylum seekers under Title 42.^[102] Other international human rights organizations have also condemned the continued Title 42 policy. Kennji Kizuka, the Associate Director for Refugee Protection at Human Rights First, stated, “The grave human rights abuses faced by people turned away under Title 42 continue to mount every day that the Biden administration evades refugee law by using this illegal and inhumane policy.”^[103]

The International Rescue Committee (IRC) has repeatedly called for the end of the Title 42 policy and its effects on the legal right to seek asylum. IRC is an international nongovernmental humanitarian organization that focuses on helping people, including refugees and asylum seekers, “affected by humanitarian crises to survive, recover and rebuild their lives.”^[104] The IRC’s Director of Asylum and Immigration Legal Services, Olga Byrne, stated:

We are extremely disappointed and concerned that Title 42 will remain in effect at the border following [the May 20, 2022] court injunction. The court order does not account for the real human impact of people returned to danger, nor the cumulative costs of maintaining a system that violates rights, separates families, fuels exploitation, and denies asylum seekers their dignity and humanity.^[105]

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IRC has also called out the policy’s double standard of refugees fleeing from Ukraine, something the EU asylum system has also seen.

As conflict has escalated all over the world in recent months, we have seen the U.S. take urgent and necessary actions to welcome displaced people from Afghanistan, Ukraine, and other countries—measures that we have applauded. However, it is essential that all people fleeing violence and persecution are offered their legal right to pursue safety, including people from Latin America, the Caribbean, and beyond. Seeking asylum is a human right, and it is a moral imperative to give refuge to those fleeing for their lives no matter their nationality, race, religion, color or creed.^[106]

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After reports of Ukrainians, who had arrived at the U.S. southern border but could not seek asylum because of Title 42, the Biden Administration quickly announced a special policy for Ukrainian refugees called Uniting for Ukraine.^[107] The response to welcoming in Ukrainian refugees demonstrates that the excuses CBP has offered about having insufficient staff to process asylum cases are false. The European Union responded quickly to the Ukrainian crisis by activating a never-before-used policy called the Temporary Protection Directive.^[108] The directive allows Ukrainian refugees, who are non-EU citizens, to live, work, and study in EU countries for three years without applying for asylum.^[109]

While it is too early to understand how the U.S. and EU responses to the Ukrainian refugee crisis will impact their treatment of other refugees, it is imperative to harness the current high level of refugee support and push for fairer and more humane policies for all refugees.

V. Legal and Human Rights Issues Raised

The pushbacks in Spain and Title 42 in the United States conflict with international asylum law and Spanish and U.S. domestic law because the policies turn migrants away from their respective borders and prohibit migrants from exercising their legal right to apply for asylum. Both Spain and the United States have codified the pillar of immigration law of non-refoulement into their domestic laws by signing the 1967 Protocol and the United Nations Convention Against Torture. Spain codified the right to asylum and non-refoulement in Ley 12, 2009, 30 de octubre, and the U.S. codified the international definition of refugee as well as the Convention Against Torture in the Refugee Act of 1980. However, both countries continue to reject asylum seekers at the border before their requests for protection are heard.

Further, while Spain and the EU seek to protect their external borders, the violence against migrants at the Melilla-Morocco border brings forward issues of human rights and excessive use of force. The recent tragedy in Melilla shows border forces from the Spanish Guardia Civil and Moroccan forces are likely violating the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which also apply to border agents.

Spain and the U.S. must both reconsider their “rejection at the border” and pushback policies to better align with international treaties and their domestic law to reflect the fundamental legal right to seek asylum and non-refoulement. The continuation of these policies represents a shameful era of human rights, leads to more desperate attempts to cross the border, and undermines the rights of asylum seekers. The continuation of the Title 42 policy in any shape or form threatens to erase all of our nation’s efforts to protect refugee and asylum seekers. Our elected officials must choose to continue to fortify these protections, rather than chip away at the right to seek asylum, a fundamental human right our world desperately needs.^[110]

1. Arizona v. Mayorkas, 143 S.Ct. 478 (2022). ↑

2. Id. at 479. ↑

3. See Fact Sheet: Biden-Harris Administration Announces New Border Enforcement Actions, The White House, https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/05/fact-sheet-biden-harris-administration-announces-new-border-enforcement-actions/, [https://perma.cc/C6Y8-S9KH]. ↑

4. Azadeh Erfani and Jesse Fransblau, Recycling Trump’s Asylum Bans & Expanding Title 42: How Biden’s New Policies Threaten to Undermine Asylum Rights for Generations to Come, National Immigrant Justice Center, https://immigrantjustice.org/staff/blog/recycling-trumps-asylum-bans-expanding-title-42-how-bidens-new-policies-threaten [https://perma.cc/4J2X-CRWT]. ↑

5. Off. of the U.N. High Comm’r for Refugees, Introductory Note, in Convention and Protocol Relating to the Status of Refugees 2, 2 (U.N. Refugee Agency ed., 2010), https://cms.emergency.unhcr.org/documents/11982/55726/Convention+relating+to+the+Status+of+Refugees+%28signed+28+July+1951%2C+entered+into+force+22+April+1954%29+189+UNTS+150+and+Protocol+relating+to+the+Status+of+Refugees+%28signed+31+January+1967%2C+en [https://perma.cc/3FFC-6HTY]. ↑

6. Id. ↑

7. The 1951 Refugee Convention, July 28, 1951, 189 U.N.T.S. 137. ↑

8. Id. ↑

9. The 1951 Refugee Convention, United Nations High Comm’r for Refugees, https://www.unhcr.org/1951-refugee-convention.html [https://perma.cc/MD75-Y8VK] (emphasis added). ↑

10. Brief from the European Parliamentary Research Service, at 3 (Mar. 2021), https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/689368/EPRS_BRI(2021)689368_EN.pdf [https://perma.cc/62B4-UD9H]. ↑

11. Common European Asylum System, Eur. Comm’n, https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system_en [https://perma.cc/X7YL-PTA2]. ↑

12. Id. ↑

13. The EU Charter of Fundamental Rights originally had Title 18 – The Right to asylum. This has now been replaced by Article 78 of the Treaty on the Functioning of the European Union, which requires the Union to respect the Geneva Convention on refugees. EU Charter of Fundamental Rights, European Union Agency for Fundamental Rights, https://fra.europa.eu/en/eu-charter/article/18-right-asylum [https://perma.cc/W9N5-AGFV]. ↑

14. Anja Radjenovic, Pushbacks at the EU’s External Borders, European Parliamentary Research Service (Mar. 2021), https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/689368/EPRS_BRI(2021)689368_EN.pdf [https://perma.cc/T93J-5ZG5]. ↑

15. B.O.E. 2009, 26. See Who is a Refugee?, United Nations High Comm’r for Refugees, https://help.unhcr.org/spain/en/solicitar-asilo-en-espana/el-asilo-y-otras-formas-de-proteccion-internacional/ [https://perma.cc/6FED-XCS8]. According to Ley 12/2009, “anyone who flees their country of origin or habitual residence due to a fear of being persecuted because of their race, religion, nationality, political opinions, membership of a certain social group, gender or sexual orientation, whom the authorities in said country are unwilling or unable to protect, is considered a refugee.” Id. (emphasis omitted). ↑

16. Shay Conaghan, 4 February 1985: Spain Signs United Nations Anti-Torture Convention, Sur in Eng. (Feb. 4, 2022), https://www.surinenglish.com/lifestyle/spain-signs-united-20220204095221-ntvo.html [https://perma.cc/RDU6-V84M]. ↑

17. Id. ↑

18. Alfredo dos Santos Soares, Professor, Unidad Pontificia Comillas, Comparative Immigration Law Class: Pushbacks in EU and Spain (July 20, 2022) (notes on file with author). ↑

19. Id. ↑

20. Ceuta, Melilla Profile, BBC (Dec. 14, 2018), https://www.bbc.com/news/world-africa-14114627 [https://perma.cc/2KAA-RCEZ]. ↑

21. Id. ↑

22. Id. ↑

23. See id. ↑

24. Id. Morocco has never officially recognized the “Spanish–ness” of Ceuta and Melilla and has always considered them integral parts of Morocco. Oussama Aamari, “Former Spanish Minister Says Ceuta, Melilla are Moroccan,” Morocco World News (Sept. 4, 2022), https://www.moroccoworldnews.com/2022/09/351163/spanish-ex-minister-says-ceuta-melilla-are-moroccan [https://perma.cc/7D5Z-D4NX]. Similarly, Spain has never recognized Morocco’s claim to the territory. Id. ↑

25. Ceuta, Melilla Profile, supra note 20. ↑

    .

26. Id. ↑

27. Id. Both Ceuta and Melilla have been autonomous cities since 1995. Id. It is beyond the scope of this Comment to consider any possible implications the autonomous cities have on the EU asylum law. ↑

28. Id. A series of border walls line the Spanish/Moroccan border. See, e.g., id. ↑

29. Magdi Abdelhadi, Ceuta and Melilla: Spain’s Enclaves in North Africa, BBC (June 5, 2021), https://www.bbc.com/news/world-africa-57305882 [https://perma.cc/SPJ8-XH3R]. ↑

30. Id.; see also Samir Bennis, The Reasons Behind the Spanish-Moroccan Crisis, The Wash. Inst. for Near East Pol’y (June 25, 2021), https://www.washingtoninstitute.org/policy-analysis/reasons-behind-spanish-moroccan-crisis [https://perma.cc/GVC6-LULL]. ↑

31. Id. ↑

32. Abdelhadi, supra note 29. ↑

33. Bennis, supra note 30. “Spain’s response to the migrant surge was summary pushbacks, which enabled it to return over 6,000 migrants to Morocco in less than 48 hours. In reference to the move, Secretary General of the European Council on Refugees and Exiles Catherine Woollard has said, ‘a situation where people are being collectively expelled without individual assessment is a situation that is both illegal under EU and international law.’” Id.; see also Migrants Reach Spain’s Ceuta Enclave in Record Numbers, BBC (May 18, 2021), https://www.bbc.com/news/world-europe-57150051 [https://perma.cc/6LYQ-VBTS]. ↑

34. Id. ↑

35. Morocco/Spain: Horrific Migrant Deaths at Melilla Border, Hum. Rts. Watch (June 29, 2022), https://www.hrw.org/news/2022/06/29/morocco/spain-horrific-migrant-deaths-melilla-border [https://perma.cc/E37D-6WWV]. ↑

36. Id. ↑

37. Id. ↑

38. Id. ↑

39. EU Agrees to Improve Migration Cooperation with Morocco After Melilla Tragedy, Reuters (July 8, 2022), https://www.reuters.com/world/europe/eu-agrees-improve-migration-cooperation-with-morocco-after-melilla-tragedy-2022-07-08/ [https://perma.cc/XL33-W52Z]. ↑

40. Euan Ward & Aida Alami, More than 20 Migrants Die in Effort to Enter Spanish Enclave, N.Y. Times (June 25, 2022), https://www.nytimes.com/2022/06/25/world/europe/melilla-spain-africa-migrants.html [https://perma.cc/9MHT-95TE]. ↑

41. Marruecos se apresura a enterrar a los migrantes que intentaron entrar en Melilla entre críticas por la falta de investigaciones, El Pais (June 26, 2022), https://elpais.com/espana/2022-06-26/marruecos-se-apresura-a-enterrar-a-los-migrantes-del-asalto-a-la-valla-entre-criticas-por-la-posible-ocultacion-de-las-causas-de-la-muerte.html [https://perma.cc/5WBG-SCNC]. ↑

42. Morocco/Spain: Horrific Migrant Deaths at Melilla Border, supra note 35. ↑

43. Id. ↑

44. Id. ↑

    .

45. Brief from the European Parliamentary Research Service, at 1 (Mar. 2021), https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/689368/EPRS_BRI(2021)689368_EN.pdf [https://perma.cc/8SDG-Z547]. ↑

46. Morocco/Spain: Horrific Migrant Deaths at Melilla Border, supra note 35. ↑

47. Nora Markard, A Hole of Unclear Dimensions: Reading ND and NT v. Spain, EU Immigr. L. Blog (Apr. 1, 2020), https://eumigrationlawblog.eu/a-hole-of-unclear-dimensions-reading-nd-and-nt-v-spain/ [https://perma.cc/9DCG-BKDM]. ↑

48. dos Santos Soares, supra note 18. ↑

49. Markard, supra note 47. ↑

50. EU Agrees to Improve Migration Cooperation with Morocco After Melilla Tragedy, supra note 39. ↑

51. UN Experts Call for Accountability in Melilla Tragedy, United Nations Hum. Rts. Off. of the High Comm’r (July 18, 2022), https://www.ohchr.org/en/press-releases/2022/07/un-experts-call-accountability-melilla-tragedy [https://perma.cc/T4PU-N497]. ↑

52. Id.; see also Morocco/Spain: Horrific Migrant Deaths at Melilla Border, supra note 35. “The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials require law enforcement officials, including border guards, to apply nonviolent means before resorting to force, to use force only in proportion to the seriousness of the offense, and to use lethal force only when strictly unavoidable to protect life. The principles also provide that governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offense under their law.” Id; see also Aya Benazizi, Melilla Tragedy Splits UN Security Council, Moroccan World News (June 30, 2022), https://www.moroccoworldnews.com/2022/06/350006/melilla-tragedy-splits-un-security-council [https://perma.cc/4DK5-UR6Z]. United Nations Security Council meetings soon after the tragedy indicated a split with some of the African Security Council members not offering a unified response to the tragedy in Melilla. Id. “The goal of this Security Council session, Kiboino argued, was to call for ‘humane treatment’ of Africans and underline the need to ‘respond to the security needs of Africans who have fled war and insecurity in their countries.’” Id. ↑

53. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, United Nations Hum. Rts. Off. of the High Comm’r, https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-use-force-and-firearms-law-enforcement [https://perma.cc/V4CB-4AFN]. ↑

54. Morocco/Spain: Horrific Migrant Deaths at Melilla Border, supra note 35; see also infra Part IV (outlining U.S. asylum policy). ↑

55. Morocco/Spain: Horrific Migrant Deaths at Melilla Border, supra note 35. There are also huge concerns that Spain is outsourcing the abusive border control to Moroccan forces. Id. “While Prime Minister Pedro Sanchez of Spain blamed ‘mafias,’ the horrific events on June 24 were a foreseeable consequence of Spain’s emphasis on deterrence and outsourcing of border control while turning a blind eye to Morocco’s abuses against migrants and refugees. In April, Spain and Morocco renewed their migration cooperation commitments following a period of diplomatic tension between the two countries. The agreement entrenches an abusive model that has served as a blueprint for the EU’s approach to migration and asylum.” Id. ↑

56. States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, United Nations High Comm’r for Refugees 4, https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf [https://perma.cc/GQZ9-JL7D]. ↑

57. 200+ Immigrant Rights Organizations Urge U.S. House Leadership to Block Efforts to Extend Title 42 Mass Expulsions, OCHA Relief Web (July 16, 2022), https://reliefweb.int/report/united-states-america/200-immigrant-rights-organizations-urge-us-house-leadership-block-efforts-extend-title-42-mass-expulsions [https://perma.cc/J8AM-YGUQ]. See id. for a full list of the organizations in support of blocking the expansion of Title 42. See also 8 U.S.C. § 1101. ↑

58. FAQ: The Convention Against Torture, ACLU, https://www.aclu.org/other/faq-convention-against-torture [https://perma.cc/K7YL-BMDA]. President Harry Truman refused to sign the 1951 Refugee Convention because he felt it infringed upon U.S. sovereignty. Mark Krikorian, Time to Withdraw from the U.N. Refugee Treaty, Ctr. for Immigr. Stud. (July 28, 2021), https://cis.org/Oped/Time-Withdraw-UN-Refugee-Treaty [https://perma.cc/H4BT-5WDT]; see also Asylum in the United States, Am. Immigr. Council (June 11, 2020), https://www.americanimmigrationcouncil.org/research/asylum-united-states [https://perma.cc/4F5P-RMFJ]. President Lyndon B. Johnson “reversed course” and signed the 1967 Protocol. Krikorian, supra note 58. The Senate ratified it and bound the U.S. to its terms. Id. ↑

59. Emma Lazarus, The New Colossus, Poetry Foundation, https://www.poetryfoundation.org/poems/46550/the-new-colossus [https://perma.cc/PR8D-NCFC]. ↑

60. Obtaining Asylum in the United States, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/obtaining-asylum-in-the-united-states [https://perma.cc/C82Q-NZJB]. “You only can win asylum if at least one of the reasons someone harmed or may harm you is because of your race, religion, nationality, political opinion (or a political opinion someone thinks you have), or the fact that you are part of a ‘particular social group.’” What is Asylum?, United Nations High Comm’r for Refugees, https://help.unhcr.org/usa/applying-for-asylum/what-is-asylum/ [https://perma.cc/2HDJ-DBPS]. ↑

61. U.S. Citizenship & Immigr. Servs., supra note 60. ↑

62. Fact Sheet, Dep’t. Homeland Sec., Dept. Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals, (Jan. 12, 2017), https://www.dhs.gov/sites/default/files/publications/DHS%20Fact%20Sheet%20FINAL.pdf [https://perma.cc/G6FT-KQMV]. This policy was terminated in 2017. Id. ↑

63. Id. ↑

    .

64. The “Migrant Protection Protocols,” Am. Immigr. Council (Jan. 7, 2022), https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols [https://perma.cc/CSD2-QDGZ]. “MPP is distinct from a separate process known as ‘metering,’ whereby U.S. Customs and Border Protection (CBP) officials turn asylum seekers away from ports of entry without processing them or providing any specific date or time to return.” Id. ↑

65. Frequently Asked Questions: “Remain in Mexico” Policy, Justice for Immigrants, https://justiceforimmigrants.org/what-we-are-working-on/asylum/frequently-asked-questions-remain-in-mexico-policy/ [https://perma.cc/PUE7-DF8W]. ↑

66. Id. ↑

    .

67. Id. ↑

68. Id. Biden terminated the first version of MPP; however, MPP 2.0 continues to be in place as of August 2022. Id. ↑

69. Id. While migrants were able to attend a virtual zoom court hearing to make their case for asylum, only 521 people were granted relief through these “tent courts” in Mexico out of the complete 42,012 MPP cases, which is roughly 1.2 percent. Id. ↑

70. Q and A: Trump Administration’s “Remain in Mexico” Program, Hum. Rts. Watch (Jan. 29, 2020), https://www.hrw.org/news/2020/01/29/qa-trump-administrations-remain-mexico-program [https://perma.cc/78CP-X3SY]. ↑

71. Id. ↑

72. Id. ↑

    .

73. The “Migrant Protection Protocols,” supra note 64. ↑

74. Yael Schacher, Witness at the Border: MMP 2.0: Can Inhumane be Less Inhumane?, Refugees Int’l (Dec. 21, 2021), https://www.refugeesinternational.org/reports/2021/12/21/witness-at-the-border-mpp-20-can-inhumane-be-less-inhumane [https://perma.cc/VD3G-V3BP]. ↑

75. The “Migrant Protection Protocols,” supra note 64. By June 2021, over 13,000 asylum seekers had been processed into the United States, refuting the Trump-era rationales for the “Metering” programs and that the CBP did not have the manpower to process all the applications. Id. ↑

76. Id. ↑

77. Biden v. Texas, ScotusBlog, https://www.scotusblog.com/case-files/cases/biden-v-texas-2/ [https://perma.cc/V529-672P]. ↑

78. Amy Howe, Divided Court Allows Biden to End Trump’s “Remain in Mexico” Asylum Policy, ScotusBlog (June 30, 2022), https://www.scotusblog.com/2022/06/divided-court-allows-biden-to-end-trumps-remain-in-mexico-asylum-policy/ [https://perma.cc/P5QH-BR8T]. “The ruling in Biden v. Texas was the latest chapter in the tug-of-war over the policy, formally known as the Migrant Protection Protocol, since the Trump administration announced it in 2018. The justices allowed the Trump administration to begin enforcing the policy after a federal district judge blocked it, and a few months later the justices agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy likely violated both federal immigration and international law.” Id. ↑

79. Pedro Spivakovsky-Gonzalez, “Remain in Mexico” Remains: A View from the Tent Courts in Brownsville, ABA (July 13, 2022), https://www.americanbar.org/groups/public_interest/immigration/generating_justice_blog/remain-in-mexico-remains-a-view-from-the-tent-courts-in-brownville/ [https://perma.cc/Q7UL-K6S5]. ↑

80. A Guide to Title 42 Expulsions at the Border, Am. Immigr. Council (May 25, 2022), https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border [https://perma.cc/NUX2-DGW2]. ↑

81. Id. ↑

    .

82. Id. ↑

83. Id.; see also Deepa Shivaram, What to Know About Title 42, the Trump-Era Policy Now Central to the Border Debate, NPR (Apr. 24, 2022), https://www.npr.org/2022/04/24/1094070784/title-42-policy-meaning [https://perma.cc/T7LU-ETFV]. The Title 42 policy stems from the 1944 Public Health Service Act that “established an administrative structure for the country to deal with national and international health problems that could arise, both in war-time and in peace.” Id. ↑

84. A Guide to Title 42 Expulsions at the Border, supra note 80. ↑

85. Jason Dearen & Garance Burke, Pence Ordered Borders Closed After CDC Experts Refused, Associated Press (Oct. 3, 2020), https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health-4ef0c6c5263815a26f8aa17f6ea490ae [https://perma.cc/N3ZZ-HGGS]. ↑

86. See 200+ Immigrant Rights Organizations Urge U.S. House Leadership to Block Efforts to Extend Title 42 Mass Expulsions, supra note 57. ↑

87. Id. ↑

88. Id. ↑

89. Morocco/Spain: Horrific Migrant Deaths at Melilla Border, Hum. Rts. Watch (June 29, 2022), https://www.hrw.org/news/2022/06/29/morocco/spain-horrific-migrant-deaths-melilla-border [https://perma.cc/E37D-6WWV]; see also A Guide to Title 42 Expulsions at the Border, supra note 80. The MPP and Title 42 often work in conjunction with one another. The United States has negotiated with Mexico to accept asylum seekers while they await a court hearing. “[N]ot all migrants seeking asylum are expelled. Rising numbers of people from countries other than Mexico, Guatemala, Honduras, or El Salvador have been permitted to seek asylum in the United States because Mexico will not allow the Biden administration to expel them back to Mexico.” Id. ↑

90. 200+ Immigrant Rights Organizations Urge U.S. House Leadership to Block Efforts to Extend Title 42 Mass Expulsions, supra note 57. ↑

91. See A Guide to Title 42 Expulsions at the Border, supra note 80. ↑

92. Id. ↑

93. Id. ↑

94. Lomi Kriel & Uriel J. García, Death Is a Constant Risk for Undocumented Migrants Entering Texas, Tex. Trib. (June 28, 2022), https://www.texastribune.org/2022/06/28/texas-migrant-deaths-smuggling/ [https://perma.cc/PEJ2-FMRF].   ↑

95. 200+ Immigrant Rights Organizations Urge U.S. House Leadership to Block Efforts to Extend Title 42 Mass Expulsions, supra note 57. “According to CBP data, the percentage of people who have attempted to repeatedly cross the southern border has jumped by over 385 percent from FY 2019 to FY 2022, from seven percent to 27 percent as of May 2022.” Id. ↑

96. See Kriel, supra note 93.   ↑

97. See id. ↑

    .

98. A Guide to Title 42 Expulsions at the Border, supra note 80. ↑

99. Drishti Pillai & Samantha Artiga, Title 42 and Its Impact on Migrant Families, Kaiser Fam. Found. (May 26, 2022), https://www.kff.org/racial-equity-and-health-policy/issue-brief/title-42-and-its-impact-on-migrant-families/ [https://perma.cc/R3L6-BGTK]. ↑

100. 200+ Immigrant Rights Organizations Urge U.S. House Leadership to Block Efforts to Extend Title 42 Mass Expulsions, supra note 57. ↑

101. Press Release, Mark Kelly, Senator of Arizona, U.S. Senate, Kelly, Sinema, Bipartisan Group of Senators Introduce Bill Delaying End of Title 42, Ensuring Coordination and Communication with Arizona Border Communities (Apr. 7, 2022), https://www.kelly.senate.gov/newsroom/press-releases/kelly-sinema-bipartisan-group-of-senators-introduce-bill-delaying-end-of-title-42-ensuring-coordination-and-communication-with-arizona-border-communities/ [https://perma.cc/636R-W9UN]. ↑

102. A Guide to Title 42 Expulsions at the Border, supra note 80. ↑

103. Uriel J. Garcia, Judge Blocks Biden Administration from Lifting Public Health Order Used to Quickly Expel Migrants, Tex. Trib. (May 20, 2022), https://www.texastribune.org/2022/05/20/title-42-border-judge-ruling-migrants/ [https://perma.cc/QCQ7-U6MZ]. ↑

104. Who We Are, Int’l Rescue Comm., https://www.rescue.org/who-we-are [https://perma.cc/G3A6-ZBUT]. ↑

105. Press Release, Int’l Rescue Comm., Court Injunction to Prevent End of Title 42 Will Continue to Endanger Thousands Fleeing Harm (May 20, 2022), https://www.rescue.org/press-release/court-injunction-prevent-end-title-42-will-continue-endanger-thousands-fleeing-harm [https://perma.cc/J6B7-Q8BN]. ↑

106. Id. ↑

107. Uniting for Ukraine, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/ukraine [https://perma.cc/GHU6-N48B]. ↑

108. Eric Reidy, What the EU’s Policy Toward Ukrainians May Mean for Other Refugees, New Humanitarian (Apr. 21, 2022), https://www.thenewhumanitarian.org/analysis/2022/04/21/what-the-EUs-policy-toward-ukrainians-may-mean-for-other-refugees [https://perma.cc/MW2H-ZMK6]. ↑

109. Id. ↑

110. 200+ Immigrant Rights Organizations Urge U.S. House Leadership to Block Efforts to Extend Title 42 Mass Expulsions, supra note 57. ↑