WOLA: Advocacy for Human Rights in the Americas

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21 Feb 2017 | Commentary

The Impact on Asylum Seekers at the Border


This article is part of WOLA’s “Beyond the Wall: Migration, Rights, and Border Security” initiative, which addresses the impact of Trump administration policies with fact-based analysis, alternatives, and advocacy strategies.

Increasing Restrictions for Asylum Seekers at the Border

The Border Security and Immigration Enforcement Improvements executive order, signed by President Trump on January 25, calls for an increase in detention centers at the U.S. border and the detention of all migrants who have violated immigration law while they await their immigration hearing. Guidelines for implementing this executive order were included in a memorandum by Secretary of Homeland Security John Kelly on February 20. Expanded detention is meant to put an end to what Border Patrol agents have termed “catch and release,” where migrants are released after they are apprehended while they await their immigration hearings. However, in recent years, the majority of migrants released after detention at the border have been asylum seekers, primarily woman with children and other family units, who are released on their own recognizance or given GPS tracking ankle monitors after they have been processed and given a Notice to Appear for their immigration proceedings. While critics say that the current policy allows these migrants to stay indefinitely in the country given the backlog in immigration cases, they overlook the fact that the majority of released individuals have experienced severe violence and persecution in their home countries and are seeking asylum in the United States. According to a United Nations High Commissioner for Refugees (UNHCR) analysis of credible fear screenings carried out by U.S. asylum officers, over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border “were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.”

DHS’ memorandum stipulates that until there are “appropriate processing and detention facilities,” migrants who have established “credible fear” of persecution or torture can be released, provided that they prove they do not present a security risk or risk of absconding, and that they comply with other conditions of release. This temporary exception for asylum seekers is important but not permanent.

As WOLA has highlighted previously, indefinitely detaining asylum seekers, many of whom are victims of horrific violence, and holding them in prison-like conditions further traumatizes them and limits their access to legal counsel. The impact on children is particularly acute and there are legal limits on how long children and their parents can be detained. In July and August 2015, District Judge Dolly Gee ruled that the family detention policy violated the 1997 Flores Agreement, which says that U.S. authorities should hold undocumented children in the least restrictive setting possible and favor releasing them. Judge Dee’s ruling stipulated that the parents of children should be released as well unless they present a flight risk or danger to the community, and indicated that, in individual cases in “emergency” situations, a family could only be held for 20 days. On September 30, 2016 the Advisory Committee on Family Residential Centers, created by the Department of Homeland Security (DHS) in 2015, also recommended that DHS discontinue the use of family detention and that enforcement efforts operate under the “presumption that detention is generally neither appropriate nor necessary for families.”

Apart from the legal restrictions and concerns for family detention highlighted above, detaining any individual apprehended at the border for “illegal entry” may also deter many people with legitimate asylum claims from seeking protection in the country. These individuals may put themselves at risk by traveling through remote parts of the border to avoid detection or by contracting the services of human smugglers who are more concerned about their profit than the migrants’ well-being. Detention also limits access to legal representation. A 2015 study showed that, without legal representation, only 1.5 percent of women with children who had passed their credible fear interviews were given asylum in the United States. There is also the immediate challenge of space. While temporary detention centers have been stood up in the past—including Artesia, the widely criticized site of the Federal Law Enforcement Training Center—to hold migrant women and children, there are currently very few detention centers to hold families. The three that exist, in Berks County, Pennsylvania (96 beds); Karnes, Texas (532 beds); Dilley, Texas (2,400 beds) would not have the capacity to hold all the migrant families crossing the border to seek protection, even temporarily, let alone for the duration of their immigration hearings. Congress would also need to authorize funding for building additional detention centers or contracting with private prisons to hold other asylum seekers who turn themselves in to CBP agents at the border. A 2014 Senate report found that on average it costs US $266 per day to hold a migrant in detention, while alternatives to detention, defined as more humane and cost-effective measures such as ankle bracelets to ensure that individuals appear for their immigration hearings, cost on average $7 a day per migrant.

Overwhelming Mexican Border Towns

In 2016, several Mexican border towns experienced a significant increase in transcontinental migrants, particularly from Haiti, who spent weeks and months on the Mexican side of the border while they waited for an appointment with Customs and Border Protection (CBP) to request humanitarian parole or asylum. As several organizations including WOLA highlighted in a hearing request to the Inter-American Commission on Human Rights (IACHR), advocates have also observed CBP offices turning away asylum seekers, particularly those from Mexico and Central America, at certain Ports of Entry, and coordinating with Mexico’s National Migration Institute (Instituto Nacional de Migración, INM) to determine appointments with U.S. agents.

While Mexican border towns bear the burden of asylum seekers who are hoping to get an appointment with CBP or whose interview is months away, the executive order on border security and accompanying memorandum call for the return of migrants who are detained at the border back to the country “from which they arrived, pending a formal removal proceeding.” While DHS argues that this practice would save detention and adjudication resources, it makes no mention of how this practice could impact Mexican government services and border towns which, could face thousands of non-Mexican immigrants waiting on the Mexican side of the border for a hearing in the United States.

Likewise, the Enhancing Public Safety in the Interior of the United States order could dramatically increase the number of Mexican migrants who are deported to Mexican border towns. The order calls for the hiring of an additional 10,000 Immigration and Customs Enforcement agents and a change in the categories of immigrants who are considered priorities for deportation with wording is so broad that it gives ICE agents the power to deem any undocumented immigrant a priority. It also calls for cancellation of federal funds to sanctuary cities, reestablishment of Secure Communities, and the promotion of other agreements to increase state and local law enforcement collaboration with DHS to identify undocumented migrants who may then be deported. These changes are so broad that anyone who is not authorized to be in the United States can be deemed a priority for removal and labeled a “criminal.” Indeed, the memorandum to accompany this executive order explicitly states that “criminal aliens are a priority for removal.”

In recent weeks there have been reports of increased raids by ICE in areas with a high concentration of undocumented migrants. This increased enforcement will tear apart many families of mixed immigration status. Expedited removal proceedings for individuals detained for violating immigration law will likely present due process concerns. It has also created a climate of fear within immigration communities, including children who are afraid to go to school because they think they will be detained.

Given the mass deportations that occurred during the Obama administration, the Mexican government has increased its efforts to provide information and services to its citizens in the United States and to receive deported migrants at the border. In 2014 it was estimated that 5.8 million of the unauthorized migrants living in the United States were Mexicans—52 percent of the total. While the number of unauthorized Mexicans in the United States has dropped significantly in recent years, another large wave would undoubtedly strain the Mexican government and civil society services. Apart from basic reception services provided by the INM’s Humane Repatriation Program (Programa de Repatriación Humana), most of the burden of attending to the repatriated population at the border falls on migrant shelters, often run by the Catholic Church, other non-profits that support this population, and some state and local governments. Many shelters, particularly in Tijuana and Mexicali, are currently overwhelmed with Haitians and other transcontinental migrants, and other border towns, such as Reynosa, are reporting an increase in Central American migrants staying in the city before they turn themselves in at the port of entry or attempt the crossing. This glut will be exacerbated if DHS beings to return other migrants to Mexico while they await their removal proceedings. A significant increase in deported Mexican migrants will place great strain on these services. As WOLA has reported previously, these migrants, especially Mexicans who have spent many years in the United States and have no ties to the local community, are also at great risk of being targeted by criminal groups for robbery, extortion, and kidnapping.

If there is a significant increase in the deportation of Mexicans, it will be important for DHS to work with Mexican authorities to respect the local repatriation arrangements (LRAs) that were agreed upon by both governments in February 2016. The new arrangements curtail the practice of night deportations, require U.S. agencies to “take all feasible steps to ensure that property, valuables, and money” confiscated from detained migrants are returned prior to repatriation, and affirm both countries’ commitment to protect unaccompanied migrant children. The LRAs are important to ensure a safe and orderly repatriation process.

Returning Central Americans to Danger

As all undocumented migrants in the United States are now a priority for removal, Central American families are also at risk. Apart from the challenges facing recent border crossers who are seeking protection in the U.S., increased enforcement and raids will likely sweep up many migrant families and return them to their home countries which have become some of the most violent countries in the world in the past decade. In 2015, the United Nations’ refugee agency reported that children deported from the United States back to Central America had been attacked, killed, and disappeared. That is still very much true today.

In the past two years, over 33,000 people have been murdered in Honduras, Guatemala, and El Salvador. This number does not include the hundreds of thousands who came to the United States fleeing for their lives, or the thousands that escape it daily by giving over half their salaries to street gangs, corrupt police, or private security guards.