WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Daniel Ochoa de Olza)

25 Jan 2019 | Commentary

New “Migrant Protection Protocols” Ignore U.S. Legal Obligations to Asylum Seekers and Exacerbate Humanitarian Border Crisis

Adam Isacson, Maureen Meyer, and Adeline Hite

On Friday, the Trump administration announced it would begin implementing a policy at the southern border that forces many non-Mexican asylum seekers to wait in Mexico while their case moves through U.S. immigration courts. This most recent action to impede due process for asylum seekers is a futile, senseless policy that will leave already vulnerable asylum-seeking refugees even more susceptible to danger.

Over the last year, the Trump administration has tested a variety of cruel, illegal policies to “deter” refugees from seeking asylum in the United States. Despite tearing apart families and holding more asylum seekers in prolonged detention, these policies have not reduced the number of people arriving at our border and have only caused chaos and suffering. As WOLA documented during the family separation crisis, migration statistics have disproved the deterrence philosophy time and time again. Extreme conditions of violence, corruption, and poverty in Central America force thousands of families to seek protection that their countries are either unable or unwilling to provide.

Under the announced “Migrant Protection Protocols,” individuals entering the United States at the official ports of entry without proper documentation, or who are apprehended between the ports of entry, will be returned to Mexico to wait out their immigration proceedings. Launched on January 25 as a pilot program at the San Ysidro port of entry, the program will initially apply to those who are requesting asylum at this port. This includes thousands of Central Americans and asylum seekers of other nationalities who have been waiting months in Tijuana for an appointment with U.S. officials. According to news reports, these individuals will not be screened for asylum; rather, they will be given a notice to appear before a U.S. immigration judge in 45 days.

Is Mexico prepared to host hundreds of thousands of people for what could be years because the Trump administration refuses to invest in a more efficient asylum system?

According to the Department of Homeland Security (DHS), unaccompanied minors will not be returned to Mexico. Individuals who are able to prove to U.S. officials that they have fear of persecution or torture if they remain in Mexico will not be returned, but it is likely that the burden of proof for these claims will be high. Other vulnerable individuals will also be allowed to stay on a “case by case” basis. Mexican officials are working with U.S. officials to determine criteria for these cases.

There have been sharp divisions among Mexican officials about this program. The head of Mexico’s National Migration Institute (INM), Tonatiuh Guillen, stated that Mexico does not have the capacity to support tens of thousands of U.S.-bound asylum seekers for months or years.  For its part, the Mexican Foreign Ministry (SRE), which has been at the forefront of the talks with U.S. officials, said it will receive certain individuals from the United States as a humanitarian gesture and on a temporary basis.

As an organization that works on U.S. migration and border security policy and the situation of migrants in transit in Mexico, we outline below our main concerns about this program.

  • The sheer numbers of non-Mexican asylum seekers will quickly overwhelm Mexico.

During fiscal year 2018, U.S. Citizenship and Immigration Services (USCIS) administered preliminary asylum screenings, known as “credible fear interviews,” for 92,959 migrants seeking protection in the United States who arrived at the southwest border. Over the past several years, about 80 percent of applicants have passed their credible fear interviews. At that rate, of last year’s applicants alone perhaps 75,000 people (minus a few thousand Mexican citizens and others who are deemed vulnerable) might potentially have been sent back to Mexico to await their asylum decisions, had “Migrant Protection Protocols” been in place.

The actual number that could be shipped back to Mexico, however, may be higher given the backlog in administering credible fear interviews. “In 2017, the majority of families seeking asylum at the U.S. border were released into the country without first going through the credible-fear interview,” Jonathan Blitzer reported in the New Yorker this month. “They weren’t detained long enough for that to happen, and ICE had nowhere to put them,” an unnamed Trump administration official told Blitzer. (Those released without undergoing the credible fear interview at the border would have to undergo the screening process with an asylum officer at a later time).

It is outrageous to expect individuals fleeing violence and persecution in their home country to wait months or years in places that are not safe.

Indeed, in fiscal year 2018, U.S. Customs and Border Protection (CBP) reports that 127,759 family-unit members from Central America’s Northern Triangle were apprehended at the U.S.-Mexico border, or presented themselves at U.S.-Mexico border ports of entry. Sending even half of this amount of asylum seekers back over the border, plus individual men and women from Central America and elsewhere who are presenting themselves for asylum at the U.S. border, would place an enormous burden on Mexico.

  • It is not clear how long these asylum seekers would have to remain in Mexico.

Because the U.S. Justice Department employs only 395 immigration judges, the current backlog in U.S. immigration courts has reached over 800,000 cases. As a result, those who enter into the U.S. asylum system are now usually being given initial hearing dates in late 2021 at the earliest, and often for 2022 or 2023. Researchers estimate, meanwhile, that each week of the government shutdown is adding thousands of cases to this backlog.

According to media reports, DHS hopes that although individuals may need to be bused to the United States multiple times for their hearings, cases will be resolved within a year.  However, it is not clear if this means that these cases will be streamlined at the expense of other pending cases. Forcing asylum seekers to make their cases from Mexico will also severely limit their access to legal counsel to assist them in their cases. A 2015 study by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) 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. This level of uncertainty about how long asylum seekers will be living in Mexico will also impact their ability to secure a job and adequate housing and services.

Is Mexico prepared to host hundreds of thousands of people for what could be years because the Trump administration refuses to invest in a more efficient asylum system? How will Mexico manage these new arrivals along with the thousands of Mexicans who are deported from the United States every month?

  • Mexican border cities may not be safe for many asylum seekers.

The Migrant Protection Protocols program also ignores the reality that Mexican border cities present many of the same challenges that Central Americans flee. In Mexico, migrants are frequent targets of kidnapping, extortion, and other crimes at the hands of organized criminal groups and corrupt police and migration authorities. Mexico has just experienced its most violent year to date and some of its border cities are among the most violent in the country. In Tijuana, the Mexican city adjacent to the San Ysidro port, violence is at its peak. Two Honduran young men traveling with the migrant caravan in the fall were murdered in Tijuana in December.

It is outrageous to expect individuals fleeing violence and persecution in their home country to wait months or years in places that are not safe. While the Protocols affirm that someone with fear of remaining Mexico will be able to continue with their proceedings from the United States, it is not clear what criteria will be used to assess these cases.

  • “Migrant Protection Protocols” unfairly passes the cost of administering asylum cases to Mexico.

The Trump administration is operating under the false claim that immigrants “cheat the system” by avoiding their court dates. However, the vast majority of immigrants comply with their court orders, and that number increases if the person has access to legal services.

With about 60 percent of migrants now children and families, the United States needs to adjust to a new reality at the U.S.-Mexico border. We are receiving dramatically more asylum-seeking children and family members from Central America, and there is no sign that this wave is abating. Rather than enacting cruel and draconian enforcement measures or passing the buck on to Mexico, we need to adjust to the radically changed profile of migration.

Adjusting would mean increasing capacity at ports of entry to receive asylum seekers, expanding more robust alternatives-to-detention programs, and hiring more immigration judges while guaranteeing due process and access to legal services.

Instead, though, the “Migrant Protection Protocols” policy maintains our asylum system’s current inefficiencies while passing the costs on to Mexico.

  • “Migrant Protection Protocols” present no long-term solution to address root causes of migration.

The majority of Central American children and families approaching the border originate from Guatemala, a country facing a spike in violence and threats against those in primarily poor, rural, and indigenous communities lobbying for land rights. The country is also teetering on a constitutional crisis, due to President Jimmy Morales’ ongoing efforts to eject an international anti-corruption body which is investigating the president and his allies.

Neighboring Honduras and El Salvador continue to register some of the highest homicide rates in the world. In El Salvador, authorities recorded over 200 murders in the first 20 days of 2019. Corruption and drug trafficking scandals have reached the highest levels of the Honduran government; drought and flooding in rural parts of the country have paralyzed agricultural communities. Over two-thirds of Hondurans live in poverty.

Rather than enacting more cruel and ineffective deterrence policies, or threatening to eliminate funding to Central America, the U.S. government should commit to supporting initiatives that improve the conditions driving people to migrate.

While Trump’s demands for a wall and beefed-up security at the border have forced hundreds of thousands of federal employees to work without a paycheck, simultaneously, his administration has created a bureaucratic, legal, and humanitarian nightmare for officials at the U.S.-Mexico border. The Trump administration should immediately back down from this illegal policy. Mexico should actively resist strong-arming by the Trump administration, while developing migration processes that will cause the least harm to vulnerable asylum-seeking populations.