WOLA: Advocacy for Human Rights in the Americas

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6 Apr 2020 | Commentary

The Trump Administration’s COVID-19 Response at the Border Puts Us All At Risk

The Trump White House’s immigration extremists are using the COVID-19 emergency to enact their entire dark, paranoid vision for the border and immigration. This isn’t what Americans want, nor could it ever get through Congress and the courts.

What’s happening goes beyond the common-sense measures necessary to halt the cross-border spread of coronavirus, like temporarily shutting borders to non-essential traffic. In fact, some of what the administration is implementing right now risks worsening the pandemic at home and exporting it to other countries.

Taken together, the outrages make for a list that’s hard to read. But please try to go through the following, without flinching, because the whole country needs to know that this is all happening at once.

Border wall construction is still proceeding 

Barriers are being built as we speak, despite the emergency. Three-quarters of the money paying for it was obtained not from Congress but by raiding the defense budget: $13.9 billion that right now could be paying for a host of more urgent emergency needs. 

The wall-building is happening especially in biodiverse and environmentally fragile areas like the New Mexico-Arizona Sky Island region, and Arizona’s Organ Pipe Cactus National Monument. On March 16, the Department of Homeland Security (DHS) announced that it will waive dozens of longstanding environmental laws, from the Clean Water Act to the Endangered Species Act, to build new barriers as fast as possible.

These are sparsely populated territories (which makes wall-building even more pointless than usual), so the Homeland Security Department’s contractors are importing workers from elsewhere. These workers live and eat in close quarters for days at a time, then scatter back to their home communities around the country. Wall construction is a robust potential disease vector, and the administration refuses to cut it off. 

The Pentagon is sending more troops 

Even though the number of undocumented migrants has dropped by three-quarters since last May, about 540 active-duty military personnel are headed to the border. A U.S. official told Reuters that the troops are needed because “the Trump administration worries the pandemic could further depress Mexico’s already troubled economy and encourage illegal immigration.” 

The troops will increase an already existing military presence of as many as 5,000 along the border, including about 3,000 National Guardsmen, who carry out logistical and planning duties, perform some construction (including busywork like painting parts of the border wall), and include a contingent of military police. The 540 new troops are part of about 5,000 active-duty personnel whom Trump deployed to the border in October 2018 in response to a migrant “caravan.” That force remains largely at its home bases elsewhere in the United States, but is kept prepared to be sent back to the border at a moment’s notice. The Trump administration deployed 160 military police from this force to the border in early March in response to the 9th Circuit Court of Appeals’ decision to overturn the program requiring asylum seekers to “Remain in Mexico,” which the Supreme Court ultimately put on hold.

This deployment is costly: maintaining 5,000 troops both at the border and in a ready state at their bases has cost over $500 million since October 2018. It is also with very few precedents: since the 1878 passage of the Posse Comitatus Act, there are extremely few examples of this many U.S. troops operating for this much time on U.S. soil. Though the Defense Department has taken pains to minimize the troops’ contact with citizens, this highly politicized deployment sets a troubling precedent for the future of democratic civil-military relations in the United States.

The end of the right to asylum

The administration’s COVID-19 border measures are also raising urgent humanitarian concerns. U.S. law makes no exceptions to the duty to take in, and give a fair hearing to, people who need protection from threats to their lives in their countries of origin. But the COVID-19 response has been the last, and most severe, of a series of measures that have illegally ended the right to asylum at the border.

Right now, under a secretive policy that Border Patrol calls “Operation Capio,” more than 85 percent of those without proper documents who arrive at the border, whether at a port of entry or in the areas between, are being turned back to Mexico or their home countries. (The rest are citizens of countries other than Mexico or Central America’s Northern Triangle region). They get fingerprinted in the field and escorted back across the border. They are not asked if they have protection concerns. If a migrant “spontaneously” expresses fear of being tortured if expelled, it falls to a Border Patrol supervisor—not a trained asylum officer—to judge whether the migrant is credible.

The Mexico turnbacks are happening in an average of 96 minutes, without the opportunity to petition for asylum. Mexico is taking back not only its own citizens, but nearly all Salvadorans, Guatemalans, and Hondurans whom U.S. authorities are pushing back across. This has happened to over 7,000 people just between March 20 and the beginning of April.

An important number of the people whom the administration is expelling face specific threats and could die after being returned. Turning back threatened people, a basic human rights violation known as “refoulement,” is a direct violation of the Refugee Act of 1980 and of international law. It’s exactly what four UN agencies, in a March 31 statement, said countries should not do during the COVID-19 outbreak: “While countries are closing their borders and limiting cross-border movements, there are ways to manage border restrictions in a manner which respects international human rights and refugee protection standards, including the principle of non-refoulement, through quarantine and health checks.”

Turning back unaccompanied children

These summary turnbacks are happening to unaccompanied children as well. Right now, the number of unaccompanied children per day admitted into the Office of Refugee Resettlement’s custody, as required by law after Border Patrol or CBP apprehends them, has fallen to nearly zero. Instead, nearly all are being put on planes back to Central America without a chance to ask for protection. 

This is in direct violation of the 2008 Trafficking Victims Protection Reauthorization Act, which states that all unaccompanied children from non-contiguous countries must be admitted and given an asylum hearing, because they could be trafficking victims. The Trump administration’s hardliners have always opposed this provision, and now they are violating it in the name of pandemic response. “Children do not have to be put in harm’s way to protect us from the coronavirus pandemic. DHS has the ability and capacity to protect both these children and the public,” four Democratic House and Senate committee and subcommittee chairs wrote in a March 30 letter to DHS, requesting that the Department “stop this practice immediately.”

The White House is claiming that it can turn children and asylum seekers back because a 1944 law (Title 42 U.S. Code Section 265) allows U.S. authorities to “suspend the right to introduce” people “in the interest of public health.” This law doesn’t include any language, like “notwithstanding any other provision of law,” giving it supremacy over other laws, like those obligating the United States to offer threatened people the opportunity to seek asylum. That’s just how the Trump administration is interpreting it right now.

Deportations haven’t stopped 

Deportations are continuing, with only minimal screening to ensure that the United States isn’t sending infected people back into countries with very weak public health systems. 

ICE has been sending about one planeload of deportees every day or two back to El Salvador, Guatemala, Honduras, and possibly elsewhere. Before boarding the plane, deportees are checked for fevers, and that’s about it, so there is a very high likelihood of sending back people who are infected with COVID-19 but asymptomatic. 

On March 31, a 29-year-old Guatemalan deportee who had fallen ill shortly after his return tested positive. Forty-one other deportees were with him on the same ICE flight back to Guatemala, and Guatemala-based reporter Jeff Abbott tallied 642 deportees sent to the country between March 19 and March 30. 

In Matamoros, Mexico alone, deportations of Mexican citizens have risen to about 100 per day, about double the normal number. 

The nations of the Northern Triangle are claiming a total of only about 300 coronavirus cases so far, and have shut their borders to all but their own returning citizens, among them deportees. While 300 is probably an undercounting, it means that every few infected deportees the U.S. government sends back—after being in close-quarters detention and on aircraft—increases these countries’ number of coronavirus cases by a significant percentage. The government of Guatemala is imploring the U.S. government to stop the flights for now; as of April 1 it had not received a response.

Repatriation agreements suspended

U.S. and Mexican authorities have partially suspended Local Repatriation Agreements meant to protect deportees, allowing deportations and expulsions of Mexicans, and some Central Americans, to happen at any time of the day or night at the U.S.-Mexico border. Migrants, including asylum seekers and people arrested in the U.S. interior, may be dumped into some of the most dangerous Mexican border towns in the middle of the night, where they are sitting ducks for kidnappers and other organized crime groups that prey heavily on migrants.

“Remain in Mexico” hearings delayed

Tens of thousands of people waiting in these same border cities for asylum hearings under the “Remain in Mexico” program are having these hearings postponed until after May 1. U.S. authorities are not allowing them to enter the United States to await these hearings while sheltering with family members. They still have to show up at border crossings on their assigned hearing dates, only to be given a piece of paper with a new hearing date farther into the future. Then they must return to where they have been forced to live while awaiting their turn. 

Many are packed into substandard housing, in close proximity to people who may be infected. Many are crowded into shelters run by charities, some of which are closing their doors out of health concerns.

The worst-off are subsisting in tent cities—the largest, in the city of Matamoros, Mexico, has about 2,500 people awaiting their turns to pursue their asylum cases—with poor sanitation and little clean water with which to wash their hands. Matamoros has only 10 ventilators and 40 intensive care unit beds available, Foreign Policy reports. Coronavirus will cut through these asylum-seeking populations like a chainsaw, and when it does, the Trump administration’s relentless pursuit of “Remain in Mexico” and “metering” will be to blame.

Crowded detention centers

ICE’s network of mostly privately run immigration detention centers remain quite full, and the agency has not changed its detention practices. As of the end of March, the Los Angeles Times reported, there were 6,166 asylum seekers among a total detained population of 38,058. More than 60 percent of those in detention have no criminal convictions on their records. 

During the Obama administration’s second term at least, many or most would have been released to family members—where today, they could practice social distancing—to await verdicts on their status. Instead, many of the ICE facilities keep detainees in common rooms with bunk beds close together.

We’re seeing the first COVID cases at detention centers, including at least four detainees and five detention facility employees, among them an employee at the Otay Mesa center along the border near San Diego. Medical care is notoriously substandard, and at least 10 migrants have already died in ICE custody (of non-COVID-19 causes) since October.

ICE has discretion to parole most detainees, but refuses to do so. At a March 11 congressional hearing, Rep. Grace Meng (D-New York) asked ICE Acting Director Matt Albence whether he would consider releasing some of the most at-risk detainees, like the elderly or people with other medical conditions. Albence flatly refused: “The people that we have in detention are there because they’re public safety threats or flight risks.” 

ICE appears determined not to use its discretionary power even to release at-risk, non-criminal detainees to their families. For too many people, waiting in detention for an asylum decision or other resolution to their migration situation could prove fatal.

Mexico’s migration crackdown

Mexico’s crackdown on migration, spurred by a mid-2019 Trump threat of tariff increases, continues apace. Mexico’s own migrant detention centers continue to be about half full nationwide, with migrants remaining at close quarters, and those near the Guatemala border are likely more crowded than the national average. 

In recent days, migrants confined in these spaces have protested conditions, worried about the likely spread of COVID-19. Guards, including members of the Lopez Obrador government’s newly created National Guard, have met them with truncheons, tasers, and pepper spray.

“Agents dragged the people to the bathrooms, where there are no security cameras, and as a punishment and applying absolutely disproportionate violence, National Guard elements beat people and put them on a bus with an unknown destination,” writes Mexican rights advocate Ernesto López Portillo about what happened after migrants protested the possibility of coronavirus infection on March 23 at the Siglo XXI detention center in Tapachula, near the Guatemala border. On March 31, Hector Barrientos, a 42-year-old Guatemalan who was about to be released along with his wife to pursue his asylum case in Mexico, died in the Mexican National Migration Institute’s (INM) Tenosique detention center; detainees concerned about infection protested, a fire broke out, and guards blocked the doors. On March 19, more than 100 Mexican human rights and migrant rights groups demanded that Mexico halt the practice of migrant detentions for the duration of the COVID-19 emergency.

Looking ahead

So far, the administration has made only two common-sense adjustments to its hardline policies in response to COVID-19. 

First, ICE has halted most raids and arrests of migrants without criminal records while the emergency continues. That policy was the norm during the Obama administration’s second term, but incredibly, it has earned ICE Acting Director Matt Albence, who is no immigration moderate, withering criticism from the political right. 

Second, for now the U.S. government has suspended its so-called “Asylum Cooperation Agreement” in which it was sending Salvadoran and Honduran asylum-seekers directly to Guatemala to go apply for protection there. Though deportation flights to Guatemala are continuing, all aboard ICE’s planes right now are Guatemalan.

Thank you for getting all the way through that gruesome list. We’re seeing this sort of thing around the globe, from Hungary to the Philippines to our own Justice Department to the many Latin American nations where soldiers are patrolling the streets at this very moment. Leaders with autocratic urges are seizing the COVID-19 emergency as an opportunity to pursue their larger political agendas, without discussion, debate, or oversight. What we’re seeing right now are the border and migration policies that Trump and Miller have wanted to pursue since the days when Steve Bannon was helping write the White House’s first travel bans and executive orders. They’re riding in on the back of a historic public health crisis.

What is happening now at the border, in our detention centers, and in Mexico and Central America are the sorts of things that kids will read about in their history textbooks generations for now, like the Trail of Tears or the Japanese Internment. Our future as a country that values freedom and human rights depends on us making sure these measures are temporary, and completely turned back as soon as possible.

And even before that, it’s essential that human decency trump political grandstanding when human lives are at stake on U.S. soil. ICE doesn’t need to hold this many people right now. Asylum seekers and unaccompanied children don’t need to be summarily turned back. Tent encampments and other close-quarters facilities in Mexican border cities don’t need to exist. The wall can wait (forever). An emergency requires compassion and common sense, not a lashing-out against the most vulnerable.

There are things that we can do now, while sheltering in place. We need to keep informing, outraging, and prodding Congress to act: they are out of session until at least April 20, but the staffers who are supposed to carry out oversight are still working from their homes. We need to keep alerting the media (and social media) about every violation of the law and of human rights standards, and do our utmost to make sure that the human impact of what’s happening now is a matter of general public knowledge. 

The worst thing we can do right now is allow the brutal consequences of the Trump border-migration agenda to remain in the dark because of distraction, obfuscation, or short-term news-cycle memories. We must keep shining a bright light. If we don’t, the Trump-Stephen Miller agenda will kill people at the border, in our detention facilities, and in deportation destination countries.

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