WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Christian Chavez)

24 Mar 2020 | Commentary

Key Questions About How the U.S.-Mexico Border Shutdown Will Impact Vulnerable Asylum Seekers and Migrants

Washington, D.C.—On March 20, in response to rising concern about the COVID-19 pandemic, the governments of the United States and Mexico reached an agreement to temporarily shut down their shared border to all “non-essential” traffic. Authorities cited a rule by the Centers for Disease Control and Prevention (CDC), requiring the Department of Homeland Security (DHS) “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation.” The partial shutdown will be in place for 30 days, and will then be up for review. 

This will essentially end asylum at the border and exacerbate overcrowding and poor living conditions for migrants and asylum seekers waiting in Mexican border towns, putting this already at-risk population at severe risk should COVID-19 start to spread. 

Those requesting protection at official ports of entry (including those who, due to policies like “metering,” have been waiting for months) will be turned away. Individuals under the “Remain in Mexico” program will face additional months of waiting in Mexican border towns for their asylum cases to move in U.S. immigration courts, as their hearings are postponed. Those who cross in between ports of entry, seeking to be detained by Border Patrol in order to exercise their legal right to ask for asylum, will either be deported back to Mexico or to their country of origin. 

On March 21, Mexico’s Foreign Ministry reported that under the same framework as the “Remain in Mexico” program, Mexico would receive migrants from El Salvador, Honduras, and Guatemala who had been apprehended by the Border Patrol, and analyze on a case-by-case basis whether they would be admitted into Mexico. The Mexican government is estimating that it will receive less than 100 people per day from the United States under this framework, and is excluding from admittance unaccompanied children, the elderly, and other vulnerable people. All other detainees of Central American origin, and all other nationalities, will be deported by the United States back to their countries of origin, the news magazine Proceso reported.

Aggravating dangers faced by migrants and asylum seekers

Much uncertainty surrounds how the partial border shutdown will play out. What’s clear is that severely limiting asylum in response to the COVID-19 pandemic goes against legal guidelines and other recommendations by the United Nations. Human rights groups, including Doctors Without Borders and Physicians for Human Rights, have urged the U.S. government to uphold national and international laws on asylum in responding to the pandemic, noting that “there is no evidence that a ban on asylum seekers would improve public health.”

Over the past three years, Trump administration policies aimed at decimating asylum have created a humanitarian disaster on Mexico’s side of the border, fostering conditions there that could create a public health catastrophe should a COVID-19 outbreak happen. By shutting off access to asylum at the border, returning additional Central American migrants to Mexico, and continuing to deport on average more than 17,000 Mexican migrants per month, the Trump administration is not only aggravating the security dangers that migrants and asylum seekers already face: it is aggravating the overall dangers of the pandemic. 

Questions to ask

This is a fast-changing situation with little historical precedent. Here are some key areas to monitor in the coming weeks: 

1.) What measures exist to ensure the safety, health, and right to due process for migrants who face at least an additional month of waiting in dangerous Mexican border towns for their court hearings scheduled under the “Remain in Mexico” policy? 

Nearly 60,000 asylum seekers have been sent back to Mexican border cities to await U.S. court dates. In a March 23 joint statement, DHS and the Justice Department’s Executive Office for Immigration Review (EOIR) announced that all hearings under the “Remain in Mexico” program are postponed through April 22. 

Asylum seekers will still have to go to ports of entry on the day of their scheduled hearings to get information about their new date. How many could lose their chance at making a case for protection if they fail to receive this information promptly? What will happen if their Mexican visas expire before the rescheduled court date? Further delays in hearings mean asylum seekers will be faced with additional time in dangerous Mexican border towns where they are at risk for assault, extortion, kidnapping, and sexual violence, and where many stay in precarious living conditions.

There is also the question of how lawyers on the U.S. side of the border will coordinate with clients on the Mexican side. Most asylum seekers under the “Remain in Mexico” program already face huge obstacles in accessing legal assistance to help their case: only 5.3 percent of asylum seekers in the program had lawyers through the end of January, compared with 85 percent for all asylum seekers. This will likely become even further restricted as long as the partial shutdown is in place. 

2.) How will authorities help prevent the spread of COVID-19 among migrant populations forced to live in overcrowded encampments, shelters and substandard dwellings along the U.S.-Mexico border? 

Tens of thousands of asylum seekers live in close quarters in tent encampments, mostly privately run shelters, and cheap hotels or rental housing. The camps, which have generated innumerable media images of families living in misery, arose as a direct result of the DHS “Remain in Mexico” and metering policies. 

Sanitary conditions and infrastructure in the camps are particularly poor, and residents must rely on volunteer services to meet basic public health needs. With the border shutdown, many asylum seekers may be forced to remain in the encampments and overcrowded shelters for a longer than intended period of time. And while there are not yet any confirmed COVID-19 cases in the encampments, this appears to be a matter of time. 

An outbreak could have a devastating effect. For some asylum seekers—most of whom have homes and family members with whom to shelter if paroled into the United States—being made to “remain in Mexico” could end up being a virtual death sentence.

3.) Will a partial border shutdown benefit smuggling operations at the border? 

A major risk is that a long-term border shutdown could inadvertently benefit smugglers and push more migrants and asylum seekers into using their services. This could result in more attempts at crossing the border in remote and dangerous areas to avoid apprehension, rather than turning themselves willingly to U.S. authorities to seek protection. The potential result could be more deaths of dehydration and exposure in U.S. desert and wilderness areas.

4.)  What measures is the Mexican government adopting to ensure the safety and health of migrants kept in Mexico’s notoriously “hellish” and overcrowded detention system?

U.S. deportations of asylum seekers could lead to a significant increase in the size of migrant populations already in Mexico. Shelters will need additional resources to prepare for this. Otherwise, some may be forced to stop accepting new arrivals. If that happens, detention centers in Mexico—which are already potential petri dishes for coronavirus—could soon see even more crowded facilities. 

Human rights and migrant rights groups in Mexico have frequently raised concerns about reported hellish conditions in Mexico’s overcrowded detention centers. Given the risks of the coronavirus, Mexican civil society organizations are calling on the government to cease detaining immigrants, release migrants held in the detention centers and implement alternatives to detention, and to ensure that the processing of asylum claims limits overcrowding in Mexico’s refugee agency’s offices, among other measures.