At a recent hearing before the Inter-American Commission on Human Rights, the KBI’s Joanna Williams joined representatives from other immigrant advocacy groups to present evidence of obstructive actions and other abuses faced by those requesting asylum in the U.S.
At the recent Inter-American Commission on Human Rights hearings in Washington, D.C., the Kino Border Initiative offered testimony on ways in which U.S. border policies and practices prevent asylum seekers from making claims and building successful cases for credible fear. Broadly, these include turning away refugees at the U.S.–Mexico port of entry, separating families, and subjecting detainees to prolonged detention and inhumane conditions in Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) facilities. Director of Education and Advocacy Joanna Williams presented evidence on abuses and negligence by the CBP, collected from migrants who visited the KBI comedor and stayed at the shelter in 2016. Based these reports of abuse and poor conditions, the KBI filed 22 complaints with the CBP on behalf of migrants (14 of them cited in Joanna’s testimony).
Over five days, the IACHR conducted 40 hearings, each directed at a particular member state who sends one or more representatives to respond, make a statement, or take notes. The hearing in which the KBI participated, entitled “Policies that Prevent Access to Asylum in the U.S.,” was requested by fourteen human rights and immigrant advocacy groups, and was one of three hearings that named the U.S. as the state in question. For all three, the U.S. failed to appear, phoning the day before to bow out and following up with a written statement asserting that attendance was inappropriate because the subjects covered in the hearings were currently being litigated. To put this in context, failure to appear is extremely rare, occurring only a handful of times in the history of the hearings. Over the past two decades, the U.S. itself has always sent a representative to IACHR hearings—even during potentially contentious hearings about racial discrimination in the criminal justice system or treatment of prisoners at Guantanamo Bay—until now.
To provide some background on the role of the IACHR, it is an arm of the Organization of American States, charged with promoting and protecting human rights in the Americas. In addition to fostering cooperation and solidarity among its 35 member states, the IACHR monitors human rights situations in these regions by holding periodic hearings, conducting site visits, organizing fact-finding missions, and distributing press releases on urgent issues. While the IACHR has no enforcement power, much like the United Nations, its influence arises from the moral weight of its charter, the collective consensus behind its mission, and its high-profile ability to exert international pressure on states in violation of human rights standards.
For these reasons, the KBI and the other petitioning organizations requested a hearing to raise awareness about the human rights violations affecting asylum seekers, an issue that has become more urgent and distressing over time. Joanna’s contribution to the hearing appears below, and specifically covers abuses and poor conditions in CBP facilities, inadequate training of officers, and willfully ignored asylum claims. For anyone unfamiliar with the intimidating bureaucracy and abusive practices faced by many asylum seekers, it is an eye-opening deposition. (You can watch the entire hearing at: https://www.youtube.com/watch?v=h2WzxKDctHM; Joanna’s testimony begins at 19:30.) It is important to remember that individuals and families from other countries have a legal right to seek asylum in the U.S. The KBI stands by these refugees, and with its partner organizations, strives to ensure their protection, access to due process, and recognition of their human rights and dignity.
ABUSIVE CONDITIONS AND TREATMENT WITHIN CBP FACILITIES:
In addition to separation of asylum-seeking families, we also have long-standing concerns about abusive conditions and treatment of individuals in Customs and Border Protection (CBP) facilities. There are three key areas within this concern: first, the very environment of holding cells is hostile to asylum claims; second, CBP officers and agents are not trained to screen individuals seeking protection; and third, CBP officers and agents willfully ignore or discourage asylum claims. At the Kino Border Initiative, we hear of these issues directly from recently deported Mexicans in our aid center in Nogales, Sonora.
CBP holds individuals for days in sparse holding cells as they are processed for expedited removal. The environment is inherently intimidating, lacks privacy, and is not conducive to vulnerable individuals reporting fear of return. Agents themselves frequently ignore expressions of fear or discourage individuals from pursuing asylum claims. Fourteen percent of men and twenty percent of women report experiencing verbal abuse while in CBP custody. Recent initiatives, such as the Alien Smuggling Incident Team, focus on pressing individuals to provide testimony against their smugglers and do not screen individual fear. For example, four women fleeing gender-based persecution from an indigenous region of Oaxaca were held for a month as material witnesses in the beginning of 2017 and were then removed without ever being asked about fear of return.
CBP agents do not receive training to adequately screen individuals fleeing persecution. Agents are not trained in trauma awareness, and frequently male agents interview female migrants. Non-Spanish speakers only receive eight weeks of language training at the Border Patrol Academy, which is inadequate for agents to understand the subtlety of expressions of fear. CBP rarely if ever uses interpretation into indigenous languages, although it is theoretically possible through telephone language services. Agents frequently give inaccurate information to asylum seekers. For example, organizations, including the KBI, have documented instances where agents have told individuals that Mexicans do not qualify for asylum, or Border Patrol informed individuals that they must present at the port to seek asylum. The planned rapid expansion of CBP—by hiring 5,000 more agents—will unfortunately preclude better training of agents in these critical areas, and we are concerned that standards will be lowered to increase hiring.
Despite repeated recommendations from NGOs (non-governmental organizations), CBP does not perform spot checks on compliance with their obligation to refer individuals to asylum interviews if they express fear. When CBP agents document responses to questions about fear on form I-867, the information often contradicts what the individual says. Those inaccuracies create serious challenges later in the asylum process, especially given the recently heightened standards for credible fear interviews. Most of the fourteen complaints filed by the Kino Border Initiative on behalf of migrants removed to Mexico despite fear of return have been investigated by the local station management and not by the Office of Professional Responsibility. CBP does not use video recording nor undercover spot inspections, which would provide a more accurate measure of compliance than agent testimony. Related accountability concerns are rampant, and we urge this Commission to bring attention to this issue by taking up any CBP misconduct case currently before them. People have the right to seek and receive asylum, under U.S. and international law, and by not creating mechanisms to ensure agents comply with the law, especially by not seriously investigating complaints, the U.S. places individuals at a great risk of suffering harm, and is in violation of its obligations under international law, including the Inter-American declaration and agreements.
PETITIONING ORGANIZATIONS: The organizations who came together to request an asylum access hearing are: American Civil Liberties Union, American Immigration Council, American Immigration Lawyers Association, Human Rights First, Innovation Law Lab, Institute for Women in Migration, Jesuit Conference of Canada and the United States, Kino Border Initiative, Latin America Working Group, Lutheran Immigration and Refugee Service, Transnational Legal Clinic at the University of Pennsylvania Law School, Immigration Clinic at the University of Texas Law School, Washington Office on Latin America, and Women’s Refugee Commission.