The Collapse of Asylum at the Border

Throughout 2019, the Trump administration implemented a series of dangerous, immoral, and illegal policies that severely restricted the right to seek asylum. These included returning vulnerable people to await their court dates in Mexico, the implementation of a transit ban, the development of expedited removal programs, and the signing of “safe third country agreements” with Central American nations. It is likely that 2020 will only see the expansion of these policies and place people fleeing danger in increasingly precarious conditions.

 In 2019, the Trump administration diminished the right to seek asylum at the U.S./Mexico border through the implementation of increasingly harsh policies directed at stripping away asylum-seekers’ rights to safety, protection, and due process. Through a number of policies carried out by the Trump administration, thousands of vulnerable people have been exposed to dangerous situations in Mexico and Guatemala and stripped of their rights to due process and legal counsel. The result of this is the near-impossibility of obtaining asylum at the border. In the words of Michael Knowles, the president of a union that represents asylum officers in the U.S., the implementation and expansion of these practices is illegal, and “they are indeed are the basis for some egregious human rights violations by our own country.” As we look ahead to what 2020 holds, it seems as though the current trends—of forcing people into increasingly dangerous and untenable situations—is on pace not only to continue, but to expand. What has already emerged as a human rights disaster is on pace to become much worse.

Migrant “Protection” Protocols

On January 29, 2019, the Trump administration implemented the Remain in Mexico policy in the San Diego area, returning asylum seekers to Mexico to await their court dates, a process that can take months or even years. Previously, asylum-seekers were sent to detention centers in the U.S. or released to U.S.-based sponsors, with whom they lived while proceeding through their asylum cases. Remain in Mexico expanded rapidly in the last year, and now has affected approximately 60,000 people, including over 16,000 children. Remain in Mexico was implemented in Arizona in November of 2019, and initially people were transported back to El Paso before they were released in Juárez. As of early January, asylum-seekers have been returned to Nogales, where they are then expected to pay for their own trip—over 10 hours through volatile parts of northern Mexico—to present at the port of entry in Juárez before their court dates in El Paso.

            As of late January, the advocacy group Human Rights First had documented nearly 820 cases of kidnapping, assault, and other violent crimes that had occurred to asylum-seekers returned to Mexico. (See the report here: https://www.humanrightsfirst.org/press-release/marking-one-year-horrific-remain-mexico-policy-over-800-violent-attacks-asylum-seekers) This number is almost certainly lower than the actual rate of incidents, given the number of cases that go unreported. Additionally, thousands of people have been forced into homelessness given the limited capacity of Mexican border cities to provide shelter space for all of the people who have been returned. Because of the inadequacy of shelter and the traumas of living in such precarious conditions, illness is far more rampant than it should be.

            In addition to being a humanitarian atrocity, the ability of asylum-seekers to access their due-process rights is severely limited. According to recently released data, (https://trac.syr.edu/phptools/immigration/mpp/) , fewer than 3,000 people subject to MPP had legal representation as of January. Due to the lack of ability to access information and the nature of the court proceedings, only 187 people have been granted permission to stay in the U.S. under MPP, a success rate of less than 0.5%. In contrast to the asylum approval rates even several years ago, when average rates hovered around 40%, this is an extraordinary and deeply troubling statistic.

            In an op-ed published in the Arizona Republic on February 9, Fr. Sean Carroll wrote a critique of MPP (https://www.azcentral.com/story/opinion/op-ed/2020/02/09/remain-mexico-puts-asylum-seekers-danger/4648512002/) “The U.S. will forever have to live with the legacy of horror we have inflicted on tens of thousands of human beings. We will have to live knowing that, of all the ways we could have responded to the needs of people who arrived at our borders beginning in 2019, the country chose among the most cruel of all possible responses. The future, however, does not have to resemble the past. We can’t rewrite history and undo the trauma of the past year of MPP. We can’t bring back the people who have died; erase the rapes, kidnappings, and illnesses that occurred; we can’t grant unconditional peace to those who have lived through horrors. But if enough people witness, protest, advocate, and live into the belief that another world is possible, we can change course. “ We at the KBI are committed to advocacy, educational, and humanitarian efforts to end this policy as soon as possible.

“Transit Bans”

The Trump administration implemented a transit ban on July 16, 2019. In practice, this means that nearly all non-Mexicans are ineligible for asylum unless they first sought asylum in one of the countries that they passed through in order to reach the U.S./Mexico border, and were subsequently denied protection in that country. People are now only eligible for two lesser forms of protections: withholding of removal or protection under the United Nations Convention Against Torture (CAT). Both offer fewer rights, do not include a path to US citizenship, and also have a higher bar to demonstrate persecution. Additionally, these forms of relief can be taken away if conditions change in their home countries. And unlike the protections allowed for under asylum, neither withholding of removal nor protection under CAT allow for people to bring family members to join them in the U.S., leaving highly likely the possibility that families will be permanently separated.

            People who are subject to MPP and arrived to the border after July 16 are thus, in nearly all cases, ineligible for asylum and are only able to apply for these other forms of relief that offer fewer protections and maintain a higher bar to pass.

Expedited Deportations

In late 2019, the Trump administration piloted several expedited removal programs in a further effort to limit access to asylum. One of the programs is called PACR, the Prompt Asylum Claim Review, and affects Central American asylum-seekers, and HARP, the Humanitarian Asylum Review Program, is a similar policy, but for Mexican asylum-seekers. The programs were implemented in the El Paso area and expanded to the Rio Grande Valley in late 2019, and are estimated to have affected over 1,000 people. According to Customs and Border Protection, the programs have expanded beyond their pilot phases.

            The programs are a marked departure from previous procedure, when asylum-seekers were held in Border Patrol facilities for several days before being transferred to an ICE facility to undergo credible fear interviews by asylum officers. ICE facilities are required under law to provide access to telephones and the ability to meet with legal representatives in order to prepare for the initial screenings. Under PACR and HARP, however, asylum-seekers are quickly given “fear of persecution” screenings while in Border Patrol custody, where conditions are frequently physically challenging and where lawyers are not permitted to enter. (People in custody are given 30 minutes to make a phone call to lawyers or family members, though many people have reported that none of the phone numbers on the list they are provided works.) This means that not only is there more limited access to counsel, it is also more difficult to pass the interviews given the lack of information and the dramatically expedited nature of the proceedings.

            If migrants fail these interviews, a typical outcome given the difficulty of access to lawyers and the limited amount of time available to prepare, they are generally removed within days or weeks. This is in contrast to the months or years it typically takes to resolve an asylum case.

            In late January, Ken Cuccinelli of the Department of Homeland Security indicated that the Trump administration would be seeking to expand both expedited removal programs and the implementation of agreements with Central American countries to send asylum-seekers there, to be discussed in the next section.

“Asylum Cooperative Agreements”

In November of 2019, DHS began sending asylum-seekers from Honduras and El Salvador to Guatemala. Once they arrive to Guatemala, the people subject to the “Asylum Cooperative Agreement” have 72 hours to decide whether they will pursue an asylum case in Guatemala or return to their home country. As of late January, only Guatemala had begun the implementation of the Asylum Cooperative Agreements, though the U.S. is hoping to expand it to both Honduras and El Salvador. Honduras, in particular, has indicated willingness to enter into this practice, saying that it could host asylum-seekers from Guatemala, El Salvador, Nicaragua, Brazil, and Mexico.

            The Guatemalan Institute of Migration recently reported that, between November and January 31, 368 people had been returned under this agreement. 213 were from Honduras, and 155 were from El Salvador. Of the people returned, 140 are children. The institute additionally reports that approximately a dozen claims for asylum have been filed in Guatemala, with the remainder of people opting to return home.

            The U.S. Department of Homeland Security presents this agreement as a way for people to seek asylum “closer to home.” Absent in this statement is the exceedingly obvious awareness that not only are these countries among the most dangerous in the world that have seen thousands of their own citizens flee in recent years to seek safety and protection, they also lack any meaningful asylum systems through which to pursue a case for protection.

            As indicated above, Ken Cuccinnelli said in late January that the Trump administration is seeking to expand this policy, both in terms of the numbers of people who are subject to it and the countries that receive asylum-seekers. Cucinelli indicated that Brazilians—along with Africans and other non-Spanish speaking populations—could be subject to the agreements with Central American countries, similar to how Brazilians have recently become subject to MPP.

            A DHS official, speaking anonymously, said that it is typical for the government to start off programs such as the Asylum Cooperative Agreements on a small scale “to work out the kinks before expanding,” which is the trend that occurred with the Remain in Mexico policy. Jessica Bolter of the nonprofit Migration Policy Institute said the expansion of this policy and the expedited removals “will rapidly peel off any last chance migrants had to access the U.S. asylum system from the U.S./Mexico border.”

Conclusion

The attacks against asylum, and the people who are in need of safety, protection, and options for survival are distressing and severe. Currently, lawsuits are open against all of the policies described in this article. However, the actions of ordinary citizens are essential if we are to save asylum, as it is unclear whether courts will indeed stop any of the aforementioned policies.

            The policies remove asylum-seekers increasingly far from U.S. communities—to border cities in Mexico, tent courts, expedited and highly secret court proceedings, and by sending them to Central American countries. The Trump administration is attempting to make the people arriving to our border—people who have stories, names, fears, and dreams—invisible. They are trying to put up so many barriers to safety that people give up. But this tactic works only as long the U.S. public is complicit and silent. We at KBI are vehemently opposed to this assault on asylum, and call on our supporters to join us—and the many committed organizations and individuals—in saving and restoring asylum. See this month’s call to action (https://www.kinoborderinitiative.org/stop-asylum-assault/) for some ideas of how to become involved.