The US Is Making a Mockery of Its Asylum Obligations
Luisa and her three-year-old son fled Honduras together to come to the United States to ask for asylum; now they have to choose between a roof over their heads and food in their stomachs. After presenting at the US port of entry in El Paso, they were interviewed by US border officials and then turned around and told to wait back in Juárez, Mexico, as their case proceeded, without them, in the US. They found temporary space at a shelter, but when Luisa returned to El Paso for a preliminary hearing, she and her son lost their space in their shelter and were forced to make-do on the streets. Since then, Luisa has been occasionally able to pool enough money, along with a group of other women with young children, to pay for a night in a hotel, but sometimes that means there’s not enough to eat. “I prefer to have a roof over our heads than to wander the streets,” Luisa says. But now her money is running out, and her options are dwindling.
Luisa’s plight is a direct result of the Migrant Protection Protocols—commonly referred to as the “Remain in Mexico” policy that the Trump administration first enacted in Tijuana in January and has since rolled out to other Mexican border cities. The protocols take the administration’s anti-asylum crackdown to a new level: returning mostly Central American asylum seekers to Mexican border towns as they await their US asylum cases. MPP is at best a deterrent mechanism, at worst an evisceration of international asylum obligations, and the administration is using it to try to convince Central American asylum seekers approaching the US-Mexico border that the journey, and now the long and dangerous wait in Mexico, isn’t worth it. Forcing migrants to hang tight as their cases slog through the morass of US immigration courts in notoriously dangerous Mexican border towns—without sufficient services, and where they fall prey to extortion, kidnapping, rape and murder—does the opposite of protect migrants. According to a new report from Human Rights Watch, “We Can’t Help You Here,” MPP seems designed to strip asylum seekers of almost all protections and put them directly into harm’s way.
Since the initial implementation of MPP in January, according to the Mexican government, over 15,000 people have been returned to Mexico, including nearly 5,000 children. The US has also cold-shouldered thirteen pregnant women and dozens of other especially vulnerable individuals. After Trump threatened to impose steep tariffs on Mexican exports to the US, and Mexico agreed to expand their own migrant interdiction efforts, Mexican officials estimated that they expect the number of people returned to the country through MPP to reach 60,000 by August. The MPP program, at least initially, was unilateral and implemented without Mexico’s agreement, with Mexico only accepting returned asylum seekers “for humanitarian reasons,” as one Mexican official, not authorized to talk to the press, told me.
DHS’s own justification for the policy comes from a back-corner provision of asylum law that permits US officials to return migrants to contiguous territory while their claim for legal status in the US is either granted or denied. A lawsuit from the Innovation Law Lab disputes the idea that asylum seekers fall into that category of migrants—those who can be provisionally expulsed. Another aspect of the legal challenge contends that the policy makes it exceedingly difficult for asylum seekers returned to Mexico to find US lawyers while across the border. A new DHS plan to conduct video hearings in tents along the border is in the works, but the solution presents its own problems, and the Department of Justice—which runs asylum hearings—has a troubled record of introducing new technologies, and has done a miserable job of running video teleconference hearings in the past.
According to a January DHS statement, “MPP will help restore a safe and orderly immigration process [and] decrease the number of those taking advantage of the immigration system.” Over the last five months—as researchers have documented, as the report makes clear with dozens of examples, and as recent deaths along the border and in detention centers stresses—the US immigration system is neither safe nor orderly. DHS did not immediately return requests for comment.
As the evidence of MPP’s damage continues to pile up, another DHS asylum-deterrent program known as “metering” is exacerbating the dangers along the border. Claiming that border officials are only able to process or detain a certain number of migrants on any single day, by “metering” they permit a paltry number of migrants to make asylum claims each day. This has created mass confusion, leading migrants to carry out impromptu organizing by establishing self-regulating lists to determine whose turn it is to approach the ports of entry. Metering has also caused death: The tragic story of the father and his young daughter who died by drowning in the Rio Grande last week culminated soon after the family was turned away from the port of entry in Brownsville. The “metering” process there has log-jammed nearly 3,000 asylum seekers into the notoriously dangerous Mexican city of Matamoros. Instead of waiting the estimated three months until it was their turn to ask for asylum, the family decided to try crossing the river, and the father and daughter both drowned as a result.
Back in Juárez, meanwhile, as a result of both metering and MPP, according to the report, nearly 12,000 asylum seekers are left waiting to make their claims.
DHS is currently expanding MPP to Sonora and Tamaulipas, consigning asylum seekers to two states that have dealt with scourges of extreme violence and insecurity in recent years. Just in Tamaulipas, human rights workers have discovered more than 1,300 mass graves in the last twelve years, as well as recent reports of mass kidnappings of migrants. The Associated Press last year tabulated that at least 4,000 migrants have died in the previous four years on their way to the US. And while the US State Department currently has a Level Four (the highest level) “Do Not Travel” warning for Tamaulipas, DHS plans to return potentially thousands of asylum seekers there. Edith Tapia, policy research analyst with Hope Border Institute, told me, quite simply, “Mexico is not a safe country for asylum seekers.” She described one family from Guatemala—a father with three young kids, including an eight-year-old with an eye tumor—who were unable to access necessary medical treatment as they waited in a shelter in Ciudad Juárez. That same shelter is being monitored, Tapia explained, by a group of kidnappers; recently, a corpse appeared outside the shelter door. The Hope Border Institute, which has been watching the MPP program closely, calculates that between 85 and 90 percent of asylum seekers they come into contact with express fear of remaining in Mexico. Tapia told me that the number is certainly an underestimate.
Reading the section in the HRW report on assaults of returned asylum seekers is a grim task. In Juárez, an asylum seeker who had been returned through MPP was kidnapped—allegedly by police officers—and raped after she was turned over to a separate group of men. Another woman, Delfina from Guatemala, who was also raped, said that her assailants threatened to kill her four-year-old son. Rodrigo from El Salvador was stabbed in the back after being returned to Mexico. Kimberlyn from Honduras was kidnapped along with her five-year-old son. And Rafael and Gerald were kidnapped, severely beaten, and held for twenty-one days. “I know that in any moment something could happen to me,” Gloria said, after hearing that a young pregnant woman was kidnapped, and another person murdered, outside of the shelter in Juárez where she was staying. (All of the names have been changed for their safety.)
The bedrock of asylum law is the principle of non-refoulement, or non-return, which is the idea that asylum seekers should not be returned to a place where they are in danger of persecution or torture. And though border officials are required to ask apprehended migrants if they fear being returned to their country of origin, under MPP guidelines, they do not have to ask if they fear being returned to Mexico. Asylum seekers have to voluntarily express that fear in order to have the chance not to be enrolled in MPP. Yet the report described exemption from the MPP program as being “nearly impossible” to obtain.
In a recent amicus brief filed by a US asylum officer union, asylum officers wrote that MPP “virtually guarantees a violation of the non-refoulement obligation.” The union claims that the MPP “is contrary to America’s longstanding tradition of providing safe haven to people fleeing persecution.” However much that might be an overly rosy, or simply ahistorical, interpretation of US history—and the brief acknowledges that US treatment of refugees “is not unblemished”—the asylum officers maintain that the MPP places asylum officers “at risk of participation in the widespread violation of international treaty and domestic legal obligation.”
From any standpoint, MPP is a major shift in asylum policy. For Central Americans, MPP may as well be an absolute negation of asylum policy. The report concludes that “expelling” asylum seekers—others have called MPP a program that “banishes” asylum seekers—to Mexico results in them facing “high if not insurmountable barriers to due process.” An insurmountable barrier to due process during an asylum claim may all too often turn out to be not only a barrier to the law and to basic security, but a barrier to life itself.
One asylum seeker profiled in the report, Carmen from Honduras, who was with her two sons—six and three years old—has been informed she needs to wait until October for her next court date. Faced with such a long delay in a dangerous city she doesn’t know and where she is unauthorized to work, she’s considered crossing the border and trying to sneak into the US. But she’s also worried that even if she survives the dangerous crossing, if she’s caught, Border Patrol officers will take her kids from her. “If they take my kids, it’s better that they just kill me.” Persecuted in her own country, refused protection by the US, and in danger in Mexico, she has no good options, and none of the three states she knows seem willing to help.