[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE HUMAN RIGHTS AND LEGAL IMPLICATIONS
OF DHS'S ``REMAIN IN MEXICO'' POLICY
=======================================================================
HEARING
before the
SUBMITTEE ON
BORDER SECURITY, FACILITATION,
AND OPERATIONS
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 19, 2019
__________
Serial No. 116-50
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
40-466 PDF WASHINGTON : 2020
COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Sheila Jackson Lee, Texas Mike Rogers, Alabama
James R. Langevin, Rhode Island Peter T. King, New York
Cedric L. Richmond, Louisiana Michael T. McCaul, Texas
Donald M. Payne, Jr., New Jersey John Katko, New York
Kathleen M. Rice, New York Mark Walker, North Carolina
J. Luis Correa, California Clay Higgins, Louisiana
Xochitl Torres Small, New Mexico Debbie Lesko, Arizona
Max Rose, New York Mark Green, Tennessee
Lauren Underwood, Illinois Van Taylor, Texas
Elissa Slotkin, Michigan John Joyce, Pennsylvania
Emanuel Cleaver, Missouri Dan Crenshaw, Texas
Al Green, Texas Michael Guest, Mississippi
Yvette D. Clarke, New York Dan Bishop, North Carolina
Dina Titus, Nevada
Bonnie Watson Coleman, New Jersey
Nanette Diaz Barragan, California
Val Butler Demings, Florida
Hope Goins, Staff Director
Chris Vieson, Minority Staff Director
------
SUBCOMMITTEE ON BORDER SECURITY, FACILITATION, AND OPERATIONS
Kathleen M. Rice, New York, Chairwoman
Donald M. Payne, Jr., New Jersey Clay Higgins, Louisiana, Ranking
J. Luis Correa, California Member
Xochitl Torres Small, New Mexico Debbie Lesko, Arizona
Al Green, Texas John Joyce, Pennsylvania
Yvette D. Clarke, New York Michael Guest, Mississippi
Bennie G. Thompson, Mississippi (ex Mike Rogers, Alabama (ex officio)
officio)
Alexandra Carnes, Subcommittee Staff Director
Emily Trapani, Minority Subcommittee Staff Director
C O N T E N T S
----------
Page
Statements
The Honorable Kathleen M. Rice, a Representative in Congress From
the State of New York, and Chairwoman, Subcommittee on Border
Security, Facilitation, and Operations:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Clay Higgins, a Representative in Congress From the
State of Louisiana, and Ranking Member, Subcommittee on Border
Security, Facilitation, and Operations:
Oral Statement................................................. 4
Prepared Statement............................................. 6
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Oral Statement................................................. 7
Prepared Statement............................................. 8
The Honorable Mike Rogers, a Representative in Congress From the
State of Alabama, and Ranking Member, Committee on Homeland
Security:
Oral Statement................................................. 8
Prepared Statement............................................. 9
Witnesses
Ms. Laura Pena, Pro Bono Counsel, American Bar Association
Commission On Immigration:
Oral Statement................................................. 17
Prepared Statement............................................. 19
Ms. Erin Thorn Vela, Staff Attorney, Racial and Economic Justice
Program, Texas Civil Rights Project:
Oral Statement................................................. 24
Prepared Statement............................................. 26
Mr. Todd Schneberk, MD, Assistant Professor of Emergency
Medicine, Co-Director, Human Rights Collaborative, Keck School
of Medicine of the University of Southern California; Asylum
Network Clinician, Physicians for Human Rights:
Oral Statement................................................. 34
Prepared Statement............................................. 36
Mr. Michael A. Knowles, President, AFGE Local 1924, Special
Representative AFGE National CIS Council 119:
Oral Statement................................................. 39
Prepared Statement............................................. 41
Mr. Thomas D. Homan, Former Acting Director, U.S. Immigration and
Customs Enforcement, Department of Homeland Security:
Oral Statement................................................. 50
Prepared Statement............................................. 52
For the Record
The Honorable Kathleen M. Rice, a Representative in Congress From
the State of New York, and Chairwoman, Subcommittee on Border
Security, Facilitation, and Operations:
Statement of AFL-CIO........................................... 80
Statement of the American Immigration Lawyers Association...... 81
Report From American Friends Service Committee................. 85
Statement of the American Immigration Council.................. 87
Statement of Amnesty International............................. 91
Statement of Cheasty Anderson, M.A., Ph.D., Senior Policy
Associate, Children's Defense Fund--Texas.................... 95
Statement of the Center for Victims of Torture................. 96
Statement of Columban Center for Advocacy and Outreach......... 99
Statement of Church World Service (CWS)........................ 100
Statement of Families Belong Together.......................... 101
Statement of Laura Belous, Esq., Advocacy Attorney, Florence
Immigrant and Refugee Rights Project......................... 104
Statement of Jodi Goodwin, Esq., Law Office of Jodi Goodwin,
Harlingen, TX................................................ 104
Statement of Marsha R. Griffin, MD, Border Pediatrician, Member
of the American Academy of Pediatrics' Council on Immigrant
Child and Family Health, Brownsville, Texas.................. 110
Statement of HIAS.............................................. 112
Joint Letter From Miscellaneous Organizations.................. 113
Statement of Human Rights Watch................................ 120
Statement of the International Refugee Assistance Project
(IRAP)....................................................... 122
Statement of the Latin American Working Group.................. 128
Statement of Krish O'Mara Vignarajah, LIRS..................... 131
Statement of the Mexican American Legislative Caucus (MALC) of
the Texas House of Representatives........................... 138
Statement of the National Immigrant Justice Center (NIJC)...... 139
Statement of Yael Schacher, Senior U.S. Advocate, Refugees
International................................................ 141
Statement of San Antonio Region Justice For Our Neighbors
(SARJFON).................................................... 143
Statement of Todd Schulte, President, FWD.us................... 143
Statement of Karla Barber, Dallas, TX.......................... 145
Statement of Janice Zitelman, Fredericksburg, TX............... 145
Statement of Marguerite D. Scott, LCSW-S, Kerrville, TX........ 145
Statement of Douglas Stephens, Esq., Government Accountability
Project...................................................... 146
Statement of Irena Sullivan, Senior Immigration Policy Counsel,
Tahirih Justice Center....................................... 153
Statement of Texas Impact/Texas Interfaith Center for Public
Policy....................................................... 154
TRAC Immigration Report........................................ 164
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas:
Photos......................................................... 75
The Honorable Clay Higgins, a Representative in Congress From the
State of Louisiana:
Assessment of the Migrant Protection Protocols (MPP)........... 10
Executive Office for Immigration Review Adjudication Statistics 162
EXAMINING THE HUMAN RIGHTS AND LEGAL IMPLICATIONS OF DHS'S ``REMAIN IN
MEXICO'' POLICY
----------
Tuesday, November 19, 2019
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border Security,
Facilitation, and Operations,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:06 a.m., in
room 310, Cannon House Office Building, Hon. Kathleen M. Rice
[Chairwoman of the subcommittee] presiding.
Present: Representatives Rice, Payne, Correa, Torres Small,
Green, Barragan, Thompson; Higgins, Lesko, Joyce, Guest, and
Rogers.
Also present: Representative Escobar.
Miss Rice. The Subcommittee on Border Security,
Facilitation, and Operations will come to order.
The subcommittee is meeting today to receive testimony on
examining the human rights and legal implications of DHS's
Remain-in-Mexico Policy.
Without objection, the Chair is authorized to declare the
subcommittee in recess at any point.
Good morning. Today we will examine the implementation of
the Migrant Protection Protocols more commonly known as the
Remain-in-Mexico program. This morning we will hear the
perspective of practitioners who witness the program's impact
on the ground.
Since this program went into effect on January 18, 2019,
the Remain-in-Mexico Policy has forced tens of thousands of
asylum seekers to wait in Mexico while their claims are
processed. However, this brief summary does not even begin to
touch on the devastating and destructive impact that this
policy has had on countless lives.
Prior to this program's implementation, asylum seekers were
permitted to stay in the United States while their cases moved
through the courts, a policy based on the humane and common-
sense premise that refugees should be given temporary safe
haven while it is decided whether or not they may remain in our
country.
Under Remain-in-Mexico, however, when migrants who arrive
at our Southern Border inform a U.S. official that they are
seeking asylum, they are provided a court date and sent back
into Mexico until their initial hearing.
These migrants are mostly from Central and South America,
having fled their homes to escape gang violence and government
oppression. They are almost always strangers to Mexico, with no
friends or family to rely on as they wait on a decision from
the United States. The cities in which they are forced to wait
are some of the most dangerous in Mexico. Cartels are active.
Jobs are hard to come by. Even local Government officials have
been known to engage in violence and exploitation. As a result,
these migrants, who are fleeing violence and oppression, are
now being forced to wait in conditions that are just as
dangerous as the ones they fled, if not more so. Families
waiting in Mexico under this policy face kidnapping, sexual
assault, and extortion.
In addition to provoking yet another humanitarian crisis,
Remain-in-Mexico presents a serious threat to our National
security. The program has created a newly-vulnerable population
left completely exposed to exploitation by drug cartels,
allowing these criminal organizations to remain active along
our border, and even expand their reach.
The administration assured lawmakers and the public that
the program would be carefully applied, making exceptions for
Mexican nationals, non-Spanish speakers, pregnant women, the
LGBTQ community, and people with disabilities. However,
investigations and reporting have revealed that individuals
from every protected category are frequently turned away and
left to fend for themselves in Mexican cities that the U.S.
State Department has marked as too dangerous for travel.
Meanwhile, on August 2019, DHS notified Congress that it
would build large temporary immigration hearing facilities to
conduct Remain-in-Mexico-related proceedings. Located in
Brownsville and Laredo, these temporary facilities are
functioning as virtual immigration courtrooms, with judges
appearing via video conference from brick-and-mortar courtrooms
all across the country.
These facilities have become a significant cause for alarm.
Lack of public information about the proceedings, limited
access to translators and attorneys, and a complete disregard
for migrant legal rights are just some of the many problems
emerging from this court system. Reports have described
secretive assembly line proceedings in the facilities to
conduct hundreds of hearings per day. CBP, ICE, and DHS have
provided little information on the functioning of these port
courts, despite numerous inquiries from news outlets and
Congressional staff.
The lack of available information on their operations is
exacerbated by the severe restrictions on who can even access
the facilities. With barbed wire fences and security managed by
private companies, they are closed to the public, news outlets,
and legal advocacy organizations. Despite the clear legal
standard that all immigration proceedings are to be open to the
public, CBP has rejected request after request for access.
These facilities dramatically worsen the chaotic nature of
the program by removing any ability for migrants to access
legal aid.
Furthermore, the prohibitions on oversight expose migrants
to violations of the due process rights established for asylum
seekers in U.S. law. We have invited our witnesses here to shed
light on this disgraceful and untenable situation, and I thank
them for joining us today.
Our asylum laws emerged after the Second World War, as our
Nation faced the shameful truth that we failed to provide safe
haven to refugees fleeing the Nazis. Since then we have granted
asylum to desperate communities fleeing danger all over the
world and, in doing so, saved an untold number of lives. The
Remain-in-Mexico Policy is a reprehensible step backward, and a
continuation of this administration's abandonment of our
Nation's long-standing and bipartisan tradition of protecting
asylum seekers and refugees.
We hope today to build public awareness of this policy and
improve our own understanding, so that we can find a way toward
stopping this needless harm inflicted on the men, women, and
children seeking safety in our great country.
[The statement of Chairwoman Rice follows:]
Statement of Chairwoman Kathleen M. Rice
November 19, 2019
Today the Subcommittee on Border Security, Facilitation, and
Operations will examine the implementation of the Migrant Protection
Protocols (MPP), more commonly known as the ``Remain in Mexico''
program. This morning we will hear the perspective of practitioners who
witness the program's impact on the ground. Since this program went
into effect on January 18, 2019, the Remain in Mexico policy has forced
tens of thousands of asylum seekers to wait in Mexico while their
claims are processed. However, this brief summary does not even begin
to touch on the devastating and destructive impact that this policy has
had on countless lives. Prior to this program's implementation, asylum
seekers were permitted to stay in the United States while their cases
moved through the courts, a policy based on the humane and common-sense
premise that refugees should be given temporary safe haven while it is
decided whether or not they may remain in our country.
Under Remain in Mexico however, when migrants who arrive at our
Southern Border inform a U.S. official that they are seeking asylum,
they are provided a court date and sent back into Mexico until their
initial hearing. These migrants are mostly from Central and South
America, having fled their homes to escape gang violence and government
oppression. They are almost always strangers to Mexico, with no friends
or family to rely on as they wait on a decision from the United States.
The cities in which they are forced to wait are some of the most
dangerous in Mexico. Cartels are active, jobs are hard to come by, and
even local government officials have been known to engage in violence
and exploitation. As a result, these migrants--who were fleeing
violence and oppression--are now being forced to wait in conditions
that are just dangerous as the ones they fled. If not more so. Families
waiting in Mexico under this policy face kidnapping, sexual assault,
and extortion. In addition to provoking yet another humanitarian
crisis, Remain in Mexico presents a serious threat to our National
security. The program has created a newly vulnerable population left
completely exposed to exploitation by drug cartels, allowing these
criminal organizations to remain active along our border and even
expand their reach.
The administration assured lawmakers and the public that the
program would be carefully applied, making exceptions for Mexican
nationals, non-Spanish-speakers, pregnant women, the LGBTQ community,
and people with disabilities. However, investigations and reporting
have revealed that individuals from every protected category are
frequently turned away and left to fend for themselves in Mexican
cities that the U.S. State Department has marked as too dangerous for
travel. Meanwhile, in August 2019, DHS notified Congress that it would
build large temporary immigration hearing facilities to conduct Remain-
in-Mexico-related proceedings. Located in Brownsville and Laredo, these
temporary facilities are functioning as virtual immigration courtrooms,
with judges appearing via video conference from brick-and-mortar
courtrooms across the country.
These facilities have become a significant cause for alarm. Lack of
public information about the proceedings, limited access to translators
and attorneys, and a complete disregard for migrant legal rights are
just some of the many problems emerging from this court system. Reports
have described ``secretive, assembly line'' proceedings in the
facilities to conduct hundreds of hearings per day. CBP, ICE, and DHS
have provided little information on the functioning of these ``Port
Courts'' despite numerous inquiries from news outlets and Congressional
staff. The lack of available information on their operations is
exacerbated by the severe restrictions on who can even access the
facilities. With barbed wire fences and security managed by private
companies, they are closed to the public, news outlets, and legal
advocacy organizations. Despite the clear legal standard that all
immigration proceedings are to be open to the public, CBP has rejected
request after request for access. These facilities dramatically worsen
the chaotic nature of the program by removing any ability for migrants
to access legal aid.
Furthermore, the prohibitions on oversight expose migrants to
violations of the due process rights established for asylum seekers in
U.S. law. We have invited our witnesses here to shed light on this
disgraceful and untenable situation. And I thank them for joining us
today. Our Asylum laws emerged after the Second World War, as our
Nation faced the shameful truth that we failed to provide safe haven to
refugees fleeing the Nazis. Since then, we have granted asylum to
desperate communities fleeing danger all over the world and in doing so
saved an untold number of lives. The Remain-in-Mexico policy is a
reprehensible step backwards, and a continuation of this
administration's abandonment of our Nation's longstanding--and
bipartisan--tradition of protecting asylum seekers and refugees.
We hope today to build public awareness of this policy and improve
our own understanding so that we can find a way toward stopping this
needless harm inflicted on the men, women, and children seeking safety
in our great country.
Miss Rice. The Chair now recognizes the Ranking Member of
the subcommittee, the gentleman from Louisiana, Mr. Higgins,
for an opening statement.
Mr. Higgins. Thank you, Madam Chair, and thank you to our
witnesses for being here today. While I look forward to hearing
your testimony, I also would like to voice that I am
disappointed that no DHS officials actually responsible for
negotiating and implementing the Migrant Protection Protocols
agreement with the Government of Mexico were invited to testify
today by the Majority.
I am also concerned by the partisan preconceptions
surrounding the hearing title. This past year we saw crisis at
the border, which was referred to by some as a fake emergency.
It virtually exploded, as over 977,000 people attempted to
illegally enter the United States through our Southwest Border.
That is more than we encountered in 2017 and 2018, combined. It
is larger than the population of the entire State of Delaware.
Historically, most illegal immigrants have been single
adults from Mexico looking for temporary work. During fiscal
year 2000, Border Patrol was able to repatriate the majority of
those detained within hours. Today most illegal immigrants are
family units and unaccompanied minors from Guatemala, Honduras,
and El Salvador. In fiscal year 2019, Customs and Border
Protection encountered 473,682 families. That is nearly a 3,200
percent increase from fiscal year 2013.
This change is directly tied to criminal organizations
exploiting loopholes in our immigration laws as propaganda to
convince people to bring children to the border. Migrants are
giving up their life savings--in many cases, mortgaging homes,
and properties, farms, perhaps handing over their children to
smugglers because they are falsely being told that children are
visas to get into this country. Even the Guatemalan Ministry of
Foreign Affairs has publicly confirmed this.
Smugglers don't care about the well-being of migrants. They
only care about turning a profit. In fiscal year 2019 Customs
and Border Protection averaged 71 hospital visits per day for
the migrants who arrived at our border in deteriorating health.
The Border Patrol conducted over 4,900 rescues of immigrants
who smugglers left to die.
Former Acting DHS Secretary McAleenan testified in July
that more than 5,500 fraudulent family cases have been
uncovered where the adult is not the parent of the child. One
thousand of those have already resulted in prosecutions. Worse,
the cartels are sending children back on commercial airlines to
their home country, and then returning to the border with
different adults. Agents call this practice ``recycling
children.'' ICE identified 600 children who have gone through
this. One child told investigators he was forced to make the
trip 8 times.
There is a common misconception that most people illegally
crossing our border are seeking asylum. However, less than 20
percent of immigrants in Customs and Border Protection custody
are found to have, ``credible fear'' to return to their home
country. In fiscal year 2018 that number was 18 percent.
For those saying everyone is turning themselves in, that is
not the case. According to Customs and Border Protection, last
year more than 150,000 migrants who illegally entered this
country got away from authorities, evading capture, and making
their way into the interior.
The Trump administration has been forced to act alone and
has taken several important actions to mitigate the crisis as
gridlock over immigration reform continues in Congress.
DHS implemented the Migrant Protection Protocols, MPP,
program to cut down on the overcrowding of migrants in DHS
custody and the number of migrants being released into U.S.
communities due to immigration court backlog. At one point this
year, CBP had almost 20,000 people in custody. Now they are
averaging less than 3,500.
DHS has invested in temporary courtrooms near Southwest
Border ports of entry to help expedite immigration hearings for
MPP individuals. MPP ends the economic incentive of making a
meritless asylum claim, considering only 20 percent of asylum
claims get favorable final judgment, but every asylum applicant
released in the interior is provided with work authorization.
Department of Justice statistics point to more than 89,000
orders of removal in absentia for fiscal year 2019 for those
who were not detained. MPP mitigates the risk that those
ordered removed will disappear into the United States'
interior.
This month, DHS, the State Department, and the
International Organization for Migration visited several
shelters operated by faith-based organizations and the
Government of Mexico that houses MPP individuals. These
shelters were found to have a persistent law enforcement
presence, adequate medical care, and access to food and water.
Today's hearing could have been an opportunity to bring in
the Department to ask about that visit and discuss the
implementation of the MPP program in greater detail. We have
seemingly foregone a fact-finding mission for something that
might resemble a show trial.
Nevertheless, I want to thank our witnesses for appearing
before us today, and I look forward to your testimony.
[The statement of Ranking Member Higgins follows:]
Statement of Ranking Member Clay Higgins
Nov. 19, 2019
Thank you, Madam Chair, and thank you to our witnesses for being
here today.
While I look forward to hearing your testimony, I also want to
voice that I am disappointed that no DHS officials responsible for
negotiating and implementing the Migrant Protection Protocols agreement
with the government of Mexico were invited to testify by the majority.
I am also concerned by the partisan pre-conceptions surrounding the
hearing title.
This past year we saw what some Democrats on this committee called
a ``Fake Emergency'' explode as over 977,000 people attempted to
illegally enter the United States through our Southwest Border.
That's more than fiscal year 2017 and fiscal year 2018 combined,
and larger than the population of the entire State of Delaware.
Historically, most illegal immigrants have been single adults from
Mexico looking for temporary work. During fiscal year 2000, Border
Patrol was able to repatriate the majority of those detained within
hours.
Today, most illegal immigrants are family units and unaccompanied
minors arriving from Guatemala, Honduras, and El Salvador. In fiscal
year 2019, CBP encountered 473,682 families, nearly a 3,200 percent
increase from fiscal year 2013.
This change is directly tied to criminal organizations exploiting
loopholes in our immigration laws as propaganda to convince people to
bring children to the border.
Migrants are giving up their life savings, mortgaging their homes
and farms, and handing over their children to smugglers, because they
are falsely being told that children are ``visas'' to get into this
country. Even the Guatemalan Ministry of Foreign Affairs has publicly
confirmed this.
Smugglers don't care about the well-being of migrants, just about
turning a profit. In fiscal year 2019, CBP averaged 71 hospital visits
per day for migrants who arrived at our border in deteriorating health.
The Border Patrol conducted over 4,900 rescues of migrants who
smugglers left to die.
Former Acting DHS Secretary McAleenan testified in July that more
than 5,500 fraudulent family cases have been uncovered where the adult
is not the parent of the child. One thousand of those have already
resulted in prosecutions.
Worse, cartels are sending children back on commercial airlines to
their home country to then return at the border with different adults.
Agents call this practice ``recycling children''. ICE identified 600
children who have gone through this. One child told investigators he
was forced to make the trip 8 times.
There's a common misconception that most people illegally crossing
our border are seeking asylum. However, less than 20 percent of
migrants in CBP custody actively claim they have a ``credible fear'' of
return to their home country while in custody. In fiscal year 2018 that
number was 18 percent.
And for those saying everyone is turning themselves in, that is not
the case. According to CBP, last year more than 150,000 migrants who
illegally entered this country got away from authorities, evading
capture and making their way into the interior.
The Trump administration has been forced to act alone and has taken
several important actions to mitigate the crisis as gridlock over
immigration reform continues in Congress.
DHS implemented the Migrant Protection Protocols (MPP) program to
cut down on the overcrowding of migrants in DHS custody and the number
of migrants being released into U.S. communities due to immigration
court backlog. At one point this year, CBP had almost 20,000 people in
custody. Now they are averaging less than 3,500.
DHS has invested in temporary courtrooms near Southwest Border
ports of entry to help expedite immigration hearings for MPP
individuals.
MPP ends the economic incentive of making a meritless asylum claim,
considering only 20 percent of asylum claims get favorable final
judgment but every asylum applicant released in the interior is
provided with work authorization. Department of Justice statistics
point to more than 89,000 orders of removal in absentia in fiscal year
2019 for those who were not detained. MPP mitigates the risk that those
ordered removed will disappear into the interior.
This month, DHS, the State Department, and the International
Organization for Migration visited several shelters operated by faith-
based organizations and the government of Mexico that house MPP
individuals. Those shelters were found to have a persistent law
enforcement presence, adequate medical care, and access to food and
water.
Today's hearing is a missed opportunity to bring in the Department
to ask about that visit and discuss the implementation of the MPP
program in greater detail. We've forgone a fact-finding mission for
nothing short of a show trial.
Nevertheless, I want to again thank our witnesses for appearing
before us today and I look forward to your testimony. I yield back.
Mr. Higgins. Madam Chairwoman, I yield back.
Miss Rice. Thank you, Mr. Higgins. The Chair now recognizes
the Chairman of the full committee, the gentleman from
Mississippi, Mr. Thompson, for an opening statement.
Mr. Thompson. Thank you very much, Chairman Rice. Today the
subcommittee will hear about how the Trump's administration
Remain-in-Mexico Policy has distorted our immigration system by
effectively closing the door to people seeking safety in this
country.
I share Chairwoman's--Rice's concerns about the legal and
humanitarian implications of this misguided policy and thank
her for calling this hearing.
While the Department of Homeland Security officials have
argued Remain-in-Mexico has allowed U.S. Customs and Border
Protection to regain operational control of our border with
Mexico, we actually know better. In fact, the policy has raised
serious legal questions and created a new humanitarian crisis
along our Southern Border.
Moreover, it runs contrary to our American values.
Returning migrants with known physical, mental, and
developmental disabilities in Mexico is unacceptable. Sending
pregnant women into Mexico, where there is no safe housing or
basic medical care for them, is unacceptable. Establishing
secretive courts that DHS uses to process asylum seekers forced
to return to Mexico runs contrary to our values.
Indeed, immigration court proceedings are generally open to
the public for the sake of transparency. The American
Immigration Lawyers Association, ACLU, and Amnesty
International, among others, regularly observe these
proceedings. However, these organizations have been repeatedly
denied access to the new temporary port courts in Brownsville
and Laredo.
For those of you who are familiar with the Rio Grande
Valley, you know about the work of--Sister Norma of Catholic
Charities carries out to assist migrants in that region. Sister
Norma has also been denied entry to the port courts multiple
times, with no real explanation as to why. These observers are
desperately needed.
Attorneys who have been able to get into the port courts
uniformly talk about court operations that run roughshod over
basic due process rights. Paperwork is filled out with wrong
information, or certain information sections are purposely left
blank, for example. Every step that can be taken to limit the
amount of time an attorney can meet with their client is taken.
CBP has even allegedly fabricated future hearing dates for
migrants who are granted asylum in order to return them to
Mexico. The administration appears intent on cutting off access
to the lawful asylum process, even if their actions are legally
questionable, or force vulnerable adults and children into
danger.
I look forward to hearing from our panelists about their
first-hand observation and experience with the Remain-in-Mexico
Policy and the temporary port courts. Their testimony will help
inform the committee's future oversight work.
Efficient and effective border security has long been a
bipartisan priority of this committee. But blocking the asylum
process for vulnerable people and risking their lives by
putting them in harm's way does not make us any safer; it just
makes us less than the America we have held ourselves out to
be.
Again, I thank the Chairwoman for holding today's hearing,
and the Members of the committee for their participation.
I yield back.
[The statement of Chairman Thompson follows:]
Statement of Chairman Bennie G. Thompson
November 19, 2019
Today, the subcommittee will hear about how the Trump
administration's ``Remain in Mexico'' policy has distorted our
immigration system by effectively closing the door to people seeking
safety in this country. I share Chairwoman Rice's concerns about the
legal and humanitarian implications of this misguided policy and thank
her for calling this hearing. While Department of Homeland Security
officials have argued ``Remain in Mexico'' has allowed U.S. Customs and
Border Protection to regain operational control of our border with
Mexico, we know better. In fact, the policy has raised serious legal
questions and created a new humanitarian crisis along our Southern
Border. Moreover, it runs contrary to our American values.
Returning migrants with known physical, mental, and developmental
disabilities to Mexico is unacceptable. Sending pregnant women in to
Mexico, where there is no safe housing or basic medical care for them
is unacceptable. Establishing secretive courts that DHS uses to process
asylum seekers forced to return to Mexico runs contrary to our values.
Indeed, immigration court proceedings are generally open to the public
for the sake of transparency. American Immigration Lawyers Association,
ACLU, and Amnesty International, among others regularly observe
proceedings. However, these organizations have been repeatedly denied
access to the new temporary port courts in Brownsville and Laredo.
For those of you who are familiar with the Rio Grande Valley, you
know about the work Sister Norma of Catholic Charities carries out to
assist migrants in that region. Sister Norma has also been denied entry
to the port courts multiple times with no real explanation as to why.
These observers are desperately needed. Attorneys who have been able to
get in to the port courts uniformly talk about ``court'' operations
that run roughshod over basic due process rights. Paperwork is filled
out with wrong information or certain sections are purposely left
blank, for example. Every step that can be taken to limit the amount of
time an attorney can meet with their clients is taken. CBP has even
allegedly fabricated future hearing dates for migrants who were granted
asylum in order to return them to Mexico. The administration appears
intent on cutting off access to the lawful asylum process, even if
their actions are legally questionable or force vulnerable adults and
children into danger.
I look forward to hearing from our panelists about their first-hand
observations and experience with the Remain in Mexico policy and the
temporary port courts. Their testimony will help inform the committee's
future oversight work. Efficient and effective border security has long
been a bipartisan priority of this committee. But blocking the asylum
process for vulnerable people and risking their lives by putting them
in harm's way does not make us any safer. It just makes us less than
the America we have held ourselves out to be.
Miss Rice. Thank you, Mr. Chairman. The Chair now
recognizes the Ranking Member of the full committee, the
gentleman from Alabama, Mr. Rogers, for an opening statement.
Mr. Rogers. Thank you, Chairman Rice. Let me say for the
record I wholeheartedly support the Remain-in-Mexico Policy. I
think it is an essential policy, and it is in no way inhumane.
This past year nearly 1 million illegal immigrants were
encountered attempting to cross our Southwest Border. It led to
an unprecedented humanitarian crisis. CBP facilities were
overwhelmed and overrun, leading to dangerous conditions, both
for migrants and law enforcement officers. Every day up to 50
percent of Border Patrol agents were taken off the line to
process and care for immigrants.
For months the administration requested emergency funds for
new authorities to deal with this crisis. For months my
colleagues ignored the crisis as a fake emergency. Finally,
Congress acted and provided critical emergency funding. While
the funding helped, it did nothing to address the root cause of
the crisis, and that is loopholes in our asylum laws.
Democrats have yet to move any legislation to close those
loopholes. In the face of Congressional inaction, the Trump
administration has been forced to act on its own. The
administration has secured agreements with Mexico, Guatemala,
Honduras, and El Salvador to improve security cooperation
across the region and reduce exploitation of our immigration
laws.
After negotiations with Mexico, DHS also implemented the
Migrant Protection Protocols Program as a part of a regional
strategy to prevent abuse of our asylum laws, while protecting
those with legitimate claims. MPP discourages non-meritorious
or false asylum claims, and actually helps decrease the wait
time for immigrant court hearings. Migrants under the MPP
program wait months, compared to years for those currently
within the interior.
Congress should focus on reforming our immigration laws,
instead of holding messaging hearings.
Thank you, Mr. Chairman. I will yield back.
[The statement of Ranking Member Rogers follows:]
Statement of Ranking Member Mike Rogers
November 19, 2019
This past year nearly 1 million illegal immigrants were encountered
attempting to cross our Southwest Border illegally.
It led to an unprecedented humanitarian and security crisis.
CBP facilities were overwhelmed and overrun, leading to dangerous
conditions both for migrants and law enforcement officers.
Every day, up to 50 percent of Border Patrol agents were taken off
the line to process and care for migrants.
For months, the administration requested emergency funds and new
authorities to deal with the crisis.
For months, my colleagues ignored the crisis calling it a ``Fake
Emergency''.
Finally, Congress acted and provided critical emergency funding.
While the funding helped, it did nothing to address the root cause
of the crisis--the loopholes in our asylum laws.
Democrats have yet to move any legislation to close these
loopholes.
In the face of Congressional inaction, the Trump administration has
been forced to act on its own.
The administration has secured agreements with Mexico, Guatemala,
Honduras, and El Salvador to improve security cooperation across the
region and reduce exploitation of our immigration laws.
After negotiations with Mexico, DHS also implemented the Migrant
Protection Protocols program as part of a regional strategy to prevent
abuse of our asylum laws, while protecting those with legitimate
claims.
MPP discourages non-meritorious or false asylum claims and actually
helps decrease wait times for immigration court hearings.
Migrants under the MPP program wait months compared to years for
those currently within the interior. Congress should focus on reforming
our immigration laws instead of holding messaging hearings.
Mr. Higgins. Madam Chair.
Miss Rice. Thank you.
Yes?
Mr. Higgins. I would like to seek unanimous consent to
submit the Department of Homeland Security's October 2019
assessment of MPP program for the record.
Miss Rice. Yes. So ordered.
[The information follows:]
Assessment of the Migrant Protection Protocols (MPP)
October 28, 2019
i. overview and legal basis
The Department of Homeland Security (DHS) remains committed to
using all available tools to address the unprecedented security and
humanitarian crisis at the Southern Border of the United States.
At peak of the crisis in May 2019, there were more than
4,800 aliens crossing the border daily--representing an average
of more than 3 apprehensions per minute.
The law provides for mandatory detention of aliens who
unlawfully enter the United States between ports of entry if
they are placed in expedited removal proceedings. However,
resource constraints during the crisis, as well as other court-
ordered limitations on the ability to detain individuals, made
many releases inevitable, particularly for aliens who were
processed as members of family units.
Section 235(b)(2)(C) of the Immigration and Nationality Act (INA)
authorizes the Department of Homeland Security to return certain
applicants for admission to the contiguous country from which they are
arriving on land (whether or not at a designated port of entry),
pending removal proceedings under INA 240.
Consistent with this express statutory authority, DHS began
implementing the Migrant Protection Protocols (MPP) and
returning aliens subject to INA 235(b)(2)(C) to Mexico, in
January 2019.
Under MPP, certain aliens who are nationals and citizens of
countries other than Mexico (third-country nationals) arriving
in the United States by land from Mexico who are not admissible
may be returned to Mexico for the duration of their immigration
proceedings.
The U.S. Government initiated MPP pursuant to U.S. law, but has
implemented and expanded the program through on-going discussions, and
in close coordination, with the Government of Mexico (GOM).
MPP is a core component of U.S. foreign relations and
bilateral cooperation with GOM to address the migration crisis
across the shared U.S.-Mexico border.
MPP expansion was among the key ``meaningful and
unprecedented steps'' undertaken by GOM ``to help curb the flow
of illegal immigration to the U.S. border since the launch of
the U.S.-Mexico Declaration in Washington on June 7, 2019.''\1\
---------------------------------------------------------------------------
\1\ https://www.whitehouse.gov/briefings-statements/readout-vice-
president-mike-pences-meeting-mexican-foreign-secretary-marcelo-ebrard/
---------------------------------------------------------------------------
On September 10, 2019, Vice President Pence and Foreign
Minister Ebrard ``agree[d] to implement the Migrant Protection
Protocols to the fullest extent possible.''\2\
---------------------------------------------------------------------------
\2\ https://www.whitehouse.gov/briefings-statements/readout-vice-
president-mike-pences-meeting-mexican-foreign-secretary-marcelo-ebrard/
---------------------------------------------------------------------------
Therefore, disruption of MPP would adversely impact U.S.
foreign relations--along with the U.S. Government's ability to
effectively address the border security and humanitarian crisis
that constitutes an on-going National emergency.\3\
---------------------------------------------------------------------------
\3\ https://www.whitehouse.gov/presidential-actions/presidential-
proclamation-declaring-national-emergency-concerning-southern-border-
united-states/.
---------------------------------------------------------------------------
ii. mpp has demonstrated operational effectiveness
In the past 9 months--following a phased implementation, and in
close coordination with GOM--DHS has returned more than 55,000 aliens
to Mexico under MPP. MPP has been an indispensable tool in addressing
the on-going crisis at the Southern Border and restoring integrity to
the immigration system.
Apprehensions of Illegal Aliens are Decreasing
Since a recent peak of more than 144,000 in May 2019, total
enforcement actions--representing the number of aliens
apprehended between points of entry or found inadmissible at
ports of entry--have decreased by 64 percent, through September
2019.
Border encounters with Central American families--who were
the main driver of the crisis and comprise a majority of MPP-
amenable aliens--have decreased by approximately 80 percent.
Although MPP is one among many tools that DHS has employed
in response to the border crisis, DHS has observed a connection
between MPP implementation and decreasing enforcement actions
at the border--including a rapid and substantial decline in
apprehensions in those areas where the most amenable aliens
have been processed and returned to Mexico pursuant to MPP.
MPP is Restoring Integrity to the System
Individuals returned to Mexico pursuant to MPP are now at
various stages of their immigration proceedings: Some are
awaiting their first hearing; some have completed their first
hearing and are awaiting their individual hearing; some have
received an order of removal from an immigration judge and are
now pursuing an appeal; some have established a fear of return
to Mexico and are awaiting their proceedings in the United
States; some have been removed to their home countries; and
some have withdrawn claims and elected to voluntarily return to
their home countries.
MPP returnees with meritorious claims can be granted relief
or protection within months, rather than remaining in limbo for
years while awaiting immigration court proceedings in the
United States.
The United States committed to GOM to minimize the time
that migrants wait in Mexico for their immigration
proceedings. Specifically, the Department of Justice (DOJ)
agreed to treat MPP cases such as detained cases such that
they are prioritized according to longstanding guidance for
such cases.
The first 3 locations for MPP implementation--San Diego,
Calexico, and El Paso--were chosen because of their close
proximity to existing immigration courts.
After the June 7, 2019, Joint Declaration between GOM and
the United States providing for expansion of MPP through
bilateral cooperation, DHS erected temporary, dedicated MPP
hearing locations at ports of entry in Laredo and
Brownsville, in coordination with DOJ, at a total 6-month
construction and operation cost of approximately $70
million.
Individuals processed in MPP receive initial court
hearings within 2 to 4 months, and--as of October 21,
2019--almost 13,000 cases had been completed at the
immigration court level.
A small subset of completed cases have resulted in grants
of relief or protection, demonstrating that MPP returnees
with meritorious claims can receive asylum, or any relief
or protection for which they are eligible, more quickly via
MPP than under available alternatives.
Individuals not processed under MPP generally must wait
years for adjudication of their claims. There are
approximately 1 million pending cases in DOJ immigration
courts. Assuming the immigration courts received no new
cases and completed existing cases at a pace of 30,000 per
month--it would take several years, until approximately the
end of 2022, to clear the existing backlog.
MPP returnees who do not qualify for relief or protection
are being quickly removed from the United States. Moreover,
aliens without meritorious claims--which no longer constitute a
free ticket into the United States--are beginning to
voluntarily return home.
According to CBP estimates, approximately 20,000 people
are sheltered in northern Mexico, near the U.S. border,
awaiting entry to the United States. This number--along
with the growing participation in an Assisted Voluntary
Return (AVR) program operated by the International
Organization for Migration (IOM), as described in more
detail below--suggests that a significant proportion of the
55,000+ MPP returnees have chosen to abandon their claims.
iii. both governments endeavor to provide safety and security for
migrants
The Government of Mexico (GOM) has publicly committed to protecting
migrants.
A December 20, 2018, GOM statement indicated that ``Mexico
will guarantee that foreigners who have received their notice
fully enjoy the rights and freedoms recognized in the
Constitution, in the international treaties to which the
Mexican state is a party, as well as in the current Migration
Law. They will be entitled to equal treatment without any
discrimination and due respect to their human rights, as well
as the opportunity to apply for a work permit in exchange for
remuneration, which will allow them to meet their basic
needs.''
Consistent with its commitments, GOM has accepted the
return of aliens amenable to MPP. DHS understands that MPP
returnees in Mexico are provided access to humanitarian
care and assistance, food and housing, work permits, and
education.
GOM has launched an unprecedented enforcement effort
bringing to justice transnational criminal organizations
(TCOs) who prey on migrants transiting through Mexico--
enhancing the safety of all individuals, including MPP-
amenable aliens.
As a G-20 country with many of its 32 states enjoying low
unemployment and crime, Mexico's commitment should be taken in
good faith by the United States and other stakeholders. Should
GOM identify any requests for additional assistance, the United
States is prepared to assist.
Furthermore, the U.S. Government is partnering with international
organizations offering services to migrants in cities near Mexico's
northern border.
In September 2019, the U.S. Department of State Bureau of
Population, Refugees, and Migration (PRM) funded a $5.5 million
project by IOM to provide shelter in cities along Mexico's
northern border to approximately 8,000 vulnerable third-country
asylum seekers, victims of trafficking, and victims of violent
crime in cities along Mexico's northern border.
In late September 2019, PRM provided $11.9 million to IOM to
provide cash-based assistance for migrants seeking to move out
of shelters and into more sustainable living.
The U.S. Government is also supporting options for those
individuals who wish to voluntarily withdraw their claims and receive
free transportation home. Since November 2018, IOM has operated its AVR
program from hubs within Mexico and Guatemala, including Tijuana and
Ciudad Juarez. PRM has provided $5 million to IOM to expand that
program to Matamoros and Nuevo Laredo and expand operations in other
Mexican northern border cities. As of mid-October, almost 900 aliens in
MPP have participated in the AVR program.
The United States' on-going engagement with Mexico is part of a
larger framework of regional collaboration. Just as United Nations High
Commissioner for Refugees has called for international cooperation to
face the serious challenges in responding to large-scale movement of
migrants and asylum seekers traveling by dangerous and irregular means,
the U.S. Government has worked with Guatemala, El Salvador, and
Honduras to form partnerships on asylum cooperation (which includes
capacity-building assistance), training and capacity building for
border security operations, biometrics data sharing and increasing
access to H-2A and H-2B visas for lawful access to the United States.
iv. screening protocols appropriately assess fear of persecution or
torture
When a third-country alien states that he or she has a fear
of persecution or torture in Mexico, or a fear of return to
Mexico, the alien is referred to U.S. Citizenship & Immigration
Services (USCIS). Upon referral, USCIS conducts an MPP fear-
assessment interview to determine whether it is more likely
than not that the alien will be subject to torture or
persecution on account of a protected ground if returned to
Mexico.
MPP fear assessments are conducted consistent with U.S.
law implementing the non-refoulement obligations imposed on
the United States by certain international agreements and
inform whether an alien is processed under--or remains--in
MPP.
As used here, ``persecution'' and ``torture'' have
specific international and domestic legal meanings distinct
from fear for personal safety. Fear screenings are a well-
established part of MPP. As of October 15, 2019, USCIS
completed over 7,400 screenings to assess a fear of return
to Mexico.
That number included individuals who express a fear upon
initial encounter, as well as those who express a fear of
return to Mexico at any subsequent point in their
immigration proceedings, including some individuals who
have made multiple claims.
Of those, approximately 13 percent have received positive
determinations and 86 percent have received negative
determinations.
Thus, the vast majority of those third-country aliens who
express fear of return to Mexico are not found to be more
likely than not to be tortured or persecuted on account of
a protected ground there. This result is unsurprising, not
least because aliens amenable to MPP voluntarily entered
Mexico en route to the United States.
v. summary and conclusion
In recent years, only about 15 percent of Central American
nationals making asylum claims have been granted relief or protection
by an immigration judge. Similarly, affirmative asylum grant rates for
nationals of Guatemala, El Salvador, and Honduras were approximately 21
percent in fiscal year 2019. At the same time, there are--as noted
above--over 1 million pending cases in DOJ immigration courts, in
addition to several hundred thousand asylum cases pending with USCIS.
These unprecedented backlogs have strained DHS resources and
challenged its ability to effectively execute the laws passed by
Congress and deliver appropriate immigration consequences: Those with
meritorious claims can wait years for protection or relief, and those
with non-meritorious claims often remain in the country for lengthy
periods of time.
This broken system has created perverse incentives, with damaging
and far-reaching consequences for both the United States and its
regional partners. In fiscal year 2019, certain regions in Guatemala
and Honduras saw 2.5 percent of their population migrate to the United
States, which is an unsustainable loss for these countries.
MPP is one among several tools DHS has employed effectively to
reduce the incentive for aliens to assert claims for relief or
protection, many of which may be meritless, as a means to enter the
United States to live and work during the pendency of multi-year
immigration proceedings. Even more importantly, MPP also provides an
opportunity for those entitled to relief to obtain it within a matter
of months. MPP, therefore, is a cornerstone of DHS's on-going efforts
to restore integrity to the immigration system--and of the United
States' agreement with Mexico to address the crisis at our shared
border.
Appendix A: Additional Analysis of MPP Fear-Assessment Protocol
U.S. Citizenship and Immigration Services (USCIS) strongly believes
that if DHS were to change its fear-assessment protocol to
affirmatively ask an alien amenable to MPP whether he or she fears
return to Mexico, the number of fraudulent or meritless fear claims
will significantly increase. This prediction is, in large part,
informed by USCIS's experience conducting credible fear screenings for
aliens subject to expedited removal. Credible fear screenings occur
when an alien is placed into expedited removal under section 235(b)(1)
of the Immigration and Nationality Act--a streamlined removal mechanism
enacted by Congress to allow for prompt removal of aliens who lack
valid entry documents or who attempt to enter the United States by
fraud--and the alien expresses a fear of return to his or her home
country or requests asylum. Under current expedited removal protocol,
the examining immigration officer--generally U.S. Customs and Border
Protection officers at a port of entry or Border Patrol agents--read 4
questions, included on Form I-867B, to affirmatively ask each alien
subject to expedited removal whether the alien has a fear of return to
his or her country of origin.\4\
---------------------------------------------------------------------------
\4\ See 8 C.F.R. 235.3(b)(2).
---------------------------------------------------------------------------
The percentage of aliens subject to expedited removal who claimed a
fear of return or requested asylum was once quite modest. However, over
time, seeking asylum has become nearly a default tactic used by
undocumented aliens to secure their release into the United States. For
example, in 2006, of the 104,440 aliens subjected to expedited removal,
only 5 percent (5,338 aliens) were referred for a credible fear
interview with USCIS. In contrast, 234,591 aliens were subjected to
expedited removal in 2018, but 42 percent (or 99,035) were referred to
USCIS for a credible fear interview, significantly straining USCIS
resources.
TABLE A1: ALIENS SUBJECT TO EXPEDITED REMOVAL AND SHARE MAKING FEAR CLAIMS, FISCAL YEAR 2006-2018
----------------------------------------------------------------------------------------------------------------
Subjected to Referred for a Percentage
Fiscal Year Expedited Credible Fear Referred for
Removal Interview Credible Fear
----------------------------------------------------------------------------------------------------------------
2006...................................................... 104,440 5,338 5
2007...................................................... 100,992 5,252 5
2008...................................................... 117,624 4,995 4
2009...................................................... 111,589 5,369 5
2010...................................................... 119,876 8,959 7
2011...................................................... 137,134 11,217 8
2012...................................................... 188,187 13,880 7
2013...................................................... 241,442 36,035 15
2014...................................................... 240,908 51,001 21
2015...................................................... 192,120 48,052 25
2016...................................................... 243,494 94,048 39
2017...................................................... 178,129 78,564 44
2018...................................................... 234,591 99,035 42
----------------------------------------------------------------------------------------------------------------
Transitioning to an affirmative fear questioning model for MPP-
amenable aliens would likely result in a similar increase. Once it
becomes known that answering ``yes'' to a question can prevent prompt
return to Mexico under MPP, DHS would experience a rise in fear claims
similar to the expedited removal/credible fear process. And,
affirmatively drawing out this information from aliens rather than
reasonably expecting them to come forward on their own initiative could
well increase the meritless fear claims made by MPP-amenable aliens.
It also bears emphasis that relatively small proportions of aliens
who make fear claims ultimately are granted asylum or another form of
relief from removal. Table A2 describes asylum outcomes for aliens
apprehended or found inadmissible on the Southwest Border in fiscal
years 2013-2018. Of the 416 thousand aliens making fear claims during
that 6-year period, 311 thousand (75 percent) had positive fear
determinations, but only 21 thousand (7 percent of positive fear
determinations) had been granted asylum or another form of relief from
removal as of March 31, 2019, versus 72 thousand (23 percent) who had
been ordered removed or agreed to voluntary departure. (Notably, about
70 percent of aliens with positive fear determinations in fiscal year
2013-2018 remained in EOIR proceedings as of March 31, 2019.)
TABLE A2: ASYLUM OUTCOMES, SOUTHWEST BORDER ENCOUNTERS, FISCAL YEAR 2013-2018
----------------------------------------------------------------------------------------------------------------
Year of Encounter 2013 2014 2015 2016 2017 2018 Total
----------------------------------------------------------------------------------------------------------------
Total Encounters.............. 490,093 570,832 446,060 560,432 416,645 522,626 3,006,688
Subjected to ER............... 225,426 222,782 180,328 227,382 160,577 214,610 1,231,105
Fear Claims *................. 39,648 54,850 50,588 98,265 72,026 100,756 416,133
Positive Fear Determinations 31,462 36,615 35,403 76,005 55,251 75,856 310,592
**...........................
Asylum Granted or Other Relief 3,687 4,192 3,956 4,775 2,377 2,168 21,155
***.......................... 11.7% 11.4% 11.2% 6.3% 4.3% 2.9% 6.8%
Removal Orders ****........... 9,980 11,064 9,466 17,700 12,130 11,673 72,013
31.7% 30.2% 26.7% 23.3% 22.0% 15.4% 23.2%
Asylum Cases Pending.......... 17,554 21,104 21,737 53,023 40,586 61,918 215,922
55.8% 57.6% 61.4% 69.8% 73.5% 81.6% 69.5%
Other......................... 241 255 244 507 158 97 1,502
----------------------------------------------------------------------------------------------------------------
Source: DHS Office of Immigration Statistics Enforcement Lifecycle.
Notes for Table A2: Asylum outcomes are current as of March 31, 2019.
* Fear claims include credible fear cases completed by USCIS as well as individuals who claimed fear at the time
of apprehension but who have no record of a USCIS fear determination, possibly because they withdrew their
claim.
** Positive fear determinations include positive determinations by USCIS as well as negative USCIS
determinations vacated by EOIR.
*** Asylum granted or other relief includes withholding of removal, protection under the Convention Against
Torture, Special Immigrant Juvenile status, cancelation of removal, and other permanent status conferred by
EOIR.
**** Removal orders include completed repatriations and unexecuted orders of removal and grants of voluntary
departure.
Implementing MPP assessments currently imposes a significant
resource burden to DHS. As of October 15, 2019, approximately 10
percent of individuals placed in MPP have asserted a fear of return to
Mexico and have been referred to an asylum officer for a MPP fear
assessment. The USCIS Asylum Division assigns on average approximately
27 asylum officers per day to handle this caseload Nation-wide. In
addition, the Asylum Division must regularly expend overtime resources
after work hours and on weekends to keep pace with the same-day/next-
day processing requirements under MPP. This workload diverts resources
from USCIS's affirmative asylum caseload, which currently is
experiencing mounting backlogs.
Most importantly, DHS does not believe amending the process to
affirmatively ask whether an alien has a fear of return to Mexico is
necessary in order to properly identify aliens with legitimate fear
claims in Mexico because under DHS's current procedures, aliens subject
to MPP may raise a fear claim to DHS at any point in the MPP process.
Aliens are not precluded from receiving a MPP fear assessment from an
asylum officer if they do not do so initially upon apprehension or
inspection, and many do. As of October 15, 2019,\5\ approximately 4,680
aliens subject to MPP asserted a fear claim and received an MPP fear-
assessment after their initial encounter or apprehension by DHS, with
14 percent found to have a positive fear of return to Mexico.
Additionally, Asylum Division records indicate as of October 15,
2019,\6\ approximately 618 aliens placed into MPP have asserted
multiple fear claims during the MPP process (from the point of
placement into MPP at the initial encounter or apprehension) and have
therefore received multiple fear assessments to confirm whether
circumstances have changed such that the alien should not be returned
to Mexico. Of these aliens, 14 percent were found to have a positive
fear of return to Mexico.
---------------------------------------------------------------------------
\5\ USCIS began tracking this information on July 3, 2019.
\6\ USCIS began tracking this information on July 3, 2019.
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Additionally, asylum officers conduct MPP fear assessments with
many of the same safeguards provided to aliens in the expedited
removal/credible fear context. For example, DHS officers conduct MPP
assessment interviews in a non-adversarial manner, separate and apart
from the general public, with the assistance of language interpreters
when needed.\7\
---------------------------------------------------------------------------
\7\ USCIS Policy Memorandum PM-602-0169, Guidance for Implementing
Section 235(b)(2)(C) of the Immigration and Nationality Act and the
Migrant Protection Protocols, 2019 WL 365514 (Jan. 28, 2019).
---------------------------------------------------------------------------
In conducting MPP assessments, asylum officers apply a ``more
likely than not'' standard, which is a familiar standard. ``More likely
than not'' is equivalent to the ``clear probability'' standard for
statutory withholding and not unique to MPP. Asylum officers utilize
the same standard in the reasonable fear screening process when claims
for statutory withholding of removal and protection under the
Convention Against Torture (CAT).\8\ The risk of harm standard for
withholding (or deferral) of removal under the Convention Against
Torture (CAT) implementing regulations is the same, i.e., ``more likely
than not.''\9\ In addition to being utilized by asylum officers in
other protection contexts, the ``more likely than not'' standard
satisfies the U.S. Government's non-refoulement obligations.
---------------------------------------------------------------------------
\8\ See INA 241(b)(3); 8 C.F.R. 1208.16(b)(2) (same); See 8
C.F.R. 1208.16(c)(2).
\9\ See 8 C.F.R. 1208.16(c)(2); Regulations Concerning the
Convention Against Torture, 64 Fed. Reg. 8478, 8480 (Feb. 19, 1999)
(detailing incorporation of the ``more likely than not'' standard into
U.S. CAT ratification history); see also Matter of J-F-F-, 23 I&N Dec.
912 (BIA 2006).
Miss Rice. Other Members of the committee are reminded
that, under the committee rooms--rules, opening statements may
be submitted for the record.
Without objection, Members not sitting on the committee
will be permitted to participate in today's hearing. Today we
welcome our colleague from Texas, Ms. Escobar.
I now welcome our panel of witnesses.
Our first witness, Ms. Laura Pena, is pro bono counsel at
the American Bar Association's Commission on Immigration. She
is a native of the Rio Grande Valley, and was previously
appointed as a foreign policy advisor at the U.S. State
Department under the Obama administration, and later served as
an immigration trial attorney at the U.S. Department of
Homeland Security. Prior to joining the ABA she served as a
visiting attorney with the Texas Civil Rights Project to assist
family reunification efforts after the zero tolerance policy
went into effect last summer along the U.S.-Mexico border.
Our second witness is Ms. Erin Thorn Vela, a staff attorney
at the Texas Civil Rights Project who advocates on behalf of
immigrants and low-income individuals. Though Ms. Thorn Vela
was a front-line volunteer during the family separation crisis
last year, much of her recent efforts have focused on assisting
asylum seekers forced to wait in Mexico under the Trump
administration's Remain-in-Mexico policy.
Next, Dr. Todd Schneberk is an assistant professor of
emergency medicine at the University of Southern California,
and an asylum clinician with Physicians for Human Rights. He
has worked with displaced persons in Tijuana, Mexico for the
last 5 years, and performed forensic evaluations for asylum
cases on both sides of the border, including on numerous
individuals in the Remain-in-Mexico program who are waiting in
Tijuana.
We also have Mr. Michael Knowles, the president of the
American Federation of Government Employees Local 1924, the CIS
Council 119 affiliate representing more than 2,500 USCIS
employees in the D.C. region. Mr. Knowles began working with
refugee communities in 1975, both in the United States and
abroad, in countries such as Afghanistan, Indonesia, and
Thailand. He has served as an asylum officer since 1992 but is
here in his capacity as special representative for refugees'
asylum and international operations, representing the views of
the union and its members.
Our final witness this morning is Mr. Thomas Homan, the
former acting director of Immigration and Customs Enforcement.
Mr. Homan began his career as a police officer in West
Carthage, New York, before joining what was then called the
Immigration and Naturalization Service. Mr. Homan has since
served as a Border Patrol agent, investigator, and eventually
an executive associate director. In January 2017, President
Trump named Mr. Homan the acting director of ICE, where he
served until June 2018.
Without objection, the witnesses' full statements will be
inserted in the record.
I now ask each witness to summarize his or her statement
for 5 minutes, beginning with Ms. Pena.
STATEMENT OF LAURA PENA, PRO BONO COUNSEL, AMERICAN BAR
ASSOCIATION COMMISSION ON IMMIGRATION
Ms. Pena. Thank you, Chairman--Chairwoman Rice, Ranking
Member Higgins, and Members of this subcommittee. My name is
Laura Pena. I am pro bono counsel for the American Bar
Association Commission on Immigration. I am pleased to testify
today on behalf of ABA president, Judy Perry Martinez. Thank
you for this opportunity to share our views with the
subcommittee.
The ABA is deeply concerned about the Migrant Protection
Protocols, also known as Remain-in-Mexico, which discriminates
against Spanish-speaking asylum seekers, and deprives them of
full and fair access to the American justice system.
We are further concerned about the personal safety of the
more than 55,000 asylum seekers who have been subjected to this
policy, and returned to await in dangerous conditions in
Mexico, particularly along the Texas border and cities of
Juarez, Nuevo Laredo, Reynosa, and Matamoros, the latter in
which there is a refugee tent encampment.
To date the ABA is the only non-governmental organization
that has had a tour of the Brownsville Tent Court, a soft-sided
facility erected near the port of entry, where MPP hearings
take place, and which remains closed to the public. I am based
in the Rio Grande Valley, and I have represented individuals
placed into MPP proceedings. I will briefly identify the
primary issues that have led to the erosion of legal
protections for asylum seekers under the Migrant Protection
Protocols.
First, asylum seekers are being returned to dangerous
cities where organizations have documented hundreds, hundreds
of incidents of kidnappings and violence. The ABA is concerned
that DHS's efforts to comply with its non-refoulement
obligations--that is, the legal obligation to refrain from
sending refugees to countries where they could suffer
persecution or torture--has failed. Asylum seekers must
affirmatively request an non-refoulement interview to be
removed from the MPP program, placing the burden on the
applicant, when it is a legal obligation of the U.S.
Government. Moreover, the legal standard is so high that only a
small percentage of applicants actually pass the interview to
be allowed to pursue their claims in the United States.
Second, the Brownsville Tent Court, a DHS-run facility
managed by CBP, serves as a major obstacle to basic due process
protections. To appear for their hearings, asylum seekers with
early morning hearings travel through dangerous border cities
in the middle of the night and have to wait on the bridge
before they are processed for their hearing. Once at the tent
court, immigration judges, interpreters, and Government counsel
appear via video teleconference, while respondents appear at
the tent court, most without an attorney.
The technology can be unreliable, leading to disruptive
delays that can further traumatize vulnerable asylum seekers.
When the technology does function, no simultaneous
interpretation is provided during the hearings, with the
exception of procedural matters, and as directed by the judge.
The procedures for hearings at the tent court result in
unfairness and a lack of due process.
The tent court also frustrates meaningful access to
counsel. Asylum seekers do have the statutory right to counsel
in immigration proceedings. Although there are many attorney-
client meeting rooms available in this particular tent court,
these rooms are greatly under-utilized, due to restricted
access managed by CBP.
Attorneys may enter the tent courts only to appear at the
hearing for an asylum seeker the attorney already represents.
Attorneys cannot enter this facility to screen potential
clients. Once an attorney-client relationship is somehow
created, attorneys can only consult with their clients 1 hour
prior to the commencement of the hearing on the date of the
hearing. Attorneys are often prohibited from meeting with their
clients after the end of the hearing, simply to explain what
transpired during the hearing where there was insufficient
interpretation.
This all means that U.S. lawyers must go to their clients
in Mexico, a dangerous proposition that many attorneys will not
take. Each time I need to meet with my client I must take
precautions to ensure my personal safety while in Mexico. I
cross only during the day and must coordinate my visits with
humanitarian groups or other colleagues.
During one legal visit into Matamoros, several convoys of
heavily-armed Mexican military officials rolled into the
refugee encampment. Several U.S. attorneys and humanitarian aid
workers evacuated the encampment out of fear that the military
would begin forcibly removing the refugees. My legal
consultation that day was cut short, and I returned days later
to consult with my client again, and had to consult along a
narrow sidewalk along the port of entry during a heavy
rainstorm, where my client's 4-year-old son was crying because
he was scared of the thunderstorm.
This is not meaningful access to counsel, and attorneys
should not have to endure such dangerous conditions to fulfil
their professional responsibilities. For these reasons, the ABA
urges that the Migrant Protection Protocols be rescinded, and
that procedures be put in place to ensure fair treatment and
due process for all asylum seekers.
Thank you for your time.
[The prepared statement of Ms. Pena follows:]
Prepared Statement of Laura Pena
Chairwoman Rice, Ranking Member Higgins, and Members of the
subcommittee: My name is Laura Pena and I am pro bono counsel for the
American Bar Association Commission on Immigration. Thank you for the
opportunity to participate in this hearing on ``Examining the Human
Rights and Legal Implications of DHS's `Remain in Mexico' Policy.''
Prior to my current position, I have worked at the Department of
State on issues relating to Latin America, human rights, and human
trafficking; as well as a trial attorney for the Department of Homeland
Security, Immigration and Customs Enforcement; at a private law firm
specializing in business immigration; and as a visiting attorney at the
Texas Civil Rights Project leading family reunification efforts. I also
am a native of the Rio Grande Valley of South Texas.
The American Bar Association (ABA) is the largest voluntary
association of lawyers and legal professionals in the world. As the
national voice of the legal profession, the ABA works to improve the
administration of justice, promotes programs that assist lawyers and
judges in their work, accredits law schools, provides continuing legal
education, and works to build public understanding around the world of
the importance of the rule of law. The ABA's Commission on Immigration
develops recommendations for modifications in immigration law and
policy; provides continuing education to the legal community, judges,
and the public; and develops and assists in the operation of pro bono
legal representation programs.
The ABA is deeply concerned that the Migrant Protection Protocols
(MPP), also known as the ``Remain in Mexico'' policy, discriminate
against Spanish-speaking asylum seekers and deprive them of full and
fair access to the American justice system, including meaningful access
to counsel. We also are concerned about the personal safety of the more
than 55,000 individuals who have been subjected to this policy. This
concern is not theoretical. We have seen the practical effects of this
policy first-hand.
The ABA has 2 pro bono representation projects--the South Texas Pro
Bono Asylum Representation Project in Harlingen, Texas and the
Immigration Justice Project in San Diego, California--that provide
legal assistance to detained adult migrants and unaccompanied children.
When MPP began in the Rio Grande Valley this past summer, we initiated
an assessment of the issues surrounding the rendering of immigration
legal services to this vulnerable population. Based on that assessment,
we recently expanded our services to include legal assistance to asylum
seekers living in Matamoros, Mexico while their U.S. immigration
proceedings are pending.
Traditionally, asylum seekers who entered the United States via the
Southern Border, whether at or between official ports of entry, were
apprehended by Customs & Border Protection (CBP) and subsequently
detained by Immigration & Customs Enforcement (ICE). The asylum seekers
remained in detention while presenting their claims for relief or,
alternatively, were released into the United States to pursue their
claims in regular immigration court.
The establishment of MPP was announced on December 20, 2018 and the
Department of Homeland Security began implementation of the policy on
January 25, 2019.\1\ Under MPP, CBP officials return Spanish-speaking
nationals from non-contiguous countries back to Mexico after they seek
to enter the United States unlawfully or without proper documentation.
In the Rio Grande Valley, DHS returns the great majority of non-
Mexican, Spanish-speaking adults and family units who do not have
criminal records or immigration histories to Mexico. This includes
pregnant women, and members of other vulnerable groups--such as
individuals with mental and physical disabilities, and LGBTQ+
individuals--who are supposed to be given special consideration under
the program.
---------------------------------------------------------------------------
\1\ See Kirstjen M. Nielsen, Policy Guidance for Implementation of
the Migrant Protection Protocols 1 (Jan. 25, 2019), https://
www.dhs.gov/sites/default/files/publications/- 19_0129_OPA_migrant-
protection-protocols-policy-guidance.pdf (``Nielsen Policy Guidance'').
---------------------------------------------------------------------------
Individuals processed under MPP are issued a Notice to Appear
(``NTA'') in an immigration court in the United States at a future
date, and returned to Mexico until that time, unless they affirmatively
express a fear of return to Mexico. If an individual expresses a fear
of return to Mexico, an asylum officer conducts a non-refoulement
interview \2\ to determine whether she is more likely than not to be
persecuted or tortured in Mexico. The policy does not allow attorney
representation during these interviews, but at least one Federal court
has issued an injunction instructing DHS to allow attorneys access
during this critical interview.\3\ If the asylum officer determines the
individual does not show she is more likely than not to be persecuted
or tortured in Mexico, the asylum seeker must wait in Mexico during her
immigration proceedings, a process that is likely to take months.
---------------------------------------------------------------------------
\2\ Generally, a non-refoulement interview is DHS's procedural
attempt to comply with international obligations to refrain from
sending refugees back to dangerous countries where they could suffer
persecution of torture. See infra at page 3 for a legal assessment of
non-refoulement interviews.
\3\ The ACLU Foundation of San Diego & Imperial Counties recently
filed a class-action lawsuit demanding that MPP asylum seekers who have
expressed a fear of return be given access to retained counsel before
and during these screening interviews. See Doe et al. v. McAleenan,
3:19cv2119-DMS-AGS (S.D. Cal.). On November 12, 2019, U.S. District
Judge Dana Sabraw granted the individual plaintiffs' request for a
temporary restraining order, but he has not ruled on the class claims.
See Order Granting Motion for Temporary Restraining Order, Doe et al.
v. McAleenan, 3:19cv2119-DMS-AGS (S.D. Cal. Nov. 12, 2019).
---------------------------------------------------------------------------
The MPP program subjects migrants and asylum seekers to extremely
dangerous conditions in Mexican border cities. The Department of State
advises U.S. citizens not to travel to Tamaulipas State, where
Matamoros and Nuevo Laredo are located, due to ``crime and
kidnapping.'' It has assigned Tamaulipas the highest travel advisory
level, Level 4--the same level assigned to countries such as Syria and
Yemen.\4\
---------------------------------------------------------------------------
\4\ U.S. Dep't of State, Mexico Travel Advisory, https://
travel.state.gov/content/travel/en/traveladvisories/traveladvisories/
mexico-travel-advisory.html. (``Violent crime, such as murder, armed
robbery, carjacking, kidnapping, extortion, and sexual assault, is
common. Gang activity, including gun battles and blockades, is
widespread. Armed criminal groups target public and private passenger
buses as well as private automobiles traveling through Tamaulipas,
often taking passengers hostage and demanding ransom payments. Federal
and State security forces have limited capability to respond to
violence in many parts of the State.'') (last visited Nov. 17, 2019).
---------------------------------------------------------------------------
ABA staff, including myself, have provided legal assistance to MPP
asylum seekers, observed MPP hearings, and appeared on behalf of MPP
clients. The ABA is committed to ensuring that all individuals are
afforded due process rights guaranteed by U.S. law. Based on our
experience and observations, the MPP/Remain in Mexico policy fails to
comport with fundamental legal protections required under the law.
non-refoulement
The ABA is concerned that DHS's efforts to comply with its non-
refoulement obligations do not adequately protect the legal rights of
MPP asylum seekers who fear that they will be subjected to persecution
or torture in Mexico. The United States is a party to the 1967 Protocol
Relating to the Status of Refugees, which incorporates Articles 2-34 of
the 1951 Convention Relating to the Status of Refugees.\5\ Article 33
of the 1951 Convention provides that ``[n]o contracting state shall
expel or return (``refouler'') a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of
a particular social group or political opinion.''\6\ The United States
is also bound by Article 3 of the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (``CAT''), which
provides that ``No state Party shall expel, return (``refouler'') or
extradite a person to another state where there are substantial grounds
for believing that he would be in danger of being subjected to
torture.''\7\ Congress subsequently codified these obligations into
law.\8\
---------------------------------------------------------------------------
\5\ Nielsen Policy Guidance at 3 n3.
\6\ Protocol Relating to the Status of Refugees, art. I, Jan. 31,
1967, 19 U.S.T. 6223, 6225, 6276.
\7\ CAT art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, at 20
(1988).
\8\ I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (noting
that one of the primary purposes in enacting the Refugee Act of 1980
was to implement the principles agreed to in the 1967 Protocol, and
that the withholding of removal statute, now codified at 8 U.S.C.
1231(b)(3), mirrors Article 33); Foreign Affairs Reform and
Restructuring Act of 1998 (FARRA) 2242(a), Pub. L. No. 105-277, Div.
G Title XXII, 112 Stat. 2681 (codified at 8 U.S.C. 1231 note) (``It
shall be the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a country in
which there are substantial grounds for believing the person would be
in danger of being subjected to torture, regardless of whether the
person is physically present in the United States.'').
---------------------------------------------------------------------------
Despite widespread danger faced by asylum seekers in Mexico,\9\ DHS
does not affirmatively ask individuals subjected to MPP whether they
fear persecution or torture if returned there. Where asylum seekers do
express a fear of return to Mexico on their own, something they should
not be required to do under applicable law, they are supposed to be
afforded a telephonic screening interview with an asylum officer.\10\
However, asylum seekers do not have the right to consult with counsel
before the interview, or to have an attorney represent them in the
interview itself. According to DHS only 13 percent of the individuals
who have received these screenings have been given positive
determinations.\11\
---------------------------------------------------------------------------
\9\ Human Rights First, Orders from Above: Massive Human Rights
Abuses Under Trump Administration Return to Mexico Policy 3-8 (Oct.
2019), available at https://www.humanrightsfirst.org/resource/orders-
above-massive-human-rights-abuses-under-trump-administration-return-
mexico-policy (``Orders from Above'') (discussing violence suffered by
hundreds of asylum seekers living in Mexican border cities, including
rape, kidnapping, and assault); U.S. Immigration Policy Ctr., Seeking
Asylum: Part 2 3-5, 9-10 (Oct. 29, 2019) (``Seeking Asylum'') (based on
interviews with more than 600 asylum seekers subjected to MPP, finding
that approximately 1 out of 4 had been threatened with physical
violence, and that over half of those who had been threatened with
physical violence had experienced physical violence). The numbers
reported by the U.S. Immigration Policy Center likely underestimate the
dangers faced by asylum seekers subjected to MPP because security
conditions in Tijuana and Mexicali, Mexico, where the interviews were
conducted, are less dangerous than other parts of the border. Seeking
Asylum at 9.
\10\ The ABA is concerned by reports that, even when asylum seekers
express a fear of return to Mexico, they often are not provided with
the screening interviews required under MPP. See Seeking Asylum at 4
(Only 40 percent of individuals who were asked whether they feared
return to Mexico and responded in the affirmative were interviewed by
an asylum officer, and only 4 percent of individuals who were not asked
whether they feared return to Mexico, but nevertheless expressed a
fear, were interviewed); Orders from Above at 8-9. Reports also
indicate that asylum seekers routinely fail to pass these interviews
even when they already have been victims of violent crime, including
rape, kidnapping, and robbery in Mexico. Orders from Above at 10.
\11\ Dep't of Homeland Security, Assessment of the Migrant
Protection Protocols (MPP) 5 (Oct. 28, 2019), https://www.dhs.gov/
sites/default/files/publications/assessment_of_the-
_migrant_protection_protocols_mpp.pdf.
---------------------------------------------------------------------------
In addition, to be removed from the MPP program and either be
detained or released in the United States, an individual must
demonstrate, in the screening interview, that she is more likely than
not to be persecuted or tortured in Mexico. This is the same standard
as the individual would be required to meet to be granted withholding
of removal or relief under the Convention Against Torture by an
immigration judge. It also is higher than the standard used for asylum
eligibility or for initial interviews in expedited removal and
reinstatement of removal proceedings, where asylum seekers are screened
to determine whether they will be able to present their claim before an
immigration judge.\12\ And, unlike in MPP, in those summary proceedings
a DHS official must affirmatively ask the individual whether she has a
fear of being returned to her home country or removed from the United
States.\13\ Individuals also are permitted to consult with an attorney
and can be represented at the interview, and are entitled to
immigration judge review of any negative determination.\14\ The ABA
encourages DHS to implement robust procedures to ensure that asylum
seekers who have a genuine fear of persecution or torture in Mexico are
removed from the MPP program.
---------------------------------------------------------------------------
\12\ Individuals placed in expedited removal must show a ``credible
fear'', or a significant possibility that they could establish
eligibility for relief, whereas individuals in reinstatement
proceedings must demonstrate a ``reasonable possibility'' that they are
eligible for relief. 8 U.S.C. 1225(b)(1)(A)(ii), (b)(1)(B)(v); 8
C.F.R. 208.30(e)(3), 208.31(c), 235.3(b)(4).
\13\ 8 C.F.R. 235.3(b)(2)(i) (discussing form I-867B).
\14\ 8 C.F.R. 208.30(d)(4), (g);208.31(c), (g).
---------------------------------------------------------------------------
access to counsel and court proceedings
To ensure that MPP asylum seekers are afforded due process in their
immigration proceedings, they must be provided with meaningful access
to counsel, and a meaningful opportunity to participate in the
proceedings. In our experience, the MPP program endangers these
protections.
For asylum seekers returned to the Mexican border cities of Nuevo
Laredo and Matamoros, hearings take place in soft-sided tent courts
that are adjacent to the International Bridges that connect Laredo and
Brownsville, Texas to the Mexican cities of Nuevo Laredo and Matamoros,
respectively. ABA president Judy Perry Martinez, along with myself and
other ABA staff, toured the tent court in Brownsville, Texas in late
August, prior to its opening. To date, we are the only non-governmental
organization provided with a tour of the facility. Unlike regular
immigration courts, the tent courts are closed to the public, including
to members of the media. This is concerning because public access to
judicial proceedings helps to further public confidence in the justice
system. Even immigration judges are not physically present for hearings
that occur at the tent courts; in such hearings the immigration judge
and government counsel appear via video conference.
Meaningful access to legal counsel is an essential component of due
process, and noncitizens, including those seeking humanitarian
protection, have a statutory right to counsel in immigration
proceedings.\15\ But for MPP asylum seekers, it is nearly impossible to
exercise this right from Mexico. During our tour of the tent court
facility in Brownsville, we were told that the facility had 60 small
rooms for lawyers to meet with their clients; but, in my personal
experience, these rooms are not able to be utilized. Attorneys may
enter the tent courts only to appear at a hearing for an asylum seeker
the attorney already represents. Attorneys are not permitted to enter
the tent courts to screen potential clients or provide general legal
information about the very hearings in which the asylum seeker will
participate. Nor are asylum seekers permitted to enter the United
States to consult with their attorneys, other than for 1 hour preceding
their scheduled hearings. When I tried to challenge these restrictions
in one of my cases, the immigration judge ruled that he did not have
jurisdiction to consider my request because the facility is controlled
by DHS. On another occasion, I sought access for a legal team to enter
the facility to observe a hearing. I was told CBP controls all access
to the tent facility. It is troubling that CBP, which is charged with
apprehending, detaining, and removing noncitizens, controls when
lawyers can access their clients in immigration court. On yet another
occasion, members of the ABA Commission on Immigration attempted to
observe MPP hearings from where the immigration judges sat at the Port
Isabel Detention Center. First, the courts told us DHS had to approve
the request. DHS then told us the courts had to approve the request.
Only after escalating the issue was the group permitted to observe the
hearings.
---------------------------------------------------------------------------
\15\ 8 USC 1362 (``In any removal proceedings before an
immigration judge . . . the person concerned shall have the privilege
of being represented (at no expense to the Government) by such counsel,
authorized to practice in such proceedings, as he shall choose.''); 8
USC 1229a(b)(4)(A) (in removal proceedings, the noncitizen ``shall
have the privilege of being represented, at no expense to the
Government, by counsel of the [non-citizen's] choosing who is
authorized to practice in such proceedings'').
---------------------------------------------------------------------------
To render legal services to MPP asylum seekers, U.S.-licensed
attorneys either must travel into Mexican border cities, or try to
fulfill their professional obligations by preparing complicated asylum
cases without a meaningful opportunity to consult in person with their
clients. I have faced this dilemma myself. Each time I want to meet
with my client, I must take precautions to ensure my personal safety
while in Matamoros. I cross only during the day, and try to minimize
the length of each visit. I coordinate my visits with humanitarian
groups or other colleagues. During one legal visit into Matamoros,
several armed convoys of the Mexican military rolled into the refugee
encampment of approximately 1,500 individuals and families subjected to
MPP. The military officials were heavily armed and showed surveillance
equipment on their body armor. Several U.S. attorneys and humanitarian
aid workers evacuated the encampment out of fear that the military
would begin forcibly removing the refugees. My legal consultation was
abruptly cut short, and I returned days later to consult with my client
along the narrow sidewalk of the port of entry during a heavy
rainstorm. This is not meaningful access to counsel, and attorneys
should not have to risk their lives or liberty to fulfill their
professional responsibilities. The limited ability to access counsel
under these conditions delivers a further harm: Individuals and
families subject to MPP may decline to seek legal assistance even when
offered because they now fear that they will be singled out or fear for
their own safety if they do so.
In Matamoros and other border cities, private attorneys and non-
profit organizations have formed groups of volunteers to provide pro se
assistance to asylum seekers, but they can only help a small portion of
the individuals who need assistance. They face persistent logistical
challenges when helping asylum seekers to fill out applications for
relief and translate supporting evidence into English. The data
confirms that the barriers MPP places on meaningful access to counsel
are nearly insurmountable. As of September 2019, only 2 percent of
asylum seekers subjected to MPP had secured legal representation.\16\
---------------------------------------------------------------------------
\16\ TRAC Immigration, ``Details on Remain in Mexico (MPP)
Deportation Proceedings'', https://trac.syr.edu/phptools/immigration/
mpp/ (last visited Nov. 16, 2019) (showing that, through September
2019, 1,109 of 47,313 MPP cases had legal representation).
---------------------------------------------------------------------------
barriers to meaningful participation
The hearing process for MPP asylum seekers also does not comport
with fundamental notions of due process. MPP asylum seekers are handed
notices to appear while in CBP custody in the United States before
being returned to Mexico. But because most do not have stable shelter
in Mexico, the Government is not able to reliably serve them with
notice if their hearing date changes or is canceled. Notices to appear
served on MPP asylum seekers often contain addresses of shelters that
asylum seekers never access, or no address at all. Paperwork that
accompanies the notices to appear instructs MPP asylum seekers to
present themselves at international bridges 4 hours before their
hearings. For asylum seekers with early morning hearings, this means
traveling through dangerous border cities and waiting at bridges in the
middle of the night, putting them at even more risk of kidnapping or
assault. If they are unable to make the dangerous journey or fail to
receive notification of changes in their hearing date, asylum seekers
risk being ordered removed in absentia.
In late October, a small delegation of ABA members and staff
traveled to our ProBAR project in South Texas for a week-long visit to
provide legal assistance to detained migrants at Port Isabel Detention
Center, observe MPP proceedings, and provide humanitarian assistance to
asylum seekers waiting in Matamoros. During the visit, the group
requested to observe a morning session of master calendar hearings for
MPP asylum seekers at the Port Isabel Detention Center. After being
denied access twice, the group was eventually allowed into the
courtroom with the immigration judge, the Government attorney, and the
interpreter. The asylum seekers appeared via video from the temporary
tent court facility in Brownsville. Approximately 50 asylum seekers
were scheduled for hearings that day, but more than 20 of them were not
present. Only 3 of the asylum seekers had attorneys. Many of the cases
were reset for a later date.
During the hearings, no simultaneous interpretation was provided
for MPP asylum seekers who were not fluent in English. Generally, the
interpreter, who is present with the immigration judge via video
conference, interprets only procedural matters and questions spoken by
and directed to the asylum seeker by the immigration judge. The
interpreter does not offer simultaneous translation of the entirety of
the proceedings. Examples of what is not interpreted include critical
information others are able to absorb in the on-going hearing including
legal argument by the Government and questions the immigration judge
may pose to Government counsel. The ABA has long supported the use of
in-person language interpreters in all courts, including in all
immigration proceedings, to ensure parties can fully and fairly
participate in the proceedings. This is especially important for
noncitizens, who are unfamiliar with the U.S. legal system, and face
additional unique barriers to accessing information regarding their
legal rights and responsibilities. In addition to the lack of full
interpretation of the hearing, video conferencing technology can also
be unreliable, leading to disruptive delays that can further traumatize
vulnerable asylum seekers. In October, when our group observed MPP
master calendar hearings, the proceedings started more than 90 minutes
late because the internet connectivity at the tent court facility in
Brownsville was not functioning.
Even these few examples demonstrate that the conditions and
procedures for hearings at the temporary tent courts result in
unfairness and a lack of due process for asylum seekers subject to MPP,
and create inefficiencies for the immigration court system.
dangerous humanitarian conditions
Finally, we also have witnessed first-hand the dangerous
humanitarian conditions in these border cities. ABA president Judy
Perry Martinez, immediate past president Bob Carlson, members of the
ABA Commission on Immigration, and ABA staff have crossed the
International Gateway Bridge into Matamoros to meet asylum seekers
living in a tent encampment steps from the international border. The
stories ABA staff have heard are consistent with reports issued by
human rights organizations that document dismal conditions, when the
stated premise of the MPP program is that the Mexican government would
provide humanitarian aid to those in MPP.\17\ That aid is obviously not
being delivered and the United States, while having delegated the
provision of aid, cannot delegate its humanitarian and legal
responsibility to these asylum seekers. There also are hundreds of
incidents of violence suffered by asylum seekers living in Mexico.\18\
To date, there are approximately 1,500 individuals living at the tent
encampment in Matamoros, without access to adequate shelter, food,
water, or medical care.\19\ Subjecting families and individuals who are
fleeing violence and persecution to seek protection at our borders to
these conditions is inconsistent with our values as a country.
---------------------------------------------------------------------------
\17\ Nielsen Policy Guidance at 2 (quoting from December 20, 2018
statement regarding MPP, which noted the U.S. Government's recognition
that Mexico would be implementing protocols ``providing humanitarian
support for and humanitarian visas to migrants'').
\18\ See note 8, supra.
\19\ Nomaan Merchant, Tents, stench, smoke: Health risks are
gripping migrant camp, Associated Press, Nov. 14, 2019, https://
apnews.com/337b139ed4fa4d208b93d491364e04da.
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conclusion
The ABA repeatedly has emphasized that our Government must address
the immigration challenges facing the United States by means that are
humane, fair, and effective--and that uphold the principles of due
process. In our experience, the MPP program fails to meet these
objectives and creates an unstable humanitarian crisis at our border.
We urge that this policy be rescinded and that procedures be put in
place to ensure fair treatment and due process for all asylum seekers.
Miss Rice. Thank you for your testimony. I now recognize
Ms. Thorn Vela to summarize her statement for 5 minutes.
STATEMENT OF ERIN THORN VELA, STAFF ATTORNEY, RACIAL AND
ECONOMIC JUSTICE PROGRAM, TEXAS CIVIL RIGHTS PROJECT
Ms. Thorn Vela. Ms. Chairman and committee, thank you for
inviting me here to testify about my experience working with
individuals that DHS has forcibly removed to Matamoros, Mexico
under the Migrant Protection Protocols, or Remain-in-Mexico
Policy.
I am a staff attorney at the Texas Civil Rights Project.
For the last 2 years I have volunteered and worked with people
seeking asylum in the United States. For the last 5 years I
have lived and worked along the Texas-Mexico border, and all of
my work with asylum seekers is on a pro bono basis.
Since August, I have spent at least 200 hours providing pro
bono legal advice to asylum seekers forcibly removed to
Matamoros. The horrors in Matamoros are almost endless. I want
to share with you the fear, the risks, and the despair that we
attorneys and our clients feel every single day.
No one should be in this program. Asylum seekers in
Matamoros survive in flimsy tents and under tarps. They do not
have adequate food or medicine, because volunteers and a few
humanitarian aid groups are the only regular providers of aid.
Of the over 1,000 people screened by advocates, more than half
report being kidnapped, assaulted, extorted, or raped since
being returned to Matamoros. These stories break my heart, but
no more than stories of children tortured and assaulted that
play over in my mind.
One mother and her small child were kidnapped less than 1
hour after the U.S. Government forcibly returned them to
Matamoros. They were tortured for 8 days.
In another case 2 sisters, aged 7 and 9, were sent by our
Government to Mexico, and then targeted by a local Mexican
national who sexually abused them. Mexican authorities detained
this person for 1 night and let him go. He returned to the
tents the next day.
Neither we nor our partners have been successful in having
even these young victims removed from this program. The fact
that the U.S. Government knowingly permits abuse and torture to
be the norm sends a strong message. Anyone can target asylum
seekers there with impunity and no government will care.
This program design puts people in life-threatening
conditions, and we have seen DHS routinely ignore its own
safeguards. The agency claims that anyone who has fear of
persecution or torture will be taken out of Matamoros, yet
almost no one has passed the non-refoulement interview.
The threshold for non-refoulement is required by
international law to be low. The person must have a reasonable
fear of torture or persecution. I have seen this fear. I have
seen asylum seekers shake and break down and sob. Their fears
are genuine and confirmed by the U.S. Government's own reports
about what is happening in this region. Yet at interviews,
asylum seekers report that officers threaten them, ignore them,
lie to them, and send them back without any explanation or
notice about what has happened in the interview.
DHS's policies say that certain groups of particularly
vulnerable people should be categorically barred from being
sent to the streets of one of the most dangerous areas in the
hemisphere. Some are people with physical disabilities that are
apparent by just looking at the person. We have seen cancer
survivors, pregnant women, and children with autism and Down's
Syndrome who are still in the camp today.
We represent a deaf non-verbal woman. Not once was she
given an interpreter for any interaction with Federal officers,
a blatant violation of her civil rights. Because she is non-
verbal, she could not even scream for help when her family was
being followed by two men. At the end of her first week there,
DHS admitted it had erred in placing her in the program.
However, it took presenting her 3 times to the bridge director,
a demand letter, and the threat of litigation to get her taken
out of Matamoros.
What would have happened if we hadn't had been there? Why
won't the agency fix these violations of policy and of law that
place particularly vulnerable people in harm's way?
We constantly find people who should be protected under the
agency's own policies. I listened with horror as a lesbian
woman in the camp told me that men had punched her in the face
and threatened to rape her to turn her straight. This woman's
story is not an anomaly for the LGBT people that we work with.
I am horrified that all I can say to asylum seekers in
Matamoros is this: Hold on and stay safe. That statement feels
so empty when I know how often people are kidnapped directly
from their tents, abused, and tortured. It haunts me when I
walk back across that bridge to the United States that I have
only these words to console my clients.
They should be able to seek safety in safety. That safety
is their right by international treaty, the Constitution, and
the core principles of our humanity that are enshrined in our
immigration laws.
Thank you for your time.
[The prepared statement of Ms. Thorn Vela follows:]
Prepared Statement of Erin Thorn Vela
November 19, 2019
Thank you for this opportunity to testify about the Department of
Homeland Security's Remain in Mexico Policy. The implementation of this
unlawful policy has destroyed any semblance of due process in removal
proceedings. The processes developed under the Remain in Mexico Policy
serve to persecute--not protect--thousands of asylum seekers, becoming
the next in the wave of continued attacks against the international
right to seek asylum by the Trump administration. I thank the committee
for inviting me to share the stories of asylum seekers subjected to one
of the worst humanitarian crises that we and our partnering immigration
and civil rights advocates in the Rio Grande Valley have ever seen.
My testimony this morning is based on my work as a staff attorney
at the Racial and Economic Justice Program at the Texas Civil Rights
Project (``TCRP''), a non-governmental and non-profit organization.\1\
We are Texas lawyers and advocates for Texas communities, serving the
rising movement for equality and justice. Our Racial and Economic
Justice Program fights against discriminatory policies and practices
based on immutable characteristics and immigration status. Along the
Texas-Mexico border, our team works tirelessly to defend landowners
whose land the Federal Government seeks to condemn to build a border
wall, bring separated families back together, and ensure that the civil
rights of immigrants are a reality. Through litigation, education, and
advocacy, TCRP has fought for almost 30 years to ensure that the most
vulnerable communities in our State can live with dignity and free from
fear.
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\1\ Texas Civil Rights Project, https://
texascivilrightsproject.org/about-us/.
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With this testimony, my hope is to bring to Congress the
capricious, discriminatory, and punitive manner in which the Trump
administration is implementing the Remain in Mexico policy to dismantle
the fundamental human right to seek asylum.
i. dismantling the right to asylum
People arriving at the U.S.-Mexico border have a right to petition
for asylum. The U.S. Government cannot lawfully enact a forcible
transfer program that strips a person of that right. Yet, when asylum
seekers arrive at the border in the Rio Grande Valley, the Government
now forcibly transfers them to a dangerous place in a process that
disregards any fundamental due process rights. This forcible transfer
program is the most recent in a long series of efforts by the Trump
administration to dismantle the right to seek asylum.
A. The Right to Seek Asylum is Established, Binding, and Fundamental
The right to seek asylum is a core human right and a central
principle of immigration laws. It is enshrined in Article 14 of the
1948 Universal Declaration of Human Rights, a document created when
last there were this many people seeking safety across the globe.\2\
The Universal Declaration of Human Rights provides that ``[e]veryone
has the right to seek and to enjoy in other countries asylum from
persecution.'' To protect that right, 146 countries--including the
United States--signed the 1967 Protocol Relating to the Status of
Refugees. In 1980, Congress codified the United States' obligation to
receive persons ``unable or unwilling to return to'' their home
countries ``because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.''\3\
---------------------------------------------------------------------------
\2\ Press Release, Global Forced Displacement Tops 50 Million for
the First Time Since World War II--UNHCR Report, UNHCR (June 20, 2014),
https://www.unhcr.org/en-us/news/press/2014/6/53999cf46/global-forced-
displacement-tops-50-million-first-time-since-world-war-ii.html.
\3\ 8 U.S.C. 1101(a)(42), 1158(b)(1).
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These and other laws prohibit also the United States from returning
asylum seekers to countries where they face persecution or torture.\4\
This right to non-refoulement is incorporated into United States law.
The United States cannot remove an individual to any country when the
person's ``life or freedom would be threatened'' due to persecution.\5\
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\4\ Article 33 of the 1951 Convention Relating to the Status of
Refugees--which the United States is bound to comply with--provides: No
Contracting State shall expel or return (``refouler'') a refugee in any
manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion. Similarly, Article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment--to which the
United States is also bound--provides: No State Party shall expel,
return (``refouler'') or extradite a person to another State where
there are substantial grounds for believing that he would be in danger
of being subjected to torture.
\5\ 8 U.S.C. 1231(b)(3)(A) (The five protected grounds are race,
religion, nationality, membership in a particular group, or political
opinion).
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A state that sets up an agreement to send asylum seekers to a third
country will violate its non-refoulement obligations unless the
agreement meets certain standards. The agreement must be formal and
enforceable, provide procedural safeguards for every individual, and
permit appeals.\6\ A state ``cannot en masse transfer asylum seekers to
a third country to await asylum processing.''\7\ A state must create a
screening process--prior to transfer--that allow each person to present
their views on aspects such as risk factors in the receiving country,
to maintain family unity, and to screen for any threat of
persecution.\8\ UNHCR has emphasized that the threshold in these
screenings must be low enough to prevent refoulement.\9\ The burden is
on the state to screen for refoulement, not the asylum seeker to
affirmatively claim fear of persecution.\10\ The United States would
violate its international obligations if the Government created a
transfer agreement that did not include any of these elements.\11\
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\6\ Brief for the United Nations High Commissioner for Refugees in
Support of Appellees' Answering Brief at 11-12, Innovation Law Lab v.
McAleenan, 394 F.Supp.3d 1168 (S.D. Cal. 2019) (No. 19-15716).
\7\ Id. at 17.
\8\ Id. at 18.
\9\ Id. at 19.
\10\ Id. at 20.
\11\ Id. at 22.
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The reality on the ground is that the United States is violating
each of these obligations through its implementation of the Remain in
Mexico Policy.
B. Government Policies Prevent Asylum Seekers from Seeking Safety
From what I and my colleagues at TCRP have personally witnessed,
the Remain in Mexico program is part of the pattern to dismantle the
right to seek asylum.
Since 2017, we have seen how the Trump administration has callously
enacted multiple policies that deter black and brown migrants from
seeking protection in the United States. In 2017, at the
administration's very beginning, it sought to issue a ``Muslim Ban,'' a
discriminatory policy that kept families apart on the basis of their
religion.\12\ The Trump administration formalized the ``Turnback
Policy,'' also known as ``metering,'' requiring CBP officers to
directly or constructively keep asylum seekers from entering the United
States, such as by claiming the processing centers were ``full.''\13\
In some cases, officers have sworn to our clients that the facilities
are ``full'' only to later swear before a judge that those facilities
were empty.\14\ In 2018, the Trump administration began a secret
``pilot project'' in Texas to separate migrant children from their
families.\15\ TCRP began to document the family separations here in
McAllen. For the past year-and-a-half, TCRP has met thousands of
separated parents and seen their struggles to seek safety when their
children were and continue to be used to punish the parents.\16\
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\12\ See Executive Order 13,760, Protecting the Nation from Foreign
Terrorist Entry into the United States (Jan. 27, 2017); Executive Order
13,780, Protecting the Nation from Foreign Terrorist Entry into the
United States (Mar. 06, 2017); & Presidential Proclamation 9, 645,
Presidential Proclamation Enhancing Vetting Capabilities and Processes
for Detecting Attempted Entry into the United States by Terrorists or
Other Public-Safety Threats (Sept. 24, 2017).
\13\ See Al Otro Lado v. McAleenan, 394 F.Supp.3d 1168, 1187, 1208
(S.D. Cal. 2019).
\14\ Customs and Border Protections officials testified under oath
that, as of early September 2019, CBP facilities in the Rio Grande
Sector were at 30 percent capacity. Transcript of Oral Argument at 40-
41, Rosa v. McAleenan, 2019 WL 5191095 (S.D. Tex. 2019).
\15\ U.S. GOV'T ACCOUNTABILITY OFFICE, UNACCOMPANIED CHILDREN:
AGENCY EFFORTS TO REUNIFY CHILDREN SEPARATED FROM PARENTS AT THE
BORDER, GAO-19-163, 15-16 (Oct. 2018).
\16\ LAURA PENA, THE REAL NATIONAL EMERGENCY: ZERO TOLERANCE & THE
CONTINUING HORRORS OF FAMILY SEPARATION AT THE BORDER, TEXAS CIVIL
RIGHTS PROJECT (Feb. 2019), https://texascivilrightsproject.org/wp-
content/uploads/2019/02/FamilySeparations-Report-FINAL.pdf.
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In December 2018, the Department of Homeland Security announced the
``Migration Protection Protocols,''\17\ known colloquially as the
``Remain in Mexico'' Policy. In January 2019, the policy was started in
California, then rolled out along the border in phases. Around the end
of July 2019, the Government started forcibly removing asylum seekers
who arrived in the Rio Grande Sector to Matamoros, Mexico. By the end
of September 2019, the Government had forcibly transferred more than
10,000 people to Matamoros,\18\ making it the location with the second-
largest population to be subjected to the Remain in Mexico program.\19\
---------------------------------------------------------------------------
\17\ Department of Homeland Security, Secretary Kirstjen M. Nielsen
Announces Historic Action to Confront Illegal Immigration (Dec. 20,
2018), https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-
historic-action-confront-illegal-immigration. The Government's
implementation of its Remain in Mexico policy came months after the
family separation policy was found to be unconstitutional. Former
National security experts have raised serious concerns about the
``unsupported claims'' upon which the administration has used to
justify the Remain in Mexico Program. Brief for Former U.S. Government
Officials Amici Curiae in Support of Appellees and Affirmance at 13,
Innovation Law Lab v. McAleenan, 394 F.Supp.3d 1168 (S.D. Cal. 2019)
(No. 19-15716).
\18\ Id.
\19\ TRAC Immigration, https://trac.syr.edu/phptools/immigration/
mpp/.
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C. Seeking Safety from a Life-Threatening Situation
In the Rio Grande Valley, the Remain in Mexico program sparked a
humanitarian crisis that is rapidly worsening. This crisis was
foreseeable. Indeed, given what we know about Matamoros, it was
practically inevitable. Matamoros does not have the infrastructure to
receive thousands of people. It has few shelters,\20\ let alone housing
that is appropriate to keep safe people at-risk of kidnapping,
trafficking, and abuse.\21\ The city has inadequate water and medical
services.\22\
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\20\ Doctors Without Borders, US Migration Policy Endangers Lives
of Asylum Seekers in Tamaulipas State (Sept. 06, 2019), https://
www.msf.org/us-migration-policy-endangers-lives-asylum-seekers-
tamaulipas-state-mexico.
\21\ In the 2019 Trafficking in Persons Report, the State
Department found that groups most vulnerable to trafficking were
``women, children, indigenous persons, persons with mental and physical
disabilities, migrants, and LGBTI individuals.'' U.S. STATE DEPARTMENT,
TRAFFICKING IN PERSONS REPORT: MEXICO 236 (2019).
\22\ Id.
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Disturbingly, the U.S. State Department lists the area as a ``Level
4,'' the highest travel advisory warning, due to the prevalence of
kidnapping and other violent crimes.\23\ Advocates and service
providers, such as TCRP, Team Brownsville, Angry Tias and Abuelas,
Project Dignity, Lawyers for Good Government, and others, must
disregard the risks to our lives to represent asylum seekers there.
Migrants waiting in Matamoros must constantly navigate these dangers.
---------------------------------------------------------------------------
\23\ State Department, Mexico Travel Advisory, (Apr. 9, 2019),
https://travel.state.gov/content/travel/en/traveladvisories/
traveladvisories/mexico-travel-advisory.html.
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In Matamoros, we support our partners who run a pro bono legal
clinic to help asylum seekers prepare their refugee applications for
the port court. To-date, approximately 1,100 asylum seekers have signed
up for the legal clinic. Of those, more than half reported that, since
the U.S. Government forcibly transferred them, they have been
kidnapped, assaulted, extorted, raped, or experienced other types of
violent crime.\24\ The following are just 3 examples of what asylum
seekers forced into the Remain in Mexico program have suffered in
Matamoros:
---------------------------------------------------------------------------
\24\ Human Rights First has documented similar stories and
frequencies of kidnapping, torture, and rape in multiple locations
where people are subjected to the Remain in Mexico Policy and similar
refusals to remove people from the Remain in Mexico program after they
are victimized. HUMAN RIGHTS FIRST, ORDERS FROM ABOVE: MASSIVE HUMAN
RIGHTS ABUSES UNDER THE TRUMP ADMINISTRATION RETURN TO MEXICO POLICY 8
(Oct. 2019).
``The U.S. Government forcibly transferred an El Salvadoran mother and
her 4-year-old son to Matamoros in the evening and released them at 1
am. Suddenly homeless, they walked to the refugee tents. Less than 1
hour after they were released, an organized criminal group kidnapped
them. For the next 8 days, the mother and child were tortured, deprived
of food, water, and sleep, sexually abused, and threatened with
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dismemberment and death.
``While in Mexico trying to flee to the United States, a young
Nicaraguan man was kidnapped. He was released. Yet, when the U.S.
Government forcibly returned him to Matamoros, he was kidnapped from
the refugee tents 2 days later. He was tortured. When he was released,
the hospital had to stitch together the crisscross of cuts on his arms.
``A family from Honduras and their 2 daughters--ages 7 and 9 forcibly
transferred to Matamoros. There, the girls were targeted by a pedophile
and sexually abused. The parents reported the person to the Mexican
authorities. The Mexican authorities detained the person for 24 hours,
then released him. Unprotected by the authorities, the girls continue
to be at-risk of abuse.''
U.S. officials denied each of these individual's non-refoulement
interviews, despite the risk to their lives. Each developed serious
health issues. Yet, the U.S. Government refuses to remove them from
Matamoros.
The Trump administration has stripped legal pathways to safety,
driving more people to cross the border illegally. As policies to bar
asylum seekers stranded many in Mexico, desperate people make desperate
choices. I have counseled asylum seekers with incredibly strong
claims--struggling to survive the horrible realities of Matamoros--who
ask themselves every day whether crossing the border is worth it. These
are law-abiding people who cannot wait for months in an area like
Matamoros for one simple reason: If they do, they will likely die.
ii. arbitrary life-and-death decisions in violation of the agency's
policies, civil rights statutes, and the constitution
A. Conditions in Matamoros
First, I want to share the conditions in Matamoros. Nobody can
better capture the experiences of the people we represent than the
people themselves. Here is one of our client's experiences in the words
he wanted to share with Congress members:
``After spending 7 days in a freezing cold cell, sleeping on the
concrete floor, with the lights on 24 hours a day, I was boarded on a
bus along with other migrants. When we descended from the bus, a
Mexican official informed us that we were in Matamoros, Mexico, and
that the United States had placed us in the MPP or Remain in Mexico
program. That was the first time I had heard of the program or my
placement in it.
``During my 100 days in Matamoros, I have been extorted and assaulted
physically and verbally due to my migrant status and sexual
orientation. I live in constant fear of organized crime, by a group who
call themselves the `Gulf Cartel'. I have been sleeping on the street,
surviving the heat of the day and cold of the night. I have explained
the abuses I have suffered to 2 U.S. asylum officials. Both informed me
that, while they had compassion for my situation, they were not
authorized to allow me to seek safety in the United States.
``How has MPP affected me? It has made me feel abused, dejected,
humiliated, abandoned, confused, disoriented, mistreated, and
fearful.''
--A.E.C.L., an LGBTQ Guatemalan asylum seeker in the Remain in Mexico
Program in Matamoros.\25\
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\25\ We have not provided our clients' names due to concerns for
their safety.
Asylum seekers in Matamoros survive incredibly difficult situations
without adequate shelter, food, medical attention, or other basic
necessities. The general list of life-threatening conditions can feel
endless to those of us who witness the bravery and resilience of people
in Matamoros:
After being forced out of the United States, asylum seekers
are delivered into Matamoros with little other than the
clothing on their backs;
Many survive homeless, either in the plaza in one of the
hundreds of thin and flimsy tents or in informal arrangements
to sleep in a crowded private room;
Food aid in Matamoros is mostly provided by Team
Brownsville, a volunteer group that feeds hundreds of people a
day. Children show signs of severe malnutrition;
Children have no access to education;
In the city, there are few medical services for these
migrants, although Doctors Without Borders and local doctors
work tirelessly. Many asylum seekers have already experienced
severe trauma, conditions often exacerbated in the tents where
they survive. There simply are not enough doctors to treat
them;
There is inadequate water and sanitation, placing people at-
risk of preventable diseases; and
Asylum seekers are kidnapped, assaulted, tortured, and
extorted while they wait for their day in court.
These examples are the norm, not the exception. The Government's
decision to send someone to Matamoros is a life-and-death decision for
the almost 10,000 people sent there--a number we believe will be much
higher now.\26\
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\26\ TRAC Immigration, https://trac.syr.edu/phptools/immigration/
mpp/ (based on the charging document issued by DHS, data shows 10,646
people subjected to have their case heard in the ``MPP court'' in
Brownsville across from Matamoros as of September 2019).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
B. The Unlawful Placement of Particularly Vulnerable Groups in
Matamoros
On December 20, 2018, then-DHS Secretary Nielsen announced the
Remain in Mexico policy, a policy to be implemented consistent with
``domestic and international legal obligations.''\27\
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\27\ Department of Homeland Security, Secretary Kirstjen M. Nielsen
Announces Historic Action to Confront Illegal Immigration (Dec. 20,
2018), https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-
historic-action-confront-illegal-immigration.
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Several guidance documents lay out the core implementation features
of the Remain in Mexico program, including which migrants are
``amenable'' to be forcibly returned to Mexico.\28\ Representatives of
DHS stated that immigration officers may exercise their discretion to
forcibly return only those migrants determined ``amenable'' to the
Remain in Mexico program.\29\ However, as representatives stated, DHS
determined that certain groups of people were categorically ineligible
to be placed in the Remain in Mexico program, including unaccompanied
children or migrants with ``known physical or mental health
issues.''\30\ These people were not ``amenable'' to the Remain in
Mexico program.\31\ Additionally, in July 2019, the agency sent a
letter to Representative Grijalva to ``reiterate DHS's commitment to
the responsible implementation of this program as it applies to all
populations, including LGBTQ asylum seekers and other vulnerable
populations.''\32\ On the ground in Matamoros, the reality has starkly
contrasted with the agency's stated policy.
---------------------------------------------------------------------------
\28\ Office of Field Operations, San Diego Field Office, Guiding
Principles for Migrant Protection Protocols, (Jan. 28, 2018), https://
www.cbp.gov/sites/default/files/assets/documents/2019Jan/
MPP%20Guiding%20Principles%201-28-19.pdf.
\29\ Innovation Law Lab v. McAleenan, Brief for Appellants, 2019 WL
2290420 *13 (N.D. Cal. 2019).
\30\ Id.
\31\ Id.
\32\ Letter from James W. McCament, Deputy Under Secretary of
Office of Strategy, Policy, and Plans of the Department of Homeland
Security, to the Honorable Raul M. Grijalva (July 19, 2019).
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In August 2019, I began to meet and be contacted about people with
apparent disabilities who the U.S. Government had subjected to Remain
in Mexico and forcibly sent to Matamoros.
In September 2019, I met B.G.P., a deaf and non-verbal woman who
the Government had forcibly transferred to Matamoros with her mother,
minor sister, and young child. CBP officials had already violated many
of B.G.P.'s civil rights. Officials never provided her a translator or
any other aid so she could effectively communicate with the Government
agents. One day, CBP officers arrived at the detention cell that they
had placed her in at around 4 in the morning and tried to force her on
the bus. They did not tell her that she would be sent to Mexico.
Although B.G.P.'s mother pleaded that her daughter would face danger
and discrimination, the officers told the mother to lie back down and
refused to provide a non-refoulement interview. Luckily, medical staff
intervened and persuaded officers to return B.G.P. and her young child
to the cell with her mother and sister. Two days later, without warning
or explanation, officers again came in the early morning to take B.G.P.
and her whole family to Matamoros.
Once in Matamoros, B.G.P. and her family struggled with
homelessness, food insecurity, lack of medical care, and
discrimination. They were followed by men to the place they stayed and
the men left only when neighbors intervened on their behalf.
In September 2019, another advocate introduced us to B.G.P. She
tried to present B.G.P. to the port officials for a re-determination of
her placement in the Remain in Mexico program. Port officials agreed
that the placement was an error. Nevertheless, the agent refused to re-
process B.G.P. The officer first stated B.G.P. would have to travel
back to where she had originally entered, regardless of the fact that
the State Department warns against any travel there. Then, the officer
said that the processing facility was full. After the advocate
explained that the officer had discretion to parole the family in, the
officer just refused, without giving a reason or alternative.
On B.G.P.'s behalf, we again presented her to ask for parole or,
alternatively, a non-refoulement interview. We were not permitted to be
present for the interview. B.G.P.'s mother said that, before the
interview started, the officers told the group of people there for
interviews that they would be sent back to Mexico no matter what. In
the interview, the agency again violated its own regulations, refusing
to provide an interpreter or other aid for B.G.P. After just an hour-
and-a-half, B.G.P. and her family were sent back to Mexico. B.G.P.'s
mother cried all night.
We next drafted a legal complaint, which we included with a demand
letter to the agency. Only then was the family paroled into the United
States. Even after agents admitted DHS broke its own policy, it took
over a month and the threat of legal action for the agency to fix their
violation of their policy. Our organization is small. We cannot
represent the many people with disabilities who should not be placed in
the program, so these violations are wide-spread and on-going.
Since then, TCRP staff and our partners have met many other
particularly vulnerable people whom the U.S. Government has sent back
to Mexico. Here are some examples:
Two children with Down syndrome were sent to Matamoros. The
Government has paroled one of these children. While in Mexico,
the other child was kidnapped, held for ransom, and released.
The Government still has not paroled that child;
A child with a recently amputated leg was not given medical
treatment, but sent back to Matamoros. The child is now hiding
in a shelter that forbids visits, even from lawyers, due to
safety risks;
A 2-year-old child has severe epilepsy. As their medication
is not available in Matamoros, the child suffered seizures that
drastically impacted their brain;
A forcibly-removed person with cancer now cannot find
treatment in Matamoros;
A 38-week pregnant woman was forcibly given medicine to stop
her contractions so the Government could remove her to Mexico.
She gave birth to her child in a tent and, after, suffered
severe post-partum depression that went untreated; and
At least 12 LGBTQ people were sent to Matamoros, where many
face physical and verbal abuse, such as death threats and
threats of ``corrective'' rape. After multiple non-refoulement
interviews, only 1 transgender individual was paroled.
Under the agency's own policies, none of these people should have
been forcibly removed to Mexico in the first place. Yet, many spent and
continue to spend months in dangerous conditions in Matamoros. I know
that advocates filed complaints with DHS's Office of Civil Rights and
Civil Liberties about similar cases. There are not enough lawyers
willing to risk their lives to screen people in Matamoros, so there are
likely many more people with similar health and safety issues that we
have not yet met. The agency says it categorically excludes
particularly vulnerable groups; the reality shows otherwise, revealing
an arbitrary and capricious system.
C. The Refusals to Remove People Who Have Become Vulnerable
Due to the conditions in Matamoros, many people who may not
initially be considered categorically excluded from the Remain in
Mexico policy become too vulnerable to remain in Matamoros. Over the
past months, there has been no story more emblematic for us than this
one:
``A toddler was subjected to Remain in Mexico with her family. While
unaccompanied children should be categorically excluded, the government
routinely sends families back who have small infants or toddlers. This
toddler was already so malnourished that she looked like an infant.
``On November 13, 2019, after spending time in Matamoros, she developed
signs that showed she likely had sepsis. As her joints swelled and she
became listless, her family rushed her to get her treatment, contacting
our partner with an office in Matamoros. With supplies too limited to
treat the child, a volunteer emergency room doctor went with the family
and our partner to the bridge to confirm to U.S. officials that the
child had a serious medical condition and needed to instantly be taken
to a hospital in the United States.
``Federal officers kept the family standing on the bridge for around
3\1/2\ hours in the freezing rain. They refused to permit the family to
wait in the processing center. They refused to let the family stand in
an area on the bridge where they would not be in the rain. The two
officers refused to even allow the family to move the child close to
the heater that was behind the agents.
``Stuck on the bridge, in freezing and rainy conditions, our partner
reached out to us for help. TCRP instantly responded, amplifying their
situation through our social media to allies. Soon, the agents let the
family in. The child was hospitalized and is in serious
condition.''\33\
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\33\ This story was reported on by local news. See Valerie
Gonzalez, Sick Honduran Toddler Admitted into US After Hours-Long Wait,
KRGV (Nov. 14, 2019), https://www.krgv.com/news/honduran-child-treated-
after-emergency-arises-while-waiting-on-int-l-bridge.
We have seen other threats as well. For example, parents are now
threatened by the Mexican government with family separations
paralleling those that our Government carried out.\34\ The uncertainty
and fear that asylum seekers face in these moments can cause further
emotional trauma. We see new risks develop every day that make people
vulnerable to severe health issues.
---------------------------------------------------------------------------
\34\ Reynaldo Leanos, Mexican Official Tries to Move Asylum-Seekers
Stuck in Tent Camps, NPR (Nov. 09, 2019), https://www.npr.org/2019/11/
09/777686672/mexican-official-tries-to-move-asylum-seekers-stuck-in-
tent-camps.
---------------------------------------------------------------------------
In our experience, people can rapidly develop serious health issues
in Matamoros. When someone becomes too vulnerable to remain in
Matamoros, agents are too slow to respond to the sudden, severe medical
or safety needs of the person. I have seen how our clients have become
severely at-risk because port-of-entry officials are uncoordinated at
best and, at worst, try to mislead advocates about what is necessary to
parole people into the United States.
D. Unethical and Discriminatory Treatment by DHS Officials at the
Border
Throughout the past month, myself and our partners have witnessed
various unethical and discriminatory behaviors by CBP officials, such
as incidences where CBP officials:
Threatened to report as terrorists those asylum seekers who
petitioned for a non-refoulement interview;
Told asylum seekers that the asylum seekers could complete
the non-refoulement interview but, regardless of the outcome,
the officers would still send them back to Mexico;\35\
---------------------------------------------------------------------------
\35\ BuzzFeed has stated it recently obtained a report in which a
DHS investigation found that CBP officers sometimes interfered with
USCIS officer's ability to determine whether an asylum seeker should be
excluded or removed from the Remain in Mexico program on the basis of
fear of persecution or torture. Hamed Aleaziz, US Border Officials
Pressured Asylum Officers to Deny Entry to Immigrants Seeking
Protection, A Report Finds, BUZZFEED (Nov. 14, 2019), https://
www.buzzfeednews.com/article/hamedaleaziz/dhs-asylum-report-mpp-
immigration-remain-mexico.
---------------------------------------------------------------------------
Used homophobic slurs to refer to LGBTQ asylum seekers;
Forced an indigenous young woman to translate for official
Government interviews all-day without providing her food,
breaks, or pay;
Tried for 5 hours to pressure an indigenous family to
conduct a non-refoulement interview in Spanish, a language that
they do not speak. Officers kept threatening that, if the
family did not do the interview in Spanish, then the family
would be forcibly returned to Mexico without receiving a non-
refoulement interview.
I have witnessed the psychological toll that this behavior has
taken on asylum seekers. For example, although B.G.P.'s family was
unlawfully placed in the program, their treatment by CBP officers at
the port of entry caused both B.G.P.'s minor sister and mother to
suffer severe panic attacks that required hospitalization. Other asylum
seekers have despaired, considering giving up their strong asylum
claims, afraid that they would face retaliation by CBP officials.
E. Abuses Against Lawyers Assisting Asylum Seekers
For the past 3 months, TCRP lawyers and our partners have tried to
save lives by advocating for the most vulnerable people in Matamoros. I
spoke with our partners about how they have been treated as they
endeavored to serve asylum seekers subjected to Remain in Mexico. They
shared that Federal officials at the Brownsville-Matamoros port of
entry have:
Told lawyers that CBP processing facilities were too full to
process their client after having sworn in court shortly
beforehand that the facilities were empty;
Told lawyers that a supervisor was not present when the
supervisor was clearly visible;
Misled lawyers that an asylum seeker needed to go before an
immigration judge and refused to correct their erroneous
opinion that a judge was necessary to permit them into the
processing center;
Ordered lawyers to leave before the lawyers could return
paperwork to their clients and then become visibly hostile when
lawyers asked how to return the paperwork; and
Grabbed a lawyer by their backpack and shoved them.
As lawyers, civility is at the core of our profession, even as we
zealously advocate for our clients. To protect the rights of those
people whom the Government has forcibly transferred, myself and my
colleagues enter into some of the most dangerous areas on this
continent: The State Department has issued a Level 4 Travel advisory to
Tamaulipas, an advisory that is given for countries like Afghanistan,
Syria, and Yemen. One of our partners has been threatened 3 times in
Matamoros and continues to receive threats via phone and email. Lawyers
rapidly left Matamoros at least 3 times due to safety concerns. Some
partners developed ``extraction'' protocols to manage the risks, such
as carrying safety whistles and taking pictures of volunteers before
entering to have in case someone is kidnapped. To do our jobs and to
keep safe, we need to be able to rely on the honesty and civility of
Federal employees.
Sadly, the reality is this: Most of our partner lawyers told me
that they had been worried about their safety at various times due to
the actions of Federal officials. The concern that Federal employees
will harm us or lie to us makes an already difficult job that much
tougher, deterring people from joining the already small group of
lawyers willing to enter Matamoros.
iii. recommendations
As advocates on the ground for more than 30 years, TCRP's expertise
spans decades of administrations and policies. In the Rio Grande
Valley, never before have we seen such cruel policies. Organizations
and volunteers were already expending tremendous effort to respond to
the attacks on asylum; now, we spread ourselves even further to make
sure asylum seekers have at least some services and legal advice. As
one of our partners said, this work is ``soul-crushing.''
I have seen the resilience of the people in Matamoros. An
overwhelming sense of community permeates the refugee tent encampment.
People watch out for each other. Single mothers group their tents so
they can help each other with the children. They sleep in rotations so
that someone is awake to notice if anything is happening. As a person,
I am horrified that all I can say to them is to hold on and stay safe,
a statement that feels empty when I know how often people are
kidnapped, abused, and tortured.
The Remain in Mexico Policy is not a cornerstone of a reformed
immigration system. Instead, this policy shatters the right to asylum,
creating a chaotic, capricious, and un-Constitutional crisis. This
humanitarian crisis threatens the lives of tens of thousands of people
who are attempting to seek safety in safety and sets a horrific
precedent on the international stage.
In light of the above, we recommend that Congress take the
following steps:
1. Conduct searching oversight about the degradations of asylum due
to Remain in Mexico, such as the conditions in Mexico, the
failure to exclude particularly vulnerable groups, the lack of
due process or open access to port courts, and the impact of
the transit ban. Efforts could include further committee
hearings, a select investigative committee, Congressional
visits to Mexico and the port courts, oversight letters,
resolutions of inquiry, and requests for inspections by the
inspectors general.
2. Visit Matamoros and other areas where people subjected to RIM
are forcibly transferred and request meetings with port of
entry directors to discuss administrative processes for
discretionary removals from Mexico.
3. Adopt formal expressions of censure or condemnation for
officials overseeing the Remain in Mexico policy for failing to
follow the vulnerable group protections.
4. Foster transparency by making public all policies and guidance
related to the program. Publish data on the use of
discretionary removals by region and disaggregated by gender
identity, age, country of origin, and vulnerabilities.
5. Provide emergency, life-saving aid to asylum seekers, including
funds for USAID programs and legal representation.
6. Pass legislation to end the Remain in Mexico policy.
Miss Rice. Thank you for your testimony. I now recognize
Dr. Schneberk to summarize his statement for 5 minutes.
STATEMENT OF TODD SCHNEBERK, MD, ASSISTANT PROFESSOR OF
EMERGENCY MEDICINE, CO-DIRECTOR, HUMAN RIGHTS COLLABORATIVE,
KECK SCHOOL OF MEDICINE OF THE UNIVERSITY OF SOUTHERN
CALIFORNIA; ASYLUM NETWORK CLINICIAN, PHYSICIANS FOR HUMAN
RIGHTS
Dr. Schneberk. Thank you for the opportunity to speak. My
name is Todd Schneberk. I am an emergency physician in Los
Angeles, California. I also provide care in Tijuana, Mexico, to
indigent patients, many of whom have been deported from the
United States, including young people and some veterans.
Today I speak as a medical expert for Physicians for Human
Rights. For more than 30 years PHR has carried out forensic
evaluations that assess the degree to which physical and
psychological findings corroborate allegations of abuse and
play a key role in the adjudication of asylum claims in the
United States.
My work has changed dramatically since the Trump
administration rolled out MPP, and my colleagues and I now face
an increasing demand to carry out these forensic evaluations
across the border. As a medical expert I regularly witness the
dire impacts of MPP, and I am here to share my assessment that
this program should be halted and de-funded immediately.
First, I would like to share how my medical assessment of
the state in which thousands of asylum seekers arrive at the
border. In February of this year I was part of a PHR team that
documented the cases of asylum seekers in Tijuana. These
findings later formed the basis of a PHR report entitled, ``If
I Went Back, I Would Not Survive.'' We medically evaluated
dozens of asylum seekers who share harrowing stories of extreme
brutality, and whose physical and psychological scars bore out
their narratives. Not surprisingly, the majority screened
positive for post-traumatic stress disorder. Many screened
positive for depression, experiencing significant fear and
hyper vigilance.
I would like to share some of the examples of the physical
and psychological signs and symptoms that PHR's medical team
documented among asylum seekers at the U.S. border. All names
have been changed for security reasons.
Jimena, a 21-year-old mother from Honduras, who was raped
because her husband refused to join a gang, told us how armed
men entered her house, threw her face down on the kitchen
floor. One of the men held her down, while the other man raped
her. She described her physical state afterwards: ``I had
bruises on my shoulders where they held me down. I had pain in
my abdomen for 3 days and in my stomach throughout my
pregnancy. It hurt to sit down.'' PHR medical experts noted
signs of severe depression and hyper vigilance. Having to wait
in Tijuana only compounded her fear and anxiety.
Perhaps the most distressing cases PHR documented concerned
children. Antonio, an 8-year-old Honduran boy, was attacked by
2 paramilitary men with a machete. Since the attack his parents
told PHR that he cries often and must hold his mother's hand to
be at ease. Since they arrived in Tijuana, Antonio defecates in
his bed and suffers from nightmares where he yells, ``Mom,
hurry, hurry. The guy is going to kill us.'' Antonio himself
reported symptoms of PTSD and anxiety disorder, as well as
somatization, whereby a psychological distress manifests as
physical ailments and attention problems. As most asylum
seekers stuck in Tijuana, Antonio did not have access to mental
health care, or adequate medication, or therapy for his
attention deficit hyperactivity disorder, which likely
exacerbated his condition.
Since the completion of PHR's investigations, I have
completed--I have participated in multiple forensic evaluations
of MPP returnees through our network of both Mexican and U.S.
physicians and attorneys. Here are snapshots of some of these
cases.
Alec is a Honduran evangelical pastor who was assaulted
multiple times and shot in the leg for opposing gangs trying to
recruit youth. Gang members then raped his wife, threatening
that it would keep happening unless he left the area. Alec fled
after his wife was raped a second time. In addition to his
physical scars, Alec screened positive for depression and PTSD.
Although he was granted asylum in immigration court, it was
immediately appealed.
Martin is a young man who fled Honduras due to pressure to
join a gang. He was diagnosed with epilepsy as a boy, for which
he was prescribed a combination of medications. After being
forced to wait in Tijuana, Martin suffered several seizures
that caused significant head and facial trauma. Although a
charity helped him find medications, U.S. border officials
confiscated these every time he crossed into the United States
to attend his hearings, despite medical letters from myself and
others attesting to the importance of these medications.
While I continue to work with MPP returnees in Tijuana, I
also provide emergency care in Los Angeles. Like any other
doctor, I first try to make the patient feel safe and in
control of their environment, so that we can comfortably
discuss and address their needs and fears. For the thousands
who wait in Tijuana, however, the standard of safety and basic
health needs are impossible to meet.
Since this program began in February, I have seen first-
hand how MPP puts the mental and physical health of asylum
seekers at grave risk, harming a population that has already
experienced severe levels of trauma. The stress and constant
vigilance required to survive in an under-resourced border town
like Tijuana exposes these asylum seekers to further violence
and exploitation. Each day that they are forced to wait
compounds the trauma that forced them to seek safe haven.
I urge Congress to take action by directing DHS to
immediately de-fund MPP and abolish metering, as well as any
policies that negatively impact the right to seek asylum or
risk re-traumatization of this vulnerable population, such as
programs intended to authorize officials other than trained
USCIS asylum officers to conduct credible fear interviews.
I also urge Congress to pass new legislation to safeguard
against policies or directives that effectively restrict
individuals' access to asylum protection in the United States.
Thank you.
[The prepared statement of Dr. Schneberk follows:]
Prepared Statement of Todd Schneberk
November 19, 2019
Thank you for the opportunity to speak here today. My name is Todd
Schneberk and I am an emergency physician who works in a large public
county hospital taking care of underserved populations in Los Angeles,
California. In addition to my clinical work, I conduct research and
teach in a residency-training program as assistant professor of
emergency medicine at L.A. County USC Medical Center. For the last 4
years, I also have been working on the other side of the U.S.-Mexico
border, in Tijuana, in free mobile clinics for indigent patients,
including many people who have been deported from the United States.
Many of these deportees are young people and veterans.
Today I speak as a medical expert for Physicians for Human Rights
(PHR). For more than 30 years, PHR has provided forensic evaluations
for asylum seekers in the United States. Based on the Istanbul Protocol
\1\--the international standard for documenting alleged torture and
other cruel, inhuman, and degrading treatment--these forensic
evaluations assess the degree to which physical and psychological
findings corroborate allegations of abuse, and play a key role in the
adjudication of asylum claims in the United States.
---------------------------------------------------------------------------
\1\ The Istanbul Protocol is the international standard to assess,
investigate, and document alleged instances of torture and other cruel,
inhuman, and degrading treatment. ``Istanbul Protocol: Manual on
Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment,'' OHCHR, 2004. https://
phr.org/issues/torture/international-torture/istanbul-protocol.html.
---------------------------------------------------------------------------
In the last 3 years, I have provided dozens of forensic medical
affidavits for asylum seekers and I have trained several other
physicians and residents in Los Angeles to perform these evaluations
and produce affidavits. However, my work has changed dramatically this
past year, ever since the Trump administration rolled out the Migrant
Protection Protocols, also known as MPP or the ``Remain in Mexico
Policy.'' With thousands of people now waiting in Mexico for a chance
to seek asylum in the United States, my colleagues and I face an
increasing demand to carry out these forensic evaluations on the other
side of the border, and we have been doing so in Tijuana.
The Department of Homeland Security (DHS) has stated that the MPP
was created so ``vulnerable populations receive the protections they
need.''\2\ However, the MPP clearly puts asylum seekers at risk and
violates the principle of non-refoulement, which simply states that
countries, including the United States, cannot return asylum seekers to
a place where they could be subjected to great risk, irreparable harm,
or persecution.\3\ The requirements of non-refoulement should not be
new to the United States, given that it is included in U.S. domestic
law,\4\ as well as the Convention against Torture,\5\ which the United
States has signed and ratified.
---------------------------------------------------------------------------
\2\ ``Migrant Protection Protocols,'' DHS, news release, January
24, 2019, accessed July 15, 2019, https://www.dhs.gov/news/2019/01/24/
migrant-protection-protocols.
\3\ The Principle of Non-Refoulement under International Human
Rights Law, OHCHR, https://www.ohchr.org/Documents/Issues/Migration/
GlobalCompactMigration/ThePrincipleNon-Re-
foulementUnderInternationalHumanRightsLaw.pdf.
\4\ Title 8--Aliens and Nationality, U.S. Code (2011), 1158.
Asylum. Page 109.
\5\ David Weissbrodt and Isabel Hortreiter, ``The Principle of Non-
Refoulement: Article 3 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with
the Non-Refoulement Provisions of Other International Human Rights
Treaties,'' Scholarship Repository: University of Minnesota Law School,
1999, https://scholarship.law.umn.edu/cgi/
viewcontent.cgi?article=1366&context=faculty_articles.
---------------------------------------------------------------------------
As a medical expert, I regularly witness the dire impacts of the
MPP. I am here today to share my assessment that the MPP--which daily
puts migrant women, children, and men directly in harm's way--should be
halted and defunded immediately. I have seen how the MPP puts the
mental and physical health of asylum seekers at grave risk, allowing
harm to be inflicted upon a population that has already experienced
severe levels of trauma. Many of the people we see have escaped extreme
violence in their countries of origin. Instead of finding the safety
they so desperately seek, they are forced back into under-resourced
border towns like Tijuana, where they are exposed to further violence
and exploitation. Each day that asylum seekers are forced to wait in
these precarious settings compounds the massive trauma that forced them
to flee their homes to seek safe haven within our borders. This
situation can quite literally be a threat to their lives.
physical and psychological health of asylum seekers
First, I would like to share my medical assessment of the state in
which thousands of asylum seekers arrive at our ports of entry. In
February this year, I was part of a PHR team of researchers and medical
experts who documented the cases of asylum seekers in Tijuana. These
findings later formed the basis of a PHR report named ``If I went back,
I would not survive.''\6\
---------------------------------------------------------------------------
\6\ ``If I went back, I would not survive:'' Asylum Seekers Fleeing
Violence in Mexico and Central America, Physicians for Human Rights,
October 2019, https://phr.org/our-work/resources/asylum-seekers-
fleeing-violence-in-mexico-and-central-america/#_ftnref61.
---------------------------------------------------------------------------
At migrant shelters and other safe havens, we interviewed and
medically evaluated dozens of asylum seekers who shared harrowing
stories of the extreme brutality they had experienced in their home
countries--and whose physical and psychological scars bore out their
narratives. These individuals and families were fleeing various forms
of extortion, rape, torture, and killings. Not surprisingly, the
majority screened positive for post-traumatic stress disorder (PTSD).
Additionally, many screened positive for depression and also
experienced significant fear and hypervigilance. Many were afraid they
had been followed to the border by the very gangs they had fled, and
some had been attacked even as they waited in Tijuana for their chance
to cross to safety into the United States. Returning traumatized asylum
seekers who are already in a particularly vulnerable situation to a
place where they risk further violence directly violates the United
States' commitment, under international and domestic law, to uphold
human rights.
While I'm sure that these accounts are not new to you, I would like
to share some of the physical and psychological signs and symptoms that
PHR's medical team documented among asylum seekers at the U.S. border.
(All names I refer to throughout this testimony have been changed for
security reasons.)
Javier,* a 36-year-old man who was extorted and beaten by a gang in
El Salvador, reported symptoms of PTSD, severe depression, and anxiety.
His inability to sleep led to physical exhaustion and lack of focus. He
also felt constantly on guard and watchful. He told PHR, ``Having seen
so much violence, sometimes I start shaking . . . a kind of fear,'' he
said. ``My body begins shaking and I go cold.''
Jimena* is a 21-year-old mother of 2 from Honduras who was raped
because her husband refused to join a gang. She told us how armed men
entered her home and threw her face-down on the kitchen floor. As she
fought back, one of the men held her down while the other man raped
her. She described to PHR her physical state afterwards: ``I had
bruises on my shoulders where they held me down. I had pain in the
abdomen for 3 days and in my stomach throughout the pregnancy; it hurt
to sit down.'' Throughout PHR's medical evaluation, Jimena demonstrated
signs of severe depression and hypervigilance. Having to wait in
Tijuana only compounded her fear and anxiety.
Perhaps the most distressing cases PHR documented concerned young
children. In Tijuana, we interviewed Antonio,* an 8-year-old Honduran
boy who was attacked by 2 men with a machete after his parents ran
afoul of the local paramilitaries. Before the ordeal, Antonio's
favorite school subject was writing, and he enjoyed playing ball with
his friends. Since the attack and his family's flight to the border he
has become sad and cries often. His parents told PHR that he holds his
breath when he is afraid and often must hold his mother's hand to be at
ease. Since he arrived in Tijuana, Antonio also defecates in his bed
and suffers from nightmares where he yells in his sleep, ``Mom, hurry!
Hurry! The guy is going to kill us!'' Antonio himself reported symptoms
of PTSD and anxiety disorder as well as somatization, whereby
psychological distress manifests as physical ailments and attention
problems.
As most asylum seekers stuck in Tijuana, Antonio did not have
access to mental health care. His parents also did not have access to
adequate medication or therapy for his attention deficit hyperactivity
disorder, which likely exacerbated his condition. When reflecting on
what the future held for her son, Antonio's mother said, ``I still
don't see it [ending] . . . I want my children to be OK in a safe place
. . . but we have not found that [safety] yet. Our hope is that they
will give us asylum, so my kids will be safe on the other side.''
the impact of the migrant protection protocols (mpp)
Asylum seekers who arrive at U.S. ports of entry--including many
bearing serious psychological and physicial consequences of the trauma
they have suffered--are now met at our border with the Migrant
Protection Protocols--a brutal response to their appeal in good faith
to await the processing of their asylum claim within the safety of the
United States. Since the completion of PHR's investigations, I have
participated in multiple forensic evaluations of MPP returnees through
a network of both Mexican and U.S. physicians and attorneys who serve
this population. As my colleagues today will speak to other aspects of
the implementation of the MPP, I would like to provide a series of
short snapshots of some of the cases for which I have provided my
medical expertise. I want it to be crystal clear who the people are
that are being returned to Mexico under the MPP.
Gerald is a gay schoolteacher from Ghana, which still has a law
that criminalizes adult consensual same-sex conduct. When local
community members discovered that he was gay, they tied a noose around
his neck and dragged him by it behind a car. His larynx was crushed so
badly that he had nearly lost his voice completely. He now speaks in a
hoarse, barely audible whisper, in stark contrast to the booming voice
he reported using to teach his 4th-graders at school. Gerald still
bears ligature marks on his neck. Despite his strong claim for asylum,
he has been unable to find legal counsel in Tijuana and struggles to
make a viable life there while he waits.
Alec is a Honduran evangelical pastor who organized youth groups
and a Christian anti-gang movement that opposed the recruitment of
youth. One day, gang members assaulted him multiple times and
ultimately shot him in the leg. They told Alec to stop trying to
influence young men to join the church instead of the gangs. Gang
members then raped his wife, with the ultimatum that this would keep
happening unless he left the area. Alec fled after his wife was raped a
second time. In addition to his physical scars, Alec was profoundly
psychologically wounded, screening positive for depression and PTSD.
Although he was initially granted asylum in immigration court, this
decision was immediately appealed.
Martin is a young man from Honduras who was beaten for refusing to
join a gang. At a young age, he was diagnosed with epilepsy, and had
seizures repeatedly until he was finally placed on a combination of
medications. He fled to the border but was unable to find the right
medicine for his seizures when he was in Tijuana. Martin then suffered
several seizures that caused significant head and facial trauma and
also made him unable to keep a job there. Although a local charity
helped him find medications, these were confiscated by U.S. border
officials every time he crossed into the United States to attend his
hearings, despite medical letters attesting to the importance of these
medications. Each time he was returned to Mexico under MPP, he was sent
back across the border without his medications, which posed a risk to
his health.
Lydia is a woman from Honduras who is seeking asylum with her
toddler, Jaime, and hoping to be reunited with her sister and niece who
reside in the United States. She is fleeing domestic abuse, kidnapping,
child abuse, and rape at the hands of gang members. Upon reaching
Tijuana, she was alerted through her family connections that the gang
had sent members to Tijuana to kill her. Lydia and her son remain
indoors for fear of being seen. They have had difficulty finding any
legal counsel; Jaime does not have access to routine pediatric care,
and Lydia has had no access to mental health assistance to address the
trauma of the sexual violence she suffered.
concluding remarks
These 4 cases represent a small fraction of the roughly 50,000
asylum seekers \7\ have been returned to Mexico under MPP. Another
26,000 wait, due to metering practices that limit the number of people
allowed to cross every day, to pursue their legal right to seek safety
in the United States for themselves and their family members. This is a
total of 76,000 people affected by these 2 policies alone.
---------------------------------------------------------------------------
\7\ ``Orders from Above: Massive Human Rights Abuses Under Trump
Administration Return to Mexico Policy,'' Human Rights First, October
2019, https://www.humanrightsfirst.org/sites/default/files/
hrfordersfromabove.pdf.
---------------------------------------------------------------------------
While I continue to return to Tijuana to provide MPP returnees with
needed medical and psychological evaluations, I also continue to
provide care to traumatized people every day in the emergency room in
Los Angeles. Like any ER doctor, the first thing I do is try to make a
patient feel safe. I control their environment as much as possible so
that we can comfortably discuss and address their needs and fears. For
the thousands who wait in Tijuana, however, this standard of safety is
not being met; nor is access to basic medical and mental health needs.
These needs include things like prenatal, obstetric, and routine
pediatric care, such as vaccines and nutritional screening, but also
expands to mental health services which are so desperately needed by
this population.
This is especially true as our evaluations of the mental health of
asylum seekers show that U.S. policies have stranded thousands of
women, men, and children in places like Tijuana and made them
vulnerable to violence, theft, and extortion by cartels, gangs, and
police authorities. Clearly, current U.S. policies that restrict asylum
seekers' right to enter the United States is inflicting further trauma
on them every day they must wait. The stress and constant vigilance
required to survive in an under-resourced border town like Tijuana is a
massive strain on already traumatized people. It harms their livelihood
and well-being and is literally a threat to their lives.
recommendations
All asylum seekers we interviewed sought protection due to targeted
violence and intimidation from gangs and other non-state actors as well
as violence by and/or denied protection by state authorities. While
they represent a small sample of the thousands of asylum seekers
currently waiting their turn to seek protection in the United States,
their cases indicate that they have strong grounds to seek asylum and
that their claims should be heard in a prompt and fair manner.
While the Obama administration implemented troubling policies
regarding detention and deportation, since 2016, the Trump
administration has undermined the integrity of the U.S. asylum system,
introducing a series of restrictive policies that defy both
international and U.S. law and egregiously obstruct the right to seek
asylum. These policies--including the Migrant Protection Protocols--
have placed people who are already in vulnerable situations--asylum
seekers fleeing violence and trauma in their home countries--at further
risk. Physicians for Human Rights' findings point to the urgent need to
protect the right of individuals to seek asylum in accordance with
Federal and international laws by implementing the following
recommendations.
Congress should:
Direct the Department of Homeland Security to immediately
abolish and defund the MPP and ``metering,'' as has already
been proposed in Representative Veronica Escobar's Asylum
Seeker Protection Act (H.R. 2662).
Defund any policies that may negatively impact the right to
seek asylum, such as pilot programs intended to authorize law
enforcement officials other than trained U.S. Citizenship and
Immigration Services (USCIS) asylum officers to conduct initial
screenings known as ``credible fear interviews'' (CFIs).
Propose and pass new legislation to affirm the full range of
rights guaranteed to asylum seekers to counteract any executive
or Departmental policies or directives that effectively
restrict individuals' access to asylum protection.
Provide adequate funding to ensure USCIS has sufficient
resources to appropriately conduct CFIs.
Publicly support the work of individuals and organizations
defending the rights of asylum seekers on the U.S. and Mexican
sides of the border and monitor any threats to their ability to
carry out this work.
Pursue policies that seek to create a safe, stable
environment for asylum seekers to fulfill their right to pursue
their asylum claims within the protection of the United States,
and that meaningfully guard against the re-traumatization of
this vulnerable population.
Miss Rice. Thank you, Doctor. I now recognize Mr. Knowles
to summarize his statement for 5 minutes.
STATEMENT OF MICHAEL A. KNOWLES, PRESIDENT, AFGE LOCAL 1924,
SPECIAL REPRESENTATIVE AFGE NATIONAL CIS COUNCIL 119
Mr. Knowles. I wish to thank the committee for giving me
the opportunity to testify here today.
I want to reiterate that I am here in my capacity as the
union representative for USCIS employees, and not in my
official capacity as an asylum officer. I am not authorized to
speak on behalf of the agency, but I speak on behalf of our
members.
I have an extensive written statement, which is submitted
for the record, and I would like to draw attention to some of
the exhibits, one being our amicus friend-of-the-court brief
that we submitted in the 9th Circuit in June in support of a
lawsuit brought against DHS on its MPP policy, and we
extensively document the objections of our members to this
policy in that amicus brief.
We have also submitted a very important news story,
documents regarding the much-publicized resignation of one of
our asylum officers from San Francisco, Mr. Douglas Stephens.
He was the subject of some news stories in both print and in
the radio over the last weekend, and we have included the
transcript of the radio broadcast and his own statement of
resignation, in which he outlines legal objections.*
---------------------------------------------------------------------------
* Attachments 1-3 have been retained in committee files.
---------------------------------------------------------------------------
We just want to say for the record that the union stands
firmly behind Mr. Stephens and other asylum officers who have
bravely raised their voices.
As indicated in my bio, I am well-acquainted with this
field, having served as an asylum officer since 1992, the
second year of the program's inception, and before that worked
for many years abroad. I am well-acquainted with crisis. I am
well-acquainted with conflict, having worked in war zones
ranging from Vietnam to Cambodia, Afghanistan, and refugee
camps across western and southeast Asia, as well as refugee
camps here in the United States.
I mention that because many of my asylum officer colleagues
are just like me, they bring extensive experience, they are
subject-matter experts in the field. They were hired by the
Government to conduct some of the most difficult and
complicated work of the Immigration Service, and they do so
proudly as patriotic citizens and public servants. Many of them
are attorneys. Many of them have advanced degrees and extensive
experience in the human rights field.
We are very dismayed that statements by this
administration's leadership, our own agency leadership, has
disparaged this loyal work force, and going so far as to
question their integrity, their competence, and their loyalty
to the United States. I ask that this committee, regardless of
party or inclination on this matter, would do its utmost to
uphold the good name and the loyalty of these brave men and
women.
My colleagues here on the panel have eloquently testified
to the effect of these programs on the migrants and asylum
seekers. I am here today to talk about the effect, the very
serious effect, on the officers that have to carry out the
work.
Many of them have expressed their concerns internally, some
publicly, all in good conscience, none out of disloyalty. We
have had disparaging remarks indicating that they just don't
agree with policies, or that they are politically motivated. We
categorically deny those allegations. We are nonpartisan,
professional civil servants. We took an oath to uphold the
Constitution and laws of the United States. Our objection to
the policies like MPP, which is only one of many egregious
policies that are being implemented, our objections are based
in our oath and in our commitment to uphold the law.
These policies are blatantly illegal, they are immoral,
and, indeed, are the basis for some egregious human rights
violations by our own country.
We have been threatened with retaliation, with
investigations of leakers and whistleblowers. We have had some
of our members threatened with discipline and, most shockingly,
we witnessed the precipitous removal of Mr. John Lafferty, the
chief of the asylum program, who is one of the most highly
respected civil servants I have had the honor to serve with. He
was summarily dismissed and transferred with no explanation.
I have no insight into that action, but my members and I
have reason to believe it was because of his devotion to the
program, to its integrity, and to its work force, and he was
seen as an obstacle to carrying out some of these policies.
So in closing, I would ask this committee to have more
hearings like this. We need more exposure of these situations.
MPP is only one of many serious abuses in this field. We
filed a brief on the so-called third-country transit bar. As
you have read in the news, we are on the eve of yet another
egregious abuse by our country, whereby asylum seekers will be
transported to have asylum cases heard in Guatemala, not by our
own country, but by a country that produces many refugees
itself.
Our officers are dismayed. They are--they remain committed
to the job. But they ask me to implore this committee to please
intervene, to put a stop to this injustice.
Thank you for your time, and I look forward to answering
your questions.
[The prepared statement of Mr. Knowles follows:]
Prepared Statement of Michael A. Knowles
November 19, 2019
Chairwoman Rice, Ranking Member Higgins, and other Members of the
subcommittee: Thank you for inviting me to submit this statement for
the record.
introduction
I have proudly served in the United States Asylum Officer Corps
since 1992, 1 year after its creation. Prior to that, I served for many
years as a case worker, program manager, and policy analyst with
various non-governmental organizations responsible for refugee
protection, resettlement, and humanitarian assistance in the United
States and abroad (Afghanistan, Cambodia, Indonesia, Pakistan,
Malaysia, Singapore, and Thailand).
I appear here in my capacity as the special representative for
refugee asylum and international operations for the National
Citizenship and Immigration Services Council 119 of the American
Federation of Government Employees (AFGE)--the labor organization that
represents over 13,500 bargaining unit employees of the U.S.
Citizenship and Immigration Services (USCIS) world-wide. As special
representative, I report directly to the council president, Danielle
Spooner, on all matters related to asylum and refugee matters.
Concurrently, I serve as the elected president of AFGE Local 1924--
the Council 119 affiliate that represents 2,500 USCIS employees in the
National Capitol Region. My views represent the Union and its members.
They are not official positions of the U.S. Government.
Today's hearing shines critical Congressional light on the Migrant
Protection Protocols (MPP) ``Remain in Mexico'' policy rolled out by
the Trump administration this year. I expect my co-panelists to produce
significant evidence demonstrating why MPP is an unmitigated disaster
for everyone involved. My testimony focuses on how MPP is affecting--
and hurting--my fellow Asylum Officers, who must either carry out
orders and run the program they reasonably believe violate the law and
endanger asylum seekers or leave their jobs.
Unless otherwise noted, my testimony is based on public source
information. In particular, I recommend to the subcommittee the report
published late last week by the office of U.S. Senator Jeff Merkley (D-
OR).\1\ It describes the extensive efforts by the Trump administration
to deter and prevent asylum seekers from legally claiming asylum within
the United States. It also reveals how programs like MPP are part of a
larger, systematic effort undermining the functioning of the U.S.
asylum system. I urge you to review its detailed findings and adopt its
recommendations.
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\1\ Shattered Refuge--A U.S. Senate Investigation into the Trump
Administration Gutting of Asylum (Nov. 2019), available at https://
www.merkley.senate.gov/imo/media/doc/SHATTERED%20RE- FUGE%20-
520A%20US%20Senate%20Investigation%20into%20the%20Trump%20Ad-
ministration%20Gutting%20of%20Asylum.pdf (Merkley Report).
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about asylum officers
To begin, my Union has taken and continues to take stands against
policies we consider illegal. We actively support our members who
exercise their lawful rights to report abusive policies, programs, and
practices to Congress and other agencies, as well as their first
amendment rights.
We have filed Amicus Curiae briefs in 4 major court cases
challenging the Trump administration's illegal and dangerous policies
regarding the U.S. Refugee and Asylum programs: (i) The 2017 travel ban
that suspended most overseas refugee processing; (ii) the MPP policy;
(iii) the substantive changes to USCIS training and guidance materials
for Asylum Officers; and (iv) the so-called ``third-country transit
bar''--the insidious rule barring migrants arriving at the Southern
Border from receiving asylum if they transited through a third country
and did not apply for and were denied asylum while there.\2\ Because of
the relevance of our MPP Amicus brief to today's hearing, it is
attached here as Exhibit 1 and is incorporated into my testimony.
---------------------------------------------------------------------------
\2\ Trump v. International Refugee Assistance Project, Nos. 16-1436
& 16-1540 (S.Ct.) (2017 travel ban Amicus brief filed Sept. 7, 2017);
Innovation Law Lab v. McAleenan, No. 19-15716 (9th Cir.) (MPP Amicus
brief filed June 26, 2019); Kiakombua v. McAleenan, No. 19-cv-01872-KBJ
(D.D.C.) (USCIS training and guidance materials Amicus brief filed
Sept. 20, 2019); East Bay Sanctuary Covenant v. Barr, No. 19-16487 (9th
Cir.) (third country transit bar Amicus brief filed Oct. 15, 2019).
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Asylum Officers have tough jobs. We make decisions that have life
or death consequences. Most of us consider the work a calling; we make
significant personal sacrifices to carry out the Nation's founding
mission--to serve as a beacon to the persecuted across the globe.
Frankly, the job takes its toll--even in the best of times.
But we are now far from the best of times. Since the start of the
current administration, policies and procedures have been imposed that
I and many of my colleagues believe to be illegal. More importantly,
they are fundamentally wrong and threaten to shred the moral fabric of
our society.
what asylum officers do
For good reason, we are focused today on the Southern Border.
There, Asylum Officers are the ones who have to decide in an initial
screening interview whether persons seeking refuge in the United States
have shown a credible fear of persecution in the countries from which
they have fled. By law, the standard we apply at this early stage in
the asylum process is a low one--intended to weed out patently false
allegations and identify those who have a significant possibility of
making a valid asylum claim. If they pass our screening, they then
proceed to Federal immigration court. They are not returned to the
dangers they face in the countries from which they are fleeing--
consistent with the obligation of non-refoulment that are enshrined in
our laws and ratified international treaties. The screening is intended
to be a ``safety net;'' it is not a final adjudication of asylum
claims.
In immigration court, a judge conducts a full hearing of the
evidence and applies a higher standard: Whether the evidence shows that
the individual has suffered past persecution or has a well-founded fear
of future persecution in their home countries.\3\ The standards applied
by Asylum Officers and immigration judges are not the same. The passing
rate in immigration court in immigration court is, by design, far
lower.
---------------------------------------------------------------------------
\3\ Congressional Research Service (CRS), Asylum and Related
Protections for Aliens Who Fear Gang and Domestic Violence, 2 (2018).
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what now happens under mpp
MPP turns the process upside down. Now, many asylum applicants are
referred to the immigration courts by Customs and Border Patrol (CBP)
Agents without a credible/reasonable fear screening by USCIS Asylum
Officers--but are first returned to wait on the Mexico side of the
border, pending their court hearings. It is no secret that the towns
and cities at the Southern Border are among the most dangerous in
Mexico--the State Department warns everyone not to travel to the region
around Matamoros, for instance, because carjacking, and sexual assault
are common, gang gun battles are wide-spread and it has one of the
highest kidnapping rates in the country.\4\ Yet applicants are made to
wait in Mexico unless they affirmatively assert a fear of serious harm
and can prove to an Asylum Officer under the higher, ``more likely than
not'' standard that they would face persecution in that country. Now,
over 57,000 refugees have been returned to wait in perilous conditions
in Mexico under this cruel policy.
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\4\ U.S. Department of State, Mexico Travel Advisory (April 9,
2019), available at https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
---------------------------------------------------------------------------
The dangers of waiting in Mexico under MPP were graphically
illustrated this past weekend on an episode of the This American Life
podcast/radio show devoted to MPP. A transcript is attached as Exhibit
1.\5\
---------------------------------------------------------------------------
\5\ This American Life, The Out Crowd, Episode 688 (Air Date Nov.
15, 2019), transcript available at https://www.thisamericanlife.org/
688/transcript.
---------------------------------------------------------------------------
One woman from Honduras, who has been waiting in Matamoros
for 3 months for her court date said she, her husband, and
daughter were kidnapped by a Mexican cartel for 15 days.
In Nuevo Laredo, across the Rio Grande from Laredo, Texas,
kidnapping is so prevalent that men living inside a shelter for
migrants are terrified to go outside. One family from Honduras,
a father and 11-year-old son, were kidnapped and held for
ransom for 4 days. According to the father, on the day of the
kidnapping he and 100 other asylum applicants sent back under
MPP, were taken from the international bridge crossing the Rio
Grande to the local Mexican immigration office for processing.
After that a man wearing a Mexican immigration officer uniform
agreed to take him and his son to the bus station so they could
go to a safer city. But as soon as they got to the station the
father and son were grabbed and taken to a normal-looking house
holding more than 20 other migrants. While there, the boss told
the father that his son's organs were good for selling because
he was only 11 years old. The father and son were released
after the father's sister paid a ransom, by wiring the money to
a bank account connected to the Mexican immigration officer.
Other reporting has similarly documented wide-spread violence and
inhumane conditions facing migrants stranded in Mexico.\6\
---------------------------------------------------------------------------
\6\ See, e.g., Human Rights First, Orders from Above: Massive Human
Rights Abuses Under Trump Administration Return to Mexico Policy (Oct.
2019), available at https://www.humanrightsfirst.org/sites/default/
files/hrfordersfromabove.pdf (``More than one thousand children,
families, and adults are sleeping on the streets in front of the
Matamoros port of entry without adequate access to water or proper
sanitation, too afraid to enter the city because of the extreme
violence there. An American nurse, visiting as a volunteer, told Human
Rights First researchers that many of the children were suffering from
diarrhea and dehydration.''); Los Angeles Times, Molly O'Toole,
Borderline: Trump's Immigration Crackdown, Los Angeles Times (August 5,
2019), available at https://www.latimes.com/politics/story/2019-08-05/
borderline-trumps-immigration-crackdown.
---------------------------------------------------------------------------
action by asylum officers and their union
In the face of this my Union, its members and other USCIS employees
have not been idle. Here are 3 recent examples of tangible action in
opposition to MPP. And to be clear: Hundreds of current and former
USCIS employees share the views expressed through these actions.
Union Action: Lawsuits.--Based on the kind of horrific reports
described above (along with many others), my Union argues in our Amicus
brief supporting the challenge to MPP, attached as Exhibit 1, that the
policy is contrary to America's long-standing tradition of providing
safe haven to people fleeing persecution, and that it violates our
Nation's legal obligations to not return asylum seekers to where they
may face persecution. In our Amicus brief supporting the challenge to
the Trump administration's transit bar we argue that it is inconsistent
with our asylum law and that it is contrary to the Nation's long-
standing asylum framework and produces absurd results.
Individual Action: Documented Resignation.--Brave Asylum Officers
have done much more. In the last 7 days alone, Senator Merkley
disclosed and the Washington Post, CNN, the Los Angeles Times and This
American Life reported on an Asylum Officer in San Francisco who
resigned rather than participate in MPP.\7\
---------------------------------------------------------------------------
\7\ Merkley Report, at 51-52; Washington Post, Greg Sargent, In
Scathing Manifesto, An Asylum Officer Blasts Trump's Cruelty to
Migrants (Nov. 12, 2019), available at https://www.washingtonpost.com/
opinions/2019/11/12/scathing-manifesto-an-asylum-officer-blasts-trumps-
cruelty-migrants/; CNN, Priscilla Alvarez, Senate Report:
Whistleblowers Blast Trump Administration's Immigration Policies (Nov.
14, 2019), available at https://www.cnn.com/2019/11/14/politics/
merkley-asylum-report/index.html; Los Angeles Times, Molly O'Toole,
Asylum Officers Rebel Against Trump Policies They Say Are Immoral and
Illegal (Nov. 15, 2019), available at https://www.latimes.com/politics/
story/2019-11-15/asylum-officers-revolt-against-trump-policies-they-
say-are-immoral-illegal; This American Life, The Out Crowd, Episode 688
(Air Date Nov. 15, 2019), transcript available at https://
www.thisamericanlife.org/688/transcript. See also Vox, Dara Lind,
Exclusive: Civil Servants Say They're Being Used as Pawns in a
Dangerous Asylum Program (May 2, 2019), available at https://
www.vox.com/2019/5/2/18522386/asylum-trump-mpp-remain-mexico-lawsuit.
---------------------------------------------------------------------------
As recounted on This American Life, in June 2019, Doug Stephens was
assigned to MPP interview duty. His first interview was father-and-son
asylum applicants from Honduras. The father described encountering
criminal cartels, witnessing other migrants being murdered and
tortured, fleeing and barely getting away while death threats are being
shouted at him. And the father said they had been stopped by the
police--who took their money and cell phones. But the father failed to
say the magic words: ``they threatened me because I'm Honduran.'' Doug
sent them back to Mexico--under MPP protocol the father had to state,
flat-out, those words. He hadn't.
Two days and 4 interviews later, Doug had had enough. A trained
lawyer, he researched the law and identified 7, separate legal problems
with MPP. He told his supervisor he would do no more MPP interviews.
The supervisor said that Doug would be subject to discipline and that
disciplinary proceedings would begin. USCIS management's position is
that their lawyers have said MPP is legal (notwithstanding pending
legal challenges), that Doug received a ``lawful'' order to work on
MPP, and that Doug's refusal to follow a lawful order constituted
insubordination.\8\
---------------------------------------------------------------------------
\8\ This American Life recorded acting head of USCIS Ken Cuccinelli
saying: ``I do expect that the professional employees at USCIS will
implement the policies in place. They're part of the Executive branch,
and so long as we're in the position of putting in place what we
believe to be legal policies that haven't been found to be otherwise,
we fully expect them to implement those faithfully and sincerely and
vigorously.''
---------------------------------------------------------------------------
Doug responded by drafting a legal memorandum that he initially
sent to USCIS management justifying his decision. He also sent the memo
to Senator Merkley's office and to the Union. The Federal Whistleblower
Protection Act allows Federal employees to lawfully make such
disclosures to Congress (as well as the Office of Special Counsel, to
the agency's inspector general and to agency employees designated to
receive such disclosures).\9\ After receiving no response from
management, he quit. On his last day, he sent his memorandum to the 80
employees in the San Francisco Asylum office.
---------------------------------------------------------------------------
\9\ See 5 U.S.C. 2302(c)(2)(C)(iii).
---------------------------------------------------------------------------
Doug's memo is reprinted in Senator Merkley's report and a copy is
attached here as Exhibit 2.\10\ He points out that MPP is not supported
under existing law, was illegally implemented without following
required Federal rulemaking procedures and violates international law.
He states:
---------------------------------------------------------------------------
\10\ At the time he sent his memo to Senator Merkley, Doug was
identified an anonymous whistleblower. He later decided to identify
himself in reporting by the Los Angeles Times and This American Life.
---------------------------------------------------------------------------
[T]he MPP both discriminates and penalizes. Implementation
of the MPP is clearly designed to further this administration's
racist agenda of keeping Hispanic and Latino populations from
entering the United States. This is evident in the arbitrary
nature of the order, in that it only applies to the Southern
Border. It is also clear from the half-hazard implementation
that appears to target populations from specific Central
American countries . . .
[I]t is a punitive measure intended to punish individuals
who attempt to request protection in the United States.
[T]he MPP practically ensures violation of our international
obligation of non-refoulment.
[The MPP] process places on the applicants the highest
burden of proof in civil proceedings in the lowest quality
hearing available. This is a legal standard not previously
implemented by the Asylum Office and reserved for an
Immigration Judge in a full hearing.
[E]ven if all the above were remedied, the process is still
morally objectionable and contrary to the [USCIS Asylum Office]
mission of protection. The Asylum Office would still be
complicit in returning individuals to an unsafe and
unreasonable situation.
I understand that Doug will be submitting today for the record
today written testimony. Council 119 stands firmly behind his
insightful statements. Should additional hearings be held we believe
that you will find him a most compelling witness.
Union Action: Public Media.--I and other Union leaders have
exercised our First Amendment rights to express our opinions on behalf
of our members. For instance, in a Washington Post opinion article
submitted on behalf of our Union, Local 1924 vice president and union
steward Charles ``Chuck'' Tjersland said: ``the standards for
demonstrating [fear of waiting in Mexico] are almost impossibly tough.
When I went to San Ysidro, Calif., to conduct interviews for [MPP], I
spoke with people whose heartbreaking stories, I knew, wouldn't be good
enough.''\11\ He went on to say:
---------------------------------------------------------------------------
\11\ Washington Post, Charles Tjersland, I Became an Asylum Officer
to Help People. Now I put Them Back in Harm's Way (July 12, 2019),
available at https://www.washingtonpost.com/outlook/i-became-an-asylum-
officer-to-help-people-now-i-put-them-back-in-harms-way/2019/07/19/
1c9f98f0-a962-11e9-9214-246e594de5d5_story.html.
``When I started working as an asylum officer more than 26 years ago,
it seemed like a dream job. At the time, hundreds of thousands of
Central Americans were fleeing horrific political repression by their
governments, which had the backing of the United States. I was a law
student in Washington, working at an aid center for recent immigrants.
Most of my friends and colleagues were pretty skeptical of the Federal
Government. But I thought that this could be a way to help people,
while fighting for what I thought America should be: A beacon of
freedom, offering refuge to those in need.
``The Trump administration's policies have turned the process into a
Kafkaesque nightmare. My colleagues and I have interviewed thousands of
asylum seekers from Guatemala, El Salvador, and Honduras and told them
that they had to return to Mexico while their cases were processed--
knowing all the while that they might be kidnapped, assaulted, or
killed. Under MPP, also known as `Remain in Mexico,' we're not allowed
to let them stay here. We're forced to put them back in danger.''
Chuck was subsequently interviewed by Steve Inskeep, the host of
National Public Radio's (NPR's) Morning Edition.\12\ Again speaking in
his capacity as a Union leader he said:
---------------------------------------------------------------------------
\12\ NPR Morning Edition, Asylum Officers Are Being Used As An
Immigration Deterrent, Tjersland Says (Aug.19, 2019), available at
https://www.npr.org/2019/08/16/751672742/asylum-officers-are-being-
used-as-an-immigration-deterrent-tjersland-says.
---------------------------------------------------------------------------
INSKEEP: Do you get messages from your superiors, explicit
or implicit, to basically send everyone to Mexico?
TJERSLAND: It's implicit. It's not--there's no explicit order
saying that. But by rigging the standards as has been done,
that's exactly how it comes across.
INSKEEP: Is there a story of someone you sent back to Mexico
that you had trouble getting out of your head when you went
home that night?
TJERSLAND: Oh, yeah, yeah, yeah. I mean, not knowing where, you
know, where, you know, a man or a woman was going to be keeping
their children safe, literally--where are they going to be?
INSKEEP: Would she ask you, what am I supposed to do when I
get to Mexico?
TJERSLAND: Well, you know, this is my--these are the questions
we're supposed to ask. We're supposed to ask, so if you were to
go back today, where would you be going? Where are you going to
go? And they're really--they are at their wit's end. They're
saying, the shelter is full. We've been told we can't go back
there.
INSKEEP: Do you have colleagues who've quit?
TJERSLAND: We've had colleagues that have quit. We're driving away
some of the brightest minds, most motivated hearts. Many still
remain. Don't get me wrong. But it's really a shame.
dhs actions and reactions
The current political leadership of the Department of Homeland
Security (DHS) and USCIS has aggressively--and wrongfully--reacted to
these actions. They have also taken prohibited retaliatory measures.
Partisan Broadcasts to Employees.--Ken Cuccinelli was publicly
named acting USCIS director on June 10, 2019.\13\ He has since been
named acting deputy secretary of DHS. On June 10, he sent the following
email to USCIS staff:
---------------------------------------------------------------------------
\13\ USCIS Press Release, Cuccinelli Named Acting Director of USCIS
(June 10, 2019), available at https://www.uscis.gov/news/news-releases/
cuccinelli-named-acting-director-uscis.
``We must work hand-in-hand with our colleagues within DHS along with
our other Federal partners to address challenges to our legal
immigration system and enforce existing immigration law. Together we
will continue to work to stem the crisis at our Southwest Border . . .
We will also work to find long-term solutions to close asylum loopholes
that encourage many to make the dangerous journey into the United
States so that those who truly need humanitarian protections and meet
---------------------------------------------------------------------------
the criteria under the law receive them . . . ''
Mr. Cuccinelli's first-day-of-work statement was not well-received
by the workforce. According to the media report quoting the email,
``one DHS official said the announcement was dropped on employees
suddenly and could be distracting during an already tumultuous time.
`My concern is with employees and their morale,' the official said . .
. Former USCIS officials said the email sent by Cuccinelli . . . was
concerning . . . `Everything in that email suggests he is more
interested in enforcement than in services, which is the agency's
mission,' said Ur Jaddou, former chief counsel at the agency.''\14\
---------------------------------------------------------------------------
\14\ BuzzFeed News, Hamed Aleaziz, Trump's New Immigration Services
Chief Took a Hard Line on Immigrants' Children (June 10, 2019),
available at https://www.buzzfeednews.com/article/hamedaleaziz/trump-
has-appointed-an-immigration-hardliner-to-run-an.
---------------------------------------------------------------------------
Mr. Cuccinelli then went further. Eight days after his start, he
sent on June 18, 2019 a highly partisan broadcast email to Asylum
Division employees. According to a contemporaneous media report:
``Cuccinelli began the message by relaying the number of apprehensions
at the southwest border and that the system had reached a breaking
point. He told staffers that USCIS needed to do its `part to help stem
the crisis and better secure the homeland.'
`` `Asylum officers, you took an oath to support and defend the
constitution of the United States. As a public servant your role as an
asylum officer requires faithful application of the law.'
``The acting director cited statistics used by the Trump administration
about the individuals who do not show up for their immigration court
hearings and those who do not end up being granted asylum.
``Cuccinelli then told staffers, in an apparent warning, that the gulf
between the number of individuals granted passage under the screening
and those who are granted asylum by an immigration judge was wider than
the `two legal standards would suggest.'
`` `Therefore, USCIS must, in full compliance with the law, make sure
we are properly screening individuals who claim fear but nevertheless
do not have a significant possibility of receiving a grant of asylum or
another form of protection available under our nation's laws,' he said.
``Cuccinelli added that officers have tools to combat `frivolous
claims' and to `ensure that [they] are upholding our nation's laws by
only making positive credible fear determinations in cases that have a
significant possibility of success.
``One official at the Department of Homeland Security--of which USCIS
is a part--said the email was `insane,' while former officials said the
email was clearly a threat.''\15\
---------------------------------------------------------------------------
\15\ BuzzFeed News, Hamed Aleaziz, A Top Immigration Official
Appears to Be Warning Asylum Officers About Border Screenings (June 18,
2019), available at https://www.buzzfeednews.com/article/hamedaleaziz/
uscis-director-asylum-officers-email.
Needless to say, we regarded such messages as an affront to the
professionalism and loyalty of the Asylum Officer Corps. We have always
been fervently committed to upholding our oath to defend the
Constitution and faithfully apply the laws of the United States of
America; and we have served with great distinction so doing for almost
3 decades. I can confirm that Mr. Cuccinelli's harsh admonishment of
USCIS Asylum Officers has had an intimidating effect upon employee
morale and performance.
Attacking the Union.--Mr. Cuccinelli continued on this course in
ensuing days. On June 26, 2019, we filed our Amicus brief supporting
the legal challenge to MPP.\16\ Late that evening, Mr. Cuccinelli, a
prolific Twitter user, tweeted ``[t]his lawsuit is an attempt by the
union to score short-term political points.''
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\16\ Innovation Law Lab v. McAleenan, No. 19-15716 (9th Cir.)
(Amicus brief filed June 26, 2019).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Minutes later, he tweeted ``[t]his demonstrates the complaining
union leaders are choosing to deny reality.'
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The next day, USCIS issued a press release quoting Mr. Cuccinelli
accusing me and my leadership of ``playing games'' and engaging in a
``cheap political stunt.''\17\ That night, Mr. Cuccinelli was
interviewed on CNN by Erin Burnett.\18\ When asked whether we were
right when we said in our Amicus brief (at page 24) that Asylum
Officers ``should not be forced to honor departmental directives that
are fundamentally contrary to the moral fabric of our Nation and our
international and domestic legal obligations,'' he said:
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\17\ Press Release, USCIS Acting Director Cuccinelli Response to
Amicus Brief Filed by AFGE Local 1924 Leadership (June 27, 2019),
available at https://www.uscis.gov/news/news-releases/uscis-acting-
director-cuccinelli-response-Amicus-brief-filed-afge-local-1924-
leadership. Mr. Cuccinelli is quoted in more detail as follows: ``Union
leadership continues to play games while the border crisis intensifies.
Lives are being lost, detention facilities are unsustainably
overcrowded, and illegal aliens with frivolous claims continue to
overwhelm our system. The fact of the matter remains that our officers
signed up to protect the truly vulnerable, our asylum system, and most
importantly, our country. A cheap political stunt helps no one and
certainly does not help to contain this crisis.''
\18\ CNN, Erin Burnett Out Front (June 27, 2019), available at
https://podcasts.apple.com/us/podcast/biden-sanders-about-to-take-
center-stage-as-democrats/id475738195?i=1000443007137.
``Absolutely not. If you look at the rest of their filing, you'll also
see that they say there isn't a problem basically on the border. We can
handle this. We don't need to institute special considerations, things
like MPP that's being worked on with Mexico and expanded. They're in
denial of reality.
``And thankfully most of our asylum officers don't think that. The
union has gone ahead and filed this Amicus brief, but it clearly
doesn't represent the state of play at the border or that we are
dealing with in our agency as it relates to asylum.''
Mr. Cuccinnelli's words were chilling and intimidating then; they
are chilling and intimidating now. That should be obvious when coming
from the head of the agency--who very publicly castigates a Union for
exercising its lawful rights on behalf of its members.
Union Reaction: Grievance Filed \19\.--AFGE Council 119 reacted to
the foregoing by filing a National-level grievance against Mr.
Cuccinelli. The grievance alleged Mr. Cuccinelli violated multiple
provisions of the Collective Bargaining Agreement of 2016 between USCIS
and Council 119 and the Federal Labor Relations Act (FLRA) by
committing one or more egregious unfair labor practices.\20\ More
specifically, it charged Mr. Cuccinelli with making hostile and
unfounded statements about our Amicus brief filing by denouncing the
Union for a brief he believes does not represent the views of our
members, and by challenging the legitimacy of the USCIS employees who
have exercised their First Amendment rights and who have exercised
their rights to participate in and act for the Union. His actions have
had the effect of interfering with the Union's effective representation
of the bargaining unit--and hindered the employees from exercising
their first amendment rights through their Union's advocacy on their
behalf.
---------------------------------------------------------------------------
\19\ Some of the information found in this section is not currently
in the public domain. AFGE, the party that sent or received the
information discussed here, now consents to its publication.
\20\ The grievance alleged that Mr. Cuccinelli's statements were
unfair labor practices inasmuch as the FLRA makes it an unfair labor
practice for an agency ``to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right under this
chapter.'' 5 U.S.C. 7116(a)(1).
---------------------------------------------------------------------------
As required under the Collective Bargaining Agreement, Council 119
submitted the grievance to USCIS on August 1, 2019; it was rejected on
August 29, 2019. USCIS justified its decision on the grounds that Mr.
Cuccinelli was merely expressing his personal opinion and ``[t]here is
simply nothing hostile about [his] statements.'' To continue defend our
freedom of expression and the rights of USCIS employees we invoked our
right to third-party arbitration on September 29, 2019. Council 119 and
Agency representatives are seeking the assistance of the Federal
Mediation and Conciliation Service to select an arbitrator and schedule
a hearing in the matter.
Mr. Cuccinelli Refuses to Meet with the Union.--Mr. Cuccinelli has
repeatedly rebuffed the Union's requests to meet and address the
concerns of our members. At his first and only town hall meeting with
USCIS employees on October 23, 2019, I asked Mr. Cuccinelli if he would
meet with the Union. According to a media report, he said: ``I believe
the day you tried to get on my calendar was the day you went on CNN and
had some things to say, and I didn't want to legitimize some of what
you were saying there . . . Maybe another day, but it's hard to meet
with people who are suing you.''\21\ His refusal is particularly
disturbing in view of the contentious negotiations that occurred
between the Union and the Agency over our term collective bargaining
agreement (it has been sent to our membership for ratification).
---------------------------------------------------------------------------
\21\ BuzzFeed News, Hamed Aleaziz, There Was a Tense Exchange
Between One of Trump's Top Immigration Officials and an Asylum Officer
(Oct. 23, 2019), available at https://www.buzzfeednews.com/article/
hamedaleaziz/ken-cuccinelli-uscis-meeting-tense-exchange.
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Hunting for Whistleblowers.--Mr. Cuccinelli has made finding and
punishing ``leakers'' a top priority. He boasted about it during a
November 3, 2019 TV interview.
``[I]n my first 100 days here we disciplined 27 leakers. We have a
handful more still in the pipeline for discipline. I have had
confrontations unfortunately with employees instigated by them, not by
me, on policy matters that our agency is engaged in, and I think those
discussions, frankly, are more appropriate to the political arena than
to an employee-management relationship.''\22\
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\22\ Full Measure, Immigration Battles (Nov. 3, 2019), available at
http://fullmeasure.news/news/immigration/immigration-battles.
Of course, this kind of talk is chilling and intimidating for
everyone, particularly whistleblowers. The work of Asylum Officers has
come under increased scrutiny; many are fearful for their jobs. Regular
notices warn employees of disciplinary action for those who ``leak''
internal policy and procedural guidance documents to outside parties.
Moreover, the anxiety is now even higher because, other than Mr.
Cuccinelli's boast, USCIS has provided the Union with no formal
notification of such a high number of disciplinary actions having been
taken against ``leakers.'' This subcommittee can and should demand
answers.
Leadership ``Reassignment''.--In late September 2019, Acting
Director Cuccinelli took the highly unusual step of reassigning the
Asylum Division's long-time and highly-respected chief to a lower-level
management position. As described in Senator Merkley's report:
``The reassignment of John L. Lafferty, an experienced career manager,
delivered a harsh message to USCIS staff . . . Whistleblowers have
reported that Mr. Lafferty was told he was being reassigned just days
before it was announced. It took the form of a `rubber-stamped' letter
from Acting Director Cuccinelli. Mr. Lafferty reluctantly accepted the
transfer--albeit by informing management that he considered it
`involuntary.'
``It is not apparent whether there are specific actions that cost Mr.
Lafferty his job, but whistleblowers report that his firing is
perceived as the result of acting as a committed, civil servant who
played it by the book. In other words, he was too neutral. His
reassignment was intended to send a message, and that message was
received. Rank-and-file officers drew their own obvious conclusion:
That Lafferty was fired for applying asylum law as written rather than
skewing it to meet the administration's political goals.''\23\
---------------------------------------------------------------------------
\23\ Merkley Report, at 41-42 (footnotes omitted). See also CNN,
Geneva Sands, US Asylum Chief Reassigned After Critical Email
Publicized (Sept. 4, 2019), available at https://www.cnn.com/2019/09/
04/politics/uscis-asylum-john-lafferty/index.html.
I want to elaborate and confirm that Mr. Lafferty's removal dealt a
tremendous blow to the morale of the workforce, which took this adverse
action as a warning to all concerned. The exact reasons for Mr.
Lafferty's transfer remain unknown to the Union. However, our members
believe it was because of his ardent defense of the integrity of the
Asylum Program, his insistence on proper application of the law--as
well as his passionate devotion to the Asylum Officer Corps which has
come under attack by the Trump administration.
Retaliatory Investigation.--Despite the legal right of Union
officials to speak freely to Congress, the media and the public about
matters that affect the morale, working conditions and welfare of our
members, I and my Union colleagues have continuing concerns about
possible retaliation instigated by political leadership.
A notable current example is an on-going internal investigation
USCIS is conducting of Local 1924 Vice President Chuck Tjersland,
discussed above, who has been formally warned for having expressed his
opinions--in his official Union capacity--to the Washington Post and
NPR.\24\ That is wrong. It again sends a chilling and intimidating
message to everyone. Again, this subcommittee can and should demand
answers.
---------------------------------------------------------------------------
\24\ The information in this section about Chuck is not currently
in the public domain. He now consents to its publication.
---------------------------------------------------------------------------
what can congress do?
I close with four recommendations about what you and your
colleagues can and should do.
1. More Hearings Like This.--Over the past 3 years we have
repeatedly seen how bad publicity causes Trump administration policy to
veer and reverse course. The evidence we are providing to today is
shocking. Congressional hearings uniquely provide a forum for receiving
such evidence.
2. Investigations.--By law, Congress is in a special position when
it comes to unearthing and analyzing evidence. As noted above, the
Federal Whistleblower Protection Act allows Federal employees to
lawfully make disclosures to Congress.\25\ Congress can and should
leverage such authority to gather evidence from whistleblowers and
others. The evidence can and should be used as a basis for legislation,
hearings and further investigation. Senator Merkley's report is a good
example.
---------------------------------------------------------------------------
\25\ See 5 U.S.C. 2302(c)(2)(C)(iii).
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3. Appropriations.--Because Congress controls appropriations, it
has and should continue to insert agency mandates into spending bills.
For example, the Consolidated Appropriations Act of 2019, enacted in
February 2019, specifically prohibited DHS from using information
obtained by the Department of Health and Human Services to apprehend,
detain, or remove sponsors of unaccompanied minors.\26\ Such mandates
should continue to be imposed on DHS.
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\26\ H.J. Res. 31, Consolidated Appropriations Act 2019 224 (Feb.
25, 2019), https://www.congress.gov/116/plaws/publ6/PLAW-116publ6.pdf.
---------------------------------------------------------------------------
4. Improved Whistleblower Protections.--We know that whistleblowers
provide vital information used to combat waste, fraud, and abuse. But
law to protect them is missing and imperfect. Much is still left to be
done. We need legislation which establishes stronger, more effective
consequences for wrongful retaliation and disclosures of confidential
identities, and which further enshrines the independence of offices of
inspector generals, the Office of Special Counsel, and the Congress.
conclusion
Asylum officers take their oaths to preserve, protect, and defend
the Constitution seriously. They are now under daily attack from the
White House, political appointees, and extremist media. Their safety,
careers, and reputation are all at risk.
You are helping with his hearing today. Please keep helping.
Thank you.
Miss Rice. Thank you, Mr. Knowles. I now recognize Mr.
Homan to summarize his statement for 5.
STATEMENT OF THOMAS D. HOMAN, FORMER ACTING DIRECTOR, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND
SECURITY
Mr. Homan. Charwoman Rice, Ranking Member Higgins, and
Members of the subcommittee, the Migrant Protection Protocol is
an important step in regaining control of the Southern Border.
When the MPP was implemented, the numbers of illegal aliens
crossing our border illegally was at unprecedented levels. The
MPP requires that certain foreign individuals entering or
seeking admission to the United States from Mexico may be
returned to Mexico and wait outside the United States for the
duration of their immigration proceedings.
Our country is still facing a security and humanitarian
crises on the Southern Border, and I applaud DHS for using all
appropriate resources and authorities to address the crisis.
Over 70 percent of all illegal entrants in the United
States this fiscal year are family units and unaccompanied
children, and mostly from Central America. Even though over 85
percent of all Central Americans that arrive at the border
claim fear, less than 20 percent get relief from our courts,
because they simply don't qualify for asylum, or they don't
show up for their case.
The last numbers I saw of the immigration court reports
that are on-line showed almost half, 46 percent, of those that
claimed fear at the border don't file a case with EOIR. Once
they are released in the United States, which is their primary
goal, they disappear and wait for the next DACA or amnesty to
roll around. Misguided court decisions, outdated laws, and the
failure of Congress to close the loopholes that have caused
this unprecedented surge has made it easier for illegal aliens
to enter and remain in the United States.
The most recent 100,000 family units have been ordered
removed after due process. Less than 2 percent have left. In
June of this year, just 5 months ago, Acting Secretary
McAleenan testified that 90 percent of all family units in a
most recent pilot study failed to show up in court after being
released from the border.
The MPP will help to ensure that those who claim asylum and
want to see a judge and get due process will actually see a
judge. I hear from many, including some here today, that these
migrants have a right to claim asylum, they have the right to
see a judge, and they demand due process. I agree. But there is
the flip side of that coin. After due process, if ordered
removed by a judge, that order needs to be followed and
executed, or there is absolutely no integrity in the entire
process.
The loopholes that Congress has failed to close, along with
the numerous enticements such as abolish ICE, no more
immigration detention, and free health care for aliens,
sanctuary cities, a pathway to citizenship for those here
illegally all encourage more people to make that dangerous
journey, which continues to bankroll criminal cartels, the same
cartels that are smuggling drugs in this country at alarming
rates.
ICE seized enough opioids last year to kill every man,
woman, and child in this country twice. Thirty-one percent of
women are being sexually assaulted making this journey, and
children are dying. Border Patrol agents rescued over 4,000
migrants who may have died, if they weren't found and saved by
Border Patrol agents. But you don't hear a lot about that,
because people are too busy calling the Border Patrol racists
and Nazis.
Now there is a crisis on the border. Even though many said
there were no caravans, there were, and we saw them. Others
said it was a manufactured crisis, and now we know it wasn't.
Their President has been right from Day 1 on this, and has done
everything he can, but--within the law in trying to secure our
border and protect our sovereignty.
As a matter of fact, on May 7 of this year the 9th Circuit
Court of Appeals stayed an injunction against MPP and has
allowed it to continue. The significant gains made on this
issue are because of our President and the men and women of the
CBP and ICE.
Again, MPP is based on the laws written by Congress and
upheld by the 9th Circuit.
I am here at another hearing today that will examine a
policy implemented by the administration in an attempt to
secure our Nation. However, I have seen no hearings in the
House regarding the 3 loopholes that are causing the crisis,
such as the abuse of the asylum process, the Flores settlement
agreement, or the TVPRA, Trafficking Victims Act; no hearing on
sanctuary cities or the numerous victims of crimes at the hands
of those released back into the street, rather than being
turned over to ICE; no hearings on the willful or disgusting
attacks against the men and women who served within the Border
Patrol and ICE; no hearing about securing our border.
The Border Patrol has said that 40 to 50 percent of their
manpower is no longer on the front line defending our border
because they are dealing with these families and UACs. When
half of our Border Patrol is not on the line, the Border Patrol
is more vulnerable to drug smuggling and the smuggling of bad
operators such as cartel members, gang members, and those who
want to come to this country to do us harm.
If you are someone in this world that wants to come to the
United States and do us harm, our border is vulnerable. It is
hard to buy a plane ticket to the United States or get a visa
here, because after 9/11 we have all sorts of security checks
and derog searches are conducted. If you want to get here and
do us harm, you are going to come here the same way 12 to 20
million others did, illegally through our Southern Border,
especially now, because half the border is unguarded.
The President recognized this and has taken unprecedented
actions to address this crisis. I applaud him for doing it. Now
it is time for this body to legislate and address this crisis
and protect our Nation. I look forward to answering your
questions today. Thank you.
[The prepared statement of Mr. Homan follows:]
Prepared Statement of Thomas D. Homan
Chairwoman Rice, Ranking Member Higgins and Members of the
subcommittee: The Migrant Protection Protocols (MPP) is an important
step in regaining control of our Southern Border. When the MPP was
implemented, the numbers of illegal aliens crossing our border
illegally was at unprecedented levels. The MPP requires that certain
foreign individuals entering or seeking admission to the United States
from Mexico--illegally or without proper documentation--may be returned
to Mexico and wait outside of the United States for the duration of
their immigration proceedings, where Mexico will provide them with all
appropriate humanitarian protections for the duration of their stay.
Our country is facing a security and humanitarian crisis on the
Southern Border. I applaud DHS for using all appropriate resources and
authorities to address the crisis and execute our mission to secure the
borders, enforce immigration and customs laws, facilitate legal trade
and travel, counter traffickers, smugglers and transnational criminal
organizations, and interdict drugs and illegal contraband. That is
their job and that is their mission as dictated by Congress in the
enactment of laws that CBP and ICE enforce.
Reading straight from the DHS website that is available for all to
see, I will quote. The MPP will help restore a safe and orderly
immigration process, decrease the number of those taking advantage of
the immigration system, and the ability of smugglers and traffickers to
prey on vulnerable populations, and reduce threats to life, National
security, and public safety, while ensuring that vulnerable populations
receive the protections they need. As a 34-year veteran of immigration
enforcement who has served in the Border Patrol, the INS, ICE from the
front line and on the street all the way to the first acting director
of ICE who came through the ranks. I agree with the DHS assessment
because I have seen the border crisis and the exploitation of our laws
first-hand.
Historically, the majority of illegal aliens that came here were
single adult males from Mexico who could be quickly processed and
removed to Mexico in less than an hour. As a Border Patrol Agent, you
could process an alien from Mexico within 20 minutes and after
accepting a voluntary return would be returned to Mexico through a Port
of Entry within minutes. However, those dynamics have changed where we
now have over 70 percent of all illegal entrants into the United States
this fiscal year being family units and unaccompanied children and
mostly from Central America. Even though over 85 percent of all Central
Americans that arrive at our border claim fear, less than 10-15 percent
get relief from our courts because they simply don't qualify for asylum
or they don't show up for their case. The last numbers I saw for the
Immigration Court reports showed almost half of those that claim fear
at the border don't file a case with EOIR. Once they are released into
the United States, which is their primary goal, they disappear and wait
for the next DACA or Amnesty to roll around.
Misguided court decisions and outdated laws and the failure of
Congress to close the loopholes that have caused this unprecedented
surge has made it easier for illegal aliens to enter and remain in the
United States if they are adults who arrive with children,
unaccompanied alien children, or individuals who fraudulently claim
asylum. There are only about 3,000 designated family beds to deal with
the almost 14,000 family unit arrests during the peak months which mean
most will be released and never spend a day in custody. Out of the most
recent 100,00 family units that have been ordered removed after due
process, less than 2 percent have left. In June of this year, just 5
months ago, the Acting Secretary of DHS testified that 90 percent of
all family units in the most recent pilot study failed to show up in
court after being released from the border. The MPP will help to ensure
that those who claim asylum and want to see a judge and get due process
will actually see a judge. I hear from many, including some here today,
that these migrants have the right to claim asylum and they have the
right to see a judge and they demand due process. I agree. But there is
a flip side to that coin. After due process, if ordered removed by a
judge, that order needs to be followed up and executed or there would
be no integrity in the entire process. Ninety-five percent of everyone
ICE removes from this country after due processes are removed from a
bed. Those that are not detained and released are seldom returned to
their country because they are in flight and hiding.
While we may not be at record highs right now because of the
actions of this President and not this legislative body, the numbers
are still at a crisis level and overwhelming the U.S. immigration
system, leading to a ``system'' that enables smugglers and traffickers
to flourish and often leaves aliens in limbo for years. This has been a
prime cause of our over 800,000 case backlog in immigration courts and
delivers no consequences to aliens who have entered illegally.
The loopholes that Congress has failed to close along with the
numerous enticements such as abolish ICE, no more immigration
detention, free health care for aliens, sanctuary cities, a pathway to
citizenship for those here illegally, all encourage more people to make
that dangerous journey which will bankroll criminal cartels. The same
cartels that are smuggling drugs into this country at alarming rates.
ICE seized enough opioids last year to kill every man, woman, and child
in this country twice. Thirty-one percent of women are being sexually
assaulted making that journey and children are dying. Border Patrol
rescued over 4,000 migrants who may have died if they were not found
and saved by our Border Patrol Agents. You don't hear a lot about that
because some people are too busy calling them racists and Nazis.
The MPP will provide a safer and more orderly process that will
discourage individuals from attempting illegal entry and making false
claims to stay in the United States, and allow more resources to be
dedicated to individuals who legitimately qualify for asylum.
I am not an attorney as those seated next to me are. But I have
enforced immigration laws for over 34 years. According to the
Government attorneys and again available on the DHS website it reads
that Section 235 of the Immigration and Nationality Act (INA) addresses
the inspection of aliens seeking to be admitted into the United States
and provides specific procedures regarding the treatment of those not
clearly entitled to admission, including those who apply for asylum.
Section 235(b)(2)(C) provides that ``in the case of an alien . . . who
is arriving on land (whether or not at a designated port of arrival)
from a foreign territory contiguous to the U.S.,'' the Secretary of
Homeland Security ``may return the alien to that territory pending a
[removal] proceeding under 240 of the INA.'' Mexico is our partner in
MPP along with the United Nation's IOM.
With certain exceptions, MPP applies to aliens arriving in the
United States on land from Mexico (including those apprehended along
the border) who are not clearly admissible and who are placed in
removal proceedings under INA 240. This includes aliens who claim a
fear of return to Mexico at any point during apprehension, processing,
or such proceedings, but who have been assessed not to be more likely
than not to face persecution or torture in Mexico. Unaccompanied alien
children and aliens in expedited removal proceedings will not be
subject to MPP. Other individuals from vulnerable populations may be
excluded on a case-by-case basis.
DHS has set up the system in a way that I think makes sense. This
again is explained clearly on their website. Certain aliens attempting
to enter the United States illegally or without documentation,
including those who claim asylum will no longer be released into the
country, where they often fail to file an asylum application and/or
disappear before an immigration judge can determine the merits of any
claim. Instead, these aliens will be given a ``Notice to Appear'' for
their immigration court hearing and will be returned to Mexico until
their hearing date.
While aliens await their hearings in Mexico, the Mexican government
has made its own determination to provide such individuals the ability
to stay in Mexico, under applicable protection based on the type of
status given to them.
Aliens who need to return to the United States to attend their
immigration court hearings will be allowed to enter and attend those
hearings. Aliens whose claims are found meritorious by an immigration
judge will be allowed to remain in the United States. Those determined
to be without valid claims will be removed from the United States to
their country of nationality or citizenship.
DHS is working closely with the U.S. Department of Justice's
Executive Office for Immigration Review to streamline the process and
conclude removal proceedings as expeditiously as possible. Consistent
with the law, aliens in removal proceedings can use counsel of their
choosing at no expense to the U.S. Government. Aliens subject to MPP
will be afforded the same right and provided with a list of legal
services providers in the area, which offer services at little or no
expense to the migrant.
Again, this program makes sense. MPP will reduce the number of
aliens taking advantage of U.S. law and discourage false asylum claims.
Aliens will not be permitted to disappear into the United States before
a court issues a final decision on whether they will be admitted and
provided protection under U.S. law. Instead, they will await a
determination in Mexico and receive appropriate humanitarian
protections there. This will allow DHS to more effectively assist
legitimate asylum seekers and individuals fleeing persecution, as
migrants with non-meritorious or even fraudulent claims will no longer
have an incentive for making the journey. Moreover, MPP will reduce the
extraordinary strain on our border security and immigration system,
freeing up personnel and resources to better protect our sovereignty
and the rule of law by restoring integrity to the American immigration
system.
Now, there is a crisis on our border. Even though many said that
there were no caravans, there were and we saw them. Others said that it
was a manufactured crisis and now we know it wasn't. The President has
been right from Day 1 on this and has done everything he can, thinking
out of the box but within the law and trying to secure our border and
protect our sovereignty. As a matter of fact, on May 7 of this year the
9th Circuit stayed an injunction against the MPP and has allowed it to
continue. Illegal crossings are down considerably from the high in May
but we are still at high numbers beyond last year. The significant
gains made on this issue are because of our President and the men and
women of CBP and ICE not because of anyone in this room.
I am here at another hearing that will again push a false narrative
about this administration and the men and women that work for it.
Another hearing that will examine a policy implemented by the
administration in an attempt to secure our Nation. However, I have seen
no hearings in the House regarding the 3 loopholes that are causing
this crisis such as the abuse of the asylum process, the Flores
agreement, or the TVPRA. No hearing on sanctuary cities and the
numerous victims of crimes at the hands of those released back into the
street rather than being turned over to ICE. No hearing on the obvious
wide-spread fraud surrounding the asylum process. No hearings on the
willful and disgusting attacks against the men and women who serve
within the Border Patrol and ICE. No hearing about how we secure our
border. Why is this important? Because this is not just a humanitarian
issue in our border. The Border Patrol has said that 40-50 percent of
their manpower is no longer on the front line, defending our border
because they are dealing with these families and UACs. When half of our
Border Patrol is not on the line, the border is more vulnerable to drug
smuggling and the smuggling of bad operators such as cartel members,
gang members, and those who want to come to this country to do us harm.
If you are someone in this world that wants to come to this country to
blow up a building, our border is vulnerable. It's hard to buy a plane
ticket to the United States or get a visa to the United States after 9-
11 because of all the security checks and derog searches conducted. If
you want to get here quickly and easily you will come the same way 12-
20 million others did, illegally through our Southern Border,
especially now because half of the border is unguarded. The President
recognized this and has taken unprecedented actions to address this
crisis. I applaud him for doing it. Now it is time for this body to
legislate and address this crisis and protect our Nation.
Miss Rice. Thank you. I thank all the witnesses for their
testimony. I will remind each Member that he or she will have 5
minutes to question the panel. I will now recognize myself for
questions.
Mr. Knowles, I would like to start with you. So there have
been news reports, or at least one issued late last week, that
seemed to indicate that asylum officers were pressured by
Border Patrol agents to deny certain migrants' entry into the
United States. To your knowledge, has this happened?
What have your members shared with you about the directives
they are asked to carry out under the Remain-in-Mexico Policy?
Mr. Knowles. Am I on speaker?
Miss Rice. Yes.
Mr. Knowles. All right. I have no direct knowledge of the--
what you just mentioned in the news report, although I have
read the news report of Border Patrol agents directing asylum
officers to make certain decisions.
I did not get the last part of your question.
Miss Rice. What have your members shared with you about the
directives they are asked to carry out under the Remain-in-
Mexico Policy?
Mr. Knowles. Well, they have shared--I--first of all, I
don't know a single asylum officer in the country--and I speak
to them all over the country--who believes that this is a good
policy. Most of them have been very vocal in talking to me
about how it is illegal, and it places them feeling that they
are complicit in a human rights abuse.
They are sworn to carry out our laws, which guarantee due
process for asylum seekers. Not every asylum seeker is
guaranteed asylum, but they are guaranteed due process and
humane treatment. Under MPP the asylum officer is not even
allowed to ask them about their asylum claim, they can only ask
them about their fear of remaining in Mexico. That process is
carried out at a very high standard, which is almost impossible
for the applicant to meet.
Moreover, we have had asylum officers who, in applying very
rigorously the flawed MPP rules, tried to make positive
decisions, and they were overruled by their supervisors and
headquarters monitors saying no, that doesn't meet the
standard, with no real legal explanation, other than the front
office has eyes on this.
Miss Rice. So you mentioned also that people who felt
threatened with retaliation--and also how whistleblowers were
being treated. I have very limited time, so I would like to
follow up with you on those specific issues.
But you also said that MPP was one of many programs that
should be either revised or done away with. You also mentioned
the asylum hearings being held in Guatemala, and not even being
supervised by officers, American officers.
What other programs were you talking about when you--that
you would include in that category?
Mr. Knowles. So we have written 4 amicus briefs that I
would urge your committee to look at; the first was opposing
the travel ban and the suspension of the refugee program in
2017; the second was on MPP; the third was on very questionable
changes that came, we believe, from the White House to our
training and policy guidance manuals that officers must use,
which had the effect of substantially changing and altering the
way that we do credible fear screening in ways that we believe
were unlawful; the fourth brief we filed a month ago, opposing
the so-called interim final rule, which imposes a bar on asylum
seekers, an absolute bar to asylum seekers who pass through
other countries and did not seek asylum there.
Over the weekend there was published in the Federal record
a new rule that will, as I understand, be implemented this
week, and our officers are to be trained today. In fact, I am
supposed to attend the training myself on how cases will be
adjudicated, who will these--asylum seekers will be transported
to Guatemala to have their asylum cases heard in Guatemala----
Miss Rice. Correct.
Mr. Knowles [continuing]. By the Guatemalans----
Miss Rice. Right.
Mr. Knowles [continuing]. Not by the United States.
Miss Rice. Thank you for pointing that out. Dr. Schneberk,
with the remaining time I have, I mean, the trauma that is done
to these people--and it sounds like a large portion of them are
women and children and other vulnerable populations--what are
the long-term consequences on their mental, emotional, and
physical health? What is the likelihood that they are going to
be able to recover from that?
Dr. Schneberk. Briefly, you know, there is a whole area of
medicine called trauma-informed care. Trying to figure out how
we do a better job taking care of these folks is an on-going
study.
I mean, but to start with, you know, trying to create
safety is kind-of rule No. 1. Long-term outcomes, you know,
there is a lot--you could imagine the amount of mental health
effects as a result of these types of experiences.
But, I mean, there is not only just mental health issues,
you know, there is actually higher morbidity and mortality, as
in people die at younger ages because of adverse childhood
events. There is a famous study called the ACES Study that
basically documented a lot of these adverse childhood events,
one of them being, you know, incarceration of a parent. There
is a lot of extrapolatable--all types of experiences that you
look at what is going on with kids and younger people that are
subjected to these policies, and it is pretty easy to say there
is going to be a lot of health--denigrating health effects.
Miss Rice. I want to thank you all for being here today,
and I now recognize the Ranking Member of the subcommittee, the
gentleman from Louisiana, Mr. Higgins, for questions.
Mr. Higgins. Thank you, Madam Chairwoman. Mr. Homan, under
the Migrant Protection Protocols, an international agreement
between the United States and Mexico--just clarify for America,
please. America is watching. The Mexican government provides
migrants with humanitarian protections for the duration of
their stay. Both the government of Mexico and faith-based
shelters are housing migrants who have been returned as part of
MPP.
Just to put a number on this to clarify for America, as of
November, the count is 57,430 illegal immigrants have been
returned to Mexico to be housed by Mexican government and
faith-based shelters under this program. I am sure we all
recall very recent history: We were facing 150,000 crossings a
month. So, just to put this in perspective, a certain
percentage of illegal crossings are intercepted, processed, and
returned to Mexico, while their asylum due process moves
forward. We have done our best to accommodate court systems to
give them access for more rapid resolution.
Is that a--generally, a good description of this program,
Mr.----
Mr. Homan. Yes, sir, you are accurate.
Mr. Higgins. OK. Do you have personal knowledge of what is
identified as faith-based shelters that are being used?
Mr. Homan. No. I know the U.S. Government, along with IOM,
a division of the United Nations, is helping to oversee that
process.
We are also--there is actually funding from the United
States flowing into Mexico to help pay for the expenses of
these facilities.
Mr. Higgins. Thank you, sir. Ms. Vela, are you familiar
with the faith-based shelters?
Ms. Thorn Vela. I am familiar----
Mr. Higgins. Generally speaking. We are not trying to----
Ms. Thorn Vela. Yes, Congressman, there are faith-based
shelters.
Mr. Higgins. OK. Are these generally--the children of God
that occupy those shelters, are they generally of Hispanic
origin?
Ms. Thorn Vela. Yes.
Mr. Higgins. They speak Spanish?
Ms. Thorn Vela. Yes.
Mr. Higgins. All right. Your opening statement--and thank
you for your very thorough opening statement--essentially
accuses the United States of purposefully sending MPP illegal
immigrants, which--we are just trying to handle the due
process. It is quite a situation down there. You are
essentially accusing the United States of purposefully sending
these immigrants into a horrendous situation where, based upon
your testimony, you essentially indicate that those Mexican
government officials and faith-based organization workers,
primarily volunteer workers that are occupying these shelters
and running them, that they don't care about these MPP folks,
that they have no--they have no compassion for them.
Is that your position, that these folks down there have no
compassion for the MPP?
Ms. Thorn Vela. I understand that the government of Mexico
has said that they are providing aid, but our--from the ground,
what we see every day, we don't see that aid. Certainly,
anyone----
Mr. Higgins. All right, so just to clarify, you have the
right to your opinion. I would defend your right to have your
opinion, good lady. I just want to clarify.
You seem to be indicating that the United States has set up
some system where we are knowingly sending MPP illegal
immigrants into shelters that are run by folks that don't love
them and care for them. In fact, they are quite hateful toward
them.
Ms. Thorn Vela. From what I have seen toward--in Matamoros,
Congressman, they are not--the individuals being sent back to
MPP are not being sent back to shelters. They are living in the
streets in a 2,000-person refugee camp that does not have any
shelter for them. The only aid, the only compassion that they
are getting, are from volunteers that are----
Mr. Higgins. So that would be an indication, just in the
interest of time--you are stating that the Mexican Government
is not living up to its agreement with--under MPP.
Ms. Thorn Vela. I have not seen that promise fulfilled on
the ground in Matamoros.
Mr. Higgins. All right, one final question. Thank you for
your candor, Madam. You have made courageous statements, and
this committee cares about these things.
But I ask you, regarding MPP illegal immigrants being
knowingly returned to Mexico to be tortured, that is quite an
accusation. Do you have any proof of that?
Ms. Thorn Vela. We have partners on the ground that worked
with the young mother and her child that were tortured and
released. The young child----
Mr. Higgins. You are referring to 1 case out of almost
58,000?
Ms. Thorn Vela. I personally am only aware of that case,
but I have partners that work not only in Matamoros, but
throughout the border where MPP is rolled out. My partners can
tell dozens and dozens and dozens of stories of very similar
conduct.
Mr. Higgins. Thank you all for your testimony.
Madam Chairwoman, my time has expired.
Miss Rice. Thank you, Mr. Higgins. The Chair recognizes for
5 minutes the gentleman from Mississippi, Mr. Thompson.
Mr. Thompson. Thank you very much. Those of us who have
been in the area where the Remain in Mexico policy is being
implemented have real questions about the health and safety and
sanitary conditions of people who are there. I don't think
those standards are the standards that we hold dear as
Americans in this country.
I think our concern, more than anything else, is when you
implement a policy that lowers your standard as a country, then
that is changing the values of who we are as a country.
So when you put the burden on changing the policy in terms
of returning people to Mexico in a dangerous situation, that is
not who we are as a country. I think the more important part
for us is why change a policy that put people at risk? That is
one of the reasons we are here today.
We have heard from 2 attorneys, a doctor, and a
practitioner that some of those policies we put in place have,
in fact, changed the lives of the people who are coming to this
country, seeking asylum.
As a--somebody whose ancestors came to this country as
slaves who were absolutely mistreated, I think I have a
sensitivity--and some others here--that we don't want our
country to ever be a part to anything that mistreat people.
So the goal of why we are here today is to make sure that,
as the American Government does its immigration policies, that
we still see people as human beings.
We are a Nation of laws. We have values that we have to
uphold. So that is why we are here. That is why I complimented
the Chairwoman for having the courage to hold a hearing like
this. It is a tough situation. I am a grandfather. The last
thing I would want is for somebody to mistreat my grandchildren
just because they don't look like them. I don't want that.
I voted for the Affordable Care Act because I think, in
America, everybody ought to have an opportunity, if they are
sick, to go to the doctor. Those are the American values that
we hold as Americans. I think we have to be mindful of that.
So with that preface, Ms. Pena, do you think our standards
of jurisprudence are being upheld with this Remain-in-Mexico
Policy?
Ms. Pena. Thank you for the question, Representative
Thompson.
In front of me I have the Immigration and Nationality Act.
This is the law passed by Congress. I appreciate the question,
because I want to bring us back to the legal obligations and
jurisprudence which is being circumvented and violated through
the MPP protocols.
My job is pro bono counsel at the American Bar Association,
and I often train non-immigration attorneys in immigration law.
In fact, sometimes I have tax attorneys tell me this is very
complicated law.
The way I describe this law, particularly these specific
statutory provisions which are being utilized to implement the
Remain-in-Mexico policy, is as such. Please bear with me,
Representative. Imagine section 235, which is the expedited
removal statute, is a mountain, all right? Two-forty
proceedings, which are full 240 proceedings, is another
mountain directly across from it. There is a valley in between.
To get out of summary removal proceedings and into full
immigration proceedings, 240 proceedings, there is a narrow
bridge.
What Remain-in-Mexico has done is taken a small pebble of
law in section 235 and created a wrecking ball with it. It has
demolished this narrow bridge that included legal protections.
The credible fear process has been--interview process has been
completely annihilated, and Mr. Knowles has testified to some
of the challenges that the asylum officers are frequently
raising.
Now, 240 proceedings--I heard earlier, you know, the
proceedings are expedited. Instead of several years, it is
months. Well, what good is a proceeding, if it is rendered
virtually meaningless? There is no lawyer; 2 percent of MPP
respondents have lawyers. One attorney utilized University of
Texas data and analyzed that, if MPP did not exist, the number
of respondents in MPP that would have attorneys would be over
15,000 people. So there is no meaningful right to an attorney.
There is also no meaningful proceeding. At least in the
tent court you can see the judge on a video. But you can't
understand the judge. You can't effectively communicate with
the judge, because the interpreter is not simultaneously
translating the hearing. There are no legal service providers.
In San Diego I observed an MPP hearing in the brick-and-mortar
courts in San Diego, and the judge asked the pro se
respondent's father speaking on his--behalf of his family,
``Did you receive the notice from the Department of Homeland
Security, which includes a list of pro bono legal survivors?''
Providers, excuse me.
The father said, ``Yes, I received that. However, I called
all the numbers, and none of them will provide us services.
None of us [sic] will represent us, because we are in Mexico.''
So there is, effectively, nobody who can help these
individuals to translate their applications into English, to
make sure that they can file it with the court.
Of course, all the meanwhile, the--trying to go through
this proceeding, they are subjected to horrendous conditions,
dangerous conditions.
So, Representative, thank you for the question. I believe
we are circumventing our international obligations, which are
which are codified in U.S. law. Thank you.
Mr. Thompson. Thank you. I yield back, Madam Chair.
Miss Rice. Thank you, Mr. Chairman. The Chair now
recognizes for 5 minutes the gentleman from Alabama, Mr.
Rogers.
Mr. Rogers. Thank you, Madam Chairman. Ms. Vela, is it your
position that the entire country of Mexico is dangerous?
Ms. Thorn Vela. For asylum seekers, yes.
Mr. Rogers. The entire country?
Ms. Thorn Vela. I would say that asylum seekers are at a
very heightened risk for danger in Mexico.
Mr. Rogers. Why is that?
Ms. Thorn Vela. Because throughout the journey in Mexico,
migrants are facing these same conditions that the United
States is returning them to in MPP.
Mr. Rogers. So if a migrant were to escape Honduras--I
think you gave an example of a gang member who--or gang members
who raped a young lady if her husband didn't join a gang. Was
that you that gave us----
Ms. Thorn Vela. No, that was not me, Congressman.
Mr. Rogers. Well, that example was given. So let's say that
a migrant was escaping Honduras for that reason, and they went
to Mexico City. Your view is they would be in danger in Mexico
City?
Ms. Thorn Vela. I would say migrants there are at a
heightened risk for being targeted, yes.
Mr. Rogers. In Mexico City?
Ms. Thorn Vela. I would say yes.
Mr. Rogers. OK. Well, here is my concern. I understand that
you have described the encampments on the northern border as
being overcrowded, and maybe not as healthy as you would like
them to be. But I find it impossible to believe that the entire
country of Mexico is dangerous for migrants. The country of
Mexico has offered asylum to all these asylum seekers who are
escaping Guatemala, Honduras, Venezuela, whatever.
You know, as well as I do, the overwhelming majority of the
asylum seekers that reach the United States are not approved.
Eighty-seven percent are not approved. They are economic. They
are seeking economic advantage. I don't blame them, but they
are not in danger. Certainly, once they get out of Honduras and
are in Mexico, they are no longer in danger. So we need to be
recognizing that people are coming up here for economic
opportunities, and they have been overwhelming our system.
Mr. Knowles, you talked about the interview process. When
was the last time you personally conducted an interview of an
asylum seeker under the MPP program?
Mr. Knowles. It should be known that I am almost a full-
time union representative, so I am excused from my regular
duties. I have not personally conducted MPP interviews,
although I am in daily contact with those who do.
Mr. Rogers. But you haven't----
Mr. Knowles. It has been about 4 years since I have
adjudicated, personally, asylum cases. But I have adjudicated
many in the almost 30 years that I have served.
Mr. Rogers. In this crisis, though, you have not carried
out any interviews in recent years to know the abuses that you
described in your statement.
Mr. Knowles. I am sorry, could you repeat that?
Mr. Rogers. You described abuses in the process during your
statement a while ago.
Mr. Knowles. Yes.
Mr. Rogers. Those are just being related to you through
other individuals. You haven't personally conducted those
interviews, to speak of----
Mr. Knowles. No, I have not, personally.
Mr. Rogers. That is my point.
Mr. Homan, now you have described in your statement that
MPP will help deter those who are seeking to exploit loopholes
in our immigration system. Can you describe for us some of the
loopholes that you think are driving this train?
Mr. Homan. Well, there is 3 loopholes that--when I was
still the ICE director, I worked with Secretary Nielsen, trying
to work with the Congress.
The 3 loopholes are--the Flores settlement agreement. In
fiscal year 2014 and 2015 under the Obama administration, we
detained families. It took about 40 days to see a judge. Ninety
percent lost their cases. We put them on an airplane and sent
them home. Guess what? The numbers across the board have
drastically decreased. But then the 9th circuit said you can
only hold them for 20 days, and they got released. We are
asking Congress to look at that, and let us detain families
for, like, 40, 45 days, so they can see a judge. In a family
residential center, not a jail.
The second issue is the asylum process, itself, where, you
know, practically 90 percent will pass the first fear
interview, because the thresholds are put--and I understand why
under statute--then, as you said, when they get in front of the
court, 87 percent lose. So there is too big of a delta. So that
first interview, that threshold needs to be raised, so it makes
more sense with the judiciary threshold.
The last thing would be the TVPRA Trafficking Victims
Protection Act, because if you are a child from Mexico, and you
enter the country illegally, and it is ascertained you are not
a victim of trafficking, you can be returned to Mexico
immediately. But if you are from Central America, you can't be
returned immediately, you got a whole new immigration process
that takes years. So we are asking that children from Central
America be treated the same as children from Mexico. TVPRA had
a great intention of identifying trafficking and preventing it,
but this is being exploited now by the cartels and the criminal
groups.
Mr. Rogers. Finally, Ms. Vela, do you know how many
immigrants who were allowed into this country awaiting their
hearings were removed this year alone in absentia?
Ms. Thorn Vela. I am not familiar with that statistic.
Mr. Rogers. Eighty-nine thousand just this year. The
overwhelming majority of people do not show up for these
hearings once they get in this country. That is not a situation
that we can continue to allow.
Madam Chairman, my time has expired. Thank you very much
for your patience.
Miss Rice. Thank you, Mr. Ranking Member. The Chair now
recognizes the gentlewoman from New Mexico, Ms. Torres Small.
Ms. Torres Small. Thank you, Madam Chair. Ms. Vela, you
testified about the real harm that clients have experienced
while waiting to pursue their legal claims for asylum. I have
spoken with a local pastor in the district that I represent
that has a sister church in Juarez. Their church, they provide
shelter. They have been targeted in robberies, and they don't
have the resources to protect these individuals from being
targeted by the cartels.
My question for you is whether you believe that Remain-in-
Mexico, or MPP, can create a disincentive for migrants to
legally present themselves at ports of entry to pursue their
legal claims for asylum and, instead, attempt to cross
undetected to the United States.
Ms. Thorn Vela. Thank you, Congresswoman. Yes, I do believe
that it creates an incentive for people to not get a--present
themselves at the bridge to request asylum.
I know many individuals at Matamoros who, even before MPP
was rolled out into Matamoros, were--presented themselves at
the bridge, and they were placed on the metering line that was
there prior to the MPP rollout. Those people waited in line,
followed the law, wanted to present their case there at the
bridge. Then, once MPP was rolled out into Matamoros, they
ended up being placed in MPP.
So many individuals see this now, that--you know, they want
to follow the law, they want to do this the right way, and they
end up getting placed right back in Matamoros.
Ms. Torres Small. Thank you. I have also heard from CBP
individuals that have seen--had to process the numerous
crossings back and forth for their proceedings in the United
States. That has also added a strain, just on our ports of
entry.
Ms. Vela, have you--do you believe that MPP has been cost-
effective, or yielded a more efficient processing of asylum
seekers?
Ms. Thorn Vela. I don't believe that it is more efficient.
The ports of entry are very busy places. Many people cross
every day, U.S. citizens, Mexican residents. So it has really
congested the ports of entries in the morning when they are
lining asylum seekers up. People are having to go very, very
early in the morning, 4 a.m. for an 8 a.m. hearing. So it has
really caused a lot of delay there at the ports of entry.
Ms. Torres Small. Thank you, Ms. Vela.
Mr. Knowles, I appreciate your testimony, and would like to
hear, based on your experience representing asylum officers.
How has the broader mission and morale of asylum officers been
impacted by Remain-in-Mexico, or MPP?
Mr. Knowles. Well, I would like to say, historically, our
morale has been extremely high, because people are drawn to the
protection work, which is also protection of our country. We
have done a very good job, and we have received very high marks
from every administration except this one.
The morale under this administration has plummeted, not
because of people's political views, but because of the way
that we have been treated, and the way that we have been
required to carry out very questionable programs. We have not
been consulted, either the union or the work force, on the
advisability of various methodologies or procedures. We are
just told to carry it out, and if we don't like it, you can go
work somewhere else.
Ms. Torres Small. Thank you----
Mr. Knowles. So that has a big hit on morale.
Ms. Torres Small. Thank you. Mr. Knowles, I have also heard
from local Catholic Charities attorneys that these fear
hearings and the new rules and consequent training that is
necessary for that can actually have a negative impact on the
docket. What effect have you seen, or the asylum officers you
represent seen, that the Remain-in-Mexico, or MPP, policy has
had on their--other EOR--EOIR dockets?
Mr. Knowles. I am not sure I understand the question.
Ms. Torres Small. So my question is whether you think the
increased number of fear hearings and back and forth, as well
as the constant changes in rules has impacted other cases,
other than asylum cases in the EOIR dockets.
Mr. Knowles. I wouldn't be able to answer about the EOIR
docket because I am just representing people who do the asylum
interviews here at USCIS.
Ms. Torres Small. OK, thank you. I want to turn to Ms. Pena
in my last quick moment.
You mentioned that only 13 percent of individuals who
receive the fear screenings have received positive
determinations. Do you feel like, if there was meaningful
access to legal representation, this number would be different?
Ms. Pena. Yes--excuse me. Thank you for the question,
Congresswoman. Yes. We are seeing at least 1 Federal judge has
enjoined DHS from disallowing attorneys access to those non-
refoulement interviews. So just in the past week or so,
attorneys have started having access. So we will see how the
numbers change with access to attorneys.
I will say, as a practical matter, it is very, very
difficult, because CBP often doesn't allow attorneys access,
period, to these areas.
Ms. Torres Small. Thank you, Ms. Pena. My time has expired.
Miss Rice. The Chair recognizes for 5 minutes the
gentlewoman from Arizona, Mrs. Lesko.
Mrs. Lesko. Thank you, Madam Chair. My first question is
for Mr. Homan.
You know, we have talked about these loopholes in previous
hearings, as well. You have eloquently talked about them just
now. I have said before, and I will repeat again, I think these
loopholes actually incentivize people to travel thousands of
miles, pay cartels huge amounts of money. A lot of the women
are getting raped. We have had evidence how children are being
abused by the cartels. So changing some of these loopholes and
clearing them, I think, is--will help mitigate the entire
problem.
I think all of us care about people that are being abused.
If somebody is being raped by cartels, or children being abused
by cartels, of course, none of us up here would want to ignore
that. But there is a difference in how we should mitigate the
problem.
So, Mr. Homan, I have 6 bills that I have introduced and
sponsored that would try to clean up these loopholes to stop
incentivizing people from coming here. One of them is to raise
the credible fear standard for asylum, because, as you said,
the initial standard is too low, as evidenced by the numbers. I
mean, like 85 to 90 percent of them passed the initial phase.
But then, you know, a huge number--what is it, 86, 87 percent--
when they finally go in front of a court, don't.
So if we solve that problem with the loopholes, how would
that affect this going back to Mexico, the MPP protocol? Could
we get rid of it, do you think?
Mr. Homan. Well, certainly you will be able to have an
effect on it, because if we had a meaningful asylum bar that
people couldn't come up and just claim to say 2 or 3 key lines
to get approval, they stop coming.
Because, look, the bottom line is the data at the
immigration courts are clear that 87 percent of these people do
not qualify, or fail to show up. So if they know before they
leave their homeland, spend their life savings making this
dangerous journey, that the chance of getting approved--because
they know they are not escaping fear and persecution from the
government because of race, religion, political beliefs--they
will stop coming.
In--enforcement law has a meaningful effect. You look at
consequence, deterrence. It means something.
A couple of things I just want to add to this is I have
heard a lot of testimony here today, but, you know, I am
hearing today that people think the system is rigged against
the immigrant now. But the approval rates and the denial rates
have not changed from fiscal year 2014, 2015 to today. So if
there is a fix put in, the denial rates back in 2014 and 2015,
under our first family detention center, we are still about 87,
90 percent.
So the denial rate remains the same. So I don't see the
correlation in this fix, then. As far as representation, does
representation make a difference? If you are looking at year-
old data, the approval rate is anywhere from 10 percent to--
high to 20 percent. Representation rate has not changed beyond
20 percent, even the represented by attorney. That is tracked
in the ERO datasheet.
So representation really doesn't make a difference because
they don't qualify, and the representation is not going to
change the facts of the case. This is all available on the
immigration court database.
Mrs. Lesko. Thank you, Mr. Homan. Another question I have
for you, Mr. Homan, is it fair to say that right now the
immigrants that are seeking asylum that are in Mexico, waiting,
are they able to say that, ``Oh, I am afraid to be in Mexico,''
and have--you know, get a hearing on that?
I think my data says that, yes, they are. Fear screenings
are an established part of the program. As of October 15, 2019,
USCIS completed over 7,400 screenings to assess the fear of
return to Mexico. So people that are in Mexico under this
program can actually say, ``I am afraid,'' and go in front of
someone.
Mr. Homan. Well, that interview is in the beginning, when
they enter the United States. If--they cannot be returned to
Mexico if they establish a clear danger to return to Mexico,
that they would be, you know, in harm's way. So that is in the
front. They can't be sent back to Mexico without that interview
occurring that there is no fear to return to Mexico.
Mrs. Lesko. I----
Mr. Homan. That is on the front end of that.
Mrs. Lesko. All right. And----
Mr. Homan. I want to add one thing.
Mrs. Lesko. Sure.
Mr. Homan. I do think there are some in Central America
that qualify for asylum. So, you know, I am not painting with a
broad stroke saying it is all fraud. But based on the data and
the findings of the judges across this country, 80 percent, 87
percent do not.
There are certainly people who certainly do fear return to
the homeland. But the problem is, when you got 80 percent rate
of denial and fraud, you are backing up the system for the
people in this world that are really escaping fear and
persecution from their homeland, such as some of the African
nations, other nations around the world who really do need our
help. The system is being--it is--the--so asylum claims are up
over, you know, 2,000 percent last couple years. It is
troubling for the ones that really do need our help.
Mrs. Lesko. I agree. I yield back.
Miss Rice. Thank you. I just want to take note that, you
know, there are a lot of numbers being thrown around. Eighty-
seven percent of people don't show up for their first hearing.
There is other DoJ information that says that that number is
actually 85 percent of people who do show up.
If you look at our TRAC, which is the system that is housed
at Syracuse University that more closely tracks EOIR
immigration court proceedings, they note that DoJ is starting
to limit the access to the database.
There was just a recent story in The Washington Post that
did a long fact check--and I know we can disagree about the
accuracy of The Washington Post. This is just for future
discussion. The Washington Post did a long fact check story on
the numbers that Republicans use when talking about this
issue.** The 90 percent no-show rate that that is referred to
consistently was--that number was actually quoted by the former
Acting Secretary McAleenan in a Senate Judiciary hearing a few
months ago that he ultimately had to walk back. He was
referring to a pilot program being used on only 7,000 cases.
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** The information has been retained in committee files and is
available at https://www.washingtonpost.com/politics/2019/06/26/how-
many-migrants-show-up-immigration-hearings.
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So my point is that I think for us to have a real
conversation about this, we have to get real numbers. I think
Democrats and Republicans, especially on this committee, we
should be able to agree with an accurate number. I think maybe
we can--I am hoping the Ranking Member would agree that maybe
we could kind-of work on that as a project so that we don't
have these--back-and-forth numbers, where we are saying--you
are saying 85, we are saying 80, and it is just back and forth,
and we are not really getting to any problem solving.
Thank you for that. I mean I thank myself for giving me 2
minutes to say that.
The Chair now recognizes for 5 minutes the gentleman from
California, Mr. Correa.
Mr. Correa. Thank you, Madam Chair. I hope you don't take
those 2 minutes off of my 5. Thank you very much.
Let me, first of all, thank the witnesses that are here
today.
I had a chance, over the last year or so, to visit some of
the refugee camps in Tijuana. There are some very good faith-
based refugee camps providing excellent services. There I saw a
doctor from Colombia, and doctors from all over the world
providing for those refugees. Then I went later on, when they
closed after 9 p.m., 10 p.m., I saw a lot of people outside the
faith-based refugee camps. There is just not enough room for
the services.
So, yes, some services, but not enough. I know the mayor of
Tijuana is screaming, because he is overwhelmed and does not
have the resources to address refugees, not just from Central
America, but from all over the world. That is the challenge at
the Southern Border.
I also went and I visited--I talked to the person who is
keeping a so-called list, not controlled by the United States.
But picture this: A refugee come to the border and they are
turned away, and they said--they say, ``You have to sign up for
a number so you can be heard.'' Well, where do I sign up? Well,
that person over there.
I asked that person over there, ``Who do you work for, the
U.S. Government?'' No. ``Do you work for the Mexicans?'' No.
``Who do you work for?'' Just a person that set up. He is
giving out numbers. Return when your number is called. Give us
your cell number. A very questionable way of doing business.
But none the way--that is the way it is being taken care of.
Also, I had the chance of going to Guadalajara, Mexico a
few months ago, as well, driving down the street and I saw a
homeless person barefoot. I happened to pull over and I asked
them some questions. He said, ``Yes, I am from Guatemala. That
is as far as I have gotten, I have no food.'' My point to you
is the refugee crisis is also hitting throughout all of Mexico,
not just the border area.
I am going to make it very quick. But, Mr. Homan, you
talked a little bit about the work permits. You mentioned that
these folks come to the United States, whatever the percentage
of people that show up, and what they want is a work permit,
and waiting for the next amnesty. I don't think we have passed
an amnesty in a very long time.
I am thinking also to that raid in Mississippi in the
Chairman's region, where 400 or 500 individuals were picked up.
I got a phone call from one of the representatives of that
poultry plant called me and saying, ``We need to do
something,'' he said. ``Most of the workers here--all the
workers here are refugees, and they are taking jobs the locals
will not take. They are taking jobs that the children of the
refugees will not take. We need to have the jobs back.''
According to the Chairman--I heard him speak--oh, he is
gone, darn it. But the raid essentially disrupted the whole
economy of the area.
So my point to you, Mr. Homan, would you support some kind
of a--not only change in the loopholes, which I would consider
to be not loopholes, but the law, but would you support some
kind of an adjustment to the law so that more folks can come to
the United States and work legally? Because right now we have
this gray market in this country of workers that are
contributing to this economy, yet they are working in the gray
area because they can't get an adjustment of status.
Mr. Homan. OK. To your first question about the amnesty
question, these family groups started coming across in fiscal
year 2013 and 2014. That was our first surge.
Mr. Correa. OK.
Mr. Homan. That was on the heels of DACA. So these family
units coming across now--that is your next DACA population,
because they are going to say these children were brought to
the country through no fault of their own--34 years in
business----
Mr. Correa. To qualify for DACA----
Mr. Homan [continuing]. They are not----
Mr. Correa [continuing]. You have to follow the law; you
have to have a job. You have the, essentially, a clean record,
correct?
Mr. Homan. When you throw out something like that, when
you--for instance, when you start talking about--let's talk
about an amnesty program. You are going to see the numbers on
the border go up. It is an enticement.
So these family groups coming across now, the 200,000 that
came across the last 2 years, I don't know what is going to
happen with DACA with the Supreme Court, but this is your next
200,000 people who say, ``How about us? We came''----
Mr. Correa. Get to my----
Mr. Homan. My point was----
Mr. Correa. I have got 30 seconds. So----
Mr. Homan. The second issue is, sir, I do understand if
there is a need for labor in this country because the
unemployment rate is so low, then yes, I think Congress should
legislate something. As a matter of fact, when I was the ICE
director, I tried to get----
Mr. Correa. Let me just say----
Mr. Homan [continuing]. Program, because----
Mr. Correa. Economic factors are a great motivator for
people. They have been for the last 200 years. Would you
support some kind of a Marshall Plan for Central America to
stabilize that region, and to address the needs of those folks?
Mr. Homan. I think the Secretary--when I was ICE director,
Secretary Kelly, I went with him into Miami and met with
leadership from Central America, along with American businesses
and big banks, trying to create opportunities for them in their
homeland. I certainly would support creating opportunities for
Central Americans in their own country.
Mr. Correa. Madam Chair, I am out of time. Thank you very
much.
Miss Rice. Thank you. The Chair recognizes for 5 minutes
the gentleman from Mississippi, Mr. Guest.
Mr. Guest. Thank you, Madam Chairman.
Mr. Homan, first I want to thank you for your 34 years of
service to our country. In reading your testimony, the written
statements that you prepared, on the first page you kind-of
talk a little bit about historically what we are seeing today
versus what we have seen in years past. Could you expand on
that just a little bit, please, sir?
Mr. Homan. I think what we are seeing today could have been
prevented if Congress was to close the loopholes we have asked
them to close.
I mean, we proved back in fiscal year 2014 and 2015, when I
worked for Secretary Jay Johnson, whom I respect greatly, you
know, he let us build family detention to hold family units in
the family residential center along--to see a judge. It took
about 40, 45 days. Most of them, 90 percent, lost their cases
and we sent them home. The numbers went down. It worked.
So we are asking Congress, look, we have already proved
this worked under the Obama administration. How come we are not
doing it now?
You know, so I think Congress needs to fix this loophole.
Let us detain--if they are really escaping fear and persecution
and death, I don't see a problem in being in a family
residential center with medical care, pediatricians, child
psychologists on staff, 3 squares a day, 6 sets of new clothes,
access to lawyers, access to families. These are open-air
campus facilities.
If it saves a life--and that is what I have been testifying
the last 4 times. This isn't just about securing our border.
This isn't just about enforcing laws. It is about saving lives.
It is about 31 percent of women being raped.
If we close these loopholes, we are going to save women
from being sexually assaulted. We are going save children from
dying. We are going to stop bankrolling criminal cartels who
are making millions of dollars a day because of the laziness of
this country not to fix the loopholes.
Mr. Guest. You quote our--give several statistics there in
your written testimony. I think that those are very important.
Are those statistics that you give, are they supported by your
34 years of service to our country?
Mr. Homan. Absolutely. One caveat the Chairwoman mentioned,
the 87 percent. I did not say 87 percent did not show up at a
hearing. I said 80 percent lost their case. So that rate
varies, but every number I quoted today in my testimony, and
the numbers I just recently quoted, came off the Executive
Office of Immigration Review, the Immigration Court website.
They are open to the public. I printed these up last night. So
these are the immigration court's own data. This is not my
data. This is data coming from the immigration judges.
Mr. Guest. Let me ask you about a couple of those
statistics that I pulled from your report, and just tell me if
they are accurate, to the best of your knowledge.
Seventy percent of illegal immigrants coming into the
country now are family units. Is that accurate, to the best of
your recollection or best of your knowledge?
Mr. Homan. Seventy to 72 percent. It varies every month.
Mr. Guest. All right. Then it says here, as I see, that
roughly 90 percent of all family units fail to show up for
court proceedings.
Mr. Homan. That was--I quoted the Acting Secretary
McAleenan when he made that statement.
That number does vary, depending on when you look at it,
and what city you look at. It can go anywhere from 90 percent
not showing up to 40 percent not showing up. It depends on what
court you look at. So that number fluctuates so much. So that
90 percent number I use, I quoted the Secretary, as the
Chairwoman mentioned few minutes ago, in his testimony 6 months
ago.
Mr. Guest. What about 85 to 90 percent don't qualify--for
those that do show up, then, or 85 to----
Mr. Homan. That is----
Mr. Guest. Ninety percent don't qualify for asylum.
Mr. Homan. That is immigration court data. It shows that it
is anywhere from 13 percent, 12 percent, 13 to 15 percent for
the 3 Central American countries that do not--that get a
meritorious claim, 13 to 15 percent, which means 87 to 85
percent lose their case.
Mr. Guest. Then those that are ordered to be removed, less
than 2 percent actually were removed or left the country. Is
that correct?
Mr. Homan. Actually, it is closer to 1 percent, but I was
generous saying 2 percent. It is actually--it is 1.6 just
recently, but it has been 1.2 to 1.6.
So it is, yes, most do not leave. That is another
enticement. That is why more people keep coming, because
families in Central America, even though they know most will
lose their case, they are not going home.
Mr. Guest. There is, as I understand from your reporting,
an 800,000-case backlog in the immigration court. Is that
correct?
Mr. Homan. It is now over a million. There was 800,000, but
I went to the website last night and they are reporting a
million.
Mr. Guest. Would you agree that these figures are
staggering, Mr. Homan?
Mr. Homan. Absolutely. I mean, the--when I was the ICE
director the backlog was already near 600,000. So what has
happened in the last 2 years? Yes, it sounds right to me.
Mr. Guest. You say on page 3 of your report, you say
illegal crossings are down, consistent from the high in May,
but we are still at high numbers beyond last year.
Then this is the sentence I want to highlight: ``The
significant gains made on this issue are because of our
President and the men and women of CBP and ICE, and not because
of anyone in this room.''
First of all, I want to apologize to you that Congress has
failed the American people. I would ask for you to deliver a
message. Please tell the men and women of CBP and the men and
women of ICE that we appreciate their hard work and what they
do, and that there are still Members of Congress who want to
solve this problem.
Thank you, Madam Chairman. I yield back.
Miss Rice. Well, I would agree with that statement. I think
every person on this panel, on either side of the aisle, agrees
that every CBP officer should be commended for the hard work. I
don't think that is even an issue. We all want to come to a
solution, obviously.
The Chair now recognizes for 5 minutes the gentleman from
New Jersey, Mr. Payne.
Mr. Payne. Thank you, Madam Chair. I have some questions I
want to answer, but I think I want to go to Ms. Vela.
In reference to the questions and the comments made by the
honorable Ranking Member, when we talk about torture and the
incident of torture that you were privy to, I don't think that
we can make light of just 1. One is 1 too many. Normally, if
there has been 1, there has been more than 1. It opens a can of
worms and a prospect of that becoming a norm with respect to
torture, because I have a family, I have a--triplets and a
wife, and just the prospect of thinking they were subjected to
that is horrific. So 1 is 1 too many.
Can you elaborate any more on that issue?
Ms. Thorn Vela. Certainly. Thank you, Congressman. Yes. It
is very prolific in--throughout the country of Mexico,
particularly at the northern border, that cartels will often
kidnap individuals and extort family members for money. It is a
practice that the U.S. Government has also detailed in other
years.
So MPP is providing people--very often people will be
kidnapped and tortured on their way up, and then the U.S.
Government will return them south for them to be subjected to a
second round of kidnapping and torture. It is an extremely
common occurrence. Every person that I know at the camp has
told me that they live in fear of that happening.
Mr. Payne. Thank you. The doctor, Schneberk. How, in your
view, does the Remain-in-Mexico place vulnerable individuals
and families at risk of the type of harm your organization
identified as commonly affecting immigrants?
Dr. Schneberk. So what is the question, again?
Mr. Payne. How does the Remain-in-Mexico Policy place
vulnerable individuals and families at risk of the type of harm
your organization has identified as commonly affecting
immigrants?
Dr. Schneberk. Thank you for the question, Representative.
So a number of ways.
No. 1, the safety issue of, you know, these people, who
have been through so much, are already at heightened risk of
further mental health decline or mental health kind of effects,
hits they can take from being in an unsafe environment or
having to live with that fear has numerous--both manifesting
mentally, as well as physically.
In addition to that, putting them in a situation where they
are not able to feed themselves, house themselves, be able to
access, you know, things that make a person able to be healthy
is especially difficult and, obviously, has health effects.
There is just a litany of things you could talk about.
But one of the main things is really just how can they live
being unsafe, considering what they have already gone through.
Mr. Payne. OK. I lost my place. All right. Ideally, what
type of medical care and resources would be most important for
these people?
Dr. Schneberk. So, starting from a standpoint of putting
them in a safe environment where they can address their needs,
from the standpoint of just being able to speak about what has
gone on, what has happened to them, the state they are in, and
their ability to answer questions from the standpoint of having
PTSD, having depression, anxiety, and really, starting with
that kind of baseline floor of kind of what they call in
trauma-informed care just a safe environment, then moving on
into, you know, as far as mental health evaluations, mental
health therapy, treatment, medication, as well as physical
care, basic primary care, all the things that we hold dear in
public health and medicine to keep people safe, healthy.
Mr. Payne. Well, thank you. Thank you for your time. Madam
Chair, I yield back.
Miss Rice. Thank you. The Chair now recognizes for 5
minutes the gentleman from Texas, Mr. Green.
Mr. Green. Thank you, Madam Chair. Thank you, Madam Chair.
My microphone seems to be weak today, but I trust that you can
hear me. I would like to focus on something that has happened
as of late.
There is an organization styled Save the Children. It has
been around for 100 years, and it has been involved in the
business. It has been involved in the business of saving
children. Thank you very much. This organization has indicated
to us that, since January 2019, 13,000 children have been
returned, that 400 of them are infants. This is about children.
So I have a few questions.
The first is--and I would like for you to raise your hand
if you agree with this policy--the first is do you approve of
family separation, as a policy? If so, raise your hand.
Let the record reflect that no one approves.
If you approve of holding children in cages, raise your
hand.
Let the record reflect that no one approves.
If you approve of de-funding aid to the countries that
migrants are fleeing, raise your hand.
Let the record reflect that no one approves.
There was something called wet foot, dry foot. Some of you
may be familiar with wet foot, dry foot. If you are familiar
with what was called the wet foot, dry foot policy as it
related to Cubans, would you raise your hand, please?
All of the members, let the record reflect, are familiar
with wet foot, dry foot.
Wet foot, dry foot required that a person emigrating from
Cuba get one foot on dry land. With one foot on dry land you
could walk right on into Florida, usually, and you would be on
a pathway to citizenship with one foot on dry land. I am not
saying that we have to have a wet foot, dry foot policy, but I
do believe that we have to have a humane policy that respects
children, that does not harm children.
This is what Save the Children is all about.
I would just simply ask Mr.--let me make sure that I have
your name correct, sir.
Mr. Homan, sir, what type of policy do you envision that
will help children, children who are fleeing harm's way with
their parents, usually, or some significant person in their
lives, have the opportunity to be in a safe, secure, wholesome
environment?
Mr. Homan. Well, first of all, if I can--your question
about raise your hands, if you would have said if I support
zero tolerance, I would have raised my hand. Not family
separation. Zero tolerance. We seem to confuse those two
issues.
Mr. Green. OK. Well, if you would, I am going to ask that
you kindly address my question.
But since you raised zero tolerance, I am not sure what you
mean by zero tolerance. Are you saying zero tolerance that no
one ever coming to the United States? Is that your zero
tolerance policy?
Mr. Homan. No. You are referring to family separations that
have happened under numerous Presidents, not just this
President.
Mr. Green. OK, so----
Mr. Homan. But a zero tolerance, what you are referring to
is family separation, zero tolerance. That was put in place by
Attorney General Jeff Sessions. It was zero tolerance to
prosecute those who knowingly and intentionally violate our
laws.
Mr. Green. So--and supporting that policy, you would
support family separation, then.
Mr. Homan. Whenever someone gets arrested for a crime, they
get booked into a jail. Their child can't go with them, just
like if I got arrested tonight, my child couldn't go with me.
So it is not about family separation, it is----
Mr. Green. Well, the interesting thing about your argument
is that these people committed no crimes.
Mr. Homan. You enter the United States illegally, it is a
crime. Is a 8USC----
Mr. Green. Hold on.
Mr. Homan [continuing]. Eight United States Code 1325, it
is a crime to enter the United States illegally.
Mr. Green. It is not a crime; it is a civil offense.
Mr. Homan. No, sir, it is not. It is a violation of the
criminal code. Title 8, United States--in the United States
Code, 1325, illegal entry in the United States. The first
offense is a misdemeanor. Second offense, if you have been
ordered removed and returned, is a felony.
Mr. Green. I agree with that. I don't differ with you on
that point. But you would then separate the children.
Mr. Homan. If--you have no option. If someone is being
prosecuted and getting sent to U.S. Marshal's custody or to the
local jail, the child can't go with them. It happens to U.S.
families every day across the country.
Mr. Green. All right. Let's have Mr. Knowles's response,
please.
Mr. Knowles. What would you like me to answer, sir?
Mr. Green. The separation of children based upon policy
that was in place.
Mr. Knowles. You are asking the view of our members?
Mr. Green. Yes.
Mr. Knowles. I believe I said earlier that our members are
trained asylum officers, we are not law enforcement, but we
believe that our mandate is to ensure that asylum seekers have
due process and are treated humanely during the pendency of
their claims. It is well-known in the law and in the
international conventions that an asylum seeker has the right
to due process, regardless of their manner of entry.
They--we do not believe that it is correct to separate
families or to prosecute individuals who are seeking asylum.
They ought to have their asylum cases heard. If they prevail,
they should be allowed to remain. If they don't prevail, then
there are legal processes for their removal. But we don't
support the separation of families under any circumstances.
Mr. Green. Is there anyone else who would like to respond?
Miss Rice. There is no--I am sorry. I am sorry, we have 3
other people, I am so sorry.
Mr. Green. Thank you, Madam Chair.
Miss Rice. Thank you. The Chair now recognizes for 5
minutes the gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Madam Chair, first of all, I want to thank
you for holding this hearing. I echo your words, which were we
have to find a solution and a resolution.
I also echo your words, for someone who served on this
committee for a very long time, and you have been here, and
others, that we do not quarrel with the service of the men and
women in this Department. What I do say is that they are being
impacted by untoward policies, which makes it very difficult to
do, I think, the duty under the values of this Nation.
I have stated early on that this is a country of immigrants
and a country of laws. No one negates the idea of laws. So I am
going to raise these questions and pose them to a number of
witnesses.
The Remain-in-Mexico and the port courts are the latest
legally questionable step in the Trump administration's anti-
immigrant agenda, i.e. the Muslim ban, another untoward action,
I believe, as relates to immigration policies. Rather than
deter asylum seekers, these policies promote cruel and human
rights violations.
So I would like to raise that question--and my time is
short--raise that question with Laura Pena with the pro bono
American Bar Association. Do these policies create cruelty and
human rights violations?
Ms. Pena. Yes. Thank you for the question, Congresswoman.
Particularly, when it comes to issues regarding the tent courts
that you raised, attorneys have very limited restricted access
to these tent courts. Asylum seekers who are appearing in these
tent courts do not have access to simultaneous interpretations.
So they quite often have no idea what is going on in these
proceedings.
The ABA has long believed and promoted access to in-person
interpreters for proceedings, and especially when it pertains
to non-citizens. Any video conferencing for non-citizens should
be done with their consent. Thank you.
Ms. Jackson Lee. I thank you. Ms. Vela, would you comment
on the idea of creating cruel and human rights violations?
Ms. Thorn Vela. Yes, Congresswoman. From everything that we
see on the ground--we work in a 2,000-person encampment at the
foot of the Gateway Bridge that is across from Brownsville.
There is not enough food. There is not running water. Until
very recently, immigrants had to get into the Rio Grande to
wash their clothes and wash their children. We see this camp
growing at an alarming rate. We have only had MPP since August,
and it is grown three- or four-fold.
Ms. Jackson Lee. You are not arguing against having a
country that has immigration laws. What you are saying is the
MPP program creates an atmosphere and an actuality of cruelty.
Is that correct?
Ms. Thorn Vela. Yes, Congresswoman. There is no question
that this particular policy has eroded everybody's access to
asylum, access to a safe place to seek asylum, and safety while
they await their court date.
Ms. Jackson Lee. You can't see this, but I am looking at a
visual of squalor that is probably not even in the places where
they have come from. That is tents and tarps. Have you all seen
this on the other side of the border?
Ms. Thorn Vela. Yes, Congresswoman. That is--I can't see
the photo, but certainly tents and tarps for 2,000-plus people
is what we work with every day.
Ms. Jackson Lee. I see a person walking with a face mask. I
know you can't see it--and clothes hanging over.
So let me quickly go to the doctor. By forcing asylum
seekers to wait for months in Mexico border cities where
cartels and other criminal groups are highly active, the Trump
administration subjecting men and women and children to a
greater risk of kidnapping, assault, and extortion, which, as a
physician, also impacts the quality of life of these
individuals, Doctor, if you would?
[No response.]
Ms. Jackson Lee. Doctor? I am sorry, I am calling you--yes,
doctor. Dr. Schneberk, did you hear the question?
OK. Let me just go on. Through--DHS is providing asylum
seekers with incomplete or inaccurate paperwork, including
wrong addresses or dates for hearings, which further
complicates matters, and could lead to people's claims being
rejected through no fault of their own.
Could one of the lawyers answer that question?
Doctor, I was asking you does the squalid conditions
generate--that are creating risk for kidnapping, assault, and
extortion impact health. But can you--let me have the question
about the inaccurate paperwork, if one of the lawyers would
respond to that, and maybe you could respond to the other
question. Thank you.
Ms. Pena. Thank you, Congressman. The notice to appears,
which are the charging documents issued by Department of
Homeland Security, have several legal inefficiencies--
insufficiencies, including the address. So individuals cannot
get proper service of their notice to appears because the
address is incorrect. The address is shelters that they have
never even been to.
In addition, the NTAs are incomplete. There are no boxes
checked, which are required, which establish how the individual
entered the United States.
Moreover, there is manufactured charges. So individuals who
entered between ports of entry are being charged as removable
as arriving aliens. That is a legal fiction that is being
created on these notices to appear.
Moreover, improper courts are being issued on these notices
to appear. For example, where we practice in South Texas, the
Harlingen court is the court where individuals are supposed to
appear. That is--it is actually incorrect. They appear in
Brownsville. Thank you.
Ms. Jackson Lee. Doctor.
Dr. Schneberk. So, yes, real quick. I mean, I participated
in a forensic evaluation of a patient just last week that--she
is in her house, she is fleeing abuse, rape. She is afraid to
leave that place she is renting. She leaves maybe once a week
just to get groceries with her--she is sitting there with her
two kids. Can you imagine the kind of psychological harm that
is causing to her? Because she knows, through family that have
sent her a message, that the perpetrators have sent somebody
after her to Tijuana.
Ms. Jackson Lee. I thank the Chair, and I thank you all.
I just want to put into the record, ask unanimous consent
the conditions that are being considered--the conditions that
exist pursuant to the MPP program on the other side of the
border, and the doctor's comments of the fear of death because
cartels are sending people after the people who are fleeing
evidences that they are being stalled on their asylum process.
Thank you.
Miss Rice. They will be received into the record.
[The information follows:]
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Miss Rice. The Chair now recognizes the gentlewoman from
California for 5 minutes, Ms. Barragan.
Ms. Barragan. Thank you, Madam Chair. Let me start by--I
want to--echoing some of the comments from my colleagues about
the outrage that should be happening over the return of
migrants into dangerous places.
Ms. Thorn Vela, I understand that you have visited some of
these facilities. Out of the 6 locations that have been
implemented, the Remain-in-Mexico Policy, 2 of them are across
from Tamaulipas, an area of Mexico that the State Department
has designated as a level 4, do-not-travel location. I
understand you have been there. Could you please describe the
danger of violence and crime migrants and those in the
encampments near ports of entry in this area are at risk of
being subjected to?
Ms. Thorn Vela. Yes. The cities in Tamaulipas were the last
cities to get roll-out of MPP. A partner of ours that works in
Ciudad Juarez told us that she was horrified when she heard
that people would be removed to Tamaulipas.
Particularly in the city of Nuevo Laredo--I don't work
there, personally, but advocates on the ground there have told
me that people have walked out of Mexican migration and
literally been kidnapped on the doorstep of Mexican migration
offices.
Individuals in the early days were moved to the city of
Reynosa before they decided to have tent courts in Matamoros,
which is about an hour away. There are people still today in
Reynosa that are terrified to make the hour journey south to
their court hearings. They don't know what to do. They have
heard so many stories of people being kidnapped again, possibly
right out front of the door of a shelter that they stayed there
to try to work through their case. They have no way to get even
an hour down the border.
The state of Tamaulipas asked the government to stop
sending people to Reynosa because it had no way to get people
to Matamoros.
Ms. Barragan. It is really horrifying, when you read some
of the accounts of what is happening, and in some instances,
where you have officials, Mexican officials, turning over
people to the cartels, and what is happening to them, and the
danger, it is just outrageous.
It feels to me as though our Government is saying, well, as
long as it doesn't happen on our land, as long as it doesn't
happen here, it is OK. Let's go take them back to wherever we
want to take them back to. We are just ignoring the harms.
When we had Secretary McAleenan come in, it was clear that
the United States didn't bother to assess any type of the risk
and the harm that would be done to migrants if they were being
sent back to these level 4 places, which is the equivalent of
sending them back to Syria. I mean, it is outrageous.
Ms. Pena, I know that you provide--you know lawyers that
are working to provide services to people. Can you tell us a
little bit? Have you represented migrants in merit hearings?
Ms. Pena. Yes. Thank you for the question, Congresswoman. I
actually have a merit scheduled for this Friday.
If I may explain some of the challenges that I faced in
representing individuals placed into MPP proceedings, to find
my client, first of all, I participated in a volunteer asylum
workshop. We are in a hot sun, in a plaza just across the port
of entry. Volunteer attorneys conducted asylum workshops to
screen applicants. That is how I met my client. It was in a
volunteer capacity in Matamoros.
To get access to the tent court I also filed a motion with
the immigration judge to ask him, ``Please allow my client to
come into this multimillion-dollar tent court a couple of days
before the hearing, so we can prepare in a safe environment.''
That judge denied my motion, based on a lack of jurisdiction,
because DHS controls the tent court facility.
Although I--this will be my first merit--local attorneys
who have won cases--imagine winning your asylum case, and then
having your client sent back to Mexico after winning. It causes
attorneys to go to extreme measures to protect their clients.
Even after winning their proceedings, after having meritorious
claims to not be sent back to dangerous situations--it is
horrendous.
Ms. Barragan. Well, thank you. As somebody who actually--
long ago, when I practiced law--represented a woman and child
in an asylum case, a lot of work goes into it, a lot of prep.
Not having access to your client prevents you from doing that
very necessary preparation.
We know, we have seen the statistics from--people who have
access to counsel and legal representation have a much higher
ability to get--have a successful claim. So it feels as though
this is just another attempt to make sure that people don't
have that access, don't have that ability, so that they can
succeed, because this administration is doing everything they
can to end legal immigration. Asylum is legal immigration.
Thank you all for your work and what you are doing. We will
continue to highlight the horrors of the Remain-in-Mexico
Policy and the MPP program.
Thank you. I yield back.
Miss Rice. Thank you, Ms. Barragan. The Chair recognizes
for 5 minutes the gentlewoman from Texas, Ms. Escobar.
Ms. Escobar. Madam Chairwoman, thank you so much for having
this hearing. This is so critical, so that the American public
understands what is happening at the hands of the American
Government. Thank you for allowing me the opportunity to
address our panel and ask questions.
Thank you for coming to the border and coming to El Paso.
You and many of your distinguished colleagues, our
distinguished colleagues, have made the journey so that you can
see for yourself what is happening through your own eyes in
order to help change what is an important policy.
To our panelists, thank you so much for being here today. I
cannot tell you how profoundly moving your testimony was
earlier. I can't imagine anyone listening to your testimony,
listening to what is happening at the hands of the American
Government, and believing that this policy should continue,
this anti-American, deeply harmful policy.
I know full well about MPP because I represent El Paso,
Texas. Our lawyers, our advocates, our community members have,
unfortunately, had to bear witness to what is happening at the
hands of the American Government. Almost 20,000 vulnerable
lives have been pushed back, either through metering or through
MPP.
What we have seen happen--I have described as a new
ecosystem of criminal activity created by this policy on the
other side of our ports of entry, an ecosystem where the
American Government's policy is literally sending vulnerable
migrants into the hands of cartels, so that cartels can extort
money after they have kidnapped people.
We have had lawyers tell us about clients who have been
raped multiple times. We have had lawyers tell us about clients
who have disappeared altogether, people who are in the legal
asylum process. These are people who have been denied due
process and, indeed, have put--have been put in danger.
Earlier one of our colleagues expressed concern about the
Department of Homeland Security personnel not being here today.
I have, Madam Chair, sat through hearings where we have DHS
leadership at the highest levels, essentially deny--tell
Congress that none of this is happening. So it is important to
hear from the people who are here to speak the truth and tell
us what is happening.
Mr. Knowles, is there any way that DHS leadership at the
highest levels, at the Secretary level, is there any way that
they would not know that these atrocities are happening in the
Mexican cities where we are sending back migrants?
Mr. Knowles. I can't imagine how they could not know. Our
own agency, USCIS, has a country of condition, country of
origin research unit. They have produced many reports
documenting the conditions in the Northern Triangle and in
Mexico.
I believe there was--there have been many investigations by
the Department of those conditions. Certainly these things are
well known.
Ms. Escobar. Ms. Pena--thank you, sir. Ms. Pena, do you
think there is--and Ms. Vela, do you think there is any way
that the Secretary of the Department of Homeland Security or
anyone in leadership or in the White House could be unaware of
these atrocities?
Ms. Pena. Thank you for the question. A number of
organizations have come down to the border in south Texas and
have escalated their request for--one example, for access to
the tent court. They have been denied that access at the
highest levels.
So, as we understand it, it is at the highest levels that
these directives are coming from.
Ms. Thorn Vela. Yes, and we work with our clients to
present them to CBP officials at the bridge when people are
erroneously placed in MPP, or they have developed a condition
that makes them, you know, extremely vulnerable in Mexico, and
we have also raised that issue with port directors and people
higher up. You know, we--there is very little chance that
doesn't get back.
Ms. Escobar. Thank you. This is why I have introduced H.R.
2662, the Asylum Seeker Protection Act, to de-fund MPP.
Madam Chair, I would like to introduce--I would like to ask
for unanimous consent to introduce 3 articles: An article by
the LA Times, Vice News, and a series of stories on--in NPR
detailing the heinous occurrences happening at the hands of the
American Government.
Miss Rice. They will be accepted into the record.***
---------------------------------------------------------------------------
*** The information has been retained in committee files and is
available at https://www.latimes.com/politics/story/2019-11-15/asylum-
oficers-revolt-against-trump-policies-they-say-are-immoral, https://
www.vice.com/en_us/article/pa7kkg/trumps-asylum-policies-sent-him-back-
to-mexico-he-was-kidnapped-five-hours-later-by-a-cartel, and https://
www.thisamericanlife.org/688/transcript, respectively.
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Ms. Escobar. Then, just a final show of hands. There has
been so much publicity around the atrocities of MPP, there is
absolutely no way that the highest levels of DHS leadership
could be unaware of what is happening. Since all of this has
blown wide open, have you all seen any improvements to the
lives of these vulnerable migrants, the Government reversing
any of what it has done? A show of hands.
Let the record reflect no one has seen any improvement
since the publicizing of MPP.
Madam Chairman, thank you so much. I yield back.
Miss Rice. Thank you, Ms. Escobar. I would like to
recognize Mr. Green for a clarification.
Mr. Green. Thank you, Madam Chair. I promise to be terse.
Madam Chair, Mr. Homan has brought us to the heart of the
problem, and that is this administration concludes that asylum
seekers are criminals. They are not criminals. It is not a
crime to seek asylum in the United States of America. When you
treat them as criminals, somehow you conclude that it is OK to
lock their children up in cages. But they are not criminals. We
have a criminal mentality as it relates to the people who are
coming to this country from south of the border. That is what
we have to confront. That is the gravamen of this circumstance:
A criminal mentality for people who are seeking a lawful
process called asylum.
I thank you, and I yield back.
Mr. Homan. Can I respond?
Miss Rice. This was just a clarification.
Thank you, Mr. Green.
Mr. Homan. But that clarification is inaccurate.
Miss Rice. No, the--I believe the clarification the
gentleman was making was that he was not claiming that claiming
asylum was--what he was saying was not that crossing the border
was not criminal, but that claiming asylum was not criminal.
That is the clarification that I believe the gentleman made.
I want to thank the witnesses for their valuable testimony,
and the Members for their questions.
I ask unanimous consent to enter into the record statements
of support from a number of relevant organizations, including
among others the American Immigration Lawyers Association; the
American Immigration Council; the Children's Defense Fund; and
Refugees International.
[The information follows:]
Statement of AFL-CIO
Tuesday, November 19, 2019
America's welcome mat, long a beacon of hope for immigrants,
refugees, and asylum seekers, is being bulldozed and paved over,
replaced with a clear message: ``You're not welcome here.'' The labor
movement vehemently opposes the inhumane policies being inflicted on
families at our Southern Border and insists that uplifting worker
rights and standards throughout the region should be a key aspect of
humane border policy.
This October, the AFL-CIO coordinated a high-level labor delegation
to El Paso and Ciudad Juarez to witness first-hand the impact of
``Remain in Mexico'' and other punitive border policies. Union leaders
from all sectors of the economy and all parts of the country heard
directly from asylum seekers, deported veterans, and Mexican workers
who are organizing for basic rights and standards. Their stories inform
our statement for this hearing.
In addition to violating core values and democratic principles, our
Government's policies are now generating a large pool of vulnerable
migrant workers in Mexican border communities. We therefore urge the
subcommittee to consider not only the significant human rights and
legal implications of the ``Remain in Mexico'' policy, but also its
economic, labor, and trade-related ramifications.
``Remain in Mexico'' is yet another prong of an ever-escalating
agenda of criminalization, family separation, detention, deportation,
and exclusion being pursued by this administration. Rather than cruelly
detaining asylum-seeking families, our Government is now denying them
entrance to our country and forcing them to wait without shelter or
sustenance for indefinite periods of time in Mexican border
communities. There were already more than 20,000 asylum seekers of all
ages sleeping in the streets in Juarez when our delegation visited, and
these families are enduring conditions that are by most measures even
more dangerous than detention.
Compounding the harm of these inhumane policies, companies are now
actively recruiting asylum seekers trapped in Mexico for manufacturing
jobs in maquiladoras with a history of worker exploitation. There are a
reported 50,000 openings for positions in factories in northern Mexico.
Forcing migrant families to remain in these border communities creates
a large and growing source of workers desperate enough to accept jobs
under nearly any conditions as a means of survival.
Viewed in the context of USMCA negotiations, the use of anti-
migrant policies to generate a vulnerable pool of workers for low-wage
border industries becomes even more problematic. Such strategies
seriously undermine efforts to raise wages and standards in Mexico, and
further increase the challenges of implementing ambitious labor law
reforms meant to improve working conditions and level the playing field
for workers in the region.
Families in Central America and Mexico continue to face acute risks
due to violence, lawlessness, and lack of decent work opportunities.
Labeling their homelands as safe third countries denies the lived
realities of working people. Instead of forcing migrants to remain in
these dangerous environments, U.S. policy measures should focus on job
creation and meaningful protection of labor and human rights in the
region. An approach that actually addresses the root causes of forced
migration would help reduce the push factors that breed desperation and
drive people away from their homes and communities.
The labor movement categorically rejects the notion that only some
working people deserve rights and respect, while others can be
dehumanized, denigrated, or discarded--as we see our Government doing
to immigrants and asylum seekers at our Southern Border.
The forces of bigotry and white supremacy want to keep workers
poor, weak, and divided. Union leaders travelled to the border last
month to demand an end to the politics of division and hate that are
fueling inequality and violence. Solidarity among working people is the
best tool we have to overcome bigotry and promote equality in our
workplaces and our society.
We urge Congress to denounce the ``Remain in Mexico'' policy and
restore our Nation's commitment to humanitarian immigration pathways,
including robust asylum and refugee resettlement programs. Families
fleeing violence and persecution must not be returned to harm's way,
nor is it appropriate to channel them into abusive temporary labor
programs. Humane immigration policies should be aligned with a broader
economic, trade, and foreign policy agenda focused on the development
of decent work and shared prosperity for all, so that migration becomes
a choice rather than a necessity.
Real security can only be achieved through humane approaches, and
we will continue to demand justice for long-term members of our
communities, our workforce, and our unions, as well as for those who
newly seek refuge in our country.
______
Statement of the American Immigration Lawyers Association
November 19, 2019
As the national association of more than 15,000 attorneys and law
professors who practice and teach immigration law, the American
Immigration Lawyers Association (AILA) is deeply concerned with the
Remain in Mexico policy, also known as the Migrant Protection
Protocols, which requires asylum seekers at our Southern Border to wait
in Mexico until their requests for humanitarian protection are
decided.\1\
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\1\ DHS Releases Policy Guidance for Implementation of the Migrant
Protection Protocols, AILA Doc. No. 19012907 (January 25, 2019),
available at https://www.aila.org/infonet/dhs-implementation-migrant-
protection-protocols.
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Remain in Mexico dramatically alters the processing of asylum
claims at the U.S. Southern Border, making it far more difficult for
asylum seekers to receive a fair and meaningful review of their claims.
In January, AILA expressed grave concerns that the policy effectively
denies asylum seekers their right to be represented by counsel and
curtails their ability to receive a fair and meaningful review of their
claims.\2\ Additionally, the well-documented violence and instability
that migrants face in Mexico exposes returned asylum seekers to severe
risk of further trauma while they wait for their hearings.\3\ AILA has
urged the administration to terminate Remain in Mexico and return to
the long-standing practice of allowing asylum seekers to wait in the
United States while their cases are being reviewed. In addition, many
Remain in Mexico cases are heard in massive tent facilities in Laredo
and Brownsville, Texas that function as virtual immigration
courtrooms.\4\ These tent courts mount significant roadblocks to access
to counsel, due process, and transparency.
---------------------------------------------------------------------------
\2\ Trump Administration Unveils More Severe Restrictions on Due
Process and Asylum in ``Remain in Mexico,'' AILA Doc. No. 19012842
(January 28, 2019), available at https://www.aila.org/advo-media/press-
releases/2019/trump-administration-unveils-more-severe-restrict; AILA
Sends Letter to DHS Acting Secretary Detailing MPP's Barriers to
Counsel, AILA Doc. No. 19060336 (June 3, 2019), available at https://
www.aila.org/infonet/aila-sends-letter-to-dhs-acting-secretary-mpp.
\3\ Human Rights First, Delivered to Danger: Illegal Remain in
Mexico Policy Imperils Asylum Seekers' Lives and Denies Due Process
(August 2019), available at https://www.humanrightsfirst.org/sites/
default/files/Delivered-to-Danger-August-2019%20.pdf; see also AILA and
Advocates Send Letter Urging Secretary Nielsen to End the Migrant
Protection Protocols Policy, AILA Doc. No. 19020631 (February 6, 2019),
available at https://www.aila.org/advo-media/aila-correspondence/2019/
aila-and-advocates-send-letter-urging-secretary.
\4\ See www.aila.org/portcourts; Haley Willis, Christoph Koettl,
Caroline Kim and Drew Jordan, Trump Is Having Tent Courthouses Built
Along the Border. Here's What They Look Like., New York Times available
at https://www.nytimes.com/video/us/politics/100000006681200/border-
immigration-tent-courthouses.html.
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While there are many troubling aspects of the Remain in Mexico
policy, this statement focuses on how the policy effectively denies
asylum seekers' right to be represented by counsel. The collective
experience of AILA members who represent asylum seekers subject to this
and other policies makes us well-qualified to offer views on their
harmful impact. In addition to being in touch with AILA members
practicing on the Southern Border, in September and November AILA sent
delegations to observe the effects of these policies in Brownsville,
Laredo, and San Antonio, Texas, as well as Matamoros, Mexico.
background on tent courts
In September, DHS opened massive tent facilities in Laredo and
Brownsville, Texas that serve as virtual immigration courtrooms for
Remain in Mexico cases.\5\ During the hearings, asylum seekers are held
in tents at the ports of entry while judges appear remotely via video
teleconference from traditional brick-and-mortar courtrooms elsewhere.
DHS chose to open these courts without meaningful notice to the public
or the legal community and provided almost no information about even
basic operations and procedures at the tent courts once they were
operational. The location of these tent courts forces asylum seekers to
wait for their proceedings in extreme danger in Nuevo Laredo and
Matamoros, which have both been designated by the U.S. State Department
with a level four ``Do Not Travel'' warning due to high rates of crime
and kidnapping.\6\
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\5\ Id.
\6\ Patrick McDonnell, Pastor's kidnapping underscores threat to
migrants returned to Mexican border towns, LA Times (September 2,
2019), available at https://www.latimes.com/world-nation/story/2019-09-
01/kidnapping-of-pastor-in-mexican-border-town-dramatizes-threats-to-
migrants; Department of State, Mexico Travel Advisory (April 9, 2019),
available at https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
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harsh conditions in mexico present nearly insurmountable barriers to
legal services
To understand the impact of Remain in Mexico on the right to
counsel, it is important first to understand the conditions that asylum
seekers are subjected to while in Mexico, and how those conditions make
it more difficult for them to access the few legal resources that may
be available. Asylum seekers subject to Remain in Mexico must be able
to present at ports of entry when they are scheduled for immigration
court hearings, which means they must wait in Mexico's northern border
region for months.
While in Mexico, asylum seekers--an increasingly large proportion
of which are mothers, children, and families \7\--often must stay in
shelters or temporary camps set up by local nonprofit organizations
with limited resources. These camps have been unable to keep up with
the demand for housing and basic services, and the conditions in the
camps are deteriorating.\8\ When space is full at shelters and camps,
asylum seekers are forced to find alternative housing, even though they
may not speak Spanish and often do not have any local family or other
ties. Many end up sleeping on the streets. In addition, asylum seekers
stuck in the Mexico may not have regular access to food or clean water.
---------------------------------------------------------------------------
\7\ See Migration Policy Institute, Eight Key U.S. Immigration
Policy Issues, Doris Meissner and Julia Gelatt, May 2019, available at
https://www.migrationpolicy.org/research/eight-key-us-immigration-
policy-issues.
\8\ See Patrick Timmons, Squalid migrant shantytowns forms in
Mexican border city, May 14, 2019, available at https://www.upi.com/
Top_News/World-News/2019/05/14/Squalid-migrant-shantytown-forms-in-
Mexican-border-city/5501557701209/.
---------------------------------------------------------------------------
Those waiting in Mexico frequently experience violence. In fact,
the Dilley Pro Bono Project, a collaboration run by AILA and other
organizations, found that 90.3 percent of the 500 respondents they
surveyed in January and February 2019 said they did not feel safe in
Mexico, and 46 percent reported that they or their child had
experienced at least one type of harm while in Mexico.\9\
---------------------------------------------------------------------------
\9\ AILA and Advocates Send Letter Urging Secretary Nielsen to End
the Migrant Protection Protocols Policy, AILA Doc. No. 19020631
(February 6, 2019), available at https://www.aila.org/advo-media/aila-
correspondence/2019/aila-and-advocates-send-letter-urging-secretary.
See also Human Rights First, Delivered to Danger: Illegal Remain in
Mexico Policy Imperils Asylum Seekers' Lives and Denies Due Process
(August 2019), available at https://www.humanrightsfirst.org/sites/
default/files/Delivered-to-Danger-August-2019%20.pdf.
---------------------------------------------------------------------------
Without regular access to basic life necessities like food, water,
shelter, and safety, asylum seekers often do not have the ability to
seek out the few legal services that may be available. They may not
have cell phones or regular access to landlines to call organizations
to request representation, much less the money to make international
calls to organizations in the United States. They are particularly
vulnerable to notaries and other bad actors in the area who prey on
these exact vulnerabilities. Additionally, the trauma suffered by these
families and the on-going dangers they face in Mexico would make it
even more difficult for survivors to relay their stories clearly and
concisely to a legal services provider in a consultation, much less an
asylum officer or judge.
By contrast, if asylum seekers could wait in the United States
while their claims are reviewed, they would live in comparatively safe
and sanitary detention conditions and have better access to legal and
social services. Additionally, non-profit organizations would be able
to provide legal orientation programs and some limited legal
representation free of charge.
few legal services providers are able to represent asylum seekers in
mexico
Even if an asylum seeker has the resources to seek legal
representation, legal services providers are scarce and cannot possibly
meet the need presented by the thousands of people subject to Remain in
Mexico.\10\ According to DHS, asylum seekers subject to the policy are
``provided with a list of legal services providers in the area which
offer services at little or no expense to the migrant.''\11\ This is
the same list given to respondents who are located in the United States
and consists solely of organizations based on the U.S. side of the
border near the immigration court where their hearings will take
place.\12\ The list is not tailored for asylum seekers marooned in
Mexico and contains organizations that are not able to travel to Mexico
and conduct consultations or provide legal representation. It is also
incredibly difficult for attorneys to represent asylum seekers subject
to Remain in Mexico involved with representing someone outside of the
country. Frequent travel to Mexico for U.S.-based attorneys is often
not possible or unsustainable due to the exorbitant travel costs and
disruption to their representation of other clients in the United
States. The result is that most attorneys simply cannot represent
asylum seekers subject to Remain in Mexico.
---------------------------------------------------------------------------
\10\ Over 55,000 people have been subject to the Remain in Mexico
policy. Maria Verza, Migrants thrust by US officials into the arms of
the cartels, Washington Post (November 16, 2019), available at https://
www.washingtonpost.com/world/the_americas/migrants-thrust-by-us-
officials-into-the-arms-of-the-cartels/2019/11/16/92003c6e-08ba-11ea-
ae28-7d1898012861_sto- ry.html.
\11\ Department of Homeland Security, https://www.dhs.gov/news/
2019/01/24/migrant-protection-protocols.
\12\ See EOIR, List of Pro Bono Legal Services Providers, available
at https://www.justice.gov/eoir/list-pro-bono-legal-service-providers.
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remain in mexico impedes communications between asylum seekers and
their attorneys
If an asylum seeker subject to Remain in Mexico is able to find an
attorney in the United States who can represent them, the mere fact
that the migrant is located in Mexico with so few resources means that
the effectiveness of that representation could be compromised.
Competent and ethical representation of an asylum seeker is an involved
and lengthy process that requires constant communication between the
client and the attorney. The Model Code of Professional Responsibility
requires that attorneys reasonably communicate with and zealously
represent their clients.\13\
---------------------------------------------------------------------------
\13\ Rule 1.4, Communications (2018), In American Bar Association,
Center for Professional Responsibility, Model Rules of Professional
Conduct, available at https://www.americanbar.org/groups/
professional_responsibility/publications/
model_rules_of_professional_conduct/
model_rules_of_professional_conduct_table_of_contents/; Preamble
(2018), American Bar Association, Center for Professional
Responsibility, Model Rules of Professional Conduct, available at
https://www.americanbar.org/groups/professional_responsibility/
publications/model_rules_of_professional_conduct/
model_rules_of_professional_conduct_table_of_- contents/.
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AILA's Asylum and Refugee Committee estimated that representing an
asylum seeker in immigration court takes between 40-80 hours of work,
with an estimated 35 hours of face-to-face communication with the
client.\14\ By marooning asylum seekers in Mexico, Remain in Mexico
makes it significantly more difficult for attorneys to communicate with
their clients: Face-to-face meetings are expensive and thus either rare
or impossible; video conferencing is rare, as is the internet speeds
needed to support it; a client may not have regular access to a phone,
and if they are able to find one, do not have space where they can have
a confidential conversation; and international phone calls are
expensive and phone coverage can be spotty.\15\
---------------------------------------------------------------------------
\14\ These averages are the result of a survey completed between
March 11, 2019 to March 15, 2019 of the members of the AILA Asylum and
Refugee Committee, who, collectively, have represented thousands of
asylum seekers. See AILA Sends Letter to DHS Acting Secretary Detailing
MPP's Barriers to Counsel, AILA Doc. No. 19060336 (June 3, 2019),
available at https://www.aila.org/infonet/aila-sends-letter-to-dhs-
acting-secretary-mpp.
\15\ See Patrick Timmons, Squalid migrant shantytowns forms in
Mexican border city, May 14, 2019, available at https://www.upi.com/
Top_News/World-News/2019/05/14/Squalid-migrant-shantytown-forms-in-
Mexican-border-city/5501557701209/.
---------------------------------------------------------------------------
One of the most critical aspects of representing an individual in
asylum proceedings is being able to build trust between the client and
the attorney. Most asylum seekers have experienced severe trauma and
suffer from some form of psychological distress, making face-to-face
communication essential for building trust. This type of relationship
is necessary for clients to feel comfortable disclosing sensitive
information and traumatic details to the attorney. Such specific,
detailed information is required for asylum officers and judges to find
an individual credible and ultimately grant relief. Again, frequent
travel to Mexico for U.S.-based attorneys is unsustainable, which means
the ability of attorneys to build trust will be compromised. Given
these circumstances, U.S. attorneys may refuse to take on cases subject
to Remain in Mexico out of legitimate concerns about being able to
fulfill their ethical duties of competence.
Without the opportunity to travel to Mexico and consult with their
clients, attorneys are typically required to wait until moments before
a scheduled immigration court hearing to meet them face-to-face for the
first time. Clients often speak languages other than English, and
additional time and resources are required for interpretation services.
Given these factors, it is extremely difficult for asylum seekers to
relay their story in a full and comprehensible fashion, especially in
initial meetings. Waiting until hours--in many circumstances, minutes--
before a scheduled immigration court hearing to have direct contact
with the client is not enough time for an attorney to build the type of
trust discussed above and elicit the necessary details. Additionally,
there are practical obstacles to building a case in the moments before
court--attorneys and clients may not have access to a private room
where they can discuss the case confidentially, or even the ability to
use a computer and printer to ensure any last-minute information is
included in court filings.
In addition to above-mentioned hurdles to counsel, migrants subject
to Remain in Mexico at the tent courts have even greater hurdles to
accessing legal counsel. For example, in the few cases where a migrant
is able to find representation, AILA has found that some attorneys of
record have not been able to meet with their clients for more than 30
minutes on the day of the hearing, despite the fact that clients are
required to show up at the ports of entry hours prior to the
hearing.\16\
---------------------------------------------------------------------------
\16\ Camilo Montoya-Galvez, ``Farce of due process'': Lawyers
denounce new border tent courts for migrants, CBS News (September 19,
2019), available at https://www.cbsnews.com/news/asylum-seeker-tent-
courts-at-border-denounced-by-attorneys-as-farce-of-due-process/.
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denial of observer and legal orientation access to secretive tent
courts
DHS had stated that it will allow public access to the tent courts,
subject to some restrictions such as requiring requests for access to
be submitted 5 days in advance. In September 2019, for example, then-
Acting Department of Homeland Security Secretary Kevin McAleenan
tweeted that the public and media would have access to the facility.
However, as detailed in an October 7, 2019 letter sent by AILA and
several other organizations, DHS has consistently denied access to
attorney observers and non-governmental organizations (NGO's).
DHS has restricted access to the port courts to clients and their
attorneys of record that have a representation agreement on file. At
one time, even support staff for attorneys of record (i.e. interpreters
and paralegals) were restricted from entering the tent court
hearings.\17\ As a result, DHS is preventing nonprofit organizations
from interviewing migrants for potential pro bono services, and even
preventing nonprofits from providing basic legal orientation programs
to migrants. Similarly, DHS has refused tent court access to attorney
observers from non-governmental organizations (NGO's) seeking to tour
the facilities and observe hearings from inside the tent facilities. As
far as we are aware, only 1 NGO has been allowed inside the tent
facilities for a tour before the courts were functioning.
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\17\ Laura Lynch and Leidy Perez-Davis, Searching for Fairness and
Transparency--A Firsthand Look at the Port Courts in Laredo and
Brownsville, Think Immigration (September 16, 2019), https://
thinkimmigration.org/blog/2019/09/16/due-process-disaster-in-the-
making-a-firsthand-look-at-the-port-courts-in-laredo-and-brownsville/.
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During the week of September 16, representatives from AILA, the
National Immigrant Justice Center, Women's Refugee Commission, and
Amnesty International attempted to observe proceedings inside the
facilities and were denied entrance by ICE officers and/or contractors.
Some officers indicated that the denial of access was due to orders
from ICE headquarters, and others indicated that CBP was responsible.
Following the September visit, AILA sent a letter to DHS, ICE, CBP,
DOJ, and EOIR requesting information about the tent courts and access
to the tent court, to which DHS has not responded.\18\
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\18\ AILA Sends Letter Requesting Information and Access to Port
Courts, AILA Doc. No. 19092600 (September 26, 2019), available at
https://www.aila.org/port-courts-letter.
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Prior to AILA representatives traveling to Brownsville last week,
AILA once again contacted CBP and ICE to request access to the tent
facilities. ICE indicated that CBP controlled all access to the tent
courts, and that they did not have a contact at CBP that could help
AILA request access. Despite several phone calls and emails to CBP over
a 14-day period leading up to the delegation's trip, AILA only received
a reply from CBP the day before AILA representatives were scheduled to
visit the tent facilities. CBP denied access to AILA and stated that
the ``facility is not available for in-person public access at this
time.''\19\
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\19\ AILA Sends Letter to Congress Demanding Public Access to Tent
Courts, AILA Doc. No. 19111233 (November 12, 2019), available at
https://www.aila.org/advo-media/aila-correspondence/2019/aila-sends-
letter-to-congress-demanding-public.
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Observing Remain in Mexico hearings from the court locations where
the judges are sitting is not an adequate substitute for being allowed
to access the tent facilities holding the migrants. Observation from a
courtroom that is hundreds of miles away from the actual location of
the proceedings will not provide meaningful comprehension of how
proceedings are operating from the migrant's point of view.
Furthermore, remote observers will not be able to bear witness to any
rights violations that may occur when the video teleconference system
is malfunctioning or shut off.
inaccurate and incomplete notices to appear in remain in mexico cases
Notices to Appear (NTAs) issued by DHS in Remain in Mexico cases
have contained inaccurate information, including incorrect hearing
locations and inaccurate addresses for migrants. One NTA even listed
``Facebook'' as the respondent's address.\20\ Additionally, some NTAs
are incomplete and fail to specify whether the respondent is being
charged as an ``arriving alien,'' an ``alien present in the United
States who has not been admitted or paroled,'' or an alien ``admitted
to the United States'' who is removable. These charges on the NTA are
vital to the proceedings because they impact the legal recourses
available to the migrant. Despite these serious problems, DHS still
pushes for immigration judges to order individuals subject to Remain in
Mexico removed in absentia. Immigration judges have also said that DOJ
has instructed them to order those who do not appear at their hearing
to be removed in absentia.\21\
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\20\ Adolfo Flores, Border Patrol Agents Are Writing ``Facebook''
As A Street Address For Asylum-Seekers Forced To Wait In Mexico,
Buzzfeed News (September 26, 2019), available at https://
www.buzzfeednews.com/article/adolfoflores/asylum-notice-border-appear-
facebook-mexico.
\21\ Gaby Del Valle, Trump's Remain in Mexico Policy Is Causing
Asylum-Seekers to Miss Court Dates--and Get Deported, Vice News
(September 24, 2019), available at https://www.vice.com/en--us/article/
gyzdp9/trumps-remain-in-mexico-policy-is-causing-asylum-seekers-to-
miss-court-dates-and-get-deported.
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documents falsely indicating a future hearing date
CBP has sent people who have been granted asylum back to Mexico
with documents that falsely indicate that they have an upcoming court
hearing.\22\ The Mexican government has stated that it will not accept
people whose cases have been decided and who do not have a future
hearing date. This has also happened to migrants who had their cases
terminated--meaning a judge closed the case without making a formal
decision, usually on procedural grounds. In addition to the safety and
due process problems that these fake hearing dates pose, they also pose
logistical hurdles, including questions around how and when the
migrants will return to the United States.
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\22\ Gustavo Solis, CBP agents wrote fake court dates on paperwork
to send migrants back to Mexico, records show, The San Diego Union-
Tribune (November 7, 2019), available at https://
www.sandiegouniontribune.com/news/immigration/story/2019-11-07/cbp-
fraud.
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dhs should immediately end remain in mexico and the use of tent courts
Given the deeply troubling nature of the Remain in Mexico policy
and its implementation, as well as the potential life-or-death
consequences for the migrants, AILA urges DHS to end the Remain in
Mexico program and the use of tent courts.
______
Report From American Friends Service Committee
between walls: asylum seekers under the migrant protection protocols
Full original report available in Spanish at afsc.org/saveasylum
Executive Summary
Migrants traveling through Mexico intending to seek asylum in the
United States are being forced to wait out the duration of their asylum
process in Mexico under the Migrant Protection Protocols (MPP)
established by the United States Government.
Because of a lack of transparency, the exact numbers of asylum
petitioners returned to Mexico is unknown. Nevertheless, several
sources have suggested that between January and August 2019, the number
of asylum seekers made to remain in Mexico ranged anywhere between
31,000 to 35,000. In the case of Baja, California, it is estimated that
up until October the number of petitioners who were returned reached
13,000.
Returning people who are requesting asylum under the MPP program to
Mexico creates a tremendous challenge for civil organizations at the
U.S.-Mexico border and Government authorities. Poor shelter conditions
and lack of economic support previously provided by past Government
through migrant funds are key causes of the challenges faced.
The returnee population under MPP finds themselves bewildered,
desperate, and uncertain over what the future holds. Additionally, they
live with fear of what could happen to them in Mexican territory
because they have been victims of organized crimes and law enforcement.
Some migrants have been robbed, extorted, kidnapped, and sexually
assaulted during their journey and stay in Mexico. Their fear is
justified.
Migrants have no safety net or support. Their lack of familiarity
with the cities they are being returned to in Mexico and the inability
to guarantee employment that will allow them to satisfy necessities
like shelter and food leaves them incredibly vulnerable. They are also
unaware of the asylum process and have access to little or no legal
advice allowing them to continue the process.
As a result, the Coalition of Immigrant Defense, with the support
of American Friends Service Committee, regional Latin America and
Caribbean office (AFSC LAC) in collaboration with the National
Commission of Human Rights, have taken initiative to develop a report
that documents the experiences of the population returned under MPP
from the United States through Baja California, characterized through
profiles, conditions, necessities, and expectations. This report also
seeks results in the proposal of care and protection options for the
population that has migrated to the northern border states of Mexico.
A survey was applied to a sample of 360 applicants returned under
the Migrant Protection Protocols (MPP) in 15 shelters in Tijuana and
Mexicali, during the period from July to August 2019. This survey was
supported with semi-structured interviews of key respondents.
The results show that the returnee population is made up of a
slight majority of women, but there are also families. Five out of 10
people surveyed are between 19 and 35 years old. Seven out of 10 have
completed only the most basic levels of study (primary and secondary).
An important fact is that 7 out of 10 did have some form of employment
in their country, but they fled because of insecurity and low wages. It
should be noted that a significant number of people come from rural
areas. At least half left their country because of the violence and
dangers they were facing, but there were also applicants who fled for
political reasons and domestic violence.
More than 90 percent have never applied for asylum in the United
States and 80 percent are unaware of the legal procedures and lack the
legal representation that allows them to prepare their cases. The
majority also do not consider seeking legal advice because they cannot
afford it. Only 15 percent are aware of the need for legal advice and
plan to use those services.
Eight out of 10 respondents who had been held in detention centers
in the United States talked about the lack of respect for human dignity
in these facilities. For 80 percent of returnees, the food was
insufficient and of poor quality, and 7 out of 10 cited overpopulation.
Nine out of 10 returnees were granted credible fear interviews by
the U.S. Government, but 12 percent of people surveyed were not
interviewed. More than 80 percent of people surveyed stated that their
only interaction with U.S. agents was signing documents, which were
usually not in Spanish.
Returnees are in a situation of extreme vulnerability; they don't
know anyone, nor do they have personal contacts that provide
humanitarian support. A significant percentage of the people surveyed
consider that the Mexican population discriminates against them, so
they are worried about staying in places where they do not have
personal contacts or social networks.
Many applicants returned under these protocols have given up on the
process and decided to return to their countries of origin despite the
risks this represents. But this was due in large part to the lack of
legal representation, uncertainty, and fear of having to stay in Mexico
for an undefined amount of time. Approximately half will have to wait
for 1 to 3 months, and 40 percent will have to wait for 3 to 6 months.
Irregularities that violate due process are also committed in the
return process. A third of the returnees who were in the detention
centers were not notified that they would be returned to Mexican
territory. Many applicants were not returned through the same city
where the proceedings began and a quarter suffered family separation,
violating international treaties.
In the process of returning to Mexico, the monitoring of returnees
is irregular, and their personal security is not guaranteed. The
Mexican authorities must respect and protect those who apply for
asylum, as they committed to in agreements with the United States, but
the practices show otherwise. Two-thirds of people surveyed were not
approached by the Mexican authorities to interview them. Half of the
returnee applicants had information about the existence of shelters in
the cities where they were returned, but more than 90 percent had to go
on their own because the authorities did not provide adequate support
or guidance.
The expectations of these people are uncertain. Sixty percent say
they will wait as long as necessary to carry out their process, while
the remaining 40 percent say they will only wait a few months.
As for what will happen if they fail to gain access to asylum, half
of the people surveyed do not have an action plan, a third will ask for
refuge in Mexico, and 20 percent will be obliged to return to their
country of origin.
______
Statement of the American Immigration Council
November 19, 2019
The American Immigration Council (``Council'') is a non-profit
organization that has worked to increase public understanding of
immigration law and policy--and the role of immigration in American
society--for over 30 years. We write to thank the subcommittee for
scheduling this hearing to discuss the so-called Migrant Protection
Protocols (``MPP'') and their impact on asylum seekers and on the rule
of law in the United States.
Since MPP was first announced, the Council has sought to draw
attention to this dangerous and unlawful program. We have documented
the risks that asylum-seeking families face in Mexico. We have visited
the border to talk to people who have been sent back to Mexico,
observed MPP court hearings in El Paso and Harlingen, and participated
in briefings on MPP. Today, we write to highlight our experience with
the problems that MPP has created both for asylum seekers and for the
system of humanitarian protections that has existed in the United
States for decades.
We also write to elevate the voices of people who have been subject
to MPP, through the stories of Lucia, Camila, and Rosalia,\1\ mothers
currently detained in the South Texas Family Residential Center
(``STFRC'') in Dilley, Texas. We hope that our experience with these
issues may provide the subcommittee with additional insight and context
to inform this debate.
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\1\ Given the sensitivity of the issues discussed, we have given
these mothers pseudonyms. Their stories were collected through the
Council's presence at Dilley through the Dilley Pro Bono Project.
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mpp has placed tens of thousands of vulnerable people at significant
risk of harm in mexico
When MPP was first announced on December 20, 2018, the Council
immediately had serious concerns about the prospect of requiring
vulnerable families to wait in Mexico. In response to the announcement,
through our partnership in the Dilley Pro Bono Project, we undertook a
study of 500 asylum-seeking mothers who were then detained at the
STFRC. We asked the mothers whether they had been afraid for their
lives in Mexico and whether they or their family had faced harm in
Mexico during the journey to the United States. Our study showed
conclusively that Mexico was not a safe place for asylum-seeking
families to wait months at the border:
90.3 percent of respondents said that they did not feel safe
in Mexico.
46 percent of respondents reported that they or their child
experienced at least one type of harm while in Mexico.
38.1 percent of respondents stated that Mexican police
mistreated them.
Nearly 30 percent of mothers reported that they had been robbed in
Mexico on their way to the United States, while 17 percent reported
that a member of their family had been physically harmed while
traveling to the border. Widespread corruption among Mexican law
enforcement officers also amplified fears held by the mothers, as 28
percent expressed that a Mexican official had demanded a bribe, and 9.5
percent reported that a Mexican official had threatened them with
physical harm at some point during the journey to the border.
The Council, along with the American Immigration Lawyers
Association (AILA) and the Catholic Legal Immigration Network (CLINIC),
sent a letter to then-DHS Secretary Kirstjen Nielsen, detailing the
results of our study and urging her to abandon the plans to expand
MPP.\2\ Unfortunately, Secretary Nielsen did not heed our warning.
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\2\ Letter to The Honorable Kirstjen M. Nielsen, Secretary,
Department of Homeland Security, Substantial Evidence Demonstrating
Catastrophic Harms That Will Befall Migrants in Mexico with Continued
Implementation and Further Expansion of Migrant Protection Protocols,
Feb. 6, 2019, https://www.americanimmigrationcouncil.org/sites/default/
files/general_litigation/
letter_urges_sec_nielsen_end_migrant_protection_protocols_policy.pdf.
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One woman profiled in the letter, Concepcion,\3\ reported that she
was kidnapped and raped by a cartel member, who threatened to kill her
5-year-old child and sell his organs if she reported him to the police.
Two women, Aracely and Fatima, were kidnapped by Mexican police
officers and then sold to members of a cartel, who held them for ransom
in a stash house where they observed gang members torturing other
migrants. Another woman, Carolina, was extorted by men wearing Mexican
Federal police uniforms, who entered the house she was staying in and
demanded money. She observed them sexually assaulting another woman who
could not pay.
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\3\ These names are also pseudonyms.
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Since we sent our letter in February, other organizations have
documented the harms that occur to people subject to MPP. A study of
607 asylum seekers in Tijuana and Mexicali who had been sent back to
Mexico found that 23.1 percent of asylum seekers, and 21.9 percent of
asylum-seeking families, had ``been threatened with physical violence
while in Mexico as they await[ed] their immigration court dates.''\4\
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\4\ U.S. Immigration Policy Center, UC San Diego, Seeking Asylum:
Part 2 (Oct. 29, 2019), https://usipc.ucsd.edu/publications/usipc-
seeking-asylum-part-2-final.pdf, at 4.
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Similarly, the organization Human Rights First documented more than
340 instances of rape, kidnapping, extortion, and assault against
people in MPP through September 2019.\5\
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\5\ Human Rights First, Orders from Above: Massive Human Rights
Abuses Under Trump Administration Return to Mexico Policy, Oct. 1,
2019, https://www.humanrightsfirst.org/sites/default/files/
hrfordersfromabove.pdf, at 2.
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The stories of mothers currently detained at the STFRC highlight
the continued harms that people sent back under MPP face. These
extraordinary stories demonstrate the extreme harm that women and
children face after being sent back under MPP, and how USCIS's fear
screening process is patently inadequate.
lucia's story: the horrific consequences of mpp--violations of cbp
policy and inadequate fear screenings lead to a nightmare for a mother
and her daughter
Lucia is a mother from Ecuador who first sought asylum at the
Nogales, Arizona port of entry in July, 2019 along with her 9-year-old
daughter, who is deaf and mute. When she attempted to request asylum,
Customs and Border Protection (CBP) officers physically prevented her
from entering, grabbing her and her daughter and dragging them away
from the port of entry. A kind stranger bought her a bus ticket to
Mexicali, where they again sought asylum. This time, she was permitted
to enter and begin the asylum process.
After 3 days in CBP custody, Lucia and her daughter were returned
to Mexicali to wait for an MPP hearing on August 23, 2019 in Tijuana.
This occurred even though Lucia's daughter is deaf and mute and should
have been exempt from MPP as a vulnerable individual in ``special
circumstances.''
After Lucia and her daughter were returned to Mexico, they briefly
found a shelter in which to stay but were forced to leave when the
shelter demanded payment, which Lucia could not pay. A man, ``Chino,''
offered to let her and her daughter live with his family and do
domestic work for pay. However, when Lucia and her daughter went to his
house, they learned he lived alone. He locked them in the house and
left a huge dog outside the door. Chino forced Lucia to do all of his
housework and did not pay her. He kissed Lucia's daughter and
inappropriately touched her sexually. Chino only let Lucia attend her
court hearing on August 23 after Lucia asked a friend for help through
the window. This friend begged Chino to let Lucia go. Chino threatened
to kill Lucia and her daughter if she did not return after the court
hearing.
Terrified for her life, at the court hearing on August 23, Lucia
begged to be taken out of MPP to protect herself and her daughter. But
despite having been kidnapped and sexually assaulted in Mexico, Lucia
did not pass USCIS's fear interview and was sent back to Mexico a
second time to await a new court hearing.
As before, Lucia and her daughter were sent back under MPP even
though they should have been exempt from MPP because Lucia's daughter
is deaf and mute. In direct violation of the MPP guiding principles,
CBP officers sent them back to Mexico anyway. This time, the
consequences were even more severe. Just a few blocks from the port of
entry in Tijuana, men with knives stopped Lucia and her daughter and
abducted them.
Lucia describes the horrors that followed:
``The men drove us in a car overnight. They took us to a place that I
believe was Hermosillo, Mexico and kept us there for 13 days. They
didn't give us food or water. They tied my daughter up in a sheet so
she could not move. They beat us repeatedly. They took off all of our
clothes, touched us sexually, raped us, and masturbated in front of us.
They often would not let us go to the bathroom. When they did let us,
they would grab us and walk us to the bathroom and we would have to go
in front of them. The men told me that I did not have rights because I
am Ecuadorian, called me a dog and trash, and said they would light me
on fire.''
During the time Lucia and her daughter were subjected to this
horrific ordeal, her kidnappers extorted thousands of dollars from
family members in the United States under threat of her death. When her
family managed to pay, the kidnappers drove Lucia and her daughter to
the border. They took Lucia's daughter into their hands and dragged her
over the border wall. They then demanded that Lucia cross as well or
the men would abandon her daughter in the desert. Lucia climbed over
the wall but injured herself doing so.
Immigration officials eventually found Lucia and her daughter and
took them to the STFRC after she begged that they not be taken back to
Mexico. At the STFRC, she learned she had been given a deportation
order because she missed her second court date while she was kidnapped.
She is currently seeking to reopen her case. The experience has utterly
traumatized her daughter:
``My daughter's emotional state has completely changed since these
terrifying experiences. She stays in our room and cries. She does not
want to go to school. She thinks that everyone is going to abuse her.
She is very afraid to return to Ecuador or Mexico.''
camila's story: homelessness, vulnerability, and an attempted
kidnapping lead to a family missing court
Camila is a mother from El Salvador who, along with her 14-year-old
son, fled death threats in her home country to seek asylum in the
United States. In July 2019, Camila and her son sought asylum after
crossing the Rio Grande river into El Paso, TX. Camila was sent back to
Ciudad Juarez along with her son and told to wait 3 months for a
hearing on October 7.
After being sent back to Ciudad Juarez, Camila and her son faced
homelessness. She describes the dangerous instability they faced over
the next 3 months as they waited for their court hearings:
``My son and I were very afraid in Ciudad Juarez and had nowhere to go.
We slept outside of gas stations or in the bus station. I never slept
well because of how dangerous it was. I told my son to sleep and would
stay awake watching. After a week, we met a woman who said we could
come to her house at night to sleep. We had to be in the street during
the day. Three times, we were robbed of the little money we had. We
were dependent on people giving us food or very small amounts of money
for working at a taco stand or cleaning a house. We often went
hungry.''
On October 7, Camila and her son called a cab to take them to the
port of entry, where they were required to arrive far before dawn.
After a long time driving in the dark, Camila became afraid. As it got
closer to dawn, Camila realized they were nowhere near the port of
entry. When she asked the driver what was going on, he told her ``not
to ask questions or yell or else he would hurt [Camila] or [her] son.''
After driving for a long time, the taxi driver parked outside of a
house and ran off. Camila and her son immediately took the opportunity
to flee. After walking for a long time, they found themselves near the
border and encountered Mexican police officers. Camila describes what
happened next.
``I found Mexican police officers in the street and told them what had
happened to me. The police laughed and told me that I was an immigrant,
so if I wanted to cross the border, why didn't I just go do that. They
did not write down my report or offer to investigate my case.''
Camila and her son eventually made their way to the port of entry
later in the day on October 7, where she was told that she had missed
her court date and had been ordered removed in absentia.
Camila and her son were then taken into CBP custody, where they
were held for a staggering 18 days in total. She states that ``we were
treated worse than animals'' and that she was frequently separated from
her son. Only on the last 3 days in custody was she allowed to be in
the same cell as her son. In late October, they were transferred to the
STFRC to be deported. Camila is currently seeking to reopen her case.
rosalia's story: language problems, vulnerability, hunger, and how
transportation problems and cbp's requirement to arrive at court at
3:30 am led to a family missing court
Rosalia is a mother from Guatemala who, along with her 2-year-old
daughter, fled her country to seek asylum in the United States.
Rosalia's first language is Mam, and she does not speak Spanish
fluently. In June, 2019 Rosalia and her daughter arrived at the
Calexico port of entry, where they requested asylum.
After 2 days in CBP custody, Rosalia and her daughter were sent
back to Mexicali with a notice to appear for court in Tijuana on
October 7, telling her she needed to arrive at 3:30 AM. Although they
had arrived at the port of entry with a suitcase full of clothing, CBP
officers confiscated the suitcase, leaving them without any spare
clothing or the rest of their belongings.\6\
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\6\ The Office of Inspector General has documented similar
practices of CBP disposing of people's belongings at the El Paso Del
Norte Processing Center, see Dep't of Homeland Security, Office of
Inspector General, Management Alert--DHS Needs to Address Dangerous
Overcrowding Among Single Adults at El Paso Del Norte Processing Center
(Redacted), May 30, 2019, https://www.oig.dhs.gov/sites/default/files/
assets/2019-05/OIG-19-46-May19.pdf, at 6.
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For days after Rosalia and her daughter were released, they were
barely able to obtain food to eat and experienced near-starvation, to
the point that Rosalia was afraid her daughter would die. She describes
the agonizing situation after being sent back under MPP:
``I had no money but I found a migrant shelter that allowed us to stay
there for 3 nights for free. They then started to charge 35 pesos per
night. A woman gave me 50 pesos, which I used for the shelter. I wanted
to buy food but I was afraid that my daughter would be harmed if we
slept in the street. My daughter barely ate for 3 days. Sometimes
people would give us cookies, but I had nothing else to give her. She
was sick and weak and cried a lot. Sometimes she fainted.''
``I was afraid that she would die. After 3 days, I was able to call my
sister, who was planning on receiving me here in the United States. She
sent me a little money for food.''
For the next 4 months, Rosalia lived in the shelter in Mexicali,
waiting for their October court date. She lived the entire time in fear
of being kidnapped. Men followed her every time she left the shelter to
get groceries and would ask her to go with them. Others in the shelter
told her those men would force her into prostitution if she went with
them.
On the day before her hearing, Rosalia and her daughter went to the
bus station in Mexicali to take a bus to Tijuana. Because the first bus
was full, she had to wait for a second bus. Unfortunately, this meant
she arrived at the Tijuana port of entry at 4 o'clock AM, not 3:30 AM.
Because Rosalia and her daughter arrived half an hour late, the CBP
officers told her it was too late for her to go to court. A CBP officer
told her that he would contact the judge to reschedule a court date and
told her to come back on October 10. When she returned 3 days later,
the CBP officers told her there was nothing they could do and told her
to go away.
Desperate, afraid, and unsure what to do, Rosalia and her daughter
crossed between ports of entry a week later. They turned themselves in
to Border Patrol officers and asked for asylum again. She was
eventually transferred to SFTRC, where she received a reasonable fear
interview. She is currently waiting for an immigration judge to review
the decision she received.
mpp does damage to the rule of law and must be ended
As the stories of Lucia, Camila, and Rosalia show, MPP actively
prevents asylum seekers from having their day in court, exposes
families and children to homelessness and hunger, and puts them at
grave risk of harm.
Lucia's story demonstrates the most extreme problems with MPP. CBP
repeatedly violated its procedures by sending her and her daughter back
under MPP, given her daughter's clear medical problems. CBP violated
this ``guiding principle'' of MPP both when it sent her back the first
time and when it sent her back after her first court hearing. In
addition given that Lucia and her daughter were sent back to Mexico
after they had already been kidnapped and sexually assaulted there
certainly calls into question the adequacy of the fear screening. The
fact that Lucia was then ordered removed for missing a hearing that she
could not attend because she had been kidnapped a second time
demonstrates the way that MPP interferes with people's opportunities to
have a day in court.
Camila's story demonstrates the ways in which people in MPP are
often forced into homelessness for months at a time as they seek
asylum. It also shows how the dangers in Mexico, including kidnappings,
prevent people from attending their court hearings, which often leads
to an order of removal in absentia. Further, it demonstrates how
Mexican police have often failed to provide protection for vulnerable
asylum seekers.
Rosalia's story demonstrates the ways that MPP strips people of
opportunities and puts them at risk even when they are not the victims
of violence. Although Rosalia was not the target of physical harm in
Mexico, she did not have food for several days, causing her daughter to
faint repeatedly. She also missed her 3:30 AM court hearing, despite
efforts to appear on time.
America has always provided refuge for those seeking to flee
persecution. But with MPP, our Government has abandoned the basic
principles of humanitarian protection that are enshrined in our laws
and damaged the ideals of due process that underly our system of
justice. As these stories show, even people who are desperately trying
to follow all of the Government's rules find themselves unable to do so
because of the dangerous conditions resulting from MPP.
In light of the foregoing facts, we urge the subcommittee to take
steps to end this dangerous and ill-advised program. We thank you for
the opportunity to submit this statement, and for the subcommittee's
efforts to engage in a thoughtful conversation.
______
Statement of Amnesty International
November 18, 2019.
Rep. Kathleen Rice,
Chair, House Homeland Security Committee, Subcommittee on Border
Security, Facilitation, and Operations.
Rep. Clay Higgins,
Ranking Member, House Homeland Security Committee, Subcommittee on
Border Security, Facilitation, and Operations.
RE: Amnesty International Statement for Hearing on ``Examining the
Human Rights and Legal Implications of DHS's `Remain in Mexico'
Policy''
On behalf of Amnesty International USA and our members and
supporters in the United States, we hereby submit this statement for
the record. Amnesty International is an international human rights
organization with national and regional offices in more than 70
countries, including in the United States. A top priority of our
organization is the human right to seek asylum at the Mexico/U.S.
border.
Amnesty International is alarmed by the human rights violations
inherent in the misleadingly named ``Migrant Protection Protocols''
(MPP), informally known as ``Remain in Mexico.'' Since January, nearly
60,000 people have been forcibly returned to Mexico under the
program.\1\ The program has made a mockery of the right to seek asylum
as enshrined in domestic and international law, forcibly returned tens
of thousands of individuals to potential grave danger, and operated
with a dangerous lack of transparency.
---------------------------------------------------------------------------
\1\ Molly O'Toole, ``Asylum Officers Revolt Against Trump Policies
They Say Are Immoral and Illegal,'' L.A. TIMES, Nov. 15, 2019, https://
www.latimes.com/politics/story/2019-11-15/asylum-officers-revolt-
against-trump-policies-they-say-are-immoral-illegal.
---------------------------------------------------------------------------
In this statement, we wish to share some of our gravest and most
immediate concerns about the policy. We thank the subcommittee for
holding this important hearing and hope it is the first of several
oversight efforts by Congress of this dangerous and unlawful program.
mpp violates the right to seek asylum
The concept of territorial asylum--the ability of people seeking
refuge at U.S. borders to request protection here--is a bedrock
principle of international and domestic law. Under the 1951 Convention
Relating to the Status of Refugees and its 1967 Protocol, the latter of
which the United States has signed and incorporated into domestic law
through the 1980 Refugee Act,\2\ governments must not forcibly return
individuals to a place where they would fear persecution--not just
their countries of origin, but any other place where a person would
face risk of serious harm.\3\ To ensure this obligation is met, the
U.S. Government has codified in domestic law the right to seek asylum
both at and between ports of entry along the U.S. border.\4\
---------------------------------------------------------------------------
\2\ See text of 1980 Refugee Act, available at https://
www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf.
\3\ Amnesty International, ``Halt the `Remain in Mexico' Plan,''
April 15, 2019, https://www.amnesty.org/en/documents/amr51/0172/2019/
en/.
\4\ 8 U.S.C. 1158.
---------------------------------------------------------------------------
Historically, people seeking asylum at the border were given the
opportunity to articulate a ``credible fear'' of return to their home
countries; if they established such a fear, they were placed into
removal proceedings and allowed to apply for asylum and related
protections from within the United States, based on their fear of
return to their countries of origin.\5\
---------------------------------------------------------------------------
\5\ 8 U.S.C. 1182.
---------------------------------------------------------------------------
MPP has upended this process by instead forcibly returning people,
including asylum seekers, to dangerous and precarious situations in
Mexico for the duration of their asylum proceedings, which can last
several months, if not years. Only after these individuals win relief
are they allowed to enter United States--and even after they win
relief, the Government frequently sends them back to Mexico, reportedly
by falsifying court documents.\6\
---------------------------------------------------------------------------
\6\ Gustavo Solis, ``U.S. border agents wrote fake court dates on
paperwork to send migrants back to Mexico,'' Nov. 7, 2019, L.A. TIMES,
https://www.latimes.com/world-nation/story/2019-11-07/u-s-border-
agents-wrote-fake-court-dates-on-paperwork-to-send-migrants-back-to-
mexico.
---------------------------------------------------------------------------
MPP appears designed to discourage individuals from seeking asylum
by making it as difficult as possible to do so.\7\ Not only are asylum
seekers exposed to grave harm as they await their proceedings in Mexico
(as described in greater detail below), but they are also effectively
cut off from legal services essential to securing relief.
---------------------------------------------------------------------------
\7\ Jason Kao and Denise Lu, ``How Trump's Asylum Policies Are
Leaving Thousands of Asylum Seekers Waiting in Mexico,'' N.Y. TIMES,
Aug. 18, 2019, https://www.nytimes.com/interactive/2019/08/18/us/
mexico-immigration-asylum.html.
---------------------------------------------------------------------------
In one study, asylum seekers who appeared with attorneys were found
to be 5 times as likely to obtain relief as those who represented
themselves.\8\ Yet, because MPP maroons asylum seekers far from legal
service providers, only between 1-2 percent of returnees are
represented by counsel.\9\ Because of restrictions on who may access
new, secretive tent courts built at ports of entry, people subject to
MPP are not able to access basic legal orientations and thus lack even
minimal information about their proceedings. These hurdles make asylum
all but impossible to access.
---------------------------------------------------------------------------
\8\ Asylum Representation Rates Have Fallen Among Rising Denial
Rates,'' TRAC Immigration, available at https://trac.syr.edu/
immigration/reports/491/ (last accessed Nov. 18, 2019).
\9\ See ``Details on MPP (Remain in Mexico) Deportation
Proceedings,'' available at https://trac.syr.edu/phptools/immigration/
mpp/ (last accessed Nov. 18, 2019).
---------------------------------------------------------------------------
mpp returns people seeking safety to harm's way
By returning vulnerable individuals to some of the most dangerous
places along the Mexico/U.S. border, MPP has directly resulted in
grievous harms--including kidnappings, sexual assaults, extortion
attempts, and other violent attacks--against people seeking protection.
As of October 1, 343 individuals subjected to MPP had reportedly faced
violent attacks or threats in Mexico, including on their way to their
court dates in the United States.\10\ Service providers working with
MPP returnees have reported that anywhere from ``half'' \11\ to ``over
70 percent'' \12\ of individuals they've worked with have described
facing serious harm in Mexico. These include:
---------------------------------------------------------------------------
\10\ Human Rights First, ``Orders From Above: Massive Human Rights
Abuses Under Trump Administration's Return to Mexico Policy,'' Oct. 1,
2019, available at https://www.humanrightsfirst.org/resource/orders-
above-massive-human-rights-abuses-under-trump-administration-return-
mexico-policy.
\11\ Mireya Villareal, ``An Inside Look at Trump's `Remain in
Mexico' Policy,'' CBS NEWS, Oct. 8, 2019, https://www.cbsnews.com/news/
remain-in-mexico-donald-trump-immigration-policy-nuevo-laredo-mexico-
streets-danger-migrants-2019-10-08/.
\12\ Conversation with legal services provider in Laredo, Texas
(Sept. 16, 2019).
---------------------------------------------------------------------------
A female asylum seeker from Honduras: ``[The Federal police]
asked me what nationality I was, I told them I was from
Honduras then they say: `Come with me.' They grab my head, bend
me over, and take me out of the house and put me in a black
car. They covered my eyes with gray tape.'' She was kidnapped
by the police for ransom and raped multiple times. She stated
that although her eyes were covered with tape, she managed to
see because her tears soaked through the glue.\13\
---------------------------------------------------------------------------
\13\ ``Secuestraron Federales a Migrante Hondurena [Honduran
Migrant Kidnapped by Federal Police],'' El Diario, June 18, 2019,
https://www.eldiariodechihuahua.mx/estado/secuestraron-Federales-a-
migrante-hondurena-20190618-1528964.html.
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A male asylum seeker from El Salvador traveling with his
baby daughter: ``I was kidnapped in Mexico while waiting to
come to court. We were headed to court over here. But we got
stopped. They pulled us down. Mexican patrol cars were there, I
thought they would help us. But they kidnapped us for 3 days.
They let me go because of my family, because I didn't have any
money, but I don't know what happened to the other men.''\14\
---------------------------------------------------------------------------
\14\ Remote observation of court proceedings in San Antonio, Texas
(from the Laredo, Texas port of entry) (Sept. 17, 2019).
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These stories of harm are so commonplace that one attorney who
works with returnees in Matamoros commented to Amnesty International
that ``for people returned under the program, it's not a question of if
they'll get kidnapped--it's a question of when.''\15\ The Mexican State
of Tamaulipas, which abuts south Texas, carries a ``Level 4--Do Not
Travel'' warning from the U.S. Department of State because of risks of
kidnapping and other violent crime by cartels.\16\ The forcible return
of tens of thousands vulnerable migrants and asylum seekers to this
area has constituted a veritable stimulus package for cartels operating
in this region, which routinely kidnap returnees and extort their
families for ransom, in some cases preventing them from being able to
appear in court.\17\ Yet, despite these documented harms, immigration
judges have publicly stated that they are pressured to issue in
absentia removal orders in every instance in which an MPP returnee does
not appear.
---------------------------------------------------------------------------
\15\ Conversation with legal services provider in Brownsville,
Texas (Oct. 23, 2019).
\16\ ``Mexico Travel Advisory,'' U.S. Dep't of State, https://
travel.state.gov/content/travel/en/traveladvisories/traveladvisories/
mexico-travel-advisory.html (last accessed Nov. 18, 2019).
\17\ Emily Green, ``Trump's Asylum Policies Sent Him Back to
Mexico. He was Kidnapped Five Hours Later,'' VICE NEWS, Sept. 16, 2019,
https://www.vice.com/en_us/article/pa7kkg/trumps-asylum-policies-sent-
him-back-to-mexico-he-was-kidnapped-five-hours-later-by-a-cartel.
---------------------------------------------------------------------------
Even those returnees who have faced grave harm are typically unable
to escape from MPP once they are placed in the program. Though the
Department of Homeland Security (DHS) has instituted a fear-of-return-
to-Mexico screening as part of MPP, called a ``non-refoulement
interview,'' in practice, these screenings are a sham. First, they are
available only to those individuals who affirmatively manifest a fear
of harm in Mexico, violating a threshold principle of non-refoulement
that all individuals must be screened for fear of harm in a given place
before being forcibly sent there. Furthermore, the threshold is
exceedingly high--higher than the showing required to win asylum on the
merits.\18\ Asylum officers have spoken openly about how they are
pressured to issue negative determinations, even when they believe
returnees will be subject to grave harm in Mexico.\19\ Returnees have
described how these interviews are cursory, in some cases lasting no
more than 10 minutes.\20\ Even those few returnees who have lawyers are
generally unable to bring those attorneys to these interviews.\21\
Returning asylum seekers to any country without an adequate screening
process is a flagrant violation of the U.S. obligation against
refoulement.
---------------------------------------------------------------------------
\18\ Dep't of Homeland Security, ``Migrant Protection Protocols,''
Jan. 24, 2019, https://www.dhs.gov/news/2019/01/24/migrant-protection-
protocols.
\19\ Molly O'Toole, ``Asylum Officers Revolt Against Trump Policies
They Say Are Immoral and Illegal,'' L.A. TIMES, Nov. 15, 2019, https://
www.latimes.com/politics/story/2019-11-15/asylum-officers-revolt-
against-trump-policies-they-say-are-immoral-illegal.
\20\ Conversation with legal services provider in Harlingen, Texas
(Sept. 20, 2019).
\21\ ACLU of San Diego & Imperial Counties, ``Class-Action Lawsuit
Demands Access to Legal Representation for Detained Migrants Who Have
Expressed a Fear of Being Returned to Mexico,'' Nov. 5, 2019, https://
www.aclusandiego.org/aclu-asylum-seekers-subject-to-trumps-remain-in-
mexico-policy-must-be-given-access-to-counsel/. On Nov. 14, 2019, a
district court issued a temporary restraining order requiring a
Guatemalan family the ability to consult with counsel in preparation
for and during their non-refoulement interview. A hearing on whether
that holding will be expanded to all MPP returnees will take place in
December. See ACLU of San Diego & Imperial Counties, ``Family Subjected
to MPP Will Not Be Returned to Mexico to Pursue Their Asylum Claim,''
Nov. 14, 2019, https://www.aclusandiego.org/family-subjected-to-mpp-
will-not-be-returned-to-mexico-to-pursue-their-asylum-claim/.
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Furthermore, returnees subject to MPP routinely face homelessness
due to the lack of available shelter space and difficulty accessing
work, which further exposes them to risks of violent crime. Returnees
have reported having their identity documentation confiscated by
Customs and Border Protection (CBP) agents prior to return \22\ and are
not provided any identity documentation demonstrating their lawful
status in Mexico, potentially exposing them to potential detention and
deportation there. Without access to work or steady shelter, many are
relegated to living in precarious conditions, often in squalor, in
border shelters packed to the brim \23\ and in open-air tent camps.\24\
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\22\ Julia Love & Kristina Cooke, ``Asylum seekers say U.S.
officials returned them to Mexico but kept their IDs,'' REUTERS, May
31, 2019, https://www.reuters.com/article/us-usa-immigration-returns/
asylum-seekers-say-u-s-officials-returned-them-to-mexico-but-kept-
their-ids-idUSKCN1T115L.
\23\ Rebecca Plevin, ``Mexicali Residents Protest Shelter for
Asylum-Seekers Returned to Mexico Under U.S. Policy,'' USA Today, Oct.
15, 2019, https://www.usatoday.com/story/news/world/2019/10/15/
mexicali-protest-shelter-asylum-seekers-us-policy/3983901002/.
\24\ Nomaan Merchant, ``Tents, Stench, Smoke: Health Risks Are
Gripping Migrant Camp,'' ASSOCIATED PRESS, Nov. 14, 2019, https://
apnews.com/337b139ed4fa4d208b93d491364e04da.
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Finally, even individuals whose vulnerabilities should except them
from MPP are nevertheless placed in the program--including individuals
with disabilities,\25\ pregnant and nursing women,\26\ and Indigenous
language speakers.\27\ LGBTI+ identifying individuals are also placed
in the program, despite the well-documented risks of harm they face in
Mexico.\28\
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\25\ Human Rights Watch, ``Mexico: Risks at Border for Those with
Disabilities,'' Oct. 2019, https://www.hrw.org/news/2019/10/29/mexico-
risks-border-those-disabilities.
\26\ Rochelle Garza, ``Trump's War on Asylum-Seekers is Endangering
Pregnant Women,'' Oct. 3, 2019, https://www.aclu.org/blog/immigrants-
rights/trumps-war-asylum-seekers-endangering-pregnant-women.
\27\ Gustavo Solis, ``Trump Administration Appears to Violate Law,
Pushes Thousands to Mexico to Await Asylum Cases,'' L.A. TIMES, Aug.
28, 2019, https://www.latimes.com/politics/story/2019-08-28/trump-
administration-pushes-thousands-to-mexico-to-await-asylum-cases.
\28\ ``Julian Castro Helps LGBTQ Migrants Subject to Trump's Remain
in Mexico Policy,'' Oct. 7, 2019, L.A. TIMES, https://www.latimes.com/
politics/story/2019-10-07/julian-castro-helps-lgbtq-migrants-trump-
remain-in-mexico-plan-cross-border; Amnesty International, ``No Safe
Place,'' Nov. 2017, https://www.amnestyusa.org/wp-content/uploads/2017/
11/No-Safe-Place-Briefing-ENG-1.pdf.
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MPP Operates with a Chilling Lack of Transparency
A new and alarming expansion of MPP occurred in September, when the
U.S. Government opened secretive tent courts at the ports of entry in
Laredo and Brownsville, Texas, where proceedings take place entirely
via videoconference. DHS announced in August it would raid $155 million
of disaster relief funding to build these courts.\29\
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\29\ Amnesty International USA, ``Trump Administration Uses
Disaster Relief Funding to Fund a Disaster of Its Own Making,'' Aug.
27, 2019, https://www.amnestyusa.org/press-releases/trump-
administration-uses-disaster-relief-to-fund-a-disaster-of-its-own-
making/.
---------------------------------------------------------------------------
The tent courts are due process black holes in DHS's complete
control: Not a single public observer has been permitted to access the
tent courts to view proceedings taking place there, even though
immigration courts are generally required to be open to the public.\30\
Amnesty International has consistently requested access to the courts,
including multiple times in person in Laredo and Brownsville in
September and October. In September, an Amnesty International
delegation was told variously that the tent courts were a ``zero access
area, by order of the President of the United States,'' that attendees
would need to be ``vetted'' by CBP in order to access the courts, and
that the organization would be able to access the facilities for a tour
``in upcoming weeks.'' In October, Amnesty's formal request for access
went unanswered for weeks, until the organization was eventually told
that observation of proceedings would not be allowed, but that at some
future date, rights groups would be offered a tour. Two months since
the courts have opened, and despite repeated requests, neither Amnesty
International nor other rights groups have been granted access to the
courts.
---------------------------------------------------------------------------
\30\ 8 C.F.R. 1003.27.
---------------------------------------------------------------------------
This lack of transparency is chilling, especially considering that
individuals appearing at the tent courts are being sent to some of the
most dangerous areas along the Mexico/U.S. border and are likely to be
in particular need of immediate assistance. The closed-off nature of
these courts also means that asylum seekers are cut off from any kind
of legal orientation or assistance, as only attorneys who have entered
appearances in individual cases are permitted in the tent courts.
The tent courts exacerbate and compound existing problems with MPP:
Returnees appearing in tent courts face even more barriers to the full
and fair hearings to which they're entitled under law, particularly
given that judges are appearing via videoconference, sometimes from
hundreds of miles away. They are designed to keep asylum seekers away
from vital legal help and MPP proceedings out of the public eye. Unless
Congress moves to act, these secretive courts could represent the
future of asylum adjudication in the United States.
recommendations
Given the serious human rights violations occurring as a result of
MPP's continued operation, Amnesty International respectfully requests
that Congress:
Defund MPP in the fiscal year 2020 appropriations cycle.--
Congress must halt MPP in its tracks by ensuring that no
Federal funds are used to implement this unlawful program.
Amnesty International urges Congress to retain Section 534 of
H.R. 3931, the DHS Appropriations Act of 2020, which defunds
unlawful asylum programs, including MPP. Congress must also
demand a full accounting of the $155 million of disaster relief
funding it unlawfully reprogrammed toward the building of tent
courts along ports of entry and must ensure that no more such
courts are built.
Urge DHS and DOJ to allow public access to secretive tent
courts.--While MPP continues to operate, Congress must ensure
that the administration abide by its own obligations to ensure
that immigration proceedings are generally kept open to the
public. DHS must be held to account for its deliberate failure
to allow members of the public, including legal observers, to
access tent courts and observe proceedings taking place there.
Undertake Congressional delegations to areas where MPP is
actively in operation.--Amnesty International urges Members of
Congress to witness first-hand the human rights violations
taking place as a result of MPP, including proceedings taking
place in the secretive tent courts in south Texas and living
conditions in the tent camp in Matamoros and border shelters
along the Mexico/U.S. border.
For more information, please contact Charanya Krishnaswami,
Americas Advocacy Director[.]
Sincerely,
Charanya Krishnaswami,
Americas Advocacy Director, Amnesty International USA.
______
Statement of Cheasty Anderson, M.A., Ph.D., Senior Policy Associate,
Children's Defense Fund--Texas
Nov 18, 2019
For 20 years, Children's Defense Fund has worked to level the
playing field for all children in Texas who cannot vote, lobby, or
speak for themselves. We champion policies and programs that lift
children out of poverty, protect them from abuse and neglect, and
ensure their access to health care, quality education, and a moral and
spiritual foundation. We thank the subcommittee for the chance to
submit a statement on the Migrant Protection Protocols (MPP) policy.
We believe that the policies this administration has implemented
are illegal. They also deliberately exposing children and their
families to danger, and are actively causing additional trauma to
people already deeply traumatized. CDF-TX strongly believes that this
is not a policy that Congress should endorse, or even passively allow.
We urge this subcommittee to push for the immediate end to MPP, and to
demand that DHS return to admitting asylum seekers to the United States
while their applications are processed, in keeping with centuries of
historical practice.
mpp violates international and u.s. law
The United States, as a global leader, is expected to follow
international regulations regarding asylum seekers and refugees. As
parties to the 1967 U.N. Protocol on Refugees, and the U.N. Convention
Against Torture, the United States has a legal obligation to accept and
process asylum applicants. It also has an obligation to do so under its
own domestic law.
MPP violates the most basic right of non-refoulement. Though the
justification for MPP rests on the idea that asylum seekers would be
safe in Mexico, this is not the case. Numerous reports detail the
extreme vulnerability of those forced to remain in Mexico under MPP.
Kidnappings, murder, lack of access to medical care, and unsafe housing
are just the beginning of the numerous ways in which MPP forces asulym
seekers into conditions which they are fleeing.
MPP also violates U.S. laws and regulations. Customs and Border
Patrol is legally bound to provide special protections to groups
recognized as vulnerable. However, by participating in MPP, CBP is
knowingly sending children, pregnant women, sick people, and LGBTQ+
applicants back across the border, where they are vulnerable to
violence and persecution. Additionally, USCIS is not following their
obligations regarding due process. Ample evidence shows that applicants
are being hurried through rushed procedures with judges seeing upwards
of hundreds of cases per day. The number of negative decisions has
skyrocketed, while the basic profile of applicants has not changed. In
addition, USCIS has begun sending only positive (rather than negative)
decisions on for further processing by supervisors, in the hope of
overturning an applicant's positive credible fear interview decision.
What's more, USCIS credible fear policies have been changed, making it
much more difficult for an asylum seeker to pass their interviews.
These policies are, by design, making it almost impossible for an
asylum seeker to have an asylum claim accepted by the U.S. Government.
mpp exacerbates asylum seeker trauma
Numerous reports outline the trauma that MPP is creating. Asylum
seekers are being subject to kidnappings, violence, and deplorable
living conditions. MPP has created squalid camps on the Mexican side of
the border without providing the rights that asylum seekers and
refugees are legally entitled to. The people living in these camps have
no access to potable water, no stable shelter, and little access to
food. They are forced to wait months in order to have their first
interaction with the U.S. legal system, and frequently then asked to
wait months more for a second hearing with the court. Asylum seekers
are not showing up to their appointments at the courts, not because
they lack valid cases, but rather because they are forced to travel
many miles to present themselves before dawn at the border in order to
enter the United States. The administration creates unspeakable trauma
by denying asylum seekers safety, and then also asking them to
accomplish difficult feats with little to no resources. The Remain in
Mexico policy is another step the administration is taking to dismantle
the U.S.'s asylum system.
mpp undermines the values of our nation
This administration has been open about its intentions regarding
immigration, writ large, and asylum policy, as a subset of that
overarching goal to end immigration from poor countries. Stephen
Miller, the architect of the Trump administration's immigration policy,
has been transparent about his goal of ending legal immigration by any
means possible. But rather than working through the Congress to enact
policy changes in line with the administration's political goals, they
have instead ruled by fiat, bullying, and intimidating when necessary,
firing career leadership and replacing those leaders with political
ideologues, and tightening restrictions to the point of impenetrability
for those seeking asylum from danger and violence in their country of
origin.
In doing so, they have caused children and their parents to suffer
and to die. CDF-TX believes that the United States should be working to
protect children and vulnerable populations, no matter where they come
from. We urge the subcommittee to take the strongest possible action to
shut down MPP (and the host of attendant policies) as soon as possible,
and return us to a place of compassion and sanity in our treatment of
those seeking safety and security within our borders.
Thank you for your time, and for looking into this matter.
______
Statement of the Center for Victims of Torture
November 19, 2019
The Center for Victims of Torture (CVT) commends the House Homeland
Security Subcommittee on Border Security, Facilitation, and Operations
for holding an oversight hearing on the Trump administration's ``Remain
in Mexico'' policy, the implementation of which has acted as a catalyst
for the humanitarian crisis taking place at the U.S. Southern Border.
We appreciate the opportunity to submit this statement for the
record.\1\
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\1\ For questions or for more information about CVT's work in this
area and on related issues, please contact Andrea Carcamo, senior
policy counsel at the Center for Victims of Torture at
[email protected].
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Founded in 1985 as an independent non-governmental organization,
the Center for Victims of Torture is the oldest and largest torture
survivor rehabilitation center in the United States and 1 of the 2
largest in the world. Through programs operating in the United States,
the Middle East, and Africa--involving psychologists, social workers,
physical therapists, physicians, psychiatrists, and nurses--CVT
annually rebuilds the lives of more than 25,000 primary and secondary
survivors, including children. CVT also conducts research, training,
and advocacy, with each of those programs rooted in CVT's healing
services. The organization's policy advocacy leverages the expertise of
5 stakeholder groups: Survivors, clinicians, human rights lawyers,
operational/humanitarian aid providers, and foreign policy experts. The
vast majority of CVT's clients in the United States are asylum seekers.
Indeed, based on research studies the Department of Health and Human
Services Office of Refugee Resettlement estimates that 44 percent of
asylum seekers, asylees and refugees now living in the United States
are torture survivors.\2\
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\2\ Office of Refugee Resettlement. Survivors of Torture Program.
Retrieved from https://www.acf.hhs.gov/orr/programs/survivors-of-
torture.
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the ``remain in mexico'' policy exacerbates the trauma faced by
families fleeing persecution
A significant number of the Central American families who come to
the United States are survivors of torture,\3\ and many more are
fleeing persecution. Because of the nature of trauma, oftentimes
children who accompany traumatized parents experience symptoms as
secondary survivors (even if they have not been directly harmed
previously). These highly traumatized populations are particularly
vulnerable to harm and to becoming re-traumatized.
---------------------------------------------------------------------------
\3\ Meyer and Pachico (Feb 1, 2018). Washington Office on Latin
America. Fact Sheet: U.S. Immigration and Central American Asylum
Seekers. Retrieved from https://www.wola.org/analysis/fact-sheet-
united-states-immigrationcentral-american-asylum-seekers/.
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There are certain minimum requirements necessary for effective
rehabilitation for torture survivors and survivors of similarly
significant trauma, one of which is a felt-sense of safety.
Before the Trump administration took steps to end access to asylum
in the United States, many asylum seekers would be able to stay with
family and/or friends during the pendency of their immigration
proceedings after passing a credible fear interview. This would allow
them a modicum of stability and a chance at beginning the healing
process. The Migration Protection Protocols (``MPP'') achieve precisely
the opposite, placing asylum seekers in further danger, which
exacerbates their trauma.
According to a recent report from Human Rights First (HRF), ``[a]s
of November 19, 2019, there are at least 400 publicly-reported cases of
rape, torture, kidnapping, and other violent assaults against asylum
seekers and migrants forced to return to Mexico by the Trump
administration under this illegal scheme.''\4\ After visiting what has
become a migrant camp in Matamoros, HRF observed:
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\4\ https://www.humanrightsfirst.org/campaign/remain-mexico.
``More than 1,000 children, families, and adults are sleeping on the
streets in front of the Matamoros port of entry without adequate access
to water or proper sanitation, too afraid to enter the city because of
the extreme violence there. An American nurse, visiting as a volunteer,
told Human Rights First researchers that many of the children were
suffering from diarrhea and dehydration.''\5\
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\5\ https://www.humanrightsfirst.org/sites/default/files/
hrfordersfromabove.pdf.
Dr. Sondra Crosby, MD, a Physicians for Human Rights (PHR) medical
expert and associate professor of medicine and public health at the
Boston University School of Medicine and Public Health, made similar
observations after visiting Matamoros:\6\
---------------------------------------------------------------------------
\6\ https://phr.org/news/phr-statement-on-migrant-protection-
protocols/.
``As a medical professional, I am extremely alarmed by the unsafe,
unsanitary, and inhumane conditions in the large and growing migrant
encampment in Matamoros. This is a refugee camp in the making, mere
steps from the United States--but one with no form of medical services,
security, or reliable food and potable water supply for the more than
---------------------------------------------------------------------------
500 people living there.''
``The conditions I witnessed at the Matamoros encampment include:
Lack of access to medical care, including prenatal or
obstetric care;
Insufficient access to food and increasing risk of anemia
and malnutrition;
Inadequate access to clean, potable water, which places
pregnant women especially at increased risk of dehydration,
heat stroke, and diarrheal diseases;
Insufficient infrastructure, such as latrines, to ensure
basic sanitary conditions; and
Overcrowded living conditions in the open air that increase
the risk of infectious diseases (respiratory diseases, measles,
rubella, tuberculosis, and diarrheal diseases).
``While there are supposed to be certain protections for groups
that are in particularly vulnerable situations,'' she continued, ``what
I saw at Matamoros shows that this is not the case . . . No human being
should be subjected to these types of conditions.''\7\
---------------------------------------------------------------------------
\7\ https://phr.org/news/phr-statement-on-migrant-protection-
protocols/.
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family separation as a result of mpp
Women's Refugee Commission ``has received and confirmed numerous
reports of family separation through [Remain in Mexico]. This is
especially concerning given the danger involved to those returned to
Mexico, the difficulty in communicating or reunifying after such a
separation, and the additional potential risk of trafficking this
practice creates. The separation of families in this manner is a
violation of due process and presents both logistical and safety
issues.''\8\
---------------------------------------------------------------------------
\8\ file:///C:/Users/Andre/Downloads/Chaos_confusion_and-danger-
Remain-in-Mexico_1-.pdf.[sic]
---------------------------------------------------------------------------
This practice is cruel and will have long-lasting negative
consequences for families' health and well-being, especially children.
As Susan Jasko MSW, LICSW, a CVT therapist with over 20 years of
clinical experience working with children and families, has explained:
``When children are young, they are bonding with their parents, and
good bonding leads to positive relationships with other people in
adolescence and adulthood. Breaking that bond can have consequences in
the child's ability to socialize with others. When children come from
an area where they experienced violence, it teaches them that the world
is not safe. Then, when they are separated from their parent, this idea
is solidified, which can have a profound effect on the development of
the child. If a child lives in a state of trauma, as children fleeing
conflict areas that are separated from their families do, it can affect
their brain development at a biological level as well.''
Many of the children Ms. Jasko has treated over the years were
struggling with separation from or loss of parents, and all presented
severe symptoms, including nightmares, fears, anxiety and depression.
Ms. Jasko's experience is far from unique. Indeed, over 20,000
medical and mental health professionals and researchers working in the
United States have previously made clear--directly to the DHS--that
``[t]he relationship of parents and children is the strongest social
tie most people experience, and a threat to that tie is among the most
traumatic events people can experience.''\9\ They further explained
that separating a child from a parent causes an effect known as adverse
childhood experience (ACE), which can lead to multiple forms of
impairment and increased risk of serious mental health conditions
including post-traumatic stress disorder (PTSD).
---------------------------------------------------------------------------
\9\ Physicians for Human Rights (June 14, 2018). Letter to
Secretary Nielsen and Attorney General Sessions. Retrieved from https:/
/s3.amazonaws.com/PHR_other/Separation_Letter_FINAL.pdf.
---------------------------------------------------------------------------
conclusion and recommendations
MPP is fueling the crisis at our Southern Border, and is having a
profound impact on the lives of some of the world's most vulnerable
people, torture survivors among them. The practice of returning asylum
seekers to Mexico and separating families must be stopped, those
responsible should be held accountable, victims deserve redress, and
preventive mechanisms need to be adopted.
______
Statement of Columban Center for Advocacy and Outreach
November 19, 2019
As the national advocacy office representing the Missionary Society
of St. Columban, the Columban Center for Advocacy and Outreach stands
in solidarity with marginalized people whom Columban missionaries serve
in 16 countries throughout the world. We appreciate the opportunity to
submit a statement for today's hearing on the human rights and legal
implications of the ``Remain in Mexico'' policy.
Since our founding as a Catholic missionary society over 100 years
ago, we have welcomed the stranger in our communities. Through our
ministries, Columbans have accompanied and defended the rights of
migrants across the globe and in our communities and congregations here
at home. In the United States specifically, we have accompanied and
served migrants arriving at the U.S.-Mexico border for over 25 years.
Throughout the past year-and-a-half, communities of faith all along
the U.S.-Mexico border have consistently mobilized to accompany the
increase in children and families from Central America seeking safety
in the United States. They welcomed them into shelters where they
provided them with support, shelter, and responded to their trauma.
Columbans opened their arms and buildings in El Paso, TX to provide
support and shelter to those children and families. Those shelters are
now almost empty. We know, however, that this is not because people
have stopped seeking safety in the United States. Instead, Columbans in
Ciudad Juarez, Mexico are now mobilizing to provide humanitarian
services to the dramatic increase in people being forced to wait in
Mexico while their asylum claim is adjudicated.
As people of faith, we affirm the inherent dignity of every person
and the ability to seek security and safety. It is not a crime to seek
asylum. The ``Remain in Mexico'' policy operates in direct
contradiction to these moral and legal standards. It not only endangers
the lives of asylum seekers but also the credibility of our asylum
system itself.
We see the detrimental impact of this policy on people seeking
asylum through our daily ministry in Ciudad Juarez, MX. For these
reasons, we stand opposed to the policy and believe it should be
terminated immediately. While it continues to be implemented, however,
we are called to respond to the immediate needs of the people subjected
to this policy.
human rights implications of ``remain in mexico''
When ``Remain in Mexico'' was expanded to include the El Paso
sector in February 2019, the civil society community in Ciudad Juarez,
MX were among the first to respond to the steady increase in people
returned to Mexico. Columbans began working on the ground to respond to
the immediate needs of people being returned. Our work includes efforts
such as:
Expanding access to safe shelter space
Coordinating transportation to ensure people have a safe way
to return to the ports of entry for their hearings
Coordinating donations and resources for waiting asylum
seekers
Assisting asylum seekers in accessing Mexican work permits
and limited health care
Providing emotional and spiritual support as families
navigate increasingly complex decisions.
Based on our experiences responding to the needs of asylum seekers
subjected to ``Remain in Mexico'', we have identified a number of
challenges faced by both humanitarian service providers and asylum
seekers themselves in the Ciudad Juarez area:
Lack of safe and stable shelter space.--Ex. There does not
exist adequate shelter space in Ciudad Juarez to serve all
people subjected to ``Remain in Mexico.'' Not only is there not
enough space but the official shelters that exist are not
designed for long-term stays. With the wait times for asylum
seekers under ``Remain in Mexico'' stretching into mid-2020, a
lack of long-term shelter space presents multiple obstacles to
safely remaining in Ciudad Juarez, especially for women and
children, while awaiting their hearings.
Barriers also exist to establishing safe, long-term
shelters as the threats of violence against waiting asylum
seekers create a chilling effect on accessing available
buildings. Case example: Columbans are responding to the
needs of traumatized women in ``Remain in Mexico'' by
trying to expand access to safe, long-term, humane shelters
where the women can create community and have access to
support systems. These efforts are becoming increasingly
difficult, however, as they are unable to find landlords
willing to rent their space to migrants due to fears of
being targeted by traffickers and cartels.
Threats of violence.--Ex. Lack of access to safe shelter
space, the unknown nature of the program and wait times, and
lack of community support all increase the vulnerability of
asylum seekers under ``Remain in Mexico.'' Asylum seekers are
considered ``dollar signs'' by traffickers and cartels waiting
to exploit their vulnerability. Columbans provide support
services to those who have been subjected to these types of
violence, especially women and children.
Not only do asylum seekers face the possibility of
kidnapping, trafficking, and physical violence on the Mexican
side, but they are subject to violence in CBP custody as well.
Case example: Maria is a 15-year-old asylum seeker from
Guatemala. She arrived in Ciudad Juarez with her brother and
mother. When the family initially presented themselves to CBP
officers and were processed into ``Remain in Mexico,'' Maria
was subjected to physical abuse from a CBP officer that
resulted in a hand-shaped bruise on her stomach. The family now
await their next hearing date under ``Remain in Mexico'' in
fear of interacting with CBP officers again.
Lack of access to due process.--Ex. All official forms
provided by CBP are in English. This creates an obstacle to
claiming asylum as there are a lack of translation resources
available for waiting asylum seekers. This means they are
unable to both understand the forms and unable to adequately
fill them out.
Forcing people to wait in Mexico while their asylum claims are
adjudicated places them in incredibly dangerous and vulnerable
situations--which can lead to people abandoning their rightful claim to
asylum. Providing humanitarian services for people subjected to
``Remain in Mexico'' is incredibly challenging in the context of a lack
of services and infrastructure available to serve such high numbers of
people and the increasingly dangerous conditions in northern Mexico.
This change in asylum policy is not intended to process people more
humanely and efficiently or offer them better ``protection''. It is,
instead, intended to increase the danger, wait time, and level of
difficulty that must be overcome to access this life-saving protection.
The ``Remain in Mexico'' program should be terminated and instead,
resources should be focused on strengthening our existing asylum system
and Family-Based Case Management alternatives to detention. We ask that
Congress ensure no funding is available for the Department of Homeland
Security to implement this policy in the fiscal year 2020 Homeland
Security appropriations bills.
If you have any questions about this statement, please contact
Rebecca Eastwood, Advocacy Coordinator[.]
______
Statement of Church World Service (CWS)
Tuesday, November 19, 2019
As a 73-year old humanitarian organization representing 37
Protestant, Anglican, and Orthodox communions and 24 refugee
resettlement offices across 17 States, Church World Service (CWS) urges
the committee to affirm the legal right of all people to seek
protection where they feel safe and to condemn the administration's
latest anti-asylum policies that are immoral, illegal, and cruel.
CWS urges Congress to defund the administration's deadly Migrant
Protection Protocol (MPP) policy, which violates U.S. and international
legal and moral obligations.--In September 2019, the Trump
administration's policy of returning asylum seekers to Mexico was
expanded, sending men, women, and children from Cuba, El Salvador,
Guatemala, Honduras, Nicaragua, Venezuela, and other countries to wait
in the notoriously dangerous state of Tamaulipas and opening secretive
tent courts in Laredo and Brownsville, Texas, for MPP hearings. CBP
officers have sent late-term pregnant women back to Mexico under the
MPP policy, despite the fact that individuals with known health issues
are supposed to be exempted from the program. In one case, doctors gave
a woman who was already experiencing contractions medication to stop
the contractions so that she could be sent back across the border to
Mexico. This policy delivers nearly 50,000 children, their families,
and other asylum seekers to areas so plagued by violence that the State
Department has designated the state of Tamaulipas a Level 4 threat
risk--the same warning as Afghanistan, Iraq, Syria, Somalia, North
Korea, and Yemen. Some 26,000 are stranded in Mexico due to metering--
the illegal policy of turning back asylum applicants at ports of entry.
The Trump administration continues to deter asylum seekers and
immigrants and choke off access to the asylum system, including through
family separation and child and family detention.--DHS detention is
plagued with systemic abuse and inadequate access to medical care.
Numerous reports have revealed the systemic human rights abuses, sexual
assaults, and dehumanizing conditions that exist in the detention
facilities. These exceedingly overcrowded detention centers are
unsanitary, unhealthy, unsafe, and are leading to extreme, and
sometimes fatal, mental and physical health outcomes for children. At
least 7 Central American children died in U.S. custody between
September 2018 and May 2019. Between fiscal year 2016 and fiscal year
2020, the administration nearly doubled immigration-related detention,
from 30,539 beds in 2016 to 54,000 beds in 2020. CWS demands that
Congress reject any proposal that would expand family, child, or
immigrant detention--or violate the Flores agreement's long-standing
consensus that children should not be detained for longer than 20 days.
CWS condemns the administration's dangerous asylum ban and urges
Congress to protect individuals' legal right to seek asylum in the
United States.--The administration announced an interim final rule that
bans those who seek safety at the U.S. border from asylum protections
if they travel through another country en route to the United States,
known as the Third-Country Transit Bar that went into effect September
2019. This asylum ban is immoral, illegal, and cruel--and is
diametrically opposed to our Nation's values of compassion and welcome.
This policy requires asylum seekers to stay in the very same unsafe
countries that many migrants are fleeing, banning virtually all asylum
seekers entering the United States by the Southern Border, including
those in MPP from receiving asylum. This bar applies to all non-Mexican
asylum seekers, even those who are fleeing the most horrid
circumstances and those in protected categories.
CWS is equally troubled by proposals that would weaken or eliminate
provisions in the Trafficking Victims Protection Reauthorization Act
(TVPRA), which provides important procedural protections for
unaccompanied children in order to accurately determine if they are
eligible for relief as victims of trafficking or persecution.--
Weakening existing legal protections, especially for children,
undermines the United States' moral authority as a leader in combating
human trafficking and increases vulnerabilities for trafficking victims
by curtailing access to due process, legal representation, and child-
appropriate services.
As a faith-based organization, we urge Congress to hold the
administration accountable to respecting the humanity and dignity of
all immigrant families, asylum seekers, and unaccompanied children
seeking protection.
______
Statement of Families Belong Together
November 19, 2019
Chairwoman Rice, Ranking Member Higgins, and Members of the
subcommittee, Families Belong Together respectfully requests that this
statement made be part of the record for the November 19, 2019 hearing,
``Examining the Human Rights and Legal Implications of DHS's ``Remain
in Mexico'' Policy.
Led by the National Domestic Workers Alliance (NDWA), Families
Belong Together was formed in June 2018 in response to the Trump
administration's zero tolerance immigration policy that cruelly
separated migrant children and families who have arrived at the U.S.-
Mexico border seeking asylum. The Families Belong Together coalition
includes nearly 250 organizations representing Americans from all
backgrounds across the country who have come together to end family
separation and detention and to reunite all families who remain torn
apart. We have mobilized hundreds of thousands of people across the
country to take action to promote dignity, unity, and compassion for
all children and families and to ensure that the Flores Agreement, a
decades-old settlement that provides standards for detention and
treatment of migrant children in immigration custody, is not gutted by
the administration.
This year, Families Belong Together opened an office in Tijuana,
Mexico to provide much-needed services to asylum seekers who are
languishing in Tijuana as a result of such policies as ``Remain in
Mexico'' (formerly known as ``Migrant Protection Protocols'') and
metering. The critical services our Tijuana team provides include legal
support, counseling, and delivery of material goods such as tents,
clean drinking water, and mattresses.
``Remain in Mexico'' policy exposes asylum seekers to the very harm
and violence from which they are fleeing, violates due process and
international legal obligations, and causes irreparable psychological
harm to vulnerable children and families.
``remain in mexico'' policy forcibly subjects asylum-seekers to the
same kind of harm and violence from which they fled
Since January 2019, over 55,000 people seeking asylum in the United
States, of which 15,500 are children and 500 infants, have been
forcibly returned to Mexico under ``Remain in Mexico'' policy.\1\ In
addition, some 26,000 are stranded in Mexico due to metering, an
illegal policy that turns back asylum applicants at ports of entry.\2\
These policies have forcibly subjected vulnerable children and families
to the same kind of violence and other life-threatening conditions in
Mexico from which they fled with extremely limited access to legal and
humanitarian support. According to one estimate, nearly 400 people have
faced kidnapping, extortion, sexual assault, and violent crimes as a
result of ``Remain in Mexico'' policy.\3\ Many of the asylum seekers we
serve in Tijuana have shared their own fears of persecution, violence,
and extortion as they await their hearings in Mexico border cities.
These border cities are so plagued by violence that the U.S. State
Department has designated the state of Tamaulipas a Level 4 threat risk
and warned that ``[v]iolent crime, such as murder, armed robbery,
carjacking, kidnapping, extortion, and sexual assault, is common. Gang
activity, including gun battles and blockades, is widespread.''\4\
---------------------------------------------------------------------------
\1\ ``Assessment of the Migrant Protection Protocols (MPP)'', Dept
of Homeland Security. 28 Oct. 2019. https://bit.ly/2OebkaY.
\2\ ``Orders from Above: Massive Human Rights Abuses Under Trump
Administration Return to Mexico Policy'' Human Rights First. 1 Oct.
2019. https://bit.ly/2Ksn0ps.
\3\ ``Remain in Mexico'' LAWG. 15 Nov. 2019. https://bit.ly/
2CNYHOr.
\4\ ``Deliver to Danger'' Human Rights First. Aug. 2019. https://
bit.ly/2rQRiM4.
---------------------------------------------------------------------------
Another study found that between 21 percent and 24 percent of
migrants in the Remain in Mexico program report receiving threats of
violence while in Mexico, and of those, over 50 percent report that the
threats turned into actual violence, including beatings, robbery, and
extortion.\5\ According to a recent report by U.S. Immigration Policy
Center, the length of time spent waiting in Mexico is statistically
significantly related to being threatened with physical violence. At
88.6 days spent waiting in Mexico, which is the average length of time
in between being processed by U.S. immigration officials (i.e., being
returned to Mexico) and the immigration court dates of surveyed
respondents, the predicted probability of being threatened with
physical violence is 32.0 percent.\6\ During these prolonged wait
periods, families are often homeless, unemployed, and do not have
access to basic material goods, making them more susceptible to
extortion and kidnapping.
---------------------------------------------------------------------------
\5\ Wong, Tom. ``Seeking Asylum Part 2'' US Immigration Policy
Center. (2019) https://bit.ly/2KtzKvV.
\6\ Ibid.
---------------------------------------------------------------------------
In short, ``Remain in Mexico'' policy is punitive, punishing
instead of protecting vulnerable and desperate children and families.
``remain in mexico'' policy causes irreparable trauma to asylum seekers
``Remain in Mexico'' policy has caused irreparable harm and trauma
to children and families as they wait in limbo for upwards of 2 years
for their next court date. Every day our Tijuana team provides
counseling to families who express a profound sense of hopelessness for
their future and are deeply distressed that they will continue to live
in dangerous and precarious conditions.
For instance, one family we have been counseling has been living in
peril in Tijuana for more than 8 months, and they have only had 2 court
hearings. This family had fled violence and extreme poverty in their
home country and is experiencing trauma again and again as they face
on-going poverty and violence in the face of extreme uncertainty that
they will find safety and stability in their lives.
Many of the women we provide counseling to have escaped gender-
based and sexual violence and are desperate for their lives as they
seek protection in a safe haven.
One such case is of Laura, a young mother of 3 who fled violence in
Honduras only to face similar conditions in Tijuana. Laura*\7\ was
stranded in the desert with her 3 children, including a young daughter
who is only 8 years old. After walking for nearly 6 hours, they were
picked up by Customs and Border Protection (CBP) officers. Laura and
her children were taken into ``La Hielera'' or a detention center where
she was detained in overcrowded facility for 9 days with no access to
natural light, showers, or medical care. During this time CBP officers
attempted to separate Laura from her 16-year-old son but he was able to
remain with his mother due to a previous medical condition. After 9
long days, Laura and her children were flown to the San Ysidro port of
entry and then returned to Tijuana, Mexico with no money or information
as to next steps. Since then, Laura and her family live in unstable
conditions at shelters not knowing what will come next. Concerns of a
chickenpox outbreak and unhygienic conditions at the shelter are a
concern for the mother of 3. Laura's first hearing was in October 2019
and the next hearing date will not be until February 2020. Laura
remains anxious for her children's safety in Tijuana and whether she
will be forced to return to gang violence in Honduras.
---------------------------------------------------------------------------
\7\ * Name changed for privacy.
---------------------------------------------------------------------------
Women and children remain vulnerable to sexual violence and harm
while waiting for their cases in Mexico. We have met several women with
small children who, after waiting nearly 6 months under the policy,
have decided to voluntarily return to their home countries unsure of
whether they will survive the violence and harm. The Remain in Mexico
policy has caused irreparable trauma to thousands of children and
families. Remain in Mexico is an inhumane and cruel policy and no
family should live in the constant fear of being returned to
persecution and violence.
``remain in mexico'' policy impedes asylum seekers' due process rights
The Remain in Mexico policy impedes asylum seekers' due process
rights, including access to counsel by barring them from entering the
country and thus making it virtually impossible for them to find a
lawyer for their cases. Approximately 98 percent of the 47,313 asylum-
seekers in the Remain in Mexico program were unrepresented as of
September 2019.\8\ Our Tijuana team works with legal organizations to
run legal clinics, where we help asylum seekers to fill out the I-589
asylum application form. However, this legal clinic is not a substitute
for legal representation to navigate the complicated asylum process,
and the demand for such assistance is overwhelming, where we are
experiencing challenges to meet such demand every day.
---------------------------------------------------------------------------
\8\ ``Details on MPP (Remain in Mexico) Deportation Proceedings'',
TRAC IMMIGRATION (Sep. 2019), https://trac.syr.edu/phptools/
immigration/mpp/ (``Measure'' as ``Current Status;'' check ``Graph Time
Scale'' as ``by Month and Year;'' select ``Hearing Location'' on left-
most drop-down menu; select ``Represented'' on center drop-down menu;
check ``Represented'' on right-most drop-down menu).
---------------------------------------------------------------------------
The policy further impedes asylum seekers' access to due process as
vulnerable children and families are forced to travel hundreds of
miles, in extremely dangerous conditions, to attend their court
hearings in the United States. Since March 2019, the Tijuana team has
provided transportation for over 1,500 individuals to ports of entry
for their hearings in the United States.
In one such case, an Indigenous family of 7 made an arduous, 6-
hour-long, 250-mile journey from Mexicali to San Diego to attend their
asylum hearing:
``An Indigenous family with 5 minor children requested asylum at the
Calexico port of entry and were sent back to Mexicali. In order to
attend their hearings at the San Diego court, the family bought 7 bus
tickets and traveled 3 hours from Calexico to the city of Tijuana. For
a 9 o'clock a.m. asylum hearing, the family woke up at 3 o'clock a.m.
and arrived at the El Chaparral port of entry at 4 o'clock a.m. to
enlist. Once they entered the United States they were transported to
the court and remained there for almost the entire day. After their
hearing, they returned to Tijuana in the late evening, a place not only
unknown but extremely unsafe for them, especially during late hours.
From there they took a midnight bus to their shelter in Mexicali.
Despite the dangerous conditions, the parents and small children
continue to make this perilous journey each time they have a hearing,
which range between every 1 to 4 months.''
The policy also impedes access to due process by sending asylum
seekers to temporary tent facilities which serve as virtual immigration
courtrooms for Remain in Mexico cases. This is a sham: The judges
appear remotely via video from traditional courtrooms; and it is
reported that the unreliable wifi makes communication and language
interpretation between the judge and asylum seekers near impossible,
which is a detriment for all affirmative asylum cases.
recommendations
Remain in Mexico is a dangerous and unlawful policy which
undermines domestic and international legal protections and forcibly
subjects asylum seekers to life-threatening violence and trauma. We
urge Congress to take the necessary steps to:
Defund the Remain in Mexico policy and restore due process
rights for asylum seekers.
Allow the public access to tent court facilities until the
Remain in Mexico policy is halted to ensure fairness and
transparency for asylum seekers.
Conduct oversight of and direct U.S. Customs and Border
Protection (CBP) to restore timely and orderly asylum
processing at ports of entry and ensure humane conditions for
those held temporarily under CBP custody, meeting all legal
standards, including the Flores Settlement Agreement and DHS
internal detention policies.
We appreciate the opportunity to submit our statement to the
subcommittee on this topic. If you have any questions regarding our
statement please contact Haeyoung Yoon, Senior Immigration Policy
Director[.]
______
Statement of Laura Belous, Esq., Advocacy Attorney, Florence Immigrant
and Refugee Rights Project
The Florence Immigrant and Refugee Rights Project is a 501(c)(3)
non-profit organization that provides free legal and social services to
the nearly 6,600 immigrant men, women, and children detained in
immigration custody in Arizona on any given day. As the only non-profit
organization in Arizona providing free legal services to people in
immigration detention, our vision is to ensure that every person facing
removal proceedings has access to counsel, understands their rights
under the law, and is treated fairly and humanely.
The Florence Project was founded in 1989 to provide free legal
services in a remote immigration detention center in Florence, Arizona.
We have expanded significantly since that time, and now provide free
legal services to unaccompanied children facing removal proceedings in
Arizona. The Florence Project represents children before the USCIS and
EOIR on a wide variety of applications, including I-360 Special
Immigrant Juvenile Status (SIJ) Petitions and I-485 Application for
Adjustment of Status, among others.
The Florence Project is concerned that young people are not
receiving full and fair hearings under the MPP program. As a result,
some of our clients have forced by necessity to leave their parents and
enter the United States as unaccompanied minors. This is deeply
traumatic to these children and parents and a very ineffective way to
process these cases. Forcing a child to choose between staying with his
parents and seeking safety is fundamentally unfair.
To illustrate the desperation that our clients experience, we share
the following client story. Names and some identifying information have
been changed in order to protect his privacy.
Juan and his mother came to the United States to flee gang violence
in El Salvador. Gang members were actively trying to recruit 16-year-
old Juan and threatened him multiple times. He refused to join or work
for them. A few days later, they came to his house to look for him.
Although he wasn't there, the gang members attacked his mother and left
her bruised and with a bloody nose.
Juan and his mother fled to the United States. When they arrived at
the border, agents told them that the laws had changed and they now had
to wait in Mexico.
Juan and his mother filed for asylum and submitted the police
report they made, as well as the hospital records showing that Juan's
mother required treatment for the assault.
Juan and his mother were taken to Tijuana, then to Mexicali, and
back to Tijuana to wait for their court hearings. They stayed in a
migrant shelter that was so overcrowded it had to start turning people
away. They went to court in San Diego 3 times. Juan estimates there
were about 18 days between the first and second hearings, and about 3
weeks between the second and third.
Juan and his mother had their final hearing in October. The judge
denied their claim.
Juan and his mother knew that there was no future for him in
Tijuana. The shelter was overcrowded and his mother became increasingly
desperate because she felt that there was no way to support her son
there or for him to continue his education. Juan and his mother made
the decision for Juan to come to the United States alone where they
hoped that he could receive protection from the gangs threatening to
kill him in El Salvador. He entered the United States as an
unaccompanied child and left his mother in Mexico.
For the reasons stated above, the Florence Project strongly objects
to MPP because it results in family separation, fundamentally unfair
hearings, and unnecessary detention of children.
______
Statement of Jodi Goodwin, Esq., Law Office of Jodi Goodwin, Harlingen,
TX
Monday, November 18, 2019
Chairwoman Rice, Ranking Member Higgins, and subcommittee Members,
I am an immigration attorney in private practice in the Rio Grande
Valley along the Texas border with Mexico. I have been an immigration
lawyer here for more than 20 years. From this perspective, I am
submitting reflections on what I have witnessed regarding the Remain in
Mexico ``Migrant Protection Protocols'' in Brownsville and Harlingen,
Texas, and Matamoros, Tamaulipas, Texas. These are my public Facebook
posts that I have collected. Please excuse the informal nature of these
writings. However, I feel it is necessary for the subcommittee to know
as much about the actual reality of MPP as possible. This is an account
of how MPP has unfolded in just one location among many. Thank you for
the opportunity to be heard.
September 15, 2019
https://www.facebook.com/
photo.php?fbid=10217008037407814&set=a.1231099932310&type=3&thea
ter
Long post . . . please read. Especially if you are an immigration
Judge or an ICE attorney.
Two days. 100 degrees. 100 percent humidity. And a beautiful
rainbow to start our second day this weekend in Matamoros with Project
MPP Matamoros. We saw about 80 plus principal applicants (that means we
didn't count spouses and children so the real reach is much higher) to
help them understand immigration court proceedings and asylum
applications.
But not just that . . . today I met with 5 pregnant or just had
their babies in the last week women. One thrown back into Mexico after
CBP had taken her to hospital to stop her contractions, one so heavily
pregnant she spent 7 days in the hielera only to be sent to Mexico to
give birth less than 12 hours after CBP threw her back. Another 13
weeks along dehydrated, sick, living in inhumane conditions on the
streets of Mexico that she fainted and then began vomiting. No one from
the Mexican authorities came to assist. Myself and some other refugees
grabbed some chairs to make a makeshift bed, had her drink rehydration
salts and used peppermint oil to bring her back after the fainting
spell. More electrolytes, water, and a granola bar I had in my bag. It
took about 40 minutes until her pupils returned to normal. Luckily, a
Cuban refugee with some EMT training was barking orders for us to try
to find the various things he thought could help her all while checking
her vitals super old school style with a watch to count her pulse and
listening for her breaths as she laid on the makeshift bed. I guess
street lawyering means you are also a nurse/EMT.
There are so many stories I can tell. MPP is wrong on a moral
level. MPP is wrong legally.
Then there are all the court documents that have fake addresses
where CBP puts in an address to a shelter that no one can get in. They
are homeless. But the judges buy those fake addresses and use them to
deport people. The ``tear sheets'' which are supposed to instruct
refugees how to appear to court are either not given at all or given
with wrong information telling them to appear at the bridge at the same
time their hearing is supposed to start which ensures they will not
make it to their hearing on time. Then there are those thrown back
without even giving them their court documents. When they go to the
bridge to ask about their paperwork they are told CBP doesn't handle
that . . . when in fact it is CBP who does! How in the world are
refugees supposed to know when and where to go to court when CBP won't
even give them the court documents. And of course I cannot fail to
mention all the defects in the court charging documents . . . it goes
on and on.
We are better than this. The humanitarian crisis has not gone away.
It is just south of the border and worse than ever. In 24 years as a
lawyer I have never seen so much extreme cruelty. If you are a lawyer
and have some time to work remotely on document preparation contact me.
If you are a Spanish Speaking Immigration lawyer with asylum law
experience, we could use you for 4 days of your life from Friday to
Monday.
September 7, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217021837512808
My client was told to show up at the bridge at 4:30 am for a 12:30
pm hearing. Why? What does it take 8 hours to let a mom and her 2
children into the tent courts?
They took their shoelaces . . . again.
That waiting room for children they showed off in tours that was
filled with colorful shelves of toys, books, and crayons . . . nah the
4 year old and 10 year old didn't get to play for the hours they
waited.
No breakfast, no lunch. One bottle of water for each and some
Sabritas.
Fake addresses on documents the government filed in court.
No simultaneous interpretation.
Can't talk to your client after court . . . CBP says it is not
allowed but has nothing to show what the rules are.
The port o potties already stink . . . Lord knows what that place
will smell like when they start running 3 full master dockets at a time
next week. Gross.
And don't think of walking into the CBP office at the bridge to say
you are there for court. No one knows where to tell you to go. Here's a
little pro tip . . . skip the CBP office and just walk down the street
to the second Sally port gate with razor wire . . . you just stand in
front of it until someone comes. That is the lawyer entrance.
And this is for someone that has counsel . . .
MPP is a farce and mockery of the immigration court system, of
justice, and so many stand by idly as if there is nothing to see,
nothing wrong, nothing unjust. Errors and lies are just overlooked . .
. meanwhile more people die.
History will write this story.
October 1, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217127856283211
Tales from MPP
Sleep deprivation is a form of torture and has serious effects on
the cognitive ability to understand and process thoughts. It affects a
human body's core biological functions.
MPP is torture. Waking at 2:30 am or not sleeping at all due to the
dangers on the streets of a level 4 security threat zone and then being
required to show up in the middle of the night to present yourself for
court is torture. After you present at the border you are shuffled
through processing, medical screenings, waiting areas, and finally
taken to court where you are expected to understand everything.
But the court is not a real court. It is a giant screen. And no one
interprets what is being said in that courtroom unless you are lucky
enough to have a lawyer demand it. Otherwise only direct questions are
interpreted to you. You are tired, sleepless, and cannot focus.
You leave the ``court'' and have no idea what just happened. And
they make you wait and shuffle you from waiting areas for hours. You
are forced (not ``allowed'' as one judge puts it) back to another
country where you live on the streets. No sleep still.
Back in Mexico you have to get a permit to be there and they make
you wait again for hours.
My clients were up for over 24 hours just to be at their hearings.
They are all questioning what in the world happened at those hearings.
For them, they are lucky I can explain. What about those, the
overwhelming majority, without lawyers. Without the ability to ask
questions and get answers from the judicial system supposedly hearing
their claims? How can anyone be expected to fully comprehend what is
happening in court?
Oh . . . and imagine that you are a child . . . MPP tortures you,
too.
October 2, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217135616237205
Tales from MPP
It is 11:44 am. I have already been to Brownsville twice, Mexico
once, and back to Harlingen again.
MPP affects the regular docket of the immigration courts, too.
Judges are quick to reset cases because they have to finish their
regular docket to be able to start the MPP docket on time. In my case,
we could have resolved an issue if the court had one copy of a document
for the government attorney (he wasn't prepared with enough copies).
But making the copy and letting me review it so we could resolve the
issue would have taken too many minutes I suppose. So we got pushed
down the road for another 5 months for something that might have taken
10 minutes tops.
No worries . . . judge will be able to make his case completion
goal for his performance review by ordering all those in MPP deported
in their absence. Immigration ``Courts'' belong in the Department of
INjustice.
I am not so sure that Immigration Judges are disinterested parties
any longer . . . their job depends on numbers not the impartial
imparting of justice.
October 9, 2019
https://www.facebook.com/
photo.php?fbid=10217198533850106&set=a.1487242295709&type=3&thea
ter
Tales from MPP
MPP has created the largest refugee crisis in the Western
Hemisphere since the mass exodus of Cuba.
Let's just call a spade a spade. No spin, the photo below shows a
portion of a refugee camp that houses about 1,000 people so far. It
grows each day as 120 or so people arrive daily at the camp. There is
NO international presence of NGO's to operate this refugee camp. In a
matter of weeks it will swell to 1,500 and then 2,000. The growth
outpaces the capacity of local humanitarian aid organizations and legal
service providers.
Intentional infliction of human suffering is not good. Abiding by
and saying or doing nothing because you are ``following orders'' makes
you no different from the Nazi Doctor's who threw aside their
Hypocratic Oath to ``do no harm.''
MPP is a Refugee Camp full of human suffering.
October 10, 2019
https://www.facebook.com/
photo.php?fbid=10217206767695947&set=a.1487242295709&type=3&thea
ter#
Tales from MPP
MPP is human suffering on scales not seen the United States for
decades. It is intentional aforethought by operatives within our
government.
MPP is the Migrant Protection Protocol. Protection, you ask, from
who?
Protection from brown babies. This picture taken by a Mexican
journalist tells the entire MPP story in one image. The entire might
and power of a government that is run by fear mongering racists against
the tiny brown babies of the world.
But what you don't know is THAT is my brown baby. That is your
brown baby. That is you neighbor's brown baby. That is the brown baby
of the ``good illegal'' that cares for your kids, cuts your yard,
cleans your home and cooks your meals.
We have a shared privileged responsibility to stand up,speak up,
for the brown babies of the world.
MPP is straight up systematic institutional racism.
October 21, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217312137050115
Tales from MPP
It's almost 2 am and there is a tornado warning. Rain comes down
sideways and the electricity just went off. I just woke up to the
thunder.
Meanwhile, my homeless client with 2 children is expected to make
her way to the bridge in about an hour to be processed to make it to
court for 8:30 am. I hope she can get there. I hope she can find
shelter out of the rain. I hope her children's clothes and shoes being
wet in the frigid temperatures of the CBP holding tent won't get them
sick. I hope her clothes will dry out before court. I hope she will be
able to focus because I know she nor her children will have slept
tonight.
She and the children have a place to go where there is a warm bed,
a bathroom, and loving family. A safe place. In the US. Away from the
dangers of street life in Matamoros.
How many people won't make it to court tomorrow morning? Is the
weather an exceptional circumstance? Or will the judges just rack up
points for their performance review quotas and order them all removed?
MPP is misguided and cruel.
October 21, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217316085988836
Tales from MPP
You won't believe the sham that is MPP court process. Seriously, I
can't make this stuff up!
I am a lawyer so I know my way around the court, around CBP, around
DHS and FPS . . . this is a sampling of one half of 1 day. Now imagine
you are not a lawyer and do not speak the language of the court. Read
on.
My clients do everything right, the legal way. They wait their turn
to apply for asylum at the bridge . . . wait for months due to
metering. They are sent back to Mexico to wait for court. They wait for
months. They prepare their asylum application and try to file it with
the court only to be rejected over and over again because CBP has never
filed the charges with the court.
Sitting in a tent in a refugee camp they were able to do their job.
Why can't CBP? They lost the paperwork and need to redo it. I send the
clients back to the bridge to redo it. CBP still doesn't file. My
clients' asylum application is rejected again.
But wait, the papers they were given say there is court on the 1st
of November, the court says the hearing is on the 6th. How will they be
notified? Will the court send a carrier pigeon into the refugee camp
with notice? I ask and the Court Administrator just shrugs her
shoulders. IDK
Next . . . go to the tents. Five officers tell me my clients did
not appear which I know to be false. I have to keep insisting. Court is
about to start. They still don't even know my clients are in their
custody. Just like family separation, CBP doesn't even know who they
have. They are found but only after I insist. What about those that
don't have a lawyer which is most . . . will CBP just lose them and not
take them to court?
My client's son is squirming and crying. He just turned 4. He is
starving having been in CBP custody since the wee hours of the morning
and not being given anything to eat. I am incredulous to hear this.
When will CBP learn they are required by law to provide milk, juice and
snacks to children! No food was given to his mother or sister either.
Sleepy, cold, and hungry . . . that is how they are expected to go to a
court that determines life or death to them.
Then I find out that the entire 12:30 docket was reset to 8:30 in
the morning . . . 4 hours earlier. How in the world would refugees in
the refugee camp every know this? I suppose the same carrier pigeons
from above would rush over I. The [sic] middle of the night to tell
them to come to court early. Nah . . . no notice or anything, the court
just goes ahead and orders those without telepathic capabilities
removed because they got no notice their hearings would be 4 hours
earlier.
Fundamental fairness requires that proceedings be translated. We
already know the court has no ability to conduct simultaneous
translation . . . but today the court would not even do consecutive
translation opting instead to just summarize everything at the end of
the hearing.
MPP is a sham at all levels.
October 30, 2019
https://www.facebook.com/
photo.php?fbid=10217392656463050&set=a.1231099932310&type=3&thea
ter
Tales from MPP
MPP brings amazing souls together for one goal: justice.
This is a pro bono asylum case for a family of four from Venezuela.
Uncountable hours of work went into crossing into a Level 4 Security
Threat assessment zone just to be able to get their story, their
evidence, and prepare them for courts.
Even more uncountable hours by pro bono translators to assist in
the multitude of documents that needed translation. Hundreds and
hundreds of copies (we had to change the toner in the copier in the
middle of it).
All this . . . so that there is a chance for justice and due
process to prevail.
But do not fret dear Immigration Judge and ICE Trial Attorney, the
index makes it all clear with succinct summaries and selected portions
of the supporting documents detailed with countless hours put in by our
law school intern, too.
So many people coming together to make justice happen . . . hope
the judge is on our side.
MPP brings amazing souls together.
November 2, 2019
https://www.facebook.com/
photo.php?fbid=10217421993716463&set=a.1487242295709&type=3&thea
ter
Tales from MPP
MPP is unfair.
I have always wanted to write a legal brief where my argument was
simply, this is unfair. I have never done it, but certainly thought
about it many times.
Imagine this, you are an asylum seeker living on the streets in a
Level 4 Security Threat Assessment zone. You cannot be sure when is the
next time you will get food. You have no sanitary place to use the
restroom. There are only a handful of extremely brave lawyers that are
willing to cross into the dangerous place you live to help you with
your asylum case.
When the lawyers go to Mexico hundreds of people line up to talk to
them. The lawyers have to leave and go back to the United States when
it gets dark because it is unsafe. You have tried each time to get a
moment to speak to the lawyers, but with so many people you turn has
not come up yet. You are trying your best to survive and to get legal
help.
Now imagine this, you sleep comfortably, had a hot breakfast, went
to you air conditioned office and began your day. You have court that
day and instead of showing empathy for the situation of those appearing
before you and the awful inhumane conditions in which they live in a
make-shift refugee camp, you scold those that did not come before you
with all their documents in order missing translations or simply not
ready yet. You tell those appearing before you that you will deport
them. Scold is the only word I can think of to translate what the
refugees in Matamoros have told me has happened to them in court. They
use the word reganar. It reminds me of being talked down to as a
kindergartener. They leave court not exactly knowing what the judge
wants from them, but desperately seeking help.
Dear Immigration Judge, please do not scold (reganar) those who are
trying their best in some really awful conditions. Please understand
that there are only two lawyers that regularly (weekly) cross to Mexico
to assist thousands. Please understand that the process of MPP makes it
incredibly difficult to represent a person. We are trying to recruit
other lawyers to take cases either for hire or pro bono, but it is hard
. . . not everyone is willing to put their life in danger. Please
understand that those before you are exhausted from a sleepless night
and didn't get to have breakfast. Please understand that this is not
traffic court, these are death penalty cases. You see the picture
below, that is one lawyer, for hundreds.
But yet . . . when the government presents documents that are
incorrectly filled out, contain falsities, or they don't bother to
bring their file or be prepared with the correct documents, they don't
get scolded (reganado). There is a double standard that is so tilted it
is unfair.
How about delivering justice, fair and impartial justice? Is it too
much to ask that everyone actually has a fair shake in court? Ya no los
regana.
MPP is unfair.
November 10, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217487309029305
Tales from MPP
MPP is state created danger.
When you ask for asylum in the US it means you seek protection not
further harm. The treatment of individuals in MPP is intentional harm
at the hands of various agencies of the US government including CBP,
ICE and EOIR.
As I was answering legal questions and helping prepare people for
their upcoming court dates, a visibly shaken and tortured woman
approached. She was just released from her kidnappers of 8 days. She
was returned to Mexico by CBP when she and her 4 years son asked for
asylum in the US. Upon return, she waited for hours in Mexican
immigration to be given a permit to remain in Mexico until her court
date in the illegal tent courts. Within an hour of being released from
Mexican immigration, and just outside of the immigration building on
the plaza where the refugee camp is . . . she and her son were picked
up by evil kidnappers.
The next 8 days are a blur of torture and awful treatment by
organized crime in Mexico. Thousands of dollars later, she is released
to relatives from the US that travel to Mexico to save her. Those same
relatives that could have cared for her and her son in the US while
waiting for court for their asylum claim.
This is just one story that unfolded before me today in Mexico.
Perhaps later I will have the strength to write about the 7 year old
girl kidnapped and raped in front of her parents. Kidnapped from the
same plaza where the refugee camp is located. They, too, have a place
to go to be safe in the US.
Much like the intentional emotional harm inflicted on parents and
children that are separated by CBP, MPP causes purposeful harm. One
court has already ordered the US government to make reparations for the
harm caused by family separation.
MPP is state created danger.
November 18, 2019
https://www.facebook.com/jodi.goodwin.5/posts/10217558216961959
Tales from MPP
It has been a while. Things are shifting. The last week has been a
roller coaster.
A sweet hoard of children group-hugging me . . . ``usted es la
abogada Jodi?'' Si, yo soy!
A wholesale stonewall by CBP to process refugees for non-
refoulement interviews, illegal of course.
A trial attorney that, again, has not done their job and showed up
in court without background checks despite their duty to do so and the
fact they can do these checks with the touch of a button. So a family
stays in Mexico for yet another week despite the fact the judge intends
to grant asylum to them.
A good judge quits. A judge that has a heart. A judge that is
smart. A judge that was not a yes man. And will certainly be replaced
by yet another judge with no experience in immigration law and only out
to meet some BS quotas to make their boss happy and get a great
performance review for completing cases. Well doesn't that just suck?
A sick baby is left on the bridge in frigid weather in an act of
extreme cruelty by CBP despite being with a doctor and despite bringing
CBP's own medical staff out in the cold to evaluate the baby on the
bridge. All agreed she needed to be treated. Yet it was 3.5 hours in
the cold and 1.5 hours processing them before we could rush the baby to
the Emergency Room at the nearest hospital.
An encounter with a woman and her 4 year old son who were just
released moments earlier after 8 days of being kidnapped. Shock, signs
of torture, extreme fear, looking back across her shoulder. Scared to
death I gave her options of either trying to cross immediately to ask
for an NRI or go to the Mexican authorities. She went to talk to a
family member waiting on the other side of the plaza to ask for their
opinion, she disappeared. That boy . . . 4 tiny little years . . . that
boy! I cry at night thinking of that boy.
Transcribing phone conversations of ransom negotiations between
organized crime kidnappers and loving family in the U.S. Do I really do
this? Our government is complicit in kidnapping . . . plain and simple.
Those people were kidnapped just outside of the Mexican immigration
building less than an hour after they were sent back under MPP.
So many in the refugee camp are set for trial now. It seems the
government has some type of orders to reserve appeal on all cases no
matter the strength of the claim. Reason and rule of law be damned.
A mom approaches me . . . she sent her 3 and 5 year old to the
bridge by themselves. She hopes they will be released to their father.
But hasn't heard from the children for 4 days . . . no one will tell
her nor their father where the children are. Read that again . . . 3
and 5 year old!
A government submission so far slanted regarding the conditions in
Venezuela that even the State Department Report refutes it. What kind
of instructions are these TAs being given?
People need lawyers to represent them in their cases before the
judges. There are so many that will simply be railroaded by complicit
judges and TAs despite the fact that the claims are valid and strong.
A badass lawyer comes with me to tent court and to the Refugee Camp
to see for himself, to try to understand and help us use technology to
help many. I am so hopeful this technology will work.
Refugees themselves, local volunteers, and volunteers from afar all
beg for me to do individual cases . . . to represent them. The need is
so great and the hours in each day are so few.
My last thoughts as I leave the Refugee Camp . . . I don't feel
well, I need to lay down. I need strength for another day . . . another
week. And then the King of the Camp appears to give me one of his
signature squeeze hugs. It hurts my abdomen.
______
Statement of Marsha R. Griffin, MD, Border Pediatrician, Member of the
American Academy of Pediatrics' Council on Immigrant Child and Family
Health, Brownsville, Texas
Greetings from all of us on the border, physicians, attorneys,
advocates, and friends, all of us fighting like you for basic human
rights and dignity for asylum-seeking families and children.
Last summer, a fury of protests were lifted against the conditions
within the Customs and Border Protection processing centers, commonly
referred to as ``Las Hieleras''. The facilities were overcrowded and
dirty, children separated from their parents and packed into chain-link
cages. Families went days without a shower or change of clothes, even
those who were forced to sleep outside in the parking lot of the
facility, with no protection from the rain. The lights inside the
processing centers were kept on 24 hours a day, and there was no way to
tell day from night. There were no clocks, and so no way to mark the
time. Children did not sleep; parents worried, rightly, that they might
have their children taken from them.
The detainees, men, women, and children, were fed the same meal: A
cookie and an apple in the morning, a semi-defrosted bologna sandwiches
on white bread at lunch, a half-frozen burrito in the evening. Mothers
who were permitted to be with their newborns and infants did not have
access to clean water to wash the babies' bottles.
These families were being held for far longer periods of time than
permitted in the Flores Settlement Agreement. In many ways, it was
worse than being jailed, for no phone calls were allowed, there was no
access to attorneys, and there was no telling when they might get out.
For the first half of the year, medical care for the detained
children and families and pregnant was deficient to the point that
children died.
The Federal Government's response to these horrors was the creation
of a program called ``the Migrant Protection Protocols,'' otherwise
known as ``Remain in Mexico''. Under this plan, families seeking asylum
are processed into Customs and Border Protection custody, and then
returned to Mexico where they are expected to stay until their asylum
hearings.
In our area, beginning in mid-July (this past summer) between 100
and 250 moms and dads and their children were taken to Matamoros,
Mexico, a city that the State Department considers as dangerous as
Aleppo, Syria. Soon, over 1,500 people were living in small pup tents
at the foot of the international bridge in Matamoros.
The Federal Government erected makeshift tent courts on Customs and
Border Protection property. Daily, parents and their children are told
to line up on the international bridge at 4am on the day of their first
hearing. A judge, sitting far from site, entertains the case, and if
the asylum seeker wishes to continue to pursue their case, are assigned
a date for a follow-up hearing. They are then returned to Mexico, where
they continue their wait in the tent cities, often for months into the
future.
What do the children do in the mean time? They sit and sleep in the
small, individual tents (churches have donated individual small tents
for each family) jammed together at the foot of the bridge. This is no
small group of people. Last night, for instance, there were more than
1,500 families at the bridge in Matamoros. Within each tent there are
children huddled inside. These are tents designed for camping, meant to
hold 2-3 people for a short time, not a family with 3 or 4 children who
will be living in this tent for months on end.
In the Matamoros camp there are only 10 porta-potties for the 1,500
people. Unsurprisingly, camp residents find themselves forced to
urinate and defecate in the area surrounding the tent cities.
And then it rains . . . and the rainwater is now contaminated with
fecal matter and urine. The tents are awash in this contaminated water.
Children slip and slide and slosh and sleep in it.
There are no places to play. There is no school. Volunteer teachers
from the United States come once a week and hold English classes for a
few hours with the children. But this is not school, it is
entertainment.
Daily, volunteers from Brownsville bring meals to the families.
They can feed perhaps 800 people, but not the 1,500 folks living there.
Infrequently, the Mexican government will feed up to 200 people.
Practically speaking, there is no food, there is no drinking water,
there is no system in place to deal with human waste.
The Migrant Protocol (MPP) was predicated on an agreement that
Mexico would provide shelter and protection for these families. This
was an impossible condition for Mexico to fulfill, given its inability
to protect its own citizens from organized crime. The immigrants are
completely vulnerable to the gangs, and, oft times, to the police, who
can be one and the same. In Tamaulipas, for example, amongst an
uncountable tally of examples, I would cite:
Nuevo Laredo--a woman left a shelter for food and never returned.
Three adult Venezuelan women with a child asked for help getting to
a shelter in Nuevo Laredo, but were dragged away by armed men.
Another man ran screaming into an office in Nuevo Laredo asking for
help but was dragged away by men with heavy tattoos.
A gang tried to raid a shelter, and the pastor who ran the shelter
tried to resist. He was taken away 3 months ago and there is no news of
his whereabouts.
In Reynosa (across the river from McAllen), a couple was kidnapped
and threatened with being sold for their organs. They managed to escape
and crossed the river into the USA but were returned under MPP. They
are terrified of being caught by the same local gang.
In Matamoros, 2 young women with young sons were sent to Nuevo
Laredo and immediately kidnapped and held in a stash house. Since they
had no relatives in the USA to pay ransom, the gangs dumped them out
and told them, that if they ever return to Nuevo Laredo, they will be
killed. They are waiting in Matamoros in tents for their court
hearings. They have no idea what happened to the others in the stash
house.
A young mother sent back to Matamoros, Mexico under MPP was gang-
raped multiple times this past week in front of her 3-year-old son. She
suffered internal injuries from the sexual assault.
I evaluated a 3-year old girl in Matamoros, who had quit talking
and was no longer potty-trained following the trauma witnessed in her
home country and the 3-month-long journey across Mexico constantly
hiding in the grass and woods from gangs, militia, and Mexico
immigration officials. She had signs of malnutrition.
So, what have we done as a country to solve the problem of
overcrowded, unsanitary, cold processing centers? We have dumped them
in Mexico in overcrowded, unsanitary tent cities, even as winter bears
down upon us. Only emergency medical care being provided by the Mexican
Red Cross. While there are new volunteer medical organizations in the
area, they are not connected with the Mexican health officials,
clinics, or hospitals. It is a recipe for disaster.
The solution is simple: Reverse the Migrant Protection Protocol.
Let the children and their families come into the United States to live
with their family and friends as they process their legitimate claims
for asylum. Do this before we as a Nation are yet, once again,
responsible for the entirely preventable deaths of the innocents who
thought that they could trust us.
Keep the Faith and the Fight!
______
Statement of HIAS
November 19, 2019
HIAS, the American Jewish Community's global refugee organization,
remains deeply opposed to the Migrant Protection Protocols, the
``Remain in Mexico'' policy, and all other efforts to keep asylum
seekers away from our border and out of our asylum system. The right to
seek asylum stems from the 1951 Refugee Convention and has been the law
in this country since the 1980 Refugee Act. In the year since the
Migrant Protection Protocols were first announced by the Department of
Homeland Security, nearly 50,000 asylum seekers have been sent back to
Mexico to wait weeks--or in some cases months--for their court
hearings. In Mexico, these asylum seekers are facing a devastating
humanitarian crisis that has been caused by the U.S. Government's
policies that show a complete disregard for the safety and humanity of
people fleeing violence and persecution in our region, many of whom are
children.
Many refugees returned to Mexico find themselves in cities that
have Department of State Travel Advisory warnings on par with countries
like Syria. With little money, no opportunity for work, and unstable
shelter, returned asylum seekers become targets for organized criminal
groups and corrupt law enforcement agents who routinely kidnap,
torture, rape, and extort them. In Ciudad Juarez, Mexico, women told
HIAS staff that they feared leaving the migrant shelter because they
could see their persecutors from their home countries standing outside
of the gates. For thousands who are not able to find shelter and
protection at all, sleeping on the streets in front of ports of entry,
without adequate access to water, food, or proper sanitation is their
best option.
HIAS is concerned that as numbers of migrants placed in MPP
continues to grow, the backlog for court dates will increase, leading
to longer wait times and more strain on shelters and assistance
providers in Mexico. With little support from the U.S. and Mexican
governments, and NGOs unable to meet the enormous needs, asylum seekers
endure even more threatening and dire conditions. HIAS urges
significant oversight of the Remain in Mexico policy, with special
attention to the devastating humanitarian impact of this policy. We
call on Congress to enact legislation that reinforces and strengthens
laws that protect the right to seek asylum and reject the
administration's policies to deter, harm, and punish refugees at our
Southern Border seeking safety.
______
Joint Letter From Miscellaneous Organizations
November 18, 2019.
The Honorable Jerrold Nadler,
Chair, House Committee on the Judiciary,
The Honorable Bennie G. Thompson,
Chair, House Committee on Homeland Security,
The Honorable Jamie Raskin,
Chair, House Subcommittee on Civil Rights and Civil Liberties,
The Honorable Zoe Lofgren,
Chair, House Judiciary Immigration & Citizenship Subcommittee,
The Honorable Kathleen Rice,
Chair, House Subcommittee on Border Security, Facilitation &
Operations, U.S. House of Representatives, Washington, DC
20515.
Re: Request for Action to End ``Remain in Mexico'' Program
Dear Members of Congress: We are immigration, human rights, and
civil rights organizations and academics, and we write to request that
you take action to end the Trump administration's ``Remain in Mexico''
program, formally referred to by the administration as the ``Migrant
Protection Protocols'' (``MPP''). The Remain in Mexico policy places
asylum seekers in great danger, violates U.S. law, due process, and
international legal obligations, and operates with surgical precision
to ensure that Latin American asylum seekers will almost never be
granted humanitarian relief and protection from the violence they are
fleeing. We urge you to take action to oversee, investigate, and
introduce measures to defund and end this unprecedented policy; we
understand that oversight hearings will be conducted tomorrow.
The Department of Homeland Security (``DHS'') announced Remain in
Mexico in December 2018 and implementation began in January 2019.\1\ As
of October 28, 2019, there are 6 cities along the U.S.-Mexico border
where Remain in Mexico is in effect--San Ysidro, Calexico, El Paso,
Eagle Pass, Laredo, and Brownsville.\2\ Remain in Mexico violates and
evades U.S. asylum law and betrays the core values of asylum policy--to
provide safety and due process to people seeking U.S. refugee
protection.
---------------------------------------------------------------------------
\1\ Policy Guidance for Implementation of the Migrant Protection
Protocols, Kirstjen Nielson, Secretary, Dept. of Homeland Sec., at 1
(Jan. 29, 2019) [Hereinafter ``Policy Guidance''] (on file with
author). See also Letter from Members of Congress to DHS Office of
Inspector General, seeking investigation into the ``Remain in Mexico''
program, Oc. 17, 2019, https://cdn.vox-cdn.com/uploads/chorus_asset/
file/19297475/MPP_letter_to_IG.pdf.
\2\ HUMAN RIGHTS FIRST, ORDERS FROM ABOVE: MASSIVE HUMAN RIGHTS
ABUSES UNDER TRUMP ADMINISTRATION RETURN TO MEXICO POLICY 3, 12 (2019),
https://www.humanrightsfirst.org/sites/default/files/
hrfordersfromabove.pdf.
---------------------------------------------------------------------------
For decades prior to implementation of the Remain in Mexico policy,
asylum seekers who arrived at the Southern U.S. border pursued their
asylum claims from within the United States. Typically asylum seekers
were paroled into the United States, placed into an alternatives-to-
detention program, or detained within the United States while their
case proceeded before the immigration courts (assuming they passed a
Credible Fear Interview, for those individuals subject to expedited
removal).\3\ Under Remain in Mexico, asylum seekers are ``made to wait
in Mexico until an immigration judge resolves their asylum claims.''\4\
This ``wait'' can take many months.\5\ Despite the overwhelming and
ever-present dangers targeting migrants in Northern Mexico, fewer than
1,000 of the over 55,000 migrants placed in the Remain in Mexico
program have been allowed to stay in the United States while pursuing
their cases.\6\ USCIS asylum officers attest that the fear-screening
standard and procedures currently in place ``virtually guarante[e] a
violation'' of international treaty obligations.\7\
---------------------------------------------------------------------------
\3\ Innovation Law Lab v. McAleenan, 924 F.3d 503, 506 (9th Cir.
2019) (per curiam) (staying the preliminary injunction; that injunction
is once again before the Ninth Circuit and oral argument took place on
Oct. 1, 2019).
\4\ Id.
\5\ See HUMAN RIGHTS FIRST, supra note 2 at 4, 6 (recounting
months-long wait times).
\6\ See Dep't of Homeland Sec., Assessment of the Migrant
Protection Protocols (MPP) 5 (Oct. 28, 2019), https://www.dhs.gov/
sites/default/files/publications/assessment_of_the_mi-
grant_protection_protocols_mpp.pdf (``As of October 15, 2019, USCIS
completed over 7,400 screenings to assess a fear of return to Mexico .
. . Of those, approximately 13 percent have received positive
determinations.'').
\7\ Brief of Amicus Curiae Local 1924 at 18, Innovation Law Lab v.
McAleenan, No. 19-15716 (9th Cir. Jun. 26, 2019) (representing the
interests of union-members, including numerous USCIS employees).
---------------------------------------------------------------------------
Migrants forced to remain in Mexico face violence and kidnappings
as well as threats to life, health, and well-being. One study found
that between 21 percent and 24 percent of migrants in the Remain in
Mexico program report receiving threats of violence while in Mexico,
and of those, over 50 percent report that the threats turned into
actual violence, including beatings, robbery, and extortion.\8\
Journalistic accounts indicate that the actual rate of systematic
violence faced by asylum seekers is higher, especially in Northern
Mexican cities along the Texas border where kidnappings are common.\9\
As the administration is well aware, drug and criminal cartels operate
with impunity in Northern Mexican cities including Matamoros and Nuevo
Laredo, and they have systematically targeted migrants.\10\ In
addition, because cities in Northern Mexico long ago ran out of shelter
space, thousands of migrants live in encampments on the streets,
without regular access to food, potable water, or sanitation
facilities.\11\ Despite the best efforts of faith-based and civic
organizations, thousands of migrants are homeless and destitute,\12\
lacking access to necessary health care.\13\ The longer an asylum
seeker must ``wait'' in Mexico, the higher their risk of violence,
homelessness, and discrimination.\14\
---------------------------------------------------------------------------
\8\ TOM K. WONG, U.S. IMMIGRATION POLICY CTR., SEEKING ASYLUM: PART
2, at 9 (2019), https://usipc.ucsd.edu/publications/usipc-seeking-
asylum-part-2-final.pdf.
\9\ Id.
\10\ Mexico Travel Advisory, U.S. DEP'T OF STATE (Apr. 9, 2019),
https://travel.state.gov/content/travel/en/traveladvisories/
traveladvisories/mexico-travel-advisory.html (``Violent crime, such as
murder, armed robbery, carjacking, kidnapping, extortion, and sexual
assault, is common [in Tamaulipas State].''); HUMAN RIGHTS FIRST, supra
note 2, at 4 (2019), https://www.humanrightsfirst.org/sites/default/
files/hrfordersfromabove.pdf.
\11\ HUMAN RIGHTS WATCH, ``WE CAN'T HELP YOU HERE'': U.S. RETURNS
OF ASYLUM SEEKERS TO MEXICO 18-20 (2019).
\12\ Despite earlier promises to the contrary, the Mexican
government has failed to provide migrants with humanitarian visas or
work authorization, leaving them ``stranded for prolonged periods . . .
with no way to support themselves.'' Id. at 2, 6.
\13\ U.S. `Remain in Mexico' Policy Endangers Lives of Asylum
Seekers in Tamaulipas State, MEDECINS SANS FRONTIERES/DOCTORS WITHOUT
BORDERS (Sept. 5, 2019), https://www.doctorswithoutborders.org/what-we-
do/news-stories/news/us-remain-mexico-policy-endangers-lives-asylum-
seekers-tamaulipas.
\14\ WONG, supra note 8, at 9-10.
---------------------------------------------------------------------------
Further, Remain in Mexico has been used as a tool in the
administration's separation of more than 1,000 children from their
families, even after a Federal court and the President ended family
separation as a policy in June 2018. In multiple cases, children
arrived at the U.S.-Mexico border with a parent but were separated,
rendered unaccompanied by DHS officials, and transferred to ORR
facilities across the country, while their parents were subjected to
Remain in Mexico.\15\ It is nearly impossible to advocate for these
children or secure their reunification when the location of their
parents and family members is unknown or unstable due to conditions in
Mexico.\16\
---------------------------------------------------------------------------
\15\ See Letter from Women's Refugee Comm'n to Cameron Quinn,
Office of Civil Rights & Civil Liberties, and Joseph Cuffari, Inspector
Gen., Dep't of Homeland Sec. (Aug. 16, 2019), https://
www.womensrefugeecommission.org/images/zdocs/Separation-of-families-
via-the_Migrant-Protection-Protocols_WRC-complaint-to-DHS.pdf.
\16\ See US: Family Separation Harming Children, Families, HUMAN
RIGHTS WATCH (July 11, 2019), https://www.hrw.org/news/2019/07/11/us-
family-separation-harming-children-families (explaining that children's
family in Mexico may not have access to cell phones or other forms of
communication).
---------------------------------------------------------------------------
In addition, the Remain in Mexico program subjects asylum seekers
to numerous due process violations,\17\ making it almost impossible for
them to pursue their asylum cases. As a result, many will be unfairly
denied asylum and returned to situations of extreme danger in their
home countries.
---------------------------------------------------------------------------
\17\ See U.S. CONST. amend V; 8 U.S.C. 1101(a)(42) (defining
``refugee''). Remain in Mexico also violates principles of
international human rights law. See International Covenant on Civil and
Political Rights, Art. 6, 7, 13, 14, Dec. 9, 1966, 999 U.N.T.S. 171
(ratified June 8, 1992) (establishing a right to life, to freedom from
torture, and to due process, particularly for migrants); Convention
Relating to the Status of Refugees, Art. 31, Apr. 22, 1954, 189
U.N.T.S. 150 (delineating international obligation to accept refugees
who unlawfully entered the country of refuge); Inter-American
Commission on Human Rights (IACHR), American Declaration of the Rights
and Duties of Man, Art. I. XI, XVI, XVIII, XXVII, 2 May 1948, https://
www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm
(declaring rights to life, liberty, personal safety, health and
wellbeing, fair trial, and the right to asylum).
---------------------------------------------------------------------------
First, despite knowing the dangers to migrants in Northern Mexico,
DHS officials at ports of entry fail to ask asylum seekers whether they
will face danger if they are made to wait in Mexico, in violation of
binding principles of non-refoulement.\18\
---------------------------------------------------------------------------
\18\ WONG, supra note 8, at 8.
---------------------------------------------------------------------------
Second, DHS fails to provide safe and assured transportation to and
from removal proceedings for those who are made to wait in Mexico.
Rather, DHS requires migrants to navigate through border areas
controlled by deadly cartels seeking to kidnap and extort them, in
order to make it to a port of entry--often at 4 o'clock AM, only to
wait in line for several hours, often with minor children in tow, for
court hearings that begin at 8 o'clock AM or later.\19\ As a result,
cartels in Northern Mexico have kidnapped migrants in MPP on their way
to and from the port of entry.
---------------------------------------------------------------------------
\19\ Molly Hennessy-Fiske, Tent Courts Open as Latest Hurdle for
Migrants Seeking Asylum in the U.S., LA TIMES (Sept. 16, 2019), https:/
/www.latimes.com/world-nation/story/2019-09-16/secretive-tent-courts-
latest-hurdle-for-asylum-seekers.
---------------------------------------------------------------------------
Third, DHS provides no exceptions for asylum seekers who are unable
to make it to the port of entry on time because of cartel threats,
kidnapping, or assault.\20\ DHS seeks in absentia removal orders for
all Remain in Mexico migrants who fail to appear for their court
hearings, without exception.
---------------------------------------------------------------------------
\20\ See Delivered to Danger: Illegal Remain in Mexico Policy
Imperils Asylum Seekers' Lives and Denies Due Process, HUMAN RIGHTS
FIRST 16 (2019), https://www.humanrightsfirst.org/sites/default/files/
Delivered-to-Danger-August-2019%20.pdf (``[A]sylum seeker[s] . . .
missed their initial immigration court hearing in early July because
they had been kidnapped and were being held for ransom in Ciudad Juarez
at the time. A judge at El Paso immigration court ordered them removed
in absentia.'').
---------------------------------------------------------------------------
Fourth, the Remain in Mexico program impedes access to counsel by
placing asylum seekers in Mexico, at great distance from the vast
majority of immigration attorneys. People with cases in immigration
court have the right to counsel at their own expense.\21\ However,
approximately 98 percent of the 47,313 asylum seekers in the Remain in
Mexico program were unrepresented as of September 2019.\22\ Outside of
Remain in Mexico, about 63 percent of immigrants in removal proceedings
are unrepresented.\23\ Because Remain in Mexico asylum seekers are
barred from entering the United States except for brief appearances at
immigration court hearings, they are unable to meet with U.S.-based
immigration attorneys, making it virtually impossible to obtain
counsel. Asylum success rates drastically increase for migrants who
secure counsel. For those migrants who are miraculously able to secure
counsel, attorneys are drastically limited in the representation they
can provide--given the complex legal standards and the trauma
experienced by asylum seekers, meaningful representation requires many
hours of client interviews and preparation, and this work simply cannot
take place when lawyer and client are separated by an international
border.\24\
---------------------------------------------------------------------------
\21\ See 8 C.F.R. 1240.10(a) (``Advise the respondent of his or
her right to representation, at no expense to the government, by
counsel of his or her own choice authorized to practice in the
proceedings and require the respondent to state then and there whether
he or she desires representation.'').
\22\ Details on MPP (Remain in Mexico) Deportation Proceedings,
TRAC IMMIGRATION (Sep. 2019), https://trac.syr.edu/phptools/
immigration/mpp/ (follow these steps: check ``Measure'' as ``Current
Status''; check ``Graph Time Scale'' as ``by Month and Year''; select
``Hearing Location'' on leftmost dropdown menu; select ``Represented''
on center dropdown menu; check ``Represented'' on rightmost dropdown
menu) (last visited Nov. 3, 2019).
\23\ INGRID EAGLY & STEVEN SHAFER, ACCESS TO COUNSEL IN IMMIGRATION
COURT 2 (2016). Migrants with representation are 4 times more likely to
be released from detention, and 11 times more likely to seek asylum
than those without counsel. Id. Migrants with representation are much
more likely to obtain the relief they seek. Id. at 3.
\24\ See HUMAN RIGHTS WATCH, supra note 11, at 35 (``[T]here are
limited opportunities for the communication required to prepare asylum
seekers' cases, according to attorneys and shelter operators.'').
---------------------------------------------------------------------------
U.S.-based immigration attorneys hesitate to take cases if they
cannot meet face-to-face with their clients to discuss sensitive facts
in their asylum cases. These attorneys hesitate to travel to
notoriously dangerous areas of Mexico, including Matamoros or Nuevo
Laredo, because the U.S. State Department designates the Mexican state
of Tamaulipas, where these cities are located, a Level 4 ``Do Not
Travel'' zone due to ``crime and kidnapping.''\25\ Attorneys are
understandably unwilling to risk their lives to take on Remain in
Mexico clients.\26\ Additionally, cartels and criminal organizations
who target asylum seekers are acutely aware of any U.S. contacts
migrants have. Having counsel in the United States actually increases
the risk of danger for a migrant since it adds visibility through in-
person meetings or phone contact.
---------------------------------------------------------------------------
\25\ Mexico Travel Advisory, U.S. DEP'T OF STATE (Apr. 9, 2019)
https://travel.state.gov/content/travel/en/traveladvisories/
traveladvisories/mexico-travel-advisory.html.
\26\ See HUMAN RIGHTS WATCH, supra note 11, at 34 (describing the
danger to attorneys who cross the border to represent migrants).
---------------------------------------------------------------------------
Fifth, the immigration court hearings themselves, conducted by
Executive Office of Immigration Review (``EOIR'') judges, subject
Remain in Mexico migrants to further violations of procedural due
process. Many of the hearings are conducted by video, often with the
asylum seeker sitting in a portable trailer in a hastily-constructed
temporary tent compound. Court observers have noted that lapses in
video connectivity prohibit judges located remotely from conducting
effective hearings for asylum seekers in the Remain in Mexico program.
Inaccuracies in translation further compound the errors. In addition,
EOIR judges do not provide consistent information about the process to
asylum seekers (e.g., how to turn in the application for asylum, and
the consequences of missing a court date) and do not ask every asylum
seeker if they are afraid to return to Mexico. Sometimes DHS provides
asylum seekers with a Notice to Appear (the charging document)
indicating the wrong date or location of the hearing. DHS only provides
court documents (such as the Notice to Appear and the asylum
application) in English, and asylum seekers must submit all
applications and evidence in English, although they are trapped in
Mexico without U.S. attorneys to assist them.
The Remain in Mexico policy violates fundamental due process
principles.\27\ We implore the U.S. Congress to respond accordingly. We
ask that you take the necessary steps to defund and end this policy
that undermines domestic and international legal protections for asylum
seekers.
---------------------------------------------------------------------------
\27\ See supra note 17 and accompanying text.
---------------------------------------------------------------------------
Sincerely,
organizations
Alabama Coalition for Immigrant Justice
Advocate Visitors with Immigrants in Detention in the Chihuahuan Desert
Al Otro Lado
Alianza Americas
American Civil Liberties Union
American Gateways
American Immigration Lawyers Association
Americans for Immigrant Justice
Arab American Family Services
Asian Americans Advancing Justice/Chicago
ASISTA Immigration Assistance
Asylum Seeker Advocacy Project (ASAP)
Bay Area Sex Worker Advocacy Network (BAYSWAN)
Bellevue Program for Survivors of Torture
Beyond Legal Aid
Border Crit Institute
Boston University School of Law, Immigrants' Rights and Human
Trafficking Program
Brighton Park Neighborhood Council
Capital Area Immigrants' Rights Coalition
Catholic Migration Services
Center for Gender & Refugee Studies
Center for Justice and International Law (CEJIL)
Centro Legal de La Raza
Children's Defense Fund--National Office
Children's Defense Fund--Texas
Christian Community Development Association
Christian Reformed Church Office of Social Justice
Cien Amigos
Club Taji Ciudad Hidalgo
Coalicion de Derechos Humanos
Coalition for Humane Immigrant Rights--CHIRLA
Colectivo Mujeres Transnacionales
Columbia Law School Immigrants' Rights Clinic
Congregation of Our Lady of Charity of the Good Shepherd, U.S.
Provinces
Cornell Law School's Asylum and Convention Against Torture Appellate
Clinic
DC-MD Justice For Our Neighbors
Ecuandureo Unido
End Streamline Coalition
Equal Justice Center
Familias Unidas en Accion
Families Belong Together Mexico
Families Belong Together
Federacion de Clubes Michoacanos en Illinois
Federacion de Clubes Unidos Zacatecanos en Illinois
Freedom for Immigrants
Government Accountability Project
Grassroots Leadership
Guatemala Solidarity Boston
Hispanic Liaison/El Vinculo Hispano
Houston Immigration Legal Services Collaborative
Tahirih Justice Center, Houston Office
Human Rights Coalition
Human Rights Initiative of North Texas
Illinois Coalition for Immigrant and Refugee Rights
Immigrant Families Together
Immigrant Legal Advocacy Project
Immigrant Legal Resource Center
Indivisible Sacramento
IRCSGV
Jefferson County Immigrant Rights Advocates (JCIRA)
Jesus Nebot International
Kids in Need of Defense
La 72, Hogar--Refugio para Personas Migrantes
Lake County Immigrant Advocacy
Latin America Working Group (LAWG)
Legal Aid Justice Center
Living Hope Wheelchair Association
Lowcountry Immigration Coalition
Lutheran Immigration and Refugee Service
Mano a Mano Family Resource Center
Migrant Center for Human Rights
National Advocacy Center of the Sisters of the Good Shepherd
National Center for Youth Law
National Immigrant Justice Center
National Immigration Project of the National Lawyers Guild
National Korean American Service and Education Consortium, Illinois
Coalition for Immigrant and Refugee Rights
National Network for Immigrant and Refugee Rights
National Partnership for New Americans (NPNA)
NETWORK Lobby
New Mexico Immigrant Law Center
Northern Manhattan Coalition for Immigrant Rights (NMCIR)
Pangea Legal Services
PASO--West Suburban Action Project
Priests of the Sacred Heart, USA Province
Project IRENE
Project On Government Oversight
Quixote Center
Refugee and Immigrant Center for Education and Legal Services (RAICES)
Refugee Solidarity Network
Refugees International
Religious of the Sacred Heart of Mary, Western American Province
Safe Passage Project
School Sisters of Notre Dame--Central Pacific Province
Sisters of St. Francis of Philadelphia
Sisters of St. Joseph of Orange
South Texas Human Rights Center
Southern Poverty Law Center
Southwest Suburban Immigrant Project
Still Waters Anti-Trafficking Program
Student Action with Farmworkers
The Alliance
The Chelsea Collaborative
The Rhizome Center for Migrants
T'ruah: The Rabbinic Call for Human Rights
Texas Center for Community Services
U.S. Committee for Refugees and Immigrants (USCRI)
UNC School of Law Clinical Programs
Unitarian Universalist Association
Unitarian Universalist Service Committee
University of Maryland Carey Immigration Clinic
University of Tulsa College of Law Legal Clinic
US Human Rights Network
Washington Office on Latin America
WESPAC Foundation
WITNESS
Women in Migration Network (WIMN)
Young Center for Immigrant Children's Rights
academics and scholars
Affiliations are for identification purposes only.
Raquel Aldana, Associate Vice Chancellor for Academic Diversity and
Professor of Law, UC Davis
Jon Bauer, Clinical Professor of Law and Richard D. Tulisano 1969
Scholar in Human Rights, University of Connecticut School of Law
Bill Beardall, Clinical Professor of Law, University of Texas School of
Law
Galya Ben-Arieh, Professor, Northwestern University
Lenni Benson, Distinguished Professor of Immigration Law and Human
Rights, New York Law School
Jacqueline Bhabha, Director of Research, Harvard FXB Center for Health
and Human Rights
Kaci Bishop, Clinical Associate Professor of Law, UNC School of Law
Clinical Programs
Deborah A. Boehm, Professor, Anthropology and Gender, Race, and
Identity, University of Nevada, Reno
Emily Bosk, Assistant Professor of Social Work, Rutgers University
Stella Burch Elias, Professor and Chancellor, William Gardiner Hammond
Fellow in Law, University of Iowa College of Law
Jason A. Cade, J. Alton Hosch Associate Professor of Law; Director,
Community Health Law Partnership, University of Georgia School of Law
Kristina M. Campbell, Jack & Lovell Olender Professor of Law and Co-
Director, Immigration & Clinic Rights Clinic, UDC David A. Clarke
School of Law
Stephanie L Canizales, Assistant Professor of Sociology, UC Merced
Lauren Carasik, Clinical Professor of Law, Director of the
International Human Rights Clinic, Western New England University
School of Law
Jodi Berger Cardoso, Associate Professor, University of Houston
Jennifer M. Chacon, Professor of Law, UCLA School of Law
Linus Chan, Associate Clinical Professor of Law, University of
Minnesota
Michael J Churgin, Raybourne Thompson Centennial Professor in Law,
University of Texas at Austin
Jenny-Brooke Condon, Professor of Law, Center for Social Justice, Seton
Hall Law School
Laurie Cook Heffron, Assistant Professor, St. Edward's University
Erin B. Corcoran, Executive Director, Kroc Institute for International
Peace Studies
Ivan de la Rosa, Associate Professor, New Mexico State University
Jennifer Chappell Deckert, Associate Professor of Social Work, Bethel
College
Kate Evans, Director, Immigrant Rights Clinic, Duke University School
of Law
Jill E. Family, Commonwealth Professor of Law and Government, Widener
Law Commonwealth
Monica Faulkner, Director, Texas Institute for Child and Family
Wellbeing, University of Texas at Austin School of Social Work
Rebecca Feldmann, Visiting Assistant Professor, Villanova University
Charles Widger School of Law
Megan Finno-Velasquez, Assistant Professor, New Mexico State University
Paula Galowitz, Clinical Professor of Law Emerita, New York University
School of Law
Lauren Gilbert, Professor of Law, St. Thomas University School of Law
Denise Gilman, Clinical Professor, University of Texas School of Law
Valeria Gomez, Clinical Teaching Fellow, University of Connecticut
School of Law
Anju Gupta, Professor of Law & Director of the Immigrant Rights Clinic,
Rutgers Law School
Susan Gzesh, Senior Lecturer, University of Chicago--Pozen Center for
Human Rights
Lindsay M. Harris, Associate Professor & Co-Director of Immigration and
Human Rights Clinic, University of the District of Columbia David A.
Clarke School of Law
Kayleen Hartman, Supervising Attorney/Clinical Teaching Fellow, Loyola
Immigrant Justice Clinic
Susan Hazeldean, Associate Professor of Law, Brooklyn Law School
Geoffrey Heeren, Visiting Clinical Professor, University of Iowa
College of Law
Laura A. Hernandez, Professor of Law, Baylor Law School
Robin Hernandez-Mekonnen, Associate Professor, Child Welfare Education
Institute
Josiah Heyman, Endowed Professor of Border Trade and Director, Center
for Inter-American and Border Studies, University of Texas at El Paso
Barbara Hines, Clinical Professor (Retired), University of Texas School
of Law
Laila L. Hlass, Professor of Practice, Tulane University School of Law
Geoffrey Hoffman, Director, University of Houston Law Center
Madeline Hsu, Professor, University of Texas at Austin
Alan Hyde, Distinguished Professor, Rutgers Law School
Kit Johnson, Associate Professor of Law, The University of Oklahoma
College of Law
Lynn Kalinauskas, Lecturer, University of Colorado Denver
Elizabeth Keyes, Associate Professor, University of Baltimore
Jennifer Lee Koh, Visiting Professor of Law, UC Irvine School of Law
Jonathan Kratz, Clinical Assistant Professor, Graduate Coordinator
Krista Kshatriya, Lecturer, UC San Diego
Jennifer Lee, Associate Clinical Professor of Law, Temple Law School
Stephanie Leutert, Director, Central America and Mexico Policy
Initiative, University of Texas at Austin
Alysse Loomis, Assistant Professor, University of Utah College of
Social Work
Karen Pita Loor, Associate Dean of Experiential Education & Associate
Clinical Professor of Law, Boston University Law School
James Loucky, Professor, Western Washington University
Beth Lyon, Clinical Professor of Law, Cornell Law School
Peter Margulies, Professor of Law, Roger Williams University School of
Law
Peter Markowitz, Professor of Law, Cardozo School of Law
Fatma Marouf, Professor of Law and Director of the Immigrant Rights
Clinic, Texas A&M University School of Law
Susan Martin, Donald G. Herzberg Professor Emerita in International
Migration, Georgetown University
Jose L. Martinez, South Texas College of Law Houston--Legal Clinics
Miriam Marton, Associate Dean of Experiential Learning, University of
Tulsa College of Law Legal Clinic
Elizabeth McCormick, Associate Clinical Professor of Law, The
University of Tulsa College of Law
Thomas M. McDonnell, Professor of Law, Elisabeth Haub School of Law at
Pace University
Estelle M McKee, Clinical Professor, Cornell Law School's Asylum and
Convention Against Torture Appellate Clinic
Vanessa Merton, Professor of Law, Immigration Justice Clinic, Elisabeth
Haub School of Law at Pace University
Katie Herbert Meyer, Assist. Prof. of Practice & Director, Washington
University Immigration Law Clinic
Jennifer Moore, Professor of Law, University of New Mexico School of
Law
Craig B. Mousin, Adjunct Faculty, DePaul University College of Law
Karen Musalo, Professor of Law, U.C. Hastings
Jennifer Nagda, Policy Director, Young Center for Immigrant Children's
Rights
Natalie Nanasi, Assistant Professor, Southern Methodist University
Dedman School of Law
Ranjana Natarajan, Clinical Professor, University of Texas School of
Law
Ruth Needleman, Professor Emeritus, Indiana University
Joan Neuberger, Professor, University of Texas at Austin
Emily Torstveit Ngara, Assistant Clinical Professor, Georgia State
University College of Law
Kerrie Ocasio, Assistant Professor, West Chester University of
Pennsylvania
Helena Olea-Rodriguez, Lecturer, University of Illinois at Chicago
Michael A. Olivas, Bates Distinguished Chair in Law, University of
Houston Law Center
John Palmer, Professor, Pompeu Fabra University
Sarah H. Paoletti, Practice Professor of Law and Director,
Transnational Legal Clinic, University of Pennsylvania School of Law
Mark Peters, Director of Justice, Peace and Reconciliation, Priests of
the Sacred Heart, USA Province
Nina Rabin, Director, Immigrant Family Legal Clinic, UCLA School of Law
Jaya Ramji-Nogales, Professor, Temple University
Shruti Rana, Professor, Indiana University, Bloomington
Victor Romero, Professor of Law, Penn State Law--University Park
Carrie Rosenbaum, Lecturer & Visiting Scholar, UC Berkeley
Lory Rosenberg, Appellate Immigration Judge (Retired), Immigrant
Defenders Law Group
Rachel E. Rosenbloom, Professor of Law, Northeastern University School
of Law
Abigail M Ross, Assistant Professor, Fordham University Graduate School
of Social Service
Ruben G. Rumbaut, Distinguished Professor, UC Irvine
Daniel G Saunders, Professor Emeritus, University of Michigan
Irene Scharf, Professor of Law, University of Massachusetts School of
Law
Anne Schaufele, Practitioner-in-Residence, International Human Rights
Law Clinic, American University, Washington College of Law
Erica Schommer, Clinical Professor of Law, St. Mary's University
Immigration and Human Rights Clinic
Philip G. Schrag, Delaney Family Professor of Public Interest Law,
Georgetown University
Barbara Schwartz, Clinical Professor Emeritus, University of Iowa
College of Law
Jaime Sepulveda, Distinguished Professor, Global Health, UC San
Francisco
Ragini Shah, Clinical Professor of Law, Suffolk University Law School
Rebecca Sharpless, Professor, University of Miami School of Law,
Immigration Clinic
Sarah Sherman-Stokes, Associate Director, Immigrants' Rights and Human
Trafficking Program, Boston University School of Law
Shawn Sidhu, University of New Mexico School of Medicine, James D.
Simon
Assistant Professor, California State University, San Bernardino
Jeremy Slack, Assistant Professor, University of Texas at El Paso
Elissa Steglich, Clinical Professor, University of Texas School of Law
Christopher Strawn, Director, Immigration Law Clinic, University of
Washington
Maureen Sweeney, Law School Professor, Carey Immigration Clinic,
University of Maryland
Margaret Taylor, Professor of Law, Wake Forest University School of Law
Susan Terrio, Professor Emerita of Anthropology, Georgetown University
Claire R. Thomas, Director, Asylum Clinic, New York Law School
David B. Thronson, Alan S. Zekelman Professor of International Human
Rights Law, Michigan State University College of Law
Veronica T. Thronson, Clinical Professor of Law, Michigan State
University College of Law
Yolanda Vazquez, Professor of Law, University of Cincinnati College of
Law
Margaret Brown Vega, College Assistant Professor, New Mexico State
University
Rosemary Vega, Clinical Lecturer, UHLC Immigration Clinic
Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and Clinical
Professor of Law, Penn State Law in University Park
Jonathan Weinberg, Associate Dean for Research & Faculty Development
and Professor of Law, Wayne State University Law School
Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law
Anna Welch, Clinical Professor, Refugee and Human Rights Clinic, Maine
Law
Luis H. Zayas, Dean and Professor, The University of Texas at Austin
Katie Zeiders, Associate Professor, University of Arizona
Lauris Wren, Clinical Professor of Law, Maurice A. Deane School of Law,
Hofstra University
______
Statement of Human Rights Watch
November 19, 2019
Chairman Thompson, Chairwoman Rice, Ranking Member Rogers, Ranking
Member Higgins, and distinguished Members of the Border Security,
Facilitation, and Operations Subcommittee, thank you for the
opportunity to submit a written statement into the record for today's
hearing, ``Examining the Human Rights and Legal Implications of DHS's
`Remain in Mexico' Policy.''
Human Rights Watch is a non-profit, independent organization that
investigates allegations of human rights violations in more than 90
countries around the world, including the United States. We document
human rights violations, issue detailed reports, and advocate for
changes in law, policy, and practice to address the harms.
In July 2019, Human Rights Watch released a report entitled, ``We
Can't Help You Here'': US Returns of Asylum Seekers to Mexico, on the
Migrant Protection Protocols (``MPP'') program.\1\ In September and
October 2019, we released updates on the escalating abuses of the
program.\2\ As part of our investigations into the human rights impact
of this program, we have interviewed dozens of asylum seekers in Ciudad
Juarez, Matamoros, and Reynosa, Mexico, as well as Mexican officials,
U.S. attorneys, U.S. immigration court workers, advocates, and others.
We have heard first-hand the testimonies of people who have described
being kidnapped, raped, and assaulted; families with children who lack
adequate shelter; and asylum seekers who face high if not
insurmountable barriers receiving due process on their asylum claims.
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\1\ Human Rights Watch, ``We Can't Help You Here:'' US Returns of
Asylum Seekers to Mexico, July 2, 2019, https://www.hrw.org/report/
2019/07/02/we-cant-help-you-here/us-returns-asylum-seekers-mexico.
\2\ Human Rights Watch, ``Mexico: Risks at Border for Those With
Disabilities,'' October 29, 2019, https://www.hrw.org/news/2019/10/29/
mexico-risks-border-those-disabilities; Human Rights Watch, ``US Move
Puts More Asylum Seekers at Risk,'' September 25, 2019, https://
www.hrw.org/news/2019/09/25/us-move-puts-more-asylum-seekers-risk.
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Since the start of the MPP program in January 2019, over 55,000
asylum seekers, including at least 16,000 children, have been returned
to Mexico. Customs and Border Protection (``CBP'') continues to return
asylum seekers with disabilities or other chronic health conditions to
Mexico, despite the Department of Homeland Security's initial guidance
that no one with ``known physical/mental health issues'' would be
placed in the program. In Ciudad Juarez, Human Rights Watch documented
6 such cases, 4 of them children, in August and September alone. Human
Rights Watch has also found that the Mexican government does not have a
proper system in place there to screen and identify asylum seekers with
disabilities and chronic health conditions. The authorities have not
ensured physical accessibility in shelters, even new ones. Nor are they
consistently providing information about and access to health care for
asylum seekers with disabilities or chronic health conditions.
A program that was initially limited to Tijuana and Mexicali now
includes Ciudad Juarez, Matamoros, Reynosa, and Nuevo Laredo, some of
the most dangerous cities in Mexico.
Matamoros, Reynosa, and Nuevo Laredo are in the state of
Tamaulipas, for which the U.S. State Department Travel Advisory is ``Do
Not Travel,'' the same as for Afghanistan and Syria.
The inherently inhumane ``Remain in Mexico'' program is getting
more abusive by the day. The program's rapid growth in recent months
has put even more individuals and families in danger in Mexico while
they await an increasingly unfair legal process in the United States.
asylum seekers stranded with no means to survive
Asylum seekers who spoke to Human Rights Watch expressed fear and
confusion at the prospect of being made to wait in a city where they
did not have social ties, legal authorization to work, and access to
shelter, since the number of asylum seekers in the city already far
exceeded available free shelter space.
In the MPP program, those who can't afford to pay for a hotel room
or private residence sleep on the streets or stay in churches or
abandoned homes. Most asylum seekers fleeing Central America have
extremely limited means and often cannot pay for shelter, food, water,
or other necessities. In particular, in Matamoros, Mexico, as many as
1,500 migrants are living in a tent encampment near the Brownsville
port of entry amid deteriorating medical and sanitary conditions.\3\ If
these asylum seekers were pursuing their cases in the United States,
they would more likely be able to access support to sustain themselves
while their claims are pending through personal networks. Although
asylum seekers are not legally eligible to apply for work in the United
States until their cases have been won or 150 days have passed, nearly
84 percent of the asylum seekers in the MPP program reported having
relatives in the United States, according to the Mexican government.
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\3\ Nomaan Merchant, Tents, stench, smoke: Health risks are
gripping migrant camp, The Associated Press, November 14, 2019, https:/
/apnews.com/337b139ed4fa4d208b93d491364e04da.
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returned asylum seekers facing physical violence, threats
The precarious existence of asylum seekers and their identity as
non-Mexicans in northern Mexico increases their vulnerability to
physical harm.
According to the Mexican government, the country is currently
facing a violent public security crisis. Mexico recorded more
intentional homicides in 2018 than it has since the country began
keeping records in 1997, and 3 of the states to which asylum seekers
are being returned under MPP, Baja California, Chihuahua, and
Tamaulipas, are among the most violent in the country.
Among those asylum seekers Human Rights Watch interviewed, several
reported attacks on themselves or others, including kidnapping, sexual
violence, and other violent assaults. For example:
Delfina M. (pseudonym), 20, an asylum seeker who fled
Guatemala with her 4-year-old son, said that after she was
returned to Ciudad Juarez, two men grabbed her in the street
and sexually assaulted her, which her son witnessed. They told
her not to scream and threatened to kill her son. ``I can still
feel the dirtiness of what they did in my body,'' she said.
Rodrigo S. (pseudonym), 21, who fled El Salvador, told a
judge in immigration court proceedings that he was robbed at
knifepoint and stabbed in the back. He said he went to the
police, but the Mexican officers wouldn't help him because he
wasn't a Mexican citizen. He told the judge that although he is
recovering physically, he's afraid to be sent back.
Esteban G. (pseudonym), 19, said in immigration court he was
robbed when he left his room to go to the store for food. He
told police he suspected a neighbor of stealing his cell phone.
When police investigated the neighbor, they recovered his cell
phone, but after that, the neighbor's family threatened to hurt
him.
Kimberlyn, a 23-year-old Honduran, told Human Rights Watch
she had been kidnapped by a taxi driver along with her 5-year-
old daughter upon returning to Ciudad Juarez after her first
court hearing in the United States in April. The driver
released them within hours but said he would kill them if her
family did not pay a ransom. She showed Human Rights Watch
deposit receipts for $800 in payments made by relatives in
Honduras.
Human Rights Watch additionally spoke with two asylum seeker
mothers with small children who said they were kidnapped in Nuevo
Laredo in early October on their way to present themselves at the
Laredo port of entry for a court hearing. Upon their release, the
kidnappers told them they had to leave town or die. They consequently
missed their court hearing in Laredo and were likely ordered removed in
absentia. The Mexico City-based Institute for Women in Migration has
documented 212 kidnappings of migrants in the State of Tamaulipas from
mid-July through October 15 with 197 occurring in Nuevo Laredo.\4\
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\4\ Maria Verza, Migrants thrust by US officials into the arms of
the cartels, November 15, 2019, https://www.washingtonpost.com/world/
the_americas/migrants-thrust-by-us-officials-into-the-arms-of-the-
cartels/2019/11/15/84770670-07e5-11ea-ae28-7d1898012861_story.html.
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Despite these risks, the program's ``nonrefoulement'' screening
process administered by U.S. Citizenship and Immigration Services
asylum officers to determine whether a migrant faces harm in Mexico has
come under criticism from U.S. officials involved in administering
interviews or who have reviewed the process.\5\ According to Buzzfeed
News, a team of senior Department of Homeland Security (``DHS'')
officials who examined the Remain in Mexico program found that asylum
officers face pressure in at least some locations along the border to
``arrive at negative outcomes when interviewing migrants on their claim
of fear of persecution or torture.''\6\
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\5\ Greg Sargent, In scathing manifesto, an asylum officer blasts
Trump's cruelty to migrants, The Washington Post, November 12, 2019,
https://www.washingtonpost.com/opinions/2019/11/12/scathing-manifesto-
an-asylum-officer-blasts-trumps-cruelty-migrants/.
\6\ Hamed Aleaziz, U.S. Border Officials Pressured Asylum Officers
To Deny Entry To Immigrants Seeking Protection, A Report Finds,
BuzzFeed News, November 14, 2019, https://www.buzzfeednews.com/article/
hamedaleaziz/dhs-asylum-report-mpp-immigration-remain-mexico.
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severely limited access to attorneys, chaotic, closed court hearings
Meanwhile, asylum seekers forced to remain in Mexico have no
meaningful due process. Immigration attorneys and advocates in the
United States indicate the need for legal services for returned asylum
seekers in Mexico is overwhelming and that attorneys working to provide
low-cost or free representation face serious barriers to providing that
representation, including returned asylum seekers' lack of fixed
addresses and telephone numbers. According to the Transactional Records
Access Clearinghouse at Syracuse University, a research center that
examined U.S. immigration court records through September 2019, only 2
percent of returnees have legal representation.\7\
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\7\ TRAC Immigration, Access to Attorneys Difficult for Those
Required to Remain In Mexico, https://trac.syr.edu/immigration/reports/
568/.
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In recent months, the U.S. Government has raised new barriers to
obtaining representation and accessing counsel and the immigration
courts are increasingly closed to the public. During the week of
September 9, the Trump administration began conducting hearings for
asylum seekers returned to Mexico in makeshift tent courts in Laredo
and Brownsville, where judges are expected to preside via
videoconference. Citing ``heightened security measures'' since the
courts are located near the border, DHS has denied attorneys without a
signed representation agreement, as well as journalists, entry to these
port-of-entry courts.\8\ Obtaining a signed representation agreement
outside of court for attorneys seeking to represent clients who are
part of the Remain in Mexico program implies difficult and potentially
dangerous travel to Mexico.
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\8\ Bianca Seward, Mariana Atencio and Daniella Silva, Tent court
hearings for migrants ramp up in Texas as lawyers decry lack of access,
NBC News, September 16, 2019, nbcnews.com/news/latino/tent-court-
hearings-migrants-ramp-texas-lawyers-decry-lack-access-n1054991.
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The United States should immediately cease returning asylum seekers
to Mexico and instead ensure them access to humanitarian support,
safety, and due process in asylum proceedings here in the United
States. Congress should urgently act to prohibit using Government funds
to continue this program. The United States should manage asylum-seeker
arrivals through a genuine humanitarian response that includes a fair
determination of an asylum seeker's protection claim in a safe and
dignified environment that enables that person to seek legal and social
support while their claim is pending so they will not be forced to
abandon their claims for protection because of fear or destitution.
______
Statement of the International Refugee Assistance Project (IRAP)
November 18, 2019
about the international refugee assistance project
The International Refugee Assistance Project (IRAP) provides
comprehensive legal services to refugees and displaced persons. Since
our establishment, we have provided legal assistance to thousands of
displaced persons seeking legal pathways from conflict zones to safe
countries. IRAP provides pro bono legal representation, legal advice,
and expert referrals to refugees all over the world.
IRAP's goal is to ensure that available services and legal
protections go to those who are most in need. Our clients include LGBTI
individuals, religious minorities subject to targeted violence,
survivors of sexual and gender-based violence, children with medical
emergencies for which local treatment is not available, and
interpreters being hunted down by the Islamic State, militias, and the
Taliban in retaliation for their work with the United States and NATO.
Our clients also include individuals who are seeking asylum in the
United States and individuals in the United States who are seeking
family reunification with members of their family still outside of the
country.
the ``remain in mexico'' policy
The Department of Homeland Security (DHS) began instituting in
January 2019 the ``Migrant Protection Protocols'' (MPP)--i.e., the
``Remain in Mexico'' Policy--whereby certain immigrants entering or
seeking admission to the United States from Mexico without proper
documentation ``may be returned to Mexico and wait outside of the
United States for the duration of their immigration proceedings, where
Mexico will provide them with all appropriate humanitarian protections
for the duration of their stay.''\1\ This includes asylum seekers,
persons seeking protection under withholding of or protection from
removal, and persons ``who claim a fear of return to Mexico at any
point during apprehension, processing, or such proceedings, but who
have been assessed not to be more likely than not to face persecution
or torture in Mexico.''\2\
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\1\ Department of Homeland Security, ``Migrant Protection
Protocols,'' Jan. 24, 2019, https://www.dhs.gov/news/2019/01/24/
migrant-protection-protocols [``DHS, `Migrant Protection Protocols'
''].
\2\ DHS, ``Migrant Protection Protocols.''
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Such individuals will be given a ``Notice to Appear'' for their
immigration court hearing, will be returned to Mexico until their
hearing date, and are to be allowed to return to the United States to
enter and attend immigration court hearings if necessary, before
returning to Mexico to await a final determination.\3\
---------------------------------------------------------------------------
\3\ Id.
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As motivation for MPP, DHS has stated that ``will help restore a
safe and orderly immigration process, decrease the number of those
taking advantage of the immigration system, and the ability of
smugglers and traffickers to prey on vulnerable populations, and reduce
threats to life, National security, and public safety, while ensuring
that vulnerable populations receive the protections they need.'' DHS
has repeatedly stated that immigrants waiting in Mexico will be provide
with appropriate humanitarian protection for the duration of their stay
there.
MPP is one component of a multi-pronged attempt to undermine and
dismantle the long-standing American asylum system and American
tradition of providing safe haven to those fleeing persecution in their
countries of origin. This includes proposed and/or implemented policies
like the November 2018 asylum ban on those who crossed the southern
U.S. border between official ports of entry;\4\ ``safe third country''
asylum ban of July 2019 on those who passed through a third country en
route to seeking safety in the United States;\5\ and increasing the use
of immigration detention for families.\6\ Alongside these efforts, MPP
violates U.S. international legal obligations and the Congressionally-
created U.S. asylum system; puts at serious risk vulnerable individuals
who have fled life-threatening danger in their home countries and are
returned to dangerous conditions in Mexico rather than being allowed to
pursue their asylum claims in the United States; and undermines due
process and creates obstacles to representation for asylum seekers.
---------------------------------------------------------------------------
\4\ Department of Homeland Security and the Department of Justice's
Notice of Proposed Rulemaking on Aliens Subject to a Bar on Entry Under
Certain Presidential Proclamations; Procedures for Protection Claims,
EOIR Docket No. 18-0501, A.G. Order No. 4327-2018, 83 F.R. 55934,
issued Nov. 9, 2018, https://www.govinfo.gov/content/pkg/FR-2018-11-09/
pdf/2018-24594.pdf.
\5\ Department of Justice and the Department of Homeland Security,
Notice of an Interim Final Rule and Request for Comment on Asylum
Eligibility and Procedural Modifications, EOIR Docket No. 19-0504, A.G.
Order No. 4488-2019, 84 F.R. 33829, issued July 16, 2019, https://
www.govinfo.gov/content/pkg/FR-2019-07-16/pdf/2019-15246.pdf.
\6\ See, e.g., Department of Homeland Security, Notice of Proposed
Rulemaking on the Aprehension, Processing, Care, and Custody of Alien
Minors and Unaccompanied Alien Children, DHS Docket No. ICEB-2018-0002,
83 F.R. 45486, issued September 7, 2019, https://www.govinfo.gov/
content/pkg/FR-2018-09-07/pdf/2018-19052.pdf.
---------------------------------------------------------------------------
``remain in mexico'' violates u.s. international legal obligations and
the congressionally-created u.s. asylum system
The Refugee Act of 1980, including the provisions of the U.S. code
relevant to asylum, were enacted by Congress ``to bring United States
refugee law into conformance with the 1967 United Nations Protocol
Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. 6577, to
which the United States acceded in 1968.''\7\ The 1967 Protocol amends
the 1951 Refugee Convention, and together they create a legal framework
to establish the definition and rights of refugees.\8\ By becoming
signatories, the 148 countries that are party to one or both of these
legal instruments--including the United States--incurred an obligation
to individuals who ``suffer such serious violations of their human
rights that they have to leave their homes, their families, and their
communities to find sanctuary in another country.''\9\ Although a
Federal court has ruled \10\ that the Protocol is not self-
executing,\11\ the Protocol was given domestic legal force by the
Refugee Act of 1980, which provides ``a useful guide in determining
Congressional intent in enacting the Refugee Act.''\12\
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\7\ East Bay Sanctuary Covenant v. Trump, United States District
Court, Northern District of California, ``Order Granting Temporary
Restraining Order; Order to Show Cause Re Preliminary Injunction,''
Nov. 19, 2018, p. 20 (citing to I.N.S. v. Cardoza-Fonseca, 480 U.S.
421, 436-37 (1987)).
\8\ UNHCR, ``The 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol,'' Sept. 2011, p. 1, https://www.unhcr.org/en-us/
about-us/background/4ec262df9/1951-convention-relating-status-refugees-
its-1967-protocol.html.
\9\ Id. at p. 2.
\10\ Khan v. Holder, 583 F.3d 773, 783 (9th Cir. 2009).
\11\ ``Self-executing'' has been defined ``at a general level . . .
as a treaty that may be enforced in the courts without prior
legislation by Congress, and a non self-executing treaty, conversely,
as a treaty that may not be enforced in the courts without prior
legislative `implementation.' '' Carlos Manuel Vazquez, Georgetown Law
Faculty Publications and Other Works, ``The Four Doctrines of Self-
Executing Treaties,'' p. 1016, 1995, https://
scholarship.law.georgetown.edu/facpub/1016.
\12\ East Bay Sanctuary Covenant v. Trump, United States District
Court, Northern District of California, ``Order Granting Temporary
Restraining Order; Order to Show Cause Re Preliminary Injunction,''
Nov. 19, 2018, p. 20 (citing to Khan v. Holder, 583 F.3d 773, 783 (9th
Cir. 2009)).
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Article 33 of the Convention provides that:
``No Contracting State shall expel or return (``refouler'') a refugee
in any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.''\13\
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\13\ U.N. General Assembly, Convention Relating to the Status of
Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p.
137, July 28, 1951, at Art. 33.
As the United Nations High Commissioner for Refugees noted in an
amicus curiae brief in litigation of MPP, the core of the Convention
and Protocol is this principle of non-refoulement--which means that, in
addition to protecting individuals from being sent to a state where
they would face persecution, refugees are protected ``from being
transferred to a state in which they might not face persecution, but
from where that state would send the individual on to persecution in a
third country, referred to here as `chain refoulement.' ''\14\
---------------------------------------------------------------------------
\14\ The United Nations High Commissioner for Refugees' Amicus
Curiae Brief in Support of Appellees' Answering Brief, Innovation Law
Lab v. McAleenan, No. 19-15715, available at https://www.aclu.org/
legal-document/innovation-law-lab-v-mcaleenan-amicus-brief-un-high-
commissioner-refugees.
---------------------------------------------------------------------------
The High Commissioner noted that any arrangement involving the
return of people who may be in need of international protection from
one country to another must ``encompass key refugee protection
safeguards in order to avoid placing individuals at risk of
refoulement. This is so even if the purpose of the transfer is for the
asylum seeker to await their asylum determination by the transferring
state in the receiving state.'' For such arrangement to be legitimate
under international law, ``it needs to be governed by a legally binding
instrument, challengeable and enforceable in a court of law by affected
asylum seekers,'' and must provide for an individual assessment by the
transferring state in each individual case of whether the receiving
state will admit the person, permit the person to stay pending
determination of their case, and ``accord the person standards of
treatment commensurate with the 1951 Convention and international human
rights standards, including--but not limited to--protection from
refoulement.''\15\
---------------------------------------------------------------------------
\15\ Id. at p. 5-6.
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The Migrant Protection Protocols violate not only the international
law, but also the domestic law into which U.S. international legal
obligations are incorporated, 208-09 of the 1980 Refugee Act.\16\
Under the Immigration and Nationality Act (INA) 208(a)(1), ``[a]ny
alien who is physically present in the United States or who arrives in
the United States (whether or not at a designated port of arrival . . .
), irrespective of such alien's status, may apply for asylum.''\17\
Congress has established in 208 several statutory exceptions to this
general eligibility for asylum, including: Persecuting others on
account of their race, religion, nationality, membership in a
particular social group, or political opinion; constituting a danger to
the United States on account of having been convicted by final judgment
of a particularly serious crime; being believed to have committed a
serious nonpolitical crime outside of the United States prior to
arrival; being reasonably regarded as a danger to the United States;
and having been firmly resettled in another country prior to arriving
in the United States.\18\
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\16\ ``Refugee Act of 1980,'' Public Law 96-212, 94 STAT. 102-118,
Mar. 17, 1980 (see 208, ``Asylum Procedures,'' and 209,
``Adjustment of Status of Refugees).
\17\ 8 U.S.C. 1158, Immigration and Nationality Act (INA)
208(a)(1).
\18\ 8 U.S.C. 1158, Immigration and Nationality Act (INA)
208(b)(2).
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This legal framework for asylum was carefully designed by Congress
to balance our National security with the importance of keeping the
United States a safe haven for those who flee persecution. Accordingly,
people claiming asylum at a port of entry must demonstrate a ``credible
fear'' of persecution to initiate their asylum claim. This threshold
accounts for the reality that a vulnerable asylum seeker may not be
able to present their strongest case in a single, high-pressure
interview--and that the stakes of denying someone the opportunity to
present their case more fully, if they have at least a credible fear,
are literally life-and-death. If there is even a small chance that
someone's past experience or fear of persecution is well-founded,
better to give them the opportunity to present that case fully than
take the risk that they will be tortured or killed by their persecutors
upon a forced return to their country of origin--or a pushback to a
third country that may not be safe for them either, such as Mexico.
As noted above, Congress incorporated the 1967 United Nations
Protocol Relating to the Status of Refugees into the Refugee Act of
1980. Congress has expressly legislated that ``[a]ny alien who is
physically present in the United States or who arrives in the United
States (whether or not at a designated port of arrival . . . )'' may
apply for asylum.\19\ The United States may create a ``safe third
country agreement, or a formal agreement with a third country to which
a noncitizen might be removed, with a country ``in which the alien's
life or freedom would not be threatened on account of race, religion,
nationality, membership in a particular social group, or political
opinion, and where the alien would have access to a full and fair
procedure for determining a claim to asylum or equivalent temporary
protection.''\20\ But in a leaked memorandum of the Departments of
Homeland Security and Justice, the agencies responsible for MPP admit
that returning asylum seekers to Mexico does not meet these
statutorily-required criteria. The memo noted that a safe third-country
agreement with Mexico is ``years'' away because Mexico must ``improve
its capacity to accept and adjudicate asylum claims and improve its
human rights situation.''\21\
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\19\ 8 U.S.C. 1158, Immigration and Nationality Act (INA)
208(a)(1).
\20\ 8 U.S.C. 1158, Immigration and Nationality Act (INA)
208(a)(2)(A).
\21\ Human Rights First, ``A Sordid Scheme: The Trump
Administration's Illegal Return of Asylum Seekers to Mexico,'' Mar.
2019, at p. 3, https://www.humanrightsfirst.org/sites/default/files/
A_Sordid_Scheme.pdf.
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One U.S. asylum officer and attorney, whose email to U.S.
Citizenship and Immigration Services refusing to implement MPP was
published by the Washington Post, wrote that `` `[t]he MPP is illegal.
The program exists without statutory authority [under the Immigration
and Nationality Act], violates normal rulemaking procedures under the
[Administrative Procedure Act], and violates international law. The
program's execution impairs the fair implementation of our laws and
runs directly counter to the values of [the Refugee, Asylum, and
International Operations Directorate].' ''\22\
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\22\ Sasha Abramsky, The Nation, ``Trump's `Remain in Mexico'
Policy Isn't Just Cruel, It's Illegal,'' Nov. 15, 2019, https://
www.thenation.com/article/trumps-remain-in-mexico-policy-isnt-just-
cruel-its-illegal/.
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``remain in mexico'' endangers the health and safety of vulnerable
asylum seekers
Although the intended effect of MPP is to ``help restore a safe and
orderly immigration process . . . decrease the number of those taking
advantage of the immigration system . . . reduce threats to life,
National security, and public safety, while ensuring that vulnerable
populations receive the protections they need,''\23\ its practical
effect is to aggravate existing backlogs at near ports of entry and to
force asylum seekers to wait in difficult and dangerous conditions.
---------------------------------------------------------------------------
\23\ DHS, ``Migrant Protection Protocols.''
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As one journalist has stated, ``The basic fact is that too many
people are waiting to seek asylum `the right way' in the US. In theory,
they have a legal right to it; in practice, it's by no means a
guarantee they'll be allowed to exercise it . . . The question is how
long they can wait before it becomes functionally indistinguishable
from being turned away--or before they simply get fed up with being in
limbo.''\24\ There are already significant backlogs of asylum seekers
at the border.\25\
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\24\ Dara Lind, Vox, ``The U.S. has made migrants at the border
wait months to apply for asylum. Now the dam is breaking,'' Nov. 28,
2018, https://www.vox.com/2018/11/28/18089048/border-asylum-trump-
metering-legally ports.
\25\ In late November 2018, a senior Customs and Border Protection
official reportedly estimated that there was a 5-6-week backlog at the
Southern Border. See, e.g., CNN Wire and Kasia Gregorcyzyk, Fox 5 San
Diego, ``Migrants may have to wait 6 weeks at border to claim asylum,
official says,'' Nov. 27, 2018, https://fox5sandiego.com/2018/11/27/
migrants-may-have-to-wait-6-weeks-at-border-to-claim-asylum-official-
says/.
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With Customs and Border Protection aggressively using a
``metering'' system to limit the number of people who are processed for
asylum each day to between 40 and 100 persons,\26\ backlogs along the
Southern Border are several weeks-long and several thousand asylum
seekers-wide.\27\ As the 9th Circuit noted in November 2018 with
respect to another agency measure designed to curtail asylum rights,
``the record establishes that, while the Rule is in effect, these
asylum seekers experience lengthy or even indefinite delays waiting at
designated ports of entry along the southern border.''\28\
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\26\ Ron Nixon, New York Times, ``Asylum Claims Jump Despite
Trump's Attempt to Limit Immigration,'' Dec. 10, 2018, https://
www.nytimes.com/2018/12/10/us/politics/trump-asylum-border-.html.
\27\ Jonathan Blitzer, New Yorker, ``Long Wait for Tijuana's
Migrants to Process Their Own Asylum Claims,'' Nov. 29, 2018, https://
www.newyorker.com/news/dispatch/the-long-wait-for-tijuanas-migrants-to-
process-their-own-asylum-claims.
\28\ East Bay Sanctuary Covenant v. Trump, United States District
Court, Northern District of California, ``Order Granting Temporary
Restraining Order; Order to Show Cause Re Preliminary Injunction,''
Nov. 19, 2018, p. 30.
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As of October 2019, nearly 50,000 asylum seekers and migrants had
been pushed back by DHS to wait in danger in Mexico--on top of around
26,000 who are stranded there due to the ``metering'' policy \29\ by
which asylum applicants are turned back at ports of entry to ``wait
their turn'' to apply.
---------------------------------------------------------------------------
\29\ Human Rights First, ``Orders from Above: Orders from Above:
Massive Human Rights Abuses Under Trump Administration Return to Mexico
Policy,'' Oct. 2019, at p. 1, https://www.humanrightsfirst.org/sites/
default/files/hrfordersfromabove.pdf [``HRF, Orders from Above
Report''].
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This forces individuals and families already traumatized by what
they have experienced in their countries of origin, as well as
exhausted from the physical demands of a long journey to the U.S.
border, to wait in difficult and dangerous conditions. Shelters are
overflowing; municipal services in nearby Mexican cities like Tijuana
are breaking down under the strain, and charity and relief workers are
struggling to meet demand.\30\ CNN reporters ``found hopeful asylum
seekers living amid mud, open sewage, sickness, and piles of
trash.''\31\
---------------------------------------------------------------------------
\30\ Jonathan Blitzer, New Yorker, ``Long Wait for Tijuana's
Migrants to Process Their Own Asylum Claims,'' Nov. 29, 2018, https://
www.newyorker.com/news/dispatch/the-long-wait-for-tijuanas-migrants-to-
process-their-own-asylum-claims.
\31\ Bob Ortega, CNN, ``US asylum seekers face long waits or risky
crossings, thanks to supposed capacity crunch,'' Dec. 20, 2018, https:/
/www.cnn.com/2018/12/20/us/us-asylum-seeker-southwest-border-capacity-
invs/index.html.
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In addition to these material conditions, Mexico is often just as
unsafe for these asylum seekers as the countries they have left behind.
The current backlog has pushed many asylum seekers to wait in Tijuana,
which Business Insider ranked the fifth most dangerous city in the
world based on its murder rate of over 100 homicides per 100,000
residents. This is a murder rate even higher than that of the dangerous
Northern Triangle countries in Central America from which many of these
asylum seekers have fled.\32\ The 9th Circuit noted that ``asylum
seekers experience high rates of violence and harassment while waiting
to enter, as well as the threat of deportation to the countries from
which they have escaped.''\33\ In December 2018, two minor boys staying
in a Tijuana migrant shelter were murdered, their bodies found stabbed
and strangled in an alleyway in the city.\34\
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\32\ Christopher Woody, Business Insider, ``These were the 50 most
violent cities in the world in 2017,'' Mar. 16, 2018, https://
www.businessinsider.com/most-violent-cities-in-the-world-2018-3.
\33\ East Bay Sanctuary Covenant v. Trump, United States District
Court, Northern District of California, ``Order Granting Temporary
Restraining Order; Order to Show Cause Re Preliminary Injunction,''
Nov. 19, 2018, p. 30.
\34\ Eliot C. McLaughlin and Nicole Chavez, CNN, ``3 arrested in
slayings of Honduran teens in Tijuana, prosecutor says,'' Dec. 19,
2018, https://www.cnn.com/2018/12/19/americas/honduran-migrant-teens-
killed-tijuana/index.html.
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Human Rights First has documented numerous cases of asylum seekers
who faced kidnappings and assaults upon being forced to return to
Mexico. For example, a child and his father were kidnapped the same day
that DHS returned them to Nuevo Laredo; the kidnappers threatened to
take the child's kidneys, and they beat and shot other members of the
kidnapped group.\35\ In September 2019, thee armed men broke into a
shelter in Ciudad Juarez, where they robbed and assaulted Cuban asylum
seekers returned there under MPP, several of whom had to go to a local
hospital for treatment. A Honduran asylum seeker was targeted for being
a lesbian, and was assaulted and threatened in Matamoros in July after
being returned by DHS.\36\
---------------------------------------------------------------------------
\35\ HRF, Orders from Above Report at p. 5.
\36\ HRF, Orders from Above Report at p. 6.
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Indeed, the U.S. State Department has assigned several states in
Mexico the same travel classification of Level 4, or ``Do not travel,''
and states that ``[v]iolent crime, such as homicide, kidnapping,
carjacking, and robbery, is widespread.''\37\ As the Washington Post
has noted, this Level 4 classification puts Mexico in the same category
as war-torn countries like Syria, Yemen, and Afghanistan in terms of
danger to travelers.\38\ If unsafe for ordinary travelers, then Mexico
is especially unsafe for asylum seekers who have already fled
persecution and are typically vulnerable--including families, LGBTQ
individuals, and others who have been persecuted due to some aspect of
their identity.\39\
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\37\ U.S. Department of State--Bureau of Consular Affairs, ``Mexico
Travel Advisory,'' Nov. 15, 2018, https://travel.state.gov/content/
travel/en/traveladvisories/traveladvisories/mexico-travel-
advisory.html.
\38\ Alex Horton, Washington Post, ``Why the U.S. considers parts
of Mexico just as dangerous to visit as Syria and Yemen,'' Jan. 11,
2018, https://www.washingtonpost.com/news/worldviews/wp/2018/01/11/why-
the-u-s-considers-parts-of-mexico-just-as-dangerous-to-visit-as-syria-
and-yemen/?noredirect=on&utm_term=.e7acbc5db661.
\39\ Jonathan Blitzer, New Yorker, ``How the U.S. Asylum System is
Keeping Migrants at Risk in Mexico,'' Oct. 1, 2019, https://
www.newyorker.com/news/dispatch/how-the-us-asylum-system-is-keeping-
migrants-at-risk-in-mexico.
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These individuals and families face an impossible situation, unable
to return home to the persecution they fled but also without hope to
move forward. Returned to Mexico despite having followed the
appropriate procedures to seek asylum in the United States, they
struggle to survive amid conditions often similar to those they fled in
their home country and remain at risk of refoulement to their home
country.
returning asylum seekers to mexico undermines due process and asylum
seekers' access to legal representation, jeopardizing their asylum
cases
The Migrant Protection Protocols create what Human Rights First has
called a ``due process charade'': Asylum seekers face extreme obstacles
to accessing counsel and legal information, and to attending and
participating in their immigration hearings.\40\ Rather than utilizing
normal immigration court facilities, DHS has begun utilizing tent
courts at multiple sites in Texas, which are closed to media, public
observers, and legal service providers offering legal information
sessions and screenings for potential representation.\41\ Even where
normal immigration court facilities are used, these courts often create
obstacles as well. For example, Human Rights Watch found that the
immigration court in El Paso prevented lawyers from meeting with
clients prior to MPP hearings.\42\
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\40\ HRF, Orders from Above Report at p. 12.
\41\ Id.
\42\ Human Rights Watch, ``US Move Puts More Asylum Seekers at
Risk: Expanded `Remain in Mexico' Program Undermines Due Process,''
Sept. 25, 2019, https://www.hrw.org/news/2019/09/25/us-move-puts-more-
asylum-seekers-risk.
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Being forced to wait in Mexico, moreover, can make it near-
impossible for asylum seekers to attend their immigration court
hearings. They may miss hearings because they have been kidnapped,
because it is too dangerous to make the journey to the port of entry to
the United States, or because they are unable to obtain transportation
to travel the long distance. For example, Human Rights First has
documented a case in which a Honduran man was kidnapped while traveling
between Monterrey and Nuevo Laredo to attend his immigration hearing in
September;\43\ taxi drivers and Uber drivers are reportedly refusing to
pick up immigrants at Mexican shelters because of the danger that
kidnappers and extortionists will target such passengers.\44\ As of the
end of September, about 38 percent of asylum seekers subjected to MPP
had missed a court hearing,\45\ which can put them at risk of being
ordered removed in absentia and losing the opportunity to finish making
their asylum claim.
---------------------------------------------------------------------------
\43\ HRF, Orders from Above Report at p. 15.
\44\ Gaby Del Valle, Vice, ``Trump's Remain in Mexico Policy Is
Causing Asylum-Seekers to Miss Court Dates--and Get Deported,'' Sept.
24, 2019, https://www.vice.com/en_us/article/gyzdp9/trumps-remain-in-
mexico-policy-is-causing-asylum-seekers-to-miss-court-dates-and-get-
deported.
\45\ TRAC Immigration, Transactional Records Access Clearinghouse,
``Details on MPP (Remain in Mexico) Deportation Proceedings,'' through
Sept. 2019, https://trac.syr.edu/phptools/immigration/mpp/ [last
accessed Nov. 18, 2019].
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Being forced to wait in Mexico also makes it extremely difficult
for asylum seekers to obtain legal counsel--to which they have a right
under Section 292 of the Immigration and Nationality, and on which the
success of their case often depends. The stakes in an asylum case can
be literally life-or-death: A successful asylum case wins safety in the
United States, while a negative decision results in deportation back to
the country of origin, in which the applicant had faced persecution. As
a past president of the American Immigration Lawyers Association has
noted, the time and difficulty of preparing an asylum case relates not
to the strength of the case, but to the difficulty of accessing
evidence to meet the particular and specific standards of U.S. asylum
law.\46\ In addition to the complexity of U.S. immigration law,
language barriers \47\ and experiences of trauma add layers of
difficulty to asylum seekers accessing a full and fair consideration of
their asylum case.
---------------------------------------------------------------------------
\46\ Philip Bump, Washington Post, ``Most migration to the U.S.
costs money. There's a reason asylum doesn't,'' Apr. 30, 2019, https://
www.washingtonpost.com/politics/2019/04/30/most-migration-us-costs-
money-theres-reason-asylum-doesnt/.
\47\ Jennifer Medina, New York Times, ``Anyone Speak K'iche' or
Mam? Immigration Courts Overwhelmed by Indigenous Languages,'' Mar. 19,
2019, https://www.nytimes.com/2019/03/19/us/translators-border-wall-
immigration.html.
---------------------------------------------------------------------------
Legal representation is likely the most outcome-determinative
factor in a U.S. asylum case: The Transactional Records Access
Clearinghouse at Syracuse University analyzed U.S. immigration court
records and found that the odds of gaining asylum are 5 times higher
for asylum seekers with legal representation. Without representation,
``the deck is stacked against an asylum seeker. Statistically, only 1
out of every 10 win their case.''\48\ But when an asylum seeker is
returned to Mexico, U.S. attorneys must either face serious danger
traveling to meet their clients or attempt difficult remote
representation. As of the end of August 2019, nearly 99 percent of MPP
returnees did not have lawyers, making it unlikely that meritorious
asylum cases will succeed in the U.S. asylum system.\49\
---------------------------------------------------------------------------
\48\ TRAC Immigration, Transactional Records Access Clearinghouse,
``Asylum Representation Rates Have Fallen Amid Rising Denial Rates,''
Nov. 28, 2017, https://trac.syr.edu/immigration/reports/491/.
\49\ TRAC Immigration, Transactional Records Access Clearinghouse,
``Details on MPP (Remain in Mexico) Deportation Proceedings,'' through
Sept. 2019, https://trac.syr.edu/phptools/immigration/mpp/ [last
accessed Nov. 18, 2019].
---------------------------------------------------------------------------
______
Statement of the Latin American Working Group
November 18, 2019.
Rep. Bennie G. Thompson,
Chair, House Homeland Security Committee.
Rep. Mike Rogers,
Ranking Member, House Homeland Security Committee.
Rep. Kathleen Rice,
Chair,
Rep. Clay Higgings,
Ranking Member,
Border Security, Facilitation & Operations Subcommittee.
Re: LAWG Statement for Nov. 19th House Homeland Security Border
Security, Facilitation & Operations Subcommittee Hearing, ``Examining
the Human Rights and Legal Implications of DHS' Remain in Mexico
Policy''
The Latin America Working Group (LAWG) hereby submits this
statement for the record. LAWG advocates for just U.S. policies toward
Latin America and the Caribbean. One of LAWG's priority areas is to
call for protections for migrants and refugees from Mexico and Central
America and to ensure fair access to asylum at the U.S.-Mexico border
and in the Latin American region. LAWG welcomes this oversight effort
by the House Homeland Security Committee on the human rights and legal
implications of the Department of Homeland Security (DHS)'s Remain in
Mexico policy.
Through our on-going research on the human rights situation across
Mexico, close collaboration and monitoring with civil society
organizations along the U.S.-Mexico border and at Mexico's southern
border, and through a November 2019 trip to the San Diego border
region, LAWG has confirmed that the Remain in Mexico policy is
returning asylum seekers, including pregnant women, unaccompanied
children, and members of the LGBTQ+ population, to situations of
extreme danger and exposing them to human rights violations. With over
55,000 asylum seekers returned to Mexico to date at 6 ports of entry
along the border to wait throughout the duration of their U.S. asylum
proceedings, we remain extremely concerned about the rapid
implementation of this policy. We are also concerned about the
establishment of secretive ``tent courts'' in Laredo and Brownsville,
Texas to which the public has had no access and which present serious
due process violations to asylum seekers. We urge the committee to
expand its oversight efforts on this policy, including by conducting
monitoring visits to the ports of entry and courtrooms where the policy
is being implemented, and requesting information from DHS on the
policy's implementation and funding. Moreover, we urge the committee to
ask DHS to end the implementation of this policy immediately.
The Remain in Mexico policy is compounded by a series of other
policies that the Trump administration has undertaken to shut the door
to asylum seekers at the U.S.-Mexico border, including the illegal
practice of metering, a recently enacted ``Interim Final Rule'' that
bans all individuals who have traveled through another country first to
reach the United States from receiving asylum with extremely limited
exceptions, and the ``Asylum Cooperation Agreements,'' or safe third-
country agreements, signed between the United States and Guatemala,
Honduras, and El Salvador which may forcibly return asylum seekers who
have no previous connection to any of these countries or who many not
even have transited through them to seek protections there. We urge the
committee to also conduct oversight on these policies and their
implementing guidance as it relates to the implementation of the Remain
in Mexico policy.
There is sufficient evidence, including from the U.S. State
Department and other sources, to demonstrate that asylum seekers are
being returned to danger by being forced to wait in Mexico. Tijuana has
seen a dramatic increase in the level of homicides for the last 5
years, reaching record levels in 2018, making it one of the deadliest
cities in the world.\1\ Total homicides in Ciudad Juarez for 2019 have
already exceeded the total for 2018.\2\ Mexico's northern border
states, such as Tamaulipas, Coahuila, Nuevo Leon, and Chihuahua, also
continue to rank among the states with the highest number of registered
disappearances in the country.\3\ The U.S. State Department currently
has travel warnings on all 6 of Mexico's northern border states, urging
citizens not to travel to Tamaulipas, to reconsider travel to Coahuila,
Chihuahua, Nuevo Leon, and Sonora, and to exercise increased caution in
travel to Baja California, all due to high levels of violent crime.\4\
These states now encompass all 6 ports of entry where the policy is
being implemented.
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\1\ Kate Linthicum, ``Meth and murder: A new kind of drug has made
Tijuana one of the deadliest cities on Earth'', January 30, 2019,
https://www.latimes.com/world/mexico-americas/la-fg-mexico-tijuana-
drug-violence-20190130-htmlstory.html.
\2\ https://ficosec.org/homicidios-dolosos-2019/.
\3\ Lily Folkerts, Annie Gallivan, Latin America Working Group,
Trouble for Turn Backs: Risks for Migrants in Mexico's Northern Border
States, 2018, https://www.lawg.org/trouble-for-turn-backs-risks-for-
migrants-in-mexicos-northern-border-states/.
\4\ U.S. Department of State, Mexico International Travel
Information, November 15, 2018, https://travel.state.gov/content/
travel/en/international-travel/International-Travel-Country-
InformationPages/Mexico.html.
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The violence perpetuated in these cities comes not only from
organized crime but also from systemic corruption and abuses within
Mexican law and migration enforcement agencies which at times work in
collusion with criminal groups. Over 30 disappearances were attributed
to the Mexican Navy, for example, in Nuevo Laredo, Tamaulipas in
2018.\5\ In addition, the 2017 U.S. State Department human rights
country report on Mexico highlighted collusion between the state
government of Coahuila and organized crime in carrying out
disappearances.\6\ While the information above demonstrates a broader
situation of violence, corruption, and impunity along some of Mexico's
northern border states and cities, asylum seekers and migrants, in
particular, have long faced human rights violations and crimes in their
transit through Mexico. Civil society organizations and migrant
shelters have documented multiple cases of torture, murder,
disappearances, kidnappings, robbery, extortion, and sexual and gender-
based violence that migrants and asylum seekers suffer at the hands of
criminal groups in Mexico. The perpetrators of this persecution often
act in collusion with Mexican migration and law enforcement. Multiple
reports issued by U.S. and Mexican organizations and migrants shelters
in Mexico illustrate that, while many crimes against migrants occur in
the southern part of Mexico, migrants are victims of abuse throughout
the country, including in northern border states.\7\ The Inter-American
Commission on Human Rights (IACHR) has previously noted crimes against
migrants in its reports and NGO's have noted the specific risks
migrants face in each of Mexico's border states in documents submitted
to the IACHR.\8\ As the MPP would force asylum seekers to wait in
Mexico for prolonged periods of time, it is likely that more migrants
would be exposed to such risks and violence, or would turn to smugglers
to cross the border between ports of entry and in more precarious
conditions.
---------------------------------------------------------------------------
\5\ Office of the U.N. High Commissioner for Human Rights, Zeid
urges Mexico to act to end wave of disappearance in Nuevo Laredo, May
30, 2018, https://www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=23157&LangID=E.
\6\ U.S. Department of State, Country Reports on Human Rights
Practices for 2017, 2017, https://www.state.gov/j/drl/rls/hrrpt/
humanrightsreport/index.htm#wrapper.
\7\ Red Migrante Sonora (RMS), Y la impunidad continua. Segundo
informe de la Red Migrante Sonora, June 2017, https://
www.kinoborderinitiative.org/wp-content/uploads/2017/12/Informe-
RMS.pdf, and Jose Knippen, Clay Boggs, and Maureen Meyer, An Uncertain
Path, November 2015 https://www.wola.org/sites/default/files/
An%20Uncertain%20Path_- Nov2015.pdf.
\8\ Daniella Burgi-Palomino, Latin America Working Group (LAWG),
Maureen Meyer, Washington Office on Latin America (WOLA), Joanna
Williams, Kino Border Initiative, Situation of Impunity and Violence in
Mexico's Northern Border Region, March 2017, https://www.wola.org/wp-
content/uploads/2017/04/Situation-of-Impunity-and-Violence-in-Mexicos-
northern-border-LAWG-WOLA-KBI.pdf and Inter-American Commission on
Human Rights (IACHR), Organization of American States (OAS), The Human
Rights Situation in Mexico, December 31, 2015, http://www.oas.org/en/
iachr/reports/pdfs/Mexico2016-en.pdf.
---------------------------------------------------------------------------
Waiting in Mexico for months under this policy has particularly
negative implications for the rights of families, women, children, and
members of the LGBTQ+ population. In some cases, these situations have
led to death for asylum seekers who have taken more dangerous border
crossings after having grown frustrated by the wait and desperate by
the lack of access to services while in Mexico. Such is the tragic case
of the Salvadoran man Oscar and his daughter, Valeria, who were subject
to the policy and who drowned crossing the Rio Grande.\9\
---------------------------------------------------------------------------
\9\ ``The father and daughter who drowned at the border were
desperate for a better life, family says,'' https://wapo.st/2qO3ehb.
---------------------------------------------------------------------------
LGBTQ asylum seekers may have a specifically hard time gaining
access to the already extremely limited housing, employment, health
services available to asylum seekers in Mexico due to on-going
xenophobia and discrimination specifically aimed at this population.
There are already a limited number of civil society shelters available
to asylum seekers on the Mexican side of the border and many may not
have specific spaces in which LGBTQ+ asylum seekers can feel
comfortable in. LGBTQ+ asylum seekers may not want to frequent shelters
set up by local authorities for fear of discrimination by law
enforcement officials, organized crime, or other migrants.
On a recent trip to San Diego, LAWG heard of a few cases of babies
being born to women from Central America during the duration of their
wait in Tijuana under this policy. As the Mexican constitution states
that individuals born in Mexican territory are Mexicans, these children
are Mexicans and should not be returned to Mexico under the Remain in
Mexico policy. Yet it did not appear that either the U.S. or Mexican
governments were taking any action to ensure that the children were not
subjected to the policy, effectively leaving the children in a
situation of near statelessness. There is no comprehensive information
on the total number of children born to asylum seekers in the duration
of their wait in Mexico under this policy. This is another concerning
impact that the policy is having on families and pregnant women, by
forcing them to wait for extended periods of time and thus exposing
them to carry out their pregnancy and subsequent childbirth in
conditions of serious risks along Mexico's northern border.
The policy has had secondary effects of returning asylum seekers as
far south as Mexico's southern border due to the Mexican government's
inability or unwillingness to protect asylum seekers in Mexico. Through
its close collaboration with civil society organizations across Mexico,
LAWG has come across at least 3 cases of families who were returned to
Mexico under the policy and were bussed by the Mexican government to
Mexico's southern border.\10\ In one case, an entire Honduran family of
2 adults and 3 children from Honduras were returned by Mexico's
migration enforcement agency, INM, to the city of Tapachula along
Mexico's southern border from the U.S.-Mexico border. As the family was
left to wait in Nuevo Laredo, Mexico under Remain in Mexico in August
and had no network to turn to there for protection, they felt like they
had no choice but to take a bus offered to them by the INM. They
initially thought the bus was going to Mexico City but later realized
it went to the city of Tapachula. There they were told the paperwork
initially granted to them by INM along Mexico's northern border was
invalid and they were held in a detention center. They were left with
no way to return to their court hearing in early November 2019 in the
United States and lacked information on how to pursue their case from
Tapachula. They also feared being returned to Honduras by Mexican
migration enforcement agents. While the Mexican government claims that
these returns of asylum seekers under MPP are voluntary,\11\ this
example demonstrates that often families lack information about their
rights, and the overall process under Remain in Mexico and face a false
choice between waiting in danger along Mexico's northern border or
moving elsewhere in Mexico where they might also have no protections.
Thus, through the Remain in Mexico policy the U.S. Government is
sending asylum seekers to face harm across Mexico and placing them in
situations whereby the Mexican government could return them to their
home country, in violation of non-refoulement under international
refugee law.
---------------------------------------------------------------------------
\10\ Documentation or notification of cases provided to LAWG by
staff from the Center for Human Rights Fray Matias de Cordova and the
Jesuit Network for Migrants in Mexico between Sept. 2019 and Nov. 2019.
\11\ LA Times, Oct. 2019, Buses to Nowhere: Mexico Transports
Migrants with U.S. Court Dates far South, https://www.latimes.com/
world-nation/story/2019-10-15/buses-to-nowhere-mexico-transports-
migrants-with-u-s-court-dates-to-its-far-south.
---------------------------------------------------------------------------
Finally, the Remain in Mexico policy continues to present asylum
seekers with serious due process violations, preventing asylum seekers
from having their fair day in court and access to legal counsel.
According to the latest TRAC statistics through the end of Sept. 2019,
98 percent of asylum seekers under MPP lack access to legal
counsel.\12\ The establishment of the tent courts in Laredo and
Brownsville, Texas as of Sept. 2019 with judges videoconferencing into
courtrooms to hear asylum cases present a serious due process violation
for asylum seekers. Thus far the public has not had access to any of
these hearings and asylum seekers must present themselves at 4:30 am at
the ports of entry to attend their court hearings in the tent courts,
which exposes them to serious risks along this part of the border.
---------------------------------------------------------------------------
\12\ Details on MPP (Remain in Mexico) Deportation Proceedings,
TRAC Immigration, https://bit.ly/2OmU5V9.
---------------------------------------------------------------------------
When LAWG observed the Remain in Mexico court hearings in San Diego
in early Nov. 2019 we noted similar trends. Almost the entire
immigration court was dedicated to holding only Remain in Mexico
hearings given the high volume of cases in this sector of the border.
Only about 10 percent of individuals presenting cases had a lawyer
accompanying them. Many individuals referred to having been informed
that they had to pay up to $8,000 for a lawyer. Even if some
individuals had managed to prepare their asylum application with the
support of NGO's on the Mexican side of the border, they still lacked
general information on the whole process, their applications were often
not complete, and they were not accompanied by a lawyer in court. Often
they only managed to begin their asylum applications and find support
from some organizations months after their arrival and after several
initial hearing dates. Individuals in the court hearings observed were
never asked if they feared returning to Mexico. The general process
observed in the court itself seemed like it was meant to dissuade
asylum seekers from continuing the process. Similar to what occurs in
many ports of entry where Remain in Mexico is being implemented,
individuals have to present themselves at 4:30 am at the port of entry
for a 9 am court hearing sessions and at 9 am for a 1 pm session. Upon
arrival to the courts, it takes hours for the judges to hear all of the
MPP cases so that asylum seekers are returned together to the port of
entry at least 3 hours later, all just to come back in months. Most of
the cases observed received hearing dates to return in early 2020 after
having begun the process between July and September 2019.
Even in such a short period, many serious issues with due process
violations were observed because of the Remain in Mexico policy.
Congressional oversight is urgently needed moving forward.
______
Statement of Krish O'Mara Vignarajah, LIRS
Tuesday, November 19, 2019
i. introduction
As a faith-based organization with 80 years of experience providing
the long welcome to refugees fleeing inescapable violence from conflict
and persecution in their home countries, LIRS is deeply concerned with
the numerous attempts by the administration to end asylum and the
devastating human cost that its policies are having on the vulnerable
populations that we serve. For over 20 years, LIRS has provided caring
homes and trauma informed services to unaccompanied children. We
vehemently oppose the Remain in Mexico policy because it deliberately
jeopardizes the health, safety, and well-being of children and their
families.
We appreciate the House Homeland Security Subcommittee on Border
Security, Facilitation and Operations, for holding this critical
hearing, ``Examining the Human Rights and Legal Implications of DHS
`Remain in Mexico Policy.' '' And we thank you for the opportunity to
submit this statement for the record in which we share our expertise
and experience working with refugees and children to relay our concerns
and recommendations with respect to the Migrant Protection Protocols
(MPP) or ``Remain in Mexico'' policy.
80 Years of Welcoming the Stranger: LIRS Expertise and Experience
2019 marks LIRS's 80th anniversary of working with refugees who
have fled persecution and were brought to the United States either
through the refugee admissions program or through our Southern Border.
Our devoted National network of affiliates provide a range of services,
such as: Providing unaccompanied children transitional foster care in
small congregate home-like environments, family reunification services,
respite and welcome, offering legal information and support to migrants
so that they understand their legal rights and obligations throughout
their immigration court proceedings and integration services so that
migrants are empowered with the ability to manage their finances,
secure employment, and other services that help migrants successfully
adjust to their new home country.
Our policy, child welfare, and refugee expertise and presence
across the Nation means that LIRS has an expansive view and first-hand
knowledge of the impact of immigration policies at the border and
beyond. For instance, prior to the formal announcement of the ``Zero
Tolerance Policy'' by former Attorney General Sessions in May 2018,
LIRS was aware of a change in policy because our foster care program
recognized an atypical increase in unaccompanied children.
During the height of the family separation crisis, LIRS and United
States Conference of Catholic Bishops (USCCB), were the only
organizations called upon by the Government to assist with family
reunification efforts.\1\ Without hesitation, LIRS agreed to assist. To
facilitate speedy reunifications, LIRS raised funds, provided respite
and welcome, and worked day and night to reunite children with parents
detained across the country. At no time during or after our
reunification efforts did we receive financial compensation from the
Government.
---------------------------------------------------------------------------
\1\ The United States Council of Catholic Bishops/Migration and
Refugee Service and Lutheran Immigration and Refugee Service. 2018.
``Serving Separated and Reunited Families: Lessons Learned and the Way
Forward to Promote Family Unity.'' Available online at: https://
www.lirs.org/wp-content/uploads/2018/10/Serving-Separated-and-Reunited-
Families_Final-Report-10.16.18-updated.pdf).
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In this statement for the record, LIRS provides analysis of the
reasons why we are concerned with: (1) The administration's attempt to
end asylum; (2) children and their families being returned to Mexico;
and (3) the on-going due process violations. Having played a major role
in the family separation crisis, LIRS recognizes that Remain in Mexico
places children in harm's way unnecessarily and is being been
implemented prior to protocols being put in place to ensure that asylum
seekers humanitarian and legal protections are safeguarded. Overall, we
seek the immediate termination of the policy.
ii. efforts to end asylum: impact on children
LIRS objects to the varying ways that the administration has been
attempting to hermetically seal the Southern Border through physical
and invisible walls, in breach of domestic and international laws. We
serve many refugees and unaccompanied children from the Northern
Triangle (Guatemala, Honduras, El Salvador) where gang, domestic, and
other forms of violence from non-state and state actors makes it
impossible for them to stay. Having worked with refugees and asylum
seekers, LIRS knows that individuals and families that flee their home
country to seek asylum in America do so as a life-saving measure of
last resort.
We are disheartened to hear and object to Border Patrol officers
hastily dismissing individuals claims of fear of return to Mexico. As
it is currently being implemented, the Remain in Mexico program treats
asylum seekers as criminals, when in fact and in accordance with U.S.
and international law, seeking asylum is lawful.
Remain in Mexico, officially referred to as Migrant Protection
Protocols (MPP) is not the only policy that the administration has
created to end asylum. In addition to MPP there is the informal policy
of metering, third-country transit ban and the end to so-called,
``catch and release''. Individually and collectively these policies are
designed by the administration to discourage and force refugees from
seeking asylum in American.
LIRS calls for the Government to adopt a more humane and
compassionate approach to trauma-inflicted asylees and calls on the
Government to stop its policies that deny refugees their legal rights.
After all, seeking asylum is not only a legal right; it is inextricably
tied to life-death consequences.
Asylum Policies are Harmful to Unaccompanied Children and Violate Due
Process
Published as an interim final rule in the Federal Register,
allowing the rule to go into effect immediately without public comment
on July 16, 2019, the third-country transit ban effectively ends
asylum. The rule stipulates that Border Patrol Agents can turn away
asylum seekers at the border if they have not applied for asylum in
another country.\2\ This policy was initially blocked by a Federal
judge, but the Supreme Court reversed this decision, allowing the
policy to continue while being challenged in court.\3\
---------------------------------------------------------------------------
\2\ Asylum Eligibility and Procedural Modifications (``Third-
Country Transit Ban''). July 16, 2019. Federal Register. Available on-
line at: https://www.federalregister.gov/documents/2019/07/16/2019-
15246/asylum-eligibility-and-procedural-modifications.
\3\ Jonathan Blitzer, October 3, 2019. ``Does Asylum Have a Future
at the Southern Border?'' The New Yorker Online, available on-line at:
https://www.newyorker.com/news/daily-comment/does-asylum-have-a-future-
at-the-southern-border.
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There are many concerns that LIRS has with respect to how the
administration is implementing the Remain in Mexico and Third-Country
Transit ban policies, 2 interrelated concerns are: (1) The impact on
unaccompanied children; (2) the absence of DHS and DOJ policy guidance
with respect to how the Remain in Mexico policy and the third-country
transit ban are going to be implemented.
In the first instance, LIRS is concerned by the fact that the
third-country transit ban on asylum does not include an exemption for
unaccompanied children. As CLINIC explains, ``any unaccompanied child
arriving at the Southern Border will be barred from asylum unless they
meet the severe trafficking exception or have applied for and been
denied asylum in a third country in transit to the United States.''\4\
Sending children back to their home countries is like a death sentence.
---------------------------------------------------------------------------
\4\ ``Asylum Ban Part 2: Third-Country Transit Regulations FAQs.
CLINIC. Available on-line at: https://cliniclegal.org/resources/asylum-
ban-part-2-third-country-transit-regulations-faqs.
---------------------------------------------------------------------------
``Central American youth are 10 times more likely to be killed when
compared to children in the United States as they become victims to
gangs, state security forces, and organized crime. Gangs especially
seek out young recruits, as they can more discreetly smuggle drugs and
weapons, or collect extortion payments.''\5\
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\5\ Tamaryn Nelson and Hajar Habbach. ``If I went back, I would not
survive.'' Asylum Seekers Fleeing Violence in Mexico and Central
America. Physicians for Human Rights. Pg. 6. Available on-line at:
https://phr.org/our-work/resources/asylum-seekers-fleeing-violence-in-
mexico-and-central-america/.
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Second, we are deeply disturbed by the fact that immigration judges
and officials have not received clear guidance as to how to implement
both policies. As the new rule is written, anyone who seeks to enter
and apply for asylum on or after the rule took effect on July 16, 2019,
will be barred from seeking asylum unless they applied in another
country. The complication, as ProPublica explains is that, ``the asylum
ban applies to migrants who ``enter'' the United States after July 16.
Technically, a migrant who has already come to the United States to ask
for asylum, been sent to Mexico to wait, and comes back into the United
States to attend his or her court date is ``entering'' again. The text
of the regulation isn't clear about whether the ban only applies to a
first entry, or to any entry into the United States after that
date.''\6\
---------------------------------------------------------------------------
\6\ Dara Lind. October 22, 2019. ``Trump's Asylum Ban Could Apply
Retroactively to Thousands of Migrants Even Though Officials Promised
it Wouldn't,'' ProPublica. Available on-line at: https://
www.propublica.org/article/trumps-asylum-ban-could-apply-retroactively-
to-thousands-of-migrants-even-though-officials-promised-it-wouldnt.
---------------------------------------------------------------------------
When the rule took effect, DHS stated that the new rule would not
apply to immigrants who were part of MPP and were returning to the
United States for their court hearings, however, DHS and DOJ have
failed to create policy guidance for immigration judges to follow. In
cases that ProPublica has tracked, it has found that Judges and
prosecutors have been given free reign to interpret the regulation.\7\
Moreover, ``according to data from TRAC, 99 percent of asylum seekers
sent to wait in Mexico don't have lawyers. The final hearings for
unrepresented Remain in Mexico returnees are typically closed to the
public. That makes it impossible to know how many other asylum seekers
are currently waiting in limbo for Herbert's decision \8\--or whether
any have already been denied asylum by another judge, due to a ban they
were told they were exempt from.''\9\
---------------------------------------------------------------------------
\7\ Id.
\8\ ``Herbert'' refers to Immigration Judge Herbert who has
presided over hearings on Remain in Mexico.
\9\ Lind supra note 6.
---------------------------------------------------------------------------
It is irresponsible that there is no clarity on whether the third-
country transit ban will apply retroactively to individuals who are
part of MPP. Moreover, LIRS is adamantly opposed to sending
unaccompanied children back to their home countries, as the practice
seems to be given our sources on the ground. Children are highly
vulnerable, which is why they leave, and by returning them back to
their home countries they will be revictimized. We cannot turn our
backs and allow our Government to deliberately jeopardize the safety of
unaccompanied children. We are a Nation that is better than this.
Remain in Mexico Impacts All of Us
It is a misnomer to believe that Remain in Mexico impacts
``others'', it impacts us all. Equally disturbing is the threat that
Remain in Mexico policy has with respect to sending vulnerable
populations to the already crime-ridden, violent-prone fragile border
towns across the U.S.-Mexico border. Essentially, the build-up of
vulnerable, homeless individuals at the border has extended an
invitation to smugglers and criminal gangs whose numbers we can expect
to grow. Therefore, until the Remain in Mexico policy is ended and
asylum seekers are permitted to pursue their asylum claims in the
United States, we have a ticking time bomb that threatens our National
security at the border.
iii. turning our backs: how ``remain in mexico'' abandons the human
rights of thousands of children, families, and vulnerable populations
The Remain in Mexico policy ostensibly excludes unaccompanied
children and vulnerable populations, however, LIRS believes that these
standards do not go far enough, and we are extremely concerned by the
fact that thousands of children, hundreds of toddlers and babies have
been returned to Mexico.\10\ Of equal concern to LIRS are reports that
the vulnerable populations that purportedly should not be returned to
Mexico, such as, pregnant women and refugees with medical ailments,
have been returned.\11\
---------------------------------------------------------------------------
\10\ Gustavo Solis. October 14, 2019. ``Remain in Mexico: Migrants
Who May not be Subject to Policy Continue to End up in Mexico,'' The
San Diego Union-Tribune. Available on-line at: https://
www.sandiegouniontribune.com/news/border-baja-california/story/2019-10-
14/remain-in-mexico-migrants-who-should-not-be-subject-to-policy-
continue-to-end-up-in-mexico. Remain in Mexico permits CBP agents to
return children who arrive with their parents at the Southern Border to
Mexico.
\11\ Id.
---------------------------------------------------------------------------
On October 11, 2019, Reuters News was the first to report the
following data collected by the Executive Office Immigration Review
(EOIR) on children returned to Mexico since January 2019:
16,000 children under 18 years of age
4,300 children under 5 years of age
481 toddlers
500 infants.\12\
---------------------------------------------------------------------------
\12\ Kristina Cooke, Mica Rosenberg, and Reade Levinson. October
11, 2019.''Exclusive: U.S. Migrant Policy Sends Thousands of Children,
Including Babies, Back to Mexico'' Reuters News On-line: https://
www.reuters.com/article/us-usa-immigration-babies-exclusive/exclusive-
u-s-migrant-policy-sends-thousands-of-children-including-babies-back-
to-mexico-idUSKBN1WQ1H1.
---------------------------------------------------------------------------
To put the data in perspective, as of October 3, 2019, one-third of
the 50,000 immigrants who were returned to Mexico were children.\13\
While the sheer volume of children that have been sent to Mexico is
disturbing, LIRS is appalled by the dangerous and unhygienic living
conditions that children are subjected to while having to wait for
their immigration court hearings, which can take weeks to months.
Doctors from Physicians for Human Rights have met children with Post
Traumatic Stress Disorder (PTSD) and have been able to collaborate
asylum claims while spending time with children and families in
Mexico.\14\ LIRS finds the casual disregard for child endangerment by
the administration deplorable and we encourage Congress to conduct more
oversight and investigate the plight of children returned to Mexico and
urge DHS to end the policy.
---------------------------------------------------------------------------
\13\ Id.
\14\ Nelson and Habbach, Physicians for Human Rights supra note 5.
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LIRS demands more protections for children returned to Mexico
As it is currently being implemented, the ``Remain in Mexico''
policy is harmful to children in that it:
Exposes them to actual and threats of violence,
Increases their likelihood of catching life-threatening
illness,
Denies them educational opportunities,
Compounds the trauma that they have experienced in their
home country, and
Fails to ensure that children's basic needs are met like
clean water, food, and shelter.
LIRS is of the opinion that time is of the essence and that the
Government must take immediate action by ending the Remain in Mexico
policy. We should not wait until a child dies to take action. It is a
well-established fact that Mexico is notoriously dangerous and the
level of violence has increased in tandem with the Remain in Mexico
policy.
As an expert in trauma, LIRS is also very concerned about the
trauma that Remain in Mexico inflicts on children which will most
certainly have life-long consequences. Our concerns are reinforced by
doctors from Physicians for Human Rights who met with children and
their families in Mexico and found that: ``2 out of the 3 children
interviewed reported symptoms of PTSD, and 1 boy also showed signs of
anxiety disorder and somatization, whereby psychological distress
manifests as physical ailments and attention problems.''\15\
---------------------------------------------------------------------------
\15\ Id. at pg. 2-3.
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Additionally, there is no public medical care available in Mexico
which is disturbing considering that many children are living in overly
crowded shelters and/or tents where infections and diseases can easily
spread.\16\ Indeed, ``[d]octors and nurses visiting shelters and camps
in Mexican border towns, . . . told Reuters they have seen cases of
chicken pox, scabies, respiratory infections, skin rashes, eye
infections, and gastrointestinal issues among children and
adults.''\17\ Furthermore, the U.S. Centers for Disease Control finds
that ``children under 5, and especially under the age of 2, are at high
risk of serious flu complications, . . . and the flu season is about to
start.''\18\
---------------------------------------------------------------------------
\16\ Id at pg. 36.
\17\ Cooke, Rosenberg, and Levinson supra note 12.
\18\ Id.
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What qualifies as a medical exemption under Remain in Mexico is
unclear, yet it is critical that DHS make public and/or establishes a
protocol for making these determinations in order to ensure that
children and other vulnerable populations are not subjected to
unnecessary health risks. The plight of Jennifer Jimenez, an El
Salvadoran mother that Reuters interviewed, highlights the urgent need
for standards to be put in place:
``Jennifer Jimenez, a 30-year-old Salvadoran, said she arrived at the
border in July with 11-year-old twins and her 8-month-old son Jacob,
who was born with lungs that had not fully developed.
``Although she explained Jacob's condition to border agents, she said,
the agents sent her and her children back to Ciudad Juarez, where the
family ended up sleeping on the floor of a crowded shelter.
``Recently she managed to find a doctor who noted in Jacob's medical
records--seen by Reuters--that living in the shelter had complicated
his health care. U.S. officials recently admitted the family to stay
with relatives in the United States, a rare occurrence.''\19\
---------------------------------------------------------------------------
\19\ Id.
The basic human rights needs of children are not being met and LIRS
urges the Government to stop turning its back on children and/or do
more to empower Mexican authorities to provide access to education,
health care, shelter so that children do not have to suffer another
day.
iv. due process is not for some, it is for all
Syracuse University conducted a review of immigration court records
from January 2019 to the end of June 2019 and reports that its
researchers found that a meagre 1.2 percent of refugees enrolled in the
Remain in Mexico program had legal representation or 14 out of the
1,155 14 decided cases.\20\ LIRS believes that this is unacceptable,
along with other clear violations of due process that have been
occurring since the Remain in Mexico policy was launched at the end of
January 2019. Some of the violations are prescribed by the policy, such
as, requiring refugees to affirmatively state to CBP officers that they
fear returning to Mexico and providing English-language only
immigration documents that instruct refugees to fill out in English.
Other violations that have been reported include: CBP officers
providing inaccurate Notices to Appear (NTA) and conducting hearings in
secretive tent courts.
---------------------------------------------------------------------------
\20\ ``Access to Attorneys Difficult for Those Required to Remain
in Mexico,'' July 29, 2019. TRAC Immigration, Syracuse University.
Available on-line at: https://trac.syr.edu/immigration/reports/568/.
---------------------------------------------------------------------------
The Remain in Mexico policy imposes higher standards of proof
during credible fear interviews and asks refugees to affirmatively
state that they fear return to Mexico. Under the higher burden of proof
refugees must meet, ``reasonable fear standard'', sets a high bar that
is nearly impossible for refugees to meet. To meet this legal standard,
refugees would have to provide documentation to support their asylum
claims at the border.
It is general knowledge that refugees flee in haste and with only
the clothes on their back. Therefore, the typical burden of proof
standard that asylum seekers must meet at the border is referred to as
`credible fear'. Under this standard, as long as refugees' asylum
claims are deemed credible they are allowed to enter the United States
until the conclusion of their immigration court proceedings. This
standard is fairer than then one being applied under MPP in that it
does not require asylum seekers to present documentation and other
evidence of their persecution.
The MPP policy also places the onus on refugees to affirmatively
state that they have a fear of return to Mexico. This requirement is
problematic in two main ways. First, it expects that refugees
understand the MPP policy and then places the burden on refugees to
affirmatively express their fear to border officials. Considering that
most immigration attorneys and Government officials do not fully
comprehend MPP, asking refugees to understand it is absurd.
Furthermore, the overwhelming majority of refugees do not have access
to legal counsel.
Second, when refugees have expressed to border officials that they
fear return to Mexico, instead of following the policy protocol--which
requires border agents referring refugees who express fear to USCIS
Asylum Officers--border officials have instead, returned individuals to
Mexico where they have been met by violence, threats of violence,
kidnapping, and extortion.
According to a draft DHS report obtained by BuzzFeed News:
``At some locations, CBP uses a pre-screening process that preempts
or prevents a role for USCIS to make its determination. Interviewees
also indicated that some CBP officials pressure USCIS to arrive at
negative outcomes when interviewing migrants on their claim of fear of
persecution or torture.''\21\
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\21\ Hamed Aleaziz, November 15, 2019. ``U.S. Border Officials
Pressured Asylum Officers to Deny Entry to Immigrants Seeking
Protection, A Report Finds,'' BuzzFeed News. Available on-line at:
https://www.buzzfeednews.com/article/hamedaleaziz/dhs-asylum-report-
mpp-immigration-remain-mexico.
At the very least, border officials should notify Mexican
authorities of refugees expressed concerns of fear of return, however
this has not occurred. Instead, our Government is turning its back to
the dire human consequences and human rights violations that are
directly linked to the malfeasance of border officials and ill-
conceived policies.
DHS has implemented the Remain in Mexico policy without
establishing operating procedures to track and communicate with
refugees who have been returned to Mexico. This is highly problematic
when taking into account that numerous reports have revealed that DHS
has been providing Notices to Appear (NTA) that contain inaccurate
court dates and information and/or have sent NTA's to shelters in
Mexico where they are no longer staying.\22\
---------------------------------------------------------------------------
\22\ Tom K. Wong. October 29, 2019. ``Seeking Asylum: Part 2,'' UC
San Diego, U.S. Immigration Policy Center. Available on-line at:
https://usipc.ucsd.edu/publications/usipc-seeking-asylum-part-2-
final.pdf.
---------------------------------------------------------------------------
DHS officials found that some immigrants have had to give up their
shelter space in Mexico when they depart for the United States for a
court hearing and are then left without an address to follow up on
their cases. The officials recommend CBP create a ``reliable method of
communication'' so immigrants can be reached during their wait. This
will allow, they said, access to counsel and communication between
migrant families--including cases when family members were not
processed at the same time or when children are separated.\23\
---------------------------------------------------------------------------
\23\ Aleaziz supra note 21.
---------------------------------------------------------------------------
DHS began to hold MPP Hearings in Tent courts along the Southern
Border in September 2019. One of the major problems LIRS has with the
tent courts is that hearings are conducted in secrecy. It is never a
good sign when attorneys and other observers are denied access to
courtrooms. Conducting secretive hearings may be permissible when
National security is at stake, however, this is not the case as asylum
seekers are not National security threats. Therefore, the use of
secretive tent courts is clearly an unacceptable and unnecessary due
process violation.
In the DHS draft report obtained by BuzzFeed News, DHS officials
back up the due process concerns that have been expressed by refugees,
immigration advocates and academics and officials have put forward the
following recommendation asking:
``agencies within DHS, including CBP, to provide immigration court
hearing notices in multiple languages, improve language access for
immigrants and ensure that they understand the `questions asked and can
make informed decisions,' standardize procedures for screening
vulnerable populations like children and people with disabilities, and
clarify the role of CBP officers in the process.''\24\
---------------------------------------------------------------------------
\24\ Id.
---------------------------------------------------------------------------
v. lirs retrospective look at similarities between zero tolerance and
remain in mexico and offers recommendations
``The big takeaway from it is that MPP is not working,'' said a
former DHS official.\25\ Albeit, much remains unknown, but what is
known about the human rights and due process violations that have been
occurring since the launch of Remain in Mexico on children and families
is deeply disturbing. LIRS topline recommendation is for the Remain in
Mexico to end immediately and that our asylum system is restored.
---------------------------------------------------------------------------
\25\ Id.
---------------------------------------------------------------------------
Applying Key Lessons Learned from Zero Tolerance to Remain in Mexico
In many respects, the latest assaults on asylum seekers is
reminiscent of ``zero tolerance policy'' and for this reason, LIRS is
extremely concerned with allowing Remain in Mexico policy to continue.
Remain in Mexico like zero tolerance policy has been justified by
the administration through legal gymnastics, or the twisting and
interpreting of immigration law to suit its deterrence approach to
immigration.
Similar to the ``zero tolerance policy'', Remain in Mexico lacks
transparency and accountability mechanisms for holding Government
agencies and the Mexican government accountable for their actions. For
instance, DHS has failed to instruct immigration judges, Asylum
Officers Customs and Border Patrol agents, and immigration attorneys on
how to implement the policy and how the policy relates to metering and
the third-country transit ban. Moreover, Mexico's role and obligations
under the policy are unclear.
Remain in Mexico policy has been implemented without taking into
account the innumerable human rights violations that it creates,
particularly for children, families, and vulnerable populations.
From what we know, the Remain in Mexico policy appears to be
another ill-conceived and misguided policy with far-reaching human and
legal impacts. This begs the question, have any lessons been learned?
Considering that our Nation is still attempting to reunify children and
remedy the chaos and human rights and legal impacts from ``zero
tolerance policy,'' which the OIG and Government officials have
confirmed to be an ill-conceived policy with far reaching human costs
that continue to amount, followed by Remain in Mexico, the answer
appears to be, no.
lirs recommendations
LIRS finds that the administration's deterrence approach to asylum
is the anthesis to our asylum legal and moral obligations. Given that
Mexico border cities are notoriously dangerous and migrants in the MPP
program have indeed been threatened, subjected to violent attacks,
targeted for extortion and kidnapping, more needs to be done with
ensuring that the individuals we send to Mexico are not place in harms
way. The harm that migrants are experiencing was predictable and
although the administration is turning its back on vulnerable
populations and the law, LIRS cannot, and we recommend the following:
1. Immediate end to Migrant Protection Protocols and a restoration
of our asylum system.
2. Increased Congressional oversight and investigations at the
border to assess the human rights and due process violations.
3. Congressional Hearings that Address the Impact of Asylum
Policies on Children and Families.
4. DHS should be prevented from denying child welfare and
immigration advocates and attorneys full access to observe and
intervene in MPP interviews.
5. Children, families, and other vulnerable populations must not be
returned to Mexico.
6. DHS must cease implementing MPP until it establishes a method
for tracking and communicating with migrants who have been
returned to Mexico.
7. Until MPP ends and/or litigation prevents it from being
implemented, at minimum, LIRS would like to see the following
measures put in place at the border:
Access to legal counsel and/or legal advocates made
available to asylees so that they can be informed of U.S.
law and have assistance with preparing asylum cases;
An immediate end to interviews conducted by Customs and
Border Patrol agents. Asylum Officers should be the only
Government official tasked with conducting credible fear
interviews;
Full transparency for MPP trials and an end to tent
courts.
8. More transparency with respect to the Remain in Mexico Policy
and the interplay between asylum policies at the border. In
this regard, DHS must:
Make public the criteria it uses for determining who
qualifies for a medical exemption under MPP.
Clearly define and make public CPB and Asylum Officer's
roles with respect to conducting credible fear interviews
and implementing MPP.
Clearly define and make public the protocol and procedures
provided to CBP agents for implementing MPP and the third-
country transit ban.
Clearly define and make public the protocols and
procedures provided to immigration judges conducting MPP
trials.
Make public the agreement between U.S.-Mexico on
implementing Remain in Mexico and any subsequent amendments
to the agreement.
______
Statement of the Mexican American Legislative Caucus (MALC) of the
Texas House of Representatives
Tuesday, November 19, 2019
Asylum is a legal process under U.S. and international law through
which individuals with an imminent fear of violence or persecution can
ask for protection in another country. Current asylum laws in the
United States were enacted as a response to the genocides of the
Holocaust and represent the best of America's values as a ``land of
opportunity''. The legal right to seek asylum is being limited,
however, by current efforts under the Trump administration. Migrant
Protection Protocols (MPP), otherwise known as the ``Remain in Mexico''
policy, betray the core value of asylum: To provide safety and due
process to the most vulnerable international migrants.
Though the Department of Homeland Security (DHS) concedes that MPP
should not apply to individuals who demonstrate a reasonable fear of
harm while in Mexico, fewer than 1,000 of the over 55,000 migrants
placed in the Remain in Mexico program have been allowed to remain in
the United States while pursuing their cases, despite the overwhelming
and ever-present dangers targeting migrants in Northern Mexico.\1\
Migrants forced to remain in Mexico face violence, kidnappings, and
threats to life, health, and well-being. One study found that between
21 percent and 24 percent of migrants in the ``Remain in Mexico''
program report receiving threats of violence while in Mexico and, of
those, over 50 percent report that the threats turned into actual
violence, including beatings, robbery, and extortion.\2\ Since cities
in Northern Mexico ran out of shelter space long ago, thousands of
migrants live on the streets in encampments without regular access to
food, potable water, or sanitation facilities.
---------------------------------------------------------------------------
\1\ See Dept of Homeland Sec., Assessment of the Migrant Protection
Protocols (MPP), https://www.dhs.gov/sites/default/files/publications/
assessment_of_the_migrant_protection_pro- tocols_mpp.pdf (``As of
October 15, 2019, USCIS completed over 7,400 screenings to assess a
fear of return to Mexico. . . .Of those, approximately 13 percent have
received positive determinations'').
\2\ HUMAN RIGHTS WATCH, ``WE CAN'T HELP YOU HERE'': U.S. RETURNS OF
ASYLUM SEEKERS TO MEXICO 18-20 (2019).
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Additionally, placing asylum seekers in Mexico--at a great distance
from the vast majority of immigration attorneys--undermines the ability
to guarantee that MPP complies with a person's 6th or 14th Amendment
rights to due process. Even though migrants with representation are 4
times more likely to be released from detention and 11 times more
likely to seek asylum than those without counsel, approximately 98
percent of the 47,313 asylum seekers in the Remain in Mexico program
were unrepresented as of September 2019.\3\
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\3\ Details on MPP (Remain in Mexico) Deportation Proceedings, TRAC
IMMIGRATION (Sep. 2019), https://trac.syr.edu/phptools/immigration/mpp/
(follow these steps: check ``Measure'' as ``Current Status;'' check
``Graph Time Scale'' as ``by Month and Year;'' select ``Hearing
Location'' on left-most drop-down menu; select ``Represented'' on
center drop-down menu; check ``Represented'' on right-most drop-down
menu).
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MPP places asylum seekers in great danger, violates due process and
international legal obligations, and operates with surgical precision
to ensure that Spanish-speaking asylum seekers will almost never be
granted humanitarian relief and protection from the violence they are
fleeing. For that reason, the Mexican American Legislative Caucus
respectfully requests that the U.S. Congress take action to oversee,
investigate, and introduce measures to end this unprecedented policy
that undermines domestic and international legal protections for asylum
seekers.
If you have any questions about the content of this statement
please contact Irma Reyes[.]
______
Statement of the National Immigrant Justice Center (NIJC)
November 19, 2019
The United States has a moral and legal obligation to administer
asylum laws properly. Over the course of the last 3 years, the
administration has gone to extreme measures to violate therights of
asylum seekers; to not only turn away those in need, but to vilify and
mistreat them ininhumane ways.\1\ The perversely named ``Migrant
Protection Protocols'' (MPP), also known as the ``Remain in Mexico''
policy, is the latest iteration of these efforts to dismantle the U.S.
asylum system.\2\ Rather than protect, this program does the opposite--
it sends asylum-seeking families back to Mexico to await their
proceedings where they have no support, no place to live, and are
regularly extorted, kidnapped, threatened, and attacked by cartels and
other criminal groups. The Mexican government is unable to control
violence against migrants and is sometimes complicit or even involved
in the harm.\3\ A recent survey of more than 600 asylum seekers subject
to MPP found that 9 out of 10 respondents expressed fear of being
returned to Mexico.\4\ Since the program was implemented in January
2019, it has impacted an estimated 50,000 asylum seekers.\5\ The well-
documented risk of violence to individuals forced to remain in Mexico,
coupled with the geographic and technological challenges of securing
counsel while outside the United States, has resulted in a mere 1
percent of Remain in Mexico asylum seekers finding attorneys to
represent them before the immigration court.\6\
---------------------------------------------------------------------------
\1\ HUMAN RIGHTS WATCH, ``We Can't Help You Here''--US Returns of
Asylum Seekers to Mexico, July 02, 2019, https://www.hrw.org/report/
2019/07/02/we-cant-help-you-here/us-returns-asylum-seekers-mexico.
\2\ U.S. DEPARTMENT OF HOMELAND SECURITY, Migrant Protection
Protocols, Jan. 24, 2019, https://www.dhs.gov/news/2019/01/24/migrant-
protection-protocols.
\3\ ``We Can't Help You Here''--US Returns of Asylum Seekers to
Mexico, supra note 1.
\4\ Tom Wong and Vanessa Cecena, Seeking Asylum: Part 2, Oct. 29,
2019, US IMMIGRATION POLICY CENTER https://usipc.ucsd.edu/publications/
usipc-seeking-asylum-part-2-final.pdf.
\5\ Juan Aguilar, Trump's Controversial ``Remain in Mexico''
Immigration Policy Expands Along Texas' Southern Border, TEXAS TRIBUNE,
Oct. 28, 2018, https://www.texastribune.org/2019/10/28/trump-remain-
mexico-immigration-policy-expands-texas-mexico-border/.
\6\ TRAC IMMIGRATION, Access to Attorneys Difficult for Those
Requires to Remain in Mexico, July 29, 2019, https://trac.syr.edu/
immigration/reports/568/.
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NIJC's Observations and Experiences with the Remain in Mexico
Policy in Laredo, Texas.--In Laredo, Texas, NIJC has represented asylum
seekers and observed Remain in Mexico hearings since the launch of that
``court'' in September 2019. The Laredo tent facility is a series of
tents and shipping container-sized trailers erected on the northern
bank of the Rio Grande, surrounded by barbed wire and guarded by agents
with guns.\7\ Traumatized, desperate, beleaguered asylum seekers are
required to line up at the bridge in Nuevo Laredo, Mexico, at 4:30 a.m.
in order to be let into the United States for their hearings. Most
sleep on the bridge the night before their hearings, because traveling
through Nuevo Laredo in the middle of the night and early morning is
too dangerous. After they are escorted from the bridge into the tent
facility, the asylum seekers wait in a freezing cold room for hours
until their hearings begin around 8:30 a.m.
---------------------------------------------------------------------------
\7\ Cedar Attansaio, Tent Courts Set to Open on Border for US
Asylum Seekers, SAN DIEGO UNION-TRIBUNE, Sept. 10, 2019, https://
www.sandiegouniontribune.com/news/nation-world/sns-bc-us-immigration-
tent-courts-20190911-story.html.
---------------------------------------------------------------------------
Once called to speak in court, asylum seekers attempt to explain
why they cannot return to their home countries to judges and Government
prosecutors who appear by video teleconference from a courtroom
hundreds of miles away. In the room where the initial hearings are
held, there are typically around 25 or more men, women, and children
waiting to see the judge, nearly all of whom do not have lawyers. They
sit on the opposite side of the courtroom from any attorneys who are
present and the attorneys are not allowed to talk to them. Their belts
and shoelaces have been taken from them. Their eyes are bloodshot from
exhaustion and, to a person, they look confused and afraid. Their
children--and there are many children--sleep in their arms. When the
asylum seekers express their fear of returning to Mexico or ask
questions about being forced to remain in Mexico, the judges frequently
get agitated and hurry along the proceedings or shrug in defeat,
reporting they have no power to order people out of the Remain in
Mexico process.
Below are 6 examples of what NIJC attorneys have witnessed in the
Laredo tent facilities and through speaking with asylum seekers who are
subject to the Remain in Mexico policy in Nuevo Laredo:
NIJC met an asylum seeker who travelled with a family member
by bus from another part of Mexico to Nuevo Laredo for their
hearings under the Remain in Mexico policy. As one family
member disembarked, he was forced into a vehicle by waiting
cartels and kidnapped. The other family member managed to
escape and, despite this terrifying experience, waited at the
bridge to attend her hearing in Laredo, Texas, the next day. At
the hearing, the remaining family member described the attack
and kidnapping to the judge to explain why her family member
was unable to attend his hearing. Despite her eyewitness
testimony about the kidnapping, the U.S. Government attorney
argued strenuously that the missing family member be ordered
deported for failing to appear.
NIJC attorneys participated in the representation of a Cuban
political dissident who slept on the bridge the night before
his asylum trial. He reported that though the sheltered area
where he slept was overseen by Mexican border officials,
Mexican cartel members came into the space at will and
kidnapped people from the shelter.
Following this Cuban man's asylum hearing, the immigration
judge indicated he was inclined to grant protection. Despite
the strength of the claim, the Government lawyer indicated she
would reserve appeal, which meant the judge was required to
adjourn the proceeding in order to write a lengthy decision to
be issued by mail. The judge declined to set the asylum seeker
for another hearing, which should have meant that he could not
be returned to Mexico while waiting for the decision because
only individuals who are scheduled for future hearings are to
be accepted back into Mexico. To side-step this procedural
obstacle, the Department of Homeland Security issued a hearing
notice with a fake hearing date, which resulted in the asylum
seeker being returned to Mexico.
NIJC attorneys participated in the representation of a large
Central American family. While more than a dozen members of the
family were allowed entry into the United States to seek asylum
after passing credible fear interviews, 4 family members who
arrived later were subjected to the Remain in Mexico policy and
returned to Nuevo Laredo. Because all of the family members
present asylum claims that arise from the same nucleus of facts
and rely on the same evidence, their attorneys requested that
Immigration and Customs Enforcement (ICE) agree to consolidate
the proceedings of all family members and parole the 4 family
members in Mexico into the United States. ICE refused, thus
requiring that separate judges on separate dates hear the
nearly identical cases. Moreover, while subject to Remain in
Mexico, the 4 family members in Mexico were threatened by
cartels and evicted from the hotel in Nuevo Laredo where they
had been staying.
NIJC attorneys observed the sham nonrefoulement process in
Laredo. Asylum seekers subject to the Remain in Mexico policy
may request exemption from the program if they establish they
face harm in Mexico on account of a protected characteristic. A
gay, HIV-positive Central American man requested a non-
refoulement interview after he was persecuted in Mexico and
denied access to the life-saving medications he needs. His
attorneys provided him with country conditions documents and a
written legal argument in support of his claim. The officer who
administered the non-refoulement interview by telephone refused
to review his evidence, spoke with him for approximately 20
minutes, and summarily returned him to Mexico without an
explanation for the denial.
While tent facility hearings are supposed to be no different
from hearings in brick-and-mortar immigration courts across the
country, authority and control over the hearing process differs
dramatically. ICE officials--not immigration judges--control
access and operations. When attorneys request access to cell
phones or to hearing spaces large enough to accommodate legal
teams, ICE officials determine the outcome of the requests. ICE
officials decide whether attorneys may meet with their clients
after court and for how long. ICE officials decide whether
attorneys may bring interpreters to meet with their clients and
assist with communication during court hearings. The reality
that ICE officials, who are opposing counsel in immigration
court, determine when and how attorneys for asylum seekers
conduct representation is deeply troubling.
Asylum is a critical safeguard against tyranny and persecution that
the United States has extended to those in need throughout American
history. Offering asylum protection is also something we owe to
ourselves as Americans; to remain tethered to the foundations of our
country as a place of religious and political freedom and a place where
those who have been persecuted because they possess a characteristic
they cannot change can be safe. The concerted efforts by our Government
to close off access to asylum were conceived in cruelty and implemented
for superficial political gain. We must do better.
For more information, please contact Lisa Koop, associate director
of legal services, at [email protected]; Jesse Franzblau,
senior policy analyst, at [email protected]; or Joann
Bautista, policy associate, at [email protected].
______
Statement of Yael Schacher, Senior U.S. Advocate, Refugees
International
November 19, 2019
Thank for you for the opportunity to submit this written statement
for this important hearing today.
Refugees International (RI) is a non-Governmental organization that
advocates for lifesaving assistance and protection for displaced people
and promotes solutions to displacement crises. We conduct fact-finding
missions to research and report on the circumstances of displaced
populations in countries such as Bangladesh, Colombia, Turkey, and
Mozambique, among many others. RI does not accept Government or United
Nations funding, which helps ensure that our advocacy is impartial and
independent.
In testimony and reports over the past 10 months, RI has criticized
ways that the Remain in Mexico policy has violated due process and led
to great suffering. Rather than allow asylum seekers to pursue their
claims in the United States, the policy returns them to Mexico, where
there is little access to counsel, no provision for their basic needs,
and no security to ensure their safety while their claims are
adjudicated. This statement focuses on 3 ways that the policy raises
legal and human rights concerns, drawing on examples RI has learned
about from meeting with asylum seekers returned to Mexico; from
observing Remain in Mexico immigration hearings relayed via video from
port courts; and from speaking to migrants subject to Remain in Mexico
who have returned to their home countries in Central America.
First, Department of Homeland Security (DHS) officials have not
adequately fulfilled their obligations to screen asylum seekers
regarding their fear of return to Mexico. In Tijuana, RI spoke to a
Honduran woman who, without telling her where she was going, DHS flew
from the Rio Grande Valley to San Diego in June 2019. When, at the port
of San Ysidro, she objected to being returned to Mexico, U.S. Customs
and Border Protection (CBP) forced her to sign the form by grabbing her
arm, which she said still hurt weeks later. In Matamoros, RI spoke to
men from Nicaragua and Honduras who told Customs and Border Protection
officials that they had been kidnapped with the complicity of the state
police in Reynosa before seeking asylum in the United States. A
Honduran woman told RI of being trafficked into prostitution in
Reynosa. Her body was covered in bug bites from being left by her
traffickers, unconscious, in the desert, where CBP found her--but still
returned her to Mexico, though she told them what had happened to her.
None of these people had been referred by CBP to asylum officers for
fear screenings about what happened to them in Mexico.
If referred to asylum officers at all, the fear screenings asylum
seekers receive are inadequate and seem arbitrary. In one case RI
followed for several weeks in El Paso/Juarez, a woman and her son were
released from the Remain in Mexico program after their third fear
screening despite absolutely no new facts in her case since the first
one; the incident that made her scared to return to Mexico--an
attempted kidnapping of her son--occurred before her first court
hearing months earlier and had been mentioned in previous interviews
with asylum officers. The end result is that this mother and child--who
were traumatized, having witnessed the murder of their husband and
father in Honduras--spent several unnecessary months in fear in Juarez
and separated from family in the United States.
Second, DHS is interfering with the ability of asylum seekers to
get meaningful hearings on their asylum claims in immigration court.
Asylum seekers who are returned to Mexico wait there for many weeks
until they return to the port of entry to be escorted to their initial
hearings with an immigration judge. This is the day they have been
waiting for, their chance to tell a judge about why they fled their
home countries to ask for refuge in the United States. Almost none of
them have attorneys to tell them what to expect. What happens is
devastating for them and devastating to witness. RI watched one hearing
in El Paso at which a Q'anjob'al speaker, who clearly had not been able
to say anything in her own language for weeks, pled through a court-
arranged interpreter for help: ``In Mexico, I am afraid and what hurts
me most is that nobody wants to help me. Please put me in a cell,'' she
begged. When she told the judge that she had documents attesting to
abuse by her stepfather in Guatemala, the judge said now was not the
time to address that. ``Please can I tell you now?'' she asked, to no
avail.
Those brought to the port courts in Laredo and Brownsville see a
judge on a television screen. According to policy guidelines, DHS (CBP
and asylum officers) not the Executive Office of Immigration Review
(the section of the Justice Department that employs immigration judges)
controls who is exempted from the Remain in Mexico program. Asylum
seekers learn quickly that the judge is powerless to take them out of
the program, powerless to unite them with spouses and children in
detention or otherwise in the United States, powerless to help them
find counsel to represent them or a translator to help with their
asylum application and evidentiary documents. If any start telling the
judge about persecution they have faced, the judge silences them. At
one hearing, a judge in Harlingen left the courtroom while the attorney
for DHS and the officer in the port court determined who would be
referred to an interview with an asylum officer about their fear of
return to Mexico; it was, in the judge's words, to DHS and not to her
that fear needed to be expressed. When the judge returned, she told all
the asylum seekers that the one thing that was certain was that, if
they did not return to a hearing in 4 weeks with their asylum
applications completed in English, they would be deported in their
absence.
Despite the odds, some asylum seekers try their best to pursue
their cases: Find attorneys or represent themselves, submit their
applications, and return for individual hearings on the merits of their
asylum cases. Yet obstacles, both physical and technical, abound. In
September, Refugees International met one Nicaraguan father and son
reporting to the port of entry in Nuevo Laredo at 4:30 a.m. as is
required for morning court hearings. They had just been released by men
who had kidnapped them on their way to the port. In early November,
Refugees International was in a courtroom in Harlingen with a judge and
a translator while a Cuban asylum seeker appeared for her merits
hearing at the port court in Brownsville. Due to pressure to expedite
cases, only 2 hours had been allotted for a merits hearing that
typically takes all day, but would certainly take longer since
simultaneous translation is not possible when using video technology
conferencing. The woman was still testifying when the court had to
close. This meant that both she and the other asylum seeker that was to
appear that afternoon had to have their hearings reset and would have
to wait in Mexico until late February. They must return to Matamoros--
where an unofficial refugee camp lacking sufficient clean water, food,
schooling, and security is home to thousands of waiting asylum seekers.
Many asylum seekers feel they cannot wait it out and therefore ask
to be sent back to their home countries or just return on their own,
the third major problem with the Remain in Mexico policy. These asylum
seekers have not yet had a chance to seek protection and may be at risk
upon return to their home countries. In the spring, RI was in the court
room in El Paso when a Guatemalan woman told a judge that she had no
money and was afraid to wait and travel through Mexico on her own,
especially without her own and children's identification documents, and
insisted on deportation. She told the judge that though she was very
afraid to return to Guatemala, she would rather be killed there, where
there would be people to take care of her children, than in Mexico,
where she knew nobody. Another woman returned to Guatemala in
September, after a man threatened her and her children while they were
waiting in Tijuana for their next court date. In October, RI spoke to
this woman on the phone. She feared for her life in Guatemala--the
partner she fled originally was still threatening her--and wanted to
know how she might reunite with her elder daughter, who had been
separated from her at the border, detained for 3 months, and then
released to relatives while she pursued her asylum claim. Since the
mother had missed her September Remain in Mexico court date in San
Diego, however, she had been deported in her absence and is barred from
relief in the United States for a decade.
The Remain in Mexico policy thus cuts off the right to seek asylum
and returns asylum seekers to danger in violation of U.S. and
international law. It also separates families and makes a sham of the
idea of justice in immigration court.
______
Statement of San Antonio Region Justice For Our Neighbors (SARJFON)
November 18, 2019
San Antonio Region Justice For Our Neighbors strongly urges
Congress to reassert legislative authority over our Nation's
immigration policy and end the violation of human dignity and human
rights being perpetrated by our Government at our Southern Border. As a
501(c)3 faith-driven provider of immigration legal services to border
communities from Brownsville to Laredo to Eagle Pass, we have
significant exposure with asylum seekers adversely impacted by the
Migrant Protection Protocol/Remain in Mexico Policy.
Our first engagement with clients struggling to survive MPP started
shortly after its implementation in Texas and these words (Google
translated and abbreviated from an email received July 26, 2019)
requesting legal representation speak for themselves:
``Hello madam blessings. Yesterday several girls who were in the tents
with me went to the first court. From here . . . she did not want to
return to [Mexico] because she explained to the judge the dangers here
and the judge allowed her to go to the detention center. Madam, I know
that this first court depends on the judge's decision but first of all
on God. I need please that if I am not allowed to speak you ask the
judge to take me to a detention center . . . 5 days ago they kidnapped
a . . . girl near here and her family is desperate. Yesterday at 9 pm
several police officers arrived here . . . and shouted, and knocked on
the door, we locked ourselves here in the room and turned off the light
because we were very afraid. Because here the police are corrupt . . .
Here we have no security of any kind. Please help me, I will thank you
infinitely and God will bless you. Madam I prefer to be in a tent as I
was, without taking a bath, going hungry, without brushing my teeth,
almost without communication, with bad treatment. I feel SAFE in the
United States, here in this country [Mexico] there is no security of
any kind. Please help me. God bless you.''
Please let this plea for safety stand as testimony for the many
asylum seekers our staff are working to assist in each of the Texas
border communities impacted by MPP. We believe her words echoed by
countless others being prevented from lawfully pursuing their asylum
claims ought to compel elected officials to take steps immediately to
end MPP.
Our staff/attorneys would be happy to answer any questions you
might have and shed light on the unimaginable conditions those
religated to MPP are being forced to endure. We also extend an
invitation to the committee to facilitate direct video conference
communication with asylum seekers with whom we are working. We
appreciate the opportunity to share this information and we look
forward to learning of positive steps toward restoring justice for
those seeking asylum.
______
Statement of Todd Schulte, President, FWD.us
November 19, 2019
The tents start a few feet from the U.S.-Mexico border--and in some
places, the tents press up against the building directly at the border.
When you walk over the short bridge from Brownsville, Texas to
Matamoros, Mexico, you immediately walk into what is best described as
a tent city, filled with approximately 3,000 people who are blocked
from applying for asylum in the United States and awaiting the results
of their process in the safety of America. You see dozens of children:
Some playing, some sitting, some nursing, and some bathing in the dirty
water of the Rio Grande. You smell the camp because the Mexican
government refuses to allow more than a handful of portable toilets for
a few thousand people, leaving people to need to relieve themselves on
the outskirts of the camp.
And because it is just over the border, and just a little harder
for the U.S. public to see than the horrors of the 2018 zero tolerance
family separation crisis (which continues) or the awful conditions of
confinement we say dominate headlines in 2019, we have not yet seen the
outrage over the Remain in Mexico policy, which when layered with a
series of other policies, has resulted in the unprecedented attack on
the basic decency of families attempting to seek asylum at the United
States and Mexico border.
The assaults on America's system of asylum and the basic decency
deserved by these families are no less, and that is why today we are
submitting this statement for the record.
Why do approximately 3,000 people sit in these horrible conditions,
sleeping in old tents, bathing in dirty water, without clean water or
toilets, and subject to harsh weather? Because they're making a
rational decision that these awful conditions are better than the risks
that come with moving away from the border, where regular kidnappings
and other serious--and deadly--risks exist at terrible rates.
Over the last few months, the most powerful country in the history
of the world has sent back over 60,000 people--mostly families, often
women and children--back to Mexico to wait in terrible, deeply
dangerous conditions for months and perhaps years for their day in
court on their asylum hearings. The United States sends these families
back to areas its own State Department says are too dangerous for
travellers. No one should repeat the Orwellian label of ``Migrant
Protection Protocols'' that has been given to this policy.
And so instead of living in shelters away from the relative safety
of the border and access to basic health and legal services, people
have chosen to live in camps within view of the United States.
People do not have a right to automatically receive asylum, but
they do have a legal right to request asylum and should have the right
to a fair process and to await this process in safety. The Remain in
Mexico policy processes families through tent courts set up directly at
the border. The judges are often dozens or hundreds of miles away.
Almost none have attorneys. After their hearings, they are sent back to
dangerous conditions where they are targeted for kidnapping.
Over the last year-and-a-half, the Government of the United States
of America has pursued a series of intersecting policy goals designed
to essentially eliminate the entire asylum system of Southern Border.
That is, through policies such as ``metering,'' Remain in Mexico, the
various asylum bans and ``Safe Third Country''-like agreements combined
with the intentionally cruel and chaotic treatment of families and
children--including babies--they seek to nearly eliminate the ability
of anyone to avail themselves of their legal right to seek asylum.
For the constant, misleading rhetoric about how this must be about
unauthorized immigration and how ``The Wall'' is the answer to a
falsely-defined problem, in fact this is part of a pattern of assaults
on nearly every legal immigration avenue. The refugee program has been
slashed to near extinction. High-skilled immigration avenues are under
attack. Regulatory and administrative hurdles are being thrown up to
make everything from a U.S. citizen petitioning for a spouse to come to
the United States to a global manufacturer getting that world-class
engineer harder, more expensive, and ultimately less likely.
In Matamoros, you can see the United States from every corner of
the tent camp--and in Matamoros, you see the result of these multi-
pronged, chaotic, and cruel assault on immigration and asylum channels.
Two months ago, there were a few hundred people in tents. Today,
approximately half of the 3,000 are children. In the absence of either
the Mexican or U.S. Government as well as major international
organizations like the United States or the Red Cross, there is an
amazing contingent of volunteer-led organizations who work daily to do
what they can to provide basic humanitarian services, a sense of
humanity and--where they can--some legal services to these
organizations. The volunteers from Team Brownsville prepare and walk
food for hundreds over the bridge every night, while Angry Tias and
Abuelas provides donated basic humanitarian needs like clothes. Private
attorneys volunteer their time and non-profits send volunteer
attorneys. Volunteers with Global Response Management who previously
worked in war zones like Yemen and served in the U.S. military provide
basic medical support under a tent. Attorneys and staffers with civil
rights organizations like Texas Civil Rights Project and LUPE fight
tirelessly to show the world what is happening. We need policy change,
but in the mean time we encourage others to support these and other
great groups and are deeply thankful to them.
This is the result of the policy choices made by the United States
of America, and just because it exists outside of the United States, it
makes it no less awful or devastating to tens of thousands of people
who look to the United States for a chance to survive threats to their
lives--a chance that the United States is denying them today. We urge
the Government of the United States to reverse these policies and
uphold the best of what this country can be by ending the Remain in
Mexico policies and related attacks to essentially eliminate the asylum
system.
______
Statement of Karla Barber, Dallas, TX
I am submitting this statement for the Congressional hearings on
Migrant Protection Protocols (MPP) scheduled to begin on November 19,
2019.
I have just finished a trip to visit the Mexico border towns of
Matamoras and Ciudad Juarez to see for myself the effects of MPP.
What I saw in Matamoras is horrifying. Over 2,500 asylum seekers in
an encampment right at the bridge living in tents. A handful of porta-
potties provided by the volunteer group Team Brownsville overflowing
with human waste. People forced to bath in the very polluted Rio
Grande. Children without shoes. Sick children, sick adults. All living
in tents crammed together. They rely on the donations brought over by
volunteers in Brownsville to survive.
In Juarez I saw approximately 200 refugees in a tent encampment by
the Santa Fe bridge and another 800 near the Free Bridge. I met a 7-
year-old girl; she told me about the ``list''; ``they are on number 33;
my family is number 183''.
I visited 2 shelters. At one, I met a boy with Down's syndrome
whose face was frostbitten in the hieleras (ice box). He and his mother
sent back to wait in a shelter that has no heat.
I talked to a family (a mother, a father, a young daughter) who
were kidnapped and held captive in an abandoned church. Held for 3
days, they broke a window to escape, and found their way to the shelter
where they share a 2-bedroom ``house'' with 7 other families; a total
of 25 people. They have family in the U.S. ready and willing to sponsor
them.
I heard stories about kidnappings and murders.
All of this because of a manufactured crisis caused by MPP. This
practice needs to end.
Thank you,
Karla Barber,
[]Dallas, TX 75219.
______
Statement of Janice Zitelman, Fredericksburg, TX
Good Morning,
I am writing to ask that you do all that is possible to end the
Remain in Mexico policy. My husband and I have been volunteering with
the Interfaith Welcome Coalition based in San Antonio for over a year.
We have heard personal stories from the asylum seekers about their
difficult journeys. All whom we have met just want a life for
themselves and their children where they do not fear for their lives.
The U.S.A. has treated them poorly even though they have a legal right
to seek asylum. With the ``Remain'' policy they are suffering great
hardship. Volunteers seek to assist them with food, clothing, and
shelter on the Mexico side but it is totally inadequate. Our country is
rich in resources and there is no need to try to keep them out when
they are just following the law. They have sponsors who welcome them.
``No one leaves home unless home is the mouth of a shark''.
Our country has a responsibility to assist the asylum seekers since
we played a great role in creating the unstable government and economic
situation of the Central American countries.
Thank you for you service to our country,
Janice Zitelman,
[]Fredericksburg, TX 78624.
______
Statement of Marguerite D. Scott, LCSW-S, Kerrville, TX
November 17, 2019
Re: Statement Regarding MPP
Honorable Members of the House Homeland Border Security
Subcommittee,
In the hearing you will hear from competent professionals about the
effect of trauma on children and adults. Listen to them.
In my clinical practice, I have for decades treated adults
survivors of childhood trauma. Such trauma is costly emotionally and
financially to the individuals, their families, and their communities,
to us all.
Do what you know is in alignment with basic American values of
respect, ``all men are created equal'', and what is in the best
interest of the children--our future.
Move beyond fear.
Sincerely,
Marguerite D. Scott, LCSW-S,
[]Kerrville, TX 78028.
______
Statement of Douglas Stephens, Esq., Government Accountability Project
November 18, 2019.
The Honorable Kathleen Rice,
Chairwoman, Subcommittee on Border Security, Facilitation, &
Operations, U.S. House Committee on Homeland Security,
Washington, DC 20515.
The Honorable Clay Higgins,
Ranking Member, Subcommittee on Border Security, Facilitation, &
Operations, U.S. House Committee on Homeland Security,
Washington, DC 20515.
Dear Committee Chairs: Below please find a written statement for
the record from our client, whistleblower Douglas Stephens, Esq., in
support of the U.S. House Committee on Homeland Security's Subcommittee
on Border Security, Facilitation, & Operations November 19, 2019
Hearing, Examining the Human Rights and legal Implications of DHS's
``Remain in Mexico'' Policy.
Mr. Stephens is a former Asylum Officer who resigned from USCIS in
August 2019. While serving as an Asylum Officer, Mr. Stephens, after
conducting 5 interviews under the Migrant Protection Protocols (MPP or
``Remain in Mexico'' program), refused to conduct further interviews,
believing that implementing MPP violates numerous laws and treaty
obligations and poses significant threat of harm to asylum seekers
forced to remain in Mexico. After facing retaliation, he documented in
writing the reasons for his concerns to his superiors in a 7-point
memo.
Mr. Stephens shared his concerns with Senator Jeff Merkley (D-OR),
which became an integral part of a report issued by Senator Merkley on
November 14, 2019, ``Shattered Refuge: A U.S. Senate Investigation into
the Trump Administration's Gutting of Asylum.'' Mr. Stephens has since
spoken on the record to the press, including the Los Angeles Times and
This American Life, motivated to shed light on MPP as an illegal,
dangerous, and destructive policy, and to support his former Asylum
Officer colleagues who remain in the untenable position of having to
implement a policy that is illegal and dangerous. This same motivation
prompts his statement to this committee.
Thank you for holding this important hearing and for the
opportunity to submit his written statement regarding his decision to
engage in protected whistleblowing based on his experience as an Asylum
Officer seeing first-hand the illegal and inhumane effects of the
Remain in Mexico policy.
Sincerely,
Dana L. Gold,
Counsel for Mr. Douglas Stephens, Senior Counsel & Director of
Education, Government Accountability Project.
Attachment.--Statement of Douglas Stephens, Esq.
November 19, 2019
Chairwoman Rice, Ranking Member Higgins, and other Members of the
subcommmittee, thank you for providing the opportunity to provide a
written statement relevant to this hearing on Examining the Human
Rights and Legal Implications of DHS's ``Remain in Mexico'' Policy.
My name is Douglas Stephens.\1\ I was an Asylum Officer in the San
Francisco Asylum Office from September 2017 until August 31, 2019.
Prior to my service in the asylum corps, I was a Department of Justice
(DOJ) staff attorney for the San Francisco Immigration Court from
September 2015 to September 2017. While at the Immigration Court, I
reviewed 195 cases and drafted 96 judicial decisions. In my 2 years as
an Asylum Officer, I conducted and adjudicated more than 350
Affirmative Asylum interviews, Credible Fear screenings, and Reasonable
Fear screenings. I conducted 5 Migrant Protection Protocol (MPP)
interviews, also known as Remain in Mexico interviews.
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\1\ I, Douglas Stephens, am an attorney admitted to the practice of
law in California. I received my Juris Doctor and a cross-disciplinary
certificate in Human Rights from Emory University School of Law in May
2015. I received my Bachelor of Arts in International Affairs and Peace
and Conflict Studies from the University of Colorado in 2007.
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In late 2018, the Trump administration announced the Remain in
Mexico policy. Under the policy, Asylum Officers are tasked with
conducting an interview of non-Mexican migrants attempting to enter the
United States by the Southern Border, nominally for the purpose of
assessing the likelihood of harm the migrant would face if forced to
remain in Mexico during the pendency of his or her removal proceedings
before an Immigration Judge. As I am sure you are aware, the policy was
slow to be implemented and is subject to on-going litigation. The San
Francisco Asylum Office began conducting MPP interviews on or about
June 2019, after the Ninth Circuit Court of Appeals lifted a temporary
injunction on the policy. The San Francisco Asylum Office was assigned
all MPP interviews originating for migrants that cross the Mexico-
Arizona border.
To the best of my recollection, Asylum Officers in San Francisco
received two ``trainings'' on the policy during the office's weekly,
all-hands, training meetings. Both trainings were nearly identical and
consisted of nothing more than Training Officers and a Section Chief
reviewing a PowerPoint presentation disseminated from RAIO (Refugee,
Asylum and International Operations) headquarters. The first training
occurred sometime in early 2019 before the program was enjoined. The
second training occurred around June 2019, after the injunction was
lifted.
At both trainings, the mood was tense and morale low. Officers
raised numerous objections and concerns, including but not limited to
the programs legality, the manner of implementation, the office's
jurisdiction to conduct the interviews, and our ethical obligations as
Government officials and as licensed attorneys. In both trainings,
those concerns went largely unanswered. The local San Francisco
administration, including the director and section chiefs, appeared
empathetic with the concerns raised but could provide no answers,
maintaining an ``I'm just the messenger'' attitude. Notably, despite
concerns being raised early in the year, there were still no answers or
resolution to those concerns by the second training some 4 months
later.
In tacit recognition of the validity of the objections, the San
Francisco Asylum Office first attempted to implement MPP interviews on
a rotating volunteer schedule. However, the number of interviews
quickly exceeded the number of volunteers, and the interviews became
mandatory for all staff. When I left the office at the end of August,
MPP interviews were given priority over all other interviews and
programs. If there were insufficient officers to meet demand from the
border, the officers were pulled out of credible fear and affirmative
asylum interviews to do MPP interviews. Additionally, mandatory
overtime on nights and weekends was implemented. To my knowledge, that
is still the situation in San Francisco, while other offices, like the
Los Angeles office, have been able to operate on a volunteer basis.
I was assigned MPP interviews the week of August 5, immediately
upon return to San Francisco from a detail to Dilley, Texas, and 1 week
after I had applied for a supervisor position within the office. I was
assigned 3 MPP interviews on August 6, and 2 on August 7. It is my firm
belief that the Remain in Mexico program is illegal, violating the
Immigration and Nationality Act and international law. I refused to
conduct any more MPP interviews on August 8, 2019.
During those 2 days that I conducted MPP interviews, and over the
following weeks, I had numerous conversations with the other asylum
officers in San Francisco. These conversations were always furtive, and
behind closed doors. Nobody I spoke to was comfortable with the MPP
interviews. Officers who had not yet conducted an MPP interview were
generally thankful and were hoping to somehow avoid the assignment.
People would volunteer for otherwise undesirable work details so they
could avoid being placed on the MPP schedule. A number of officers had
already quit due to MPP before I was tasked with the interviews. Many
more have left since. My impression was that the majority of the
officers who left did so by transferring elsewhere within the agency.
Although MPP was the motivation for leaving the asylum office, they
often remained quiet about this fact, not wishing to jeopardize their
careers. Individuals like myself, who ultimately chose to leave
Government service entirely, were more vocal about the reason they were
quitting. I know of at least one individual who took a demotion in
order accelerate the transfer and avoid any complicity with MPP. I know
of only 1 officer who has both refused to conduct MPP and maintained
their employment at the asylum office.
The officers who had done MPP interviews were frustrated, angry,
and demoralized. Where the previous Credible Fear interviews averaged 1
to 2 hours, MPP interviews could take 3 hours or longer--longer than a
normal affirmative asylum interview. However, nobody I spoke to had
been able to get approval for a positive \2\ determination, regardless
of the facts being presented to them or the level of past harm in
Mexico. In the rare instances that an asylum officer in the San
Francisco office did make a positive determination, that determination
was overridden by supervisors and changed to a negative.
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\2\ The term ``positive'' determinations refers to individuals who
``pass'' an MPP interview and are not sent back to Mexico; ``negative''
determinations refers to those who were returned.
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Every officer I spoke to felt deeply concerned about MPP. I
discussed at length with a senior asylum officer and fellow lawyer why
MPP felt significantly worse than other types of interviews and
negative decisions we issue. That was the question I was asking myself
when I decided to look into issue of legality for myself.
Asylum Officers have two fundamental jobs: (1) Identify whether or
not someone qualifies for asylum protection under the law and provide
protection to those individuals; (2) identify potential National
security concerns and fraudulent claims to safeguard the security of
the United States and maintain the integrity of the asylum program. MPP
does none of these things. While under the previous rubric of Credible
Fear, both Asylum Officers and CBP were running background checks on
applicants; Asylum Officers do not perform any background checks on
individuals under MPP. Additionally, the program does nothing to
eliminate fraud in the system, which occurs mostly in populations
largely unaffected by MPP.
More egregiously, the program actively places asylum seekers in
exceptionally dangerous situations. Asylum Officers must be well-versed
on the political, social, and economic situation in an asylum seekers
home country, or in the case of MPP, in Mexico. Every Officer
conducting MPP was aware of the situation in Mexico and danger to
migrants being reported, not only in the media but in expert reports
from the State Department and the Asylum Corps' own research unit.
However, under MPP, instead of offering protection, officers hear
credible stories of past harm and feared future harm in Mexico, and
then return the asylum seekers to Mexico--returning them to locations
that the officer knows will put the migrant at risk of the exact harms
Officers used to protect against.
This is the discomfort felt by every officer I have spoken to:
Under MPP we are affirmatively and intentionally harming those same
individuals we previously protected. In so doing, we are complicit in
the persecution, torture, and other human rights abuses these
individuals will face back in Mexico.
Drawing on my experience at the asylum office, the immigration
court, and my training as a lawyer, I was able to quickly identify at
least 7 ways that the MPP program violates the law, my oath to office,
or the principles of the refugee program. The obvious illegality of MPP
and the resulting harm to asylum seekers is what motivated me to refuse
to continue doing the interviews. Had the only problem been a narrow
legal question already being litigated, I am not sure I would have
refused and would likely have waited for a judicial ruling. However,
the scope of the illegality, the numerous violations across multiple
sections of the INA and international treaty obligations, leads me to
believe that whoever designed the policy was either ignorant of, or
willfully blind to, the law. In addition, because the policy is
actively causing harm to tens of thousands of individuals, it felt
imperative to raise these concerns quickly.
On August 8, I refused to conduct any more MPP interviews or
otherwise be involved in the program. I informed my supervisor that I
was refusing because I believe the program is illegal in multiple
aspects, and that by participating in the program Officers were
breaking the law and violating their oath to office. I memorialized my
objections and concerns in a memo. On Monday, August 12, I sent that
memo as the body of an email to the management of the San Francisco
Asylum Office, including the director, section chiefs, and the 2
supervisors who had reviewed my MPP interviews. I also included my
union representative, because management had begun disciplinary
proceedings against me for insubordination. I do not know if my
concerns were discussed or elevated. Management never responded to my
email, addressed my concerns in person, or even acknowledged receipt of
my objections. Although I was not present, I was told by other asylum
officers that management emphasized that MPP interviews are mandatory
work at the next all staff meeting.
Through the union, I was put in touch with Senator Merkley's office
because he was conducting a special investigation into possible legal
violations within the asylum program. Having received no response from
my superiors in USCIS, I decided I should share my concerns with the
Senator. Senator Merkley ultimately utilized much of my memo in a
report on the destruction of the asylum program, which he published
last Thursday, November 14.\3\ Ultimately, I decided to leave USCIS,
feeling that my continued employment there was not in my best interest.
Before leaving, I chose to share my memo with all of my San Francisco
colleagues in an attempt to support those individuals who were actively
struggling with the ethical dilemma of being forced to implement the
policy. It is that same motivation--to shed light on an illegal,
dangerous, and destructive policy, and to support my former
colleagues--that compelled me to speak out publicly.
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\3\ Office of Sen. Jeff Merkley, Shattered Refuge, A U.S. Senate
Investigation into the Trump Administration's Gutting of Asylum
(November 2019), Appendix N: Confidential Whistleblower Email to USCIS
Management Regarding Migrant Protection Protocols (August 12, 2019),
pp. 77-80, available at https://www.merkley.senate.gov/imo/media/doc/
SHATTERED%20-
REFUGE%20%20A%20US%20Senate%20Investigation%20into%20the%20Trump%20Admin
i- stration%20Gutting%20of%20Asylum.pdf.
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I now have the privilege of sharing these concerns about the
illegal and dangerous effects of MPP with this committee.
specific concerns about the legality & adverse humanitarian
consequences of mpp
MPP has been operating in the following manner. If, and only if, a
an asylum seeker expresses a fear of returning to Mexico to Customs and
Border Patrol (CBP) Agents, CBP notifies the San Francisco Office.
Interviews are conducted telephonically that same day. Officers remain
in their home office and conduct a 3-way call with migrants being held
in a CBP detention facility on the border and a third-party
interpreter. The telephone connections are bad; the line is often fuzzy
or had static, and calls are frequently dropped. The asylum seeker is
denied access to legal representation during the interview and the
interview will not be postponed to give the applicant an opportunity to
find and confer with counsel.\4\
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\4\ The outright denial of representation for an individual in
removal proceedings also violates the INA, although I did not
explicitly note this objection in my memo.
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The purpose of the MPP interview is nominally to comply with our
country's international obligation to the principal of non-refoulment--
to not return someone to a country where it is more likely than not
that the migrant be persecuted on account of their race, religion,
nationality, political opinion, or membership in a particular social
group, or where it is more likely than not they would be subjected to
torture. The principal of non-refoulment has been accepted as a jus
cogens within international law and has been codified in the 1952
Convention of Refugees and the 1967 protocol. It is an essential
protection under humanitarian, refugee, international human rights, and
customary law. It is codified within our domestic laws at INA
241(b)(3), and referred to as Withholding of Removal. However, as I
explain below, the MPP program almost ensures violation of this
principal.
The MPP interviews are also unique from other tasks assigned to the
Asylum Corps in a few key ways. First, the interviews are not
contemplated in the INA and there are no implementing regulations.
Second, an applicant can only be subject to MPP interviews if they are
already in removal proceedings under INA 240. Previously only
Immigration Judges adjudicated claims arising from removal proceedings
under INA 240. Third, the burden of proof for a migrant to pass MPP
interviews is ``more likely than not,''\5\ which is substantially
higher than any other interview adjudicated by Asylum Officers. By way
of reference, affirmative asylum interviews are to determine if there
is a ``well-founded fear of harm,'' which is usually quantified as a 1
in 10 chance of harm.\6\ Credible Fear interviews are referred to as
asylum pre-screening interviews and have an even lower burden of proof,
asking if there is a significant possibility an applicant could
establish a well-founded fear at a full hearing.\7\ Finally, while in
all other contexts an asylum applicant can have their claim reviewed or
renew their petition before an Immigration Judge, a negative
determination in MPP is unreviewable and results in the immediate
removal of the applicant to Mexico.
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\5\ This is the same as a ``preponderance of the evidence''
standard used in most civil litigation.
\6\ See, INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).
\7\ 8 C.F.R. 208.3(e)(2).
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With that in mind, I have concluded MPP is illegal for the
following reasons, outlined below and with excerpts from the memo I
sent to management and the San Francisco Asylum Office staff explaining
my objections to conducting interviews under MPP:
1. There is no statutory authority for the MPP, and the program
violates U.S. immigration law. What proceedings are to be given to a
migrant when they arrive at the border is addressed in INA 235(b). A
careful reading of the statute makes it clear that the provision relied
upon the administration to justify MPP is inapplicable to the
population being subject to MPP. Instead, those individuals must be
placed in expedited removal proceedings and given a Credible Fear
screening. They should not be forced to leave the United States
territory while in removal proceedings. The short statutory analysis I
provided in my memo is as follows:
The legal question at issue is whether the 2 provisions governing
inspection for applications for admissions--expedited removal under INA
235(b)(1) and ``other aliens'' un INA 235(b)(2)--are mutually
exclusive or if CBP can proceed under section (b)(2) even when an
applicant falls within the requirements of expedited removal.\8\ The
administration has claimed legal authority to implement the MPP
pursuant to INA 235(b)(2)(C), which allows for the return to a
contiguous territory of an alien who is subject to admission and
inspection procedures under (b)(2). However, section 235(b)(2)(B)
provides explicit exceptions to individuals subject to section
235(b)(2) and specifically states that (b)(2) does not apply to aliens
subject to inspection under (b)(1). Similarly, section (b)(1) provides
an explicit exception for individuals who would otherwise be subject to
expedited removal, which is referenced multiple times while describing
expedited removal proceedings. INA 235(b)(1)(F); see also, INA
235(b)(1)(A)(i), (ii). The exclusion language under each provision
makes clear that Congress considered and specifically determined who
would be excepted from inspection under provision. Individuals subject
to inspection under (b)(1) are not subject to provisions of (b)(2). The
separation of the 2 processes for admission, 235(b)(1) and (b)(2), has
been recognized by both the Supreme Court and the Attorney General.
Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018); Matter of M-S-, 27
I&N Dec. 509, 510 (BIA April 16, 2019).
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\8\ Individuals are subject to expedited removal only if they are
removable under 212(a)(6)(C) or 212(a)(7).
Furthermore, [ . . . ] whether an applicant for admission is subject to
inspection under (b)(1) and (b)(2) is not discretionary. If an
immigration officer determines that an individual is removable under
INA 212(a)(6)(C) or 212(a)(7) ``the officer shall order the alien
removed'' pursuant to expedited removal proceedings. INA
235(b)(1)(A)(i) (emphasis added). The mandatory nature of expedited
removal has not been disputed and conforms with the Congressional
intent of deterring undocumented migrations. Once an applicant
expresses an intent to apply for asylum or a fear of persecution ``the
officer shall refer the alien for an interview by an asylum officer''
for credible fear screenings. INA Sec. 235(b)(1)(A)(ii) (emphasis
added). In other words, individuals who apply for admission in the
United States who are removable under INA Sec. 212(a)(6)(C) or
212(a)(7) must be placed in expedited removal and must be given a
credible fear interview if they request asylum or claim a fear of
persecution. The MPP violates the INA because it inappropriately
removes individuals who must be inspected and processed under expedited
removal and credible fear, and places them in removal proceedings under
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section (b)(2).
2. The Asylum Office never had jurisdiction to do any of the MPP
interviews that I conducted, or, to my knowledge any of the interviews
conducted by any other officer at the San Francisco Office. This was a
concern I had raised at the trainings and it was reaffirmed as soon as
I began MPP interviews. The files we were given did not contain a
Notice to Appear (NTA) which is the charging document that places
someone in removal proceedings under INA 240. Nor did the file
contain any other charging document that would confer authority to the
Asylum Office to conduct interviews. When I was discussing paperwork
with an applicant at the end of one interview I learned that she had
not been given an NTA or any other paperwork from CBP prior to her
interview. This raises serious due process concerns, as the NTA is the
document required for removal proceedings to begin and MPP interviews
can only occur if someone is already in removal proceedings.
Additionally, both statute and regulations require that the NTA provide
the individual with a list of warnings if they fail to appear in court
and notify them of their rights in removal proceedings, including the
right to an attorney and an interpreter. Based on the lack of service
to the asylum seekers before their MPP interviews and the speed at
which MPP interviews were being conducted after someone arrived at the
border, I seriously doubt that any NTAs were served on an immigration
court prior to the interviews. This would, quite literally, make the
entire MPP interview extrajudicial.
3. MPP interviews violate our international treaty obligations by
discriminating against a particular class of migrants. At the time I
objected, the policy targeted specifically individuals from Guatemala,
Honduras, Nicaragua, and El Salvador. Although the policy has been
expanded to other Latin American countries, the implementation solely
on the Southern Border highlights the discriminatory intent. If the
administration truly believes this policy is legal and justified, there
is no explanation that I can think of, other than intent to keep out a
certain class of migrants and discriminate based on national origin,
race, and financial status, to not also implement MPP on northern land
borders, sea borders, and all ports of entry including airports.
MPP violates our country's obligation under the 1967 Protocol. By
ratifying the Protocol, the United States, among other things, agreed
to not discriminate against refugees on the basis of their race,
religion, or nationality, and to not penalize refugees for their
undocumented entry into the country. However, the MPP both
discriminates and penalizes. Implementation of the MPP is clearly
designed to further this administration's racist agenda of keeping
Hispanic and Latino populations from entering the United States. This
is evident in the arbitrary nature of the order, in that it only
applies to the Southern Border. It is also clear from the half-hazard
[sic] implementation that appears to target populations from specific
Central American countries even though a much broader range of
international migrants cross the Southern Border. It is also
demonstrated by the exempting from MPP interviews certain populations
from those countries who have a high likelihood of receiving a positive
finding.
4. The policy also violates our international obligations under the
1967 Protocol by punishing asylum seekers for requesting protection.
MPP is punitive in that it is clearly calculated to limit the future
ability of a would-be asylum seeker from ever obtaining immigration
status or protection in the United States by significantly increasing
the odds they will receive a removal order and thereby be barred from
entering the United States or applying for immigration benefits,
including possibly, future asylum claims.
Failure of an individual to appear for their Immigration Court
dates carries serious consequences, including receiving a removal order
without being present in court. It is important to note that one of the
frequently-cited justifications for making a negative MPP determination
and claiming a migrant would be safe in Mexico is their supposed
ability to internally relocate in Mexico. In other words, supervisors
are enforcing negative MPP decisions because of lack of certainty that
persecutors who previously harmed an applicant elsewhere in Mexico
would find the applicant at the U.S.-Mexico border, or that a feared
persecutor at the border would find the applicant if they moved
elsewhere in Mexico. Although this logic strictly complies with non-
refoulment, it runs directly counter to the premise that we expect
people to wait in Mexico for the pendency of their section 240 removal
proceedings, which require their presence in the United States for
various hearings over a period of months or years.
[T]he implementation is calculated to prevent individuals from
receiving any type of protection or immigration benefits in the future.
There is no clearly-established policy and system for notifying
applicants of changes to hearing dates and times, or for the applicants
to provide change of addresses to the courts and Border Patrol. Without
a highly functional notice system, the administration has ensured that
a high number of applicants will miss their court dates. In such cases,
immigration judges are required to order the applicant removed in
absentia, thereby barring them from entering the United States for 5 to
10 years, subjecting them to reinstated orders of removal if the
applicant again seeks protection in the United States, and thereby
preventing them from applying from asylum.
5. MPP, as it is currently implemented, also violates the law, in
that it severely limits the protected grounds for which an applicant
could possibly receive a positive decision and not be returned to
Mexico. Critically, along with race, religion, nationality, and
political opinion, asylum seekers can receive asylum or protection
under non-refoulment for their ``membership in a particular social
group,'' commonly referred to as ``PSGs.'' Determining whether someone
is a member in a particular social group requires a tri-part analysis.
The sad irony of MPP is that by returning large numbers of vulnerable
migrants to Mexico, we have created exactly the type of group
contemplated by the refugee convention and INA.
For example, during the course of 1 of my 5 MPP interviews, it
became readily apparent that the applicant had experienced significant
harm in Mexico on account of his membership in one such potential PSG.
I discussed the situation in the middle of the interview with a
supervisor and was explicitly told that I was not allowed to make a
positive determination on that protected ground and that I should not
continue that line of inquiry.
By requiring asylum officers to disregard a critical part of the
law, the administration is forcing asylum officers to break the law and
violate their oath to office. As I wrote in my memo:
Participation in the MPP violates our oath to office. As Asylum
Officers we have sworn to ``well and faithfully discharge the duties of
the office.'' SF 61. Those duties include ``proper administration of
our immigration laws.'' See, USCIS/RAIO Mission and Core Values,
available on the ECN. Assuming that we did have statutory authority and
proper jurisdictions for these interviews, policy is preventing us from
complying with our sworn duty to properly administer the laws.
Individuals subject to MPP are almost certainly members of a particular
social group consisting of ``non-Mexican migrants traveling through
Mexico'' or some alternatively phrased variant. Such a group shares an
immutable past experience, is particular, and the evidence suggests is
socially distinct in Mexico. However, CIS policy regarding which social
groups are considered cognizable and the constraint on individual
analysis, prohibits officers from analyzing whether such a group is
cognizable and if an MPP applicant would be persecuted for their
membership in such a group. These arbitrarily imposed restrictions on
factual and legal analysis prevent us as officers from faithfully
discharging the duties of our office.
6. The manner in which MPP was created and implemented, and in
particular the circumvention of the Administrative Procedures Act,
assures we are violating our obligations of non-refoulment and are
sending individuals back where it is likely they will be harmed. Beyond
all of the illegalities already discussed, I believe a significant part
of the reason so many individual are being forced into Mexico stems
from an inappropriate and misapplied legal standard in the interviews,
combined with an interview structure that makes it impossible for an
asylum seeker to meet their burden. Although someone could supposedly
pass an MPP interview if they showed it was ``more likely than not''
they would be persecuted or tortured in Mexico, in reality the standard
being applied to the interviews is much higher. I objected:
MPP complies with our obligations of non-refoulment in name only.
Assuming that statue does delegate DHS authority to implement MPP-type
interviews, we have no implementing regulations. The current system is
ad hoc and not been subject to notice and comment making or any type of
review. The regulatory process is critical to ensure that proceedings
such as the MPP does not commit the numerous legal violations already
noted. The current process place on the applicants the highest burden
of proof available in civil proceedings in the lowest quality hearing
available. This is a legal standard heretofore reserved for an
immigration judge in a full hearing. However, here we are conducting
the interviews telephonically, often with poor telephone connections,
while at the same time denying applicants any time to rest, gather
evidence, witnesses, or other relevant information and, most egregious
of all denying them access to legal representation. The description of
the MPP read at the beginning of the interview does not even explain
what a ``protected ground'' is or what the applicant is required to
prove. The ad hoc implementation, lack of regulations, and high legal
standard all but ensure that an applicant is unable to meet his or her
burden. Participating in such a clearly biased system further violates
our oath of office.
7. Finally, I objected on moral grounds because, as I mentioned
previously, the policy makes Asylum Officers complicit the future harm
of asylum seekers:
[E]ven if all the above were remedied, the process is still morally
objectionable and contrary to the RAIO mission of protection. The
Asylum Office would still be complicit in returning individuals to an
unsafe and unreasonable situation. One where we would likely find
internal relocation unavailable were it the applicant's home country,
and in fact regularly do make that determination for Mexican
applicants. RAIO research recently reported the high levels of violence
and crime specifically targeting migrant communities in Mexico,
returned from the MPP. See RAIO Research Unit, News Summary Bulletin
July 2019. Additionally, it is unreasonable to make individuals, often
without financial resources and caring for small children, to wait an
indefinite period of time without employment. The unreasonableness of
such a requirement is why the law mandates the application clock and
issuance of employment documents if the U.S. Government cannot process
a request for protection in a timely manner. Assurances by the Mexican
government that persons returned to Mexico under the MPP would receive
work permits and protection were a key reason that the injunction was
stayed. Innovation Law Lab v. McAleenan, No. 19-15716, 924, F. 3d 503
(9th Cir. 2019). However, the Mexican government has not fulfilled its
promise of providing work permits and protection. See RAIO Research
Unit, News Summary Bulletin July 2019.
While other immigration processes may result in returning someone to a
place where they face true risk of harm because they do not qualify for
protection or an immigration benefit, such instances occur only after
the applicant has received substantially more due process. Even then,
those individuals are returned to their countries of nationality, not
an arbitrary third country to which they likely have no ties. The MPP
is substantively and morally distinct from other aspects of our work.
conclusion
I do not claim to speak for all Asylum Officers, but I have good
reason to believe my concerns are widespread and shared. I have not
encountered a single officer that believes we should performing MPP
interviews. Every officer I spoke to regarding MPP before I left USCIS,
around a dozen officers, disagrees with the policy and the
implementation. After sending my memo to the office, I was contacted or
spoke with another dozen or so officers who thanked me and supported my
decision. Since my name and objections were published in the National
media last week, I have been contacted by even more officers.\9\ In
total I would estimate I have been in contact with 2 dozen officers or
more, from the San Francisco, Los Angeles, New York, and D.C. offices.
One individual thanked me for being willing to be the public face for
the officers. I have yet to receive a single negative comment from an
Officer.
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\9\ Molly O'Toole, Asylum Officers Rebel Against Trump Policies
They Say are Immoral and Illegal, Los Angeles Times, Nov. 15, 2019,
available at https://www.latimes.com/politics/story/2019-11-15/asylum-
officers-revolt-against-trump-policies-they-say-are-immoral-illegal;
The Out Crowd, This American Life, Nov. 15, 2019, available at https://
www.thisamericanlife.org/688/the-out-crowd.
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To conclude, MPP is an illegal program, violating multiple aspects
of our laws, endangering the safety of thousands, and placing asylum
officers in an impossible position. As an attorney and an officer of
the Federal Government, I had a duty to uphold the law. I urge Congress
to protect other Government employees who also have the obligation to
oppose this policy but do not feel safe coming forward publicly as I
have. Asylum is an echo of the core values of our Nation: Freedom of
religion, political opinion, and identity. Our ability and willingness
to protect those individuals fleeing persecution and torture
establishes us as a leader in human rights and a beacon of hope. I urge
you to take steps to end the egregious legal violations that are
eviscerating the asylum program, resulted in a humanitarian crises of
our own making, and greatly eroded our integrity as a Nation.
______
Statement of Irena Sullivan, Senior Immigration Policy Counsel, Tahirih
Justice Center
November 19, 2019
The Tahirih Justice Center (``Tahirih'') respectfully submits this
statement to the U.S. House Committee on Homeland Security,
Subcommittee on Border Security, Facilitation, and Operations, as the
subcommittee examines the human rights and legal implications of the
United States (U.S.) Department of Homeland Security's (DHS) ``Remain
in Mexico'' (RIM) policy implemented in January 2019.
Tahirih is a national, nonpartisan advocacy and direct services
organization that has assisted over 25,000 immigrant survivors of
gender-based violence (GBV) over the past 22 years. The women and girls
we serve endure horrific abuses such as rape, domestic violence, forced
marriage, and human trafficking and are in dire need of humanitarian
relief.
Tahirih remains deeply concerned about the administration's
implementation of the RIM policy earlier this year. It is well-
documented that the policy, which forces asylum seekers to remain in
Mexico while awaiting court dates in the United States, has proven
extremely dangerous for the most vulnerable asylum seekers. While
waiting in Mexico, survivors of GBV have faced horrors on par with the
persecution they fled at home, while perpetrators of violent crime are
emboldened and allowed to inflict grave human suffering with impunity.
Last December, just prior to implementation of the RIM policy,
Tahirih attorneys met with survivors of GBV in Mexico who were staying
at a temporary shelter. They had tried to request asylum at the U.S.
port of entry as permitted by law, but were turned away. One woman we
spoke with described how she fled Central America after suffering years
of abuse by her husband. She endured regular beatings and rapes, with
her husband becoming increasingly violent toward both her and their
children. She fled to Mexico and applied for humanitarian relief there.
However, several weeks later, her husband was able to locate her from
thousands of miles away. He had an associate violently attack her and
their children near the shelter in Mexico.
While en route to seek safety in the United States, women and girls
also face alarming threats of rape, kidnapping, and other crime in
Mexico unrelated to prior persecution. Below are only a few examples of
our clients' stories:
A 20-year-old Honduran woman seeking asylum in the United
States was raped in Mexico after fleeing her country with her 2
young sons, ages 2 and 4;
A 19-year-old Salvadoran asylum seeker fleeing with her
younger brother was kidnapped in Mexico by the Gulf Cartel, and
was sexually assaulted by one of her kidnappers;
A 16-year-old Honduran girl was raped and sex trafficked in
Mexico and is seeking relief in the United States as a survivor
of human trafficking; and
A 17-year-old Honduran girl, a 16-year-old Guatemalan girl,
and a 15-year-old Guatemalan girl, who all qualified for
asylum, were raped in Mexico after fleeing their home
countries.
In addition to basic safety, survivors are also in dire need of
trauma-informed mental health services and meaningful access to
counsel. Yet, survivors are largely unable to access counsel in Mexico
to assist them in navigating the complexities of asylum law. Without
counsel, the majority will lose their cases even if they qualify under
the law. Waiting months in Mexico without access to mental health
services prolongs the healing process for both survivors and their
children, delays their ability to make informed decisions about their
legal options and next steps, and, as described above, risks
compounding existing trauma by exposing them to additional threats of
violence.
Thank you for the opportunity to submit this statement, and we are
grateful to the subcommittee for bringing to light the dire
consequences that the RIM policy is having on traumatized asylum
seekers through this hearing.
______
Statement of Texas Impact/Texas Interfaith Center for Public Policy
three keys to stabilizing the southern border
Stop the criminalization of migration.
End zero tolerance, ``Migrant Protection Program'' (Remain
in Mexico), and port ``metering.''
Fund the civil immigration system to process migrants
timely.
Invest in upgrades to ports of entry along the border that
would include additional scanning technology to better
facilitate cross-border movement of people and goods.
Adequately staff ports of entry to maintain efficient
cross-border travel and require robust training for CBP
officers to properly and efficiently process migrants at
ports of entry.
Stop the separation of families and the detention of
children.
Reject proposals that would permit indefinite detention of
families or children or that would limit Flores protections
for any child.
Fund local government agencies and NGO's to provide
humanitarian assistance, case management, and community-
based alternatives to detention.
Make all aspects of the asylum process transparent.
Permit international and domestic human and civil rights
observers, including attorneys, and child welfare and
medical professionals, to inspect and monitor CBP detention
facilities and interact with detainees to assess the needs
of families and children and recommend the best ways to
process them.
Make publicly available regular DHS reports on the number
of processing centers in operation, the population size in
each center, the average length of stay in each center, and
the average length of stay in all Border Patrol short-term
detention facilities.
faith-based border policy recommendations
The Interfaith Immigration Coalition (IIC) is a partnership of
faith-based organizations committed to enacting fair and humane
immigration reform that reflects our mandate to welcome the stranger
and treat all human beings with dignity and respect. Coalition members
work together to advocate for just and equitable immigration policies,
educate faith communities, and serve immigrant populations around the
country.
Representing more than 50 faith-based organizations, we believe our
moral standing as a society can be measured by our actions toward those
most vulnerable among us. A deterrence and enforcement-only strategy at
our border has had chaotic and devastating impacts on arriving asylum
seekers and is, in many ways, fueling the very migration it seeks to
reduce. We call on the administration and Congress to enact humane,
efficient, consistent, and just policies that will uphold the dignity
of all God's people.
Address the root causes of forced migration and displacement
Increase support for effective programs that strengthen
justice systems, spur economic opportunities, and safeguard
communities from climate displacement so that people do not
need to flee in search of safety or survival.
Use principled and strong diplomacy to urge governments to
address rampant corruption and spur improvements in protecting
human rights and strengthening rule of law, including by
enforcing human rights and anti-corruption conditions on aid as
well as levying sanctions on corrupt officials.
Ensure U.S. foreign assistance does not go toward supporting
human rights violators, increasing militarization, or otherwise
exacerbating existing push factors which drive people to leave
their homes
Improve and expand access to refugee protections in the United States
Restore the original Central American Minors (CAM) program
that offered a chance for children to find safety in the United
States and reunify with a parent--without undermining access to
asylum in the United States or at a U.S. border.
Increase refugee resettlement to provide Central American
refugees with much-needed alternatives to making the long
journey north to claim asylum at the U.S./Mexico border.
Strengthen Mexico's refugee system by providing assistance
to international and civil society organizations such as UNHCR
in order to strengthen Mexico's capacity to process asylum
claims.
Invest in critical U.S. programs that aid unaccompanied
children by fully funding the Department of Health and Human
Services (HHS) Office of Refugee Resettlement (ORR) to ensure
that the agency can provide the full continuum of care and
community-based services, as well as to reunify children with
their family members, from whom they were separated, and
sponsors, for all populations in its care.
Uphold access to asylum in a manner that offers a genuine humanitarian
response and upholds U.S. and international law
Expeditiously process all asylum seekers at--and between--
ports of entry.
End the Remain in Mexico (``Migration Protection
Protocols'') and ``metering'' policies that push people to
cross between ports of entry and put the lives of asylum
seekers at risk as they wait in what are often dangerous
situations in Mexico.
Reverse Department of Justice rulings that deny protection
to those who have fled domestic violence and gang violence and
that deny bond hearings to asylum seekers who entered between
ports of entry.
Resist proposals to remove protections for vulnerable
children provided by the Trafficking Victims Protection
Reauthorization Act (TVPRA) and the Flores Settlement
Agreement. Allowing unaccompanied children to be deported more
quickly risks returning them to the very violence and
exploitation they fled. Undermining the Flores agreement would
wrongfully expand family and child detention in jail-like
conditions.
Reject policies that charge a fee or restrict work
authorization for people seeking safety from violence and
persecution.
Ensure only asylum officers conduct credible fear interviews
(CFIs) and that they receive the proper training and support to
uphold access to asylum protections. This includes the
necessary translation services available for CFIs. Prioritize
real humanitarian support for asylum seekers, immigrants, and
other vulnerable populations.
Invest in legal representation initiatives to ensure all
asylum seekers have the resources they need to meaningfully
seek protection at the earliest stages of the process.
Institute universal Legal Orientation Programs (LOPs)--
including for families released from DHS or CBP custody--to
explain appearance obligations, the legal system, and how to
secure counsel. Such programs have been proven to increase
court appearance rates.
Improve partnerships with and increase resources for non-
governmental organizations (NGO's) and other service providers
to ensure a robust humanitarian response. This includes
providing DHS with grant-making authority to financially
support service providers during periods of influx and ensuring
NGO's can provide the necessary humanitarian support and
services to vulnerable migrants without fear of or retaliation
and harassment from CBP or ICE officials.
Ensure humane, just, and orderly treatment of all asylum seekers,
migrants, and people seeking safety
Ensure access to lawyers and humanitarian services and
ensure all people are released with correct documents. Allow
legal and humanitarian service providers access to all CBP
facilities in order to administer Legal Orientation Programs/
Know Your Rights presentations, to properly represent clients,
and to coordinate travel and family reunification for asylum
seekers. Ensure all people are processed and released with
correct and full documentation and with full knowledge of the
next steps of their claim.
Establish more orderly and humane release procedures between
DHS and local NGO's by providing ample, regular notice before
releases and ensuring safe release conditions.
Ensure short-term processing facilities adhere to strict
standards in order to maintain the safety and well-being of
those in DHS custody. Facilities must have licensed child
welfare professionals, medical professionals, and interpreters
and must be fully equipped with potable water, appropriate
food, separate and enclosed bathrooms/showers, and individual
beds/cots. Short-term processing centers must not exceed
custody time limits and must not function as additional child/
family detention centers. All processing centers must provide
timely medical screenings conducted by licensed medical care
providers.
Fully restore the Family Case Management Program (FCMP)
which supports court appearance and compliance. This casework
should be operated by non-profit entities.
End family detention immediately and redirect resources into
humane alternatives for asylum seekers and other vulnerable
populations. Children should never be incarcerated or
needlessly separated from a parent.
End criminal prosecution of asylum seekers (such as unlawful
entry, 8 U.S.C. Sec. 1325, and reentry, 8 U.S.C. Sec. 1326)
which have skyrocketed over the past decade and made us less
safe by diverting resources from real public safety threats and
overwhelming Federal courts.
Rescind the April 2018 Memorandum of Agreement (MOA) between
DHS and the Department of Health and Human Services (HHS) which
requires HHS to share the immigration status of potential
sponsors for UACs with DHS, leading the population of UACs in
shelters to increase significantly as sponsors fear coming
forward.
Make publicly available regular DHS reports on the number of
processing centers in operation, the population size in each
center, the average length of stay in each center, and the
average length of stay in all Border Patrol short-term
detention facilities.
Invest in upgrades to ports of entry along the border that
would include additional scanning technology to better
facilitate cross-border movement of people and goods.
Adequately staff ports of entry to maintain efficient cross-
border travel and require robust training for CBP officers to
properly and efficiently process migrants at ports of entry.
sources
Latin America Working Group, ``Recommendations for U.S. Engagement to
Address Migration from and Displacement within the Northern Triangle of
Central America,'' https://www.lawg.org/centamrecs19
The New Yorker, ``How Climate Change Is Fuelling the U.S. Border
Crisis,'' https://www.newyorker.com/news/dispatch/how-climate-change-
is-fuelling-the-us-border-crisis
U.S. Citizenship and Immigration Services, ``In-Country Refugee/Parole
Processing for Minors in Honduras, El Salvador and Guatemala (Central
American Minors--CAM),'' https://www.uscis.gov/CAM American Immigration
Council, ``Legal Orientation Program Overview,'' https://
www.americanimmigrationcouncil.org/research/legal-orientation-program-
overview
far better ways to use federal tax dollars, in line with our values and
human dignity
The Interfaith Immigration Coalition (IIC) is a partnership of faith-
based organizations committed to enacting fair and humane immigration
reform that reflects our mandate to welcome the stranger and treat all
human beings with dignity and respect. Coalition members work together
to advocate for just and equitable immigration policies, educate faith
communities, and serve immigrant populations around the country.
prioritize investments that respect human dignity
Congress should fund the following programs, services, and
structures to insert humanity, compassion, and dignity into U.S.
immigration and border policy.
Enact responsible border policy and involve local
communities in decisions that impact their lives.--Proposals
impacting border communities must include true partnerships
with border communities in decision making; recognize the
dignity and humanity of people who are migrating; honor the
principle of non-discrimination; strive for social cohesion and
inclusion; and uphold the inalienable human rights of life,
liberty, and the pursuit of happiness. Responsible policies
train border authorities in global best practices, including
limiting the use of force, and training that prioritizes saving
people's lives and avoiding tactics that endanger them. It is
equally critical that the United States wholly welcomes asylum
seekers and immigrants; provides access to interpretation in a
language they understand, along with information about their
rights, freedoms, protections, cultural liaisons, and legal
assistance. SOURCES: Southern Border Communities Coalition
(SBCC); Faith-Based Border Policy Recommendations
Invest in critical U.S. programs that aid unaccompanied
children.--The Department of Health and Human Services (HHS)
Office of Refugee Resettlement (ORR) bears responsibility for
the care and custody of immigrant children who arrive in the
United States unaccompanied (or are forcibly separated from
their parents) pending their immigration court proceedings,
many of whom are later reunified with a loved one. ORR is in
the best position to ensure that unaccompanied children under
the protection of the U.S. Government receive the full
continuum of care they deserve, including: Proper shelter and
care in the best interest of the child while in ORR custody;
community-based services once released; and access to legal
assistance. ORR must be fully funded to ensure the agency can
provide the full continuum of care, as well as to reunify
children with their family members, from whom they were
separated, and sponsors. SOURCES: U.S. Conference of Catholic
Bishops (USCCB); Catholic Church Teachings; National Immigrant
Justice Center; Kids In Need of Defense (KIND); Women's Refugee
Commission (WRC); Interfaith Immigration Coalition
Treat immigrants detained at the border and in the interior
humanely.--Passing the Dignity for Detained Immigrants Act
(H.R. 2415, S. 697) would increase oversight over ICE
immigration detention and ensure access to health screenings,
medical care, nutrition, water, and sanitation services. It is
equally important that the same oversight and access to
services is exerted over CBP facilities and processing.
SOURCES: Friends Committee on National Legislation
Fund community-based alternatives to immigrant detention,
which have proved to be ``safer than a detention-based
approach, vastly less expensive, and far more effective at
ensuring compliance with government-imposed requirements,''
according to the National Immigrant Justice Center. Passing the
Dignity for Detained Immigrants Act (H.R. 2415, S. 697) would
also expand access to these programs. SOURCES: National
Immigrant Justice Center; U.S. Conference of Catholic Bishops;
Friends Committee on National Legislation (FCNL)
Support communities providing care to newcomers and asylum
seekers.--Communities from San Diego to Brownsville are caring
for and providing the welcome our administration refuses to
extend.--Congress should be investing resources to allow
community-based, non-governmental organizations to work
alongside Federal agencies to care for and provide support to
families and individuals navigating legal proceedings. SOURCES:
Columban Fathers Missionary Society of St. Columban;
Annunciation House; United Church of Christ
Provide access to refugee protections for Central
Americans.--The U.S. Government should restore the original
Central American Minors (CAM) program that offered a chance for
children to find safety in the United States and reunify with a
parent--without undermining access to asylum in the United
States or at a U.S. border. In addition, the administration
should expand refugee resettlement programs to provide Central
American refugees with much-needed alternatives to making the
long journey north to claim asylum at the U.S./Mexico border.
SOURCES: Church World Service; International Refugee Assistance
Project (IRAP)
Fund ORR to assist all vulnerable populations the agency is
mandated to serve.--For multiple years, ORR has reprogrammed
funding for refugee resettlement services to meet the needs of
unaccompanied children. Congress must ensure adequate funding
for all populations within ORR's mandate, including refugees,
trafficking survivors, asylees, torture survivors,
unaccompanied children, Special Immigration Visa (SIV) holders,
and others. SOURCES: Church World Service; Offices of Senator
Murphy, Sen. Van Hollen, and Rep. DeLauro
Restore U.S. moral leadership in refugee protection.--The
world is experiencing the worst crisis of displaced people in
history, with over 68 million people pushed from their homes,
and 25 million refugees world-wide. Yet, the Trump
administration has reduced the number of refugees resettled in
the United States by 75 percent, and set this year's admissions
goal at 30,000--the lowest level in U.S. history. Congress
should pass the GRACE Act (S. 1088/H.R. 2146), preventing the
President from setting a refugee admissions goal at a level
below 95,000--the historic average. Congress should also use
the power of the purse to hold the administration to meeting
its very low admissions goal of 30,000 and restore refugee
admissions to 95,000 in fiscal year 2020. SOURCES: Church World
Service; Refugee Council USA; Oxfam America
Provide international aid for community-building programs
that ``counter violence, strengthen justice systems, spur
economic opportunities, and safeguard communities from climate
displacement, so that people do not need to flee in search of
safety or survival,'' in the words of Human Rights First.
SOURCES: Latin America Working Group; Alianza Americas; Human
Rights First; Evangelical Lutheran Church in America (ELCA)
stop funding tools that disregard migrants' humanity
Federal spending on border and immigration enforcement has
skyrocketed since the 1990's. Border militarization, mass incarceration
of immigrants, and an abhorent lack of oversight have led to
unspeakable human tragedies, including the recent deaths of children
and transgender migrants in U.S. custody and the misuse of solitary
confinement.
U.S. taxpayers should know what immigration restrictions their
hard-earned paychecks are funding, how the administration is
mismanaging Federal tax dollars, and the consequences for human lives.
This summer's funding debate begins with the following policies and
structures already in place:
20k border agents.--In 1993, the United States had just over
4,000 U.S. Border Patrol agents. In fiscal year 2018, there
were nearly 20,000. The vast majority (16,000) operate along
the Southern Border. (Source: American Immigration Council)
8k deportation agents.--In fiscal year 2003, there were just
over 2,700 deportation agents working for ICE. In fiscal year
2018, that number had grown to 8,000. (Source: American
Immigration Council)
6,500 ``special'' agents for criminalizing workers.--ICE
also has 6,500 agents within their Homeland Security
Investigations (HSI) unit. HSI has been involved in massive
workplace immigration raids and other initiatives aimed at
criminalizing work. (Sources: American Immigration Council,
Immigrant Legal Resource Center)
ICE spending +103 percent.--Spending on ICE functions,
including immigrant detention and deportation, has increased
from $3.3 to $6.7 billion since the creation of DHS. (Source:
American Immigration Council)
CBP spending +149 percent.--Likewise, funding for Customs
and Border Protection, which includes the Border Patrol, also
skyrocketed between fiscal year 2003 and fiscal year 2009, from
$5.9 billion to $14.7 billion. (Source: American Immigration
Council)
the mass incarceration of immigrants deserves separate attention
Immigrant detention +600 percent, largest level in
history.--The Government is currently incarcerating 152,000
immigrants in more than 200 jails across the United States.
This is the largest number of immigrants detained for civil
immigration cases in history, up from 7,000 in fiscal year
2004. (Sources: Buzzfeed News; The Marshall Project)
This is 10k more humans than the number Congress
authorized.--Congress appropriated money to detain 40,520
immigrants, which is already too high, but this was not enough
for ICE. In fiscal year 2008, ICE took money from other
programs to expand immigration detention far beyond what
Congress authorized. (Source: National Immigrant Justice
Center)
This is actually human warehousing.--It is called ``civil
detention,'' but in reality, it is jail, with all the same
restrictions on liberty and conditions of confinement. ICE
consistently opposes release of any and all immigrants eligible
for bond. The agency even fights the release of asylum seekers
who have won their cases. The goal is to break people's spirits
so that they give up and accept deportation. Congress should
not participate in this tactic of abuse by funding it. (Source:
ACLU)
The deaths in CBP and ICE custody and recent DHS Inspector
General reports point to the need for more oversight of
detention and the robust use of alternatives to
incarceration.--The administration must be held accountable for
abuse and poor conditions in immigration jails, both public and
private. Functioning alternatives to detention should be the
default policy rather than incarceration. (Sources: Detention
Watch Network, Freedom For Immigrants)
Mass incarceration of immigrants is big business for private
prison industry.--Over 60 percent of detained immigrants are
held in private prisons, and U.S. taxpayers pay 52 percent more
to detain immigrants in these jails as compared to Government-
run facilities. (Source: Freedom For Immigrants). A day after
the 2016 Presidential election, stock prices rose 21 percent
for GEO Group and 43 percent for CoreCivic. In fiscal year
2017, the two companies raked in a combined $4 billion in
revenue. (Source: Migration Policy Institute).
humanitarian upgrades to manage and assist our nation's enforcement
(humane) act of 2019
Founded in 1982, the National Immigration Forum advocates for the value
of immigrants and immigration to our Nation. In service to this
mission, the Forum promotes responsible Federal immigration policies,
addressing today's economic and National security needs while honoring
the ideals of our Founding Fathers, who created America as a land of
opportunity. For 30 years, the Forum has worked to advance sound
Federal immigration solutions through its policy expertise,
communications outreach and coalition building work, which forges
powerful alliances of diverse constituencies across the country to
build consensus on the important role of immigrants in America.
Sen. John Cornyn (R-Texas) and Rep. Henry Cuellar (D-Texas)
introduced the Humanitarian Upgrades to Manage and Assist our Nation's
Enforcement (HUMANE) Act of 2019 (S. 1303/H.R. 2522) on May 2, 2019.\1\
This bicameral bill attempts to resolve the current humanitarian
challenge at the Southern Border.
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\1\ Sen. Cornyn and Rep. Cuellar previously introduced the HUMANE
Act (S. 2611/H.R. 5114) on July 5, 2014, though a significant portion
of the bill's provisions have changed.
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The bill would permit longer-term family detention, expanding the
amount of time that migrant children can remain in immigration
facilities with their parents, and permit expedited departures of
unaccompanied migrant children coming to the United States from
countries other than Mexico and Canada, reversing existing limitations
on that practice. The bill would also make it harder for individuals to
apply for asylum, among other provisions. This document provides a
summary of the bill's key provisions.
Migrant Children
Changes Treatment of Migrant Children in Family Units.--The bill
would permit the indefinite detention of migrant children and their
parents by requiring the Department of Homeland Security (DHS) to hold
family units during the pendency of their immigration proceedings,
which can take years. (Section 2).
Establishes that the Flores Settlement Agreement, which
governs the conditions of children held in immigration
detention, does not apply to migrant children who are
apprehended with their parents along the Southern Border.
(Section 2).
Requires DHS to verify the relationship between migrant
children and their parents or other family members by
photographing and collecting biometric information from
apprehended migrant children, and provides for the use of DNA
analysis. (Sections 2 and 11).
Provides that migrant children apprehended with family
members who are not their parents are to be treated as
unaccompanied migrant children. (Section 2).
Directs DHS and the Department of Justice (DOJ) to
prioritize immigration court proceedings for migrant families
in detention ``[t]o the maximum extent practicable.'' (Section
2).
Changes Protections for Unaccompanied Migrant Children.--The bill
would amend the William Wilberforce Trafficking Victims Protection
Reauthorization Act (TVPRA) to require that all unaccompanied migrant
children (UACs) be subject to the contiguous country (i.e., Mexico and
Canada) screening. As a result, migrant children may withdraw their
requests for admission to the United States without understanding the
full consequences and with no immigration court hearing. Currently,
migrant children from non-contiguous countries cannot be returned on an
expedited basis and must be placed into the custody of the Office of
Refugee Resettlement (ORR) during the pendency of proceedings (Section
3)
Provides that U.S. Customs and Border Protection (CBP) would
screen all UACs within 48 hours of being apprehended to
determine whether they are a trafficking victim, have fear of
return and/or are otherwise admissible to the United States.
UACs that do not fit into those protected categories and are
able to make an independent decision to withdraw their
admission to the United States would be able to choose to
return home without an immigration court hearing. (Section 3).
Requires mandatory expedited removal for UACs who have
committed a broad range of offenses, including entering the
United States without documentation more than once when he or
she knew the entry was unlawful. (Section 3).
Directs DHS and DOJ to ensure immigration court proceedings
for UACs are ``prioritized and expeditiously adjudicated.''
(Section 3).
Limits Release of UACs to Sponsors.--The bill would limit the
ability to place an UAC who is in removal proceedings with a non-
Governmental sponsor unless the sponsor is the biological or adoptive
parent of the child and is legally present in the United States (i.e.,
not undocumented), among other requirements. The bill also establishes
new requirements to conduct home studies to prevent UACs from being
placed in the custody of dangerous individuals. (Section 6).
Obligates HHS to provide DHS and DOJ with ``any relevant
information'' about a UAC and his or her sponsor for law
enforcement purposes, upon request, including immigration
enforcement. (Section 4).
Requires HHS to notify the Governor of a State before
placing an UAC into the care of a facility or sponsor in such
State and to provide a monthly report to the Governor on the
number of UACs in the State by locality and age. (Section 8).
Asylum Seekers
Requires Arriving Asylum Seekers to Apply at Ports of Entry.--The
bill would amend existing asylum law by requiring arriving migrants to
apply for asylum at a designated port of entry. The bill makes
individuals who arrived in the United States anywhere other than at a
designated port of entry ineligible for asylum under most
circumstances. (Section 10).
Establishes Regional Processing Centers.--The bill directs DHS to
establish at least 4 regional processing centers to process migrant
families in ``high-traffic sectors'' of the Border Patrol along the
Southern Border. (Section 13).
Establishes that DHS would ``expeditiously'' transport all
migrant families apprehended by CBP in such sectors to the
nearest regional processing center for criminal history checks,
DNA analysis, medical screenings, and asylum interviews and
credible fear determinations, among other activities. (Section
13).
Requires DOJ to assign at least 2 immigration judges to each
regional processing center to adjudicate immigration
proceedings of migrant families held in the centers. (Section
13).
Border Security and Immigration Enforcement
Authorizes Additional CBP and ICE Personnel.--The bill would
authorize CBP to hire more than 600 Office of Field Operations (OFO)
officers for the ports of entry each year until the total number of OFO
officers equals the staffing levels recommended each year in CBP's
Workload Staffing Model. The bill also authorizes Immigration and
Customs Enforcement (ICE) to hire no fewer than 1,000 new Enforcement
and Removal Operations (ERO) officers, 665 ERO support personnel, and
128 attorneys in the Office of the Principal Legal Advisor to assist
with removal, asylum, and custody determination proceedings. (Section
14).
Improves Port of Entry Infrastructure.--The bill would provide DHS
with authority to construct new ports of entry along the Southern and
Northern Borders. The bill also requires DHS to modernize the top 10
high-priority ports of entry on the Southern Border by September 30,
2021. (Section 15).
Imposes New Bars on Visa Overstays.--The bill would make all
individuals with nonimmigrant visas, such as tourist visas, ineligible
for all immigration benefits or relief if they overstay their visa for
a period of more than 30 days, with few exceptions, and to sign an
acknowledgement confirming that they have been notified of such
provisions. The bill directs DHS to detain individuals who subsequently
overstay their visa and deport them through expedited removal within 90
days from the date they were detained. These provisions do not apply
retroactively. (Section 17).
Other Provisions
Engagement with Mexico and Guatemala.--Within 270 days after the
bill's enactment, DHS would be required to submit a strategy to
Congress detailing how the United States should engage with the
governments of Mexico and Guatemala regarding cooperation to secure the
Mexico-Guatemala border. (Section 16).
Reports to Congress.--The bill requires the Federal Government to
submit a set of reports to Congress on UACs no later than September 30,
2020. One of the reports, to be submitted by HHS, must include a
detailed summary of ORR facilities and contractors being used to house
UACs, the number of UACs released to a sponsor with undocumented
status, and an assessment of the extent to which HHS is making efforts
to educate UACs about their legal rights and provide them access to pro
bono counsel, along with other information. (Section 9).
Miss Rice. The Members of this subcommittee may have
additional questions for the witnesses, and we ask that you
respond expeditiously in writing to those questions.
I believe that the Ranking Member would like to say
something.
Mr. Higgins. Thank you, Madam Chair. I would like to ask
for unanimous consent to submit the DoJ statistics that Mr.
Homan and Congresswoman Lesko referenced. I would like them
submitted for the record, please.
Then I have a brief follow-up question.
Miss Rice. Yes, they will both be admitted into the record,
as will a 2-page document that I am holding, which--it is a
TRAC immigration document that contains the most recent
information regarding appearances by people appearing at the
border.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Miss Rice. Yes, Mr. Ranking Member.
Mr. Higgins. Thank you, Madam Chairwoman.
Ms. Vela, you have been asked many questions today. You
have sat there with poise and dignity and answered to the best
of your ability. So I commend you and the panelists that joined
you today. My brother of the Thin Blue Line, thank you for
being here today.
We all struggle as a Nation to deal with the challenge of
what we face at the Southern Border. It is good that our
Chairwoman is courageous and called this hearing, and that
testimony was offered based upon the various opinions. It is
our job to consider these opinions with respect for each other,
with a common goal of finding some righteous solution.
I would like to point out that it has been stated several
times that the State Department has indicated the too dangerous
to travel classification for some of the areas in northern
Mexico. Obviously, these are some of the areas where these
illegal immigrants are being sent for--while they await
processing through the--their asylum claim.
Let me just state that it is indicated that the alternative
is to send them into the interior of the United States. But Mr.
Homan has clarified, you know, what happens there. You know, a
lot of those folks just disappear. They are going to stay here.
Let me share with America and with all of us that the
following cities have something in common: St. Louis, Detroit,
Memphis, Milwaukee, Baltimore, Oakland, Kansas City.
All of these cities have something in common. The citizens
therein are more likely to be subject to violent crime than the
citizens of Mexico City. Crime stats from Mexico City are about
the same as Washington, DC, so it is intellectually unsound to
indicate to the American people that, just generally speaking,
we are placing these immigrants in some greater harm's way by
having them await their processing in Mexico.
Miss Rice. Well----
Mr. Higgins. Madam Chair, I just thank you so much for
holding this hearing. I think we have received excellent
testimony today, and I yield back.
Miss Rice. Mr. Ranking Member, thank you so much for that,
and for your comments.
What I can do is assure everyone here that we are going to
continue to have hearings about what is going on at the border,
because we have to honor the people who are sitting here, all 5
of you who are bearing witness to what is happening there. We
have to hold true to our democratic values as to who we are as
a country. That is what these hearings are about, transparency
and accountability.
I want to thank all of the witnesses so very much for their
testimony here. It was a very long hearing. I think you can
tell by the amount of Members who showed up today how important
this issue is. So I want to thank you all for participating.
Without objection, the subcommittee record shall be kept
open for 10 days.
Hearing no further business, the subcommittee stands
adjourned.
[Whereupon, at 12:20 p.m., the subcommittee was adjourned.]