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Two Reports – by Human Rights First and by a DHS “Red Team” – Show the Policy of Sending Asylum Seekers to Mexico is Fundamentally Flawed

 

Today, Human Rights First (HRF) issued a report entitled, “Human Rights Fiasco:  The Trump Administration’s Dangerous Asylum Returns Continue,” that compiles “overwhelming evidence that this illegal policy [Trump administration’s ‘Remain in Mexico’ policy] is a human rights catastrophe.” Yet, almost a year into this problematic program, the Trump administration “continue[s] to implement, defend, and expand it.” 

At the same time, BuzzFeed released an internal Department of Homeland Security  (DHS) “Red Team” report that identifies 16 recommendations to improve the implementation of the Remain in Mexico program. Advocates and attorneys who knew of the existence of the “Red Team” report have been demanding its release, but BuzzFeed apparently received a leaked copy from someone inside DHS.  While the DHS report provides little to no detail on the problems they observed and its tone is far from alarmist, the recommendations are so basic. It suggests the problems they saw were foreseeable, and just as Human Rights First observed and reported – catastrophic. 

Human Rights First Findings

The Human Rights First report highlights the multitude and magnitude of human rights violations as a result of the Trump’s administration’s Remain in Mexico policy, also known as MPP. HRF reported there to be at least 632 cases of kidnapping, rape, torture, assault, and other violent attacks against asylum seekers who have been forced to remain in Mexico under MPP. According to that same report, at least 138 of the kidnappings or attempted kidnappings include children in the MPP program. In a desperate attempt to lead children out of danger, some parents have started to send their children across various ports of entry alone. One horrid kidnapping and rape case involves a 9-year-old disabled girl and her mother who were kidnapped and raped repeatedly, while another case involves the rape of a mother in front of her three-year-old son in Matamoros. The report states that, “despite claims by DHS officials that returned asylum seekers in MPP are safe in migrant shelters in Mexico, they are targeted for kidnapping, rape, robbery, and assault in these very shelters.” These include some of the most vulnerable asylum populations such as those with medical issues, pregnant women, indigenous people, and LGBTQ persons, all of which encounter an added layer of obstacles once they return to overcrowded migrant shelters that do not address their specific needs. 

The MPP credible fear screening process that allows asylum seekers to apply for asylum in the U.S. has become “increasingly cursory and adversarial,” as the Trump Administration has allowed border agents to assess credible fear which has long been the role of non-adversarial USCIS officers. An investigation by U.S. Senator Jeff Merkley’s office has concluded that it is “virtually impossible” for asylum seekers to pass MPP fear screenings. The report notes that this new screening process has aggressively questioned victims of violence, including children, and has been known to “last only a few minutes and consist principally of yes-or-no questions.” In the case of the 9-year-old disabled girl and her mother who were repeatedly raped, as well as the woman who was raped in front of her three-year-old son, all cases failed the MPP credible fear screening process. Even in the event where asylum seekers have been granted asylum, they have been returned under fake hearing notices, as HRF observed. 

Internal DHS “Red Team” Report

The internal DHS “Red Team” report includes 16 recommendations that look like an attempt to address the problems identified by numerous reports, including the ones by HRF, but with little to no detail on the problem the recommendations are attempting to address. The topics are strikingly basic, but illustrate the extent to which these policies are poorly thought out in terms of the impact on the human beings who confront them: 

Lack of Information in Appropriate Languages:  To address the major issues that flow from the clear lack of information in languages asylum seekers speak, as noted by HRF, the DHS report recommends “[s]tandard[izing] the information posted/provided…regarding individual migrant rights” and that “forms, including informational notices such as the ‘Notice to Appear’ [be]…in multiple languages (English and Spanish at a minimum) to increase migrants’ ability to comprehend their individual rights.” In addition, the DHS report recommends “specific protocols during the ‘fear screening process’ to determine the best-spoken language to communicate with indigenous-language speakers, to ensure the migrant understands the questions asked and make[s] informed decisions.”  

Failures in Credible Fear Process:  To address serious issues asylum seekers face in intimidating encounters and interviews with U.S. government officials, the DHS report recommends “guidance…on what constitutes ‘non-adversarial’ interviews…[such as] who can be present at the interview, who may assist with substantiating a claim of fear, the appropriate use of restraints during interviews, guidelines for participation of counsel or a representative, and how to conduct the interview ‘separate and apart’ from a person not related to the claim.”  Moreover, contrary to the law in 8 C.F.R. §208.2, the DHS report notes, “At some locations, CBP uses a pre-screening process that preempts or prevents a role for USCIS…Interviewees also indicated that some CBP officials pressure USCIS to arrive at negative outcomes.”

To address the fact that asylum seekers are not even aware of when or how to report fear of return to Mexico, and even when it is reported as noted by HRF, the DHS report recommends “modify[ing] current processes to include fear of ‘persecution or torture in Mexico’ as an additional piece of personal information that will be noted…”

Due Process Violations and Lack of Access to Counsel:  To address clear due process and access to counsel issues raised in the HRF report, the DHS report recommends “engag[ing] with external stakeholders to provide options for multiple communication forums to facilitate early interaction between MPP attorneys and their clients…” Furthermore, the DHS report clearly recognizes and recommends fixes to the multiple challenges and dangers asylum seekers face simply trying to obtain information and traveling to and from required hearings in the U.S. 

Failure to Assist Mexico in Keeping Asylum Seekers Safe:  To address the fact that Mexico has been unable to keep asylum seekers safe, the DHS report clearly recommends that DHS “support safe/confidential housing for vulnerable populations remaining in Mexico,” that the “Department of State (DOS) coordinate with Mexico to obtain written assurance they will comply with non-refoulement obligations,” and that DHS “[p]eriodically monitor and evaluate whether Mexico is meeting its basic obligations under international law for migrants….” 

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:

We should be reading the Human Rights First report as a thorough review of the humanitarian catastrophe created by the Trump administration’s Remain in Mexico policy and the DHS ‘Red Team’ report as the meager attempt to fix it one year and over 50,000 people too late. Don’t be fooled by the disinfected tone of the internal DHS report. That’s government-speak for the catastrophic conditions documented by Human Rights First. If DHS’s ‘Red Team’ did not observe asylum seekers being handcuffed in credible fear interviews that, by law, are supposed to be non-adversarial, and as Human Rights First observed and reported on, why else would the ‘Red Team’ recommend ‘develop[ing] and provid[ing] guidance [on]…the appropriate use of restraints during interviews’”? If the DHS ‘Red Team’ did not observe that shelters in Mexico for asylum seekers are woefully unsafe and that Mexico has not met its basic obligations to protect migrants, as Human Rights First observed, why else would they recommend that the U.S. ‘support safe/confidential housing for vulnerable populations’? 

More importantly, the DHS and HRF reports clearly show that Trump’s Remain in Mexico policy is fundamentally flawed, not only because it was implemented for almost one year without basic standards, but because even with the minimal DHS recommendations, thousands of vulnerable people lawfully seeking asylum under U.S. law would still be forced to wait indefinitely in dangerous cities away from the protection they lawfully seek and need.

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: 

Recently, I traveled to the southern border to bear witness to the horror of the Trump administration’s asylum policies.  Witnessing Trump’s inhumane policy at the border transforms it from headlines into the reality of children, women, and men who are desperate and fleeing for their lives being subjected to danger, cruelty, and the Kafkaesque asylum application process under MPP. The Human Rights First report is a critical and comprehensive accounting of the humanitarian catastrophe created by the Trump administration; a catastrophe that includes, among other serious abuses, the shocking use of restraints during non-adversarial asylum interviews.  While the DHS ‘Red Team’ has identified some fixes, their recommendations are so basic that they should have been minimum standards developed and implemented in the first place. Even then, MPP is so fundamentally flawed that these recommendations would barely be a bandaid to the multitude of problems I observed.