Statement for the Record on a Legislative Fix to the U.S. Border Crisis

Statement Entered into the Record

Senate Judiciary Committee

“The Secure and Protect Act: A Legislative Fix to the Crisis at the Southwest Border”

June 11, 2019

Thank for you for the opportunity to submit this written statement for this important hearing today.

Refugees International 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, Syria, and Mozambique, among many others. Refugees International does not accept government or United Nations funding, ensuring the independence and credibility of our work.

On three missions to the southwest border since February, Refugees International has observed with concern the inhumane handling of asylum seekers from Central America, particularly through the “Remain in Mexico” policy, which makes them wait in Mexico for their immigration court hearings, and prolonged detention under poor conditions in Border Patrol custody. 

In violation of its own policy guidelines and obligations under American and international law, the Remain in Mexico policy has targeted vulnerable populations and returned women and children to danger, including kidnapping and assault. The policy has not only separated families, allowing some members to enter the country and returning others across the border, but also has forced men, women, and children with credible asylum claims to wait for months in Mexico without identity documents, provision for their basic needs, and no access to counsel. The policy has raised numerous due process concerns and proven inefficient, burdening both immigration judges and ports of entry (in the transport and detention of migrants subject to the policy). Expanding the program to the entire U.S. southern border is unconscionable and in no way a solution to the humanitarian crisis there. 

Family unity—a fundamental principle of American immigration law and a recognized right in the United Nations Universal Declaration of Human Rights—is undermined by “The Secure and Protect Act.”  The Act “promotes family unity” through prolonged detention of children and families in unlicensed facilities and un-monitored conditions. The Act also prohibits unaccompanied children from uniting with a parent in the United States by applying for Special Immigrant Juvenile Status.

Ongoing family separation is a result of specific deterrence policies such as “zero tolerance,” which prosecutes asylum seekers for illegal entry, and “Remain in Mexico.” The solution to family separation is not increased detention, which is harmful for children for any length of time. Families seeking asylum should be released under case management programs, which have proven effective and ensured court appearances.

“The Secure and Protect Act” will result in the turning away and return to danger of many families with meritorious asylum claims as well as unaccompanied children at risk of trafficking. This is because it imposes too high a legal standard on applicants just after arrival, and before they have had time to gather evidence for their claims or find an attorney. The Act would also make Department of Homeland Security (DHS) officers’ decisions as to whether applicants met this standard unreviewable by an immigration judge. 

Moreover, in banning applications for asylum from many categories of claimants who may be fleeing persecution, and especially from those who have entered between ports of entry, the Act contravenes the U.S. Refugee Act of 1980 and the UN Refugee Convention. Finally, it would also deny asylum seekers the right to apply for any other forms of relief they might be entitled to under immigration law. 

In a recent report, Refugees International documented how Central American victims of human trafficking, who are eligible for visas that would protect them, are disproportionately being denied this protection by U.S. Citizenship and Immigration Services within DHS. The denials are a product of many factors, especially overly narrow and harsh interpretations of the standards required to meet the definition of a victim of severe forms of trafficking. They are also the result of limits on the independence of immigration judges to stop removal proceedings of those with pending visa applications. 

An alternative bill introduced by Senator Feinstein, S. 1733, grants immigration judges this much needed independence to manage their cases, thus protecting victims of trafficking. The bill also proposes that unaccompanied children be provided with counsel to ensure they have a meaningful opportunity to present their cases in immigration court. It is impossible for young children to do this on their own so that, without guaranteed counsel, protections in the law are a false and empty.  

Refugees International welcomes the suggestion in both Senate bills that additional immigration judges be hired. Hiring more immigration judges would facilitate the fair processing of asylum claims if the judges are granted time and independence to assess the merits of claims. (This requires the restoration of safeguards against politicized court hiring, the lifting of case completion quotas, and the ending of certification of cases by the Attorney General.) In the longer term, uniformity could be brought to asylum adjudication by making the immigration courts Article I courts, as recommended by the American Bar Association, the Government Accountability Office, and both current and retired immigration judges.

Despite significant increases in funding to DHS to address the humanitarian needs of asylum seekers, the system is failing. Children seeking asylum continue to die in U.S. Customs and Border Protection (CBP) custody and held in what a Homeland Security Advisory Council report called “grossly inadequate” CBP processing facilities—which are inaccessible to NGOs and attorneys—for longer stretches of time. Reports have emerged that CBP is taking away medications without effectively replacing them. 

One potential solution would be for Congress to fund the network of non-profit and faith-based organizations currently providing support services to asylum seekers released from government custody. DHS should expand community-based case management programs and form partnerships with this network, as well as with existing refugee resettlement agencies, to support asylum seekers in different communities across the country while their claims are adjudicated. These partnerships should be funded by grants through an emergency supplemental funding bill; while the non-profit network and local communities have made great strides, government support would increase their capacity to serve and house larger numbers of asylum-seeking families. Community organizations can successfully provide asylum seekers with case management, including accompaniment to U.S. Immigration and Customs Enforcement check-ins and immigration court, and help them find health care, housing, employment, education, and legal counsel. These programs have proven effective in ensuring compliance with court appearances at a minute fraction of the cost of family detention.

Finally, it is impossible to address the situation at the border without confronting the root causes driving migration. Central American children and families coming to the border are fleeing countries where they face direct and extreme threats from gangs and criminal organizations, a lack of protection from their own governments, and economies that have collapsed for the poorest. Congress must support regional and, especially, Mexico’s efforts to strengthen and expand its asylum system and refugee hosting capacity as it is not currently a safe third country for families and children seeking international protection. Congress should also sustain and strengthen efforts to provide assistance in Central America focused on economic development (sensitive to the creation of sustainable livelihoods and the problems of climate change), governance (focused on ending corruption and abuses by security forces and fostering the rule of law), and human rights (especially curbing violence against women, activists, and indigenous people). 

The president of Refugees International, Eric Schwartz, has said that current policies to return asylum seekers to Mexico is wicked and immoral, because they deliberately, with knowledge of the consequences, impose grave risks upon vulnerable children, women, and men in violation of the most fundamental principles of decency. Credible asylum claimants are being returned to Mexico with no safeguards for their protection and wellbeing whatsoever. This is unconscionable and the United States must do better.