Remain in Mexico Policy is Undermining Asylum and Endangering Asylum Seekers

Yael Schacher, Refugees International
Testimony for the Inter-American Commission Meeting with Civil Society 
Laredo, August 22, 2019

Below is the testimony provided by Senior U.S. Advocate Yael Schacher to the Inter-American Commission on Human Rights, which held a meeting with civil society groups in Laredo, Texas on Thursday August 22nd that was focused on limits on asylum and the treatment of asylum seekers.

My name is Yael Schacher and I am the senior U.S. advocate at Refugees International, an independent advocacy organization that focuses on displacement, humanitarian, and human rights issues that need urgent attention and action by government officials, policymakers, and international organizations.

I have focused most of my attention during the last six months on the Remain in Mexico policy (MPP)—which is a policy that attempts to end territorial asylum in the U.S. By training, I am an historian of immigration and immigration law and can attest that this is the most significant limit on asylum since 1980, when the United States passed a law—in line with the UN Refugee Convention—that created the asylum system allowing migrants to apply for refugee status at the border or from within the United States. Even in the 1990s, when the United States began interdicting asylum seekers on the high seas, it was a given that, if a person reached United States territory, they had a right to seek asylum. Since the advent of MPP, this is no longer true. 

I’ve spent several days each at MPP hearings in San Diego and El Paso immigration courts on different visits to each city between March and August, so I have watched the policy change over time and vary by location.  Each time I went to the El Paso court, for instance, there was a new procedure in place for handling the huge dockets of people under MPP—up to the point that, on Tuesday August 20,  I waited from 12:30-5:00 pm along with a large group of completely unrepresented Central American families for their first hearings, scheduled for 1 pm. They had reported at the port of entry in Juarez before 9 am but would not see a judge at the El Paso immigration court until the evening. While they waited, they were given forms to fill out to provide addresses where notices could be sent to them about future hearings but few had addresses in Mexico to give, since they are homeless. Each time I have been back to El Paso, access to the court by counsel and human rights monitors has been ever more limited. Attorneys now have to wait downstairs and have minimal access to their clients; observers are frequently told that they cannot watch the court hearings. Though the hearings are open to the public, court officials use the argument that “capacity”—the huge number of asylum seekers brought in for hearings—makes it impossible to accommodate observers. Few people can now observe the El Paso MPP court proceedings, which are the only time asylum seekers returned to Juarez are gathered and transported into the U.S. and given a chance to speak up. Closing off the court in this way limits scrutiny of the MPP program and help for those subject to it.  

I have interviewed migrants returned to Mexico at shelters in Tijuana, Ciudad Juarez, and Matamoros and have spoken to people here in Laredo about the implementation of the policy. I will make general points and draw upon cases as I go.

At the most general level: the Remain in Mexico policy has caused unnecessary suffering and harm to those asylum seekers waiting in Mexico and has completely overwhelmed the U.S. immigration courts—while still not giving those subject to it a chance to explain why they left their home countries and the fear they have of returning there. Though many of the asylum seekers have been in the Remain in Mexico policy for months, and have had several court hearings and interviews with asylum officers, they remain without attorneys and have yet to get to the merits of their cases. In other words, they have not yet been able to exercise their right to seek asylum.  

Each time I have been to court and asylum seekers have said they have tried and failed to find attorneys, the judge has urged them to try harder. The judge is powerless to actually remove asylum seekers from the MPP program and allow them to pursue asylum from the United States—the judge can only ask that the Department of Homeland Security (DHS) refer asylum seekers to interviews with asylum officers about their fear of return to Mexico. In an unusual case, in San Diego immigration court on July 23, 2019 when one woman said she didn’t want more time to find an attorney and was afraid to stay in Mexico and asked the judge to send her home to Honduras, the government opposed her request to withdraw her application for admission and the judge said she would have to wait in Mexico for a few more weeks until her next hearing over whether she could be removed or her case terminated.  

More commonly, frustrated asylum seekers are opting to try to enter the U.S. illegally, sometimes with tragic consequences, as in a case of a 20 year old Guatemalan woman who drowned on July 29, 2019 when she tried to enter El Paso through the irrigation canal after being returned to Juarez in MPP. Others in MPP, unable to find lawyers and wanting to ask for asylum in the U.S., opt to represent themselves in court—which means their likelihood of gaining asylum is very small. On July 26, 2019 I talked to a Salvadoran woman at the Pan de Vida shelter in Juarez. She had just returned from court, where she had told the judge she wanted to represent herself and asked for an asylum application. She had no attorney or anyone to help her fill it out (in English). Though she and her children had traveled with her husband, he crossed the day before her and her children. He was in detention on the American side, while she was returned to Mexico under MPP. Her asylum case is tied to his persecution (beatings and threats in El Salvador)—so it will be all the more difficult to prove with them separated. 

The Department of Homeland Security has argued in federal court that it is up to Custom and Border Protection (CBP) officers to determine in each individual case who is subject to the policy. But these CBP determinations do not seem to be based on consistent standards. Indeed, they are at least in part dependent on Mexico’s ability and willingness to take people back. Juarez is set up to process back into Mexico hundreds of people per day and Annunciation House in El Paso is now receiving a tenth of the number of asylum seekers released to them in the spring. The director of Catholic Charites here in Laredo told me yesterday that he is receiving many fewer people now than in spring and early summer, but that CBP has recently (on the weekend) called him to ask “can you take 200 people because INM (Mexico’s immigration agency) is saying they can’t take them and we can’t force INM to do so.” Two men I interviewed in Matamoros this week, one from Nicaragua and one from Honduras, told of being kidnapped (with the help of the state police) in Reynosa before they sought asylum in the United States, but CBP still returned them to Mexico under MPP. A Honduran woman named Lilian told of being trafficked into prostitution in Reynosa. Her body was covered in bites from being left by her traffickers, unconscious, in the desert, where CBP found her—but still returned her to Mexico under MPP, though she told them what had happened to her. None of these people in Matamoros had been referred by CBP to asylum officers for fear screenings about what happened to them in Mexico. 

If asylum seekers are referred to them at all, the fear screenings by asylum officers about return to Mexico are inadequate and completely untransparent (with no attorney access). They also seem arbitrary. In one case I followed closely in El Paso/Juarez, a woman and her son were released from the program after their third fear screening though absolutely no new facts had developed 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 husband and father in Honduras—spent several unnecessary months scared in Juarez and separated from family in the U.S.   

There are many asylum seekers subject to MPP who are not supposed to be according to the program’s own guidelines: extremely vulnerable people (a Q'anjob'al speaker who hadn’t spoken her language in months and begged an judge in El Paso to help her; a mentally incompetent man who was separated from the cousin he traveled with and repeatedly sent back to Juarez under MPP. The judge who conducted a special hearing that found him incompetent said he was nonetheless powerless to remove him from MPP; an asylum officer finally did and he is in ICE custody, but DHS can always put him back in MPP). A woman I spoke with in San Diego whose son has eye cancer—so that her family should not be subject to MPP—was so preoccupied with his treatment she couldn’t think about her legal case. 

For everyone in MPP, it is hard to address legal issues in their cases when what is uppermost is finding shelter, avoiding danger, and protecting their kids. About 3,000 people are being returned to Mexico each week, shelters are overwhelmed everywhere, and there has been no international humanitarian response for the almost 40,000 asylum seekers so far returned under MPP. In Juarez, the Mexican government has recently opened a shelter that is trying to accommodate some of those returned under MPP.  But in Matamoros the situation is truly grave: those returned under MPP are sleeping in an open air encampment by the international bridge. They are getting no official aid and are dependent on volunteers to provide them with food. There is no medical care and no schooling for the dozens of children there. There is no security or protection for them. 

In court I have seen people who have clearly been subject to grave harm waiting in Mexico: several have told the judge they have been kidnapped; one woman came to court in El Paso on July 25th with her leg in a cast and said it was broken when she was kidnapped after being returned to Juarez.

And people with meritorious asylum claims have been returned to Mexico, even coercively, saying that CBP verbally insulted, yelled, and forced them back. One Honduran woman that I interviewed in Tijuana on July 22nd had been put on a plane somewhere near here in June, before MPP started in this area. She thought that she was being flown by DHS to family in Chicago when in fact it was to San Diego, and then she was told that she was to wait in Mexico. When she objected, CBP forced her arm to sign the form, an arm she said still hurt weeks later. Many mentioned callous comments by CBP officers that blamed asylum seekers for their victimization and suffering. When a Salvadoran woman’s child got sick in the CBP holding cell (a cold, crowded facility referred to colloquially as a hielera), an officer told her that it was her own fault since she brought the child to the United States. After Lilian, the Honduran woman in Matamoros, explained what her traffickers had done to her, a CBP officer replied that “you women like to play with the devil but don’t know how to do it.”  

Finally, beyond these grave human rights abuses, the MPP policy is having spillover effects for the entire Mexican immigration and U.S. asylum systems, negatively impacting asylum seekers who are not part of the program. 

In the United States, asylum officers and judges are being reassigned to MPP cases (leaving other asylum cases languishing). Those in MPP who don’t appear for their court hearings become part of the statistics about “disappearing” and bogus asylum seekers—statistics that contribute to arguments about the necessity of implementing further enforcement policies to limit asylum and to deter and detain asylum seekers. IOM (International Organization for Migration) is helping people “voluntarily” return to their home countries from Juarez, but IOM is not communicating with DHS about these cases or providing returnees with the ability to legally close their MPP court cases. This means that they will have a deportation order against them—and will be ineligible for asylum or legal admission for many years, separating them from family members in the U.S.  IOM is stationed at shelters in Juarez and, given the desperate situation many people in MPP find themselves in, and, never having had a chance to ask for asylum or to explain to American officials the persecution they faced in their home countries, the “voluntary” nature of their decisions to return is certainly questionable and the returns potentially risk refoulement.

Many asylum seekers subject to MPP with clearly meritorious claims are not able to find attorneys to pursue their cases and so the U.S. asylum system is starved of cases that could advance protection norms. One woman I interviewed in Tijuana has a very compelling asylum claim based on domestic violence, which is an area of asylum jurisprudence in need of good cases to advance norms. Her case will likely never get to the courts and help set precedents. Another family had a good case based on a gang targeting their 19 year-old daughter, but, in the MPP program, each family member’s case has been separated from the others. The MPP policy is an indiscriminate enforcement policy—returning people to Mexico who have strong asylum cases that will be lost.  

Mexico is also struggling to handle returnees. In Juarez, employers are still not hiring those in MPP who have been given CURPs (Clave Única de Registro de Población, or identity numbers) and FMNs (Forma Migratoria Múltiple, a document signifying temporary legal presence). Mexican hospitals are not treating those in MPP who have been given Seguro Popular (public health insurance) and children returned under MPP are not in school  (making it difficult for parents to work even if they could find jobs). Maybe asylum seekers could get better services if they applied for humanitarian visas in Mexico? There is a new program, sponsored by UNHCR (the UN’s refugee agency), to refer those in MPP to COMAR (Mexico’s refugee agency) to apply for asylum. COMAR is so overstretched, though, can this be an answer?