Pressuring Mexico to Accept Asylum Seekers Who Sought Protection in the U.S.
The Trump Administration has also sought to institute a “a safe third country” policy under which those arriving at U.S. borders would be denied asylum if they came through Mexico and had the opportunity to seek protection from Mexican authorities. This change would almost certainly violate U.S. law which allows for the return of asylum seekers to a designated “safe third country” only if the individual would not face persecution there on the basis of protected grounds and if the country can ensure access to full and fair asylum procedures.
In Mexico, asylum seekers and other migrants face the threat of kidnapping, sexual assault, and other harm and are consistently targeted on the basis of race, nationality, sexual orientation, and other protected grounds. Data on Mexico’s asylum system indicates it is deeply flawed. A recent survey by Amnesty International found that Mexican immigration officials failed to notify 75 percent of detained asylum seekers and other migrants of their right to apply for asylum, a violation of Mexican law. From January through April 2016 Mexico detained 35,000 minors from Guatemala, El Salvador and Honduras. Of those individuals, the UN High Commissioner for Refugees estimated that “as many as half had plausible claims to international protection because of threats to their lives and safety.” However, only 138 managed to apply for asylum. Of those, just 77 obtained legal protection—only .2 percent of 35,000. A safe third country agreement with Mexico would not only bar asylum seekers from the United States but also leave them with no reliable protection from the dangers they escaped.
CBP Screening Practices Undermine Access to Asylum
CBP officials often disregard required procedures and deny people the ability to apply for asylum at the border. CBP officials are required to ask people apprehended at the border whether they fear persecution or harm if they are returned to their home country. However, the U.S. Commission on International Religious Freedom (USCIRF) reported that officials frequently failed to ask migrants these questions. A complaint filed by AILA and several other organizations documented similar cases in which CBP officials repeatedly failed to ask individuals whether they feared returning to their home country, automatically deporting them instead.
Additionally, CBP is required by U.S. law to document if someone expresses a fear of return. At that point, CBP must refrain from asking any further questions about the asylum seeker’s stated fears and notify U.S. Citizenship and Immigration Services (USCIS) so that an asylum officer can conduct a credible fear interview. Instead of complying with these procedures, CBP officials who are not trained to make an asylum eligibility determination have asked detailed questions about why an individual left his or her country or what the individual knows about the asylum process. Compounding these problems, CBP sometimes conducts its interviews in group settings. This lack of privacy discourages asylum seekers, whose persecution may have entailed deeply personal trauma such as abuse and rape, from disclosing their fear of persecution and return.
Even when someone is able to state that they are afraid to return to their home country, CBP officials regularly ignore the expression of fear or compel individuals to sign statements that say they have no fear of return. In one representative case, a young man was beaten severely on repeated occasions in his home country, despite going to the police for protection. When he arrived in the U.S., he told the CBP agent several times that he was afraid to return. The officer at first ignored his statements, and then accused the man of lying and told him that he had no right to fight for his case. The young man was deported without ever seeing an asylum officer. An attorney who represented six different Mexican families at the Ped-West Port of Entry stated that CBP pressured each of them to withdraw their claims for protection. Other lawyers shared accounts of CBP officials in the Rio Grande Valley pressuring noncitizens to sign voluntary removal documents even as they articulated fears of return.
The grave processing errors committed by CBP at the border will have even more devastating consequences if the administration promulgates new regulations that will expand the use of expedited removal. Expedited removal enables an immigration officer to rapidly remove a person without the opportunity to appear before an immigration judge. Currently, expedited removal can only be used on noncitizens encountered within 100 miles of the border who cannot show they have been in the United States for 14 days. DHS asserts that it has the authority to apply expedited removal to people encountered anywhere in the United States who cannot establish show presence in the United States for two years. Such a broad expansion of expedited removal would result in many more deportations conducted in violation of due process.
Criminal Prosecution of Asylum Seekers
Under the Trump Administration, the Department of Justice (DOJ) has instituted measures subjecting asylum seekers to criminal prosecution for illegal entry and reentry—a policy that jeopardizes their opportunity to seek humanitarian relief. In April, Attorney General Sessions announced a “zero tolerance” policy requiring U.S. attorneys to prosecute “to the extent practicable” all noncitizens—including asylum seekers—referred by DHS for illegal entry. Since the new administration took office, Human Rights First has found that the U.S. Attorneys Offices at the four border-located district courts did not have a policy exempting asylum seekers from criminal prosecution for illegal entry or re-entry.
Illegal entry and reentry prosecutions often occur through Operation Streamline, a joint DHS-DOJ initiative under which DHS refers noncitizens apprehended at the border to DOJ for prosecution. True to its name, Operation Streamline accelerates prosecutions and individuals may be convicted and sentenced within hours after being charged, sometimes in mass hearings of up to 80 individuals.49 Operation Streamline strips individuals of basic due process protections by limiting their opportunity to consult with counsel and often results in guilty pleas in which the individuals do not understand the consequences. In some cases, individuals have been asked to sign plea agreements waiving further pursuit of asylum claims.
Article of the Refugee Convention expressly forbids penalization of certain asylum seekers for “illegal entry or stay.” Prosecutions of asylum seekers likely violates this principle. In fact, the DHS Inspector General has concluded that the application of Operation Streamline to asylum seekers “may violate U.S. treaty obligations.”
Under the administration’s new policy, asylum seekers are confronted with an impossible choice. The Attorney General has threatened to prosecute those who enter between ports, instructing them to apply for relief at ports of entry. But those who arrive at ports of entry are being be turned away or denied proper screening by CBP. Whether they enter at a port of entry or cross illegally between ports they face enormous obstacles to obtaining protection.
Source: AILA Doc. No. 18060102.