Asylum-Seekers Stranded in Mexico Face Homelessness, Kidnapping, and Sexual Violence

Last December, then-Secretary of Homeland Security Kirstjen Nielsen announced the Trump Administration’s intention to drastically change the procedures for seeking asylum at the southern U.S. border. Under what was dubbed the “Migrant Protection Protocols” (MPP), asylum-seekers fleeing violence and persecution in their home countries would be forced to wait in Mexico while their cases were processed. At the time, Nielsen said the policy would “uphold the rule of law and strengthen our humanitarian commitments.” Fraudulent asylum seekers would be deterred from “gam[ing] the system,” while “vulnerable populations will get the protection they need while they await a determination in Mexico.”

Advocates at the time predicted that the MPP—often referred to simply as “Remain in Mexico”—would lead to widespread chaos and suffering at the border. Nine months later, it is abundantly evident that those fears were well-founded. Tens of thousands of asylum-seekers have been stranded in dangerous cities along the U.S.-Mexico border, waiting for court dates that are as much as a year away.

With few exceptions, these ‘returnees’ are unable to obtain legal representation, and are struggling to meet their day-to-day needs. The Mexican government has thus far failed to ensure that they are provided with shelter, guaranteed work authorization, medical care, or education for their children. With shelters unable to accommodate their swelling numbers, many are forced to sleep on the streets, often with young children in tow. Lacking a secure place to live, human rights organizations have documented how they have become easy targets for extortion, kidnapping, and sexual abuse.

Far from providing “protection” for migrants and asylum seekers, MPP has exposed returnees to severe risk of violence and persecution. Not surprisingly, many are choosing to abandon bona fide asylum claims. Instead, they are returning home to face certain danger rather than remaining in limbo in cities where they are unable to support themselves financially and are at risk of being preyed on by criminals.

Today, ACLU attorneys will appear in front of a panel of judges at the 9th Circuit Court of Appeals to argue that the MPP is illegal and should be immediately halted. In advance of the hearing, here is an explanation of the policy and what it has meant for people seeking asylum at the southern U.S. border.

Stopping asylum-seekers from coming to the U.S.—particularly Central Americans who arrive at the southern border—has been a priority of the Trump Administration since it took office. Although our immigration laws provide a clear right for individuals fleeing persecution to seek asylum in the United States, the Administration has implemented one policy after another designed to make it impossible for them to do so. “Remain in Mexico” is a key part of this effort.

The MPP was first rolled out at the San Ysidro border checkpoint in the city of Tijuana, Mexico on January 28, 2019. Two weeks later, on behalf of 11 asylum-seekers and six legal-services organizations, the ACLU filed suit in the Northern District of California, challenging the policy as illegal. Although a judge granted a preliminary injunction that halted the policy on a nationwide basis, the government appealed that decision to the 9th Circuit, and a motions panel granted the government’s request that the injunction be stayed pending that appeal. This has allowethe policy to stay in place up to now.

At the time of the court’s decision, only a few thousand people had been returned to Mexico under the MPP. But in the wake of the decision, the government expanded the policy dramatically. It now includes virtually the entire U.S.-Mexico border, and the number of people subjected to it has skyrocketed.As of mid-September acting U.S. Customs and Border Patrol Commissioner Mark Morgan said a staggering 45,000 asylum-seekers had been returned to Mexico. They are now essentially stranded there, sitting ducks for cartels and other criminal gangs, while they wait for their asylum cases to be decided. A Los Angeles Times report indicates on some days as many as 1,200 people are being placed into the program and returned to Mexico.

Under both domestic and international law the United States is prohibited from returning asylum seekers to persecution or torture. Prior to the MPP, individuals who arrived at the border seeking asylum were entitled to remain in the United States to pursue their asylum claims as long as they established a “credible fear” of persecution – a low standard that required only a showing that they had a “significant possibility” of establishing eligibility for asylum. This determination was made by specially trained asylum officers, who conducted what are called “credible fear interviews.” Their ruling was then subject to review by an immigration judge. People who established a credible fear were subsequently placed in regular removal proceedings to pursue their asylum claims before an immigration judge.

Pending those proceedings—which could easily take a year or more—they were detained or released into the U.S., either on bond or subject to other conditions of release. While Trump Administration officials say that asylum-seekers often skip court hearings after being released, the data tells a different story. For example, a pilot program called the Family Case Management Program (FCMP) that was set up and funded by ICE in 2016 to assist asylum-seekers with support and guidance on their immigration case achieved a 99% attendance rate for court hearings and check-ins. Despite showing strong results, the FCMP was terminated in June 2017.

And according to Department of Justice statistics, between 2013 and 2017, 92 percent of people who’d filed asylum claims attended their court hearings, even without participating in the FCMP.

The MPP upended that process by forcing applicants to wait in Mexico while their claims move through the system rather than allowing them to remain in the United States. It also allows the government to send them there without once asking whether they could be in danger in Mexico.

Under the normal asylum process, officers have to proactively ask a migrant whether they fear persecution in their home country. If the person says they do, they’re provided with a “credible fear” interview. But people subjected to MPP do not receive the same level of protection. Under the new rules, the person must actively speak up on their own and affirmatively express to the examining CBP officer that they fear return to Mexico. But because most applicants do not even know being sent to Mexico is a possibility, they have no reason to make such a statement.

And even when applicants do raise such fear, the MPP process is designed to make it excessively difficult for them to remain in the U.S. Instead of the “credible fear” standard that previously applied, they now have to convince an asylum officer that they are “more likely than not” to suffer persecution or torture in Mexico. Troublingly, The Intercept recently reported that CBP officers are often the ones running these interviews, rather than specifically trained asylum officers. The MPP process also lacks the safeguards that the “credible fear” process provides, including the right to consult with an attorney, the right to present evidence, and review of an asylum officer’s determination by an immigration judge.

This process has demonstrably been failing to protect asylum seekers placed into the MPP from being exposed to harm in Mexico. In the months since it’s been in effect, numerous people were returned to Mexico after one of these interviews, even after they presented officers with evidence of kidnapping, extortion, rape and other harms they experienced there.

In fact, asylum officers have anonymously voiced their frustration over the new process, which they say is making them complicit in endangering asylum-seekers. In late June, the union that represents those asylum officers filed a brief in support of the ACLU’s lawsuit challenging the MPP, saying that the policy “abandons our tradition of providing a safe haven to the persecuted.” And Ashley Tabaddor, president of the National Association of Immigration Judges, told a reporter that the “tent court” system set up to hold hearings for asylum-seekers under the new rules are akin to something that might exist in “China or Russia.”

According to data collected by Syracuse University’s Transactional Records Clearinghouse Program (TRAC), as of June only one percent of people placed into the MPP were subsequently exempted from it through these fear interviews.

A recent report by Human Rights First provides examples of people who were sent to Mexico despite having suffered serious harm there. Two Cuban asylum-seekers who were kidnapped and raped in Ciudad Juarez were placed into the program, for example, along with a man who feared cartel assassins had followed him to the border after he testified against one of their bosses.

Most people seeking asylum at the southern border originate from “Northern Triangle” countries—Guatemala, Honduras, and El Salvador. These countries are among the most unstable and dangerous on Earth, with high rates of crime, gang activity, political repression, and sexual violence. The journey north for these asylum-seekers can cost thousands of dollars, and by the time they arrive at the U.S. border they are often sick, exhausted, and traumatized. Increasingly, Cubans and Venezuelans are being placed into the program, along with African asylum-seekers fleeing active conflicts in countries like Cameroon. Their journeys often include dangerous treks through remote Central American jungles.

Under the MPP, asylum-seekers are given a notice with the first date that they will appear before an immigration judge. In August, workers in an El Paso shelter said that some asylum seekers returned to Mexico in May and June were given initial court dates as far away as July 2020. As more people have been placed in the program, the court backlog has swelled, and most are guaranteed a lengthy wait before they will have a chance to see a judge.

Some of the cities where asylum seekers are being sent to are notoriously dangerous. The Mexican state of Tamaulipas, for example, has been given a ‘Level 4’ travel advisory by the U.S. State Department—putting it in the same category as Afghanistan, Yemen, and Syria. Tamaulipas is home to Nuevo Laredo and Matamoros, both border cities that are hosting a large number of asylum-seekers subjected to the MPP. Nuevo Laredo, for example—one of the most dangerous cities in Mexico—is now receiving up to 125 people per day under the program.

Reports of what many asylum-seekers face once sent to these cities are grim. Human rights groups and journalists have documented numerous cases of kidnapping, sexual assault, and other violent crimes committed against them. This is almost certainly just the tip of the iceberg, since most don’t report such incidents because Mexican police are almost certain to be unresponsive if not overtly hostile to them.

Migrant shelters in these cities have been overwhelmed by the tens of thousands of desperate people looking for accommodation and support. Many are turned away, forced to scrape together remittances and meager savings to rent hotel rooms or sparse apartments. In some cases they simply wind up on the streets.

Criminal elements in these cities have also learned that people placed into the MPP can be easy targets for extortion and other forms of violence. Relatives in the U.S. or elsewhere may pay ransoms when their loved ones are kidnapped, and women have reported being targeted for sexual assault. In violation of DHS policy, “particularly vulnerable” people have also been sent to Mexico under the MPP. This includes disabled and LGBTQ people, pregnant women, and people with serious medical needs. In some documented cases, unaccompanied minors have also been dropped off on the Mexican streets.

In addition to the dangers and insecurity they face in Mexico, almost none of the asylum-seekers placed into the MPP have lawyers to represent them. According to TRAC data, as of the end of August only 34 out of 9,702 people placed into the MPP had such representation – just 0.4 percent. Pro bono legal advocates on the U.S. side of the border, already overwhelmed, are unable to regularly cross into Mexico due to security and time constraints. And asylum-seekers trapped in Mexico often do not have regular access to telephones or even the ability to remain at the same address for any length of time. Some are now even being bused to cities in central or southern Mexico, hours away from the border.

Due to these constraints, the vast majority of people in the MPP are being forced to navigate a byzantine legal process entirely on their own. In effect, this means that few will be able to successfully win their asylum claims.

In addition, the lack of a fixed address means that if the court changes an applicant’s appearance date, they may be ordered removed in absentia simply because there was no way to notify them of the change. And even making it to the hearings can be dangerous, as it may mean placing themselves at the mercy of the cartels and criminal gangs that essentially control many of the border cities where migrants have been returned. Just getting into a taxi in cities like Ciudad Juarez and Nuevo Laredo can mean putting oneself at risk of kidnapping and extortion.

Terrified, struggling to survive, and increasingly hopeless about their chances of winning asylum without the assistance of counsel, many asylum-seekers are making the decision to return home to the danger they know rather than remain trapped in limbo in another dangerous—yet more unfamiliar—situation that they lack the resources to navigate.

The ACLU’s case, Innovation Law Lab v. McAleenan, argues that “Remain in Mexico” is illegal and should thus be immediately terminated.

The ACLU’s argument centers on two principal legal claims:

First, the MPP violates the Immigration and Nationality Act, because the statute which authorizes the government to return certain individuals to Mexico pending their removal proceedings was never intended to be applied to the class of asylum seekers who are being placed into the MPP.

Second, the way the government is implementing the policy violates the prohibition in both domestic and international law against “refoulement”—returning people to countries where they would face persecution or torture. “Non-refoulement” is one of the central guiding principles of the Refugee Act of 1980, which was enacted to bring U.S. law into compliance with the international Refugee Convention and Protocol.

DHS lawyers are arguing that the statute authorizes return of asylum seekers to Mexico pending their removal proceedings, and that the MPP’s fear assessment procedure is sufficient to comply with the government’s non-refoulement obligations.

The 9th Circuit will hear the ACLU’s argument today, after which it will make a ruling on whether or not the government can continue to implement the policy.

At stake is whether the U.S. will continue to be a country that allows people fleeing persecution to find safe refuge inside its borders. Along with the third-country asylum transit ban and a “metering” policy that has dramatically shrunk the number of asylum-seekers that CBP is willing to process at border checkpoints, “Remain in Mexico” is an attempt to dismantle longstanding U.S. asylum policy. If it stands, the humanitarian crisis at the border will worsen, and people seeking safety will continue to find insecurity and danger instead.