Opponents of the Trump administration’s plan requiring all migrants seeking asylum in the United States to remain in Mexico for the duration of their immigration process have pledged to challenge the policy, which they say — as almost every other aspect of President Donald Trump’s immigration program – almost certainly violates constitutional protections, international treaties and federal law.
The policy, dubbed the “Migration Protection Protocols” by the Department of Homeland Security, is “shameful and unlawful” and “will result in the deaths of vulnerable people seeking safety,” said Michelle Brané, director of Migrant Rights and Justice. program at the Women’s Refugee Commission. “This President has, yet again, chosen to exploit and endanger the lives of women and children to advance his own selfish agenda.”
“Putting asylum seekers back to Mexico is absolutely illegal under U.S. immigration law,” said Eleanor Acer, senior director of refugee protection at the nonprofit Human Rights First, during the interview. a conference call on Friday morning. “This program will increase, rather than diminish, the humanitarian debacle at the border.”
Under the proposed rule changemigrants attempting to seek asylum in the United States at the southern border will almost universally be detained in Mexico for the duration of their immigration process, a process that could take years.
Calling the move a “historic step,” the Department of Homeland Security revealed the plan Thursday, as Secretary Kirstjen Nielsen was questioned by members of the House Judiciary Committee about the administration’s many immigration controversies. Trump, including his family separation policy. (which Nielsen denied existed) and the recent death of a 7-year-old migrant girl in the custody of Immigration and Customs Enforcement.
In the announcement, Nielsen said “aliens trying to cheat the system to illegally enter our country will no longer be able to disappear into the United States, where many are skipping their court dates.” Instead, “they will await a decision from the immigration court while in Mexico. ‘Catch and release’ will be replaced with ‘catch and return’.”
Mexico’s foreign ministry, contradicting the foreign policy platform that helped bring the country’s new president to power, said it “will allow, for humanitarian reasons and temporarily, the entry of certain foreign people from the United States who entered the country through a port”. or who have been apprehended between ports of entry, have been questioned by the immigration control authorities of that country and have been issued a summons to appear before an immigration judge”. (The country’s top immigration official now says Mexico is completely off guard to fulfill its end of the bargain.)
Organizations on the ground say the policy is a gross violation of federal and international law, as well as constitutional guarantees of due process, and plan to fight it in court.
“This administration knows the border area is dangerous for women and children,” Brané said, “and yet this administration is doubling down on policies that make everyone less safe.”
“The administration appears to have no implementation plan,” said Kennji Kizuka, senior researcher and refugee protection policy analyst at Human Rights First. “Will lawyers be able to visit their clients before the hearings? Where will these hearings take place?… Access to an attorney is one of the most important factors in determining whether or not an asylum seeker can live safely in the United States.
“This administration knows the border area is dangerous for women and children, and yet this administration is doubling down on policies that make everyone less safe.”
— Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
In addition to article 33 of the United Nations Convention and Protocol relating to the Status of Refugees, which prevents forced return asylum seekers to countries where they face persecution, torture or death – dubbed the principle of non-refoulement in international law – advocates point to laws passed by Congress that mandate the admission of children unaccompanied persons seeking asylum at the US border as blatantly violated by the President’s policy.
“Refusing to treat children very clearly violates the Trafficking Victims Protection Reauthorization Act, which was written specifically to protect this vulnerable population,” said Lisa Frydman, vice president of policy and regional initiatives at Kids in Need of Defense (KIND), a nonprofit organization that works on behalf of unaccompanied children who enter the US immigration system on their own. Speaking on a call with reporters, Frydman recounted interviews with unaccompanied children held in shelters in Tijuana, whose conditions are “squalid”, Frydman said.
“Unaccompanied children are routinely denied access to seek protection in the United States” as they seek asylum, Frydman said, and their efforts to evade US and Mexican immigration authorities expose them even more at risk of exploitation.
Some of the children have even become used to living on the streets of Tijuana, Frydman said, where they have no access to medical care, food or protection from those who might exploit them. The dangers are extreme: this week alone, two Honduran children were murdered in Tijuana after being arrested by would-be thieves as they attempted to move from one shelter to another.
“All of our organizations have recently been on the ground in Tijuana and are united in our assessment that conditions there are very unstable and very dangerous,” said Wendy Young, president of KIND. These conditions, Young continued, “will deteriorate further” as the number of asylum seekers stranded at the border increases.
A 2017 study by Human Rights First documents 921 crimes against migrants committed by federal or state officials in Mexico, where nearly 70% of migrant children are held in “prison-like” migrant detention centers, according to a report by Human Rights Watch, despite Mexican laws prohibiting children from being held in such centers.
These dangerous conditions in Mexico make forcing asylum seekers to stay home a flagrant violation of the principle of non-refoulement, the lawyers said, and therefore a violation of international law.
“These migrant camps are not safe for children,” said Dr. Alan Shapiro, a pediatrician who co-founded Terra Firma, an organization that provides medical care to undocumented children. “These are not closed camps, they have no roof over their heads.” During a recent visit to a camp in Tijuana, Dr. Shapiro said he saw a two-year-old child who had recently suffered a seizure and had no access to medical care, or even proper food.
“This child was eating powdered formula out of the box – there was no water to mix it in,” Shapiro said.
“There are very real risks for unaccompanied children,” said Leah Chavla, policy adviser at the Women’s Refugee Commission. “It’s a system that’s ripe for exploitation… The mothers we spoke to reported that there are a lot of new faces around the camps and they don’t necessarily feel comfortable leaving their children with strangers.
Advocates also pointed to serious logistical hurdles for asylum seekers to receive proper counsel as they navigate the maze of the immigration system from outside the United States, pointing to these difficulties as potential violations of the regular procedure.
“It’s unclear how lawyers in the United States could work and access their clients in Mexico, if at all,” said Jennifer Podkul, senior director of policy and advocacy at KIND. “Furthermore, the capacity of legal services in Mexico would be insufficient to meet these needs or to ensure the provision of accurate legal information and the preparation of cases in accordance with US law rather than Mexican law.”
These difficulties are doubled for unaccompanied children, Podkul said, given their age and limited ability to testify in their own defense. “Without quality legal representation, unaccompanied children and other asylum seekers will not be able to fully present their protection cases and, as a result, could be sent back to danger, danger or death.”
