Most Americans have watched in disgust over the last years as President Trump and his administration have aggressively targeted migrants and asylum-seeking families at the U.S. southern border. The administration has quickened its pace over the last six weeks. It has pressed the Supreme Court to deny refugee claims from persons not coming directly from their countries of origin, sought to terminate the Flores settlement agreement that insisted on humane treatment for migrant families, denied Bahamian hurricane victims Temporary Protective Status to allow them to stay in the United States until the situation at home improves, and threatened to reduce future quotas for the Refugee Admissions Program.
In each case, the administration claims that the current refugee system provides loopholes for asylum seekers to enter our country and disappear into the shadows. Nothing could be further from the truth.
I traveled recently with the Women’s Refugee Commission to the California-Mexico border, where we toured the Immigration and Customs Enforcement (ICE) Otay Mesa Detention Center. We also rode along the border with the Border Patrol, visited the San Ysidro Port of Entry, attended U.S. Immigration Court hearings, and visited migrant shelters on both sides of the border.
Far from the loophole-ridden sieve described by the administration, the asylum system we saw was a Kafka-esque labyrinth designed to punish migrants who dare to exercise their rights under U.S. law and international agreements to seek protection from violence, persecution, and torture in their homelands, and to dissuade others from doing so. The idea that parents would subject themselves – much less their children – to this nightmare only to go underground again in the United States defies logic.
This is not a plea for open borders or loosening immigration enforcement. As a former Foreign Service officer who served every U.S. president from Gerald Ford to George W. Bush, I was proud to help enforce U.S. laws, especially since this showed the world that we are indeed a nation tied to rule of law and human dignity. And that is exactly the point. During our visit, we saw numerous examples where the current procedures violate U.S. law and international obligations we have voluntarily incurred.
Let’s take a few examples. The Universal Declaration of Human Rights states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” But at the San Ysidro border crossing, we saw U.S. officials implement the so-called “metering system,” under which thousands of asylum seekers trying to access the legal process are summarily turned away and forced to live in dangerous conditions in Tijuana for months or longer.
Ad Hoc `La Lista’
U.S. officials come out each morning and announce how many cases (if any) will be considered that day. U.S. authorities don’t even monitor the system: migrants themselves have produced “La Lista,” whereby migrants get a scrap of paper with a number on it and are expected to show up each morning to see if their turn has come.
When we visited, some 20 numbers were called, while thousands of others were forced back into purgatory on the streets of Tijuana. There, they told us, they are preyed upon by criminal gangs, human traffickers, and smugglers. The system is rife with corruption and favoritism.
Furthermore, U.S. Customs and Border Protection (CBP) officers admitted to us that this practice leads migrants to try to cross the border illegally between formal entry points, often with tragic results.
Similarly, the 1951 Refugee Convention forbids countries from returning refugees “in any manner whatsoever” to territories where their lives or freedom would be threatened. How, then, can the U.S. implement its Orwellian-named “Migration Protection Protocol,” otherwise known more accurately as “Remain in Mexico?” Under this system, asylum-seekers who are judged by U.S. authorities to have credible fears of persecution are nonetheless sent back to Mexico to wait for their cases to be considered. In some cases, they are involuntarily bused to Monterrey or Tapachula – some 2,400 miles away, from where they would have to find their way back to the border for their hearings.
This system is so heinous that Mexico and Guatemala refused to comply until they were blackmailed by the Trump administration through threats of tariffs and economic ruination.
Finally, under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the U.S. has agreed not to intentionally inflict severe physical or mental pain or suffering on people in its custody.
How else would you describe the anguish of parents and children separated from each other; asylum-seekers held in prison-like conditions, often for years with no clear path for adjudication of their claims; or detainees denied soap, toothbrushes, the protection of child welfare professionals, and basic medical services, in conditions that the Department of Homeland Security’s Inspector General has declared unsafe for government employees, let alone for the children held there?
Basic Child-Welfare Principles
The administration is also seeking “relief” from the Flores Settlement Agreement (1999), which recognized that indefinite detention in these conditions can create a lifetime of trauma for children. The agreement compelled the U.S. government to meet basic child-welfare principles for children and families detained by the Border Patrol and to release or deport families within 20 days.
How is a backing-away from such common-sense terms consistent with Acting Secretary of Homeland Security Kevin McAleenan’s pledge that “children in the government’s care will be treated with dignity, respect, and special concern in concert with American values?”
We were not permitted to visit CBP holding areas, but our visit to the Otay Mesa Detention Center and interviews with 80 women detainees provided some insight. Built just four years ago, the center was presented to us as a model, but even there, detainees complained of medical neglect, freezing cells, inedible food, crammed conditions, and forced isolation from family, friends and legal advice. Many petty indignities just seem vindictive, like interactions with visitors being limited to video screens rather than in person or not seeing daylight unless a detainee signs up for gardening duty at a wage of $1 per day.
Run by America’s largest private prison corporation, CoreCivic, the facility now holds about 1,000 immigration detainees in prison-like conditions, despite that fact that most of them have committed no crime. Some of the women with whom we spoke have been held for more than three years, and virtually none of them knew the status of their cases or had legal representation. Legal hotlines did not work, pro bono services were overwhelmed and phone calls to family and friends were prohibitively expensive.
`Flight Risk’ is a Straw Man
The official reason for detention is that most migrants are flight risks, and would disappear if released into the United States, but the facts demonstrate otherwise. When provided with information and support, migrants seeking asylum show up for court. An analysis of 15 years of data conducted by the American Immigration Council concluded that 96 percent of asylum-seeking families released from detention showed up for immigration court.
Under a pilot program called the Family Case Management System launched by the Obama administration in 2015, the compliance rate with court hearings was 99.3 percent and the compliance rate for ICE check-ins was 99.4 percent. This system provided a comprehensive support network for asylum seekers at a cost of $38 per day per family, compared with $798 per day for holding a family in detention. But the Trump administration abruptly ended the pilot in June 2017 without explanation.
The government can also use alternatives to detention, including the requirement of bail, GPS ankle bracelets, community support networks, and regular check-in procedures to track migrants.
During our visit to the Immigration Court of San Diego, throughout an entire morning of cases, only one asylum-seeker was absent. The court system itself is part of the maze. Not a single case was resolved during our visit: in nearly all cases, the U.S. attorney did not have the necessary files and the cases were put off until 2020.
When one asylum-seeker expressed confusion, the judge warned that there could be up to eight such delays, and if the defendant missed even one hearing, he would be listed as “delinquent” and subject to immediate deportation. Many of defendants were fluent in neither English nor Spanish, and half lacked legal representation, which makes them some 10 times less likely to win their cases.
Asylum seekers we met at the U.S.-Mexico border, the Otay Mesa Detention Center, Immigration Court, and elsewhere consistently said that a key motivation for seeking protection in the United States was America’s well-earned reputation for respecting individual rights and holding our government accountable for complying with its own laws. This should make Americans proud, and it also makes us safer by securing everyone’s rights. Rather than backtrack on our legal obligations, we should commit to a measured policy to balance the need to secure America’s border with the rights of asylum seekers.
As a first step, the United States should eliminate the “metering system,” abandon the punitive “Remain in Mexico” policy, reinstate and expand the Family Case Management system, strengthen other alternatives to detention, maintain robust numbers for the Refugee Admission Program, and reaffirm its responsibility to comply with the Flores settlement agreement.
Our proud legacy as a country of immigrants demands nothing less.