Examining the Human Rights and Legal Implications of DHS’ Remain in Mexico Policy

Statement for the Record

Yael Schacher, Senior U.S. Advocate

Refugees International

House Committee on Homeland Security

Subcommittee on Border Security, Facilitation, and Operations

“Examining the Human Rights and Legal Implications of DHS’ Remain in Mexico Policy”

November 19, 2019

Thank for you for the opportunity to submit this written statement for this important hearing today.

Refugees International (RI) is a non-governmental organization that advocates for lifesaving assistance and protection for displaced people and promotes solutions to displacement crises. We conduct fact-finding missions to research and report on the circumstances of displaced populations in countries such as Bangladesh, Colombia, Turkey, and Mozambique, among many others. RI does not accept government or United Nations funding, which helps ensure that our advocacy is impartial and independent.

In testimony and reports over the past ten months, RI has criticized ways that the Remain in Mexico policy has violated due process and led to great suffering. Rather than allow asylum seekers to pursue their claims in the United States, the policy returns them to Mexico, where there is little access to counsel, no provision for their basic needs, and no security to ensure their safety while their claims are adjudicated. This statement focuses on three ways that the policy raises legal and human rights concerns, drawing on examples RI has learned about from meeting with asylum seekers returned to Mexico; from observing Remain in Mexico immigration hearings relayed via video from port courts; and from speaking to migrants subject to Remain in Mexico who have returned to their home countries in Central America.  

First, Department of Homeland Security (DHS) officials have not adequately fulfilled their obligations to screen asylum seekers regarding their fear of return to Mexico. In Tijuana, RI spoke to a Honduran woman who, without telling her where she was going, DHS flew from the Rio Grande Valley to San Diego in June 2019. When, at the port of San Ysidro, she objected to being returned to Mexico, U.S. Customs and Border Protection (CBP) forced her to sign the form by grabbing her arm, which she said still hurt weeks later. In Matamoros, RI spoke to men from Nicaragua and Honduras who told Customs and Border Protection officials that they had been kidnapped with the complicity of the state police in Reynosa before seeking asylum in the United States. A Honduran woman told RI of being trafficked into prostitution in Reynosa. Her body was covered in bug bites from being left by her traffickers, unconscious, in the desert, where CBP found her—but still returned her to Mexico, though she told them what had happened to her. None of these people had been referred by CBP to asylum officers for fear screenings about what happened to them in Mexico.

If referred to asylum officers at all, the fear screenings asylum seekers receive are inadequate and seem arbitrary. In one case RI followed for several weeks in El Paso/Juarez, a woman and her son were released from the Remain in Mexico program after their third fear screening despite absolutely no new facts 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 their husband and father in Honduras—spent several unnecessary months in fear in Juarez and separated from family in the United States.   

Second, DHS is interfering with the ability of asylum seekers to get meaningful hearings on their asylum claims in immigration court. Asylum seekers who are returned to Mexico wait there for many weeks until they return to the port of entry to be escorted to their initial hearings with an immigration judge. This is the day they have been waiting for, their chance to tell a judge about why they fled their home countries to ask for refuge in the United States. Almost none of them have attorneys to tell them what to expect. What happens is devastating for them and devastating to witness. RI watched one hearing in El Paso at which a Q’anjob’al speaker, who clearly had not been able to say anything in her own language for weeks, pled through a court-arranged interpreter for help: “In Mexico, I am afraid and what hurts me most is that nobody wants to help me. Please put me in a cell,” she begged. When she told the judge that she had documents attesting to abuse by her stepfather in Guatemala, the judge said now was not the time to address that. “Please can I tell you now?” she asked, to no avail.

Those brought to the port courts in Laredo and Brownsville see a judge on a television screen. According to policy guidelines, DHS (CBP and asylum officers) not the Executive Office of Immigration Review (the section of the Justice Department that employs immigration judges) controls who is exempted from the Remain in Mexico program. Asylum seekers learn quickly that the judge is powerless to take them out of the program, powerless to unite them with spouses and children in detention or otherwise in the United States, powerless to help them find counsel to represent them or a translator to help with their asylum application and evidentiary documents. If any start telling the judge about persecution they have faced, the judge silences them. At one hearing, a judge in Harlingen left the courtroom while the attorney for DHS and the officer in the port court determined who would be referred to an interview with an asylum officer about their fear of return to Mexico; it was, in the judge’s words, to DHS and not to her that fear needed to be expressed. When the judge returned, she told all the asylum seekers that the one thing that was certain was that, if they did not return to a hearing in four weeks with their asylum applications completed in English, they would be deported in their absence. 

Despite the odds, some asylum seekers try their best to pursue their cases: find attorneys or represent themselves, submit their applications, and return for individual hearings on the merits of their asylum cases. Yet obstacles, both physical and technical, abound. In September, Refugees International met one Nicaraguan father and son reporting to the port of entry in Nuevo Laredo at 4:30 a.m. as is required for morning court hearings. They had just been released by men who had kidnapped them on their way to the port. In early November, Refugees International was in a courtroom in Harlingen with a judge and a translator while a Cuban asylum seeker appeared for her merits hearing at the port court in Brownsville. Due to pressure to expedite cases, only two hours had been allotted for a merits hearing that typically takes all day, but would certainly take longer since simultaneous translation is not possible when using video technology conferencing. The woman was still testifying when the court had to close. This meant that both she and the other asylum seeker that was to appear that afternoon had to have their hearings reset and would have to wait in Mexico until late February. They must return to Matamoros—where an unofficial refugee camp lacking sufficient clean water, food, schooling, and security is home to thousands of waiting asylum seekers. 

Many asylum seekers feel they cannot wait it out and therefore ask to be sent back to their home countries or just return on their own, the third major problem with the Remain in Mexico policy. These asylum seekers have not yet had a chance to seek protection and may be at risk upon return to their home countries. In the spring, RI was in the court room in El Paso when a Guatemalan woman told a judge that she had no money and was afraid to wait and travel through Mexico on her own, especially without her own and children’s identification documents, and insisted on deportation. She told the judge that though she was very afraid to return to Guatemala, she would rather be killed there, where there would be people to take care of her children, than in Mexico, where she knew nobody. Another woman returned to Guatemala in September, after a man threatened her and her children while they were waiting in Tijuana for their next court date. In October, RI spoke to this woman on the phone. She feared for her life in Guatemala—the partner she fled originally was still threatening her—and wanted to know how she might reunite with her elder daughter, who had been separated from her at the border, detained for three months, and then released to relatives while she pursued her asylum claim. Since the mother had missed her September Remain in Mexico court date in San Diego, however, she had been deported in her absence and is barred from relief in the United States for a decade.     

The Remain in Mexico policy thus cuts off the right to seek asylum and returns asylum seekers to danger in violation U.S. and international law. It also separates families and makes a sham of the idea of justice in immigration court.