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A woman waits to hear her place on a list of people waiting in Tijuana, Mexico, on Nov. 18, 2018, to seek asylum in the U.S. (David Maung/KQED)
The House Judiciary Committee has stepped up an investigation into a Trump administration policy that has forced more than 57,000 asylum-seekers to wait in Mexico potentially for months — often in extremely dangerous regions — while their claims are processed in the United States.
The year-old policy, officially called Migrant Protection Protocols, or MPP, is one of a series of moves by administration officials to fundamentally restructure this country’s asylum system and drastically restrict access to it.
On Tuesday, the Judiciary Committee asked the Department of Homeland Security to turn over documents about how the program, known informally as the “Remain in Mexico” policy, is being implemented.
San Jose Rep. Zoe Lofgren, who chairs the Judiciary’s immigration subcommittee, said the administration is trampling the rights of asylum-seekers and making the protections unattainable for people with legitimate claims. Meanwhile, women, children and other vulnerable migrants are being “preyed upon by gangs and criminals” as they wait in Mexico, she said.
“The current situation is really appalling,” said Lofgren. “The administration is acting without regard to what the law requires ... it's important to note that seeking asylum is provided for under law.”
By law, anyone who reaches the U.S. and can make a case that they face persecution at home has a right to claim protection, regardless of whether they come to an official port of entry or enter the country without authorization.
Among other things, Lofgren and her colleagues are requesting information on cases where border authorities returned people to Mexico even after they were granted asylum by a U.S. immigration judge.
The congressional inquiry comes nearly a year after the first person was returned to Mexico under MPP. On Jan. 29, 2019, a Honduran man, Carlos Catarlo Gomez, was sent to Tijuana to wait for an assigned court date in San Diego.
Trump administration officials say MPP is preventing migrants from “gaming” the asylum system for economic opportunity in the U.S. Officials argue the policy has helped reduce unauthorized immigration in recent months.
“MPP has been and will continue to be an effective tool to address the ongoing crisis at the southwest border,” a DHS spokesperson said in a statement.
The policy has transformed how U.S. authorities process asylum-seekers who are not Mexican nationals at the southern border. If they pass an initial screening, adults requesting asylum are now given a notice for a hearing in a U.S. immigration court, with instructions to appear at the port of entry to be transported to the courthouse. Then they are turned back to the Mexican side of the border.
As many as 20,000 people are currently sheltered in northern Mexico awaiting entry into the U.S., according to U.S. Customs and Border Protection. The U.S. State Department has issued safety advisories for five of the six Mexican states along the border, warning people to reconsider travel or not to travel at all, due to violent crime and gang activity.
Many asylum-seekers coming through Mexico are Central Americans with children, and they often lack resources and become victims of extortion, kidnapping and other crimes, legal advocates say.
“Thousands and thousands of people in Mexico, along the U.S.-Mexico border, are living on the streets, switching shelter to shelter every couple of days … struggling to feed their children,” said Ian Philabaum, director of border programs at Innovation Law Lab. “More often than not, people are forced to discontinue their court proceedings because of the violence they are subjected to or because their children are sick.”
Innovation Law Lab is one of several legal aid groups in California that sued the Trump administration last year to block the Remain in Mexico program, and a federal judge in San Francisco initially halted it. But last May, the 9th Circuit Court of Appeals allowed the program to continue while the case is litigated.
Previously, asylum-seekers who passed “credible fear” screenings waited in the U.S. while their cases were decided, often released into the community. That gave people a chance to get legal support and prepare their cases, as well as reconnect with relatives in this country, said Lindsay Toczylowski, executive director of the Immigrant Defenders Law Center in Los Angeles.
But for migrants in Mexico, who typically live in shelters or on the street, it’s “nearly impossible” to find U.S. immigration attorneys, she said.
Toczylowski said those in the MPP program with cases pending in the San Diego immigration court are typically summoned at 4 a.m. to the U.S. port of entry in Tijuana to be processed by CBP and then bused to the court. Some of her clients must travel hours from surrounding Mexican cities in the middle of the night to make those appointments, often with small children in tow, she said.
“They've created a system that's not designed to adjudicate claims but is designed just to deny people the right to asylum,” Toczylowski said. “It's designed to make sure that people are in no condition and have no ability to actually defend themselves in court.”
Legal representation is key to winning asylum, data shows, but the vast majority of asylum-seekers returned to Mexico don’t have an attorney. So far, 117 people in the program — or about 0.2% — have been granted relief, according to researchers at Syracuse University. Last year, asylum was granted in roughly 30% of all cases.
Under U.S. law, non-citizens are eligible for asylum if they have a well-founded fear of persecution in their home country because of their race, religion, nationality, membership in a particular social group or political opinion.
Most of the people arrested last year by Border Patrol agents are Central American families. Many say they are fleeing violence in their home countries and that their governments can’t protect them. The so-called “Northern Triangle” of Central America — Guatemala, Honduras and El Salvador — is one of the world’s most dangerous regions outside a war zone.
Advocates who favor reducing immigration have applauded the MPP program. Jessica Vaughan, who directs policy studies at the Center for Immigration Studies, said the adoption of Remain in Mexico has been a “major improvement” in the U.S. asylum system. Her group had recommended such a change for years.
“It removes the incentives that people had to leave their homes and pay a smuggler to come on this dangerous journey … hoping that they would be released into the United States,” said Vaughan.
She pointed out that people in the program have a shorter wait for their claims to be decided, compared to the three years on average it takes for an immigration judge to rule on other asylum claims.
The Justice Department, which oversees U.S. immigration courts, told judges in San Diego, El Paso and other border cities to prioritize “Remain in Mexico” cases. Hearings are scheduled within two to four months, according to a DHS report.
International law prohibits the U.S. from returning people to countries where they fear persecution or torture. Under the MPP, asylum-seekers who express such a fear about Mexico are entitled to an interview to make a case to stay in the U.S. while their cases are decided. But immigration attorneys have said the government was barring them from attending those interviews with their clients. This week, a federal judge in San Diego ruled that all asylum-seekers in the program must have access to legal representation before and during those interviews.
The Remain in Mexico program is one of several steps the Trump administration has taken to restrict asylum. Others include:
— On Nov. 9, 2018, a presidential proclamation and federal rule barred people from applying for asylum if they did not come to the U.S. through an official port of entry. Federal courts blocked implementation of this rule. The 9th Circuit Court of Appeals is considering the case.
— On July 16, 2019, a federal rule made people ineligible for asylum if they crossed another country on the way to the U.S. but failed to apply for protection there. The U.S. Supreme Court allowed the administration to implement that policy while lower courts weigh a legal challenge.
— On Nov. 14, 2019, the Trump administration issued a proposed federal rule that would deny work permits to asylum-seekers who didn’t come to the U.S. through an official port of entry, and would make asylum-seekers wait a year for a work permit — rather than the usual five months.
— In 2019, the Trump administration signed agreements with Guatemala, Honduras and El Salvador that allow the U.S. to send asylum-seekers to those countries to seek protections in those countries instead. Since then, the U.S. has sent dozens of Honduran and Salvadorans to Guatemala under the agreement, according to media reports.