Congress

‘Remain in Mexico’ policy faces internal critiques at House hearing

Migration Protection Protocols spurs human rights violations, an asylum officer told Homeland Security panel

A Customs and Border Protection agent processes migrants who recently crossed the border in the Rio Grande Valley Sector of Texas in August. (Jinitzail Hernández/CQ Roll Call)

The Migrant Protection Protocols, a program that has so far forced more than 57,000 migrants to wait in Mexico while their immigration cases wind through the court, is illegal and enables human rights abuses against the vulnerable, a Department of Homeland Security employee told lawmakers Tuesday.

“These policies are illegal, they’re immoral, and they’re the basis for human rights abuses on behalf of our nation," Michael Knowles, president of a union that represents U.S. Citizenship and Immigration Services employees and a longtime asylum officer, said in his testimony to a House Homeland Security panel.

[‘Metered’ immigrants face long waits at the border]

Knowles no longer screens asylum claims but testified as a representative of numerous union members who still do.

“I don’t know a single asylum officer in the country who believes this is a good policy,” he said of MPP, also known as "Remain in Mexico." Carrying out the policy against migrants who asylum officers have assessed to have legitimate claims “leaves them feeling like they are complicit in human rights abuses,” he said.

But Tom Homan, former acting director of Immigration and Customs Enforcement, an agency authorized with the internal enforcement of the nation's immigration laws, defended the program. He told lawmakers MPP was an “important step in regaining control of the Southern border.”

The hearing, hosted by the subcommittee on Border Security, Facilitation, and Operations, spotlights the human cost of a highly controversial policy that the Trump administration argues has been the most effective in reducing migration at the southwestern border.

“From a law enforcement perspective, MPP has absolutely been successful,” Mark Morgan, the acting commissioner of U.S. Customs and Border Protection, told reporters last week.

MPP was piloted in January at California's San Ysidro port of entry at the San Diego-Tijuana border, but the program expanded to other ports in May following a 9th Circuit Court ruling that allowed the program to continue while a lawsuit against it proceeded.

In June, the U.S. struck a deal with Mexico over how to jointly curb migration, and the Trump administration dramatically expanded MPP across the southern border. It also set up “tent courts” in Brownsville and Laredo, Texas, to quickly adjudicate claims by migrants seeking protection.

In recent weeks, accounts from journalists, USCIS whistleblowers, and an internal DHS watchdog department have uncovered numerous problems with MPP that highlight the policy's impact on thousands of migrants, including several thousand children.

Vulnerable migrants

The witnesses on Tuesday's subcommittee hearing panel, which included career asylum officers, emergency room doctors, and attorneys who work with migrants, criticized MPP in strong terms. They provided numerous examples of vulnerable migrants — including pregnant women, children and LGBT individuals — who have been languishing in makeshift tent camps and exposed to violence in Mexican border towns.

The committee's top Republican, Rep. Clay Higgins of Louisiana, said he was disappointed "that no DHS officials responsible for negotiating and implementing the Migrant Protection Protocols agreement with the Government of Mexico were invited to testify by the majority." He also noted that the Mexican government and faith organizations are supposed to provide shelter and aid to migrants.

But Erin Thorn Vela, a staff attorney at the Texas Civil Rights Project, countered that many MPP migrants she works with do not have access to food, medicine, or even running water.

“I have not seen that promise fulfilled on the ground in Matamoros,” she testified Tuesday, referring to the Mexican border town across from Brownsville where migrants are being returned.

The dangers in this and other Mexican border towns are well-documented. According to a 2018 State Department report, “there are no safe areas in Matamoros due to gunfights, grenade attacks, and kidnappings.” The department also has labeled Tamaulipas, the Mexican state that includes Matamoros, as “level 4” threat risk, placing it in the same category as Afghanistan, Iraq, Syria, Somalia, North Korea and Yemen.

A recent analysis by Human Rights First found 340 publicly reported instances of kidnapping, rape, torture and other types of violence against migrants returned to Mexico under MPP. On Tuesday, Vela described one migrant family who was kidnapped within an hour of returning to Mexico and tortured for days. She said in another case, two young girls were sexually assaulted by a Mexican national who was reported to the police but did not face consequences. Several such cases have been publicized in recent news stories.

"I have seen how MPP puts asylum seekers at grave risk, harming a population already expressing severe levels of trauma," testified Dr. Todd Schneberk of Physicians for Human Rights and an assistant professor at the University of Southern California's Keck School of Medicine. “Each day they are forced to wait compounds the trauma that forced them to seek safe haven."

Such vulnerable migrants or those who are likely to face harm in Mexico are supposed to be exempt from the program, according to DHS rules. In fact, Morgan, the CBP acting chief, recently told Congress that any migrants who face such concerns may come up to a port of entry and will be given due process.

But on Tuesday, Vela recounted concerns many advocates have recently brought up to CQ Roll Call that even migrants facing imminent danger, or suffering life-threatening medical issues, are not removed from the program.

A contingent of pro-bono attorneys in Matamoros recently tried to petition for the family of a 2-year-old diagnosed with sepsis by a volunteer doctor, one of them told CQ Roll Call last week. It took several hours, five attorneys, another independent medical evaluation and local press attention to get the Brownsville port director to allow the family to enter, in accordance with DHS rules.

A CBP official defended details of how MPP was implemented in that case after the hearing.

"Amenability to enrollment in the Migrant Protection Protocols program is ultimately determined on a case-by-case basis and there are different levels of granularity, facts and circumstances that are unique to each case," the official said.

"Agents and officers implementing the MPP program are directed to review arriving individuals for known physical or mental health conditions or the potential to face persecution or torture in Mexico. All factors need to be considered, including whether the status of the particular medical condition and the immediate health of the migrant at the time of encounter is something requiring immediate medical attention."

Legal issues

At Tuesday’s hearing, Laura Peña, a pro bono lawyer at the American Bar Association Commission on Immigration, argued that MPP undermined the legal responsibilities of the United States to provide access to asylum. She listed several issues that have provided obstacles for asylum seekers, including having to navigate proceedings with inaccurate times and addresses in charging documents that detail when they're to appear in court. Many also have inadequate translation services and are given rushed proceedings in so-called “port courts.” There also are numerous obstacles that have kept lawyers away from migrants, prompting many to miss designated court dates.

“I believe we are circumventing our international legal obligations that are enshrined in our constitution,” she said.

According to the Transactional Records Access Clearinghouse at Syracuse University, less than 2 percent of MPP migrants had access to counsel as of June.

In a detailed letter to USCIS management, recently made public by Sen. Jeff Merkley, D-Ore., an asylum officer later identified in a Los Angeles interview as Doug Stephens refused to carry out MPP, calling it “illegal.”

On Tuesday, a number of Senate Democrats, including presidential hopefuls Kamala Harris of California and Elizabeth Warren of Massachusetts, demanded the public release of an internal DHS audit of the MPP program that detailed how CBP officials pressured asylum officers to deny migrants entry into the U.S. A draft of the audit was reported earlier by Buzzfeed News.

“MPP has transformed the asylum process at our southern border since it was implemented just 11 months ago,” the senators wrote in the letter Tuesday. “Releasing this report will help Congress and the American public better understand how this relatively new program has changed procedures and logistics for asylum seekers attempting to navigate the immigration court system.”

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