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AILA Doc. No. 19032731 | Dated December 5, 2019
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The past decade has been marked by a dramatic buildup of border security and the expenditure of enormous resources on border personnel, infrastructure, and surveillance, despite the fact that our southwest border is safer than it ever has been before. The Trump administration has insisted on a series of drastic changes to border processing, changes that have eroded the due process rights of asylum seekers and other migrants in border regions.
This featured issue page provides updates, analysis, and other resources on these policies that include the "Migrant Protection Protocols" program, the "turnback" of asylum seekers at ports of entry, a "zero tolerance" plan for prosecuting asylum seekers, the separation of families, and the increased use of detention on asylum seekers. Combined, the policies form an ever-present and increasing barrier to due process protections for migrants, threatening fundamental rights like access to counsel, and a fair day in court.
Read more about these policies:
On November 9, 2018, President Trump issued a proclamation that, in combination with a rule promulgated by DHS and DOJ, bars from seeking asylum individuals who enter the United States from Mexico between ports of entry. The proclamation guts key due process protections for asylum seekers. Under unambiguous laws passed by Congress, all persons arriving to the United States, whether at or between ports of entry, have the right to seek asylum. Not everyone is eligible for that relief; but everyone deserves a full and fair opportunity to pursue it. The proclamation is a transparent end run around our laws and has already come under legal challenge.
On July 16, 2019, the Trump administration issued a joint interim final rule—often referred to as the “Asylum Ban 2.0”—which makes all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country. On September 11, 2019, the Supreme Court issued an order staying a prior injunction that had prevented the government from implementing the rule. The order means that the government can implement the Asylum Ban 2.0 while the case works its way through the courts. For more information on the litigation, see Barr v. East Bay Sanctuary Covenant.
On January 24, 2019, DHS announced it would begin implementing "Remain in Mexico," a new policy that would force individuals arriving at the U.S. southern border who are fleeing violence and persecution in their home countries to remain in Mexico pending an asylum hearing before a U.S. immigration judge. DHS has dubbed this plan, the "Migrant Protection Protocols." Remain in Mexico dramatically alters processing of asylum claims at the U.S. southern border and makes it far more difficult for asylum seekers to receive a fair and meaningful review of their claims as required under both U.S. and international law.
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“After careful consideration and moral contemplation, I have decided that I cannot conduct Migrant Protection Protocol interviews or otherwise participate in the MPP program. Following the various meetings with Supervisory Asylum Officers last Thursday, August 8, 2019, and possible continued disciplinary action, I am memorializing my objections in writing.
As an Asylum Officer, I have sworn to defend the constitution and faithfully discharge the duties of my office, including the fair administration of our immigration laws. The MPP is illegal. The program exists without statutory authority under the INA, violates normal rulemaking procedures under the APA, and violates international law. The program's execution impairs the fair implementation of our laws and runs directly counter to the values of RAIO. I respectfully decline any further participation in the program.”
On October 7, 2019, the Trump administration began a pilot program called “Prompt Asylum Case Review,” in the El Paso area to speed up the asylum process for certain non-Mexican immigrants. Under this program, individuals are kept in holding cells (known in Spanish as hieleras) or are taken to a local 1,500-bed soft-sided facility operated by CBP and receive a decision on their request for protection in 10 days or less without going through the formal asylum process. Asylum seekers are provided access to a phone in the first 24 hours to call family members or a lawyer before an initial asylum screening. After 24 hours of detention, asylum seekers receive an interview with an asylum officer to determine whether they have a credible fear of persecution and can stay in the U.S. Immigration lawyers and advocates say the pilot program denies asylum seekers proper due process, because immigration lawyers are not allowed to meet with their clients in person and are limited to brief phone conversations.
The pilot program reportedly applies to individuals subject to the recent interim final rule that bars most migrants traveling to the U.S. Southern land border from seeking asylum unless they are first denied asylum in one of the countries they passed through on their way to the U.S. The rule effectively ends the possibility for Central American asylum seekers to seek asylum in the U.S first.
On November 19, 2019, DHS and DOJ issued an Interim Final Rule that was effective the same day, which aims to send individuals seeking asylum along the U.S./Mexico border to Guatemala or other countries with which the United States has entered into “Asylum Cooperative Agreements.” This rule applied to individuals who arrive at a U.S. port of entry, or enter, or attempt to enter the U.S., between ports of entry, on or after November 19, 2019.
According to Reuters, the program will initially be applied at a U.S. Border Patrol station in El Paso, Texas. This first phase will target adults from Honduras and El Salvador and the aim will be to process them within 72 hours. One individual was interviewed through the new process on Tuesday, November 19, and two more were interviewed on Wednesday.
Prior to the launch of this new program, DHS officials were still scrambling to figure out critical details, including how those seeking protection would obtain shelter, food, and access to orientation services, according to government briefing materials obtained by BuzzFeed News.
According to Buzzfeed News, despite the questions, the documents indicate that DHS planned to send 12 asylum-seekers on the first flight to Guatemala that was tentatively scheduled to depart on Tuesday, November 19.
Cite as AILA Doc. No. 19032731.