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Customs and Border Protection officers have not consistently followed policies intended to protect Central American asylum seekers who are likely to be harmed in Mexico from returning there under the “Remain in Mexico” program, according to documents obtained by The San Diego Union-Tribune.
The program, known officially as Migrant Protection Protocols, sends certain migrants who ask for asylum at the southern border back to Mexico while they wait for their immigration court cases.
If migrants tell CBP officials that they are also afraid of going back to Mexico, CBP is supposed to send them for interviews with asylum officers who work under a separate agency, U.S. Citizenship and Immigration Services, according to an agency memo [PDF]. Those officials are specially trained to weigh a person’s story about fear of returning against specific legal standards and definitions.
CBP documents detailing questions asked of individual asylum seekers who were returned to Mexico as part of the MPP program show that some migrants who expressed fear of being in Mexico were returned to Tijuana without talking to USCIS asylum officers.
Others returned under the program said that they had not been able to express their fear to CBP officials during processing because of the way CBP officials conducted their intake interviews.
The majority of those who spoke with the Union-Tribune after they had been returned under the program said they were afraid to be in Mexico, but few had been referred for the additional screening to determine whether they should be part of the program.
Juan Carlos, a Salvadoran man who came to the port of entry with his wife and three children, the youngest of whom is 10 months old, said that when he told the CBP official that he and his family were afraid to return to Mexico, the official asked how long they’d been there already. Juan Carlos responded three months.
“He said, ‘Well, they haven’t done anything to you yet,’” Juan Carlos recalled in Spanish.
While the document given to Juan Carlos is a summary of the questions and answers of their conversation rather than a full transcript, it does indicate that Juan Carlos said that he did not feel safe in Mexico and that he had a fear of being removed from the United States.
He was not given the opportunity to talk to an asylum officer about his fears.
“We’re human beings,” Juan Carlos said. “No one wants to die, not an American, not a Salvadoran, not a Nicaraguan. We’re looking for protection, for help.”
Karen, a 28-year-old woman from Honduras who came with her three children, similarly told CBP that she was afraid of being in Mexico. She had fled her country because of domestic violence and said she was afraid that the man who had abused her would find her in Mexico. He’d already been able to find her when she tried to change cities within her country, and she’d heard that he again knew her whereabouts.
(While there has been recent debate about whether claims of fear based on domestic violence should count for asylum, some survivors have been able to win their asylum cases and stay in the U.S.)
As she told her story to the CBP officer, documents show, Karen explained that she had been afraid to be in Mexico.
Instead of referring her for an interview with an asylum officer, the CBP officer asked, “Did anybody harm you or your children in Mexico?”
Karen responded, “No.”
“Did anybody threaten to harm you or your children in Mexico?” the CBP officer continued.
“No,” Karen said again.
Karen was returned to Mexico without being interviewed by an asylum officer. She said she cried when she found out she was going back to Tijuana.
Two Salvadoran men who were returned under the program said they weren’t asked if they were afraid to go back to Mexico. They said they weren’t able to bring up the topic on their own.
“They don’t let you express yourself,” the 18-year-old said. “They only ask their questions and nothing more.”
“They don’t let you talk,” the 29-year-old agreed. “We worried about them punishing us if we spoke out of turn.”
DHS officials said that a question at the end of CBP interviews asking if the asylum seeker has anything else he or she would like to say should serve as an opportunity for people to discuss such concerns.
Being interviewed by USCIS asylum officers is no guarantee that someone who expresses fear of being in Mexico will be kept out of the program. The Department of Homeland Security opted to use a higher legal standard for a person’s claim of fear in implementing MPP than the one used during credible fear interviews, the initial step in the asylum process if the person is not returned to Mexico.
Under the MPP standard, the official has to determine that it is “more likely than not” that the migrant will be persecuted or tortured in Mexico in order to prevent his or her return.
Gelin, a 29-year-old woman from Honduras who came with her 13-year-old son, was evaluated by an asylum officer after explaining to CBP that she had been robbed in Mexico two weeks before asking for asylum. She, too, was returned.
When asked about cases of those who had been sent back without referral to USCIS, officials with the CBP and DHS maintained that CBP officers refer migrants to asylum officers.
“Everyone’s trained to take very seriously our commitments under international treaties,” said a senior DHS official speaking on background. “We will never send someone back to a country where it’s more likely than not that they will be harmed or tortured.”
CBP said that it could not comment on specific cases but said that it “processes each case individually and with integrity.”
In recent weeks, the Trump administration has begun ramping up the MPP program, which began as a pilot at the San Ysidro Port of Entry in late January and sent back single adults from Guatemala, Honduras and El Salvador who had asked for asylum through the port. It later expanded to include families from those countries and then people from those countries who asked for asylum after crossing the border illegally.
Last week, U.S. officials announced that the program is also now operational at the port of entry between Calexico and Mexicali. According to the officials, 240 migrants had been returned through the program through March 12.
Court hearings also began last week for those enrolled in the program. So far, eight returnees have told judges that they are afraid to go back to Mexico.
A woman who had her first hearing on Thursday told Immigration Judge Scott Simpson that she wanted to come back as soon as possible because she was scared of spending more time in Mexico.
“I have problems being in Mexico,” she said. “I was kidnapped, and I was going through a very difficult time.”
“You were kidnapped in Mexico?” Simpson repeated.
“Yes,” the woman said.
Simpson asked the government attorney what would happen to her, and the attorney assured him that the woman would be referred to an asylum officer for further questioning.
Those who said they were afraid to go back were held in custody at the port of entry overnight before their interviews were conducted, according to Ian Philabaum from Innovation Law Lab, an organization that has been working with several asylum seekers in a class-action lawsuit over the legality of the Remain in Mexico program. Philabaum had not yet heard whether any of them had received decisions about where they would be released.
Philabaum said that many of the asylum seekers told him that they felt intimidated during their initial conversations with CBP officers. Several who spoke to the Union-Tribune described the officers’ behavior as “rude” and said they felt nervous while they were questioned.
Carolina Martin Ramos, an immigration attorney and former asylum officer, said she’d also observed issues with CBP’s questioning when she recently worked in Guatemala supporting deported parents who were separated from their children at the border by the Trump administration. From her interviews, she said it seemed as though CBP officers had started doing “mini asylum interviews.”
Sometimes the officer would tell the migrants that they didn’t have valid claims, she said.
“That wasn’t for them to determine,” Martin Ramos said.
Similar lines of questioning appear in many of the CBP documents obtained by the Union-Tribune.
“Have you or your children ever been persecuted because of your political party, religion, race, nationality, or participation in a particular social group?” an officer asked one of the MPP returnees, per CBP documents.
Many seeking asylum may not understand what those terms mean, Martin Ramos said. The woman who was asked this particular question told the CBP officer that she had a sixth-grade education.
Other questions to returnees documented by CBP included whether the person received any legal advice prior to asking for asylum.
“Knowing about asylum shouldn’t change the case,” Martin Ramos said. “It sounds like the government is trying to make a case against activists and attorneys who tried to help.”
When asked about the lines of questioning by its officers, CBP said, “Responses may open a line of questioning not readily apparent to a CBP officer and lead to additional questions clarifying the relevance of a prior response. Additionally, prior questions and answers to oral statements are often validated and documented in written format on sworn statements.”
Volunteer attorneys working with Al Otro Lado, a legal services organization in Tijuana, have stood in the El Chaparral plaza every morning for months trying to prepare asylum seekers before they’re taken in to the San Ysidro Port of Entry for processing.
The organization recently filed a complaint with Mexico’s National Commission on Human Rights after Mexican immigration officials blocked access to asylum seekers preparing to enter the port. According to Al Otro Lado, officials threatened volunteers with deportation if they didn’t comply.
“The targeted harassment of volunteers providing humanitarian aid and legal orientation to migrants to asylum seekers trapped in Tijuana is a coordinated effort between the U.S. and Mexican governments to trample the human rights of refugees,” said Nicole Ramos, an attorney with Al Otro Lado. “Unfortunately, most of the names of the migrants murdered in Mexico as a result these policies and shameful practices will never be known.”
Two attorneys with the group recently had their passports flagged and were blocked from entering Mexico, and Ramos appeared on a list of advocates, attorneys and journalists maintained by the U.S. to investigate people who had interacted with the migrant caravan that arrived in Tijuana in November.
A federal judge in Northern California will hear arguments today on a motion for a preliminary block on the Remain in Mexico program brought by several returnees and advocacy groups.
In fiscal 2017, the most recent year with government data available, immigration judges granted asylum in 20 percent of the cases that came before them. They denied asylum in 34 percent of those cases, and the remaining 46 percent of cases were closed without a decision on the asylum merits, according to the Executive Office for Immigration Review.
The agency changed the way that it calculates asylum grant rates in fiscal 2017. Under the previous method, which only looked at cases in which immigration judges made a decision on the asylum merits and is still used by organizations like Transactional Records Access Clearinghouse of Syracuse University, judges granted asylum in 38 percent of cases and denied asylum in 62 percent of cases in fiscal 2017. In fiscal 2018, TRAC’s calculated denial rate rose to 65 percent, meaning 35 percent were granted asylum.
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