Refugees, Asylum Seekers and the US

• According to the Washington Office on Latin America (WOLA), “The right to seek asylum upon reaching U.S. soil at the U.S.-Mexico border is established by Section 208 of the 1952 Immigration and Nationality Act (INA), the fundamental U.S. immigration law. This right exists regardless of nation of origin, the route taken to the border, or the means by which the migrant crossed into the United States.”
• A new agreement signed in October 2022 stranded tens of thousands of Venezuelans in Mexico or en route to the United States with no opportunity to access the U.S. Those who were already en route – estimated to be over 50,000 – were ineligible to even apply to enter the United States. Additionally, this agreement only applies to Venezuelan residents with a U.S. sponsor who will “provide housing and other supports” and pay for their flights because the only way to enter the United States under this new agreement is by air.
• CBP detention facilities operated with an average census of over double their capacity during some months of Fiscal Year. According to the CBP Newsroom, border patrol facilities in the southwest (the border with Mexico) have a capacity of approximately 5,600 prisoners. While every month in 2022 was over capacity, March, May and September 2022 saw more than two prisoners for every cell. In December 2021 (included as part of FY 2022), there was a daily average of 12,449 prisoners in facilities with a capacity of less than half that.
• A Safe Third Country agreement means that if an individual traveled through a country deemed a “safe third country” by the U.S. government, they would be returned to that country to apply for asylum rather than having the opportunity to apply for asylum in the U.S. Currently, the U.S. has a limited safe third-country agreement with Canada (asylum seekers in either direction are returned).
• While not technically a Safe Third County agreement, the
  U.S. and Mexico reached an agreement at the beginning of May 2023 that allows the U.S. to return asylum seekers who cross through Mexico from Haiti, Cuba, Nicaragua and Venezuela. The U.S. agrees to take applicants from several of these countries who apply from overseas and have a U.S. sponsor. Mexico also processes expulsions from citizens of Guatemala, Honduras and El Salvador.

The Migrant Protection Protocols, also known as the “Remain in Mexico” program, forced migrants to return to Mexico to wait for an asylum hearing. This program is currently caught in legal wrangling, with a mid-December 2022 ruling not allowing the Biden administration to rescind it, as per the June 2022 Supreme Court

However, the December ruling did not require the Biden administration to reinstate the policy. Mexico’s Ministry of Foreign Affairs announced in February 2023 that it would reject all efforts to reinstate the policy. From 2018 to mid-August 2022, the Remain in Mexico program sent over 70,000 asylum seekers back to Mexico, where they faced dangerous living conditions and risks of violence and assault from gangs.

Human Rights First, as of December 15, 2022, “tracked over 13,480 reports of murder, torture, kidnapping, rape, and other violent attacks on migrants and asylum seekers blocked in or expelled to Mexico” since January 2021.

The reasons people have for leaving their homes are as varied as the countries that they arrive from. Some are fleeing war, like Russia’s invasion of Ukraine or conflict in places like Myanmar and Yemen. Others are fleeing from countries ravaged by extreme poverty, multiple disasters, human rights violations, climate change, persecution and gang violence. Some are fleeing complex humanitarian emergencies in and around places like Venezuela and the Horn of Africa.

Meghan Lopez, the International Rescue Committee’s (IRC) regional vice president for Latin America, says, “People are usually displaced within their own countries first. … However, the vast majority encounter risks and deteriorating living conditions similar to the ones they fled, leaving them no choice but to seek safety elsewhere.”

Here are a few examples from IRC of the kinds of conditions and situations people are fleeing:

“Honduras is considered the most dangerous country in the region, with a homicide rate of 38 per 100,000 people. Gender-based violence is rampant; one woman is killed every 36 hours. With chronic gang violence, extreme weather caused by climate change and the impacts of COVID-19 worsening the crisis, the number of people in need of aid has more than doubled since 2020.

Venezuela is seeing one of the largest external displacement crises in the world, only behind Syria and Ukraine. Deteriorating living conditions, including rising hunger, economic instability and escalating conflict, have gotten even worse since the COVID-19 pandemic. Over 6 million people have left the country since 2014.

Even before the pandemic, basic public services were severely weakened, with over 30,000 doctors leaving the country during the last decade and a third of hospitals having no access to drinking water.

In Haiti, killings and kidnappings are on the rise, with 40% of the capital city Port-au-Prince controlled by criminal groups. Gangs also have control over ports and transport routes, blocking the flow of basic goods and hampering humanitarian access to deliver aid.

In the summer of 2021, the assassination of Haiti’s president was followed by a powerful earthquake and a tropical storm that hit within days of one another. Infrastructure and services in Haiti have been decimated in the last decade. Haiti is also experiencing the world’s longest recession, with an estimated 60 percent of the population living in poverty.”

Additionally, an October 2022 report from the United Nations Integrated Office in Haiti and the Office of the United Nations High Commissioner for Human Rights found: “Children as young as 10 and elderly women have been subjected to sexual violence – including collective rapes for hours in front of their parents or children by more than half a dozen armed elements – amid an explosion of gang violence in Haiti’s capital, Port-au-Prince …

Gangs use sexual violence to instill fear, and alarmingly the number of cases increases by the day as the humanitarian and human rights crisis in Haiti deepens … The gruesome testimonies shared by victims underscore the imperative for urgent action to stop this depraved behaviour, ensure that those responsible are held to account, and the victims are provided support.”

A New Humanitarian article from November 2022 stated that 96,000 people have been displaced by gang violence. It added, “Haitian women and children are not just being caught up in the country’s spiralling gang wars – they are increasingly being targeted for rapes, torture, kidnappings, and killings by the 200 armed groups that now control 60% of the capital. On top of the daily struggle to survive, many are being left with trauma or injuries from attacks.”

Asylum-seekers from South American countries like Colombia and Venezuela must cross the dangerous Darien Gap, a 65-mile stretch of jungle between Colombia and Panama, where they face poisonous snakes, insects, terrorist groups, unexploded Cold War-era bombs, and both organized and random acts of violence. Women and girls, as well as members of the LGBTQIA+ community, are especially susceptible to gender-based violence by other migrants and the criminals who prey on those seeking to reach the U.S.

Many asylum-seekers attempt to access the U.S. by purchasing services from criminal gangs specializing in human smuggling. This is a trade that is worth a combined estimated $6.75 billion every year on just two routes: Africa to Europe and South America to North America.

According to the New York Times, “Migrant smuggling on the U.S. southern border has evolved over the past 10 years from a scattered network of freelance “coyotes” into a multi-billion-dollar international business controlled by organized crime, including some of Mexico’s most violent drug cartels.”

Many of these criminals are deliberately misleading asylum seekers about immigration policies and conditions at the U.S. border through misinformation posted on social media. By taking advantage of the poor English skills and lack of education of many asylum seekers, this misinformation is designed to push people to use gangs of smugglers instead of attempting to make the treacherous crossing on their own. Despite the promises of support and organization, people who are being smuggled across the U.S. border are often left to fend for themselves in deadly situations.

Those who don’t try to cross by land can also find themselves in deadly situations. More and more often, asylum seekers from South America are attempting to reach the United States by sea instead of by land. In May 2022, a boat used for human smuggling capsized off Eastern Mexico, leaving three people dead – all migrants from Honduras. In the Gulf of Mexico, asylum-seekers from Cuba, Haiti and other countries are also seeking refuge by sea in growing numbers. In September 2022, 18 Cuban migrants were missing and presumed dead after their boat sank during Hurricane Ian.

According to the Missing Migrants Project, 2022 saw the highest number of deaths and disappearances of migrants in the Caribbean since recording began in 2014. There were at least 321 disappearances and deaths of whom, “66 were women, 64 men, and 28 boys, girls, and adolescents, while 163 remain unidentified.”

Tijuana shelters are already at capacity, and shelter directors are worried about what will happen if there is a surge on the border. Currently, there are 10,000 migrants in Tijuana, according to the Municipal Office of Migrant Services, with about half that number staying in one of the city’s 30 shelters.

The right to seek asylum is enshrined in both international and U.S. law. According to the International Rescue Committee, “People arriving at the U.S. border have the right to request asylum without being criminalized, turned back, used for political stunts or separated from their children.”

Those who arrive at a designated Port of Entry can apply for asylum immediately. Typically, they are transported to an ICE detention center where they will be interviewed to determine whether their claim for asylum meets the definition of credible or reasonable fear of persecution or torture. This process can take between two weeks and two months to complete, with the asylum seeker remaining in the detention center throughout the process.

If the interviewer determines that there is a credible fear, the asylum-seeker will face a second interview in which their asylum status will be determined. After this second interview, the asylum seeker may be granted asylum, along with their spouse and any unmarried children under 21. This also entitles an asylum seeker to receive applicable benefits. If they are not granted asylum, they will be processed for removal and have a final opportunity to present their case for asylum to an immigration judge. If the immigration judge does not grant them asylum, they are deemed inadmissible to the United States and removed under Title 8.

However, new legislation that went into effect on May 10, 2023, changes some of this process. Migrants will not be able to request asylum if they did not request refugee status in another country – including Mexico – as they traveled to the U.S. southern border. Migrants can try to get an appointment to enter through a mobile app. The rule will not apply to unaccompanied minor children.

Since the beginning of the COVID-19 pandemic, the United States has also used another section of federal law, known as Title 42, to remove people from the United States. People expelled under Title 42 were deemed inadmissible because the officer who first encountered or interviewed them believed they might spread COVID-19.

From March 2020 to March 2023, almost 2.8 million migrants were expelled at the U.S. – Mexico border, under Title 42.

According to Hispanics in Philanthropy,

“The traumatic consequences of Title 42 will still be present in our communities for a long time. What’s worse is the new set of policies that will make access to safe territory, asylum and rights protection difficult for migrants. In just the last few months, there has been a disturbing racial bias and challenges in the implementation of the CBP One app. The right to asylum cannot depend on one application. Even with complementary migration policies, such as the extended use of parole and the creation of regional processing centers, we remain concerned. These measures are only slight modifications to an unnecessarily complicated system that lacks fair protections or even an intentional strategy to address root causes for people fleeing violence or forcibly displaced in the Americas. Our allies have also highlighted over and over again that the structural causes of migration and displacement have not been addressed.”

The use of this legislation expired on May 11, 2023 (coinciding with the end of the U.S. COVID-19 Public Health Emergency.) It is believed that the end of this program will see a surge of migrant claims, especially at the southwest land border. Mayors of several cities along the southwest land border have already issued state of emergency declarations. The U.S. federal government has sent 1,500 active-duty troops to the border to help deal with the anticipated surge.

Some places, like Denver, Colorado, are already seeing a massive surge of asylum seekers, which is exceeding the ability of the city and state to respond without increased federal assistance.

CNN reported on May 9, that “US Customs and Border Protection has already seen an uptick in migrants crossing the border with Mexico, with more than 8,000 daily encounters, according to a Homeland Security official – a number that officials predict could reach 10,000 once Title 42 is lifted. There are around 25,000 migrants in custody, the official said, straining processing facilities that are already over capacity.”

According to the American Immigration Lawyers Association, “Conditions in CBP custody are notorious for their harshness and inadequacies. Whether inside or in outside holding ‘pens,’ CBP detains migrants in dangerous conditions. These facilities can be dangerously overcrowded, migrants forced to wear soiled or dripping wet clothes for days, and the only ‘hot meal’ offered are frozen burritos.”

In early 2021, hundreds of kids were found living in plastic sheathed “pods” designed for 260 – though some contained over 400 children. An investigation by Politico Magazine and The Marshall Project found that approximately 1 in 3 migrants held in border patrol detention centers were children. These kids were left to sleep on concrete floors with bright lights that interfered with their ability to sleep.

In September 2022, the American Civil Liberties Union (ACLU) called on the U.S.  government to close one of its detention centers run by CoreCivic, a for-profit company that earned $1.86 billion in 2021 – most of it from their prisons. The ACLU spoke out after a migrant committed suicide at the facility. The New York Times noted that there was a lengthy history of problems at this facility which houses only 160 immigrants – but where ICE pays for over 500 beds daily whether they are used or not. In October, Canadian immigration experts presented their case to the Supreme Court of Canada that the United States should not be considered a safe country to which migrants can return based on conditions for those detained in immigration facilities. In November 2022, a bipartisan review of conditions at an immigration detention center in Georgia found that immigrants “endured excessive, unnecessary gynecological procedures, often without consent.”

Asylum seekers are often subject to physical and emotional abuse from misinformed people who do not understand how the asylum and refugee process works. Thanks in part to partisan news sources that use inflammatory rhetoric, asylum seekers can be subject to race-based abuse or forced into illegal employment by people who threaten or manipulate them using their immigration status. Many are forced to live in homeless shelters, some of which are many miles from organizations that can provide employment, health and other supports.

Once they reach the United States and are granted permission to stay, asylum seekers may still be forcefully relocated by politicians and communities that are unwelcoming to asylees, migrants and refugees. Thousands of people granted legal access to the United States, whether through the asylum process or another process, have been forcefully relocated to “Sanctuary Cities,” where laws have been enacted prohibiting the removal of migrants and refugees. Republican governors in both Texas and Florida have sent asylees to places like New York City, Chicago, Washington D.C. and Philadelphia in what appears to be attention-seeking publicity stunts.

These relocations are unilateral, with refugees and asylees packed into buses and sent to cities that are unprepared to receive them and without coordination between those sending the refugees and the cities receiving them. In September 2022, Florida Governor Ron DeSantis paid for 48 asylees to be flown from San Antonio, Texas to Martha’s Vineyard without the knowledge of Texas Governor Greg Abbott or anyone on Martha’s Vineyard.

These individuals were reportedly recruited by a former military counterintelligence officer and then abandoned in Martha’s Vineyard with no support, and nobody prepared to meet them. Abbott has relocated 13,200 people from Texas to Chicago, D.C. and New York since April 2022. This is part of his plan to remove people crossing the borders into the state and has cost $26 million.

People who are denied entry into the U.S. are either returned to the country they crossed from (Mexico or Canada usually) or to their home country. The safe transit policies recently agreed upon between Mexico and the U.S. mean that individuals from several countries can be returned to Mexico, instead of their home country, an act that is significantly cheaper for the U.S.

Denial will rely heavily now on Title 8 legislation (mentioned above). According to the U.S. Department of Homeland Security, “Individuals who unlawfully cross the U.S. Southwest border: will generally be processed under Title 8 expedited removal authorities in a matter of days; will be barred from reentry to the United States for at least five years if ordered removed; and would be presumed ineligible for asylum under the proposed Circumvention of Lawful Pathways regulation, absent an applicable exception.”