Trouble at the border

Michael Goldhaber, IBA US Correspondent

Pic: Central American migrants walk during their journey towards the United States, in Villa Comaltitlan, Mexico, 18 April 2019 © REUTERS/Jose Cabezas]

While President Trump appears to have imagined a border crisis into being, the devastating human consequences are all too real.

Over the years, many US Presidents have attempted to galvanize support by creating their own myths. America’s 45th President, Donald Trump, likes to talk about a burly Mexican border-crosser who pretends to need asylum. ‘“I am very afraid for my life, I am afraid for my life”,’ the President imagines the man whining, in the version he gave at his first 2020 campaign rally in March. ‘Okay. And then I look at the guy. He looks like he just got out of the ring. He’s a heavyweight champion of the world. It’s a big fat con job, folks.’

The fraudster of the President’s fancy could hardly differ more from the actual asylum seekers of the southern border who step forward to challenge his policies in court complaints – often adopting pseudonyms. Alex Doe was an evangelical pastor who worked with the US Agency for International Development to discourage Honduran youth from joining gangs, until the Mara 18 gang tried to execute him while riding home on his motorbike, and left him bleeding in the street. Ian Doe was a Honduran policeman on the drug task force. After Ian refused to collaborate, narco-traffickers tried to kill him, but killed his brother instead. John Doe was a Guatemalan dog groomer who fed stray dogs tortured by a Ronderos de San Juan death squad. The thugs abused him with indigenous slurs, until they suspected him of reporting them for animal cruelty, at which point they killed the strays, left them at his doorstep, and vowed that he would suffer the same fate. ‘The death squad controls our entire community,’ observes John Doe.

In December 2017, a secret memo was circulated at the top levels of the US Homeland Security and Justice Departments, laying out ‘Policy Options to Respond to Border Surge’. This, despite the reality that border crossings were near a 40-year-low. In addressing an imaginary surge of illegal immigrants, the Trump administration has stoked a genuine surge of asylum seekers. ‘Their absurd responses to a phantom crisis created a new demand for asylum,’ says Brian Griffey, Regional Researcher/Advisor (North America) at Amnesty International. ‘And now there’s something of an emergency based on their international law-violating policies.’

In 2000, when migration was at its height, over 1.6 million border-crossers were caught, the vast majority single Mexican men in search of jobs. By 2016, that figure was 300,000. The numbers are expected to have ballooned again to as much as 800,000 in 2019. Equally important, the ‘nature of the migration has fundamentally changed,’ notes Leon Rodriguez, former Director of US Citizenship and Immigration Services. At the turn of the century, Central American families fleeing violence were scarcely in the picture. Now, for the first time, they form a majority of border-crossers.

The President speaks about Latin America ‘sending their worst’ to the US. If anything, this is the wrong way round. El Salvador perennially leads the World Economic Forum’s ranking of nations most plagued by organised crime, Honduras and Guatemala rank in the top five.

These nations form Central America’s troubled Northern Triangle. Their gangs emerged at the end of the region’s civil wars in the 1990s, when the US shipped back young men from gangs like MS-13 and Mara 18 that developed in Los Angeles (and US prisons). ‘Having left as boys, they returned as gangsters,’ notes Roberto Saviano in his essay ‘The Migrant Caravan: Made in USA’. Many of those gangsters were toting American guns; the Center for American Progress traces nearly half of the crime guns in El Salvador and Honduras to the US.

Then, in an equally crucial shift – after the US ramped up the Mexican War on Drugs in the late 2000s – Mexican drug cartels adapted by trafficking Colombian cocaine to the US via the Northern Triangle. Gangs best known for extortion developed a nasty sideline as hitmen for the drug cartels. In 2016, El Salvador led the world with a murder rate of 83 per 100,000, and Honduras placed second with 57. That’s ten to 15 times the US murder rate, which is the highest in the developed world, and comparable to the rate of war deaths in Afghanistan.

‘In the face of this growing humanitarian challenge, the administration’s answers have all been punitive,’ says Doris Meissner, Director of the US Immigration Policy Program at the Migration Policy Institute.

‘We’re stuck in an outdated enforcement-first mindset designed for economic migrants, and that’s why we see children in cages,’ says Sarah Pierce, a policy analyst for the US Immigration Policy Program. ‘The President’s punitive measures have only backfired.’

President Trump calls asylum an immigration law ‘loophole’. But protecting migrants is often the point of immigration law. The right to asylum lies at the core of the 1951 Refugee Convention, embodied in the US Immigration and Nationality Act. That means giving asylum seekers access to fair procedures on the host nation’s territory – and not sending them back to where they fear for their lives. The principle of ‘non-refoulement’, enshrined in the Protocol Relating to the Status of Refugees and the Convention against Torture, has acquired the status of a fundamental principle under customary international law. The President is ‘attempting by fiat to destroy a system established by the will of Congress in accord with international law,’ says Karen Musalo, Director of the Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic at University of California Hastings College of the Law. We’ve seen ‘an unrelenting series of attempts to eliminate’ asylum.

Family separation

It began with family separation. On 7 May 2018, then Attorney General Jeff Sessions announced a strict policy of prosecuting illegal border-crossers, even if accompanied by children. Over 2,700 migrant children were stripped from their parents in a matter of weeks. The Homeland Security Inspector General found that ‘thousands’ had been separated earlier. Amnesty International documented border agents telling parents seeking asylum at legal ports, ‘you don’t have any rights here’ as they tore away their children.

President Trump insists that his predecessor practised the same policy of family separation. This comes as news to President Obama’s Assistant Secretary for the Administration for Children and Families of the Department of Health and Human Services, Mark Greenberg. ‘We separated children only in the best interests of the child, for instance if a father was abusive,’ he says. ‘At the end of 2016 it was about six kids a month – the numbers were so low I didn’t even realise we were doing it.’

Under the Obama administration, thousands of children who arrived without parents were detained, but with the aim of reuniting them with family. For unescorted children in Trump’s administration, the approach is that where possible, relatives who step forward to take their custody should be deported. ‘Trump erased the line between enforcement and child welfare,’ says Greenberg. ‘And that made families fearful to come for their children.’ The net result is that more children filled shelters, and fewer left. A new tent city of 3,800 children mushroomed in Tornillo, Texas. ‘I don’t like to use adjectives about anything,’ says Greenberg, ‘but the way the Trump administration treated families last spring is the most horrendous thing I’ve ever seen in my career.’

On 20 June 2018, in the face of extreme international outcry, President Trump halted family separation. Six days later, San Diego federal judge Dana Sabraw declared family separation unlawful. ‘The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property,’ Judge Sabraw concluded in Ms L v ICE. ‘Certainly, that cannot satisfy the requirements of due process.’ The judge demanded family reunification, and the government is complying, though significantly hampered by shoddy record-keeping.

Yet, by the same executive order that ended family separation, the Trump administration sought to indefinitely detain children and parents together. In July, Los Angeles federal district judge Dolly Gee quickly ruled this unlawful, calling it a cynical attempt to unravel the longstanding Flores consent decree, which caps child detention at 20 days. Undeterred, the Trump administration went back to its secret options memo, and proposed family detention by both legislation and regulation. But these options are unlikely to be successful, largely because the Republicans lost Congress, and because regulation must satisfy Judge Gee.

For the time being, the President has given up on separating or detaining families, and looks for other ways to deter asylum seekers. In June 2018, the Attorney General abruptly reversed Obama-era precedents recognising a right to asylum based on private violence. ‘Generally,’ he decreed, ‘claims by aliens pertaining to domestic violence or gang violence... will not qualify for asylum’. No ruling could better target the Northern Triangle. ‘Domestic violence is rampant in these countries, as is gang violence,’ notes Judy Rabinovitz, Deputy Director of the American Civil Liberties Union’s Immigrants’ Rights Project.

Sometimes, a legal tweak can do more damage than abject physical cruelty. Asylum approval rates, already down from 43 per cent to 30 per cent in two years, seemed sure to plunge further. But, at the end of last year, DC federal judge Emmet Sullivan blocked the new policy, pending appeal, stating there’s ‘no legal basis for an effective categorical ban on domestic violence and gang-related claims’.

The President has already expressed his wish for a categorical ban. ‘When somebody comes in,’ he tweeted in the summer of 2018, ‘we must immediately, with no Judges or Court cases, bring them back from where they came’ and ‘When people, with or without children, enter our Country, they must be told to leave… Tell the people “OUT,” and they must leave, just as they would if they were standing on your front lawn.’

In November, the President officially proclaimed an asylum ban on those who cross the Mexican border between legal ports of entry. Just 12 days later, San Francisco federal judge Jon S Tigar granted a temporary restraining order to halt the asylum ban nationwide. East Bay Sanctuary Covenant v Trump provisionally found the ban at odds with the Immigration and Nationality Act proviso that any alien who arrives in the US, ‘whether or not at a designated port of arrival’, may apply for asylum. This January, the Supreme Court kept this injunction in place while the asylum ban is litigated on the merits.

What about those who seek asylum at legal ports of entry? At least as far back as April 2018, activists allege that the Trump administration has followed a policy, practice and pattern of ‘turning back’ migrants who seek asylum where they’re supposed to. According to the complaint filed in San Diego federal court this autumn in Al Otro Lado v Nielsen, US Customs and Border Protection has manufactured severe bottlenecks at legal border-crossing points by artificially restricting their capacity and adopting a waiting list or ‘metering’ policy. Of course, if crossing at ports of entry is impracticable, and asylum between points of entry is banned, the border would effectively be sealed.

With family separation and the asylum ban blocked in court, and the ‘turnback policy’ under challenge, the Trump administration turned to their favoured long-term option from the leaked memo: ‘Remain in Mexico’. The ‘Migrant Protection Protocols’, as they’re euphemistically known, have been tested since January at a crossing between San Diego and Tijuana, and in some other sectors since March. The idea is to force migrants to await their asylum hearings in Mexico. The stress on Mexican society will obviously be immense. For the moment, however, Mexico is cooperating to curry favour with President Trump on trade, perhaps hoping that US courts will void the policy.

The problem, activists argue, is that Mexico isn’t safe for migrants. Along the migration route, gangs routinely kidnap those passing through, holding them for ransom – or worse.

In Tamaulipas, on the Texan border, a group of 72 migrants were massacred by the Zetas cartel in 2010. In the same state, this February and March, two busloads of Northern Triangle migrants were kidnapped en masse, while a third busload (including 15 children) was rescued. It is little wonder that the US State Department treats Tamaulipas and four other Mexican states like war zones in its travel advisories. Vulnerable and stigmatised, Central Americans in Mexico must also contend with street and hate crime. Mexican police are often indifferent, and sometimes predatory. In 2017, Médecins Sans Frontières found that over two-thirds of Northern Triangle migrants face violence on their journeys, and nearly a third of the women suffer sexual abuse. Howard Doe, for instance, alleges that he was kidnapped by cartel Los Zetas in Mexico en route from Honduras. After escaping, he was mugged for his phone in Tijuana, on the California border. Grimly, one of the few spots on earth with a higher murder rate than the Northern Triangle is Tijuana (close to 20 times the US rate), where America now deposits asylum seekers for their safety. Travelling by caravan is more a desperate strategy of self-protection than an invasion tactic.

The plaintiffs in Innovation Law Lab v McAleenan say ‘Remain in Mexico’ lacks support in the statute’s text, while disrespecting the rights to counsel and non-refoulement. San Francisco federal judge Richard Seeborg temporarily enjoined the policy in April. But, whereas the ‘asylum ban’ is void pending appeal, the Ninth Circuit is allowing America to make migrants stay in Mexico while the courts deliberate.

A key issue is whether the US still honours the right to apply for asylum without fear. On paper, America won’t return someone who asserts that they fear returning, and is deemed ‘more likely than not’ to be persecuted. In practice, asylum officers are reportedly under heavy pressure to return all migrants to Mexico. When they don’t, they’re likely to be overturned.

Immigrant children are led by staff in single file between tents at a detention facility next to the Mexican border in Tornillo, Texas, US, 18 June 2018 © REUTERS/Mike Blake

Family separation 2.0

Through each of these policy experiments, migration has continued to rise. In 2019, unescorted children have been coming at a record pace, and families at a wholly unprecedented level. From October 2018 to May this year, Border Patrol caught 45,000 stranded children (up 73 per cent), and 250,000 family members – five times as many as the same period a year earlier. ‘It’s hard to say there’s no crisis now,’ says Rodriguez.

We can’t know what’s driving the Trump-era migration. But the flow is unusually dominated by families, and the upward trend began in summer 2018, after the President halted family separation. To the Migration Policy Institute, this suggests that Trump’s actions are at least partly to blame. Central American families or their recruiters saw the start-and-stop nature of Trump’s policies and decided they should travel north while they could.

The surge that followed has made the President seethe. At the turn of the year, he forced a government shutdown in order to pressure Congress to fund a border wall. This failed. In February, he declared a national emergency to justify $6bn in executive funds, setting off a new round of litigation.

‘[W]e’re turning to what some folks might think [are] extreme measures,’ Chief of Staff Mick Mulvaney publicly stated in late March. The same week, the President reportedly ordered the Mexican border to start closing to all trade and traffic, until he was talked down by Mulvaney. Subsequently, the President ordered the State Department to cut off $500m in humanitarian aid to the Northern Triangle. Virtually anyone who knows anything about either migration or Central America was apoplectic. The Northern Triangle has accounted for 95 per cent of families and 83 per cent of stranded children crossing the border in 2019. What could America gain from defunding efforts to dissuade Honduran youth from joining gangs? The President was halting the only programmes that struck at the root of the problem. Five ex-chiefs of the US Southern Command in Latin America, including a favourite Trump general, declared the US was cutting off its nose to spite its face. But this time no one could talk the President down.

With his preference for punitive solutions, the President circled back to family separation, reportedly spending four months pressuring then Homeland Security Secretary Kirstjen Nielsen to renew the practice. ‘He just wants to separate families,’ a top administration official said. ‘At the end of the day, the President refuses to understand that [we are] constrained by the laws.’ On this account, Nielsen privately resisted. In early April, she resigned.

Though it hardly seemed possible, the pace of immigration reform accelerated. On 16 April, the Attorney General William Barr ended bail for asylum seekers, pending litigation. On 29 April, the President announced he would charge fees for asylum, limit immigration cases to 180 days, and raise the total of troops or National Guards at the border to 5,200. On 30 April, the President asked Congress for $4.5bn in non-wall border funds, including $2.8bn for children’s shelters. ‘So you create chaos,’ says Democratic Representative Katherine Clark, ‘and then ask for more money?’

More chaos is sure to come, and it might take the form of family separation. Trump lawyers know that Flores limits child detention, and Ms L bars family separation. But on their theory, it’s fine to make parents choose either to be warehoused with their children (waiving their Flores rights), or to give up custody of their children (waiving their Ms L rights). ‘Forcing families to choose between indefinite incarceration and family separation is no choice at all,’ says Human Rights First. The White House calls the idea ‘binary choice’, while critics call it Family Separation 2.0, in an allusion to the court-approved Travel Ban 3.0. ‘Unfortunately, I think their model is the Muslim Ban,’ says Griffey. ‘Adopt manifestly illegal policies and then invite court challenges. Once you lose, try to squeeze the policy through the courts in altered form even though it still violates international law.’

Is there a legitimate aim to all these policies? In 2017, the Committee against Torture clarified that states can’t drive away asylum seekers with ‘dissuasive measures’. In RILR v Johnson, a DC federal court held that a President can’t act ‘for the purpose of deterring future immigration’. Rights advocates accuse President Trump of doing exactly that, again and again.

‘The government wants to deter asylum seekers from coming in any way it possibly can,’ says Melissa Crow, Senior Supervising Attorney at the Southern Poverty Law Center.

‘It’s like you’re at the dike and there’s one hole here and another there, then another, and you’re just going from plugging one hole to the next,’ says Rabinovitz, who’s clear on the motives for all of these moves: ‘“We’ll do what we can to keep people from coming.”’

Secretary Nielsen denied this. But the December 2017 memo predicted family separation would have ‘a substantial deterrent effect’. An April 2018 memo to Nielsen said it would ‘have the greatest impact on current flows’. The President told Fox News in April: ‘When they used to separate children... far fewer people would come... [Then] we go out and we stop the separation. The problem is, you have ten times more people coming up with their families. It’s like Disneyland now.’

Christopher Hajec, Director of Litigation at the Immigration Reform Law Institute, says their aim was ‘to deter illegitimate asylum claims – and that’s not unlawful’. Chief of Staff John Kelly said they merely aimed to deter people from risking their lives on a ‘terribly dangerous’ journey.

‘That’s just a false narrative,’ retorts Rabinovitz. ‘The goal of all these policies is to shut the border instead of setting up a meaningful process to determine who has valid asylum claims.’

Ghita Schwarz, Senior Staff Attorney at the Center for Constitutional Rights, goes much further. The attack on asylum is ‘about demolishing people in a weak position and demolishing people who are facing violence,’ she says. ‘Part of it is racial and part of it is just cruelty.’ Schwarz points out that the President has pending lawsuits relating to the deportation of a million Latinos. That includes over 600,000 Mexican ‘Dreamers’ (those who entered America illegally as children) and some 400,000 Salvadorans, Hondurans, Haitians or Nicaraguans who were given ‘temporary protected status’ during times of crisis.

‘I don’t think it’s racist when some of the prime victims of the current system are the migrants themselves,’ says Hajec. ‘These bodies they’re finding on ranches on the border as a matter of routine in various degrees of decomposition are those of migrants.’

At the rallies where he speaks his mind, the President doesn’t dwell on the suffering of migrants. His concern is those who are ‘caught and released’. ‘You say, “Come back in three years for your trial.” Tell me what percentage of people come back?’ he said to a crowd in January. ‘Would you say 100 per cent? No, you’re a little off. Like how about two per cent? [Laughter] And those people you almost don’t want, because they cannot be very smart. Two per cent. Two per cent. Two per cent come back. Those two per cent are not going to make America great again, that I can tell you.’

Like many of the President’s numbers, this ‘two per cent’ is a mystery to those in the know. On the contrary, a California Law Review study of immigration hearings from 2001 to 2016 found that ‘family members seeking asylum who were released from detention’ showed up 96 per cent of the time. Homeland Security’s own experts testified in the Senate last year (based on 2014 data on the Mexican border) that the rate of family members showing up to hearings is 47 per cent.

The President would like to shift the decision on asylum from immigration judges to the gung-ho border patrol (among his fiercest partisans). Meissner and Pierce would prefer to shift the final asylum decision to asylum officers, who are already trained to make initial assessments. ‘We’d like to see asylum officers make the ultimate determination within a month or two,’ says Pierce.

Rodriguez led the asylum officers as Obama’s head of Citizenship and Immigration Services. His advice is to hire more immigration judges. ‘Don’t build a wall,’ he urges. ‘Build courtrooms.’ The wall is simply irrelevant for today’s core border crisis. ‘Earlier waves of migrants were predominantly economic,’ says Rodriguez. ‘Their goal was to go to remote areas and sneak across. Now the drivers of migration are humanitarian. These people want to get caught.’

According to recent Gallup, Pew and Politico polls, a record three-quarters of Americans say immigration is good for the country. The same proportion approve a strong border patrol. However, only a quarter favour child separation, only 30 per cent wish to make asylum harder – and only 40 per cent want a wall.

Musalo, co-author of Refugee Law and Policy, says immigration courts need to be improved, not just expanded. In 2018, the Attorney General voided the right of asylum seekers to a hearing, limited immigration judges’ discretion, and gave each an annual quota of 700 cases. ‘Immigration judges are treated as minions of the Attorney General, and they’re getting a clear message not to grant asylum,’ says Musalo. In the future, she’d like them to be given independence, vetted for judicial temperament and trained rigorously.

Of course, the best solutions would significantly diminish the demand for immigration judges by improving conditions in Central America.

Back to the border

Seven-year-old Jakelin Caal Maquin liked climbing the trees near her family’s dirt-floor hut in the rural Mayan township of Raxruhá, Guatemala. Her father, who harvested corn and beans for $5 a day in a region under stress from climate change and deforestation, mortgaged his small farmholding to pay smugglers to bus them to the US border. He bought Jakelin her first pair of shoes for their hike through the New Mexico desert.

Jakelin and her father joined a caravan of about 150 Central American families and children who sought out the US border patrol and surrendered with the goal of seeking asylum. In every respect, her group typifies today’s migration on the US–Mexico border. Jakelin died on 8 December 2018 of a bacterial infection after a night in US custody near Antelope Wells, a ghost town inhabited by only a handful of well-meaning border agents, who were not equipped for an influx of families. The story of Jakelin’s tragic death provides a snapshot of the Southern migration.

She didn’t resemble the ultimate Mexican fighter of President Trump’s imagination. Neither did she resemble the martyrs who populate legal test complaints, tailor-made for US asylum. Jakelin was selected by fate rather than by the President or the American Civil Liberties Union. So was eight-year-old Felipe Alonzo-Gomez, who also hailed from a remote village of Mayan farmers in Guatemala, and died in the custody of US border patrol on Christmas Eve 2018. Jakelin and Felipe were not bad hombres with bulging biceps. Like so many others, they were probably mainly economic migrants, who can be seen as victims of a complex humanitarian disaster.

‘So what if some people are just coming because they’re poor?’ asks Rodriguez. ‘If our answer as the wealthiest, most powerful country on earth is to say, “Screw you, you’re not our problem,” then we need to have a new national conversation… At the end of the day, I believe our national consensus is pro-immigrant and pro-humanitarian.’

Jakelin deserved a fair, swift hearing based on clear thinking about America’s national priorities. What Jakelin didn’t deserve was a choice of cruelties based on a myth.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org