Violations of human rights under “Remain in Mexico”: Unchecked but not Unresisted

Murals on the border wall, seen from the Mexico side at Playas de Tijuana. Here, at the Binational Friendship Garden, families separated by the border have reunited Saturdays and Sundays between 10am-2pm for years. It is one of the few places along the border where visits are possible, but Border Patrol has recently tightened restrictions. Photo courtesy of Analucia Partida Borrego.

The United States is eliminating access to refuge right before our eyes. First, we heard about the new “zero tolerance” policy, which began criminalizing all irregular entries on the southern border. Then, we watched zero tolerance morph into family separation, wondering how a government could be so cruel as we saw media images of kids in cages. As both of these became the new normal and as the shock wore off, the government quietly began violating international law by forcing asylum-seekers to “remain in Mexico.” This time, the horrors would happen somewhere else, across a border and out of our sight. Since the “Remain in Mexico” policy, formally referred to as the Migration Protection Protocols (MPP), was implemented on January 25, 2019, over 62,000 asylum-seekers have been expelled to the Mexican border cities of Tijuana, Mexicali, Ciudad Juárez, Nuevo Laredo, Matamoros, Piedras Negras, and Nogales to wait while their asylum process develops in U.S. immigration courts, a process that can take as long as 700 days. The policy applies to any person arriving as a migrant without documentation, including those exercising their legal right to request asylum.

The majority of MPP subjects originate from Honduras, Guatemala, Cuba, El Salvador, Ecuador, and Venezuela, in that order. Primary drivers for fleeing these countries include insecurity, violence, corruption of state officials, impunity for organized crime, persecution based on aspects of one’s identity and opinions, and political, economic, and humanitarian crises. Many of their reasons for uprooting fit the qualifiers for asylum under the Geneva Convention of 1951- which defines a refugee as someone who flees due to well-founded fear of persecution based on their race, religion, nationality, membership of a particular social group, or political opinion - or for complementary protection.

Graphic courtesy of Hope Border Institute

Outsourced asylum, externalized enforcement, and impossible odds

During their wait in Mexico, MPP subjects are left on their own without support or resources. Thus, thousands are trapped on Mexico’s side of the border in precarious situations, lacking access to housing, health services, education, and formal employment. The few migrant shelters in the region are overwhelmed and overpopulated, lacking adequate space and resources to serve everyone who needs their services. Informal tent encampments have sprung up, where people endure extreme conditions. The absence of documentation to prove their unique MPP status while in Mexico leaves them at risk of exploitation from informal work and vulnerable to unlawful deportation.

Furthermore, these border cities are laden with risks for asylum-seekers, including kidnapping, extortion, theft, torture, assaults, gang violence, and trafficking - many of the same dangers that they are fleeing from in their home countries. Human Rights First tracked 816 publicly reported cases of these attacks on individuals returned under MPP in the first year of the policy. As many as 60-80% of migrant women and girls are raped in transit through Mexico, and 4 out of every 10 migrants are victims of kidnapping, often accompanied by extortion. Actual numbers are likely much higher, as this includes only reported incidents. The U.S. government has issued alerts for its own citizens warning against travel to the same states where it sends asylum-seekers, such as Tamaulipas, where the State Department has issued a level 4 alert.

Added to the above is a detrimental lack of legal advice and representation for asylum-seekers returned to Mexico, who are seven times less likely to find an attorney to represent them than those permitted to wait in the U.S. Data from the Transactional Records Access Clearinghouse at Syracuse University shows that since MPP began, there have been a total of 62,687 cases, of which, only 3,856 have had legal representation. 19,622 cases are still pending, and 31,151 cases have received a negative decision and deportation order. 11,411 cases have been terminated or closed, mostly due to the obstacles preventing subjects from showing up for their hearings. To date, only 481 MPP subjects have been granted the recognition of refugee status in the U.S, a mere 0.7% of all people placed in MPP proceedings.

Figure 1. Status of 62,687 total MPP cases to-date

Data from Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

Figure 2. Legal Representation in MPP Cases

Data from Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

Figure 3. ‘Finding Representation Difficult if Immigrant Must Remain In Mexico.’ Source: Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

The past year has provided plenty of evidence that the Migrant Protection Protocols achieve the farthest thing from protection. The policy puts asylum-seekers in danger and fails to respect their most basic needs. MPP is a systematic violation of human rights, due process, and the right to asylum under international law, namely the principle of non-refoulement defined in the 1951 Geneva Convention and the 1967 Protocol Relating to the Status of Refugees, to which the U.S. is one of 146 signatories.[i]

The principle of non-refoulement is a guiding standard appearing in the core human rights instruments that “prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill treatment or other serious human rights violations.” The principle applies universally, irrespective of migration status. MPP violates all of the following guarantees of non-refoulement:

• That migrants should not be sent to a territory where their life or freedom would be threatened, or to a country which might send them to such a place;

• that refugees must be provided with a legal status, including rights such as access to employment, education and social security; and

• that refugees should not be punished for entering irregularly without a passport or visa – which is almost always the only way to make an asylum claim.

Resistance and legal challenges

The United States’ violation of non-refoulement has gone largely unchecked by the international community and human rights bodies. The Inter-American Court of Human Rights conducted a monitoring visit to the border and issued recommendations to remedy the “serious impact of U.S. migration policies on the effective enjoyment of human rights by migrants, asylum-seekers, and refugees who seek international protection,” and reminded the U.S. of its commitments and obligations to abide by the principle of non-refoulement and protect human rights under the Charter of the United Nations; the Universal Declaration of Human Rights; the Protocol Relating to the Status of Refugees; the American Declaration; and the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, among other UN and Inter-American System mechanisms. However, the lack of tangible consequences beyond verbal rebukes highlights the weakness of these instruments, even those that are binding, and the imbalanced power the U.S. holds that seems to place it above the law.

Lawyers, civil society organizations, and the public on both sides of the border have expressed their outrage for the systematic violation of human rights and the level of vulnerability of the returned MPP population, and have stepped up to fill the severe gaps in responding to their needs. Migrant shelters in Mexico’s northern border region are supporting as many asylum-seekers as they have capacity for, with the help of volunteer support and donated supplies. Organizations throughout Mexico’s entire territory are responding to the heightened needs of asylum-seekers who face an increasingly difficult trajectory northward. With the U.S.’s southern border essentially becoming closed to refugees, people are now opting to claim asylum in Mexico rather than take their slim chances. Data from the Mexican Commission for Refugee Assistance shows that 70,302 people requested asylum in Mexico in 2019, in comparison with 29,630 the prior year.

To address the critical lack of legal aid available to MPP subjects, binational legal advocacy organization Al Otro Lado launched their Tijuana Border Rights Project, which implements weekly legal orientation clinics to assist pro se litigants with asylum application paperwork and preparation for their court hearings. Al Otro Lado has also teamed up with VECINA to launch a pilot program that connects pro bono attorneys with asylum-seekers needing their representation, and offers training to equip attorneys without prior immigration experience. Citizen activism networks of remote volunteers are mobilizing online to fulfill one-off requests for preparation of legal documents, research for country condition reports, and translation of documents and phone calls posted by organizations representing MPP clients. In one of these networks, the “Border Crisis Volunteers” Facebook group, posts requesting assistance receive comments from people from all over the U.S. offering their time and skills in a matter of minutes.

An MPP subject holds up the I-589 asylum application packet, an extensive document which they must understand and complete in English, often without any access to legal orientation or support.

Photo courtesy of Analucia Partida Borrego.

Data tracking has been a less visible but equally important component of resistance efforts, essential for bringing transparency to this otherwise clouded policy. Syracuse University’s TRAC Immigration initiative has been at the forefront of capturing MPP data, using Department of Homeland Security documents accessed under Freedom of Information Act requests. Their online portal is updated every month and allows the user to track MPP cases by hearing location and attendance, representation, nationality, month and year of case, outcome, and current status. In another effort to increase transparency, Al Otro Lado and Innovation Law Lab teamed up to launch a court observation program in June 2019, which placed volunteer observers in each courtroom hearing MPP cases in San Diego every day of the week to track trends and shed light on abuses of due process. Citizen action and civil society solidarity have been remarkably strong in the face of this unjust policy.

In the absence of accountability from international and regional bodies, organizations have turned to domestic legal avenues to challenge MPP. The American Civil Liberties Union, Southern Poverty Law Center, Center for Gender & Refugee Studies, and partner plaintiffs united to bring a lawsuit to federal court, utilizing the data gathered through court observation programs as evidence. On February 28, 2020, their case Innovation Law Lab v. McAleenan prevailed in the Ninth Circuit Court of Appeals, which blocked MPP, calling it “invalid in its entirety.” The victory offered a glimmer of hope that there are still institutions upholding human rights, but was short-lived, only to be reversed by the Supreme Court twelve days later. On March 11th, the court sided with the Trump administration, allowing the expulsions of asylum-seekers to Mexico to continue. It is unclear what courses of action remain to effectively challenge the legality of this policy.

Call to action

MPP marks a fundamental shift towards the dismantling of the asylum system in the U.S. and is a glaring violation of the right to international protection and non-refoulement. The policy has made one of the most dangerous migration corridors in the world even more perilous, resulting in grave consequences for tens of thousands of asylum-seekers that find themselves trapped in its midst. MPP reflects an alarming global trend of refuge moving increasingly beyond reach. The silence of the so-called “international community” in the wake of MPP could be detrimental, and precedential, to the future upholding of the human rights of migrants globally. As the wait continues for tangible consequences for the U.S., several actions can be taken individually and collectively. First, organizations advocating for the MPP population on both sides of the border need a flood of donated funds and materials so they can continue to offer their vital services. Consider donating to Al Otro Lado, one of the only organizations on the ground in Tijuana providing legal aid to MPP asylum-seekers, or signing up to lend your time and expertise as a remote volunteer. You can also donate to fulfill the material needs of shelters hosting asylum-seekers trapped at the border. The Border Angels’ Shelter Aid Program provides funds to Tijuana migrant shelters for groceries, hygiene products, utility bills, rent, clothes, and other supplies. Second, MPP and any future iterations of the policy must continue to be closely monitored, through data tracking initiatives and court observation programs.

Collectively, we must keep a vigilant eye on the rise of “safe third country” agreements and policies that externalize borders around the globe. By visiting the UN’s Universal Periodic Review site, you can check your country’s compliance with global compacts and treaties relating to the rights of migrants and refugees, and search the UN Office for the High Commissioner of Human Rights’ interactive dashboard to see which treaties your country has ratified and can be held accountable for. If you live in the U.S., you can call on your Senators and Representatives in Congress to immediately end and defund MPP. Policy-makers must understand that choosing to approach border security in a way that directly or indirectly leads to human rights violations is not a policy option, but a crime.

The border wall cuts across the land between the U.S. and Mexico, separating two worlds. On the Tijuana side, houses sit just meters away from the wall. Surveillance towers are visible in the distance. Photo courtesy of Analucia Partida Borrego.

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[i] While the United States has not ratified the 1951 Geneva Convention Relating to the Status of Refugees, its ratification of the 1967 Protocol includes a binding commitment to abide by the 1951 Convention, despite not being a party to it. See Article 1 of the 1967 Protocol Relating to the Status of Refugees.