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Jonathan Blitzer writes in the New Yorker:

Dispatch

How the U.S. Asylum System Is Keeping Migrants at Risk in Mexico

Under a Trump Administration policy called the Migrant Protection Protocols, asylum seekers are forced to wait in dangerous border towns for court proceedings that can drag on for months.

The Pan de Vida migrant shelter, in Ciudad Juárez, Mexico, which houses two hundred asylum seekers in a cluster of yellow cabins, is a half-hour drive from the nearest port of entry, in downtown El Paso. The surrounding streets are bare and unpaved, with a few small houses made of cinder block dotting the roadside. When I visited, on a sweltering afternoon in August, none of the residents I met were comfortable going outside, not even in broad daylight. “It’s just too dangerous,” Denis, a thirty-eight-year-old from Honduras, who was with his daughter and son, ages thirteen and seven, told me. A few nights earlier, he said, a truck full of armed men in masks circled the grounds of the shelter a few times, and then left. No one knew who they were, what they were looking for, or when they might return.

Denis was especially nervous. A few months earlier, his wife had left the city of San Pedro Sula with the couple’s two other children, including the eldest, who, at seventeen, was being targeted to join a local gang; after he resisted, gang members began threatening the entire family. Denis stayed behind to earn a bit more money before following with the couple’s other children. His wife arrived at a port of entry in El Paso, and immigration agents allowed her and the children to enter the U.S. while their asylum case was pending. Denis planned to use the same process. But, shortly after he and the two children reached Juárez, in mid-August, a group of local gangsters kidnapped them and held them for five days in an abandoned church on the outskirts of town. They eventually escaped and travelled directly to the U.S. border crossing. “It doesn’t make sense to try to cross illegally,” he told me. “The smugglers will just take your money and then abandon you.”

By the time they arrived in El Paso, the asylum process had changed: Denis and his children were briefly detained, given a court date in December, and then sent back to Mexico to wait, under a U.S. policy called the Migrant Protection Protocols (M.P.P.). For Central Americans trying to obtain asylum in the U.S., M.P.P. now requires them to remain in Mexico for the duration of their legal proceedings, which can last several months. When it’s time to appear before a U.S. immigration judge, asylum seekers must travel back to the port of entry and reënter custody; at the end of the day’s proceedings, they’re bused to Mexico, where they must remain until their next court date. Denis didn’t understand all the details, just that he and his family were being shunted back to the place where they’d been kidnapped days before. “I begged them. I said, ‘Put me in prison. Do anything to me, whatever you want. Just let my kids through,’ ” Denis told me. “My biggest fear is that in Mexico they’ll rape my daughter.”

Since M.P.P. went into effect, in January, in Tijuana, the Department of Homeland Security has extended it, city by city, to locations along the entire U.S.-Mexico border. In mid-March, it came to Mexicali and Juárez. In July, M.P.P. was instituted in the state of Tamaulipas, on the Gulf of Mexico, a stronghold for criminal cartels. Close to fifty thousand asylum seekers have now been returned to Mexico, where many of them have faced extreme levels of violence. On August 3rd, cartel members arrived at a shelter in the border city of Nuevo Laredo, demanding that the pastor in charge, Aarón Méndez, hand over a group of Cubans to be ransomed; when Méndez refused, he was abducted, and he hasn’t been seen since. Later in the summer, a few miles away, a dozen asylum seekers who’d just been returned to Mexico were promptly kidnapped. “The people in migration turned us over to the cartels,” one of the victims later told Vice News. “They know what they are doing. They don’t care if you’re killed or not.” According to an analysis by Human Rights First, there have already been three hundred and forty-three reported cases involving the rape, kidnapping, and violent assault of asylum seekers in the M.P.P. program.

Nearly everyone at Pan de Vida had been placed in M.P.P., including a few people who were no longer sure where they stood in the process. Gabriel, a Honduran who was sleeping in the same cabin as Denis, along with fifteen other people, retrieved a small slip of paper from his wallet, an artifact of the period before M.P.P. was instituted in the El Paso area. At the time, Customs and Border Protection agents “metered” migrants at the ports of entry, using an informal system in which migrants were given a number on a waiting list and told to come back when it was their turn. Since March, while asylum seekers from other countries continue on the wait-list protocol, Central Americans have had to go through M.P.P. Gabriel didn’t realize it, but the five-digit number on his slip of paper corresponded to the old system. The next time that he goes to the port of entry, he’ll be put into M.P.P., and the waiting will begin again.

The residential cabins at Pan de Vida are on the perimeter of a large, dusty plot, where a makeshift soccer pitch and playground are hemmed in by a border made of rubber tires. A mess hall with an open kitchen and long tables sits at the front of the compound. Outside, a weathered blue pickup truck was filled with trash bags, which the shelter’s director would soon drive to a nearby dump. I was walking back to the mess hall, preparing to leave, when two women approached me from one of the cabins. “Don’t you want to talk to us, too?” one of them asked. Her name was Dilcea. She was from Honduras and was travelling with her twelve-year-old son, Anthony. The two had been in Juárez since June and had their first court hearing in mid-August. “There were so many people in the courtroom that I wasn’t given a chance to say anything to the judge,” she said. She had wanted to explain to him that she had diabetes and was running out of insulin.

The other woman, Betty, was from Guatemala City. Her seventeen-year-old daughter, Marielos, followed quietly behind her. After arriving, in early August, the two of them had been given a court date for late October, but they’d been robbed immediately after returning to Juárez. Betty had kept their court documents and identification in her purse, which was now gone. In theory, she could arrive early on the day of her court date and try to explain the situation to a border agent. But there was an added complication: without identification, how could she prove that she and her daughter were, in fact, related? Marielos would turn eighteen in September, making her a legal adult. Would the government treat her as a minor, based on when she first arrived at the border? Or was there a chance that the government would now split mother and daughter into two separate cases? The only consolation of their long wait to return to El Paso, Betty told me, was that they had some time to try to sort out what to do.

Criminal groups aren’t alone in targeting migrants. Earlier this summer, I spoke with a twenty-year-old woman from northern Honduras named Tania. In early April, she and her fourteen-year-old sister were separated at an El Paso port of entry. Her sister was sent to a children’s shelter run by the Department of Health and Human Services and eventually placed with their mother, who lives in Boston. Tania spent six days in detention in the U.S., in a frigid holding cell known among migrants as a hielera, before Mexican immigration agents picked her up and took her back across the border, into Mexico. They dropped her off at a migrant shelter that was already full. She roamed the streets, looking for another place to stay. Her tattered clothes and accent marked her as foreign, and her race—she’s black and belongs to an indigenous community called the Garifuna—led to several episodes of public abuse. “People would shout and spit at me when I was on the street,” she said. “If I sat down somewhere, people would get up and move away.”

She made it to her first court date, on May 15th, back in El Paso. Dozens of other asylum seekers were massed together in court; there were no lawyers present, and the judge read everyone their rights before sending them back to Mexico with a future court date. “People told me the whole legal proceeding was a lie, all the hearings and everything,” Tania said. Back in Mexico, she decided that it was pointless to wait any longer. She and another woman from Honduras hired a smuggler to help them cross into the U.S. Neither of the women realized it at the time, but the smuggler was in league with a cadre of Mexican federal policemen. For two nights, she and the other woman were driven to different stash houses along the border. On the last night before they expected to cross, they were taken to yet another house, where there were four other women and a group of armed men, including policemen in uniforms, keeping watch. That night, one of the policeman held a gun to Tania’s head and ordered her to perform oral sex on him. “I could hear the other women getting beat up in the background,” she said. Early the following morning, Tania and another woman were transported to a separate location, where they were repeatedly raped. A week passed before local authorities found them and took them to a hospital.

Migrant-rights advocates estimate that, to date, a dozen people have been granted asylum under M.P.P. The U.S. government has filed appeals in almost all of the cases. In September, the Department of Homeland Security opened two tent courts along the border, in Laredo and Brownsville, where as many as four hundred asylum seekers in M.P.P. can be processed each day. People who show up at ports of entry for their hearings will be sent directly to these makeshift courts, rather than to brick-and-mortar courthouses. The rationale behind this plan, according to a report in the Washington Post, is for U.S. authorities “to give asylum seekers access to the U.S. court system without giving them physical access to the United States.” Kevin McAleenan, the acting Secretary of Homeland Security, said, “We are bringing integrity to the system.”

The legality of M.P.P. has been challenged, most notably by the American Civil Liberties Union, which has filed a case against it that came before the Ninth Circuit Court of Appeals on Tuesday. Meanwhile, another recent development has further complicated the legal landscape. In September, the Supreme Court ruled to allow a new executive-branch regulation, which effectively ends asylum at the border, to remain in effect for the next several months while it goes through a separate series of court challenges. The ruling now makes it impossible for tens of thousands of migrants to obtain asylum when they reach the U.S., including those who are currently in Mexico under M.P.P. Anyone who arrived at the border after July 16th can only hope to seek what’s called “withholding of removal,” which protects individuals from being sent to countries where they’re likely to be persecuted or tortured. Such orders are more difficult to obtain than asylum, and confer significantly fewer legal benefits.

Judy Rabinovitz, the lead A.C.L.U. attorney challenging M.P.P., told me that the case raises two specific claims. The first is that the executive branch does not have the authority to forcibly return these asylum seekers to Mexico. The second is that, in doing so, the government is violating one of the most basic precepts of human-rights law: namely, the doctrine of non-refoulement, which prohibits any government from knowingly sending a refugee to a place where she will likely be persecuted. The new executive-branch regulations, Rabinovitz told me, “won’t change our case against M.P.P.” The main problem with M.P.P. was that the U.S. could not force migrants to wait in Mexico while they were going through their legal proceedings in the United States. She added, “Our concern is that people are being subjected to the risk of persecution and torture while in Mexico.”

Denis and his two children were unaware of the latest legal developments. One afternoon earlier this month, the three of them had grown restless at Pan de Vida and decided to walk to a supermarket a few hundred yards from the shelter, to get some ingredients for dinner. There, in the parking lot, they saw one of their kidnappers, standing next to a truck. “It’s hard when you’re foreign,” Denis said. “People look at you differently. I can’t just point him out to the police, and say, ‘There he is.’ Better just to thank God that nothing worse happened.” He steered his children back to the shelter and immediately began making arrangements to leave Juárez. A relative knew someone with a room in Monterrey, a less dangerous city around seven hundred miles south. They took a bus there a few days later. There were still two months before they were expected back in El Paso, for a preliminary hearing that typically lasts an hour.

The idea for M.P.P. originated in the White House, in July of 2018. At the time, the President’s family-separation policy was causing a national uproar, and top Trump Administration officials, who privately acknowledged the failure of the program’s implementation, responded by redoubling plans to increase enforcement efforts at the border. During a string of meetings held at C.B.P. headquarters, in Washington, the main concern, according to a person in attendance, was how the government could detain asylum seekers while they waited for their hearings before an immigration judge. The status quo, which the President lambasted as “catch and release,” allowed thousands of migrants to enter the country as their cases moved through the backlogged immigration-court system. To Trump and his senior adviser Stephen Miller, this practice was not only a legal “loophole” that immigrants could exploit but amounted to “open borders.”

What the Administration wanted most of all was a deal with Mexico known as a safe-third-country agreement, which would force migrants to apply for asylum in Mexico rather than in the U.S. For months, the Mexican government resisted. But, late last fall, discussions between the two countries turned to an alternative plan, which became known informally as Remain in Mexico. “This was the backup to the safe-third deal, when it became clear that the Mexican government wouldn’t agree to that deal,” the Administration official told me.

Andrés Manuel López Obrador had recently been elected as Mexico’s President, and his new administration was eager to avoid an immediate confrontation with the U.S. Officials within Mexico’s Interior Ministry, which included the National Immigration Institute and the Refugee Assistance Commission, were opposed to Remain in Mexico (later officially titled M.P.P.), citing a lack of resources and concerns about the welfare of asylum seekers. But López Obrador’s incoming team at the foreign office overruled them. When the agreement was announced, in December, “it was presented publicly, in Mexico, as a unilateral move made by the U.S.,” a Mexican official told me. “But there was already agreement on it.”

One morning last month, I visited another migrant shelter in Juárez, called Buen Pastor, a complex of squat white buildings arranged around a small square paved in asphalt and surrounded by iron gates. Juan Fierro, a pastor who runs the shelter, told me that the space was designed to accommodate sixty people. But in the past several months he had been housing between a hundred and a hundred and thirty migrants at a time. “The same day they announced M.P.P. was coming to Juárez, I got a call from Grupo Beta”—Mexican immigration agents—“asking me how many people I could take,” he said. Fierro has received no additional financial support from the Mexican government to deal with the influx. He was using recent donations from local residents and N.G.O.s to invest in the construction of a separate facility, across the street.

There are more than a dozen migrant shelters in Juárez, many of which are run by different church dioceses. Buen Pastor is smaller than Pan de Vida, but larger than some others, which range from actual facilities—with beds, showers, and dining areas—to church basements that can accommodate one or two families at a time. The city’s best known shelter, Casa del Migrante, is already at capacity. This summer, the municipal government announced a new plan, called the Juárez Initiative, to repurpose an old export factory, or maquiladora, as a holding station for asylum seekers who are returned under M.P.P.

Buen Pastor isn’t just holding migrants who are in M.P.P. When I visited, there was a large contingent of people from Uganda and a few Brazilians. None of them are covered by M.P.P., but they still face long waits in Juárez, because, each day, U.S. immigration agents are interviewing fewer asylum seekers at the ports of entry. One official at Customs and Border Protection told me that, in El Paso, M.P.P. was a significant cause of the delays. Customs, the official said, “is so damn busy with M.P.P. people coming back to the bridge. They have to get these M.P.P. groups in, because they have court dates.” When I met Fierro, at Buen Pastor, he told me that it had been several days since C.B.P. accepted anyone at the port of entry. Each morning, asylum seekers at the shelter would pack their bags and say goodbye to Fierro, expecting their numbers to be called, only to return later in the evening.

Originally, M.P.P. was meant for migrants from Honduras, Guatemala, and El Salvador, the three countries in the region with the highest levels of emigration to the U.S. But, in June, after Trump threatened to impose tariffs on Mexico if the country didn’t do more to limit the flow of migrants to the U.S., the program was expanded to cover anyone from a Spanish-speaking country. In Juárez, where growing numbers of Cubans, Venezuelans, and Nicaraguans were already arriving, en route to the U.S., the result was further chaos. By the strict dictates of U.S. asylum law, which prioritizes cases involving specific forms of political and identity-based persecution, a large share of the Central American asylum seekers showing up at the border have weak legal claims. They’re often fleeing gang or domestic violence, or trying to outrun the brutal consequences of entrenched poverty, hunger, and political corruption. The cases of Cubans, Venezuelans, and Nicaraguans fleeing authoritarian regimes, on the other hand, more often tend to meet the requirements for asylum laid out in U.S. law. But, as the Administration has overhauled the asylum system, even these migrants have struggled to file legal claims.

One morning, at Buen Pastor, a thirty-four-year-old teacher from Cuba named Dani Torres sat in the mess hall and watched as a group of children played with small toys. Back home, the country’s intelligence agency had tried to compel Torres and her sister to share information about their mother, who belonged to a political opposition group called the Damas en Blanco. Torres’s sister left for Panama, and Torres travelled through nine countries to reach the U.S. When she arrived in Juárez, in May, the port of entry was blocked because of metering. She was given a wait-list number: 18,795. She initially planned to wait her turn, but she changed her mind when she learned that M.P.P. was being expanded to include Cubans. “One day, I had a chance-cito and tried to cross the river,” she told me. Border Patrol agents immediately apprehended her and put her into M.P.P. At her first court hearing, she was determined to expedite her case. “A lot of people don’t know about the papers they need to bring, but I was ready,” she said. “I raised my hand and said, ‘I have my forms and my petition for asylum.’ ” Through a translator, the judge responded that she could bring them to her next hearing, which was scheduled for five months in the future.

Fierro keeps track of everyone’s court dates, on a spreadsheet on his desktop computer. Every Tuesday, at the Casa del Migrante, a fleet of buses leaves for Honduras, Guatemala, and El Salvador, carrying asylum seekers who have given up and opted for what’s called “voluntary departure.” Those who have decided to leave Buen Pastor appear in yellow on Fierro’s sheet; when he showed it to me, they accounted for about a third of the names. From July to August, in Juárez alone, Mexican authorities bused more than five hundred and fifty asylum seekers back to Central America, according to one Mexican official. Thousands of others, in border cities from Tijuana to Matamoros, have likely left on their own.

From the standpoint of the Trump Administration, such high rates of attrition were a welcome by-product of a more overt aim: deterring future asylum seekers from making the trip north in the first place. Even before Trump took office, the Department of Homeland Security had developed a raft of policies known, collectively, as the Consequence Delivery System, which includes everything from prolonged detention to the use of criminal charges and the deliberate deportation of migrants to remote locations in their home countries. The idea was to make crossing the border so difficult that migrants stopped trying. “M.P.P. is the logical extension of the Consequence Delivery System,” one D.H.S. official told me. “By the logic of it, M.P.P. is the biggest deterrent of all.”

A flat white scar runs the length of Alejandra Zepol’s right forearm, the result of a knifing that she suffered at the hands of a schoolmate, nineteen years ago, when she first confessed that she was gay. She was fourteen at the time and living in southern Honduras. After the attack, which left her hospitalized for a month, Zepol never stayed anywhere in Honduras for more than a few years at a time, enduring a predictable cycle of threats, assaults, and acts of vandalism at each stop, once neighbors or friends found out about her sexual orientation. On a number of occasions, small businesses that she owned—a stationary store, a food cart—were boycotted, and she’d run out of money. Eventually, she met someone, and they moved in together in a small town in the western part of the country. For a while, they ran a restaurant and kept a low profile; to deflect suspicions, Zepol told people that she was living with her sister, and the two were careful never to be seen kissing or holding hands in public. Yet one day, in late 2018, a neighbor overheard one of their conversations, and news about the couple spread. A man broke into their house soon after, beating and raping Zepol’s partner before threatening to return and kill them both. Zepol’s partner fled first, to the U.S., where she had family. Once she arrived, she sent money to Zepol, so that she could make the trip, too. When Zepol arrived in Juárez, in mid-April, she was one of the first asylum seekers to be put into M.P.P.

“After I first made it to the port of entry, I was dropped off in Juárez at three in the morning,” she told me, in August. We were sitting in the office of a church, on the west side of Juárez, where Zepol had spent the previous several months. “I didn’t have money or a cell phone,” she recalled. “I didn’t know where to go. I didn’t trust anyone on the street. But then I saw this Honduran woman. She had two kids with her. I felt I could trust her, and I asked her where to go. She was the one who directed us to a shelter, and that’s how I got here.” Her lawyer, an El Pasoan named Linda Rivas, who joined us that morning, beamed. They were meeting to prepare for Zepol’s fourth and final court hearing, scheduled to take place in El Paso later that week, and both of them were nervously optimistic.

I’d heard from a few immigration lawyers in El Paso that Zepol’s case looked as if it could be the first one in West Texas to end in a grant of asylum since M.P.P. was instituted. El Paso is among the most difficult places in the country to win an asylum case, with rejection rates above ninety per cent. With M.P.P. in place, it’s become even harder to win asylum. Migrants who are forced to wait in Mexico are much less likely to find lawyers to represent them, and, even if they do, the dangers of living in Juárez, coupled with the complicated logistics of making it back to the port of entry to go to court, have led thousands of asylum seekers to miss their hearings, resulting in immediate deportation orders. Zepol, who met her lawyer through a nun at the church and got rides to the bridge every month to go to court, was comparatively lucky.

On the Friday before Labor Day, I received a text message from Rivas. “We actually went through almost five whole hours of testimony today,” she said. “She did amazing. She felt very comfortable telling the details of her story.” Still, the judge said he needed more time to make his decision and scheduled another hearing, in two weeks, to announce his verdict. This was where the mechanics of M.P.P. broke down: the system was not predicated on people winning their cases or even making it to an advanced stage in the proceedings. M.P.P. was conceived not as a way to streamline or improve the asylum process but as a way to keep asylum seekers from entering the U.S. As far as Rivas knew, they were in uncharted territory, at least in El Paso. Mexican authorities in Juárez were reluctant to accept someone who was so close to a final ruling, and D.H.S. refused to release her in the U.S. while she waited. “She’s in limbo,” Rivas said. Eventually, Zepol was transferred to ICE detention. A few weeks later, Rivas sent an update about Zepol’s case. The judge had reached a verdict—a denial.

Jonathan Blitzer is a staff writer at The New Yorker. Read more.

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Visit the Holocaust Museum.  See how the German Judiciary failed to stand  up to Hitler.  

The Article IIIs could preserve the Constitution and the rule of law, as well as save human lives. While lower Federal Court Judges have stood up, the Supremes and too many Courts of  Appeals have gone “belly up” in the face of Trump’s blatant assault on American democracy.

This isn’t about “Presidential Power”  or “conservative” or “liberal.”  It’s about an unqualified, unstable individual out to destroy the nation with the help of corrupt, immoral (or in some cases amoral) officials on our public payroll. These aren’t legitimate legal debates. There is only one right side of history here. And, so far, the Supremes have been on the wrong side. 

PWS

10-02-19