Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border

In the run-up to the mid-term elections, President Trump focused much of his rhetoric on “the caravan” of migrants heading north through Mexico. The caravan, which included many refugees, was, in the president’s telling, a would-be “invasion” of the United States by “bad people,” “terrorists,” and “Middle Easterners.” This purported threat to the country’s security was his stated rationale for deploying thousands of troops and, later, for firing tear gas at a group of migrants as they approached the border.

But Human Rights First’s research shows that the Trump Administration itself has cultivated this alleged crisis. The actual threat to the law comes not from refugees seeking asylum but from the Trump Administration seeking to restrict this right. Instead of managing migration and processing refugee protection requests in an orderly way that upholds U.S. law and ideals, border officials are illegally turning away asylum seekers and have slowed processing of asylum claims at “ports of entry.” At the same time, in violation of both U.S. and international law, the administration is attempting to deny the right to asylum to those who cross the border between ports of entry through an “asylum ban.”

U.S. law ensures that refugees may ask for asylum after arriving in the United States whether at official border posts or after crossing the border. This broad legal protection is rooted in the country’s long history as a refuge for people fleeing persecution as well as the obligations it took on through the Refugee Convention and Protocol. The U.S government has the capacity both to follow the law and maintain the security of the border.

Human Rights First sent legal monitoring teams to the U.S.-Mexico border in November and early December 2018. They conducted field observations both before and after the arrival of the caravan. This report is based on that research, as well as analyses of government statistics and interviews with attorneys, legal organizations, asylum seekers, and government officials. Their findings include:

• Illegal turn-backs and orchestrated bottlenecks at U.S. ports of entry are preventing many asylum seekers from requesting protection at official border posts. U.S. Customs and Border Protection (CBP) has reduced asylum processing at ports of entry for months even though the U.N. Refugee Agency warned of a “significant increase in the number of people fleeing violence and persecution in the North of Central America,” and even as Trump Administration officials were telling asylum seekers to request protection at ports of entry to avoid criminal prosecution for illegal entry.
• Unaccompanied children are being blocked from U.S. ports of entry. CBP agents and their Mexican counterparts have blocked children from seeking asylum at ports of entry. Since April 2018 when CBP adopted new policies to throttle the entry of asylum seekers—which officials claim do not apply to unaccompanied children—the number of unaccompanied children processed at southern border ports of entry has dropped by 61 percent.
• CBP asylum processing reductions and bottlenecks at ports of entry are encouraging illegal crossings. CBP data, statements by CBP officials, a report by the Department of Homeland Security (DHS) Office of Inspector General (OIG), and interviews with asylum seekers all confirm that efforts to “meter”—restrict processing of asylum claims at ports of entry—push some migrants to cross elsewhere.
• Orchestrated processing restrictions at U.S. ports of entry are stranding growing numbers of asylum seekers in danger in Mexico for months. In November and December 2018, Human Rights First interviewed asylum seekers marooned in Mexico who faced dangers of kidnapping, trafficking, and violence. They included Honduran asylum seekers attacked by men who threw stones at them, a Cameroonian asylum seeker stabbed and robbed, a transgender Mexican woman robbed and threatened with sexual assault, and a family pursued by a gang from their home country, Honduras.
• Mexican migration officers and police are blocking asylum seekers from U.S. ports and deporting some to their countries of persecution. They include gay men from El Salvador, Guatemala, and Honduras who were deported without an opportunity to seek protection.
• Refugees with genuine protection claims have been turned away, blocked from asylum, or left stranded in Mexico. President Trump has claimed refugees in the caravan are “not legitimate asylum-seekers.” In fact, many appear eligible for asylum or protection from torture.

DHS and CBP officials have blamed reductions and restrictions on processing asylum seekers on staffing and space limitations at ports of entry as well as on a purported lack of space in detention facilities. Yet neither argument explains why processing at ports of entry has fallen sharply, often to well below capacity levels. Further, statements from agency officials reveal a decision not to deploy resources needed to timely process asylum seekers at ports of entry. Moreover, Immigration and Customs Enforcement (ICE), the DHS agency responsible for immigration detention, has itself created bottlenecks by refusing to release those who meet relevant parole criteria, and rejecting more fiscally prudent and humane case management programs that produce high appearance rates.

The administration, it appears, is obstructing asylum seekers at ports of entry to precipitate illegal crossings and lay blame on an alleged lack of detention space, with the apparent goal of pushing Congress to appropriate funding for the border “wall” and even more detention beds.

There is, in fact, no border security crisis. Overall border apprehensions are at record low levels. The number of people seeking refuge in the United States is significantly lower than the number arriving in countries such as Turkey, Pakistan, Jordan, Lebanon, Colombia, and Uganda, which host far more refugees with far less capacity and resources.

To restore orderly processing of asylum seekers at the border in accordance with U.S. law and treaty obligations, Human Rights First urges the Trump Administration to:

• Cease all efforts that violate immigration law including CBP’s orchestrated restrictions on asylum processing at ports of entry.
• Direct CBP to deploy more officers to U.S. ports of entry to restore orderly asylum processing.
• Work with Congress to provide increased support for effective initiatives to counter the human rights abuses, economic deprivations, and climate displacement prompting people to flee Central America.
• Work with Congress to bolster UN Refugee Agency efforts to increase the capacity and effectiveness of asylum systems in other countries—including Mexico, Costa Rica, Belize, and Panama—so more refugees can seek protection in these countries.
• Direct ICE to comply with and apply U.S. legal criteria (including lack of danger or flight risk) for parole and other release from detention and launch case management and funded legal representation programs, which produce high appearance levels.