Border Patrol unlawfully deporting potential asylum seekers

On Nov. 13 several human rights organizations, including the National Immigrant Justice Center, filed a complaint (PDF) with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, citing “serious due process and civil rights violations” as well as systemic and routine failure by the U.S. Customs and Border Protection (CBP) agents to screen asylum claims properly at the border. 

Such problems received no attention in President Barack Obama's remarks on Thursday evening justifying executive action on immigration issues. Instead, a White House fact sheet issued prior to his speech emphasized "cracking down on illegal immigration at the border."

The complaint noted that border agents routinely intimidate, coerce and deport refugees, ignoring their expressed fear of returning to their home countries when agents should instead refer them for credible-fear interviews with asylum officers. The abusive and illegal treatment of asylum seekers is a result of the U.S. government’s increased reliance on expedited border removals.

Under U.S. law, Border Patrol agents are required to ask those detained at the border or point of entry whether they are afraid to return home. Agents must refer those who express fear to asylum officers for a more extensive credible-fear screening. But many border agents are deporting Mexican and Central American migrants back to the danger and death threats they fled. The details in the complaint letter corroborate the findings of a recent report by Human Rights Watch (HRW), which revealed the agents’ violation of U.S. immigration law, discrimination against migrants from Mexico and Central American countries and huge increases in the number of summary removals without benefit of judge or hearing officer over the past 10 years.

The HRW report, “You Don’t Have Rights Here,” highlights the Border Patrol’s failure to properly screen 25 recent Honduran deportees now living in San Pedro Sula, Comayagua and Tegucigalpa. For example, Mateo S. fled gang violence in Honduras and then was deported right back to it. Mateo had a small business in Honduras. Gangs came after him for a “war tax.” When the payments bankrupted his business and he stopped paying, gang members threatened to harm his family. Mateo recounted jumping a school fence with his son, fleeing the gang members who had come for the child. After the school escape, Mateo used his savings to send his son and wife to the United States. When they reached safety, he followed.

The Border Patrol detained Mateo for six days. “They just asked me my name, where I came from, and they told me I was punished for five years and I had to sign the deportation,” he told HRW. When he refused, the agents told him, “You don’t have rights here,” and deported him anyway. They did not follow the law and send Mateo for a credible-fear screening with an asylum officer. 

Now back in Honduras, Mateo lives in hiding, afraid of endangering family members because of continuing threats from gangs.

U.S. law and CBP regulations and manuals tell agents they must refer to an asylum officer any migrant who expresses fear of returning to his or her home country. CBP agents are not allowed or qualified to determine whether the fear is credible; they are required to leave that determination to immigration officers. Instead, migrants report being harassed, threatened or ignored by U.S. border agents. Border Patrol agents typically conduct brief interviews with the migrants “in crowded settings, without confidentiality from family members or others,” hampering the ability to identify those who fear return, according to the HRW report. 

Data from 2010 to 2012 show border agents referred about 21 percent of migrants from other countries for credible-fear interviews. For Mexicans and Central Americans, the numbers were far lower — 0.1 percent for Mexicans, 0.8 percent for Guatemalans, 1.9 percent for Hondurans and 5.5 percent for Salvadorans.  The civil rights complaint notes that CBP practices “can be fatal, sending individuals back into environments where they are targeted for extreme violence.”

Even after referral, asylum seekers have a tough road ahead. In February, Barack Obama’s administration issued a new “lesson plan” for asylum officers conducting credible-fear interviews. The new directive has been criticized for raising the burden of proof at this very preliminary stage in the asylum process; among migrants referred for credible-fear interviews, the percentage allowed to apply for asylum fell from 83 percent in January to 63 percent in July.

The surge of unaccompanied minors fleeing gang violence in Central America and the U.S. government’s inability and unwillingness to take any action to protect them received extensive media attention earlier this year. These minors are now showing up on “rocket dockets,” accelerated hearing calendars designed to speed up deportation. At these hearings the children can try to make a case for asylum before an immigration judge — mostly without a lawyer. Compared with the migrants in expedited removal cases, these children are the lucky ones. At least they are afforded a chance to tell their stories to a judge.

As gang and political violence continue to wreak havoc across Central America and escalate in Mexico with the recent massacre of 43 students in Guerrero, more people are likely to flee for their lives. Following the law is an essential first step in protecting desperate migrants fleeing violence and terror.

There is no specific data on what happens to migrants deported back to Mexico and Central America. The HRW report provides some anecdotal evidence, gleaned from interviews with deported individuals. The Nov. 13 complaint filed with the DHS on behalf of nine noncitizens recounts the stories of several deportees who subsequently returned to the United States. For example, a young Honduran man identified in the complaint as BBM was threatened by the MS-13 gang and attacked by the Mara 18 gang after he was deported. A Peruvian woman, NBS, was stalked, raped multiple times and threatened with the killing of family members after she was deported.

While Congress might not enact changes to U.S. immigration law anytime soon, Obama can and must order changes in law enforcement practices to comply with existing U.S. and international refugee and asylum laws. In his immigration speech on Thursday, the president emphasized border security while ignoring the legal and moral ramifications of refugees making asylum claims.

"We’ll build on our progress at the border with additional resources for our law enforcement personnel so that they can stem the flow of illegal crossings and speed the return of those who do cross over," Obama said.

The president should specifically order protection of Central American and Mexican migrants who fear returning to their home countries. Instead of maintaining the current presumption of deportability, such a directive would require border agents to take the claims of Mexican and Central American migrants seriously. Second, Obama’s executive action must provide for more training and oversight to ensure that Border Patrol agents understand and follow the law on screening, referral and treatment of asylum seekers.

Oversight is crucial for compelling CBP to follow existing laws and regulations. Ensuring Border Patrol compliance with credible-fear procedures and nondiscrimination in refugee and asylum cases are essential steps in establishing respect for human rights along the U.S. border.