Here’s a cross-post of a piece about the border right now that I wrote for Brújula Ciudadana (Citizen Compass), the publication of Mexico’s Iniciativa Ciudadana. They published it yesterday. (Hay también una versión en español.)
Director for Defense Oversight
Washington Office on Latin America
All around the world, leaders are seizing the COVID-19 emergency as an opportunity to grab authoritarian power. In the United States, this is happening in the arena of border and migration policy. The coronavirus crisis is allowing extremists in the Trump White House to make their full agenda a reality, without any discussion, debate, or oversight.
Before, there were some brakes. Congress wouldn’t approve requests to fund wall-building or expanded detention. Courts, at their slow tempo, were halting some excesses. Laws and treaty obligations were still permitting some threatened migrants to enter the country.
Now, the brakes are off. The hardest line is, for now, official policy. Most urgently, some of what is happening threatens to make the coronavirus emergency worse, creating new disease vectors in the United States, Mexico, and Central America.
The list of measures is long and alarming.
First, for the first time since passage of the 1980 Refugee Act, there is no right to seek asylum at the U.S.-Mexico border, at least for the duration of the coronavirus crisis. The border’s land ports of entry are closed to all without documents: the practice of “metering” that caused migrants to add their names to waiting lists throughout Mexican border towns is suspended, as zero people per day are now admitted to petition for asylum. Under a secretive policy called “Operation Capio,” border authorities are expelling all apprehended Mexicans, and nearly all Central Americans, back into Mexico in an average of 96 minutes. (Mexico has agreed to take Central Americans on a case-by-case basis, but in practice is accepting nearly all of them.)
These “expelled” migrants do not get a chance to ask for asylum. If one specifically raises the possibility of being tortured if returned-Border Patrol agents aren’t required to ask-then a Border Patrol supervisor, not a trained asylum officer, will decide whether his or her claim is credible. It is still not clear what is happening to the approximately 15 percent of apprehended migrants who are not Mexican or Central American, mainly Cubans, Haitians, Brazilians, Venezuelans, and people from other continents.
Second, even unaccompanied Central American children are being returned, though a 2008 law specifically states that unaccompanied children from non-contiguous countries must be admitted as potential trafficking victims. The Trump administration’s hardliners always detested this law, viewing it and other asylum statutes as “loopholes” for evading immigration restrictions. They have a legal pretext for the actions they are taking now: a law from 1944 that allows U.S. authorities to “suspend the right to introduce” people into the United States “in the interest of public health.” Though nothing in this law places it above the Refugee Act’s requirement to take in asylum seekers with credible fear, that is how the Trump administration is interpreting it: as a law that supersedes all others in the name of the COVID-19 pandemic. Right now, people in real need of protection at the U.S. border, people who could die without asylum, are being summarily expelled.
Third, the asylum hearings of those forced to “Remain in Mexico” have been postponed at least until May. This might make some sense, as courtrooms full of people are nowhere to be during a pandemic. But the result is that families are being forced to report to the border crossings on their assigned dates, only to be handed a piece of paper with a new hearing date far into the future. Their wait, in border cities where crimes against migrants are frequent, is being further prolonged. While they wait, many are packed into substandard housing, in close proximity to people who may be infected with COVID-19. Many are crowded into shelters run by charities, some of which are closing their doors out of health concerns. The worst-off are subsisting in tent cities, like the one in Matamoros, Tamaulipas, where about 2,500 people are awaiting their asylum dates with poor sanitation and little clean water.
Fourth, deportations are continuing in Mexico and Central America, with little reduction. ICE aircraft are arriving in San Salvador, Tegucigalpa, and Guatemala City every day or two, despite these countries’ closure of borders and air traffic to prevent introduction of COVID-19. Some of those aboard these flights are people being quickly expelled from the border. Others were arrested in the interior of the United States and spent time in detention. ICE is not testing deportees for coronavirus infection-the United States lacks testing capability. Agents are merely checking them for high fevers before boarding them on the planes. There is a very high likelihood of sending back people who are infected with COVID-19 but asymptomatic. As of early April, two deportees to Guatemala had tested positive, at a time when the entire country had only detected about sixty cases.
Fifth, migrant detention continues. As of the end of March, the Los Angeles Times reported, 38,058 migrants were detained in ICE’s network of mostly privately run detention centers around the country. Of these, more than 60 percent had nothing on their criminal records, and 6,166 were asylum seekers. Some were elderly, and many had pre-existing medical conditions. Most are living in crowded conditions, unable to practice social distancing. As of early April, 13 ICE detainees had tested positive for coronavirus, and detention center populations fear an explosion of cases. For some detainees, the wait for an asylum decision could become a death sentence.
Sixth, border wall construction has not slowed. Much of what is being built right now is happening in areas of southern Arizona and New Mexico that are biodiverse, environmentally fragile, sacred to indigenous people, and far from most population centers. Because of their remoteness, the private contractors building the wall are imported from elsewhere in the United States. They come to these small desert towns for a few days, where they live and eat together, then return to their home states, only to come back again. The possibility of these workers introducing COVID-19 to these towns, and taking it back to their home states, rises sharply every day that wall-building continues.
Seventh, about 540 new troops, active-duty military personnel, are headed to the border. A U.S. official told Reuters that the troops are needed because “the Trump administration worries the pandemic could further depress Mexico’s already troubled economy and encourage illegal immigration.” The troops will increase an already existing military presence of as many as 5,000 along the border, including about 3,000 National Guardsmen (military forces under command of state governors), who carry out logistical and planning duties, perform some construction (including superficial tasks like painting parts of the border wall), and include a contingent of military police. Maintaining this presence has already cost over $500 million since October 2018. This is very rare for the United States: since the 1878 passage of the Posse Comitatus Act, there are extremely few examples of this many U.S. troops operating for this much time on U.S. soil. Though the Defense Department seeks to minimize the troops’ contact with citizens, this highly politicized deployment sets a troubling precedent for the future of democratic civil-military relations in the United States.
Eighth, the Trump administration continues to encourage Mexico to continue its crackdown on migration, maintaining high levels of apprehensions and people in detention. The May 2019 threat of tariffs, tied to Central American migration through Mexico, continues to weigh heavily over the bilateral relationship. Mexican National Guardsmen continue to line the northern and southern borders. Mexico’s migrant detention centers continue to be about half full nationwide, with migrants unable to isolate, and those near the Guatemala border are likely more crowded than the national average. Since mid-March, migrants confined in these spaces have protested conditions, worried about the likely spread of COVID-19. Guards, including members of the National Guard, have met them with truncheons, tasers, and pepper spray.
This is a very grim list of measures. The COVID-19 emergency response is showing us what the Trump immigration agenda would look like under normal circumstances, if the administration were empowered to carry it out fully. It amounts to one of the gravest human rights crises in the Americas today, and it is mostly happening on U.S. soil.
In the name of human rights, all of these extreme policies need to stop. In the context of a pandemic, though, there are few political, legislative, or judicial tools available to compel Stephen Miller and the Trump administration’s cohort of immigration extremists to stand down.
Still, the danger of spreading the pandemic demands, urgently, that several of these measures stop immediately. Those are the policies that, as of this article’s writing in early April 2020, are actively spreading the coronavirus and threatening the health and safety of people in the United States as well as in Mexico and Central America. They must stop, and the U.S. government needs to implement common-sense alternatives for the duration of the crisis, if not afterward.
First, stop expelling asylum-seekers. Many have nowhere else to go: someone who is threatened in San Pedro Sula or Chilpancingo, then expelled to a Mexican border town, is effectively marooned in that border town and very vulnerable to the virus when it comes. A large majority of asylum seekers have relatives in the United States with whom they could stay and practice safe social distancing. They do not have such support networks in Tijuana, Ciudad Juárez, or Nuevo Laredo. Those who have a place to go should be paroled into the United States to await their hearings: it could save their lives.
The same goes for “Remain in Mexico” victims in the borderlands. Those who have family members in the United States who can take them in, and an impending court date, should be allowed in. It is urgent right now to reduce crowding in Mexico’s border cities, especially the tent encampments, before COVID-19 cuts through the asylum-seeking community like a chainsaw.
“But wait,” some might object. “If we parole these people in, we may never see them again. They’ll just join the undocumented population in the United States.” That concern is resolved by expanding alternatives to detention programs: the assignment of case officers who not only check in with them regularly to determine their location, but who ensure that they report to their hearings and are receiving due process in the U.S. immigration court system.
When the U.S. government has tried them, alternatives-to-detention programs have been remarkably successful. A much-cited example, among others, is the ICE Family Case Management Program, which the Obama administration piloted during its second term. The FCMP cost only US$36 per day, and 99 percent of families showed up for their court appearances. Another alternatives-to-detention effort, ICE’s Intensive Supervision Appearance Program, also achieved a 99 percent appearance rate, according to 2013 data, using a combination of telephone check-ups, in-person visits, and GPS monitoring.
Alternatives to detention are the obvious response to mass detention, too, amid the COVID-19 pandemic. All in ICE’s jails who have no serious crimes on their records, and who have a relative or similar contact with whom they may practice shelter-in-place and social distancing, should be paroled into the country with close monitoring from an alternatives to detention program. This especially applies to those over 60 years of age and those with other medical conditions, who face serious probability of death if they contract the coronavirus in a detention center.
Common sense and decency also demand a moratorium on deportations, at least until expanded testing and herd immunity start to bring the COVID-19 situation under control. Sending dozens of people per day to countries with very weak public health systems-people who’ve been at close quarters in detention centers and on aircraft-threatens to create disastrous disease vectors. The deportation flights can be put on hold, as the Guatemalan government has been imploring the United States to do.
And of course, wall construction should stop during this emergency: the barrier’s itinerant construction workers need to stay in one community, practicing social distancing, before they spread the virus any further. Obviously, there are many reasons why wall construction should stop permanently, beyond the pandemic emergency, but that’s a debate that continues in the U.S. Congress and court system.
To allow these extreme policies to continue, even as the United States, Mexico, and Central America continue to climb an exponential growth curve of infection, is an act of gross irresponsibility. The deadly consequences could be something that reverberates throughout the U.S. relationship with Latin America for a generation or more. Rather than cynically seize on a public health emergency to pursue a political agenda that most U.S. citizens do not support, the Trump administration urgently needs to stand down, even temporarily, to avoid large-scale, preventable loss of life.