Declaration of Leah Jahan Chavla (Women's Refugee Commission) — East Bay Sanctuary v. Trump

Record facts

U.S. District Court, N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 35-1 · 2018-11-16 · Docket on CourtListener

Full text

DECLARATION OF LEAH JAHAN CHA VLA OF 
THE WOMEN'S REFUGEE COMMISSION 
I, Leah Jahan Chavla, hereby declare as follows: 
1. 
I am a Policy Advisor within the Migrant Rights and Justice (MRJ) 
Program of the Women's Refugee Commission (WRC), where I have worked on 
research and policy advocacy since October 2016. For three years prior to joining 
the WRC, I worked as a junior and senior attorney within the Rapporteurships on 
the Rights of Migrants and on Human Rights Defenders, respectively, at the Inter-
American Commission on Human Rights (IACHR). I am admitted to practice law 
in New York. I make this declaration based on my personal knowledge except 
where I have indicated otherwise. If called as a witness, I could and would testify 
competently and truthfully to these matters. 
2. 
The WRC is a non-profit organization that advocates for the rights of 
women, children, and youth fleeing violence and persecution. The WRC is based 
in New York, New York; the MRJ Program is based in Washington, D.C. 
3. 
The WRC was founded in 1989, originally as a program within the 
International Rescue Committee, after having identified a dearth of programming 
to protect women and girls displaced by humanitarian crises around the world. It 
subsequently evolved into an independent entity. WRC's mission is to improve the 
lives and protect the rights of women, children, and youth displaced by conflict and 
CflSlS. 
4. 
The WRC is a leading expert on the needs of refugee women and 
children, and the policies and programs that can protect and empower them. The 
WRC regularly consults displaced women, children, and youth, and works with the 
community-based organizations that are usually the first responders in any 
humanitarian crisis. It then raises those needs with policy makers and 
implementers, including local and national governments, the United Nations, and 
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other international non-governmental organizations that drive humanitarian policy 
and practice. 
5. 
The MRJ program focuses on the right to seek asylum in the United 
States. It strives to ensure that refugees, including women and children, are 
provided with humane reception in transit and in the United States, given access to 
legal protection, and protected from exposure to gender discrimination or gender-
based violence. The MRJ program regularly consults with diverse stakeholders, 
including affected migrants and refugees; community-based, national, and 
international organizations; policymakers, including Members of Congress and 
their staff; and federal government officials from several departments and agencies 
that work on immigration-related issues and conduct oversight. 
6. 
Since 1996, the MRJ team has made numerous visits to the southwest 
border region, including along Mexico's northern border, as well as to immigration 
detention centers for adult women and families and to shelters housing 
unaccompanied children throughout the country. Based on the information that we 
collect on these visits and our legal and policy analysis of the issues, we advocate 
for improvements through various methods, including meetings with government 
officials and service providers, and by documenting our findings through fact 
sheets, reports, backgrounders, and other materials. We make recommendations to 
address identified or observed gaps or ways in which we believe the corresponding 
department or agency could improve its compliance with the relevant standards. 
We use these materials in our advocacy work to inform the perspectives and 
decisions of policymakers. 
7. 
The MRJ' s recent publications include a fact sheet explaining why 
Mexico does not qualify as a safe third country. The main reasons are summarized 
below. A copy of the fact sheet is attached as Exhibit A. 
8. 
While Mexico has made commitments to strengthen its capacity to 
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provide asylum to Central Americans, particularly those coming from the Northern 
Triangle countries of El Salvador, Guatemala, and Honduras, it has yet to make 
demonstrable progress in screening individuals for protection needs and ceasing to 
return families and children to danger. Significant barriers prevent migrants, 
including children, from accessing the right to seek and enjoy asylum in Mexico. 
9. 
Many migrants are arbitrarily detained in poor conditions in 
processing facilities upon apprehension. In these facilities, migrants lack access to 
legal counsel and opportunities to have their cases heard. Child migrants are being 
systematically detained, which violates their basic human rights. 
10. 
Adult and child migrants in need of international protection are not 
routinely informed about their rights or screened for international protection 
concerns as is required by Mexican law. This is especially concerning as persons 
have only thirty business days upon entering Mexican territory to file an asylum 
application. Further, Mexico's Commission for Refugee Assistance ("COMAR") 
is understaffed, under resourced, and limited geographically, as it has only three 
offices - in Tapachula (Chiapas), Acayucan (Veracruz), and Mexico City. 
Although I understand that COMAR now has 40 agents (rather than 15 as of June 
2015, as specified in our fact sheet), this capacity is woefully inadequate to deal 
with the continuing increase in asylum applications in recent years. According to 
COMAR's statistics, 14,544 persons requested asylum in Mexico from January 1, 
2018 to August 31, 2018. 
11. 
As illustrated in our fact sheet, these factors are reflected in the low 
number of asylum applications in contrast with the high number of apprehended 
migrants and despite numerous studies showing an increase in flows of asylum 
seekers from the Northern Triangle countries, due to high levels of violence and 
crime. Further, there is a low rate of success on asylum applications in Mexico. 
12. 
Migrants often lack sufficient protections while in Mexico. In 
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transiting through the country to arrive at the U.S.-Mexico border, they suffer 
violence and other abuses at the hands of organized crime and corrupt migration 
authorities. Further, there is a lack of accountability for crimes against migrants. 
13. 
In addition to migrants from other countries, certain Mexican 
nationals face higher risks of having their human rights violated. The include 
human rights defenders and journalists, particularly women and indigenous 
persons; LGBTI persons; children and adolescents, particularly those being 
recruited for organized criminal groups; and internally-displaced persons. 
Mexican women continue to remain more likely than men to experience sexual 
crimes or be victims of human trafficking. 
EXECUTED this ~th day of November, 2018. 
4 
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Exhibit A 
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Safe Third Countries for Asylum-Seekers 
Why Mexico Does Not Qualify as a Safe Third Country 
It has been argued that refugees or asylum-seekers passing through Mexico to request asylum 
in the United States should be denied entry to the U.S. based on the availability of protection in 
Mexico as a signatory to the 1951 Convention on the Status of Refugees (“1951 Convention” or 
“Refugee Convention”). In some cases, this is referred to a “safe third country” option. The 
term “safe third country” applies to countries determined as being non-refugee-producing or as 
being places where refugees can receive asylum without any danger.1 Following this concept, 
asylum-seekers/refugees may be denied entry or returned to countries where they have, or 
could have, sought asylum and where their safety would not be jeopardized. Despite important 
steps taken by Mexico in recent years to strengthen its asylum system, the system is still 
squarely within the development phase and has extremely limited resources and capacity (it 
currently processes a small fraction of the asylum applications received by the U.S.). Mexico is 
clearly not a safe, or in many cases viable, alternative for many refugees and vulnerable 
migrants seeking international protection.    
 
Part I. “Safe third country” concept in international refugee law 
The right to seek asylum is well-established in international law, under the 1948 Universal Declaration of Human 
Rights and the binding 1951 Convention on the Status of Refugees. The latter establishes who qualifies as a 
refugee, the rights of persons recognized as refugees or granted asylum, and the obligations of States towards 
these persons. The U.S. acceded to the 1967 Protocol Relating to the Status of Refugees, which modified the 1951 
Convention by removing the temporal and geographic limits (originally it was restricted to those persons who fled, 
within Europe, prior to January 1, 1951).   
The position of the UNHCR – the UN entity in charge of supervising the application of the 1951 and 1967 
instruments – is that “burden-sharing” arrangements allowing for readmission and determination of status 
elsewhere, such as the safe third country principle, are reasonable, provided they always ensure protection of 
refugees first and foremost.2 This means that refugees, asylum-seekers, and other persons forcibly displaced from 
their homes must be safe in the third country from being removed to their home country (the non-refoulement 
principle), and that they must have access to basic social services in this third country, such as healthcare, 
education, and employment.  
 
There are numerous ways this “safe third country” concept could be implemented, some of which are legal and 
some not.  
 
 
 
                                                          
1 Not to be confused with the ‘first country of asylum’ principle, which is used to justify the decision to return an asylum-seeker to another 
country where s/he has already been granted protection.   
2 UNHCR, Background Note on the Safe Country Concept and Refugee Status, EC/SCP/68, July 26, 1991. 
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Part II. Origin of the “safe third country” concept in U.S. immigration law 
One way this concept could be implemented is through a bar on certain asylum applications. The Illegal 
Immigration Reform and Responsibility Act (IIRIRA) of 1996 amended section 208 (a)(2)(A) of the Immigration and 
Naturalization Act (INA) to bar asylum to those aliens who can be returned to a “safe-third country.”   
In order to invoke this bar, however, the INA requires the U.S. to have a “bilateral or multilateral agreement” in 
place with the third country.3  
The U.S. only has one safe third country agreement in place, with Canada, which entered force in 2004. One 
important exception embedded in the U.S.-Canada agreement regards family reunification. Family unity is a 
fundamental principle of international law and is enshrined not only in the Refugee Convention but also in several 
other international legal instruments, such as the Universal Declaration of Human Rights, the International 
Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the American Declaration on the 
Rights and Duties of Man, and the American Convention on Human Rights, among others. 
The U.S.-Canada agreement provides that an asylum-seeker with a family member in the destination country, who 
is either in lawful immigration status or is 18 years or older and has an asylum application pending, will be allowed 
to enter that country (whether it be the U.S. or Canada) to join this relative. The range of eligible family members 
under the agreement includes spouses, sons, daughters, parents, legal guardians, siblings, grandparents, 
grandchildren, aunts, uncles, nieces, and nephews.4  
The U.S. does not currently have a formal agreement with Mexico but may choose to pursue one.  If they do, it is 
essential to remember that: 
- 
Mexico is not a safe option for many migrants. 
- 
Family ties and reunification are a major factor driving current migrant and refugee flows. Many child 
migrants, particularly unaccompanied children, are traveling through Mexico to reach the United States, 
where other family members are located. Including an exception for family reunification in any such 
agreement would be essential to protecting children’s rights and the right to family life.  
- 
Mexico’s asylum system is still evolving and a large increase in the already overburdened asylum system is 
likely to cause further instability and delay or prevent the consolidation of an effective protection system.  
 
 
 
                                                          
3 Section 608 of IIRIRA amended the INA as follows: 
INA §208 (a)(2)(A) SAFE THIRD COUNTRY.-Paragraph (1) [stating that any alien physically present in the United 
States or who arrives in the United States, irrespective of status, may apply for asylum in accordance with the 
provisions of § 208] shall not apply to an alien if the Attorney General determines that the alien may be removed, 
pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality 
or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the 
alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a 
particular social group, or political opinion, and where the alien would have access to a full and fair procedure 
for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it 
is in the public interest for the alien to receive asylum in the United States. 
4 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), Press Release: United States and Canada Implement 
Safe Third Country Agreement on Asylum (Dec. 29, 2004), p. 2. 
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Part III. Mexico is not a safe third country   
A. Mexico is not safe for most migrants, particularly vulnerable ones  
 
While Mexico has made commitments to strengthen its capacity to provide asylum to Central Americans, 
particularly those coming from the Northern Triangle countries of El Salvador, Guatemala, and Honduras, it has yet 
to make demonstrable progress in screening individuals for protection needs and ceasing to return families and 
children to danger. Significant barriers prevent migrants, including children, from accessing the right to seek and 
enjoy asylum in Mexico: 
 
• 
Many migrants are arbitrarily detained in poor conditions in processing facilities upon apprehension. In 
these facilities, migrants lack access to legal counsel and opportunities to have their cases heard. Child 
migrants are being systematically detained, which violates their basic human rights. Between 2014 and 
2015, the number of detained unaccompanied children migrants in Mexico doubled, from 10,943 to 
20,368.5  Particularly for children, the length and conditions of detention deter them from seeking 
asylum.6  
 
• 
Adult and child migrants in need of international protection are not routinely informed about their rights 
or screened for international protection concerns as is required by Mexican law.7 This is especially 
concerning as persons only have thirty business days upon entering Mexican territory to file an asylum 
application. Further, Mexico’s Commission for Refugee Assistance (or COMAR, by its initials in Spanish) is 
understaffed, having only 15 agents as of June 2015, to conduct asylum interviews throughout the entire 
country;8 under resourced,9 in comparison to the large increase in asylum applications over the past few 
years10; and limited geographically, as it only has three offices - Tapachula (Chiapas), Acayucan (Veracuz), 
and Mexico City.11 These factors are reflected in the low number of asylum applications in contrast with 
the high number of apprehended migrants and despite numerous studies showing an increase in flows of 
asylum-seekers from the Northern Triangle countries, due to high levels of violence and crime.12 Further, 
there is a low rate of success on asylum applications in Mexico, as illustrated by the charts below.  
                                                          
5 José Antonio Román, “Se duplicó la detención de menores centroamericanos no acompañados” [Detention of unaccompanied children from 
Central America doubled], La Jornada, Oct. 25, 2016. 
6 Georgetown Law Human Rights Institute (HRI), The Cost of Stemming the Tide: How Immigration Enforcement practices in Southern Mexico 
Limit Migrant Children’s Access to International Protection (Apr. 2015), p. 25.  
7 Amnesty International, Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central Americans Seeking Asylum (Jan. 2018), p. 12 
(in a survey of 297 migrants who passed through an immigration detention center in Mexico, 75% were not informed of their right to seek 
asylum in Mexico); HRI, The Cost of Stemming the Tide, p. 25, 48-50 (concerning child migrants) ; IACHR, Human Rights Situation of Migrants 
and Other Persons in the Context of Human Mobility in Mexico (2014), para 534 (concerning adult migrants). 
8 Manu Ureate, México recibe 67% más solicitudes de refugio, pero sólo tiene 15 oficiales para atender 2 mil casos [Mexico receives 67% more 
requests for asylum, but only has 15 agents to deal with 2,000 cases], Animal Político, June 19, 2015. 
9 Ximena Suarez Enriquez, Jose Knippen, Maureen Meyer, A Trail of Impunity: Thousands of Migrants in Transit Face Abuses amid Mexico’s 
Crackdown, WOLA (Oct. 20, 2016). 
10 COMAR currently has a backlog of thousands of cases; according to a press release by Mexico’s National Human Rights Commission (CNDH), 
as of February 2018, close to 60% of asylum applications filed in 2017 have not been processed yet. The CNDH made an urgent appeal to 
Mexico’s national government to act “in the face of a possible collapse of Mexico’s refugee protection system” [“ante el posible colapso del 
sistema de protección de refugiados en México”]. 
11 COMAR, ¿Dónde está COMAR? [Where is the COMAR located?] (last accessed on May 17, 2018). 
12 See Latin American Working Group (LAWG), Central American Families & Children Arriving at U.S.-Mexico Border Demonstrate Need for 
Urgent Protection Mechanisms, Oct. 19, 2016. See also, UNHCR, Children on the Run, Apr. 2014, p. 6 (finding that of the 404 unaccompanied 
and separated children, ages 12-17, from Mexico, El Salvador, Guatemala, and Honduras that UNHCR interviewed, 58% raised potential 
international protection needs. The sample size was designed to be representative of other similarly-situated children from these four 
countries); UNHCR, Arrancados de Raíz [Uprooted], 2014 (finding that of 200 migrant children from El Salvador, Guatemala, and Honduras who 
were interviewed in Mexico, 48.6% had cited violence as a principal factor in leaving their homes). 
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Adult Migrants in Mexico: Apprehensions, Asylum Applications, and Grants of Asylum, 2013-201713 
 
Year 
Total apprehensions 
Asylum applicants (applicants 
from Northern Triangle, NT) 
Granted protection*  
(#NT) 
2013 
76,668 
1,296 (887) 
313 (242) 
 
2014 
104,053 
2,137 (1,769) 
536 (477) 
 
2015 
159,627 
3,424 (3,138) 
1,102 (1,015) 
 
2016 
146,102 
8,796 (8,059) 
3,205 (2,808) 
 
2017 
77,197 
14,596 (8,656) 
1,907 (958) 
 
Total 
563,647 
30,249 (22,509) 
7,063 (5,500) 
* Figure in chart encompasses grants of asylum and complementary protection. 
 
 
Child Migrants in Mexico: Apprehensions, Asylum Applications, and Grants of Asylum, 2013-201614 
 
 
Year 
Total apprehensions 
of children 
Child applicants for 
asylum (applicants from 
the Northern Triangle, 
NT) 
Children granted 
protection* (#NT) 
2013 
9,630 
63 (55) 
18 (15) 
 
2014 
23,096 
78 (75) 
22 (22) 
 
2015 
38,514 
142 (139) 
44 (44) 
 
2016 
40,114 
242 (229) 
102 (102) 
 
2017 
18,300 
259 (236) 
36 (31) 
 
Total 
129,654 
784 (734) 
222 (214) 
* Figure in chart encompasses grants of asylum and complementary protection. 
 
 
 
                                                          
13 Mexican Commission for the Assistance of Refugees (COMAR), Statistics 2013 to 2016 (last accessed on May 17, 2018). For apprehension 
numbers, please consult: National Institute on Migration of Mexico (INM), Annual Statistics Bulletins (last accessed on May 17, 2018). 
14 Id. 
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• 
Mexican authorities, with U.S. support, have been steadily ramping up deportations of all irregular 
migrants, including children, from the Northern Triangle countries with little regard for due process, 
which increases the potential for refoulement.15  
Deportations from Mexico, 2013-201616 
Year 
Total persons 
deported 
Deported migrants from 
Northern Triangle (% of 
total deportations) 
Total children 
deported  
Deported children 
from Northern 
Triangle (% of 
total children 
deported) 
2013 
80,902 
77,896 (96%) 
8,577  
8,401 (98%) 
2014 
107,814 
104,269 (97%) 
18,169  
17,921 (99%) 
2015 
181,163 
175,136 (97%) 
36,921  
36,497 (99%) 
2016 
159,872 
 149,540 (94%) 
38,555 
37,759 (98%) 
2017 
80,353 
75,677 (94%) 
16,162 
15,821 (98%) 
Total  
610,104 
582,518 (95%) 
118,384 
116,399 (98%) 
 
• 
Migrants often lack sufficient protections while in Mexico: in transiting through the country to arrive at 
the U.S.-Mexico border, they suffer violence and other abuses at the hands of organized crime and 
corrupt migration authorities.17  Further, there is a lack of justice for crimes against migrants, which 
allows for crimes to remain in impunity and only serves to foster their repetition: between 2014 and 
2016, “of the 5,284 crimes against migrants reported in Chiapas, Oaxaca, Tabasco, Sonora, Coahuila, and 
at the federal level, there is evidence of only 49 sentences, leaving 99 percent of the cases in impunity.”18 
 
• 
Attention may be called to Mexico’s issuance of “passes” to certain migrants. If referring to the “oficios de 
salida” [exit passes], it is important to know that these only allow for a person in an irregular migratory 
situation to transit Mexico for the duration of the pass (approximately 20 days). Further, they are not 
uniformly granted to all migrants by Mexico’s National Institute on Migration (INM or INAMI), nor do they 
confer any special protection to the holder or grant him or her a stable or renewable immigration status 
in Mexico.  
 
B. Mexico is not safe for certain Mexicans  
 
• 
In addition to migrants from other countries, certain Mexican nationals face higher risks of having their 
human rights violated. These include human rights defenders and journalists, particularly women and 
indigenous persons; LGBTI persons; children and adolescents, particularly those being recruited for 
organized criminal groups; and internally-displaced persons. Mexican women continue to remain more 
likely than men to experience sexual crimes or be the victim of human trafficking.19 
                                                          
15 HRI, The Cost of Stemming the Tide, p. 14-15, 18; see also, Adam Isacson, Maureen Meyer, and Hannah Smith, Increased Enforcement at 
Mexico’s Southern Border, WOLA (Nov. 2015) (presenting findings on research into the impacts of Mexico’s Plan Frontera Sur). 
16 INM, Annual Statistics Bulletins (last accessed on Oct. 28, 2016). 
17 Ximena Suárez, Andrés Díaz, José Knippen, and Maureen Meyer, Access to Justice for Migrants in Mexico: A Right that Exists Only on the 
Books, WOLA (July 2017); Latin American Working Group (LAWG), Central American Families & Children Arriving at U.S.-Mexico Border 
Demonstrate Need for Urgent Protection Mechanisms, Oct. 19, 2016; Ximena Suarez Enriquez, Jose Knippen, Maureen Meyer, A Trail of 
Impunity: Thousands of Migrants in Transit Face Abuses amid Mexico’s Crackdown, WOLA (Oct. 20, 2016). 
18 Access to Justice for Migrants in Mexico: A Right that Exists Only on the Books, WOLA (July 2017), p. 4; see also, Ximena Suarez Enriquez, Jose 
Knippen, Maureen Meyer, A Trail of Impunity: Thousands of Migrants in Transit Face Abuses amid Mexico’s Crackdown, WOLA (Oct. 20, 2016). 
19 See, e.g., Inter-American Commission on Human Rights, Human Rights Situation in Mexico, OEA/Ser.L/V/II., Dec. 31, 2015, p. 112-135. 
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Part IV. Implementation of a safe third country-like provision with Mexico  
In lieu of a binational agreement20, we may see the U.S. implement a safe third country-like approach in the 
following ways: 
- 
Turning persons seeking international protection back at Ports of Entry along the U.S. southern border 
with Mexico with no explanation, telling them there is no space and to return later, or having them go 
through Mexican officials to get an appointment for a future date to come back to the Port; 
- 
Returning persons to Mexico after placing them into removal proceedings, pursuant to INA section 24021;  
- 
Placing persons seeking international protection into expedited removal, returning them to Mexico, and 
conducting credible fear interviews in Mexico22; 
- 
Denying a credible fear interview based on the argument that the person (if not a Mexican citizen) could 
have sought protection in Mexico; or 
- 
Denying asylum based on this same argument.  
The extent to which each of these is legal varies and may depend on details of implementation.  Some may require 
legislation but much of this could be implemented administratively. 
Additionally, proposed legislation, such as section 12 of HR 391 (proposed by Rep. Jason Chaffetz, R-Utah, in the 
114th Congress and 115th Congress), has called for modifying the INA to eliminate the requirement of a safe third 
country (bilateral) agreement altogether. This bill was introduced in the House of Representatives in January 2017. 
The practical effect of such a change would be to bar persons from submitting asylum applications in the U.S. if 
they can be removed to another country where their life or freedom would not be threatened on account of race, 
religion, nationality, membership in a particular social group, or political opinion and where the person would have 
access to a full and fair procedure for determining a claim to asylum or equivalent protection. However, the U.S. 
has no guarantees that an asylum-seeker’s claim will be addressed in that third country.   
Further, as the law currently stands, the Attorney General may decide to waive the safe third country exception, if 
s/he finds that it is in the public interest for the asylum-seeker to receive asylum in the United States. Section 12 of 
HR 391 would replace the Attorney General with the Secretary of Homeland Security, which suggests that a 
decision to bar an asylum application would not be subject to a hearing before an immigration judge, as is 
currently the process; thus, the asylum-seeker would potentially have no means to challenge this decision.  
For more information, please contact:  
Leah Chavla, Policy Advisor, Women’s Refugee Commission: leahc@wrcommission.org - tel: 202-750-8598 
 
                                                          
20 Although it appears the U.S. and Mexico are or have been in discussions around such an agreement, see Ted Hesson, “U.S., Mexican officials 
to discuss asylum pact,” Politico (May 16, 2018). 
21 Section 235(b)(2)(C) of the INA provides the following: Treatment of aliens arriving from contiguous territory.-In the case of an alien 
described in subparagraph (A) [referring to an alien who is not clearly and beyond a doubt entitled to be admitted] who is arriving on land 
(whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the 
alien to that territory pending a proceeding under section 240.”  As of May 2018 and according to the Office of Information and Regulatory 
Affairs of the Office of Management and Budget, the Department of Homeland Security is engaging in regulatory rulemaking on this provision. 
See the “Return to Territory” entry in the Unified Agenda [last accessed on May 17, 2018]. 
22 INA Section 235 (b)(1)(B)(i) establishes that “an asylum officer shall conduct [credible fear of persecution] interviews of aliens . . . either at a 
port of entry or at such other place designated by the Attorney General (emphasis added).”  
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