Court filing
Plaintiffs' Reply in Support of TRO — East Bay Sanctuary v. Trump
Filed November 16, 2018 in East Bay Sanctuary v. Trump; one of 67 filings from this case.
Record facts
| Court | U.S. District Court, N.D. Cal. |
|---|---|
| Filed | 2018-11-16 |
U.S. District Court, N.D. Cal. · No. 3:18-cv-06810-JST · Doc. 35 · 2018-11-16 · Docket on CourtListener
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Jennifer Chang Newell (SBN 233033)
Cody Wofsy (SBN 294179)
Julie Veroff (SBN 310161)
Spencer Amdur**** (SBN 320069)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0770
F: (415) 395-0950
jnewell@aclu.org
cwofsy@aclu.org
jveroff@aclu.org
samdur@aclu.org
Lee Gelernt*
Judy Rabinovitz*
Omar C. Jadwat*
Anand Balakrishnan***
Celso Perez (SBN 304924)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org
cperez@aclu.org
Attorneys for Plaintiffs (Additional counsel listed on following page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
East Bay Sanctuary Covenant; Al Otro Lado;
Innovation Law Lab; and Central American
Resource Center in Los Angeles,
Plaintiffs,
v.
Donald J. Trump, President of the United States, in
his official capacity; Matthew G. Whitaker, Acting
Attorney General, in his official capacity; U.S.
Department of Justice; James McHenry, Director
of the Executive Office for Immigration Review,
in his official capacity; the Executive Office for
Immigration Review; Kirstjen M. Nielsen,
Secretary of Homeland Security, in her official
capacity; U.S. Department of Homeland Security;
Lee Francis Cissna, Director of the U.S.
Citizenship and Immigration Services; U.S.
Citizenship and Immigration Services; Kevin K.
McAleenan, Commissioner of U.S. Customs and
Border Protection, in his official capacity; U.S.
Customs and Border Protection; Ronald D.
Vitiello, Acting Director of Immigration and
Customs Enforcement, in his official capacity;
Immigration and Customs Enforcement,
Defendants.
Case No.: 18-cv-06810-JST
PLAINTIFFS’ REPLY IN SUPPORT
OF MOTION FOR TEMPORARY
RESTRAINING ORDER
IMMIGRATION ACTION
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 1 of 22
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Melissa Crow***
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue NW, Suite 100
Washington, D.C. 20009
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org
Mary Bauer***
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org
Attorneys for Plaintiffs
*Admitted pro hac vice
**Application for pro hac vice pending
***Pro hac vice application forthcoming
**** Application for admission forthcoming
Baher Azmy*
Angelo Guisado*
Ghita Schwarz***
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
T: (212) 614-6464
F: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gshwartz@aclu.org
Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclunc.org
vtalla@aclunc.org
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 2 of 22
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
I. PLAINTIFFS’ CLAIMS ARE JUSTICIABLE ...................................................................... 2
A. Plaintiffs Have Established Article III Standing. ...................................................... 2
B. Plaintiffs Are Within The Zone of Interests.. ............................................................ 4
C. Plaintiffs Have Established Third Party Standing ..................................................... 7
II. THE ASYLUM BAN VIOLATES THE APA’S PROCEDURAL
REQUIREMENTS. .............................................................................................................. 8
A. Defendants Have Not Shown Good Cause to Bypass Notice and Comment
Requirements. ............................................................................................. 8
B. The Foreign Affairs Exception Does Not Apply. .................................................... 11
III. THE ASYLUM BAN VIOLATES THE INA ................................................................... 12
IV. THE OTHER TRO FACTORS WEIGH HEAVILY IN FAVOR OF GRANTING
RELIEF ................................................................................................................ 14
V. THE COURT SHOULD ENJOIN THE BAN IN FULL .................................................... 15
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 3 of 22
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Reply Brief in Support of TRO
Case No. 18-cv-06810
TABLE OF AUTHORITIES
Cases
Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284 (S.D. Cal. 2018)....................................... 3, 6
Animal Legal Def. Fund v. United States Dep't of Agric.,
223 F. Supp. 3d 1008 (C.D. Cal. 2016) ...................................................................................... 3
Ass'n for Retarded Citizens of Dallas v. Dallas Cty. Mental Health & Mental Retardation Ctr. Bd. of
Trustees, 19 F.3d 241 (5th Cir. 1994) ........................................................................................ 3
Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260 (E.D.N.Y. 2018) .................................................... 7
Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005) ......................................................................... 14
Buschmann v. Schweiker, 676 F.2d 352 (9th Cir. 1982)................................................................. 9
California v. Health & Human Servs., 281 F. Supp. 3d 806 (N.D. Cal. 2017) .............................. 5
Capital Legal Found. v. Commodity Credit Corp., 711 F.2d 253 (D.C. Cir. 1983) ....................... 5
Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) ....................................... 7,8
City & Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) ........................................ 2
Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017) ........................................... 2
Doe v. Trump, 288 F.Supp.3d 1045 (W.D. Wash. 2017).................................................... 6, 11, 12
FAIR. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) ................................................................................. 7
Food & Water Watch, Inc. v. Vilsak, 808 F.3d 905 (D.C. Cir. 2015) ............................................. 2
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ............................................................. 2, 3
Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) ............................................................................. 6
Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) .......................................................................... 15
Hawaii Helicopter Operators Ass’n v. FAA, 51 F.3d 212 (9th Cir. 1995) ..................................... 8
Immigrant Assistance Project of Los Angeles Cty. Fed’n of Labor v. I.N.S.,
306 F.3d 842 (9th Cir. 2002) ..................................................................................................... 7
INS v. Legalization Assistance Project of Los Angeles Cty., 510 U.S. 1301 (1993) ...................... 6
Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983) .......................................................................... 12
Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004)................................................................................. 8
Kowalski v. Tesmer, 543 U.S. 125 (2004) ...................................................................................... 7
League of Women Voters of United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ....................... 3
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 4 of 22
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Reply Brief in Support of TRO
Case No. 18-cv-06810
Lopez v. Davis, 531 U.S. 230 (2001) ........................................................................................... 13
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) ................................................................................................................ 4, 5
Matter of Pula, 19 I&N Dec. 467 (BIA 1987) ............................................................................. 13
Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) ....................................................................... 5
Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399 (D.C. Cir. 1998) .................... 15
Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428 (D.C. Cir. 1995) ............................... 3
Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956 (9th Cir. 2015) .............................. 6
Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013) ............... 2
Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) .......................................................................... 4
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) .......................................................................... 12
Regents of the Univ. of California v. U.S. Dep't of Homeland Sec.,
No. 18-15068, 2018 WL 5833232 (9th Cir. Nov. 8, 2018) ..................................................... 15
Rodriguez v. Smith, 541 F.3d 1180 (9th Cir.2008) ...................................................................... 13
Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005) ...................................................................... 13, 14
SurvJustice Inc. v. DeVos, 2018 WL 4770741 (N.D. Cal. 2018) ................................................... 3
Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015) ............................................................................. 13
United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010) ........................................................... 8,9
Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ..................................................... 3, 4
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ................................................................. 15
Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980) .............................................................. 11, 12
Statutes
5 U.S.C. § 553(c) ............................................................................................................................ 4
8 U.S.C. § 1101(i)(1) ...................................................................................................................... 6
8 U.S.C. § 1158(a)(1) ........................................................................................................ 1, 12, 15
8 U.S.C. § 1158(b)(2)(C) ............................................................................................................. 13
8 U.S.C. § 1158(d)(4)(A) ................................................................................................................ 5
8 U.S.C. § 1158(d)(4)(B) ................................................................................................................ 5
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 5 of 22
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8 U.S.C. § 1182(a)(6)(A)(i), ........................................................................................................... 1
8 U.S.C. § 1184(p)(3)(A) ................................................................................................................ 1
8 U.S.C. § 1228(a)(2) ...................................................................................................................... 6
8 U.S.C. § 1228(b)(4)(B) ................................................................................................................ 6
8 U.S.C. § 1229(a)(1) ...................................................................................................................... 5
8 U.S.C. § 1229(b)(2) ..................................................................................................................... 5
8 U.S.C. § 1325 ............................................................................................................................... 1
8 U.S.C. § 1443(h) .......................................................................................................................... 6
8 U.S.C. § 1522(a)(2)(A) ................................................................................................................ 5
8 U.S.C. § 1522(b)(1)(A) ................................................................................................................ 5
8 U.S.C. § 1522(c)(1)(A) ................................................................................................................ 5
8 U.S.C. § 1522(d)(2)(A) ................................................................................................................ 5
Regulations
83 Fed. Reg. 55943 ....................................................................................................................... 10
83 Fed. Reg. 55945 ....................................................................................................................... 10
83 Fed. Reg. 55950 ............................................................................................................ 8,9,11,12
Legislative History
H.R. Rep. 96-608, 96th Cong., 1st Sess. (Nov. 9, 1979) ............................................................. 15
S. Rep. No. 79-752 (1945) ........................................................................................................... 11
Other Authorities
Comment of American Immigration Lawyer’s Association on proposed immigration appeal
regulation (Aug. 18, 2008) .......................................................................................................... 4
EOIR, Statistics Yearbook: Fiscal Year 2017................................................................................. 9
Nick Miroff & Missy Ryan, Army assessment of migrant caravans undermines Trumps rhetoric,
Washington Post (Nov. 2, 2018) ................................................................................................. 9
U.S. Border Patrol, Southwest Border Deaths by Fiscal Year (accessed November 16, 2018) ..... 9
Vanessa Romo, LGBT Splinter Group from Migrant Caravan is the 1st to Arrive in Tijuana, NPR
(Nov. 13, 2018) .......................................................................................................................... 9
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 6 of 22
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Reply Brief in Support of TRO
Case No. 18-cv-06810
INTRODUCTION
With much publicity, the President announced that a new Proclamation was forthcoming to
bar asylum for those who enter between ports of entry. But the government now concedes, as it
must, that the new Proclamation has nothing to do with asylum and does no work here. See Opp. 22
(“The proclamation does not deny anyone asylum, but simply suspends entry . . . .”). Indeed, the
proclamation itself appears to be essentially for show, as it bans a group of individuals who, by
definition, are already banned by federal law. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1325. Section
212(f) grants the President authority to suspend entry—not to limit the relief available to individuals
who have already entered. TRO 16. Were it otherwise, the President could essentially rewrite the
Immigration and Nationality Act (“INA”), expanding his entry power to an assertion of unilateral
and unlimited authority.
Instead, the government relies exclusively on the regulatory interim final rule. But the rule
contravenes the express terms of the statute stating that applicants may apply for asylum “whether or
not” they enter at a port. 8 U.S.C. § 1158(a)(1). The government offers a hodgepodge of reasons
why the Attorney General can override that express language, but none can survive scrutiny. The
government likewise offers no persuasive reason why it was justified in discarding the
Administrative Procedure Act’s (“APA”) procedural rules. There have been caravans before, as well
as high numbers of asylum seekers, yet in 40 years Congress has never changed the rule allowing
asylum for those who cross between ports.
The government seeks to portray Plaintiffs as encouraging individuals to enter illegally. The
government may, of course, require individuals to cross at ports. But asylum is special and
fundamental. Congress, therefore, made clear, four decades ago, that if an individual did happen to
cross between ports, she could still apply for asylum, because the manner of entry cannot justify
sending someone back to persecution or death. Yet that is precisely what will occur if the
Administration’s new rule takes effect.
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 7 of 22
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Reply Brief in Support of TRO
Case No. 18-cv-06810
I.
PLAINTIFFS’ CLAIMS ARE JUSTICIABLE.
A. Plaintiffs Have Established Article III Standing.
The Organizational Plaintiffs have or will suffer at least two cognizable Article III injuries as
a result of Defendants’ actions: First, Plaintiffs will suffer an imminent loss of funds and the
potential closure of entire organizational programs. Smith Decl. ¶¶ 14-16 (noting risk of losing
approximately $304,000, as well as closure of affirmative asylum program); Pinheiro Decl. ¶ 11
(explaining increase in losses of reimbursements); Sharp Decl. ¶ 12 (same); see City & Cty. of San
Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018) (anticipated “loss of funds” sufficient for
injury); Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 519 (N.D. Cal. 2017) (Orrick, J.) (same);
see also Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1165 (9th Cir. 2013)
(“closure” of organization’s programmatic activities constituted separate injury); Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015) (“An organization’s ability to provide
services has been perceptibly impaired when the defendant’s conduct causes an ‘inhibition of [the
organization’s] daily operations.’”). Second, Plaintiffs will suffer a Havens Article III injury
resulting from both the (a) impairment of Plaintiffs’ missions, and (b) forced diversion of
organizational resources to address this impairment. Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982). See, e.g., Manning Decl. ¶ 11 (explaining need to deploy expensive and limited
engineering resources to recode software for training purposes, which could force Innovation Law
Lab to cease most of its pro bono activities).
Defendants, without evidence, conclusorily assert that these injuries are “speculative” and
“self-inflicted.” Opp. 8. But Plaintiff Al Otro Lado has, for example, already suffered Havens
injuries from Defendants’ new policy. Core to Al Otro Lado’s mission is the representation and
assistance it provides to asylum seekers. Pinheiro Decl. ¶ 4. In the week since the new policy has
been enacted, Plaintiff Al Otro Lado has been impaired from carrying out these core functions.
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Case No. 18-cv-06810
Supp. Pinhero Decl. ¶¶ 15-22.1
Defendants are also wrong in suggesting the harms Plaintiffs allege under Havens are
insufficient because, one, the new policy does not “prevent” Plaintiffs from carrying out their
missions, and, two, the costs incurred as a result of the new policy are not the type of costs required
for Article III injuries. Opp. 8. First, Havens does not require that Plaintiffs be categorically
“prevented” from carrying out their organizational missions, but simply “impaired” or “frustrated.”
455 U.S. at 369, 379 (racial policies did not wholly prevent organization from improving equal
opportunity housing, but “frustrated” and “perceptibly impaired” this goal); see also Valle del Sol
Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (law “perceptibly impaired” mission to assist
immigrants by “deterring” volunteers) (citing Havens, 455 U.S. at 379). Here, because they can no
longer pursue asylum applications for clients entering without inspection, Plaintiffs are sufficiently
limited in effectively carrying out their respective missions of representing asylum seekers to have
standing. Smith Decl. ¶¶ 5-6; Sharp Decl. ¶¶ 4-5; Pinheiro Decl. ¶¶ 5-6; Manning Decl. ¶¶ 3-4.
Plaintiff EBSC may even be forced to shut down or significantly reduce a considerable part of its
asylum representation as a result of this policy. Smith Decl. ¶ 14.2 Second, the costs organizations
will incur to respond to these policies are costs to “counteract this frustration of mission.” Valle del
1 Contrary to Defendants’ suggestion, Havens’s standing holding did not turn on the
particular claim at issue. Opp. 9. Havens injuries regularly are the basis for standing in all types of
challenges. See, e.g., Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1298 (S.D. Cal. 2018);
SurvJustice Inc. v. DeVos, 2018 WL 4770741, at *1 (N.D. Cal. 2018) (Corley, Mag.); Animal Legal
Def. Fund v. United States Dep't of Agric., 223 F. Supp. 3d 1008, 1016 (C.D. Cal. 2016); League of
Women Voters of United States v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016). Defendants’ reliance on
Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428 (D.C. Cir. 1995), is misplaced, because
there the organization did not present evidence it would be impaired from carrying out its mission, or
that it would expend resources “beyond those normally expended” in the regular course of business.
68 F.3d at 1434. In Assn for Retarded Citizens of Dallas v. Dallas Cty. Mental Health & Mental
Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994), the only “costs” identified were
related to the litigation challenging the wrongful acts of the defendants. 19 F.3d at 244. Plaintiffs
do not rely on diversion arising out of litigation costs.
2 Plaintiffs EBSC and Innovation Law Lab are also frustrated in their ability to train legal
professionals, a key component of their missions. Smith Decl. ¶¶ 7,19; Manning Decl. ¶ 9-11.
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 9 of 22
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Reply Brief in Support of TRO
Case No. 18-cv-06810
Sol, 732 F.3d at 1018, as envisioned in Havens. Rather than allocate resources to applying for
asylum for EWI clients, Plaintiffs will now have to reallocate these limited resources to applying for
more labor-intensive forms of relief for clients, and retrain staff and third party professionals to deal
with the new regulatory landscape. Smith Decl. ¶¶ 17-19; Sharp Decl. ¶¶ 10-13; Pinheiro Decl.
¶¶ 9-12; Manning Decl. ¶¶ 8-11.
B. Plaintiffs Are Within The Zone Of Interests.
The government wrongly asserts that Plaintiffs fall outside the relevant zone of interests for
their INA and APA claims. The zone-of-interests analysis is not “demanding,” requiring only that
the plaintiff’s interest be “‘arguably within the zone of interests to be protected or regulated by the
statute’ that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 567 U.S. 209, 224 (2012). A plaintiff does not have to be the intended beneficiary of a
statute to come within its zone of interests. See id. at 225. The test bars only interests “marginally
related to or inconsistent with the purposes” of the statute, meaning “the benefit of any doubt goes to
the plaintiff.” Id.
1.
As an initial matter, Plaintiffs are plainly within the zone of interests for the notice
and comment claim. “The notice and comment requirements are designed to ensure public
participation in rulemaking.” Paulsen v. Daniels, 413 F.3d 999, 1004 (9th Cir. 2005) (emphasis
added, alterations omitted). Indeed, the statute itself indicates the breadth of interests it
encompasses, directing agencies to afford all “interested persons an opportunity to participate in the
rule making.” 5 U.S.C. § 553(c). Nonprofit organizations like Plaintiffs are a key constituency that
comments on proposed regulations, particularly in the immigration context where individual
noncitizens are highly unlikely to comment on the proposed regulations that may affect them.3 The
3 See, e.g., Comment of American Immigration Lawyers Association on proposed
immigration appeal regulation (Aug. 18, 2008), available at
https://www.americanimmigrationcouncil.org/sites/default/files/general_litigation/BIAAWO-
regcmts.pdf; Supp. Manning Decl. ¶¶ 2-4; Seyler Decl. ¶¶ 3-6.
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Reply Brief in Support of TRO
Case No. 18-cv-06810
government responds that Plaintiffs fall outside the zone of interests of the INA, and therefore can
never raise a notice and comment claim. But the relevant zone of interest for a notice and comment
claim is the APA, 5 U.S.C. § 553, because that is the law Plaintiffs “say[] was violated.” Match-E-
Be-Nash-She-Wish, 567 U.S. at 224; see, e.g., California v. Health & Human Servs., 281 F. Supp. 3d
806, 823 (N.D. Cal. 2017) (Gilliam, J.) (holding that California could challenge a regulation
promulgated under the Affordable Care Act because it was in the zone of interests “of the APA’s
notice and comment provision”) (emphasis added).4
2.
Plaintiffs are also within the zone of interests for their claim under 8 U.S.C. § 1158.
The government dismisses Plaintiffs as “simply bystanders” to the asylum and refugee system. Opp.
10. But nonprofit organizations like Plaintiffs play a critical role, a role that Congress has
recognized in the INA by directing the government to consult with and fund nonprofits that assist
refugees. See, e.g., 8 U.S.C. § 1522(a)(2)(A) (directing quarterly consultation with nonprofit
organizations regarding refugees); id. § 1522(b)(1)(A) (grants to nonprofits to help refugees
integrate); id. § 1522(c)(1)(A) (similar); id. § 1522(d)(2)(A) (similar). And Congress in the INA
took steps to ensure that pro bono legal services of the sort that Plaintiffs provide are available to
asylum seekers. See 8 U.S.C. § 1158(d)(4)(A) (asylum seekers must be informed of their right to
counsel, partly to protect the asylum system from frivolous applications); id. § 1158(d)(4)(B)
(government must maintain a list of “pro bono” attorneys); 8 U.S.C. § 1229(a)(1), (b)(2) (same).
Indeed, throughout the INA, organizations like Plaintiffs are given a critical role to help immigrants
navigate the system. See, e.g., 8 U.S.C. § 1101(i)(1) (requiring, for potential T visa applicants, a
4 The government’s cases are not to the contrary. Capital Legal Found. v. Commodity Credit
Corp., 711 F.2d 253, 260 (D.C. Cir. 1983), did not involve a real notice and comment claim: the
plaintiff had by “artful pleading . . . recharacterized” a claim of violation of an agency’s regulation
as “de facto rulemaking.” Mendoza v. Perez, 754 F.3d 1002, 1016 (D.C. Cir. 2014), held only that
plaintiffs who satisfy the zone of interests of the substantive statute at issue also satisfy the zone of
interests for notice and comment. But that of course does not mean only such plaintiffs satisfy the
notice and comment zone—a question not addressed in Mendoza. In any event, as discussed below,
Plaintiffs do fall within the INA’s zone of interests.
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“referral to a nongovernmental organization that would advise the alien”); id. § 1184(p)(3)(A) (same
for U visas); 8 U.S.C. 1228(a)(2), (b)(4)(B); 8 U.S.C. 1443(h). That is more than enough to bring
them within the INA’s zone of interests.
The government attempts to dramatically heighten the standard for the zone of interests
analysis, stating that only individuals “applying for asylum” can qualify. But the Ninth Circuit has
explained that the rule “requires only that a party’s interests be ‘marginally’ related to the challenged
action.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 964 n.6 (9th Cir. 2015) (en
banc). Plaintiffs easily satisfy that test. Courts in this Circuit have therefore found Plaintiffs and
similar organizations to satisfy the zone of interests test in immigration cases. For example, Plaintiff
Al Otro Lado was held to satisfy the test in Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284,
1301 (S.D. Cal. 2018). The Court held that Al Otro Lado’s interests were “‘‘related to the basic
purposes of the INA’s’ goal of permitting aliens to apply for asylum in the United States at POEs
and not so marginally related that its interests fall outside the INA’s zone of interests.” Id.
Likewise, Doe v. Trump, 288 F.Supp.3d 1045, 1067-68 (W.D. Wash. 2017), held that non-profit
organizations’ “interests in effectuating refugee resettlement and absorption falls within the zone of
interest protected by the INA and the Refugee Act of 1980.” And the Ninth Circuit held in Hawaii
v. Trump that the State’s interest in refugee resettlement activities was sufficient to put it within the
zone of interests. 859 F.3d 741, 766 (9th Cir. 2017), vacated as moot, 138 S.Ct. 377 (2017).
The government relies primarily on the single-Justice opinion in INS v. Legalization
Assistance Project of L.A. Cty., 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers). As Al
Otro Lado explained, however, Justice O’Connor’s opinion is not binding and involved the
“concededly speculative” prediction of what the full Court might do were certiorari granted—not
any actual merits decision. Al Otro Lado, 327 F. Supp. 3d at 1300. More fundamentally, as the Al
Otro Lado Court further observed, Justice O’Connor’s analysis was tethered to the Immigration
Reform and Control Act of 1986 (“IRCA”). Id. at 1300-01. The Supreme Court had previously
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restricted standing specifically with regard to IRCA so, properly understood, “Justice O’Connor’s
view of IRCA’s zone of interests says much about the restrictive judicial treatment of challenges
concerning IRCA and little about the INA’s zone of interests.” Id. at 1301.5 Here, the zone of
interests test is satisfied.
C. Plaintiffs Have Established Third Party Standing.
In addition, Plaintiffs plainly have third-party standing to assert the rights of their clients,
who are indisputably within the zone of interests. See Immigrant Assistance Project, 306 F.3d at
867 (“legal aid organizations, like law firms, may have third party standing to assert the . . . rights of
their clients”) (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n. 3 (1989))
(emphasis omitted); see also Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (“we have recognized an
attorney-client relationship as sufficient to confer third-party standing”).
Plaintiffs have clients, including young children, who are seeking to enter the country to
apply for asylum but are being blocked by the new asylum ban. See Supp. Pinheiro Decl. ¶¶15-21.
These children are unaccompanied, and traveled to the U.S.-Mexico border to apply for asylum.
They have attempted to present at ports of entry, but have been told that they cannot be put on the
list to cross the border and apply for asylum without their parents and official documents. See Supp.
Pinheiro Decl. ¶¶ 6, 10, 19. Plaintiff Al Otro Lado has been told that if these children come to a port
of entry and try to get on a list to present, they will be taken into custody by the Mexican child
custody agency, despite their desire to apply for asylum in the United States. Id. ¶ 16, 19. In the
past, children not allowed on a list or otherwise not allowed to present at a port of entry who wished
5 Immigrant Assistance Project of Los Angeles Cty. v. INS, 306 F.3d 842, 867 (9th Cir. 2002),
on which the government also relies, is a subsequent decision in that same case and therefore
inapposite for the same reason. Moreover, its holding in relevant part addressed mootness, not the
zone of interests. And FAIR v. Reno, 93 F.3d 897 (D.C. Cir. 1996), “held only that members of an
anti-immigration group lacked statutory standing, based on their generalized objections to
immigration, to challenge a decision to accord relief to Cuban immigrants.” Batalla Vidal v.
Nielsen, 291 F. Supp. 3d 260, 270 n.3 (E.D.N.Y. 2018).
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to seek asylum would have, out of necessity, entered between ports of entry in order to seek asylum,
telling the first border officer they encountered that they feared return to their home country. Id.
¶ 14. Since the new rule, these children can no longer do so. Because of the barriers to seeking
asylum at the ports of entry, these children have no way to apply for asylum in the United States, and
are effectively trapped in dangerous border towns in Mexico, generally without any resources. Id.
¶ 13. Al Otro Lado is providing legal assistance and support to nine unaccompanied minors who
traveled to the United States to seek asylum but have been unable to do so because of the new
policy. Id. ¶ 17. Five of these children are from Honduras, identify as LGBT, and have legitimate
asylum claims. Id. “The attorney-client relationship . . . is one of special consequence,” and these
clients face practical “obstacles” to asserting this claim themselves, Caplin & Drysdale, 491 U.S. at
623 n. 3, including their youth, location abroad, and the dangerous and unstable conditions in which
they find themselves.
II.
THE ASYLUM BAN VIOLATES THE APA’S PROCEDURAL
REQUIREMENTS.
A. Defendants Have Not Shown Good Cause to Bypass Notice and Comment
Requirements.
Successfully invoking the good cause exception requires an agency to “overcome a high
bar,” as the exception is to be “‘narrowly construed and only reluctantly countenanced.’” United
States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010) (quoting Jifry v. FAA, 370 F.3d 1174, 1179
(D.C. Cir. 2004)); TRO 7-10. Defendants’ cursory and unsubstantiated assertion that abiding the
normal notice and comment procedures “could lead to an increase in migration to the southern
border to enter the United States before the rule took effect,” 83 Fed. Reg. 55950, cannot withstand
the rigorous scrutiny required. Indeed, Defendants’ reliance on Hawaii Helicopter Operators Ass’n
v. FAA, 51 F.3d 212, 214 (9th Cir. 1995), which involved a rash of recent helicopter crashes, only
underscores the lack of comparably concrete and imminent harm here. Defendants rely on the
number of apprehensions and deaths at the border, but apprehensions are far lower today than they
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have been in recent decades, and the number of border fatalities has remained stable for the last 20
years, belying any reason to believe that bypassing notice and comment was necessary. Declaration
of Adam Isacson, ¶¶ 3-5.6 “The good cause exception is essentially an emergency procedure,”
Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (emphasis added), and long extant
migration patterns can hardly be said to constitute an emergency.7
The government’s attempt to raise a specter of danger by referencing migrant caravans from
Central America is also unpersuasive. The military estimated days before the rule’s promulgation
that only “about 20 percent” of the caravan’s members were “likely to complete the journey.” Nick
Miroff & Missy Ryan, “Army assessment of migrant caravans undermines Trumps rhetoric,”
Washington Post (Nov. 2, 2018); see also Isacson Decl. ¶ 10. And many of the caravan’s members
were already expected to seek asylum at a port of entry, contrary to the rule’s unsupported claim that
they will seek to enter unlawfully.8
As Defendants emphasize, see Opp. 12-13, the rule supposes that fulfilling the notice and
comment obligations would cause “the thousands of aliens who presently enter illegally and make
claims of credible fear if and when they are apprehended would have an added incentive to cross
illegally during the comment period.” 83 Fed. Reg. 55950. But it offers nothing to support this
guesswork. As the Ninth Circuit has made clear, assertions of “conclusory speculative harms” are
6 See also U.S. Border Patrol, Southwest Border Deaths by Fiscal Year,
https://www.cbp.gov/sites/default/files/assets/documents/2017-
Dec/BP%20Southwest%20Border%20Sector%20Deaths%20FY1998%20-%20FY2017.pdf
(showing that for the last 20 years, there have been between 249 and 492 deaths at the southwest
border each year, and that the numbers from the last two years fall within that range).
7 The rule’s statistics about the number of noncitizens who receive positive credible fear
determinations and then do not file an application for asylum or do not appear for a regular removal
proceeding are highly questionable, as they are based on flawed methodology. See Cutlip-Mason
Decl. ¶¶ 10-15. In fact, 89% of asylum seekers appeared for their hearings in FY 2017. See
Complaint ¶ 77; EOIR, Statistics Yearbook: Fiscal Year 2017 at 33, Fig. 25,
https://www.justice.gov/eoir/page/file/1107056/download (last accessed Nov. 16, 2018).
8 See Isacson Decl. ¶ 10; Declaration of Allegra Love ¶ 9; Vanessa Romo, “LGBT Splinter
Group from Migrant Caravan is the 1st to Arrive in Tijuana,” NPR (Nov. 13, 2018),
https://www.npr.org/2018/11/13/667622622/lgbt-caravan-splinter-group-is-the-first-to-arrive-in-
tijuana.
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not sufficient to justify abandoning the APA’s fundamental procedural requirements. Valverde, 628
F.3d at 1167.9
In any event, Defendants’ speculation about changed incentives is not persuasive. Despite
Plaintiffs’ arguments and evidence in support, see TRO 8-9, Defendants nowhere explain how a
technical legal change in complex regulations will influence a migrant’s decision about when and
how to seek protection in the United States, nor how a significant number of asylum seekers would
become aware of the notice and comment period, would purposefully try to enter between ports of
entry rather than at a port before the rule’s promulgation, and would be able to do so given the
lengthy and resource-intensive journey involved. Indeed, quite the contrary is true. Pinheiro Decl.
¶¶ 26-42 (explaining that many individuals who enter without inspection are totally unaware of ports
of entry; lack formal education; get lost on the way to the border; are forced to enter away from ports
of entry by criminal groups; and face often insuperable barriers to presenting at a port of entry);
Supp. Isacson Decl. ¶ 12.
Finally, insofar as the Government relies on the burden of processing the asylum claims of
noncitizens who enter between ports of entry, see, e.g., 83 Fed. Reg. 55945, the new policy will
make little difference. An asylum officer conducts the same credible fear interview whether a
noncitizen enters at a port of entry or is apprehended after entering without inspection, and USCIS
expends the same level of resources to process an asylum seeker who enters at a port of entry as one
who enters between ports. See Declaration of Leon Rodriguez ¶ 7. Even now, under the new policy,
a noncitizen who enters without inspection and voices a fear of persecution will receive a reasonable
fear interview for withholding of removal and Convention Against Torture relief, which is no less
time consuming than a credible fear interview for asylum. See 83 Fed. Reg. 55943.
The inferential leaps in the interim final rule are far from sufficient to justify reliance on the
9 The government cites prior regulations where the APA’s procedural requirements were
bypassed, see Opp. 12 but the Government’s burden is to substantiate its concern in this context. In
any event, those prior regulations were apparently never tested in court.
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good cause exception. They also underscore the wisdom of notice and comment. Had Plaintiffs and
amici been given the opportunity, they would have corrected the misguided assumptions set out in
the rule and thereby advanced the fundamental transparency and public accountability values that
Congress intended for notice and comment to promote.
B. The Foreign Affairs Exception Does Not Apply.
As with the good cause exception, the foreign affairs exception is subject to a rigorous
standard. TRO 10-11. Congress warned against interpreting the phrase “‘foreign affairs function’
. . . loosely . . . to mean any function extending beyond the borders of the United States.” S. Rep.
No. 79-752, at 13 (1945). It therefore is not enough to trigger the exception that there is a general
nexus between immigration and foreign affairs. See Yassini v. Crosland, 618 F.2d 1356, 1360 n.4
(9th Cir. 1980) (per curiam) (“The foreign affairs exception would become distended if applied to
INS actions generally, even though immigration matters typically implicate foreign affairs.”).
Otherwise, something Congress intended to be an exception would swallow an impermissibly broad
range of regulations.
Under this strict test, Defendants cannot simply refer generally to “[t]he flow of aliens across
the southern border” or “Presidential proclamations invoking section 212(f) or 215(a)(1) of the INA
at the southern border.” 83 Fed. Reg. 55950; see also Opp. 14-15. And the imagined “crisis” is
nothing like the two examples of “dire national emergencies – the September 11 attack and the
Iranian hostage crisis,” Doe, 288 F.Supp. 3d at 1076 – where courts have credited the narrow foreign
affairs exception in the immigration context. The questions in those cases were so urgent, sensitive,
and inextricably tied to exclusive executive-branch expertise that notice and comment would not
have been material to the decision-making criteria ultimately used. See Yassini, 618 F.3d at 1361
(urgent efforts “to secure the release of hostages”). Permitting the foreign affairs exception for
changes in legal standards governing asylum relief would swallow all immigration regulations.
Regardless of what may be true in the Second Circuit, see Opp. 16 (citing Rajah v. Mukasey,
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544 F.3d 427, 437 (2d Cir. 2008)), in the Ninth Circuit, “[f]or the exception to apply, the public
rulemaking provisions should provoke definitely undesirable international consequences.” Yassini,
618 F.2d at 1360 n.4. Defendants emphasize the rule’s vague references to “sensitive and ongoing
negotiations with Mexico about how to manage our shared border” and “a safe third-country
agreement.” Opp. 14-15 (quoting 83 Fed. Reg. 55950). But those generalized assertions are
unsupported by any actual evidence that “undesirable international consequences” will result from
following rulemaking procedures. Yassini, 618 F.2d at 1360 n.4; see also id. at 1361 (applying the
exception only after examining affidavits of the Attorney General and Deputy Secretary of State);
Jean v. Nelson, 711 F.2d 1455, 1478 (11th Cir. 1983) (“The government at trial offered no evidence
of undesirable international consequences that would result if rulemaking were employed.”),
dismissed in relevant part as moot, 727 F.2d 957 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846
(1985); Doe, 288 F. Supp. 3d at 1076 (“The court is simply unwilling to apply the exception without
some evidence to support its application.”). If courts demanded evidence in cases involving
situations with much clearer diplomatic implications, see e.g., Yassini, 618 F.2d at 1358 (Iranian
hostage crisis), this Court should certainly demand as much here, where there is no acute crisis. Yet
Defendants have offered none.
III.
THE ASYLUM BAN VIOLATES THE INA.
Defendants concede, Opp. 22, that it is only the regulation, and not the Proclamation, that
bars asylum. But the Attorney General has no authority to ignore Congress’s clear statutory
language permitting asylum “whether or not” one enters at a port. 8 U.S.C. § 1158(a)(1); TRO 12-
15.
The government offers an empty distinction: noncitizens who enter without inspection “may
apply” for asylum, but the Attorney General can categorically render that exact same group
“ineligible” for asylum. Opp. 17. That is a distinction without a practical difference. Surely
Congress intended to have some effect on events when it enacted the emphatic language of
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§ 1158(a)(1). The government also argues that because the Attorney General has the discretion to
deny any particular asylum claim, he can adopt “categorical eligibility bars.” Opp. 20 (citing Lopez
v. Davis, 531 U.S. 230, 243 (2001)). It therefore argues that the new rule can be justified as an
exercise of discretion. But the statute specifically forbids the government from imposing the rule at
issue in this case. As the Ninth Circuit has repeatedly explained, an agency’s authority to make
categorical discretionary decisions cannot justify violating the terms set by Congress in the statute.
Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015) (“Lopez applies only when Congress has not
spoken to the precise issue . . . .”) (quoting Rodriguez v. Smith, 541 F.3d 1180, 1188 (9th Cir.2008)).
Thus, “[t]he agency cannot get in through the back door of the relief stage what it cannot do at the
eligibility stage.” Succar v. Ashcroft, 394 F.3d 8, 29 n.28 (1st Cir. 2005) (“because eligibility is
explicit in this statute, the Attorney General cannot categorically refuse to exercise discretion
favorably for classes deemed eligible by the statute”).10
The government further contends that the Attorney General has broad authority to establish
new bars to asylum, brushing aside that Congress authorized the Attorney General to adopt only
limitations “consistent with this section.” 8 U.S.C. § 1158(b)(2)(C). The Attorney General cannot
establish a rule inconsistent with the clear command of § 1158(a)(1). Indeed, the Ninth Circuit
previously rejected a similar attempt to eliminate an immigration provision by regulation. See Bona
v. Gonzales, 425 F.3d 663, 668 (9th Cir. 2005) (“because the ‘regulation redefines certain aliens as
ineligible to apply for adjustment of status . . . whom a statute, 8 U.S.C. § 1255(a), defines as
10 The government falls back on Matter of Pula, 19 I&N Dec. 467 (BIA 1987), which
approved of the consideration of unlawful entry as a factor in the overall discretionary analysis that
adjudicators must undertake after asylum eligibility is established. Opp. 19. But it misrepresents
that case’s relevance. As Plaintiffs explained, TRO 13 n.6, Pula merely held that manner of entry
could be one of many factors to consider in the discretionary analysis. And Pula itself underscored
that a decision allowing manner of entry to be one factor among many in individual decisions is one
thing; a categorical ban on asylum based on manner of entry is quite another. See Pula, 19 I&N
Dec. at 473 (manner of entry “should not be considered in such a way that the practical effect is to
deny relief in virtually all cases”). The government additionally relies on R-S-C v. Sessions, 869
F.3d 1176 (10th Cir. 2017), but that case addressed the asylum eligibility of individuals who reenter
the country after having been removed in light of another statutory provision enacted by Congress.
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eligible to apply[,]’ the regulation is invalid”) (quoting Succar, 394 F.3d at 9).11
IV.
THE OTHER TRO FACTORS WEIGH HEAVILY IN FAVOR OF
GRANTING RELIEF.
The government fails to identify immediate demonstrable harm from maintaining the status
quo that has prevailed since the Refugee Act was enacted 40 years ago. As noted, it asserts a “crisis
at the southern border,” Opp. 23, but it does not deny that current migration levels are no higher than
in recent years, and in fact much lower than in recent decades, TRO 9 & n.2, 10 n.5. Caravans have
been a regular presence throughout this time, and their members typically seek admission at ports of
entry. See Supp. Pinheiro Decl. ¶ 23; Love Decl. ¶¶ 6, 9. At best, the government is guessing at
what harm a TRO could conceivably cause.
In contrast, the harm its ban will cause to Plaintiffs and the public is very real. Plaintiffs are
facing catastrophic losses of funding that will force them to lay off employees, restructure their
operations, and potentially close down altogether, leaving numerous vulnerable asylum seekers in
the lurch. See Smith Decl. ¶ 14, 17 (layoffs, closing); Manning Decl. ¶ 11 (“cease most of [Law
Lab’s] pro bono activities”); Pinheiro Decl. ¶ 10 (re-routing “virtually all its resources” to removal
defense); Sharp Decl. ¶ 11-12 (“enormous strain” on operations and serious “financial strain”).
Meanwhile, thousands of asylum seekers, many of them families and young children who
have fled “epidemic levels of violence” in their home countries, will face the prospect of being sent
back to their persecutors. Pinheiro Decl. ¶ 16-20. It is no exaggeration to say that their lives will be
in danger because of the ban. Congress has already determined that it is in the public interest to give
them a chance to apply for asylum, regardless of where they enter our country. 8 U.S.C. §
1158(a)(1); see H.R. Rep. 96-608, 96th Cong., 1st Sess., at 17-18 (Nov. 9, 1979) (explaining that §
1158 serves “this country’s tradition of welcoming the oppressed of other nations” and “our
11 Defendants’ response to Plaintiffs’ international law argument misses the mark. See Opp. 22.
Even if the United States is not obligated to provide asylum as a form of relief, it cannot, consistent
with international law to which it has acceded, deny asylum based only on manner of entry. See
TRO 13 & n.7; Goodwin-Gill Decl.
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obligations under international law”). The public interest sharply favors maintaining the status quo.
V.
THE COURT SHOULD ENJOIN THE BAN IN FULL.
The government suggests that the Court cannot enjoin the ban in its entirety. Opp. 24. But
as a bedrock matter of administrative law, “[w]hen a reviewing court determines that agency
regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to
the individual petitioners is proscribed.” Regents of the Univ. of California v. U.S. Dep’t of
Homeland Sec., No. 18-15068, 2018 WL 5833232, at *24 (9th Cir. Nov. 8, 2018) (quoting Nat’l
Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998)). Moreover, the
Ninth Circuit has repeatedly upheld nationwide injunctions of the government’s immigration
policies. See Regents, 2018 WL 5833232, at *24; Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir.
2017), rev’d on other grounds, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1167
(9th Cir. 2017). Such relief “promotes uniformity in immigration enforcement,” and “is
commonplace in APA cases.” Regents, 2018 WL 5833232, at *25. And nationwide relief is
especially proper when it is “necessary to provide complete relief to the plaintiffs,” as the
government acknowledges. Opp. 25; see, e.g., Manning Decl. ¶ 7, 9, 11 (Innovation Law Lab serves
asylum-seekers across the country).
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Dated: November 16, 2018
Jennifer Chang Newell (SBN 233033)
Cody Wofsy (SBN 294179)
Julie Veroff (SBN 310161)
Spencer Amdur**** (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
jnewell@aclu.org
cwofsy@aclu.org
jveroff@aclu.org
samdur@aclu.org
Melissa Crow***
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue NW, Suite 100
Washington, D.C. 20009
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org
Mary Bauer***
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org
Attorneys for Plaintiffs
*Pro hac vice application pending
**Application for admission pending
*** Pro hac vice application forthcoming
Respectfully submitted,
/s/Lee Gelernt
Lee Gelernt
Judy Rabinovitz*
Omar Jadwat*
Anand Balakrishnan***
Celso Perez** (SBN 304924)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org
cperez@aclu.org
Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclu.org
vtalla@aclu.org
Baher Azmy*
Angelo Guisado*
Gita Schwarz***
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
T: (212) 614-6464
F: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gschwartz@ccrjustice.org
Case 3:18-cv-06810-JST Document 35 Filed 11/16/18 Page 22 of 22
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
1
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 1 of 11
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
2
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 2 of 11
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
3
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 3 of 11
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
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 4 of 11
Exhibit A
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 5 of 11
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.
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 6 of 11
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.
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 7 of 11
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).
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 8 of 11
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.
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 9 of 11
•
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.
Case 3:18-cv-06810-JST Document 35-1 Filed 11/16/18 Page 10 of 11
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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1
I, Brian Griffey, make the following declaration based on my personal knowledge
and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the
following is true and correct.
1. My name is Brian Griffey. I work with Amnesty International as a
Regional Researcher and Advisor on the United States of America. I
currently lead our US research on the situation of asylum seekers in the
United States.
2. In the course of my research on this topic from October 2017 to October
2018, I interviewed multiple individuals fleeing situations of apparent
persecution and/or risk of death or other ill-treatment. Several of these
individuals reported to me that they had been turned away from U.S. Ports
of Entry (POEs) by personnel of Customs and Border Protection (CBP)
without being permitted to request asylum from persecution in the United
States. Among the individuals and families with whom I spoke were
nationals from El Salvador, Guatemala, Honduras, Mexico and Somalia.
3. During our interviews my colleagues and I have seen the negative effects
caused by CBP’s failure to process asylum seekers who present at POEs. In
early May 2018, a colleague and I visited a shelter in Tijuana for lesbian,
gay, bisexual, transgender and intersex (LGBTI) people, which hosted a
group of 32 Central American transgender asylum-seekers traveling with
the caravan, whom CBP repeatedly turned away at the San Ysidro POE. In
the early morning of April 30, after they were first turned away by CBP,
two Guatemalan transgender women from the group were detained by
municipal police near the port-of-entry in Tijuana. They spent over a day in
jail with three other Latin American transgender women whom police had
separately arrested on the street. On May 2, one of the two Guatemalan
women, named Maritza, told my Amnesty International delegation about
her experience: “The police said, ‘Get in the patrol car.’ And I told them:
‘Why? But I’m doing nothing.’ They asked me about my papers, and I did
not have them. I told them that I came from the caravan, but they did not
care. They put me in the patrol car.” According to Maritza, the other
Guatemalan woman from the caravan said she was beaten by the municipal
police when detained, and had a wound on her neck in detention.
4. On May 6, a group of six armed men attacked and robbed the shelter where
11 LGBTI asylum-seekers were staying (including minors, and transgender
women from the caravan), setting the door of the shelter on fire. The
shelter’s legal representative informed me by phone that the men returned a
few hours later shouting homophobic slurs at the asylum-seekers, and
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2
threatened to kill them if they did not leave the neighborhood. Following
those death threats, 11 LGBTI asylum-seekers returned with a US
immigration lawyer to the San Ysidro POE to request asylum. The group
included trans women, as well as trans and gay unaccompanied minors. The
lawyer informed me that CBP officials claimed they still lacked capacity to
process these asylum seekers, and turned them away again despite the death
threats they faced in Mexico, as well as the potential of detention and
deportation by Mexican police.
5. Tijuana is a dangerous city, and asylum seekers are particularly vulnerable,
including to abuse by law enforcement authorities or criminals due to their
often irregular status or otherwise precarious situations. The longer they
wait, the greater the risk of harm.
6. The INM delegates for Baja California and Sonora states in Mexico
informed me in April and June, in person and by phone respectively, that
US authorities had encouraged them to detain and check the documents of
the very same asylum seekers whom CBP was turning away at the San
Ysidro and Nogales POEs, respectively. Both delegates interpreted those
communications from US authorities as encouragement of INM to deport
those asylum seekers from Mexico, after CBP turned them away at the
POEs and forced them to wait in Mexico.
7. On October 11, 2018, Amnesty International issued a report that I authored
in full, which documents inter alia the expanded practice of illegal
pushbacks as a matter of policy, along the entire US–Mexico border. The
second chapter of the report, focused entirely on such pushbacks, documents
consistent accounts of thousands of asylum seekers being forced to wait in
Mexico after seeking to request asylum at POEs along the borders of
Arizona, California and Texas. I also documented in our report allegations
of the detention and/or initiation of deportation proceedings against the
same asylum seekers whom CBP had turned away at POEs. A copy of the
report, entitled ‘You Don’t Have Any Rights Here’: Illegal Pushbacks,
Arbitrary Detention, and Ill-treatment of Asylum-seekers in the United
States (October 2018), is attached hereto as Exhibit A.
8. In a January 2018 report, Amnesty International found that Mexican
immigration authorities at INM forcibly returned thousands of people from
Honduras, El Salvador and Guatemala to their countries-of-origin, without
considering the risks and threats to their lives and security upon return,
violating international law and Mexican law in so doing. In a survey of 297
people who were detained by INM, 75 percent of those asylum-seekers told
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Amnesty International that INM did not inform them of their right to seek
asylum in Mexico. This was despite the fact that Mexican law expressly
requires this, and public officials assured Amnesty International that the
requirement is complied with. Even more alarming, Amnesty International
found that INM forcibly deported 40 percent of those people to their
countries-of-origin, despite their explicitly requesting asylum in Mexico or
expressing fear for their lives in their home countries. A copy of this report
is attached hereto as Exhibit B.
9. The United States cannot lawfully adopt a “safe third country agreement”
in order to turn away asylum-seekers at US ports-of-entry, when Mexico is
clearly violating its own obligations to protect asylum-seekers and refugees.
Because Mexico does not provide effective protection to all asylum-seekers,
it cannot be considered or treated as a uniformly safe country for them.
I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
______________________________________
BRIAN GRIFFEY
Executed on November 16, 2018 in Washington, DC
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Exhibit A
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OF ASYLUM-SEEKERS IN THE UNITED STATES
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Cover photo:
On 29 April 2018, at end of a month long journey north from Central America, a young boy looks from
Playas de Tijuana through the border barrier between Mexico and the United States. The group of
asylum seekers whom he traveled with is met by a solidarity march of people on the US side of the
barrier.
© Amnesty International / Sergio Ortiz Borbolla
Index: AMR 51/9101/2018
Original language: English
© Amnesty International 2018
Except where otherwise noted, content in this document is licensed
under a Creative Commons (attribution, non-commercial, no derivatives,
international 4.0) licence.https://creativecommons.org/licenses/by-nc-
nd/4.0/legalcode
For more information please visit the permissions page on our website:
www.amnesty.org Where material is attributed to a copyright owner other
than Amnesty International this material is not subject to the Creative
Commons licence.
First published in 2018 by Amnesty International Ltd.
Peter Benenson House, 1 Easton Street. London WC1X 0DW, UK
amnesty.org
Amnesty International is a global movement of more
than 7 million people who campaign for a world
where human rights are enjoyed by all.
Our vision is for every person to enjoy all the rights
enshrined in the Universal Declaration of Human Rights
and other international human rights standards.
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ideology, economic interest or religion and are funded
mainly by our membership and public donations.
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CONTENTS
1. EXECUTIVE SUMMARY
4
ILLEGAL PUSHBACKS
5
FAMILY SEPARATIONS
6
ARBITRARY AND INDEFINITE DETENTION
7
METHODOLOGY
8
KEY RECOMMENDATIONS
9
2. ILLEGAL PUSHBACKS OF ASYLUM-SEEKERS AT THE US–MEXICO BORDER
11
2.1 PUSHBACKS VIOLATE US AND INTERNATIONAL LAW
12
2.2 STATISTICS SHOW PUSHBACKS ARE UNNECESSARY
14
2.3 'WE CALL IT THE REOLVING DOOR': PUSHBACKS AT THE US-MEXICO BORDER
15
2.4 'ORDERS FROM WASHINGTON': ILLEGAL PUSHBACKS BECOME POLICY
17
2.4.1 CALIFORNIA - MEXICO BORDER
18
2.4.2 ARIZONA - MEXICO BORDER
20
2.4.3 TEXAS - MEXICO BORDER
21
2.5 'IT SEEMS LIKE EVERYBODY WANTS TO KILL US': PUSHED INTO HARM'S WAY
23
2.6 EXTERNALIZATION: MEXICO NOT A 'SAFE COUNTRY' FOR ALL ASYLUM SEEKERS
24
3. POLICY AND PRACTICE OF FAMILY SEPARATIONS CONSTITUTE TORTURE
27
3.1 'A TOUGH DETERRENT': FAMILY SEPARATIONS INTENDED
TO PUNISH AND DETER ASYLUM CLAIMS
28
3.2 'I AM CRYING A LOT': SEVERE PAIN AND SUFFERING FROM FAMILY SEPARATIONS
33
3.3 'I DIED AT THE MOMENT': ACCOUNTS OF EXTREME ANGUISH
OF FAMILY SEPARATIONS
36
3.4 US AUTHORITIES SEPARATED MORE FAMILIES THAN PREVIOUSLY DISCLOSED
42
3.5 INEFFECTIVE REMEDIES: FAMILY DETENTION IS NO SOLUTION
45
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4. ARBITRARY AND INDEFINITE DETENTIONS OF ASYLUM SEEKERS
48
4.1 'IT'S JUST ARBITRARY': BLANKET DENIALS OF PAROLE REQUESTS BY ICE
51
4.2 NONE OF US HAVE BEEN GIVEN PAROLE': ACCOUNTS
OF TRANSGENDER ASYLUM SEEKERS
53
4.2.1 THE 'TRANS POD' AT CIBOLA COUNTY CORRECTIONAL CENTER
54
4.3 'THEY DON'T RESPECT BLACK PEOPLE HERE': ACCOUNTS
OF AFRICAN ASYLUM SEEKERS
61
4.4 ALTERNATIVES TO DETENTION
66
5. CONCLUSION
67
RECOMMENDATIONS
67
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GLOSSARY
TERM
DESCRIPTION
ASYLUM-
SEEKER
An asylum-seeker is someone who has left their country seeking protection but has yet to be recognized
as a refugee. During the time that their asylum claim is being examined, the asylum-seeker must not be
forced to return to their country of origin. Under international law, being a refugee is a fact-based status,
and arises before the official, legal granting of asylum.
CBP
Customs and Border Protection (CBP) is a law enforcement agency of the US Department of Homeland
Security (DHS), operating in the border area and ports-of-entry of the United States. The US Border
Patrol is part of CBP.
DHS
US Department of Homeland Security.
FAMILIY UNIT
Under DHS policies, the term “family unit” typically means “families.” However, CBP in some cases uses
the term “family unit” to mean “family members.” Specific intended usage depends on context.
FISCAL YEAR
The US government classifies some official information by the Fiscal Year (FY), which runs from October
1 to September 30 of each year.
ICE
Immigrations and Customs Enforcement (ICE) is an agency of DHS, charged with carrying out detentions
and deportations of asylum seekers and migrants.
INM
The Mexican government’s National Institute of Migration (Instituto Nacional de Migración, or INM).
IRREGULAR
ENTRY
Crossing into a country without a migration status that complies with requirements of domestic
immigration legislation and rules. The term “irregular” refers only to a person’s entry or stay.
MARA
Colloquial name commonly given to organized criminal groups from the Northern Triangle that are
characterized by violent activities and generally associated with territorial control.
NORTHERN
TRIANGLE
The region of Central America including El Salvador, Guatemala, and Honduras.
PORT-OF-ENTRY
Ports-of-entry are official customs border entry points into the United States, where travellers show their
identification and travel documents and request entry.
PUSHBACKS
Pushbacks happen when people are forced back to the country they are trying to leave after crossing or
seeking to cross a border, without an opportunity to request asylum or otherwise challenge their forced
return.
REFOULEMENT
Forcible return of an individual to a country where they would be at risk of serious human rights violations
(the terms “persecution” and “serious harm” are alternatively used). It is prohibited by international law
to return refugees and asylum-seekers to the country they fled – this is known as the principle of non-
refoulement. Indirect refoulement occurs when one country forcibly sends someone to another country
that subsequently sends them to a third country where they risk serious harm; this is also prohibited
under international law.
REFUGEE
Refugees are individuals who fled from their countries-of-origin due to a well-founded fear of persecution,
from which their governments cannot or will not protect them. Asylum procedures are designed to
determine whether someone meets the legal definition of a refugee. When a country recognizes an
asylum-seeker as a refugee, it gives them international protection as a substitute for the protection of
their home country.
USCIS
The US Citizenship and Immigration Services (USCIS) is an agency of DHS, charged with processing
immigrant visa petitions, naturalization petitions, asylum applications, and refugee applications.
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In 2017 and 2018, President Trump’s administration has implemented immigration policies that have
caused catastrophic irreparable harm to thousands of people, have spurned and manifestly violated both
US and international law, and appeared to be aimed at the full dismantling of the US asylum system.
Those policies and practices have included, among others: (1) mass illegal pushbacks of asylum-seekers at
the US–Mexico border; (2) thousands of illegal family separations, through which the Trump administration
has deliberately and purposefully inflicted extreme suffering on families, ill-treatment which rose to the
level of torture in some cases; and (3) increasingly arbitrary and indefinite detention of asylum-seekers,
without parole, constituting cruel, inhuman or degrading treatment or punishment (ill-treatment) which is
absolutely prohibited in international law.
Based on public statements by US government officials, those policies and practices were indisputably
intended to deter asylum-seekers from requesting protection in the United States, as well as to punish and
compel those who did seek protection to give up their asylum claims.
“They told me, ‘you don’t have any rights here, and you don’t
have any rights to stay with your son.’ …For me I died at that
moment. They ripped my heart out of me. …For me, it would
have been better if I had dropped dead. For me, the world
ended at that point. …How can a mother not have the right to
be with her son?”
Valquiria, a 39-year-old Brazilian asylum-seeker, detained since March 2018, when US authorities forcibly separated her from her
6-year-old son, after they requested asylum at a port-of-entry in El Paso, Texas.
These are not isolated aberrations. The US Department of Homeland Security (DHS) has implemented
these interrelated policies in unison: closing the borders to asylum-seekers, and pushing them back into
harm’s way; and making life so intolerable in immigration detention facilities, that asylum-seekers would
think twice before requesting protection in the United States.
Fuelling these policies of cruelty with discriminatory and demonizing rhetoric, President Trump and his
cabinet members have routinely called asylum-seekers “criminals,” and denounced international standards
on refugee protection as legal “loopholes” and “magic words” that the administration has professed its
intention to abolish.
1. EXECUTIVE SUMMARY
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The Trump administration is waging a deliberate campaign of human rights violations against asylum-
seekers, in order to broadcast globally that the United States no longer welcomes refugees. Simultaneously,
the Trump administration is seeking to dismantle the US asylum system, including by narrowing definitions
of who qualifies for protection – in violation of international law.
Setting a dangerous precedent, the US government’s abrogation of its obligations under human rights and
refugee law is undermining the international framework for refugee protection, grossly violating the right to
seek asylum, and is inviting a race to the bottom by other countries.
ILLEGAL PUSHBACKS
In 2017 and 2018, despite historic lows in the number of people seeking to enter the US without legal
status, including asylum-seekers, the DHS border agency Customs and Border Protection (CBP) has
implemented an illegal de facto policy of pushbacks of asylum-seekers along the entire US–Mexico border
at official US border crossings (called “ports-of-entry”). Pushbacks of asylum-seekers are both illegal under
US law and violate US obligations under international refugee law.
By turning away asylum-seekers at US ports-of-entry, the United States has grossly violated their right
to seek asylum from persecution, and manufactured an emergency along the US–Mexico border. US
authorities have forced thousands of asylum-seekers to queue on the Mexican side of the border –
exposing them to risks of detention and deportation by Mexican immigration officials, and exploitation by
criminal gangs. CBP personnel have also regularly turned away Mexican nationals seeking asylum in the
United States, including unaccompanied minors.
Those mass pushbacks of asylum-seekers by CBP are plainly unlawful, and violate one of the most
fundamental principles of international refugee law: the prohibition on refoulement (forcing people to a
place where they might be at risk of serious human rights violations). This principle is incorporated into US
law, which requires border and immigration authorities to receive and refer asylum-seekers for an interview
with an asylum officer, in order to conduct individual assessments of any risks of persecution or torture that
they may face upon return.
Two senior Mexican immigration officials independently informed Amnesty International that US authorities
encouraged Mexico to detain and check the legal status of asylum-seekers whom CBP was forcing to wait
in Mexico, with a potential view to deporting them to their countries-of-origin. Any such deportations would
constitute indirect refoulement in violation of both US and Mexican authorities’ legal obligations.
Amnesty International documented in two 2017 reports that the asylum-seekers arriving at the US–
Mexico border are often in need of protection from persecution including targeted violence in their home
countries, after perilous journeys to the southern US border. Many have fled from the Northern Triangle
region of Central America (El Salvador, Guatemala and Honduras), where Amnesty International has
documented human rights violations often waged against civilians by or with the acquiescence of their own
governments.
The Trump administration has leveraged vague claims of “capacity” constraints, as an escape hatch to
violate its legal obligations to receive and process asylum-seekers’ requests for protection. There appears
to be no official written or other record of interactions between CBP officers and asylum-seekers when CBP
denies them the opportunity to claim asylum at US ports-of-entry. Yet CBP’s actions have been public,
consistent and synchronized at widely dispersed ports-of-entry, despite variations in the numbers of
asylum-seekers requesting protection at each crossing.
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In parallel to its systematic campaign of illegal pushbacks along the US–Mexico border, the US
government has sought to negotiate a “safe third country agreement” with Mexico. Under such an
agreement, the United States would recognize Mexico as a safe destination country for all asylum-
seekers, and stop accepting asylum claims at the US–Mexico border, except from those fearing
persecution in Mexico itself.
Under both US and international law, however, the United States cannot legally adopt a “safe third
country agreement” with Mexico, since it is not a uniformly safe country for all asylum-seekers. Amnesty
International has documented Mexican immigration officials routinely deporting asylum-seekers to
potential persecution in their countries-of-origin, in violation of Mexican and international law. Under US
law, DHS authorities therefore must continue to receive and provide individualized and fair assessments
of all requests for protection by asylum-seekers at US borders and on US territory.
FAMILY SEPARATIONS
In November 2017 in California, DHS officials tore apart four Central American families at once in the
same room: “You don’t have any rights here,” a DHS officer told an asylum-seeking father from El
Salvador, when he protested the handcuffing of his 12-year-old son. In March 2018 in Texas, a DHS
officer said the same phrase to an asylum-seeking mother from Brazil, while separating her from her
son: “You don’t have any rights here. And you don’t have any rights to stay with your son.” Both of those
families had documents proving their family relationships, and presented themselves at official US ports-
of-entry when requesting asylum from persecution in their countries-of-origin.
At first tested discretely in 2017, and then launched publicly in 2018, President Trump’s administration
implemented a policy of forcibly separating thousands of asylum-seeking families, in order to deter and
punish those crossing irregularly into the United States. Under its so-called “zero-tolerance” policy, the
US government claimed that family separations were a necessary result of criminally prosecuting all
asylum-seekers and others who crossed the US–Mexico border irregularly (i.e. between official ports-of-
entry). In reality, US authorities also separated many asylum-seekers who were not referred for criminal
prosecution – including those who sought protection at official border crossings – yet has continued to
deny and conceal the practice.
The US government has still not publicly disclosed the total number of families it forcibly separated
in 2017 and 2018. In September 2018, however, CBP provided statistics to Amnesty International
suggesting that the Trump administration separated approximately 8,000 “family units” – more than US
authorities had previously admitted to separating. Those statistics still seemed to omit hundreds – if not
thousands – of families separated at official ports-of-entry, or with non-parental relationships (including
grandparents, among others).
In 2018, Amnesty International interviewed 15 asylum-seekers whom DHS agencies separated from
their children, both prior to and following the introduction of the so-called “zero-tolerance” policy.
Most of these families were separated without being informed of why, and despite having documentary
evidence of their family relationships. In 13 of the 15 cases, DHS separated the families after they
requested protection at official US ports-of-entry. When they spoke with Amnesty International, some of
the separated parents and guardians were suffering from such extreme mental anguish that they wept
uncontrollably as they recounted their experiences, sometimes only seconds or minutes into interviews.
Amnesty International researchers witnessed the extreme mental anguish those family separations
caused, as well as instances of family separation being leveraged to compel a family to abandon their
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asylum claim. In some of the cases documented by Amnesty International, the harmful practice of family
separations satisfied the definitions of torture under US and international law.
“I believe that because of all of this I’m going through – the fear of going back to Brazil, the fear of being
separated from my grandchild, all of this together, I can’t stop thinking about it – that it’s making me
really sick,” said Maria (55), who was separated from her grandson with disabilities, Matheus (17), after
they requested asylum in New Mexico in August 2017. “I might need to go look for a psychologist. I don’t
remember things, and can’t sleep …I start to talk about something and forget what I was saying. I am
crying a lot also because I am still separated from Matheus.”
Family separations violate multiple fundamental human rights at once, including the right to family unity,
the right to liberty, and the right to freedom from torture and other ill-treatment. Both the prosecution
of asylum-seekers for irregular entry, and the forcible separation of their families, also violated US
obligations under international refugee law. Children’s rights are also violated in multiple ways through
family separations, including by exposing them to extreme and unnecessary trauma after being
separated. In the cases documented by Amnesty International, it was clear that authorities did not
consider children’s best interests when separating them from their families.
ARBITRARY AND INDEFINITE DETENTION
In 2017 and 2018, the US government has implemented an official policy of mandatory and indefinite
detention of asylum-seekers, without parole, for the duration of their asylum claims.
The policy and practice of indefinitely detaining asylum-seekers, based solely on their migration status,
constitute arbitrary detention in violation of US and international law. Indefinite detention without
criminal charge is in violation of the UN Convention Against Torture, which the United States ratified and
integrated into US law.
“I applied for parole, with all the documentation requested,
but the request was denied. …I was not told the reason they
denied my parole, just that it was denied. None of us have
been given parole.”
Alejandra, a 43-year-old transgender rights activist from El Salvador, detained by ICE since December 2017 at the Cibola
County Correctional Center in New Mexico. ICE denied her parole three times in 2018, without justification.
Intended to deter and punish those who seek protection at the US–Mexico border, the US government
expanded the use of indefinite detention of asylum-seekers both through blanket denials of parole
requests by asylum-seekers in some regions, which a US federal court in July 2018 found likely to be
arbitrary and illegal; and through its family separations policy, by which it detained parents individually
without their children.
The US government has also sought legal authority to indefinitely detain unaccompanied children
and families with children, despite it being unlawful in the United States and contrary to international
standards.
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US authorities have leveraged the agony of prolonged detention in order to compel asylum-seekers
to “voluntarily” give up their asylum claims, and accept deportation back to their countries-of-origin
where they had fled persecution. That anguish of indefinite detention has often been amplified by family
separations and inadequate conditions of detention, including routinely substandard health care that has
contributed in some cases to asylum-seekers’ deaths in immigration detention facilities.
In three of the four US states bordering Mexico, Amnesty International interviewed asylum-seekers being
detained indefinitely after requesting protection, including separated family members, older people, and
persons with acute health conditions and medical needs.
Amnesty International also documented the impact of arbitrary immigration detention on 15 transgender
and gay asylum-seekers, who were detained for periods ranging from several months to over 2.5 years
without parole. In some cases those individuals were denied parole despite acute health conditions and
needs for specialized care, or following sexual assaults while in detention. Compounded by past trauma,
substandard health care, and reportedly inadequate physical conditions, food and water, as well as
discrimination based on sexual orientation, gender identity and/or ethnicity, Amnesty International found
some of those asylum-seekers’ experiences of indefinite detention had constituted ill-treatment.
METHODOLOGY
In 2017 and 2018, Amnesty International conducted extensive baseline research on the situation of
asylum-seekers in the United States and on the US–Mexico border, including through the review of legal
files, review of national and international legal standards, and consultations with relevant civil society
groups.
In January, April and May 2018, Amnesty International researchers conducted research missions along the
entire US–Mexico border, from the Pacific Ocean to the Gulf of Mexico. The research teams documented
not only the situations of asylum-seekers who sought to request protection at US ports-of-entry, but also the
conduct of US border and immigration authorities in facilitating and processing their asylum claims under
US law and international law and standards.
Amnesty International researchers interviewed a total of 52 asylum-seekers along the US–Mexico border,
including in all four US border states (California, Arizona, New Mexico, and Texas) and three Mexican
border states (Baja California, Sonora, and Chihuahua). Among those 52 asylum-seekers were 27 men and
25 women, including 15 transgender women. Amnesty International interviewed 28 asylum-seekers inside
ICE immigration detention facilities (in California, New Mexico, and Texas); 14 asylum-seekers in Mexico,
including 12 who were turned away and two who were removed by the United States to Mexico; three
asylum-seekers who were on parole at the time of the interview; and seven refugees who had been granted
asylum.
Amnesty International also interviewed 51 immigration lawyers, activists and other representatives of
nongovernmental organizations (NGOs); as well as 23 government and other officials. Among those officials
were 12 representatives of CBP or ICE, three US subcontractors at private detention facilities; six Mexican
immigration officials; and two Mexican municipal government officials.
Throughout 2018, Amnesty International conducted extensive follow-up research to corroborate first-hand
accounts of asylum-seekers, through review of court documentation, legal filings and other official records,
wherever possible, as well as follow-up correspondence and interviews with government officials, lawyers,
and NGOs.
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KEY RECOMMENDATIONS
TO THE US CONGRESS:
• Exercise greater oversight of DHS agencies to: halt the illegal pushbacks of asylum-seekers at US
ports-of-entry; curtail any executive overreach, especially this administration’s attempts to separate
and/or indefinitely detain asylum-seeking families and children; and end the arbitrary and indefinite
detention of asylum-seekers, in violation of international law.
• Increase funding for immigration judges, and USCIS asylum and refugee officers.
• Pass legislation banning the separation and/or detention of families with children.
• Support and fund community-based alternatives to detention, such as the previous Family Case
Management Program.
• Decriminalize irregular entry into the United States, in line with international standards, and ensure
that administrative sanctions applied to irregular entry are proportionate and reasonable.
• Ratify the UN Convention on the Rights of the Child, which the United States signed in 1995 and is
the only country in the world not to adopt.
TO THE US DEPARTMENT OF HOMELAND SECURITY:
ILLEGAL PUSHBACKS
• Immediately stop turning away asylum-seekers at the US–Mexico border, both at and between
official ports-of-entry.
• Discontinue all plans and actions that would require asylum-seekers at the US–Mexico border to
wait in Mexico during pendency of their asylum claims.
FAMILY SEPARATIONS AND DETENTION
• End detention of children, whether accompanied or unaccompanied, separated or held together
with their family, as it is never in their best interest.
• Reunify, unconditionally, as quickly as possible and sparing no costs, any and all children who
remain separated from their parents or guardians.
• Halt family separations in all circumstances, except following a rigorous determination of best
interests of the child, which must be articulated to family members and recorded in the case files of
those affected.
• Strengthen mechanisms and procedures to ensure that the separation of children of asylum-seekers
and migrants occurs only when it is in their best interest, including improved safeguards for the
determination of those best interests.
DETENTION OF ASYLUM-SEEKERS
• Ensure that liberty is the default position, and that the detention of asylum-seekers and other people
is exceptional and only resorted to when it is determined to be necessary and proportionate to a
legitimate purpose, based on an assessment of the individual’s particular circumstances.
• Resume and expand alternative-to-detention programs for all asylum-seekers, and particularly
asylum-seeking families, including the Family Case Management Program.
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TO THE US DEPARTMENT OF JUSTICE:
• In line with US obligations under the international human rights treaties to which it is party: prohibit
the practice of family separations; initiate a criminal investigation into the practice, and the harm
it has caused to those subjected to it; hold accountable all those who authorized the practice; and
grant compensation and other reparations to families who were separated, in order to ensure their
rehabilitation, with specific attention to the needs of children.
• Abandon efforts to recognize Mexico as a safe country for all asylum-seekers, in violation of US and
international law.
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In 2017 and 2018, the US government intensified a systematic and dangerous de facto policy of illegal
pushbacks against asylum-seekers, in order to prevent them from requesting protection at official US ports-
of-entry.
US officials call this de facto policy the “metering” of asylum claims. On 15 May 2018, DHS Secretary
Kirstjen Nielsen confirmed in a television interview that the practice of turning away asylum-seekers from
US borders is now effectively a policy, denouncing its legal obligation to receive and protect asylum-seekers
at US borders as a legal “loophole”:
“We are ‘metering’, which means that if we don’t have the resources to let them
[asylum-seekers] in on a particular day, they are going to have to come back. They
will have to wait their turn and we will process them as we can, but that’s the way
that the law works. Once they come into the United States, we process them. We
have asked Congress to fix this loophole. It’s a huge gaping loophole that we need
to fix because it is so abused.”1
CBP’s turning-away of asylum-seekers has been despite public statements2 from the US government that
its official policy remained to receive all asylum claims presented at US ports-of-entry.
The US Congress has acknowledged the illegality of the Trump administration’s ongoing pushbacks of
asylum-seekers at the border. While proposing over $58 billion in federal funding for DHS agencies, the
House Appropriations Committee in July 2018 called on DHS to “ensure that the United States is meeting
its legal obligations, to include reminding field officers and agents about CBP’s legal responsibilities to
ensure that asylum-seekers can enter at POEs [ports-of-entry].”3
The United States is prohibited from returning or turning away
people to territories where their life or freedom would be
threatened, whether directly or indirectly.
2. ILLEGAL PUSHBACKS OF
ASYLUM-SEEKERS AT THE US–
MEXICO BORDER
1. DHS Secretary interview on Fox News (15 May 2018): http://www.foxnews.com/transcript/2018/05/15/giuliani-mueller-cant-indict-or-
subpoena-president.html.
2. Statement on Twitter of DHS Secretary (17 June 2017): https://twitter.com/SecNielsen/status/1008467318744240128. See also, speech of
Attorney-General Sessions (18 June 2018): https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-national-sheriffs-
association-annual.
3. House of Representatives Committee on Appropriations, Report on DHS Bill 2019 (24 July 2018), at pp. 4 and 26. Available at: https://docs.
house.gov/meetings/AP/AP00/20180725/108623/HMKP-115-AP00-20180725-SD004.pdf.
© Amnesty International
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2.1 PUSHBACKS VIOLATE US AND INTERNATIONAL LAW
Pushing asylum-seekers back to the countries they are trying to leave is both illegal under US law4 and
unlawful under international law. US law and international law provide for asylum-seekers to request
protection either at official US ports-of-entry, or after they cross irregularly into the United States.5
The turning away of asylum-seekers violates the principle of non-refoulement, which is binding on all
countries in the world under customary international law, and is integrated into US legislation. The principle
of non-refoulement prohibits states from returning or turning away people to territories where their “life or
freedom” would be threatened.6 This is the cornerstone of all international law on refugees, and no state
may violate this obligation under any circumstances.
In an authoritative advisory opinion on state obligations under refugee law,7 the UN Refugee Agency
(UNHCR) held that the principle of non-refoulement is violated in situations of non-admission at the
border, and applies to returns not only to countries-of-origin, but also to “any other place” where a person
has reason to fear for their life.8 Most importantly, it holds that “States will be required to grant individuals
seeking international protection access to the territory and to fair and efficient asylum procedures.”9
The UN Convention Against Torture (CAT), which the United States has also ratified and incorporated into
US law, similarly forbids refoulement.10 In an elaboration of non-refoulement obligations under CAT, the UN
Committee Against Torture stressed that:
“States parties should not adopt dissuasive measures or policies, such as
detention in poor conditions for indefinite periods, refusing to process claims
for asylum or unduly prolong them, […] which would compel persons in need of
protection under Article 3 of the Convention to return to their country-of-origin
in spite of their personal risk of being subjected there to torture and other cruel,
inhuman or degrading treatment or punishment.”11
In conformity with those obligations, US law prohibits border authorities from pushing back asylum-
seekers across any land border, and requires authorities to refer asylum-seekers to an asylum officer for an
interview, in order to conduct individual assessments of any risks of persecution or torture that they may
face upon return.12
4. See 8 U.S.C. §1158–Asylum: https://www.law.cornell.edu/uscode/text/8/1158.
5. See above at n. 4. See also, UN Convention Relating to the Status of Refugees (1951), 189 UNTS 137, available at http://www.unhcr.
org/3b66c2aa10. Although the United States never ratified the 1951 Convention itself, it acceded to the 1967 Protocol, by which it became
bound by Articles 2 to 34 of the 1951 Convention. Protocol relating to the Status of Refugees (1967), 606 UNTS 267.
6. Article 33 of the 1951 Convention (ibid.) codifies the principle of non-refoulement by prohibiting returning an asylum-seeker “in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of
a particular social group or political opinion.”
7. The legal status of Advisory Opinions of the UNHCR is explained in the Statute of the Office of the UNHCR: http://www.unhcr.org/4d944e589.
pdf. These are generally seen as guidance for compliance with the 1951 Convention.
8. UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status
of Refugees and its 1967 Protocol, at para. 7: https://www.unhcr.org/4d9486929.pdf.
9. Ibid., at para. 8.
10. Article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), G.A. Res. 39/46:
“No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.”
11. UN Committee Against Torture, “General Comment No. 4 (2017) on the implementation of Article 3 of the Convention in the context of
Article 22” (9 February 2018): “States parties should not adopt dissuasive measures or policies, such as detention in poor conditions for indefinite
periods, refusing to process claims for asylum or unduly prolong them, or cutting funds for assistance programs to asylum-seekers, which would
compel persons in need of protection under Article 3 of the Convention to return to their country-of-origin in spite of their personal risk of being
subjected there to torture and other cruel, inhuman or degrading treatment or punishment.” Available at: http://www.ohchr.org/Documents/
HRBodies/CAT/CAT-C-GC-4_EN.pdf.
12. See above at n. 4. See also, 8 U.S.C. §1225(a)(2) – Inspection by immigration officers; expedited removal of inadmissible arriving aliens;
referral for hearing: https://www.law.cornell.edu/uscode/text/8/1225.
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The principle of non-refoulement
is binding on all countries in
the world under customary
international law, and is
integrated into US legislation.
The US government is keenly aware of its obligations
under US and international law to immediately receive any
asylum-seekers who present themselves at its land borders
and request international protection from persecution or
other serious harm.13 Through constant appeals to the
US Congress, bemoaning asylum claims as so-called
“loopholes” and “magic words,” the Trump administration
has implored lawmakers to relieve it of its obligations to
protect asylum-seekers and refugees.14 By doing so, the
administration has plainly acknowledged that it is indeed
bound by US asylum law, which regulates the relevant
conduct of US border officials.
As part of its efforts to dismantle the US asylum system, the current US government has sought to codify
refoulement through agency rulemaking, in a fashion that would violate both US and international law. In
particular, the US Department of Justice was reported in the media as seeking to deny the right to seek
asylum to all people (1) who cross irregularly into the United States before requesting asylum; (2) who
travel through more than one country to reach the United States; or (3) who spend more than two weeks
in any other country en route to the United States.15 According to media reports, those proposed changes
would exclude from the US asylum system even refugees who travel through countries that are unsafe for
them or lack functioning systems to provide asylum or other effective protection. The Trump administration
has also reportedly considered halting entirely the processing of asylum claims at ports-of-entry, and
instead requiring asylum-seekers to request protection from abroad, including in the countries where their
lives are at risk.16
Implementing those proposed changes through policies or regulations would violate US obligations under
international law, and could exceed the authority of the Attorney General and the DHS Secretary under
the Immigration and Nationality Act.17 Yet even absent that regulatory wish list, the US government’s
increasingly frequent practice of turning away asylum-seekers at the US–Mexico border, whether directly
or indirectly to potential harm, already plainly violates US obligations under both US immigration law and
international refugee law.18
13. See above at n. 4.
14. Attorney General Jeff Sessions, Remarks to the Executive Office for Immigration Review (12 October 2017): “We also have dirty immigration
lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words
needed to trigger the credible fear process.” Available at: https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-
executive-office-immigration-review.
15. Vox, “Exclusive: Trump administration plan would bar people who enter illegally from getting asylum” (29 June 2018): https://www.vox.com/
policy-and-politics/2018/6/29/17514590/asylum-illegal-central-american-immigration-trump.
16. New York Times, “Trump Administration Considers Unprecedented Curbs on Asylum for Migrants” (18 July 2018): https://www.nytimes.
com/2018/07/18/us/immigration-asylum-children.html.
17. See above at n. 4.
18. See above at n. 5.
One of several billboards erected by Amnesty International along the US–Mexico
border. This mobile billboard is pictured approaching the Ciudad Juarez side of
the Paso del Norte International Bridge to El Paso, Texas. (Amnesty International,
May 2018).
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The practice of illegal pushbacks of asylum-seekers by CBP is now the subject of two major lawsuits
against the Trump administration, filed by nongovernmental organizations (NGOs) and 17 US state
governments, respectively.19
2.2 STATISTICS SHOW PUSHBACKS ARE UNNECESSARY
As of August 2018, DHS boasted that its border agency CBP employs more than 60,000 personnel in the
United States.20 DHS also commands one of the largest immigration detention systems in the world, with
211 places of detention21 and the capacity to incarcerate approximately 40,000 people per day.22
To justify CBP’s increasingly frequent illegal pushbacks of asylum-seekers, the US government has claimed
that the daily number of asylum claims at US land border crossings is higher than ever before, and that
the United States does not have the “capacity” with its current staff and detention infrastructure to fulfill its
obligations under US and international refugee law.
DHS officials have repeatedly declined to provide Amnesty International with the actual numbers of
asylum-seekers requesting protection at the US–Mexico border.23 Based on available statistics, however,
the supposedly unmanageable number of asylum claims appears to be a fiction. Regardless of the actual
number, CBP is required under international law to consider the claims of all asylum-seekers, without
discrimination.24
The Trump administration has presented a negative and false narrative of overwhelming numbers of
asylum-seekers, in order to justify its illegal pushbacks and other efforts to undermine refugee protections.
President Donald Trump himself has pushed this narrative through demonizing and discriminatory rhetoric,
decrying asylum-seekers as dangerous “criminals”25 and “animals,”26 who are seeking to “infest”27 and
“invade”28 the United States.
19. WA v. Trump, States’ Motion for Expedited Discovery, (13 July 2018): https://ag.ny.gov/sites/default/files/child_declarations.pdf; and
news release on the approval of that motion: https://www.atg.wa.gov/news/news-releases/federal-judge-grants-ag-ferguson-s-request-
expedite-family-separations-suit. See also, Al Otro Lado v. Duke, No. 2:17-cv-05111-JFW (JPRx) (C.D. Cal. filed July 12, 2017): https://www.
americanimmigrationcouncil.org/litigation/challenging-customs-and-border-protections-unlawful-practice-turning-away-asylum-seekers.
20. DHS statement, “The Life Saving Missions of CBP” (20 August 2018): https://content/govdelivery.com/accounts/USDHS/bulletins/2074f23.
21. DHS Office of Inspector General, “ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or
Systemic Improvements” (18 June 2018): https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
22. DHS, ICE Budget Overview FY2019: https://www.dhs.gov/sites/default/files/publications/ICE%20FY19%20CJ.pdf.
23. Since January 2018, Amnesty International has repeatedly requested official statistics from DHS agencies on the monthly number of
asylum-seekers who sought protection at the US–Mexico border, whether at official crossings or after crossing irregularly. Notably, those figures
would not include those asylum-seekers whom CBP is summarily turning away at the US border after refusing to receive their claims, which CBP
does not record. Yet it would nonetheless offer a snapshot of the supposed “capacity” of US authorities to receive asylum-seekers, beyond which
it is apparently turning away hundreds or thousands of others. In January 2018, CBP’s Field Office Director for the San Diego Sector declined
to produce these statistics for his area of responsibility. The Executive Director of CBP’s Office of Intergovernmental Public Liaison told Amnesty
International for three months starting in February 2018 that he was working with field offices to obtain this requested data, before declining in
May 2018 to provide the information without a Freedom of Information Act (FOIA) request. Amnesty International submitted a one-page FOIA
request for the same information to DHS in June 2018, with a request for expedited processing due to the urgent humanitarian situation of those
being pushed back along the US–Mexico border. The request for expedited processing was denied, and DHS informed Amnesty International that
it would invoke an exception to further postpone its response time beyond what is typically required by agency policies. As of September 2018,
DHS has still not provided any of the requested official statistics.
24. UNHCR, “Protection of Asylum-Seekers in Situations of Large-Scale Influx” No. 22 (XXXII) 1981: https://www.unhcr.org/uk/excom/
exconc/3ae68c6e10/protection-asylum-seekers-situations-large-scale-influx.html.
25. Statement on Twitter of President Trump (18 June 2018): “Children are being used by some of the worst criminals on earth as a means to
enter our country. Has anyone been looking at the Crime taking place south of the border. It is historic, with some countries the most dangerous
places in the world. Not going to happen in the U.S.” Available at: https://twitter.com/realdonaldtrump/status/1008708576628625408?lang=en.
26. President Trump made the remark on 16 May 2018: “You wouldn’t believe how bad these people are. These aren’t people, these are
animals, and we’re taking them out of the country at a level and at a rate that’s never happened before.” Video available at: https://www.nytimes.
com/2018/05/16/us/politics/trump-undocumented-immigrants-animals.html.
27. Statement on Twitter by President Trump (19 Jun 2018): “Democrats are the problem. They don’t care about crime and want illegal
immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13.” Available at: https://twitter.com/realDonaldTrump/
status/1009071403918864385.
28. Statement on Twitter by President Trump (June 21): “We cannot allow all of these people to invade our Country.” Available at: https://twitter.
com/realdonaldtrump/status/1010900865602019329?lang=en.
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In reality, so far in 2018 the actual rate of people without legal status attempting to enter the US from
Mexico – including asylum-seekers – has stayed at about the same level as over the previous five years.29
During those previous five years, US authorities regularly received asylum claims without the undue delays
that CBP has systematically imposed at the border in 2018.
In 2017, the number of people apprehended by US Border Patrol after crossing the US–Mexico border
irregularly – that is, between official ports-of-entry – was the lowest on record in 46 years.30 In 2018, the
rate of apprehensions at the border remained at historic lows. President Trump publicly acknowledged in
April 2018 the 46-year low in rates of people seeking to enter the US irregularly, yet called those numbers
“still unacceptable.”31
In addition to those historically low national statistics, DHS officials have individually provided Amnesty
International with information that likewise suggested CBP’s decision to turn away asylum-seekers has not
always been a consequence of real capacity constraints. At the San Ysidro Port-of-Entry (POE), which is
the busiest land border in the Western Hemisphere32 and the site of frequent illegal pushbacks, senior CBP
and ICE officials informed Amnesty International that CBP has only actually reached its detention capacity
a couple of times per year33 and during “a very short period” in 2017.34 Nonetheless, in 2017 and 2018,
CBP personnel frequently turned away even small numbers of asylum-seekers at San Ysidro and other
ports-of-entry, without transparent explanations of why.
2.3 ‘WE CALL IT THE REVOLVING DOOR’: PUSHBACKS AT
THE US–MEXICO BORDER
In 2017 and early 2018, Amnesty International received reports of CBP illegally turning away asylum-
seekers all along the US–Mexico border. While some such reports were isolated instances of abuse
of authority, CBP has increasingly shut its doors to asylum-seekers entirely, citing usually unspecified
“capacity” constraints as preventing their processing of asylum claims on any given day. A shelter
coordinator in Tijuana informed Amnesty International that CBP personnel at the San Ysidro POE had in
2017 turned away about 20 unaccompanied minors whom his shelter hosted, without allowing them to
claim asylum at the US border. From January to April 2018, CBP turned back at least five more children
who were seeking asylum at the San Ysidro POE.35 The shelter coordinator said that most of those
unaccompanied minors were Mexican nationals who had fled from targeted violence in Guerrero and
Michoacán, which the United States recognizes to be two of Mexico’s most violent states.36
Amnesty International spoke briefly with one of those Mexican children at the shelter in January 2018
– a 17-year-old girl from Michoacán, who had fled for her life after she said cartels killed several of her
relatives. She confirmed that CBP had turned her away at the San Ysidro POE, and said that Mexican
immigration officials then informed her that Mexican asylum-seekers were not being accepted at that time.
The Mexican officials gave her a piece of paper with contacts for a local shelter, and told her to return and
29. FY2018, ending on 31 September 2018: https://www.cbp.gov/newsroom/stats/sw-border-migration.
30. US Border Patrol, “Southwest Border Sector Apprehensions: FY1960–FY2017”: https://www.cbp.gov/sites/default/files/assets/
documents/2017-Dec/BP%20Southwest%20Border%20Sector%20Apps%20FY1960%20-%20FY2017.pdf.
31. Statement on Twitter by President Trump (5 April 2018): https://twitter.com/realdonaldtrump/status/981859214380462081.
32. US General Service Administration website for San Ysidro Land Port-of-Entry: https://www.gsa.gov/about-us/regions/welcome-to-the-pacific-
rim-region-9/land-ports-of-entry/san-ysidro-land-port-of-entry.
33. Interview with ICE’s Assistant Field Office Director at Otay Mesa Detention Center, 1 May 2018.
34. Interview with CBP Field Office Director in San Diego, 5 January 2018.
35. Interview in Tijuana, 1 May 2018.
36. US Department of State, Mexico Travel Advisory (22 August 2018): https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/
mexico-travel-advisory.html.
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try again another time,37 before transporting her to the shelter. The shelter coordinator informed Amnesty
International that CBP only later processed the girl’s asylum claim when she returned to the port-of-entry
accompanied by a US immigration lawyer, who helped her exercise her right to seek asylum in the United
States.
Three shelters in Tijuana independently informed Amnesty International that Mexican nationals were more
frequently turned away by CBP than other nationalities when they presented themselves at the border to
request asylum. “We call it the revolving door system,” one shelter coordinator said. He noted that Mexican
women with children were those most frequently turned away, and suggested that it might be due to their
lack of knowledge of the asylum system, or to CBP not wanting to process families. Mexican immigration
officials told that shelter coordinator in late 2017 that they had a list for Mexican asylum-seekers waiting to
exit Mexico.38
According to a women’s shelter in Tijuana, CBP turned away about 25 Mexican women who were seeking
asylum at the San Ysidro POE on 27 April 2018.39 The shelter staff told Amnesty International that CBP
personnel at San Ysidro had similarly declined to receive any asylum-seekers at all on several Sundays in
2018.
In late December 2017, CBP turned away dozens of asylum-seekers at the San Ysidro POE, mostly from
Africa and Mexico. When 25 to 30 of the African asylum-seekers began sleeping in line in a plaza (“El
Chaparral”) on the Mexican side of the border crossing, Mexican municipal police cleared the plaza and
arrested those remaining asylum-seekers.40 Some stayed in shelters as they waited to again request asylum
in the United States, according to shelter coordinators who met with Amnesty International the following
week.41
In a meeting with Amnesty International on 5 January 2018, the CBP Field Operations Director in charge of
the San Ysidro crossing defended those pushbacks by citing capacity constraints: “So they weren’t being
allowed into the port-of-entry. We said, ‘we’re at capacity, so wait here.’ It’s because of our detention space
limitation, we were at capacity.”42 He added that CBP was not involved in or aware of the rationale for the
Mexican response of sweeping the plaza and detaining the asylum-seekers.
While CBP maintained that there were very rarely circumstances in which they exceeded their capacity to
receive asylum-seekers, it was nonetheless CBP’s most frequent justification for regularly reported illegal
pushbacks at the border.
The CBP Field Operations Director in San Diego told Amnesty International that a process exists to
investigate and sanction CBP officials if they deny asylum-seekers the opportunity to present their claims.
However, the official did not consider CBP pushbacks due to alleged capacity constraints to constitute
such an offense, and declined to share with Amnesty International how many (if any) CPB personnel were
sanctioned for illegal pushbacks in 2017.43
37. She showed the piece of paper to Amnesty International.
38. Interview in Tijuana, 1 May 2018.
39. Interview with shelter staff, 30 April 2018. The shelter staffer witnessed approximately 50 Mexican women leave her shelter on 27 April
with the intention of seeking asylum at the San Ysidro Port-of-Entry. She informed us that, from her understanding, only 25 of these 50 women
appeared to have successfully presented themselves at the POE and were processed for asylum by CBP. Half of the women who left the shelter
that morning to present themselves came back unsuccessful that day.
40. San Diego Union Tribune, “Asylum-seekers overwhelming US processing in San Diego ports” (26 December 2017): http://www.
sandiegouniontribune.com/news/immigration/sd-me-asylum-backlog-20171226-story.html.
41. One staffer recalled their shelter having hosted 21 African asylum-seekers after the release of those arrested by municipal police, including
men from Eritrea, Cameroon, DRC, Gambia, Ghana, Kenya, Sierra Leone, and Togo.
42. Interview with CBP Field Office Director at CBP Field Office, San Diego, 5 January 2018.
43. Interview with CBP Field Office Director at CBP Field Office, San Diego, 5 January 2018: “Where we substantiate the fact that somebody
was denied or turned around once they made a credible fear case, then we have internal actions that we take during the disciplinary process and
review. So there is a process for it. […] I wouldn’t be able to tell you that statistic, and it’s probably not something that we would release at this
point as far as numbers. Those are internal numbers of what we’re doing with staff. That’s not something our officers should be doing, turning
people away.”
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2.4 ‘ORDERS FROM WASHINGTON’: ILLEGAL PUSHBACKS
BECOME POLICY
Since April 2018, US authorities have more systematically conducted mass illegal pushbacks of asylum-
seekers along the entire US–Mexico border. CBP has used slowdown tactics to force asylum-seekers to
wait for days or weeks in Mexico before being allowed to seek protection at US ports-of-entry. While there
are no official statistics on how many people CBP has illegally turned away without processing their asylum
requests, Amnesty International has received numerous secondary reports from NGOs indicating that
CBP has forced thousands of asylum-seekers to wait in Mexico – including families with children, mostly
from Central America. As CBP increasingly turned away asylum-seekers at multiple ports-of-entry, queues
formed on the Mexican side of those crossings – exposing asylum-seekers to extreme temperatures, threats
of deportation, and potential exploitation or violence by criminal gangs and smugglers.
By seeking to prevent asylum-seekers from entering US ports-of-entry, the US government appeared to
assert an incorrect legal theory that CBP could escape its obligation to receive asylum-seekers’ requests for
protection, by physically restraining them on or around the border of US territory.44 Even at the outermost
perimeter of US territory, the turning away of asylum-seekers is a clear violation of international law.45
44. In a 27 June 2018 meeting with immigrant rights groups in El Paso, the Commissioner of CBP confirmed to attendees that its practice of
pushbacks was being implemented border-wide, supposedly due to capacity constraints at its ports-of-entry. An attendee at the meeting told
Amnesty International that the Commissioner elaborated upon the policy, noting that CBP was prescreening asylum-seekers and others without
legal status to enter the United States, apparently with the aim of preventing them from reaching the US ports-of-entry where they could claim
asylum. See, “BNHR and BIC meet with US CBP Commissioner on Border Crisis,” available at: http://bnhr.org/bnhr-and-bic-meet-with-us-cbp-
commissioner-on-border-crisis/; and KFOX14, “Local immigrant advocacy groups meet with CBP Commissioner regarding border situation” (26
June 2018): https://kfoxtv.com/news/local/local-immigrant-advocacy-groups-meet-with-cbp-commissioner-regarding-border-situation.
45. See Section 2.1 above.
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2.4.1 CALIFORNIA–MEXICO BORDER
The arrival of a large group of asylum-seekers at the San Ysidro Port-of-Entry on 29 April 2018 was a
watershed moment, following which the frequency and scale of CBP’s illegal pushbacks of asylum-seekers
surged all along the US–Mexico border. After a month-long northern journey through Mexico in April, about
200 Central Americans traveling together in “caravan” arrived in Tijuana, intending to request asylum in
the United States at the San Ysidro POE. Most of those asylum-seekers were families from the Northern
Triangle of Central America; half of them were children; and approximately 15 percent of them were
transgender individuals.46
Similar groups of asylum-seekers from the Northern Triangle have in recent years traveled together to
the US–Mexico border, as a way to provide safe passage for people who often face exploitation, abuse or
other violence along their journeys through Mexico. In May and November 2017, respectively, two smaller
caravans with a combined total of approximately 125 asylum-seekers were quickly and efficiently received
by CBP at the San Ysidro POE, who were expecting the groups’ arrivals.47
With the April 2018 caravan, however, the Trump administration signaled the start of its de facto policy of
illegal pushbacks of asylum-seekers into Mexico. President Trump seized on the optics of this larger group
of asylum-seekers, and heckled the caravan on Twitter for four weeks prior to its arrival in Tijuana.48 He
cited it also as his justification for deploying the National Guard to the US–Mexico border,49 even though
the group planned to present themselves formally at an official US port-of-entry. The week before the
caravan’s arrival in Tijuana, the DHS Secretary issued two statements calling the asylum-seekers criminals,
and threatening to prosecute and/or detain them indefinitely during the adjudication of their asylum claims,
until DHS could deport them to their countries-of-origin.50
Amnesty International sent a team of researchers to monitor CBP’s reception of the caravan participants
on 29 April 2018, when they planned to request asylum at the US border.51 Despite repeated requests for
meetings in advance of the caravan’s arrival, CBP authorities at both the San Diego Field Office and the
San Ysidro Port-of-Entry declined to meet with Amnesty International, or to provide any information on their
capacity or preparation to receive the asylum-seekers. When Amnesty International researchers requested
an impromptu meeting with the officer-in-charge of the San Ysidro POE immediately prior to the caravan’s
arrival on 29 April, CBP’s assistant port director accused Amnesty International of trying to “sneak into” the
port to obtain information, and directed the researchers to leave the port.
A few hours later, CBP closed its doors entirely to approximately 150 asylum-seekers from the caravan as
they approached the port-of-entry. This mass pushback occurred just minutes after a press conference
held by caravan participants announcing their intention to request asylum, following which they marched to
present themselves at the San Ysidro POE. Immediately prior to the caravan’s arrival, CBP emailed a public
statement to media announcing the closing of its doors to asylum-seekers due to “capacity” constraints,
46. See, Amnesty International, “Faces of the asylum-seeker caravan” (10 May 2018): https://www.amnesty.org/en/latest/news/2018/05/
americas-faces-of-the-migrant-caravan/.
47. Correspondence with caravan organizers in 2017 and 2018.
48. For instance, statement on Twitter by President Trump (3 April 2018): “The big Caravan of People from Honduras, now coming across
Mexico and heading to our ‘Weak Laws’ Border, had better be stopped before it gets there. […]” Available at: https://twitter.com/realdonaldtrump/
status/981121409807155200.
49. US Presidential Memorandum for the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security, “Securing the
Southern Border of the United States” (4 April 2018); available at: https://www.whitehouse.gov/presidential-actions/presidential-memorandum-
secretary-defense-attorney-general-secretary-homeland-security/.
50. DHS statement, “Secretary Nielsen Statement on Arrival of Central American ‘Caravan’” (25 April 2018; available at: https://www.dhs.gov/
news/2018/04/25/secretary-nielsen-statement-arrival-central-american-caravan); and DHS statement, “Secretary Kirstjen M. Nielsen Statement
on Central American ‘Caravan’” (23 April 2018; available at: https://www.dhs.gov/news/2018/04/23/secretary-kirstjen-m-nielsen-statement-
central-american-caravan).
51. Amnesty International media advisory, “Amnesty International monitors treatment of asylum-seekers at US–Mexico border (26 April 2018):
https://www.amnestyusa.org/press-releases/americas-amnesty-international-monitors-treatment-of-asylum-seekers-at-us-mexico-border.
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which nonetheless directed the asylum-seekers to present themselves “lawfully” at the closed port-of-entry,
or face prosecution.52
This CBP announcement was in stark contrast with DHS Secretary Nielsen’s statement the week before,
which claimed that DHS was deploying additional asylum officers and other personnel to swiftly adjudicate
the claims of those very same people from the caravan who were seeking asylum.53
Based on Secretary Nielsen’s own statement, and given that the administration had been tracking the
progress of the caravan through Mexico for a month, DHS clearly had the capacity to direct its resources
accordingly, in order to accommodate the arrival of the group and receive those asylum-seekers in need of
international protection at the US border.
After CBP’s disastrous reception of the caravan of asylum-seekers in April and May 2018, CBP officials
continued to systematically turn away asylum-seekers at the San Ysidro Port-of-Entry, and failed to adopt
any clear measures to increase reception of asylum-seekers and the processing of their claims as legally
required. When it resumed accepting some asylum requests, CBP received a maximum of only 20 to 40
asylum-seekers per day in May and June 2018, and sometimes fewer, according to NGOs active at the
California–Mexico border.
By systematically turning away asylum-seekers at the San Ysidro POE, CBP forced them to continue to
queue in Tijuana, even though the city is neither safe for all asylum-seekers, nor recognized as such by
US authorities. CBP and INM officials effectually outsourced the management of the queue to the asylum-
seekers themselves, who managed written lists of all those waiting to claim asylum.
By 8 May, the list of those waiting to claim asylum at
San Ysidro POE had grown to 350 people.54 A month
later on 10 June, that number had climbed as high
as 1,200 asylum-seekers who were stuck in limbo,
according to activists in Tijuana who were informally
monitoring the situation.55 On 5 July, the Los Angeles
Times reported that the list of asylum-seekers waiting
in Tijuana to be received by CBP had grown to nearly
2,000 people.56
As of 20 August 2018, a US immigration lawyer
at the Tijuana–San Diego border reported that the
wait list for asylum-seekers at El Chaparral was still
over 1,000 people. Asylum-seekers who attempted
to present themselves to CBP and were not on the
wait list were routinely turned away – including
unaccompanied minors and others with heightened
vulnerability, who received no differentiation or priority.
52. CBP statement, “Statement from Commissioner Kevin McAleenan on Operations at San Ysidro Port-of-Entry” (29 April 2018): https://www.
cbp.gov/newsroom/speeches-and-statements/statement-commissioner-kevin-mcaleenan-operations-san-ysidro-port.
53. DHS statement, “Secretary Kirstjen M. Nielsen Statement on Central American ‘Caravan’” (23 April 2018): “DHS, in partnership with DOJ,
is taking a number of steps to ensure that all cases and claims are adjudicated promptly – including sending additional USCIS asylum officers,
ICE attorneys, DOJ Immigration Judges, and DOJ prosecutors to the Southern border.” Available at: https://www.dhs.gov/news/2018/04/23/
secretary-kirstjen-m-nielsen-statement-central-american-caravan.
54. A caravan organizer informed Amnesty International by SMS from Tijuana on 8 May 2018.
55. A caravan organizer informed Amnesty International by email from Tijuana on 10 June 2018.
56. Los Angeles Times, “For many waiting in Tijuana, a mysterious notebook is the key to asylum” (5 July 2018): http://www.latimes.com/local/
california/la-me-asylum-seekers-notebook-holds-key-to-entry-20180705-story.html.
A group of mostly families waiting to request asylum, after being turned away by US
authorities at the San Ysidro Port-of-Entry on 29 April 2018. Most of the asylum-seekers
were families from the Northern Triangle of Central America. (Amnesty International)
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In June and August 2018, Amnesty International received reports from two human rights organizations
active in Tijuana that Mexican immigration officials had begun checking the identity documents of some
of those queuing outside the port-of-entry, and had detained some asylum-seekers with a view to their
deportation.
In August 2018, INM reportedly detained and removed non-Mexican asylum-seekers from the physical
line on the Mexican side of the port-of-entry, and in some cases processed them for removal from Mexico.
In doing so, INM divided the asylum-seekers into three groups, sorted by nationality: Mexican asylum-
seekers, Central American asylum-seekers, and other (mostly African) asylum-seekers. Non-Mexican
asylum-seekers without legal status in Mexico were reportedly taken into custody and transferred to an
INM detention center. Among them were a young man and an unaccompanied minor, who were staying at
a local shelter and were released after the shelter intervened. The two were reportedly slated for removal,
and INM had already initiated contact with the youths’ consulate to begin repatriation, such that they likely
would have been deported if not for the shelter’s intervention. CBP turned away both boys at the San
Ysidro POE in mid-September 2018, according to an immigration lawyer in Tijuana who was tracking their
cases.
Amnesty International researchers in Mexico and the United States left messages for the INM delegate in
Baja California in late August and early September 2018, requesting to discuss these reported incidents,
but did not receive a response. Despite being aware of the risks faced by the asylum-seekers in Mexico,
CBP continued to force them to stay in Mexico.
2.4.2 ARIZONA–MEXICO BORDER
When Amnesty International visited the DeConcini Port-of-Entry in Nogales, Arizona, on 4 May 2018, there
were no known lines or delays in the processing of asylum-seekers at the border. The following week on
12 May, the aid organization Kino Border Initiative (KBI) reported that CBP had begun to make asylum
seekers wait in Mexico, due to supposed space constraints within the port-of-entry. CBP officers at the
turnstiles screened identification documents before allowing people into the entry hall of the POE. On 17
May 2018, KBI informed Amnesty International that CBP had
finally ground receptions to a halt, a situation that escalated for
the next 10 weeks, as CBP forced hundreds of asylum-seekers to
wait in Mexico before being allowed to claim asylum.
According to KBI, from 20 May to 22 June, CBP processed an
average of five to 10 asylum applications per day, and forced
asylum-seekers to wait in lines ranging from 50 to 120 people
on the Mexico side of the Nogales border crossing. Those in
line endured summer temperatures sometimes exceeding 100
degrees Fahrenheit, as they waited for periods lasting from
several days to more than two weeks.
While CBP forced those asylum-seekers to queue in extreme
temperatures, the overall number of people without legal status to
enter the United States who were processed at the port-of-entry
appeared to drop from May to June, and was no higher than
other months.57
57. CBP statistics on “Southwest Border Inadmissibles by Field Office FY2018”: http://www.cbp.gov/newsroom/stats/ofo-sw-border-
inadmissibles.
Nogales-Mariposa Port of Entry in Nogales, Arizona. (Amnesty International,
May 2018).
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On 14 June 2018, a senior Mexican immigration official in
Sonora informed Amnesty International that US officials had
requested INM to detain and check the papers of the asylum-
seekers whom CBP was pushing back to the Mexican side of
the Nogales border crossing.
The INM official relayed also that he understood the request by US authorities implicitly to be for INM to
deport asylum-seekers without legal status in Mexico to their home countries from which they had fled.
At the end of July, CBP began temporarily to process asylum-seekers at more normal rates, following
prolonged pressure from KBI and other groups providing humanitarian and legal assistance to asylum-
seekers in Nogales.58 Yet in the last week of August, CBP again began to slow its processing of asylum
claims, and on 4 and 5 September declined to accept any asylum applications at all. In mid and late
September, CBP was again forcing asylum-seekers to wait in Mexico for up to two weeks before allowing
them to request asylum, processing an average of only two families per day according to KBI.
2.4.3 TEXAS–MEXICO BORDER
From May to August 2018, CBP systematically implemented its policy of illegal pushbacks at ports-of-entry
all along the Texas border with Mexico, forcing asylum-seekers to wait in extreme heat, and often to return
to potential harm and exploitation in some of Mexico’s most dangerous cities.
On 12 to 14 June, Amnesty International observed asylum-seekers waiting in line to be received by CBP
on the international bridge between Laredo, Texas, and Nuevo Laredo in Mexico. In what has become a
common sight from El Paso to the Rio Grande Valley, three CBP officials stood at the middle point of the
bridge, apparently to screen and prevent asylum-seekers from reaching the port-of-entry. Approximately 40
asylum-seekers from Latin America sat in a line on the bridge, forming a queue toward the Mexican side.
From May to August 2018, NGOs informed Amnesty International of similar scenes on multiple other
international bridges along the US–Mexico border in Texas. CBP had erected temporary checkpoints in the
centers of international bridges to Mexico in El Paso, Laredo, Roma, McAllen, and Brownsville. According
to observers, the checkpoints were usually staffed by three CBP officers, who checked documents of
primarily those approaching the border who appeared to be Latin American, and then denied asylum-
seekers access to the ports-of-entry, instructing them instead to return to Mexico. Lines of asylum-seekers
typically ranged from 20 to over 50 people, who waited for days or weeks in temperatures sometimes over
100 degrees Fahrenheit. In some cases, the US ports-of-entry were almost empty.
A legal coordinator at the organization Annunciation House in El Paso quoted CBP officers as expressing
that they “have orders from Washington” and were implementing instructions from senior levels of the
Trump administration: “We have orders not to let anybody in.” “This is a policy across the border.” “There
is no room for them right now. You can wait in line. Once there is room they can come in.” “It’s an order
from [Attorney General] Sessions.”59
58. Arizona Daily Star, “Director: Nogales port now keeping up with arrivals of asylum-seekers” (5 August 2018): http://www.tucson.com/news/
local/director-nogales-port-now-keeping-up-with-arrivals-of-asylum/article74f16ca2-96d3-5b76-ab59-89941635c059.html.
59. Declaration of Taylor Levy, Annunciation House (1 July 2018), pp. 2-16 (at pp. 8, 12): https://agportal-s3bucket.s3.amazonaws.com/
uploadedfiles/Another/News/Press_Releases/motion declarations 1-33.pdf.
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On the Mexico side of the bridges, in July 2018, three Mexican immigration officials informed the US
immigration lawyer Jennifer Harbury that they were screening asylum-seekers and preventing their access
to US ports-of-entry upon the request of CBP. One of the Mexican officials told her: “Yes, it’s a collaborative
program that we’re doing with the Americans.” The immigration officials were detaining non-Mexicans who
lacked valid Mexican transit visas, and threatened them with deportation if they returned to the bridge.
At the mid-point of the bridge, CBP again screened those who were able to pass through the Mexican
immigration filter, and forced them to wait on the half of the bridge closer to Mexico. According to Ms.
Harbury, the Mexican immigration officers informed her that when asylum-seekers crossed onto the bridge
without valid Mexican travel documents, CBP officers called on Mexican immigration officials to remove
them from the bridge.
Ms. Harbury informed Amnesty International that she spoke with two Honduran mothers who were
detained by Mexican immigration officials due to their lacking proper transit visas. One of the women was
pregnant, and detained with her other young child for four days. The other mother was detained with her
four children for seven days, and told by Mexican immigration officials that they would deport her family to
Honduras if they returned to the bridge again.
At two ports-of-entry, US authorities temporarily stopped receiving any asylum claims. On 17 July, CBP
officers stationed at the center of the Roma–Miguel Aleman international bridge informed Ms. Harbury
that CBP no longer accepted asylum applications at the Roma POE, and that they were instructing
asylum-seekers to travel to the Reynosa bridge (more than 60 miles away), potentially through dangerous
cartel-controlled territory on the Mexican side of the border. On 17 August 2018, KBI informed Amnesty
International that CBP and INM officials had closed the Laredo POE to asylum-seekers, and redirected
them to the Eagle Pass POE. At the Eagle Pass POE, CBP reportedly told asylum-seekers to sign up on a
waitlist managed by the municipal government. CBP was only reportedly processing six to seven people per
day, as over 100 asylum-seekers waited in makeshift migrant shelters in Piedras Negras, some of whom
were not allowed by municipal authorities to join the waitlist. Among them were families with small children,
some of whom were sick and required medical attention at the local hospital. KBI reported that many of
those asylum-seekers left Piedras Negras after being deterred by CBP and municipal authorities from
requesting asylum at the port-of-entry.
As hundreds of asylum-seekers – including families and children – waited on the Mexico side of the
international bridges for as long as three weeks, the security situations in those Mexican border cities in
the Rio Grande Valley deteriorated precipitously.60 In August 2018, the US Department of State issued a
public statement advising against all travel to the Mexican side of the border in Tamaulipas State, due to
widespread kidnappings, murder and other violence targeting civilians, from which law enforcement were
unable to protect them.61
On 26 July, approximately 50 asylum-seekers
queued on the McAllen–Reynosa bridge,
waiting to present their requests for protection
to US authorities at the McAllen Border Station.
They were primarily families from Central
America and Cuba, as well as one woman from
China. Most had been camping on the bridge
for five days, as temperatures climbed over 100
degrees Fahrenheit. (Photo: Jennifer Harbury)
60. According to emails from partners on the ground in Reynosa; media reports; and security risk updates from International SOS.
61. US Department of State, Mexico Travel Advisory (22 August 2018): https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/
mexico-travel-advisory.html.
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2.5 ‘IT SEEMS LIKE EVERYBODY WANTS TO KILL US’:
PUSHED INTO HARM’S WAY
In April and May 2018, Amnesty International documented in real time the negative consequences of
CBP’s refusal to receive requests for protection by asylum-seekers who had arrived in a “caravan” at the
San Ysidro POE on the California–Mexico border on 29 April.
Amnesty International researchers visited a shelter in Tijuana for lesbian, gay, bisexual, transgender
and intersex (LGBTI) people, which hosted a group of 32 Central American transgender asylum-seekers
traveling with the caravan, whom CBP repeatedly turned away at the San Ysidro POE. In the early morning
of April 30, after they were first turned away by CBP, two Guatemalan transgender women from the group
were detained by municipal police near the port-of-entry in Tijuana. They spent over a day in jail with three
other Latin American transgender women whom police had separately arrested on the street.
On 2 May, one of the two Guatemalan women, named Maritza, told Amnesty International about her
experience: “The police said, ‘Get in the patrol car.’ And I told them: ‘Why? But I’m doing nothing.’ They
asked me about my papers, and I did not have them. I told them that I came from the caravan, but they
did not care. They put me in the patrol car.” According to Maritza, the other Guatemalan woman from the
caravan said she was beaten by the municipal police when detained, and had a wound on her neck in
detention.62
On 6 May, a group of six armed men attacked and robbed a shelter where 11 LGBTI asylum-seekers were
staying (including minors, and transgender women from the caravan), setting the door of the shelter on
fire. The shelter’s legal representative informed Amnesty International, that the men returned a few hours
later shouting homophobic slurs at the asylum-seekers, and threatened to kill them if they did not leave
the neighborhood. “It seems like everybody wants to kill us,” the coordinator of the group of transgender
asylum-seekers wrote on Facebook.63 Following those death threats, 11 LGBTI asylum-seekers returned
with a US immigration lawyer to the San Ysidro POE to request asylum. The group included trans women,
as well as trans and gay unaccompanied minors. CBP officials claimed that they still lacked capacity to
receive the group’s asylum claims, and turned them away again despite the death threats they faced in
Mexico, as well as the potential of detention and deportation by Mexican police.64
CBP’s repeated illegal pushbacks of caravan members subjected those asylum-seekers in situations
of heightened vulnerability to additional human rights violations while they waited in Mexico – in short,
pushing refugees back into harm’s way.
On 29 April, immediately after the mass pushback of asylum-seekers in the caravan, the head delegate in
Baja California of the Mexican immigration agency, Instituto Nacional de Migración (INM), expressed doubt
to Amnesty International about CBP’s claims of capacity constraints, and voiced his frustration that they
were making INM do their dirty work: “The Americans [CBP] don’t give a shit about what’s going on in that
plaza today. They do care about what’s going on at the border today, right there: those 20 they care about,”
he said referring to the 20 asylum-seekers whom INM had allowed to sit at the turnstiles outside of the
entry hall where CBP authorities receive asylum-seekers’ claims.
62. She could not be immediately located for interview following her release.
63. For a description of the incidents, see the account posted by the coordinator of the group of transgender asylum-seekers: https://www.
facebook.com/flotte.roberto/posts/10159864577846337.
64. See video posted by the US immigration lawyer Nicole Ramos: https://www.facebook.com/nicole.ramos.184/videos/10156551488728923.
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In a revelation of what would constitute a clear violation of US obligations under refugee law, the INM
delegate informed Amnesty International that CBP requested INM to remove those 20 asylum-seekers from
the turnstiles, as well as the rest of the caravan members from the plaza at El Chaparral, where they were
camping on the Mexican side of the port-of-entry. Implicit in the CBP request, the INM delegate said, was
that such detentions could result in INM deporting those asylum-seekers who were not legally present in
Mexico.
“Everybody knows their [transit] visas are about to expire,” the INM delegate elaborated. “If I go out there
right now, and do an immigration sweep on the plaza,” he estimated that 40 percent of the asylum-seekers
would not have legal status to be in Mexico, and could be at risk of deportation.
Amnesty International’s delegation told the INM delegate that clearing the plaza would constitute a gross
violation of not only the right to seek asylum, but also the right to freedom of assembly, and potentially the
prohibition on deporting asylum-seekers back to persecution in their countries-of-origin.
The delegate responded to Amnesty International: “If we allow a migrant camp to grow here, we will be
Calais in six months. The French ended up burning down the thing!” he said, referring to the encampment
of asylum-seekers in France in 2015 and 2016.
2.6 EXTERNALIZATION: MEXICO NOT A‘SAFE COUNTRY’
FOR ALL ASYLUM SEEKERS
Amnesty International interview on 2 May 2018 with the directors of ICE’s Otay Mesa Detention Center in
San Diego, California:
ICE Senior Detention and Deportation Officer:
“Why don’t they [asylum-seekers] stay in Mexico, since it’s a safe third country?”
Amnesty International researcher:
“It’s not a safe country for all asylum-seekers, and it has not been declared as
one by the Attorney General.”
ICE Assistant Field Office Director:
“Well, it would make our job easier if it was.”
A group of 20 asylum-seekers
wait at the San Ysidro Port-of-
Entry for US authorities to receive
their asylum claims.
(Amnesty International, April
2018).
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As the US government waged its systematic campaign of illegal pushbacks along the US–Mexico border
in 2018, it simultaneously sought to negotiate a “safe third country agreement” (STCA) between the
United States and Mexico.65 Under such an agreement, the US Attorney General would recognize Mexico
as a “safe” destination country for all asylum-seekers, implying that no asylum-seeker would be at risk of
persecution or other serious human rights violation if returned to Mexico, or of refoulement from Mexico
to other countries. This designation would authorize US border authorities to reject all protection requests
of asylum-seekers arriving to the US from Mexico, except for those of Mexican nationals or others fearing
persecution in Mexico itself.
Under US law, Mexico could be designated as a “safe third country” only if asylum-seekers would not have
their “life or freedom” threatened in Mexico, and uniformly “would have access to a full and fair procedure
for determining a claim to asylum.”66 The fatal problem with this US plan is that Mexico is not a uniformly
safe country for all asylum-seekers.
In a January 2018 report,67 Amnesty International found that Mexican immigration authorities at INM
forcibly returned thousands of people from Honduras, El Salvador and Guatemala to their countries-
of-origin, without considering the risks and threats to their lives and security upon return, violating
international law and Mexican law in so doing. In a survey of 297 people who were detained by INM, 75
percent of those asylum-seekers told Amnesty International that INM did not inform them of their right
to seek asylum in Mexico. This was despite the fact that Mexican law expressly requires this, and public
officials assured Amnesty International that the requirement is complied with. Even more alarming,
Amnesty International found that INM forcibly deported 40 percent of those people to their countries-of-
origin, despite their explicitly requesting asylum in Mexico or expressing fear for their lives in their home
countries.
Amnesty International has also documented frequent cases of asylum-seekers transiting through Mexico
being subjected to discrimination, exploitation, sexual assault, murder or disappearance, and arrests and
beatings by law enforcement authorities.68
The United States cannot lawfully adopt a “safe third country agreement” in order to turn away asylum-
seekers at US ports-of-entry, when Mexico is clearly violating its own obligations to protect asylum-seekers
and refugees. Mexico does not provide effective protection to all asylum-seekers, and thus cannot be
considered or treated as a uniformly safe country for them. Under US law, DHS authorities must provide
individualized and fair assessments of all asylum claims presented by people seeking protection at US
borders and in US territory.69 Accordingly, anyone seeking asylum in the United States must have her or his
claim received and assessed fairly and impartially on its merits.
65. See, for example, statements by: US Attorney-General Sessions (https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-
remarks-executive-office-immigration-review); US Vice President Pence (https://www.whitehouse.gov/briefings-statements/remarks-vice-president-
pence-u-s-department-homeland-security-u-s-customs-border-protection-employees-imperial-ca); and DHS Secretary Nielsen (above at note 50;
and at https://www.dhs.gov/news/2018/07/11/readout-secretary-kirstjen-m-nielsen-s-meetings-guatemala).
66. See above at n. 4.
67. Amnesty International, “Mexico: Migration authorities unlawfully turning back thousands of Central Americans to possible death” (23
January 2018): https://www.amnesty.org/en/latest/news/2018/01/mexico-migration-authorities-unlawfully-turning-back-thousands-of-central-
americans-to-possible-death.
68. Amnesty International report, “Facing Walls: USA and Mexico Violations of the Rights of Asylum-seekers” (June 2017): https://www.
amnestyusa.org/wp-content/uploads/2017/06/USA-Mexico-Facing-Walls-REPORT-ENG.pdf. See also, Amnesty International report, “No Safe
Place: Salvadorans, Guatemalans and Hondurans seeking asylum in Mexico based on their sexual identity and/or gender orientation” (November
2017): https://www.amnestyusa.org/wp-content/uploads/2017/11/No-Safe-Place-Briefing-ENG-1.pdf. See also, Médecins Sans Frontières report,
“Mexico: An unsafe country for thousands of refugees fleeing violence in Central America” (20 June 2018): https://www.msf.org/mexico-unsafe-
country-thousands-refugees-fleeing-violence-central-america.
69. See above at n. 4.
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On 1 May 2018, asylum-seekers gather in El Chaparral, on the Mexican side of the San Ysidro Port-of-Entry between Tijuana and San Diego, after
two days of waiting for US authorities to receive their asylum claims. (Amnesty International)
Amnesty International opposes any national policies to automatically return asylum-seekers and refugees
to a supposedly “safe third country” (a country where the person can presumably receive protection),
because they undermine authorities’ obligation to undertake individualized assessments of asylum claims
and risks upon return to both the asylum-seeker’s country-of-origin and the third country. Without an
individualized assessment of each asylum-seeker’s claim, there is a heightened risk of refoulement to
ill-treatment, persecution or other irreparable harm, in violation of the asylum-seekers’ human rights.70 For
that reason, Amnesty International opposed – and continues to oppose – the STCA between Canada and
the United States.71
In a February 2018 report to the Human Rights Council, the UN Special Rapporteur on torture and other
forms of cruel, inhuman or degrading treatment or punishment, likewise admonished governments for
seeking to negotiate STCAs, and expressed his view that they were fundamentally illegal.72
70. Amnesty International report, No Safe Refuge (2016); available at: https://www.amnesty.org/en/documents/eur44/3825/2016/en/ (at pp.
6-7).
71. See, for example, Amnesty International Canada’s joint lawsuit (available at: https://www.amnesty.ca/legal-brief/canadian-council-refugees-
canadian-council-churches-amnesty-international-and-john-doe-v); report (June 2017: https://www.amnesty.ca/news/safe-third-country-
agreement-must-be-suspended-say-canadian-council-refugees-and-amnesty); and letter (January 2017: https://www.amnesty.ca/news/amnesty-
international-canada-must-strip-usa-“safe-third-country”-designation-refugees).
72. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/HRC/37/50 (26
February 2018), at para. 46: https://www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf.
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3. POLICY AND PRACTICE
OF FAMILY SEPARATIONS
CONSTITUTE TORTURE
On 6 April 2018, the Trump administration launched an industrial-scale campaign of forcibly separating
thousands of children from their asylum-seeking family members, under its so-called “zero-tolerance”
policy of criminally prosecuting adults who enter the United States irregularly.73 Upon apprehension
between official border crossings, DHS officials separated families, supposedly to refer the parents
or guardians for criminal prosecution, while DHS designated their children as “unaccompanied alien
children”74 and transferred them to be placed in shelters.
As images exploded on news and social media of DHS holding hundreds of young children in cages,
the Trump administration’s forcible separation of their families sparked international outcry and broad
condemnation from around the globe.75
The US government’s punitive and coercive policy of family separations – followed by the detention of
parents separately from their children – violates multiple fundamental human rights, including the right
to family unity,76 the right to liberty, and the right to freedom from torture and other ill-treatment, among
others.77 All of those rights are provided for in international human rights treaties, and incorporated into
US law, including the requirement to prioritize the best interests of the child.78 The prosecution of asylum-
seekers for irregular entry, and the subsequent forcible separation of their families, plainly violate US
obligations under refugee law,79 and DHS policy on family unity.80
73. Presidential memo on default detention of asylum-seekers (6 April 2018): https://www.whitehouse.gov/presidential-actions/presidential-
memorandum-secretary-state-secretary-defense-attorney-general-secretary-health-human-services-secretary-homeland-security/. Statement of
US Attorney General, “Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry” (6 April 2018): https://www.justice.gov/opa/
pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry.
74. TEDS Policy (2015), at Section 5.6 (Detention): “In those instances where a parent or legal guardian and a non-U.S. citizen child must
be separated, the non-U.S. citizen child will be classified as a UAC and will be processed accordingly.” Available at: https://www.cbp.gov/sites/
default/files/assets/documents/2017-Sep/CBP%20TEDS%20Policy%20Oct2015.pdf.
75. See, UN human rights agency (OHCHR) statement, “Children ‘as young as one’ involved in US separation of migrant families” (5 June
2018): https://news.un.org/en/story/2018/06/1011391. See also, OHCHR statement, “UN experts to US: ‘Release migrant children from
detention and stop using them to deter irregular migration’” (22 June 2018): https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID=23245&LangID=E.
76. An interference with the right to family life and family unity is arbitrary and a violation of that right if it is not both necessary and
proportionate to a legitimate aim, and conducted in accordance with the law. See UN Human Rights Committee (HRC), Winata v. Australia,
Communication No. 930/2000 (26 July 2001), para. 7.3, UN Doc. CCPR/C/72/D/930/2000 (2001). See also, HRC, General Comment No. 16,
para. 4, UN Doc. HRI/GEN/1/Rev.1 at 21 (1994); and HRC, General Comment No. 31, UN Doc. CCPR/C/74/CRP.4/Rev.6 (2004), para. 6; and
HRC, General Comment No. 34, UN Doc. CCPR/C/GC/34 (2011), para. 35.
77. See above at n. 75.
78. Arbitrary and punitive separations of children from their parents are never in the best interest of the child, and plainly violate US and
international law. All 50 states, the District of Columbia, and US territories require consideration of a child’s best interests in decisions about
the child’s custody. See Child Welfare Information Gateway, Determining the Best Interests of the Child (2012), https://www.childwelfare.gov/
pubPDFs/best_interest.pdf. The best interest standard has been increasingly incorporated into immigration law and policy. Congress has
incorporated the best interests of the child standard into multiple immigration law provisions respecting children. See, e.g., 8 U.S.C. § 1101(a)
(27)(J) (incorporating a best interests finding into eligibility standards for special immigrant juveniles); Immigration and Naturalization Service,
Guidelines for Children’s Asylum Claims at 2, 6, 9 (Dec. 10, 1998) (applying “the internationally recognized ‘best interests of the child’ principle”
to interview procedures for child asylum-seekers). Under a 2008 Congressional mandate, federal agencies that take unaccompanied children
into custody must place them in the least restrictive setting that is in their best interests. 8 U.S.C. § 1232(c)(2). The United States signed the
Convention on the Rights of the Child (“CRC”) in 1995, though is the only country in the world that has not yet ratified it. As a signatory to the
CRC, the United States is still prohibited under customary international law from acts that would defeat the object and purpose of treaty. See,
Article 9 of the CRC, which specifically prohibits separating a child from its parents unless in exceptional circumstances not present in this case:
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx.
79. Both criminal prosecutions and separations of asylum-seeking families for crossing the border irregularly violate specific prohibitions on
those practices under refugee law and human rights law. See, Article 9 CRC (ibid.); and Article 31.1 Convention (1951), above at n. 18.
80. TEDS Policy (2015), at Section 1.9: https://www.cbp.gov/sites/default/files/assets/documents/2017-Sep/CBP%20TEDS%20Policy%20
© Amnesty International
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In June 2018, Amnesty International assessed the Trump administration’s deliberate and punitive practice
of forced family separations as having constituted torture under both US and international law.81 To meet
the definition of torture, an act must be: (1) intentional; (2) carried out or condoned by a government
official; (3) inflicting severe pain or suffering, whether physical or mental; and (4) carried out for a
specific purpose such as punishment, coercion, intimidation, or for a discriminatory reason.82 The Trump
administration’s deliberate policy and practice of forcible family separations satisfies all of those criteria.
3.1 ‘A TOUGH DETERRENT’: FAMILY SEPARATIONS
INTENDED TO PUNISH AND DETER ASYLUM CLAIMS
Based on public statements by President Donald Trump and senior officials in his administration, there
is overwhelming evidence of the deliberately coercive and punitive purpose of the Trump administration’s
policy and practice of forcible family separations. The scale, timing, and systematic nature of family
separations by this administration – both at and between official ports-of-entry – demonstrate the policy
was both directly authorized and condoned by the Trump administration.
The US government has repeatedly denied separating families when they requested asylum at official
ports-of-entry, except in cases when DHS “is unable to determine the familial relationship,” or “determines
that a child may be at risk with the parent or legal guardian.”83 Through interviews with separated family
members and with DHS authorities, however, Amnesty International documented the arbitrary application
and exploitation of those justifications by DHS agencies to separate children, without demonstrating any
factual basis of risk the children would face in the custody of their parents or guardians, and without
demonstrating any misrepresentation of those family relationships.
In a June 2018 injunction on the practice, a federal judge also found that the US government had
separated asylum-seeking families after they presented themselves at official ports-of-entry, without
justification for those separations under either the facts or the law:
“the record also reflects that the practice of family separation was occurring
before the zero tolerance policy was announced, and that practice has resulted
in the casual, if not deliberate, separation of families that lawfully present at the
port-of-entry, not just those who cross into the country illegally.”84
Oct2015.pdf. Significantly, referrals of asylum-seeking families for prosecution are discretionary, rather than a legal requirement under US law,
making family separations unnecessary.
81. Amnesty International statement, “USA: Policy of separating children from parents is nothing short of torture” (18 June 2018): https://www.
amnesty.org/en/latest/news/2018/06/usa-family-separation-torture/.
82. CAT (n. 10 above). The United States ratified the CAT in 1994 and has been bound by it since. The CAT prohibits the US government from
engaging in any form of torture, as defined in Article 1(1). US Code consistently defines torture as follows: “‘torture’ means an act committed
by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his custody or physical control;” available at: https://www.law.cornell.edu/uscode/
text/18/2340.
83. DHS statement, “Myth vs. Fact: DHS Zero-Tolerance Policy” (18 June 2018): https://www.dhs.gov/news/2018/06/18/myth-vs-fact-dhs-zero-
tolerance-policy. See also, CBP statement denying separation of asylum-seeking families at ports-of-entry, except in rare circumstances: https://
www.cbp.gov/newsroom/national-media-release/cbp-addresses-false-claims-separation-those-seeking-asylum-us-ports. See also, statement of
Attorney General Sessions (14 June 2018): “if the adults go to one of our many ports-of-entry to claim asylum, they are not prosecuted and the
family stays intact pending the legal process.” Available at: https://www.justice.gov/opa/speech/attorney-general-sessions-addresses-recent-
criticisms-zero-tolerance-church-leaders.
84. See, Ms. L. v. ICE, Case No.:18cv0428 DMS (MDD), Order Granting Plaintiffs’ Motion for Class-Wide Preliminary Injunction (26 June 2018):
https://cases.justia.com/federal/district-courts/california/casdce/3:2018cv00428/564097/83/0.pdf. For specific accounts by separated family
members, in declarations submitted under the lawsuit, see: https://www.aclu.org/legal-document/ms-l-v-ice-plaintiffs-reply-support-motion-class-
certification.
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Since 2017, Amnesty International85 and other human rights organizations86 repeatedly alerted DHS and its
oversight bodies to the recurring practice of arbitrary family separations in specific cases, which constituted
serious violations of US laws and regulations as well as the human rights of those affected by the practice.
The government’s responses to Amnesty International’s official correspondence and public expressions of
concern were invariably dismissive, opaque, and at odds with the facts of cases documented, when they
responded at all.
Since the start of President Trump’s administration in January 2017, senior US officials have frequently
promoted family separations as a viable strategy to deter families from seeking protection in the United
States, which culminated in the formal adoption and application of the “zero-tolerance,” under which
thousands of families were separated unnecessarily and unlawfully.
As early as February 2017, the US government considered the use of family separations in order to “deter”
asylum-seekers from coming to the United States.87 Since then, the practice surged under the Trump
administration, with the same restated objective of deterring asylum-seekers from coming to the United
States to request international protection, or to compel them to give up their claims and return to their
countries-of-origin where they had fled persecution.88
The Washington Post first reported that the US Border Patrol (part of CBP) piloted the “zero-tolerance”
policy in Texas and New Mexico from July to November 2017. On 23 April 2018, the heads of CBP, ICE
and US Customs and Immigration Services (all DHS agencies) reportedly recommended to DHS Secretary
Nielsen the expansion of the policy all along the border, and promoted the forced separation of families
through criminal prosecution as the “most effective” way to decrease the number crossing irregularly into
the United States.89
On 17 April 2018, ICE revealed on its website that it had in August 2017 replaced an Obama-era policy
called the “Parental Interests Directive” (2013), as it was simultaneously implementing DHS’s pilot test
of the “zero-tolerance” policy. The Trump administration’s updated policy removed critical language
prioritizing the protection of parental rights of non-US families in immigration enforcement proceedings.90
85. Amnesty International Urgent Actions (see e.g. n. 140 below), official letters, email correspondence, phone conversations, and in-person
meetings from November 2017 to June 2018.
86. See joint report of WRC, LIRS and KIND, “Betraying Family Values: How Immigration Policy at the United States Border is Separating
Families” (February 2017): https://www.lirs.org/assets/2474/lirs_betrayingfamilyvalues_feb2017.pdf. See also, joint complaint to the DHS Office
for Civil Rights and Civil Liberties (CRCL) and the DHS Office of the Inspector General (OIG), submitted by WRC et al., “The Separation of Family
Members Apprehended by or Found Inadmissible while in U.S. Customs and Border Protection (CBP) Custody at the U.S.-Mexico Border” (11
December 2017): https://www.womensrefugeecommission.org/images/zdocs/Family-Separation-Complaint-FINAL-PUBLIC-12-11-17.pdf.
87. MSNBC, “Exclusive: Trump administration plans expanded immigrant detention” (3 March 2017): “Under the plan under consideration,
DHS would break from the current policy keeping families together. Instead, it would separate women and children after they’ve been detained –
leaving mothers to choose between returning to their country-of-origin with their children, or being separated from their children while staying in
detention to pursue their asylum claim.” Available at: https://www.msnbc.com/all-in/exclusive-trump-admin-plans-expanded-immigrant-detention.
88. See also, two Attorney General statements of 7 May 2018, available at: https://www.justice.gov/opa/speech/attorney-general-sessions-
delivers-remarks-discussing-immigration-enforcement-actions; and https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-
remarks-association-state-criminal-investigative.
89. See Washington Post, “Top Homeland Security officials urge criminal prosecution of parents crossing border with children” (26 April 2018):
https://www.washingtonpost.com/local/immigration/top-homeland-security-officials-urge-criminal-prosecution-of-parents-who-cross-border-
with-children/2018/04/26/a0bdcee0-4964-11e8-8b5a-3b1697adcc2a_story.html. To view a redacted version of the memo, see also, Open the
Government, “Newly released memo reveals secretary of homeland security signed off on family separation policy” (24 September 2018): https://
www.openthegovernment.org/node/5713.
90. ICE policy, “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities” (23 August 2013): https://web.
archive.org/web/*/https://www.ice.gov/doclib/detention-reform/pdf/parental_interest_directive_signed.pdf. The 2013 version of ICE’s Parental
Interests Directive policy provided that: “ICE personnel should ensure that the agency’s immigration enforcement activities do not unnecessarily
disrupt the parental rights of both alien parents or legal guardians of minor children.” On 29 August 2017, the Trump administration secretly
replaced the policy, renaming it “Detention and Removal of Alien Parents or Legal Guardians,” which provides as follows: “[ICE] personnel are
responsible for the prompt and faithful execution of US immigration laws. In pursuing the enforcement of these laws against alien parents and
legal guardians of a minor child(ren). […] ICE personnel should remain cognizant of the impact enforcement actions may have on a lawful
permanent resident (LPR) or U.S. citizen (USC) minor child(ren). This Directive in no way limits the ability of ICE personnel to make individual
enforcement decisions on a case-by-case basis.” The current version of the policy is available at: https://www.ice.gov/doclib/detention-reform/
pdf/directiveDetainedParents.pdf. See also the 18 May 2018 fact sheet issued by ICE on the parental rights of parents in immigration detention:
https://www.ice.gov/doclib/detention-reform/pdf/factSheetDetainedParents.pdf. For further analysis of the policy change, see the following
analyses by the American Bar Association (https://www.americanbar.org/groups/litigation/committees/childrens-rights/practice/2018/updated-
ice-policy-detention-removal-alien-parent-legal-guardian.html) and American Immigration Council (https://immigrationimpact.com/2018/04/19/
parents-threatened-immigration-enforcement-policy).
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In March 2018, Annunciation House and other immigrants’ rights activists in the El Paso area presented
evidence that the practice of family separations was ongoing at that time, weeks before the announcement
of the “zero tolerance” policy.91 Those groups reported that DHS declined to provide statistics on the
number of families arbitrarily separated under the program.
DHS Secretary Nielsen has repeatedly denied a policy of separating families was ever in place, preferring
to frame family separations as a law enforcement policy.92 Yet during a Congressional hearing in January
2018, she confirmed that the intention of the draft version of the “zero-tolerance” policy was to target
families, calling family separations one of “a variety of ways to enforce our laws to discourage parents from
bringing their children here.”93
As early as March 2017, then DHS Secretary John Kelly, who is now President Trump’s chief of staff,
discussed the potential adoption of a policy of family separation “in order to deter” families of migrants
and asylum-seekers from coming to the United States.94 In May 2018, just as the “zero-tolerance” policy
was being brutally implemented, Mr. Kelly, this time speaking in his capacity as White House Chief of Staff,
further defended family separations as a “technique” that “would be a tough deterrent – a much faster
turnaround on asylum-seekers.” He further elaborated upon a discriminatory motivation of the policy,
which was to turn back asylum-seekers who would not “easily assimilate into the United States,” due to
their being “overwhelmingly rural people” from countries with low education standards, who “don’t speak
English” and “don’t have skills.”95
The dehumanizing rhetoric employed by President Trump and his cabinet similarly showcased the
apparently discriminatory motivation of the “zero-tolerance” policy. President Trump,96 Attorney General
Session,97 and DHS Secretary Nielsen98 have routinely demonized asylum-seeking families as “criminals”
and “smugglers,” who were trafficking their own children.99 President Trump has also described primarily
Latin American asylum-seekers as “animals” and “criminals,”100 while his administration ventured to detain
their children in cages, and deport the parents and guardians to their countries-of-origin, with or without
them.
In a report to the UN Human Rights Council in February 2018, the UN Special Rapporteur on torture
denounced any authorities’ “deliberate separation of family members” who are seeking asylum at borders,
calling it “refoulement in disguise,” which is “designed to coerce them to ‘voluntarily’ return to their
country-of-origin” regardless of their protection needs.101
91. See coalition press conference announcement, “Family Separation at the Border” (12 March 2018): https://groups.google.com/
forum/#!topic/frontera-list/rv8RcH1RR0M.
92. Statements on Twitter by DHS Secretary Nielsen (17 June 2017): “We do not have a policy of separating families at the border. Period”;
“You are not breaking the law by seeking asylum at a port-of-entry”; “For those seeking asylum at ports-of-entry, we have continued the policy
from previous Administrations and will only separate if the child is in danger, there is no custodial relationship between 'family' members, or if the
adult has broken a law.” Available at: https://twitter.com/SecNielsen/status/1008467318744240128.
93. Senate Hearing with DHS Secretary Nielsen (16 January 2018): https://transcripts.cnn.com/TRANSCRIPTS/1801/16/cnr.04.html
(transcript); and https://www.c-span.org/video/?c4709347/separation-families (video).
94. CNN interview, “Kelly: DHS is considering separating undocumented children from their parents at the border” (7 March 2017): https://
www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from-parents-immigration-border/.
95. NPR interview with John Kelley (10 May 2018): https://www.npr.org/2018/05/10/609478998/john-kelly-despite-times-of-deep-frustration-
no-regrets-taking-white-house-job (audio); and https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellys-
interview-with-npr (transcript).
96. Statement on Twitter of President Trump (18 June 2018), at n. 25 above.
97. Remarks of Attorney General Sessions (7 May 2018): “If you smuggle illegal aliens across our border, then we will prosecute you. If you
are smuggling a child, then we will prosecute you and that child will be separated from you as required by law. If you don’t like that, then don’t
smuggle children over our border.” Available at: https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-association-state-
criminal-investigative. See also, remarks of Attorney General Sessions (18 June 2018): “We do not want to separate children from their parents.
We do not want adults to bring children into this country unlawfully, placing them at risk. But we do have a policy of prosecuting adults who flout
our laws to come here illegally instead of waiting their turn or claiming asylum at any port-of-entry.” Available at: https://www.justice.gov/opa/
speech/attorney-general-sessions-delivers-remarks-national-sheriffs-association-annual.
98. Statement by DHS Secretary Nielsen (18 June 2018): “The kids are being used by pawns by the smugglers and the traffickers.”: https://
www.nytimes.com/2018/06/18/us/politics/dhs-kirstjen-nielsen-families-separated-border-transcript.html.
99. See below at n. 148.
100. See above at nn. 25 and 26.
101. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (26 February 2018): https://
www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf.
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In a public demonstration of how the Trump administration leveraged family separations to compel asylum-
seekers to give up their claims, DHS stated on 23 June 2018 that it planned to reunite separated families
only for the purpose of deporting them to their countries-of-origin, yet would keep families separated
while they pursued their asylum claims.102 On 25 June 2018, news media reported allegations by Central
American parents detained in Texas that ICE officials had coerced them into forfeiting their asylum claims,
in exchange for promises of reunification with their recently separated children upon deportation to their
countries-of-origin.103 On 23 August 2018, two immigrant rights groups submitted a joint complaint to the
DHS oversight bodies, detailing widespread and extreme coercive tactics used by DHS to compel separated
families to give up their asylum claims, in exchange for the possibility of reunification.104
Amnesty International observed the merits hearing of an asylum case in May 2018, during which the
immigration judge similarly leveraged the forced separation of a Brazilian grandmother named Maria,
in order to deter her from pursuing her asylum claim further.105 In the courtroom, Amnesty International
researchers witnessed as the judge invited Maria to give up her asylum claim so that she could be deported
to Brazil with her grandson, who has a developmental disability, instead of being deported without him after
the judge would presumably deny her asylum claim.
“I want to make sure we close all the potential ‘loopholes’, if you will,” the judge said.106 Trump
administration officials, including the judge’s employer Attorney General Sessions, frequently use the term
“loopholes” to describe meritless asylum claims, as the administration seeks to narrow the grounds on
which asylum-seekers can receive protection in the United States.
In a letter to the Attorney General and DHS Secretary, the US Commission on Civil Rights expressed
serious concern over the Trump administration’s violation of legal due process, and its punitive use of
family separations to “coerce parents into withdrawing what may be valid asylum applications or otherwise
impairing their immigration proceedings, for fear of what may be happening to their children.”107
The Commission further criticized the apparently discriminatory motivation of the policy, based on
“animus directed at Mexican and Central American immigrants by the Administration, giving rise to
questions of unwarranted discrimination on the basis of national origin.” It concluded that the Trump
administration’s policy of punishing families who are “seeking asylum, fully within the parameters of our
nation’s immigration laws [...] is inhumane and against the best interests of the children,” and “subverts
the fair administration of justice and appears to discriminate against families on the basis of their national
origin.”108
Taken together, the de facto policy and practice of family separations by the Trump administration were
clearly (1) intentional; (2) carried out and condoned by government officials; and (3) carried out for the
specific purposes to deter asylum-seeking families from seeking protection in the United States, or to
coerce those who already had sought asylum into giving up their claims. Satisfying the final element of the
definition of torture, family separations also inflicted severe pain and suffering, particularly mental pain and
suffering, with an apparently negative impact on physical health in some cases.
102. DHS fact sheet on family separations and reunifications (23 June 2018): https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-
prosecution-and-family-reunification.
103. Texas Tribune, “Kids in exchange for deportation: Detained migrants say they were told they could get kids back on way out of US” (24 June
2018): https://www.texastribune.org/2018/06/24/kids-exchange-deportation-migrants-claim-they-were-promised-they-could.
104. Joint complaint of American Immigration Council (AIC) and American Immigration Lawyers Association (AILA), “The Use of Coercion by
U.S. Department of Homeland Security (DHS) Officials Against Parents Who Were Forcibly Separated From Their Children” (23 August 2018):
https://americanimmigrationcouncil.org/sites/default/files/general_litigation/the_use_of_coercion_by_u.s._department_of_homeland_security_
officials_against_parents_who_were_forcibly_separated_from_their_children_public_fin_0.pdf.
105. See below case of Maria and Matheus.
106. Department of Justice, Executive Office for Immigration Review, audio recording of court hearing (10 May 2018).
107. See, US Commission on Civil Rights, letter to Attorney General Sessions and DHS Secretary Nielsen (15 June 2018): https://www.usccr.gov/
press/2018/06-15-18-letter.pdf.
108. Ibid.
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3.2 ‘I AM CRYING A LOT’: SEVERE PAIN AND SUFFERING
FROM FAMILY SEPARATIONS
At its core, the Trump administration’s “zero-tolerance” policy was intended to cause severe mental
anguish for asylum-seeking families – first through family separations, and then through the indefinite
detention of divided family members. Through the threat of indefinite family separations – traumatic for
children and their parents alike – DHS pressured asylum-seeking families to give up their asylum claims,
and accept “voluntary” deportation as a condition for reunification.109
Additionally, the Trump administration sought by separating families to impose on all asylum-seekers
its policy of arbitrary and indefinite detention without parole, based solely on their migration status. As
President Donald Trump and his cabinet have repeatedly complained, the illegality of detaining young
children had prevented the indefinite detention of asylum-seeking families,110 so the administration used
family separations to detain the parents individually.
109. See above at nn. 102 to 107.
110. See below at nn. 158 and 181.
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Children’s rights are violated in multiple ways through family separations. The children are detained, before
and/or after being separated from their families; then they are separated from their parents or guardians,
violating their right to family unity; and finally they are exposed to extreme and unnecessary trauma after
being separated, which may negatively impact upon their development and mental health.111
In the cases of family separation documented by Amnesty International, it was clear that the administration
did not consider the best interests of the children, contrary to US obligations under international law.112
The detention of children is never in their best interest, and their separation from parents is only lawful as
a measure of last resort, such as when a child faces imminent harm.113 Illustrating that family separations
are not in the best interest of the children, the government admitted that it lost track of hundreds of
other unaccompanied children who were transferred into the custody of foster families. In April 2018,
a US government official responsible for the care of children separated from their families under the
“zero tolerance” policy, informed Congress that his agency confirmed it had lost track of at least 1,475
unaccompanied children for whom it was responsible during the first quarter of FY2018.114
The UN Refugee Agency (UNHCR) has categorically called on all states to end the practice of immigration
detention of children, and to maintain family unity through alternatives to detention.115 The UN Special
Rapporteur on torture has likewise stated that the detention of children is never in the child’s best interest,
and can constitute ill-treatment if the detention is due to their or their parents’ immigration status.116
Resulting in further ill-treatment, there are consistent reports of sub-substandard conditions in many US
detention facilities, such as forcing children to sleep on cement floors, constant light exposure during
nighttime bed checks, open toilets, insufficient food and water, lack of bathing facilities, and extremely cold
temperatures.117
111. On the immediate and long-term physical and mental health consequences of forcible separation of children from their families, see the
district court’s order in J.S.R v Sessions, Civ. No. 3:18-cv-01106-VAB, Order of July 13, 2018, at 6 (D. Conn.). See also, Jaana Juvonen and
Jennifer Silvers, “Separating children from parents at the border isn’t just cruel. It’s torture.” (Washington Post, 15 May 2018): https://www.
washingtonpost.com/news/posteverything/wp/2018/05/15/separating-children-from-parents-at-the-border-isnt-just-cruel-its-torture.
112. See above at n. 78. See also, UN Committee on the Rights of the Child, General Comment No. 14 (2013): https://www2.ohchr.org/English/
bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf.
113. Ibid, at paras 58-61: “Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur
as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not
take place if less intrusive measures could protect the child.” UNHCR has stated that children “should in principal not be detained at all”; and
“Children have the right to family unity […] and the right not to be separated from their parents against their will.” UNHCR, Guidelines on the
Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012, para. 51. The UNHCR’s
Executive Committee has likewise concluded repeatedly that the maintenance of family unity is of utmost importance, particularly where the
interests of children are at issue. The Committee has, for example, “[s]tressed that all action taken on behalf of refugee children must be guided
by the principle of the best interests of the child as well as by the principle of family unity.”
114. From October to December 2017, ORR was unable to reach or determine the whereabouts of approximately 20 to 25 percent of those
whom it sought to contact directly or through their sponsors. Statement of Steven Wagner, Acting Assistant Secretary Administration for Children
and Families, US Department of Health and Human Services (HHS) Before the Permanent Subcommittee on Investigations Committee on
Homeland Security and Governmental Affairs, United States Senate (26 April 2018): https://www.hsgac.senate.gov/imo/media/doc/Wagner%20
Testimony.pdf. Information on the hearing is available at: https://www.hsgac.senate.gov/hearings/oversight-of-hhs-and-dhs-efforts-to-protect-
unaccompanied-alien-children-from-human-trafficking-and-abuse. See also, Snopes, “Did the U.S. Government Lose Track of 1,475 Migrant
Children?” (29 May 2018): https://www.snopes.com/fact-check/1475-immigrant-children-missing/.
115. UNHCR has also recently reiterated that its “position is that children should not be detained for immigration related purposes, irrespective of
their legal/migratory status or that of their parents, and detention is never in their best interests. Appropriate care arrangements and community-
based programmes need to be in place to ensure adequate reception of children and their families.” United Nations High Commissioner for
Refugees, “UNHCR’s Position Regarding the Detention of Refugee and Migrant Children in the Migration Context, January 2017: http://www.
refworld.org/docid/5885c2434.html, p. 2. See also, UNHCR, “UN Refugee Agency calls on States to end the immigration detention of children on
the 25th anniversary of the Convention on the Rights of the Child” (20 November 2014): http://www.unhcr.org/news/press/2014/11/546de88d9/
un-refugee-agency-calls-states-end-immigration-detention-children-25th.html.
116. UN Special Rapporteur on torture, Thematic Report on Torture and Ill-Treatment of Children Deprived of their Liberty, 5 March 2015 (UN
Doc. A/HRC/28/68), at para. 80: https://www.ohchr.org/en/hrbodies/hrc/regularsessions/session28/documents/a_hrc_28_68_e.doc. The UN
Committee on the Rights of the Child has also elaborated that the national origin or immigration status of children or their parents does not justify
any restriction of their human rights (General Comment No. 22), and that: “the principle of non-discrimination, in all its facets, applies in respect
to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child as
being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant” (General Comment No. 6, UN Doc. CRC/GC/2006/6, at
para. 18).
117. American Academy of Pediatrics (AAP), Policy Statement: Detention of Immigrant Children (March 2017): http://pediatrics.aappublications.
org/content/early/2017/03/09/peds.2017-0483.
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Medical professionals, medical associations, child welfare organizations, and courts have documented the
serious and lasting harm to children arising from forcible separation from their parents, and from being
held in detention even for short periods of time, let alone indefinitely.118
In a statement to the US Congress opposing family separation, the American Academy of Pediatrics
warned: “We know that family separation causes irreparable harm to children. This type of highly stressful
experience can disrupt the building of children’s brain architecture. Prolonged exposure to serious stress –
known as toxic stress – can lead to lifelong health consequences.”119
In a statement in response to President Trump’s executive order on 20 June 2018, the American
Psychological Association likewise observed: “Decades of psychological research show that children
separated from their parents can suffer severe psychological distress […]. The longer the parent and child
are separated, the greater the child’s symptoms of anxiety and depression become.”120
Eighty-five days after being separated from his father Jose from El Salvador, 1-year-old Mateo was finally
reunited on 8 February 2018 with his mother Olivia, who had been released on parole pending the
adjudication of her separate asylum claim. Describing the psychological impact of forced separation on
Mateo, his mother Olivia recalled that day they were reunited in a declaration filed with a lawsuit against
ICE:
“When I took off his clothes he was full of dirt and lice. It seemed like they
had not bathed him the 85 days he was away from us. [...] M. is not the same
since we were reunited. I thought that, because he is so young he would not be
traumatized by this experience, but he does not separate from me. He cries when
he does not see me. That behavior is not normal.”121
On the human right to family unity of family members who are not parent and child, the UN Committee
on the Rights of the Child has observed that it is in the best interest of the child for authorities to consider
the term “parents” to broadly include biological, adoptive or foster parents, where applicable, as well as
children’s extended family.122
Amnesty International documented two cases of children being separated from their grandmothers, whom
the children called “mommy” despite their generational gap, which resulted in equally extreme trauma to
both the children and adults.123
118. Institute for the History of Psychiatry at Weill Cornell, “Fact sheet: The Trauma of Childhood Separation” (2 July 2018): http://psych-history.
weill.cornell.edu/pdf/Trauma_of_Separation.pdf; and http://psych-history.weill.cornell.edu/his_res/tcs.html.
119. AAP statement, “Opposing the Border Security and Immigration Reform Act” (18 June 2018): https://www.aap.org/en-us/about-the-aap/
aap-press-room/Pages/AAPStatementOpposingBorderSecurityandImmigrationReformAct.aspx.
120. American Psychological Association (APA) statement, “Statement of APA President Regarding Executive Order Rescinding Immigrant
Family Separation Policy” (20 June 2018): http://www.apa.org/news/press/releases/2018/06/family-separation-policy.aspx.
121. Declaration of Olivia Caceras (28 June 2018), WA v. USA, at pp. 69-73: https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/
Another/News/Press_Releases/motion%20declarations%201-33.pdf.
122. UN Committee on the Rights of the Child, General Comment No. 14 (2013): https://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_
GC_14_ENG.pdf.
123. See below case of Clara and Gabriela, and case of Maria and Matheus.
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One year after her separation from her developmentally disabled grandson Matheus, a 55-year-old Brazilian
woman named Maria told Amnesty International of the lasting traumatic impacts of the family separation
on both her and Matheus.124 Maria said she still had recurring bad memories and flashbacks from the
moment of their separation:
“I might need to go look for a psychologist. I don’t remember things, and can’t
sleep. I wake up during the nights, and can’t go back to sleep. I start to talk
about something and forget what I was saying. I am crying a lot also because I am
still separated from Matheus.”125
Maria described symptoms that are common of post-traumatic stress disorder (PTSD), also listed in the
Istanbul Protocol among those frequently experienced by victims of torture and other ill-treatment.126
On 11 and 18 August 2018, Maria visited Matheus in the custody of Connecticut State’s Department
of Children and Families. She informed Amnesty International that Matheus appeared to be very sad
and depressed, and that his behavior and emotional state had changed radically from when they would
frequently do activities together before their detention and separation. When she first saw him, almost a
year after their separation, he was sick with a fever and sore throat, and was shivering from cold in a room
with heavy air conditioning, wearing only shorts and a shirt. He immediately requested a sweater or jacket
to stay warm. Maria said it was very saddening for her and Matheus to see each other during both her
visits, since after they spent all day together, they felt they were reliving the separation after each visit: “We
are suffering too much. It feels like he has just been thrown over there, and nobody has taken good care of
him.”127
Whereas children are often included in the asylum claims of their parents or guardians, US authorities
categorize them as “unaccompanied alien children”128 when they are separated from their asylum-seeking
family units, and process their asylum cases separately. By separating families’ legal claims for protection
while separating the families themselves, DHS undermines due process and subverts the family members’
respective asylum claims – contrary to the best interest of the child. Separations also undermine family
rights under USCIS policies on asylum claims, which provide that “a dependent minor should not be
interviewed without his or her parent present.”129
While it is possible to reunify the asylum claims of the parents and children, this can be logistically difficult,
due to lack of legal representation, the number of cases, and challenges parents face in contacting their
children once separated, especially when the children are infants and unable to speak, often transported
thousands of miles away from their parents after separation. Further undermining families’ asylum claims,
separations can result in only one family member retaining documents critical to establishing family
members’ identities or supporting their claims. Separation impedes the regular communication between
children and parents that is critical for a child and parent to pursue a joint claim for protection.
Forcing children to undergo immigration proceedings alone, separated from their parents, severely restricts
– and in some cases obliterates – their ability to achieve protection where their claims are factually linked
to those of their parents, especially for very young children who are unable to articulate the claim at all.130
124. On 19 August 2018, Amnesty International spoke with Maria through the interpretation of her friend, whom she and her husband were
staying with in Connecticut.
125. Ibid. Conversation by phone, 19 August 2018.
126. OHCHR, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“Istanbul Protocol”), 2004, HR/P/PT/8/Rev.1: https://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
127. Conversation by phone, 19 August 2018.
128. See above at n. 74.
129. USCIS, Affirmative Asylum Applications Manual (2016): https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20
%26%20Asylum/Asylum/AAPM-2016.pdf.
130. ABA statement, “Separating families violates civil rights, won't work and is inhumane, ABA president says” (12 June 2018) : http://www.
abajournal.com/news/article/separating_families_violates_civil_rights_wont_work_and_is_inhumane_aba_pre/.
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Because there is no right to counsel for immigration cases under US law, children – as young as babies
– can find themselves in the surreal situation of having to articulate and defend a claim themselves in an
immigration court.
3.3 ‘I DIED AT THAT MOMENT’: ACCOUNTS OF EXTREME
ANGUISH OF FAMILY SEPARATIONS
In 2018, Amnesty International interviewed 15 adults whom DHS agencies separated from their children,
both prior to and following the introduction of the so-called “zero-tolerance” policy. Of those 15 adults,
three were women (separated in 2016, 2017 and 2018, respectively), and 12 were men (four separated
in 2017, and eight in 2018). The separations happened in all four US states along the US–Mexico border
(California, Arizona, New Mexico, and Texas), at the hands of both CBP and ICE personnel.
In all of those cases, prior to being separated, the families had requested asylum and expressed their fear
of return to their countries-of-origin. In 13 of the 15 cases, DHS separated the families after they requested
protection at official US ports-of-entry. The other two parents were separated by DHS after crossing
irregularly into the United States between official ports-of-entry, and requesting protection from US Border
Patrol (part of CBP).
According to the adults, in none of those cases did DHS personnel explain to the families the reasons for
the separations at the time that they happened, or allow them to defend their custodial right to family unity.
DHS personnel simply separated the families – in some cases through the use or threat of physical force.
Consistent with the Trump administration’s rhetoric seeking to brand asylum-seeking families as criminals
who are trafficking their own children, some of the adults were later informed that they were separated
from their children due to doubts by DHS personnel about the validity of their family relationships. Yet DHS
authorities never asked the parents and guardians to prove their family relationships or guardianship prior
to separating them from their children.
Most of these families were separated despite having documentary evidence of their identities and family
relationships in their possession at the time that they presented themselves to request asylum at official
ports-of-entry. That evidence included passports, national identification cards, birth certificates, and court
orders designating legal guardianship, among other official documents.
When they spoke with Amnesty International, many of the separated parents and guardians were suffering
from such extreme mental anguish that they wept uncontrollably as they recounted their experiences,
sometimes only seconds or minutes into the interviews. They expressed visible agony describing the
emotional harm caused to them and their children through the forcible separations, and their sense of
helplessness to protect their children from whatever awaited them alone in US custody. In several of the
cases, the parents agonized that the separations had broken their children’s trust in them, and damaged
their family relationships.
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CASE OF VALQUIRIA & ABEL (BRAZIL)
‘THEY RIPPED MY HEART OUT OF ME. …FOR ME, THE WORLD ENDED AT THAT POINT.’
Valquiria (39) and her son Abel (7) requested asylum at the Paso del Norte POE in El Paso, Texas,
on 16 March 2018. After one night together in CBP detention, DHS forcibly separated them on 17
March, without giving any reason, and transferred Valquiria to an ICE detention facility in El Paso.131
Valquiria said that she and Abel had fled Brazil after receiving repeated death threats from drug
traffickers in 2017 and 2018, whom she had denounced for dealing drugs daily in front of her home.
She claimed they were selling drugs in coordination with local police, and said they would kill her and
her son no matter where they fled to in Brazil, and would do so “without pity” if Valquiria sought help
from police in another part of Brazil.
On 27 March, a US asylum officer found that her story was credible and justified her fear that she
and her son could be killed if they returned to Brazil. The asylum officer noted in her report that Abel
was “processed as an unaccompanied minor child,” that his whereabouts were “unknown,” and
that he was not included on Valquiria’s asylum claim, despite her having requested asylum for both
of them together. There was no explanation as to why Valquiria was separated from her son, even
though she had their identifying documents, and the ICE file recognized their family relationship.
On 10 May 2018, Amnesty International interviewed Valquiria in detention, where she wept as she
recounted the moment that DHS authorities separated her from Abel. In deep despair, Valquiria told
Amnesty International of how the separation from her son had lessened her will to live:
“They left me one night with my son, and the following day they said they
were going to separate my son and then they took him away from me. […] I
told them, ‘for the love of god, please don’t separate us.’ And they told me,
‘you don’t have any rights here, and you don’t have any rights to stay with
your son.’ […] For me I died at that moment. They ripped my heart out of
me. […] For me, it would have been better if I had dropped dead. For me,
the world ended at that point. Not knowing where my son was, what he was
doing. […] It was the worst feeling a mother could have. […] They just told
me I didn’t have the right to be with my son. How can a mother not have
the right to be with her son? […] It feels like I have lost half of my life, now
that they have removed my son out of it.”
Abel has since been released to his father in the United States, who is also seeking asylum. On 10
September 2018, Valquiria lost her asylum claim and began the appeals process, still in immigration
detention and separated from Abel. According to her lawyer, the judge decided that the police officers
who were working with drug traffickers were acting in their private capacities, and said that Valquiria
and Abel should have relocated within Brazil, irrespective of the traffickers’ threats to kill them
wherever they fled.
131. Interview with Valquiria conducted on 10 May 2018 at ICE’s El Paso Processing Center, in El Paso, Texas.
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CASE OF CLARA & GABRIELA (HONDURAS)
‘I AM OLD AND I CAN’T TAKE IT ANYMORE. …I’M VERY DESPERATE AND SAD.’
Clara, a 63-year-old grandmother from Honduras, requested asylum with her 14-year-old
granddaughter Gabriela on 18 November 2016, at the Paso del Norte Port-of-Entry in El Paso, Texas.
Clara had raised Gabriela since she was 2.5 years old, and their bond was so close that Gabriela
called her grandmother “mommy.”132
In October 2016, the MS-13 transnational gang (Mara) in Honduras demanded Clara give up her
granddaughter to one of its members as a wife. When Clara refused and shielded Gabriela, the gang
threatened to kill them both and burn down their home. Clara and her granddaughter immediately
fled Honduras, having known of others who had been killed by the gang after seeking assistance
from police or moving to other parts of the country.
Clara told Amnesty International that CBP agents separated her from Gabriela two days after they
sought asylum at the port-of-entry in Texas. After their separation, Clara spent over 1.5 years alone in
an ICE immigration detention facility in Texas.
ICE subjected Clara to prolonged detention despite having diagnosed her upon detention as having
high blood pressure, and a history of hypertension and multiple other serious health conditions, for
which her casefile indicated she was routinely taking nine medications while in detention.
Clara appeared frail and faint as she told Amnesty International in an anguished voice of how
much she and Gabriela missed each other since being separated. Trembling in fear as she spoke,
Clara said she would be killed if returned to her home country of Honduras, with or without her
granddaughter.
As she told her story to Amnesty International, Clara voiced exhaustion from pursuing her asylum
claim at her older age, while in detention for over 1.5 years:
“I raised my grandchild since she was little, and they wanted my grandchild
to be their wife – the Mara, in Honduras. When I brought her, she was 14,
and now she is 16. […] I got in at the bridge on the 18th [of November
2016, at the port-of-entry]. She stayed with me on the 19th. And they took
her away on the 20th. […] They didn’t tell me why they were taking her.
They just told me they were going to separate her from me. I brought her
mother’s birth certificate, because her mother is my daughter. […] They
had the girl for three months in a shelter. […] I start thinking about other
things, because if they send me back, what am I going to do? I’m going to
die in Honduras. From the things that are happening, from the violence.
[…] I just can’t take it anymore. I am old and I can’t take it anymore. I’m
63 years old. There are days that I’m very desperate and sad. I would like to
be with my family. It’s been a very long time I haven’t seen my family. So
my granddaughter calls me mommy. And she told me [by phone], ‘mommy,
I want to be with you on mother’s day.’ [crying] She just wants to be with
me. I am very sad.”
132. Interview with Clara (pseudonym) conducted on 10 May 2018 at ICE’s El Paso Processing Center, in El Paso, Texas. Amnesty International
also reviewed documentation in her case file, including medical information recorded therein.
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After Clara lost her appeal in May 2018, ICE deported her back to Honduras without her
granddaughter Gabriela.
In August 2018, Amnesty International spoke by phone with Clara’s daughter in Houston, who
gained custody of Gabriela after she spent several months in a shelter. “For my daughter, her
grandmother is the same as her mother,” she said. “She is very depressed and needs psychological
help.” Following Clara’s deportation to Honduras, her daughter informed Amnesty International that
Clara had to go into hiding in another village: “She is living in another place, so that the Mara will not
find her. She is very sad and depressed, and has been sick.”133
CASE OF MARIA & MATHEUS (BRAZIL)
‘WE ARE SUFFERING TOO MUCH. …I AM CRYING A LOT.’
On 25 August 2017, Maria (55) and her grandson with disabilities Matheus (17) requested asylum at
the Santa Teresa Port-of-Entry in New Mexico, near El Paso, Texas. Maria presented her identification
and proof of her legal guardianship over Matheus at the port-of-entry, yet DHS nonetheless separated
them as they transferred Maria to ICE custody for detention.134
“Mommy!” Matheus screamed out to his grandmother as they were separated. “Mommy, don’t
let them take me!” DHS sent Matheus first to a shelter, and then to child protection services in
Connecticut State. Neither in immigration court proceedings, nor in Maria’s asylum case file, did
authorities question her legal guardianship over Matheus.
Maria had raised Matheus since he was 3 years old, when his mother (Maria’s daughter) abandoned
him due to his physical and developmental disabilities, including epilepsy and autism. In Brazil,
Matheus was beaten by teaching staff at his school for children with special needs. Maria showed
Amnesty International a photo of Matheus after he came home one day, curled in a fetal position with
bruises and bandages. She burst into tears clutching the image, her face flushed red and inflamed,
weeping uncontrollably.
133. Conversation by phone, 20 August 2018.
134. Interview with Maria conducted on 10 May 2018 at ICE’s El Paso Processing Center, in El Paso, Texas. Amnesty International also monitored
the merits hearing in Maria’s asylum case on the same day, and reviewed documentation in her case file. Following Maria’s release on parole,
Amnesty International conducted a follow-up interview with her by phone.
Maria, with her niece and grandson Matheus (right), in
undated photo.
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After Maria got the principal at Matheus’s school fired, she received repeated death threats from the
principal’s police officer brother. Maria and Matheus fled their home to seek asylum in the United
States, where Maria’s husband lived. The local prosecutor told Maria he could not protect her from
the death threats of the police officer, she said.
As she addressed the immigration judge deciding her case, Maria cried and gasped at times, her
face turning red from apparent stress:
“I will die if I go back to Brazil. […] I am sure that if I go back to Brazil,
he will kill me. […] When he came to my house to threaten me, […] he
told me he was a police officer. […] He was very upset. He was very angry,
because his sister was losing her job because of what I said on the radio,
and he said he was going to kill me for that.”
ICE diagnosed Maria upon detention with dangerously high blood pressure. She became ill and
had to be rushed to the hospital on 4 May. The following week, she told Amnesty International
that her health was deteriorating in detention, and had been made worse by her separation from
her grandchild. Whenever she spoke with Matheus by phone, he would cry loudly and plea to her,
“mommy, why won’t you come for me?”
In her immigration court hearing, Maria also told the judge of how her separation from Matheus had
contributed to her deteriorating health. She spoke in court, through her tears:
“I have high blood pressure, very high blood pressure. As a matter of fact,
on May 4th, I got very, very sick. It was around 2 a.m. when they had to
take me to the hospital. When I got there, my blood pressure was extremely
high – it was like 180 or 200, something like that. And then the doctors
gave me four pills of 20mg each, and that would not work, and the blood
pressure would not go down. And then I started to feel like my body was
getting numb, and I was very sick. Am not feeling very good, not doing so
good. Right now, I’ve not been able to control my blood pressure. It’s been
very, very high. I believe that because of all of this I’m going through – the
fear of going back to Brazil, the fear of being separated from my grandchild,
all of this together, I can’t stop thinking about it – that it’s making me really
sick, and my blood pressure is not going down. […] I can’t stop thinking
about that. I just want to fight for him, and to take care of him.”
The immigration judge rejected Maria’s asylum claim on 3 July 2018, claiming the police officer
who plotted to kill Maria and Matheus was not acting in an official capacity, and that his death
threats did not rise to the level of persecution.135 Following substantial media coverage of her and
Matheus’s story in both the US136 and Brazilian137 media, a Congressional representative of Texas
successfully pressured authorities to release Maria on parole. On 12 July 2018, DHS released Maria
from detention pending the appeal of her asylum claim, following which she moved to Connecticut to
reunite with Matheus and her husband.138
135. Court decision, dated 3 July 2018, Judge William Lee Abbott.
136. Texas Tribune, “A grandmother seeking asylum was separated from her disabled grandson at the border. It’s been 10 months” (13 June
2018): https://www.texastribune.org/2018/06/13/immigrant-child-asylum-disabilities-separated-grandmother-border.
137. Epoca, “Crianças apartadas dos país” (21 June 2018): https://epoca.globo.com/mundo/noticia/2018/06/criancas-apartadas-dos-pais.html.
138. Hartford Courant, “Released From Federal Detention, A Brazilian Grandmother Comes to Connecticut to Find Her Grandson” (27 July
2018): http://www.courant.com/news/connecticut/hc-news-brazilian-grandmother-child-20180725-story.html.
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CASES OF FOUR FATHERS & THEIR CHILDREN (EL SALVADOR &
HONDURAS)
‘I’D RATHER DIE THAN BE SEPARATED FROM MY SON!’
On 16 November 2017, CBP and ICE personnel in
San Diego simultaneously separated four Central
American fathers from their respective children
when transferring them from CBP to ICE custody,
without any justification based on the facts of the
cases or under the law. All but one of the families
had presented themselves to CBP at the San Ysidro
POE, while the last crossed irregularly into the United
States and requested protection from the US Border
Patrol.139
Immediately after their families were separated,
Amnesty International began campaigning140 for
the four fathers’ release and reunification with their
children, and interviewed them in detention at
Otay Mesa Detention Center on 5 January 2018,
accompanied by a lawyer who was assisting on
their cases. During the detention visits, Amnesty
International reviewed the four fathers’ case files,
including their identification documents proving their
paternity of their children, which they had presented
to authorities when each family requested asylum.
Three of the four fathers were visibly traumatized,
and broke into tears at points while providing their
accounts to Amnesty International.
Despite all the fathers’ refusal to be separated from
their children, three of the fathers surrendered their
children under duress and threats of force. The fourth refused and his child was violently removed
from his arms, while he pleaded to the DHS officials, “I’d rather die than be separated from my son!”
The father told Amnesty International that he only let go of his son to avoid the DHS official causing
him physical harm. Protesting that authorities were keeping his 12-year-old son handcuffed, another
father asked a DHS official: “Why are you doing this? He’s a minor!” The official responded, “you
don’t have any rights here.”
In a 5 January 2018 meeting with Amnesty International, the director of ICE’s Otay Mesa Detention
Center defended the fact that ICE did not give any of the fathers a reason why they were being
separated from their children:
139. Interview with four fathers conducted on 7 January 2018 at ICE’s Otay Mesa Detention Center in San Diego, California. Amnesty
International also reviewed documentation in the four fathers’ case files; copies of their identity documents; and signed written statements from
the four fathers provided in Spanish through an intermediary organization in November 2017.
140. Amnesty International, Urgent Action (22 November 2017): https://www.amnestyusa.org/wp-content/uploads/2017/11/uaa25617.pdf.
Amnesty International researchers also raised the four fathers’ cases with CBP and ICE officials (as well as DHS oversight bodies) by formal letter,
emails, phone calls, and in meetings with senior ICE officials at the Otay Mesa Detention Center in January and May, and at ICE headquarters in
June 2018.
141. Email from ICE, dated 21 November 2017.
Jose and Mateo in Tijuana, Mexico, on 10 November 2017,
prior to requesting asylum at the San Ysidro Port-of-Entry
(Pueblo Sin Fronteras).
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“‘I’m going to separate you from your child’ – that’s the end of the
discussion. The process is the process. All we can say is, ‘hey, we are
concerned about the validity of your relationship with the child.’”
Yet in none of the four fathers’ cases did CBP or ICE express such concerns prior to the separations,
making such claims only afterward when defending their actions.
After fleeing targeted violence in El Salvador, one father Jose and his son Mateo joined a caravan of
approximately 50 asylum-seekers, who together requested protection at the San Ysidro Port-of-Entry
on 12 November 2017. The other seven of the eight families in that caravan, also from the Northern
Triangle of Central America, were swiftly released by DHS as they awaited consideration of their
asylum claims.
When Amnesty International raised the four fathers’ cases with DHS, ICE officials claimed that both
ICE and CBP were unable to confirm a family relationship between Jose and Mateo, supposedly
because Jose was unable to provide identifying documents proving his paternity, and his son Mateo
was too young to speak. For that reason, ICE claimed: “Out of concern for the child’s safety and
security, ERO transferred the child to the Department of Health and Human Services (HHS) Office
of Refugee Resettlement (ORR) for placement.”141 That account by ICE clearly conflicted with
information provided by CBP personnel, who confirmed that CBP and ICE had their identification
documents all along.142
In January 2018, prior to Jose having his scheduled parole interview, the director of ICE’s Otay Mesa
Detention Center deemed Jose to be a flight risk, and declined to release him on parole. Amnesty
International and organizations working on Jose’s case believed the parole denial to be potentially
retaliatory, following considerable public attention on Jose’s case.143 In July 2018, ICE finally released
Jose from immigration detention, following prolonged efforts by his legal team.
142. Email from CBP, dated 12 December 2017.
143. New York Times editorial, “Trump Administration Considers Separating Families to Combat Illegal Immigration” (21 December 2017):
https://www.nytimes.com/2017/12/21/us/trump-immigrant-families-separate.html.
144. Emails to Amnesty International, dated 24 August and 11 September 2018, from the Executive Director and the Chief of Staff of CBP’s
Office of Intergovernmental Public Liaison. CBP provided Amnesty International with some statistics that conflicted with other statistics posted
on its website – raising questions of whether the number of “family units” separated by CBP referred to the number of (1) whole families, or (2)
individual family members. CBP did not adequately clarify the statistics it provided prior to this report’s publication. DHS agencies use several
conflicting definitions of the term “family units.” For instance, the DHS and HHS draft regulations on “Apprehension, Processing, Care, and
Custody of Alien Minors and Unaccompanied Alien Children” (7 September 2018), define “family units” as the whole family group: "Family
unit means a group of two or more aliens consisting of a minor or minors accompanied by his/her/their adult parent(s) or legal guardian(s).”
3.4 US AUTHORITIES SEPARATED MORE FAMILIES THAN
PREVIOUSLY DISCLOSED
Immediately following the Trump administration’s announcement of its “zero-tolerance policy for criminal
illegal entry,” DHS agencies began forcibly separating thousands of families at the US–Mexico border, vastly
expanding and accelerating the practice compared to preceding months. Yet even prior to this policy and
the outcry it was met with, the US government had already separated potentially thousands more families
at the border since 2017, without adequate oversight or accountability. The total number of families forcibly
separated, and the trauma they have endured under this abusive practice, are still coming to light.
In September 2018, CBP informed Amnesty International that the US Border Patrol separated 6,022
"familiy units" between 19 April and 15 August 2018144 – more than US authorities had previously admitted
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(See: https://www.gpo.gov/fdsys/pkg/FR-2018-09-07/pdf/2018-19052.pdf.) Likewise, CBP’s National Standards on Transport, Escort, Detention,
and Search (TEDS Policy, October 2015), also define “family units” as whole family groups: “Family Unit: A group of detainees that includes
one or more non-United States citizen juvenile(s) accompanied by his/her/their parent(s) or legal guardian(s), whom the agency will evaluate
for safety purposes to protect juveniles from sexual abuse and violence.” (See TEDS, at p. 28: https://www.cbp.gov/sites/default/files/assets/
documents/2017-Sep/CBP%20TEDS%20Policy%20Oct2015.pdf.) In contrast, CBP uses the term differently in its periodically updated public
statistics on “Southwest Border Migration” – defining “family units” as the total number of individuals in families, rather than the whole family
group: “Family Unit represents the number of individuals (either a child under 18 years old, parent or legal guardian) apprehended with a family
member by the U.S. Border Patrol.” According to Internet Archive, CBP added this definition to its statistics website on 20 September 2018.
(See: https://www.cbp.gov/newsroom/stats/sw-border-migration.) The use of “family units” to mean individual people who arrive with families,
rather than their whole family groups, conflicts with the definition of the term under DHS policies, and may be intended to inflate the apparent
number of families seeking to cross the US–Mexico border, for political purposes.
145. CRS report, “The Trump Administration’s ‘Zero Tolerance; Immigration Enforcement Policy” (20 July 2018): https://fas.org/sgp/crs/homesec/
R45266.pdf; and NBC News, “Trump admin ran ‘pilot program’ for separating migrant families in 2017” (29 June 2018), available at: https://
www.nbcnews.com/storyline/immigration-border-crisis/trump-admin-ran-pilot-program-separating-migrant-families-2017-n887616. See also: New
York Times, “Hundreds of Immigrant Children Have Been Taken From Parents at U.S. Border” (20 April 2018), available at https://www.nytimes.
com/2018/04/20/us/immigrant-children-separation-ice.html; Reuters, “Exclusive: Nearly 1,800 families separated at US–Mexico border in 17
months through February” (8 June 2018), available at https://www.reuters.com/article/us-usa-immigration-children-exclusive/exclusive-nearly-
1800-families-separated-at-u-s-mexico-border-in-17-months-through-february-idUSKCN1J42UE; and Associated Press, “DHS reports about
2,000 minors separated from families” (16 June 2018), available at https://apnews.com/3361a7d5fa714ea4b028f0a29db1cabc.
146. Amnesty International interviewed 12 asylum-seekers who presented themselves at US ports-of-entry, and numerous media reports relayed
accounts of such family separations at much higher numbers. For instance, see Associated Press, “DHS reports about 2,000 minors separated
from families” (16 June 2018): https://apnews.com/3361a7d5fa714ea4b028f0a29db1cabc.
147. Email to Amnesty International, dated 24 August 2018, from the Executive Director and the Chief of Staff of CBP’s Office of
Intergovernmental Public Liaison. In contrast, the CBP website indicated that 40,638 “family units” were processed at US ports-of-entry during
the same period – a difference of approximately 23,000, which suggests CBP interchangeably uses the term “family units” to refer to both entire
families, and the number of individuals within those families (see above at n. 144).
148. DHS Secretary Nielsen claimed in June 2018 that asylum-seeking parents are actually gang members fraudulently trafficking their own
children: “The kids are being used by pawns by the smugglers and the traffickers. Again, let's just pause to think about this statistic: 314
percent increase in adults showing up with kids that are not a family unit. Those are traffickers, those are smugglers. That is MS-13. Those are
criminals and those are abusers.” Washington Post, “Kirstjen Nielsen’s mighty struggle to explain separating families at the border, annotated”
(19 June 2018): https://www.washingtonpost.com/news/the-fix/wp/2018/06/19/kirstjen-nielsen-tries-to-explain-separating-families-at-the-border-
annotated/?utm_term=.e3bb641012b7#annotations:14814492.
to separating under the “zero tolerance” policy.145 US authorities have still not publicly disclosed how
many of those families were seeking asylum from persecution. Neither have authorities released complete
statistics on the number of families the Trump administration separated prior to April, including during
the pilot run of its family separations policy from July to November 2017 in Texas and New Mexico. DHS
informed the Congressional Research Service (CRS) and news media that it had separated 1,768 families
between October 2016 and February 2018, prior to the “zero-tolerance” policy.146
The total of those available statistics suggests that DHS forcibly separated approximately 8,000 "family
units" in 2017 and 2018 with the number of family separations skyrocketing under the “zero-tolerance”
policy. Those figures do not include the period from 1 March to 18 April 2018, and apparently exclude
an unknown number of families who were separated after requesting asylum at official US ports-of-entry,
which DHS has not shared accurate records on, such that there could be considerable underreporting.
The director of ICE’s Otay Mesa Detention Center near San Diego, California, informed Amnesty
International in January 2018 that ICE does not record all family separations in the cases of those
presenting at ports-of-entry, regardless of whether they were separated by CBP prior to transferring custody
to ICE, or were separated jointly by CBP and ICE during that transfer of custody. In September 2018, CBP
informed Amnesty International that it had only recorded the separation of 36 family units at US ports-
of-entry between 1 October 2017 and 31 July 2018, out of a total of 18,142 “inadmissible” family units
(including asylum-seekers) who were processed during that period.147 Due to the unlikeliness of such a low
number (36), Amnesty International immediately sought clarification of how it was calculated. According to
CBP, the thousands of families whom the US government has publicly admitted to separating – including
those 36 family units separated at ports-of-entry – do not include any cases of so-called “fraud.”
The Trump administration has frequently alleged that the US asylum system is full of fraud, and sought
to justify the separation of asylum-seeking families by claiming that they were actually gang members
fraudulently trafficking children.148 In reality, DHS statistics suggest that traffickers may account for only 0.1
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percent of asylum-seeking families apprehended after crossing irregularly into the United States in FY2017.
In the first five months of FY2018, the rate was supposedly higher at 0.61 percent, but is still statistically
insignificant.149 Those rates also only reflect the recorded justifications made by DHS for family separations,
rather than criminal prosecutions or other statistics that could support such accusations under a more
rigorous standard of proof.
In 2018, CBP has increasingly claimed to separate families for reasons of “fraud” (in 46 cases in Fiscal
Year 2017, versus 191 cases in just the first five months of Fiscal Year 2018).150 Yet the circumstances
CBP defined as “fraud” were often simply being a family member other than a parent. Hence, hundreds
or thousands more families may have been separated, whom CBP does not count in its statistics after
designating their relationships as “fraudulent.”
CBP informed Amnesty International that families separated for reasons of “fraud” included: (1)
grandparents and others who “do not fit the definition of immediate family member”; (2) those whose
birth certificates and other documents CBP could not verify through consulates; and (3) those who were
otherwise unable to prove their family relationships.151 Amnesty International has documented cases in
which DHS made demonstrably false claims of asylum-seeking families’ being unable to prove their family
relationships, even when documentary evidence proved those relationships beyond doubt.152
The Trump administration had also sought to justify the separation of families on the basis of its “zero-
tolerance” policy to criminally prosecute all irregular adult migrants for the purpose of deterrence, which
itself violates international standards. In reality, Syracuse University’s TRAC program found that law
enforcement authorities only prosecuted one adult out of 4,537 apprehended with families at the border
149. Washington Post, “How to mislead with statistics, DHS Secretary Nielsen edition” (18 June 2018): https://www.washingtonpost.com/news/
politics/wp/2018/06/18/how-to-mislead-with-statistics-dhs-secretary-nielsen-edition.
150. CRS report, above at n. 145.
151. Email to Amnesty International, dated 24 August 2018, from the Executive Director and the Chief of Staff of CBP’s Office of
Intergovernmental Public Liaison.
152. See above cases of four fathers and their children.
153. The TRAC report observed: “If this was true, and if these Border Patrol records are accurate, it would appear most separations through
at least April of this year took place for entirely different reasons than the rationale the Administration has given. This is also indicated by the
deportation figures of those arrested, mentioned above, revealing that several hundred parents were deported apparently without their children
during April of this year alone.” See report of Syracuse University TRAC program, “New Details on Border Patrol Arrests” (27 June 2018): http://
trac.syr.edu/immigration/reports/518/. Analysis confirmed by TRAC co-director Susan B. Long (in email of 1 August 2018).
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after crossing irregularly in April 2018.153 Additionally, less than one-third of all adults apprehended
crossing the border irregularly were ultimately referred for prosecution (whether with or without families).154
These statistics demonstrate that hundreds or potentially thousands of families were needlessly and
arbitrarily separated from their family members and detained, without facing the criminal prosecutions that
were the supposed justification for those separations.
Hundreds of those forcibly separated parents and guardians were then deported to their countries-of-origin
without their children, over 300 of whom have still not been reunited.155
3.5 INEFFECTIVE REMEDIES: FAMILY DETENTION IS NO
SOLUTION
Despite global outrage over family separations under the “zero-tolerance” policy, the Trump administration
never disavowed its damaging policy and practice of family separations, nor adequately repaired or
compensated the harm it inflicted upon thousands of families through those practices.
Instead, the Trump administration has sought to continue to separate asylum-seeking families whenever
possible.
On 20 June 2018, President Trump capitulated to political pressure in the United States by signing an
executive order156 that he claimed would end the practice of family separation. In reality, however, the order
did the following:
• It left open the possibility of separating families, as US authorities were doing arbitrarily for at least a
year prior to the rescinded policy of mandatory separations;
• It did nothing to reunite the over 2,600 children who remained forcibly separated from their parents;
• It did not stop the policy of prosecuting adults seeking safety who crossed over borders irregularly;
and
• It mandated the indefinite detention of children with their parents while their claims for asylum were
being adjudicated, which is unlawful in the US under the 1997 Flores Settlement Agreement,157
which controls the treatment of migrant children in immigration detention and US custody, and
threatens further harm to children and families.158
The Department of Homeland Security (DHS) issued a series of statements after President Trump’s
executive order, making clear that family separations would continue in the foreseeable future, including
while asylum-seekers awaited the outcome of their cases. In one of those statements on 21 June, the day
154. Report of Syracuse University TRAC program, “‘Zero Tolerance’ at the Border: Rhetoric vs. Reality” (24 July 2018): http://trac.syr.edu/
immigration/reports/520/.
155. See above at n. 153. See also, Ms. L. v. ICE (above at n. 84), Joint Status Report (6 September 2018): https://www.pacermonitor.com/
public/filings/DFL3I2BI/Ms_L_v_US_Immigration_and_Customs_Enforcement__casdce-18-00428__0213.0.pdf.
156. President Trump’s Executive Order of 20 June 2018: https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-
address-family-separation/.
157. Flores Settlement Agreement, available at: https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_
settlement011797.pdf.
158. Ibid. Specifically, the Executive Order provided: “The Attorney General shall promptly file a request with the U.S. District Court for the
Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (‘Flores settlement’), in a manner that would
permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for
improper entry or any removal or other immigration proceedings. [...] This order shall be implemented in a manner consistent with applicable law
and subject to the availability of appropriations.”
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after the executive order, CBP confirmed that it would continue to separate children from their parents
under the same conditions of so-called “safety” concerns,159 which Amnesty International previously
found the US government to have abusively utilized in the arbitrary separation of families without adequate
justification. (See cases above in Section 3.) The Department of Homeland Security issued another
statement on 23 June 2018, that suggested it did not plan to reunite separated families unless and until
deporting them to their countries-of-origin, and that it would continue to keep them separated while they
sought asylum in the US.160
Citing the 23 June statement by DHS, among other evidence, a US federal court on 26 June 2018 ordered
the Trump administration to halt and remedy the harm caused by its family separations policy. Namely, it
directed the administration to: (1) reunite the thousands of children and parents it had forcibly separated;
(2) halt deportations of those parents who were not yet reunited with their children; and (3) stop family
separations at official US border crossings unless absolutely necessary to protect the child from imminent
harm.161
That injunction did not address the US government’s stated intention to impose indefinite detention on
asylum-seeking families, which was the unlawful remedy proposed by President Trump’s executive order as
an alternative to family separations.
On 9 July 2018, however, another federal judge rejected162 the federal government’s formal request to
modify the Flores Settlement Agreement, to permit the indefinite detention of children in immigration
detention facilities. Flores requires the release of children from immigration detention facilities, whether
accompanied or unaccompanied, as soon as possible and within no longer than 20 days.
Undeterred, the Trump administration attempted again in September 2018 to eviscerate the protection of
children under Flores. On 7 September, US authorities published proposed regulations163 to implement the
Flores settlement agreement. Instead of further institutionalizing child welfare protections and rights, these
proposed regulations would effectively terminate Flores’ substantive protections for migrant children in
immigration detention and US custody. If adopted, these regulations would permit the indefinite detention
of children with their parents, restrict the opportunities for children to be released on parole, and authorize
a self-licensing scheme under which the US government could certify its own family detention facilities,
including in prisons that fail to meet the current minimum standards for keeping children safe. Of note, the
regulations themselves cite family detention as an “effective enforcement tool.”
Amnesty International has thoroughly documented the traumatic consequences of families being subjected
to immigration detention in the United States, whether for indefinite164 or shorter165 periods of time.
On 17 July 2018, two doctors who serve as subject matter experts for the DHS Office for Civil Rights and
Civil Liberties sent a letter to the Senate’s Whistleblower Protection Caucus, voicing their opposition to the
159. CBP statement, “CBP’s Statement on Implementing the President’s Executive Order Affording Congress the Opportunity to Address
Family Separation” (21 June 2018): “[…] as was the case prior to implementation of the zero tolerance policy on May 5, family units may be
separated due to humanitarian, health and safety, or criminal history in addition to illegally crossing the border.” Available at: https://www.cbp.gov/
newsroom/speeches-and-statements/cbps-statement-implementing-presidents-executive-order-affording.
160. DHS fact sheet on family separations and reunifications (23 June 2018): https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-
prosecution-and-family-reunification.
161. See, Ms. L. v. ICE (above at n. 84), Order Granting Plaintiffs’ Motion for Class-wide Preliminary Injunction: https://int.nyt.com/data/
documenthelper/58-federal-judge-rules-on-immigra/425f7ff96a5dcb98ecce/optimized/full.pdf.
162. US District Court for Central District of California, Case No.CV 85-4544-DMG (AGRx), Order Denying Defendants’ “Ex Parte Application for
Limited Relief from Settlement Agreement” (9 July 2018): https://www.justsecurity.org/wp-content/uploads/2018/07/flores.order_.0709.pdf.
163. DHS and HHS draft regulations on “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children” (7
September 2018): https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-19052.pdf.
164. Amnesty International, “Urgent Action Victory! Four Families Ordered Released From Detention” (18 August 2017): https://www.
amnestyusa.org/urgent-actions/urgent-action-victory-four-families-ordered-released-from-detention-usa-ua-59-17/.
165. Amnesty International statement, “Fifteen-year-old Girl and Father Released after Amnesty International USA Delivers Petitions to ICE”
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use and expansion of family detention. Based on their findings over years of visits and inspections at family
detention facilities, the doctors found family detention to uniformly harm the health of all detained families,
and particularly the health of children.166
As of September 2018, the US government has still not accounted for or reunified all of the families it
separated previously.167 Moreover, it continues to seek to deport families upon reunification, without
adopting any measures of reparation to address the serious psychological and/or physical harm caused
to individuals who were unlawfully separated under the government’s recent policy and practice of family
separations.
(23 March 2018): https://www.amnestyusa.org/press-releases/fifteen-year-old-girl-and-father-released-after-amnesty-international-usa-delivers-
petitions-to-ice. See also, Amnesty International, “Urgent Action: Family Seeking Asylum Detained at Berks” (9March 2018), Doc. No. AMR
51/8030/2018: https://www.amnesty.org/download/Documents/AMR5180302018ENGLISH.pdf.
166. Letter of Dr. Allen and Dr. McPherson to the Senate Whistleblowing Caucus (17 July 2018): http://www.wyden.senate.gov/imo/media/doc/
Doctors%20Congressional%20Disclosure%20SWC.pdf.
167. See above at nn. 144 and 153. See also, Ms. L. v. ICE, Joint Status Report (6 September 2018), at n. 155 above.
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4. ARBITRARY AND
INDEFINITE DETENTION OF
ASYLUM-SEEKERS
Central to the Trump administration’s efforts to deter and punish those who seek protection at the US–
Mexico border has been its policy of increasing the use of mandatory and indefinite detention of asylum-
seekers, without parole, for the duration of their asylum claims. By definition, this Trump administration
policy constitutes arbitrary detention under international law.168 Indefinite detention without criminal charge
is always in violation of the UN Convention Against Torture, which the United States ratified and integrated
into US law.169
The administration’s desire to indefinitely detain asylum-seekers has also been a core part of its parallel
policies of illegal pushbacks (supposedly due to detention capacity constraints at ports-of-entry) and family
separations (as a strategy to avoid releasing asylum-seeking families from detention).
Immediately upon taking office, the Trump administration adopted an unambiguous policy of arbitrary
detention of asylum-seekers. In a January 2017 executive order on “border security and immigration
enforcement improvements,” President Trump ordered the default detention of all asylum-seekers,
without parole except in rare circumstances.170 In a memorandum on 6 April 2018 (the same day as the
“zero-tolerance” policy was announced), President Trump reaffirmed and expanded his 2017 order on
the mandatory detention and denial of parole to asylum-seekers.171 In a 2018 budget request, the Trump
administration projected an increase in its average daily population (ADP) in immigration detention by over
23 percent to 47,000 in 2019.172
Following President Trump’s order in 2017, at least five ICE Field Offices issued blanket denials of nearly
100 percent of parole requests by asylum-seekers, where they had previously granted parole in more than
90 percent of cases. A federal court in July 2018 ruled in a preliminary injunction that the US government’s
practice of blanket parole denials was likely arbitrary and illegal.173
168. The UN Working Group on Arbitrary Detention, in its Revised Deliberation No. 5 on deprivation of liberty of migrants, stated in February
2018: “Detention in the course of migration proceedings must be justified as reasonable, necessary and proportionate in the light of the
circumstances specific to the individual case. Such detention is permissible only for the shortest period of time, it must not be punitive in
nature and must be periodically reviewed as it extends in time. [...] Alternatives to detention must be sought to ensure that the detention is
resorted to as an exceptional measure.” See, UN Working Group on Arbitrary Detention, Revised Deliberation No. 5 on deprivation of liberty
of migrants, UN Doc. (7 February 2018): https://www.ohchr.org/Documents/Issues/Detention/RevisedDeliberation_AdvanceEditedVersion.pdf.
See also, statement of the UN Working Group on Arbitrary Detention, “Migrant detention must be ‘last resort’, UN rights group underlines in
its Revised Deliberation on deprivation of liberty of migrants” (26 February 2018): https://www.ohchr.org/SP/NewsEvents/Pages/DisplayNews.
aspx?NewsID=22710&LangID=E.
169. Conclusions and recommendations of the Committee against Torture: United States of America, UN Doc. CAT/C/USA/CO/2, 18 May 2006,
para. 22: http://www.refworld.org/docid/453776c60.html.
170. Executive Order 13767, “Border Security and Immigration Enforcement Improvements” (25 January 2017): https://www.whitehouse.
gov/presidential-actions/executive-order-border-security-immigration-enforcement-improvements. See also, DHS, “90-day Progress Report to
the President on Executive Order 13767: Border Security and Immigration Enforcement Improvements” (25 April 2017), “Section 11: Parole,
Asylum, and Removal,” at pp. 8-9: https://assets.documentcloud.org/documents/3553905/Borderreport.pdf.
171. See, “Presidential Memorandum for the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Health and
Human Services, and the Secretary of Homeland Security” (6 April 2018): https://www.whitehouse.gov/presidential-actions/presidential-
memorandum-secretary-state-secretary-defense-attorney-general-secretary-health-human-services-secretary-homeland-security.
172. DHS, “ICE Budget Overview FY2019,” at p. 40: “The cumulative ADP at the end of FY 2017 was 38,106 (36,628 adult and 1,476 families).
[...] FY 2019 ADP is now expected to reach 47,000, an increase of 23 percent over FY 2017.” Available at: https://www.dhs.gov/sites/default/files/
publications/ICE%20FY19%20CJ.pdf.
173. Those five ICE Field Offices were in: Detroit (covering Michigan and Ohio); El Paso (covering New Mexico and West Texas); Los Angeles;
Newark (covering New Jersey); and Philadelphia (covering Pennsylvania). The case reviewed statistics on more than 800 decisions on parole
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Under international standards that the United States has adopted and agreed to be bound by, the indefinite
detention of asylum-seekers based solely on their migration status constitutes arbitrary detention, in
violation of US obligations under international human rights law174 and refugee law.175
In a July 2017 report on its country visit to the United States in October 2016, the UN Working Group
on Arbitrary Detention found that even prior to the Trump administration, “immigrants were subject to
mandatory detention under punitive conditions,” with parole requests “routinely denied,” which “could
result in asylum-seekers revoking their legitimate immigration claims.”176
The Working Group on Arbitrary Detention concluded:
“the current [US] system of detaining immigrants and asylum-seekers is, in many
cases, punitive, unreasonably long, unnecessary, costly when there are alternative
community-based solutions, especially for children and families, not based on
an individualized assessment of the necessity and proportionality of detention,
carried out in degrading conditions, and a deterrent to legitimate asylum
claims.”177
Following the Trump administration’s announcement of even harsher asylum policies in early 2017, the
Working Group expressed “concern that the executive order and implementing memorandum lay the
groundwork for expanding the existing detention system by increasing the number of individuals subject to
immigration detention,” which would “worsen the situation.”178
The Working Group further voiced that it was “deeply disturbed” by reports of DHS’s desire to conduct
family separations as a deterrent and punitive policy, and “gravely concerned” that such a policy would
result in the detention of parents or guardians, while their children would be remanded to the custody of
the government or third-party sponsors.179
In the Trump administration’s crusade to abolish legal protections for asylum-seekers, DHS has specifically
sought legal authorization to indefinitely detain unaccompanied children and families with children.180 That
expanded power would effectively allow the government to arbitrarily detain all asylum-seekers, without
requests in those Field Offices, from February to September 2017. All the plaintiffs passed credible fear screenings, meaning US asylum officers
had found their fear of persecution to be credible, and likely to result in successful asylum claims. Order of the US District Court for the District
of Columbia, in Damus v. Nielsen, No. 18–578 (JEB), 2018 WL 3232515 (dated 2 July 2018), at pp. 27-38: https://ecf.dcd.uscourts.gov/cgi-bin/
show_public_doc?2018cv0578-34.
174. Report of the Working Group on Arbitrary Detention on its visit to the United States of America (17 July 2017), UN Doc. A/HRC/36/37/
Add.27, at paras. 26-28, 32: “the mandatory detention of immigrants, especially asylum-seekers, is contrary to international human rights and
refugee rights standards” (at para. 26): http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/37/Add.2. Under international law, asylum-
seekers are presumed to be eligible for international protection unless and until proven otherwise following a full, fair and effective asylum
determination procedure. Asylum-seekers should not be detained except a measure of last resort, which must be necessary and proportionate to
achieve a legitimate aim, after all other non-custodial alternatives have proven or been deemed insufficient in an individual’s specific case. The
detention of asylum-seekers or migrants solely on the basis of their migration status, without particular legitimate legal justifications of detention
that are specific to the individual, constitutes arbitrary detention under international law.
175. UNHCR, Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers and Alternatives to Detention
(2012); at paras. 14, 18, 21, 32. UNHCR, which is the international agency charged with supervising treaties for the protection of refugees, has
affirmed in its Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention
(“Guidelines”), that under Article 31, “the detention of asylum-seekers should be a measure of last resort, with liberty being the default position.”
According to the UNHCR, detention is only justifiable when it is “necessary in the individual case, reasonable in all the circumstances and
proportionate to a legitimate purpose,” with the sole legitimate purposes being protecting “public order, public health or national security.” The
UNHCR specifically states that: “Detention that is imposed in order to deter future asylum-seekers, or to dissuade those who have commenced
their claims from pursuing them, is inconsistent with international norms. Furthermore, detention is not permitted as a punitive – for example,
criminal – measure or a disciplinary sanction for irregular entry or presence in the country. Apart from constituting a penalty under Article 31 of
the 1951 Convention, it may also amount to collective punishment in violation of international human rights law.”
176. See above at n. 174, at paras. 27-28.
177. Ibid, para. 87.
178. Ibid, para. 25.
179. Ibid, para. 41.
180. See, “DHS Statement on President Trump Visit to Border Wall Prototypes” (13 March 2018): https://www.dhs.gov/news/2018/03/13/dhs-
statement-president-trump-visit-border-wall-prototypes.
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exception. Currently, the United States is not legally allowed to indefinitely detain children or families
with children, and must instead release them as soon as possible during the adjudication of their asylum
claims.181
In practice, US authorities have leveraged the agony of prolonged detention to compel asylum-seekers to
“voluntarily” give up their asylum claims, and accept deportation back to their countries-of-origin where
they had fled persecution. That practice constitutes refoulement under international law. The anguish of
indefinite detention has often been amplified by family separations and inadequate conditions of detention,
including routinely substandard medical care that has contributed in some cases to asylum-seekers’ deaths
in immigration detention facilities.182
Amnesty International has documented frequent efforts by ICE to compel asylum-seekers to sign their own
deportation papers (in some cases in languages they could not read), including in the cases of asylum-
seekers from Brazil, El Salvador, Ghana, Iraq, and Mexico. In 2017 and 2018, Amnesty International also
documented multiple reports of LGBTI asylum-seekers accepting “voluntary” deportation, in order to
escape the anguish and ill-treatment of indefinite immigration detention.183
In a February 2018 report to the Human Rights Council, the UN Special Rapporteur on torture and other
forms of cruel, inhuman or degrading treatment or punishment elaborated on how arbitrary and indefinite
detention of asylum-seekers can “very quickly, if not immediately” constitute ill-treatment in cases of
individuals who are in situations of heightened vulnerability. The Special Rapporteur observed this to be
particular the case for asylum-seekers who are: “children, women, older people, persons with disabilities,
medical conditions, or torture trauma, and members of ethnic or social minorities including lesbian, gay,
bisexual, transgender and intersex (LGBTI) persons.”184
In Section 3 of this report on family separations, Amnesty International identified cases of children, women,
older people, and persons with disabilities or acute medical conditions who were adversely impacted by
forced separations from their family members, and the subsequent trauma and ill-treatment resulting
therefrom as they languished in indefinite detention.
Amnesty International has also extensively documented the impact of arbitrary immigration detention on
LGBTI asylum-seekers, in particular. In 2018, Amnesty International interviewed 15 LGBTI asylum-seekers
who were detained for periods ranging from several months to over 2.5 years without parole. In some cases
those individuals were denied parole despite acute health conditions and need for specialized care, or
following repeated sexual assaults while in detention.
181. See, Women’s Refugee Commission, “The Flores Settlement & Family Separation at the Border” (15 June 2018): https://www.
womensrefugeecommission.org/images/zdocs/WRC-Backgrounder-Flores-Settlement-and-Family-Separation.pdf.
182. See the Case of Roxana below. Rights organizations have also demonstrated through medical analysis of ICE's own records that inadequate
medical conditions in US immigration detention have been the most common reason for detainees deaths in detention: https://www.aclu.org/
news/report-links-poor-medical-care-deaths-ice-detention. See also, Human Rights Watch, “Mother Sues over Death of Toddler Released from
US Immigration Detention” (29 August 2018): https://www.hrw.org/news/2018/08/29/mother-sues-over-death-toddler-released-us-immigration-
detention.
183. For instance, see the story of “Cristel,” in the Amnesty International report “No Safe Place” (November 2017), at n. 68 above. On 10
August 2017, a group of 17 LGBTI asylum-seekers presented themselves at the Nogales Port-of-Entry in Arizona. Four of those 17, including
three gay men and one transgender woman, signed their own deportation papers to escape the agony of US immigration detention. (Message
on 5 April 2018 from the coordinator of the group, Nakai Flotte with the organization Diversidad Sin Fronteras: https://www.facebook.com/
diversidadsinfronteraz/.) The coordinator of the group told Amnesty International: “The gay men saw that they were not going to survive in Otera,”
referring to Otera County Processing Center, an immigration detention center where the gay asylum-seekers were detained after requesting
asylum. The coordinator of the group said that gay men with feminine gender expression had frequently reported getting assaulted, ridiculed,
and harassed in the facility for being gay. Of the three who chose “voluntary” deportation instead of staying in immigration detention, two sought
safety in Mexico, while the third went missing upon his return to El Salvador. “His family was killed, so he was very vulnerable,” the coordinator
said. (Meeting on 1 May 2018 with Nakai Flotte, Diversidad Sin Fronteras.)
184. UN Human Rights Council, “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment”
(26 February 2018), UN Doc. A/HRC/37/50; available at: https://www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf.
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4.1 ‘IT’S JUST ARBITRARY’: BLANKET DENIALS OF PAROLE
REQUESTS BY ICE
Senior officials in ICE’s El Paso and San Diego Field Offices confirmed to Amnesty International that there
was a default policy of mandatory immigration detention, without consideration of humanitarian parole.
In the San Diego sector, an Assistant Field Office Director, who reviewed and decided on parole requests,
told Amnesty International: “All asylum applicants are put in for expedited removal, except for family units
when there’s no space for them. […] All single adults get placed into custody. The default is immigration
detention, and not measuring flight risk [emphasis added]. The process is expedited removal.”185
In the El Paso sector, an Assistant Field Office Director informed Amnesty International he had received
explicit instructions from ICE headquarters in Washington, DC, that there was a presumption of detention in
all asylum cases. He later declined to share those instructions, due to an ongoing lawsuit against his Field
Office related to its blanket denials of parole requests. Nonetheless, he informed Amnesty International:
“These people [asylum-seekers] are not illegally entering the country; they’re
presenting themselves at a port-of-entry and claiming fear. Yet they need to be
detained.”186
From February to September 2017, the El Paso Field Office issued blanket denials of 100 percent of parole
requests it received from asylum-seekers in New Mexico and West Texas.187
Between March and May 2018, five immigration lawyers188 representing asylum-seekers under the
jurisdiction of ICE’s El Paso Field Office independently informed Amnesty International that they had
stopped submitting parole requests, since they were being arbitrarily denied in all cases. One of the
lawyers, who represented numerous asylum-seekers at Cibola County Correctional Center in New Mexico,
informed Amnesty International:
“Among hundreds of detainees at Cibola who are asylum-seekers, not a single one
was granted parole. Every single one is qualified as a flight risk uniformly, without
consideration of their individual cases. All the parole denials are stamped as a
‘flight risk.’ There are no criteria; it’s just arbitrary. Whether people have medical
issues or US-citizen parents, there is no differentiation in any way. In the case
of one client who needed a surgery, ICE wouldn’t even provide a confirmation of
receipt of more than 100 pages of medical risk documents, as part of a request
for humanitarian parole.”189
Under a class-action lawsuit against ICE for its blanket denials of parole requests, the El Paso Field Office
Director, Ms. Diane Witte, confirmed in a written declaration that her office had categorically denied one
asylum-seeking woman’s parole request because she was “a recent entrant and thus presented a flight
risk.”
185. Interview at Otay Mesa Detention Center (5 January 2018).
186. Interview at Cibola County Correctional Center (8 May 2018).
187. See, Order of the US District Court for the District of Columbia, in Damus v. Nielsen, No. 18–578 (JEB), 2018 WL 3232515 (dated 2 July
2018), at pp. 31: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0578-34.
188. Two located in New Mexico, and three in Texas.
189. Phone conversation with Allegra Love, Santa Fe Dreamers Project (2 March 2018).
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The federal judge overseeing the case cited Ms. Witte’s statement as evidence of ICE’s apparently illegal
policy of arbitrary parole denials:
“This reasoning [of Ms. Witte] is contrary to the very concept of giving each
applicant an ‘individualized determination,’ as ‘recent entry’ is a categorical
characteristic of most, if not all, asylum-seekers. For the El Paso Field Office to
conclude that such entry is, itself, sufficient to demonstrate flight risk strongly
suggests that it is not conducting the particularized assessments required by the
[Parole] Directive. […] The record indicates that, instead, they are subject to a de
facto ‘no-parole’ reality, under which detention has become the default option.”190
On 2 July 2018, in light of ICE’s apparently illegal denial of asylum-seekers’ parole requests, the judge
ordered a class-wide preliminary injunction requiring all five ICE Field Offices in question to conduct
individual reassessments of each asylum case since February 2017, in order to ensure the claimants were
not wrongfully denied humanitarian parole after passing their credible fear interviews.
The judicial order was applicable to all asylum-seekers who had been denied parole by those Field Offices,
until the final order of their removal, including during the appeals process. The order also reaffirmed that
the Parole Directive requires individually reasoned decisions, not just blanket or pro forma denials (as with
190. Order of the US District Court for the District of Columbia, in Damus v. Nielsen, No. 18–578 (JEB), 2018 WL 3232515 (dated 2 July 2018),
at pp. 35-36: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0578-34.
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check-box forms utilized by the El Paso Field Office, among others). The obligation for the parole reviews
was on Field Office Directors, such as Ms. Witte, unless delegated otherwise.
Following the decision, numerous asylum-seekers were released from detention facilities under the
jurisdiction of those five ICE Field Offices. Yet others remained in detention, still without individualized
assessments or reasoned decisions in response to their parole requests, including in cases documented by
Amnesty International (see case of Alejandra below).
In February 2018, the US Supreme Court voided a Ninth Circuit Court of Appeals decision granting
asylum-seekers in the western United States access to bond hearings after six months of detention. As a
result, most asylum-seekers now face the possibility of indefinite detention, without access to humanitarian
parole (by ICE) or bond hearings (by immigration courts), regardless of whether they crossed regularly or
irregularly into the US to request asylum.191
4.2 ‘NONE OF US HAVE BEEN GIVEN PAROLE’: ACCOUNTS
OF TRANSGENDER ASYLUM-SEEKERS
Amnesty International documented in its November 2017 report, No Safe Place,192 how LGBTI asylum-
seekers from the Northern Triangle of Central America are subjected to disproportionately high rates of
persecution and targeted violence, from which authorities in their home countries routinely fail to protect
them, forcing them to seek asylum abroad.
Transgender women are especially vulnerable to death threats from gangs; sexual violence and exploitation;
human trafficking; and arbitrary detention and abuse by law enforcement authorities. Along their journeys
north to seek safe haven in Mexico or the United States, many face the same threats of violence and
exploitation as they fled in the Northern Triangle.193
Upon requesting asylum at the US–Mexico border, transgender asylum-seekers encounter a new set of
challenges and abuses, exposing them to heightened risks of ill-treatment in the US system of indefinite
immigration detention. Such abuses include physical, verbal and sexual violence; inadequate medical care;
and detention in inappropriate facilities, whether confined to solitary cells against their will, or in cases of
transgender women being held in all-male facilities based on their designated biological sex.194
On 7 May 2018, Amnesty International interviewed a transgender woman named Monica from Honduras,
who was denied parole by the director of ICE’s Otay Mesa Detention Center even after twice being sexually
assaulted in an all-male detention unit at the facility.195
On 24 May, 4 June and 26 September, Amnesty International spoke by phone with an asylum-seeking
transgender woman in detention named Nicol, also from Honduras. After seeking asylum in the United
States from sexual assault and other physical violence she fled in Honduras, she reported suffering ill-
treatment and serious instances of discrimination at ICE’s immigration detention facility in Port Isabel,
Texas. She was subsequently transferred to the specialized transgender unit at ICE’s Cibola County
Correctional Center, where she continued to face ill-treatment and abuse. Nicol suffers from bipolar
disorder, and informed Amnesty International that she had not received medications or been able to speak
191. SCOTUS, Jennings v. Rodriguez, Opinion dated 27 February 2018: www.scotusblog.com/wp-content/uploads/2017/02/15-
1204bsacLegomskyAndYale-Loehr.pdf.
192. Amnesty International report, “No Safe Place” (November 2017), at n. 68 above.
193. Ibid. See also, Amnesty International report, “Home Sweet Home?” (October 2016): https://www.amnesty.org/en/documents/
amr01/4865/2016/en/; and Amnesty International report, “Facing Walls” (June 2017), at Section 5.3 (see n. 68 above).
194. See “No Safe Place” at n. 68 above.
195. See the case of Monica, below.
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with a psychologist during her first month at Cibola. She was then sexually assaulted while in detention at
Cibola’s transgender facility, following which she had to be hospitalized. According to media reports, her
depression grew extreme, and she became suicidal in detention. A lawyer at the Cibola facility confirmed
those accounts by email to Amnesty International.196
4.2.1 THE ‘TRANS POD’ AT CIBOLA COUNTY CORRECTIONAL CENTER
Out of a network of over 200 immigration
detention facilities in the United States,197 ICE
has only one specialized immigration detention
unit for LGBTI people. It is the so-called “Trans
Pod” located at the Cibola County Correctional
Center in Milan, New Mexico, which is privately
operated by the for-profit prison corporation
CoreCivic, under contract with ICE.
Under the jurisdiction of ICE’s El Paso Field
Office, the Trans Pod exclusively accommodates
asylum-seekers who identify as transgender
women. With a capacity of 60, the Trans Pod
is a facility that only transgender women can
transfer into, and only upon request. Almost all
of the transgender women asylum-seekers at
Cibola in 2018 were from the Northern Triangle
or Mexico.198
Amnesty International acknowledges ICE for having a specialized facility for transgender women asylum-
seekers and working to implement rights-respecting policies concerning gender identity and sexual
orientation.199 Yet the very existence of the Trans Pod is also emblematic of the excessive use of jails to
unnecessarily detain asylum-seekers, including those with acute needs and heightened vulnerability, who
suffer inordinately in immigration detention and should instead be paroled pending the adjudication of their
asylum claims.
ICE contracted the Cibola detention facility to detain asylum-seekers in October 2016, just months after
the US Department of Justice’s Federal Bureau of Prisons terminated its contract with the same private
detention facility, following years of reportedly substandard medical care.200
On 7 and 8 May 2018, an Amnesty International delegation visited the Cibola County Correctional Center.
During the visit, Amnesty International met with the ICE supervisor, as well as CoreCivic’s warden and staff
of the facility, and toured the Trans Pod with those representatives and the supervising doctor, employed by
the health care subcontractor, Correct Care Solutions.
Four transgender women in Phoneix, Arizona, who had recently been
granted asylum from persecution based on their gender identity. All of them
were previously detained in Cibola County Correctional Center. (Amnesty
International, May 2018).
196. Email from lawyer at Cibola facility on 31 July 2018. See, See Arizona Public Media, “Transgender Asylum-seeker Says She Was Sexually
Assaulted in Detention” (12 July 2018): https://www.azpm.org/p/home-articles-news/2018/7/12/133102-transgender-asylum-seeker-says-she-
was-sexually-assaulted-in-detention/. See also, Arizona Public Media, “Transgender Asylum-seeker from Honduras Expected to Be Paroled” (17
August 2018): https://www.azpm.org/p/home-articles-news/2018/8/17/135262-detained-transgender-asylum-seeker-from-honduras-expected-to-
be-paroled/.
197. See above at n. 21.
198. According to ICE, the Trans Pod was holding 32 asylum-seekers as of 8 May, and 29 as of 1 August 2018. Closer to 50 detainees had
been detained at the Trans Pod, prior to the parole of 14 asylum-seekers on 26 July. Those releases were the first to follow a federal court order
addressing blanket denials of paroles by the El Paso Field Office, among others.
199. The ICE supervisor at Cibola informed Amnesty International that the Trans Pod was conceived of and designed in line with ICE’s 2015
Transgender Care Memo: https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf.
200. See, for example, Washington Post, “The Justice Department Closed this Troubled Private Prison – Immigration Authorities Are Reopening
It” (27 October 2016): https://www.washingtonpost.com/world/national-security/the-justice-department-closed-this-troubled-private-prison-
immigration-authorities-are-reopening-it/2016/10/27/6e52855e-9b87-11e6-a0ed-ab0774c1eaa5_story.html.
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During and prior to the visit to Cibola, Amnesty International researchers separately interviewed 12
transgender women who were either currently (three) or previously (nine) detained at Cibola. Of those 12
women, six of them complained of inadequate and unresponsive health care being provided at the facility,
including all three of the women detained in the Trans Pod when Amnesty International interviewed them.
The most serious problem identified by those interviewed were delays in the provision of anti-retroviral
(ARV) drugs to new detainees with HIV upon their arrival at the facility; and the timing of when hormones,
ARV drugs, and other medications were provided. For instance, several noted there was an inconsistent
schedule for the dispensation of medicines; and that drugs, including strong dosages of hormones, would
frequently be provided in the middle of the night, by nurses and guards who woke the detainees at 1:00
a.m. and then again a few hours later at 5:00 a.m. for breakfast. Those interviewed also similarly reported
the unresponsiveness of nurses to written requests for examinations or other treatment – especially for
palliative care (pain relief) – with some requests for examinations or treatment being answered by medical
personnel three days or two weeks later, and other times not at all.
During Amnesty International’s meetings at Cibola and subsequent tour of its Trans Pod on 8 May, the
delegation raised the medical concerns relayed by current and former detainees at the facility with the
ICE supervisor, CoreCivic warden, and Correct Care Solutions supervising doctor. All three representatives
acknowledged that they had previously received complaints about the scheduling of health care services
and unresponsiveness of some nurses to requests for care, including psychological care for which
interpretation was often reportedly unavailable. The warden said that he would raise those concerns
again with the medical staff, to ensure that they had been adequately addressed. However, he added that
there is little CoreCivic can do to address complaints about medical professionals, including doctors and
psychologists, noting: “There’s a grievance process, yet the medical unit is very good and they audit very
well. We had a meeting with medical; and that’s the grievance process.”
Amnesty International reviewed the report of the first and only ICE audit of the Cibola facility, conducted in
January 2018, and found that the report contained no information or findings related to medical services
provided in the Trans Pod of the facility. It likewise did not include any mention of the complaints that the
CoreCivic warden, Correct Care Solutions supervising doctor, and ICE supervisor acknowledged having
previously received regarding health care services at the facility.201
In a June 2018 meeting with Amnesty International, an ICE official at its headquarters confirmed that ICE
had identified through its own inspections the same problems documented by Amnesty International:
“Everything you’ve identified I’ve also identified […] including the dispensation of infectious disease
medications, etcetera. They are not a platinum provider,” the official confirmed with reference to Correct
Care Solutions, the medical vendor and service provider at Cibola.
On 8 June, Amnesty International wrote a follow-up letter to CoreCivic and Correct Care Solutions to request
information on what remedial measures they would adopt to address the aforementioned concerns, and to
improve the health care being provided at the Cibola facility. Amnesty International also requested details
of what urgent measures their management would adopt to ensure that asylum-seekers detained at the
Cibola facility would have regular access to adequate and timely health care while in custody at the facility,
especially those individuals living with sexually transmitted infections (STIs) or other conditions requiring
specialized medical care. Neither of the companies responded.
201. Office of Detention Oversight, Compliance Inspection for the Cibola County Correctional Center (9–11 January 2018): https://www.ice.gov/
doclib/foia/odo-compliance-inspections/cibolaCountyCorrectionalCenterComplianceInspectionMilanNmJan09_11_2018.pdf.
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CASE OF ALEJANDRA (EL SALVADOR)
‘AS AN OLDER TRANS WOMAN, AND AS A FIGHTER FOR
LGBT RIGHTS, I AM A FIGHTER ALL THE WAY UNTIL THE
LAST DAY THAT I AM ON THIS EARTH.
Alejandra is a 43-year-old transgender rights activist
from El Salvador. After years of beatings and attacks
due to her transgender identity, Alejandra fled El
Salvador and requested asylum at the US–Mexico
border on 26 November 2017. She transferred on 8
December to the Trans Pod at Cibola, where she has
been detained ever since.
“I presented myself to American immigration at
the San Ysidro Port-of-Entry at 9:00 a.m. on 26
November 2017. And that is when my martyrdom
began,” Alejandra told Amnesty International. “As an
older trans woman, and as a fighter for LGBT rights, I
am a fighter all the way until the last day that I am on
this earth.”
Alejandra fought for the rights of transgender women
in El Salvador as an activist for over a decade.
Targeting her based on her transgender identity,
Alejandra said she was sexually assaulted by both the
Salvadoran military and the Mara. Members of the
Mara also beat Alejandra five times between 2013 and 2016, leaving scars on her scalp, face and
leg, which she showed to Amnesty International researchers. Law enforcement officials in El Salvador
would not protect Alejandra, forcing her to flee for her life.
On 8 May, when Amnesty International interviewed Alejandra in detention, she voiced concerns
about the inadequate and unresponsive medical care that she and other trans women received at
the Cibola facility, including long delays in the provision of medical examinations and pain relief.
Alejandra has a treatable but serious medical condition. After reviewing her medical records, her
lawyer said it appeared medical staff at Cibola had not treated Alejandra as medically necessary while
in detention.
“We make requests for medical examinations, and they don’t respond or give us an examination for
15 days,” Alejandra told Amnesty International in May.
On 8 June, Amnesty International issued an Urgent Action on Alejandra’s case, after she informed
her lawyer that she had been experiencing extreme headaches, vomiting and nosebleeds for the
preceding 11 days. Alejandra said that she had requested medical care six times during that period,
though had not yet received a medical examination in the infirmary. (Alejandra’s medical emergency
raised questions about the claims of the ICE supervisor at Cibola, who wrote on 1 June that ICE had
already addressed Amnesty International’s concerns related to health care provision and that they
were no longer problems.) 202
Alejandra (Family photo, San Salvador, undated).
202. Amnesty International, Urgent Action, “USA – Free Trans Asylum-seeker from Detention: Alejandra” (8 June 2018): https://www.amnesty.
org/en/documents/amr51/8514/2018/en/.
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An immigration judge denied Alejandra’s request for asylum on 15 June, and ordered her to be
removed from the United States. On the same day, ICE denied Alejandra’s request for humanitarian
parole, despite her apparently deteriorating health and urgent need of adequate care. On 19 June,
ICE responded to a letter of concern from Amnesty International on Alejandra’s case, asserting that
she was “receiving adequate and appropriate medical care.”
According to Alejandra’s lawyer, however, she has still not had her health situation correctly
diagnosed, and was not consistently or correctly being treated. As she appealed the decision,
Alejandra’s lawyer continued to request her urgent release on humanitarian parole during her appeal,
in order to obtain the specialized medical care she needs to treat her disease.
“I applied for parole, with all the documentation requested, but the request was denied. […] I was not
told the reason they denied my parole, just that it was denied. None of us have been given parole.”
Alejandra told Amnesty International, that if she were released on humanitarian parole: “First I want to
go run and hug my niece. We would like to live together.”
On 26 July 2018, ICE’s El Paso Field Office denied parole to Alejandra for a third time, despite her
precarious health condition and her need for specialized care. Amnesty International reviewed the
June and July letters from ICE denying Alejandra’s parole requests, both of which were based on a
supposed “flight risk.” The determination of her flight risk appeared to ignore her intention to live with
her transgender niece, who had already won asylum in April 2018.
None of the parole denial letters offered any more than checked boxes to communicate the grounds
of denial, which plainly fell short of the individually reasoned assessments required under the Parole
Directive. When an ICE official emailed the June 2018 parole denial letter to Alejandra’s lawyer, he
sent it with the wrong asylum-seeker’s name on the check-box form, apparently having copy-and-
pasted the letter from another detainee’s parole rejection. (He then quickly re-sent the denial letter
with Alejandra’s name instead.) The 26 July denial letter used the same check-box form without any
reasoned decision, apparently in violation of the 2 July Federal Court injunction that ordered ICE’s El
Paso Field Office to reassess all parole requests on an individualized basis with reasoned decisions.
Alejandra’s lawyer informed Amnesty International that she never received any such rationale from
ICE.
In contrast, other asylum-seekers with similar health conditions had their humanitarian parole
requests approved following the injunction in July 2018, specifically recognizing needs for specialized
care.
“I am prepared for anything. I have learned to win and I have learned to lose,” Alejandra said.
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CASE OF MONICA (HONDURAS)
‘I SLIT MY WRISTS, BECAUSE I WAS IN SUCH A STATE OF DEPRESSION.’
At Cibola on 7 May 2018, Amnesty International interviewed a 21-year-old transgender woman
named Monica from Honduras, who had been held in immigration detention since March 2017.
Even after twice being sexually assaulted in a male detention facility at ICE’s Otay Mesa Detention
Center, ICE denied her request for parole. She was again denied parole upon her transfer to the Trans
Pod at Cibola. In both cases, ICE claimed she was a “flight risk.”203 On 29 May 2018, Monica won
her asylum claim and was finally released from detention.
At first Monica was detained at the Otay Mesa Detention Center, with 10 to 12 transgender women in
an otherwise all-male detention facility. She was informed only in November 2017 that she had the
option to move to Cibola, yet was told that it could impact her asylum case. Monica was later held
with straight men who bullied and assaulted her. In December 2017, Monica said she was raped
twice by a male inmate in her detention unit. She reported the rapes to ICE and the police, and was
taken to the hospital, where a rape kit test was performed.204
Monica blamed ICE for her having been sexually assaulted by another detainee: “Trans women
should not be put in segregation, and should not be put in a pod where they are the only trans
women with all these men. Because the rooms over there are with two people, and this is the reason
that I was sexually assaulted by another inmate.”
Despite having been assaulted twice in detention, ICE denied Monica’s parole request, deeming her
to be a “flight risk.” From 15 January to 2 February, Monica was held in segregation in Otay Mesa.
From the trauma of twice being sexually assaulted at Otay Mesa, and still denied parole, Monica told
Amnesty International that the agony of protracted detention in an all-male immigration detention
facility pushed her to attempt suicide:
“In February, I don’t remember when, but I slit my wrists because I was
in such a state of depression. […] At the moment when I did it, I was not
thinking. I just remember at that moment, I was going to shave my legs,
and so many things came to my mind, so many sufferings I’d gone through,
that when I came back to consciousness, I was just lying there with so
much blood in my cell. […] And when ICE saw this, they transferred me to
here [at Cibola].”
After her attempted suicide, ICE put Monica in a safety cell for three days; and then transferred her to
the Trans Pod at Cibola.
203. Amnesty International confirmed the incidents of sexual assault with Monica, her lawyers in California and New Mexico, and the ICE director
of the Otay Mesa Detention Center where she was assaulted. They also confirmed that the incidents were referred to local law enforcement
authorities for investigation. Amnesty International also reviewed a 21 December 2017 email from her lawyer to ICE officials with details of the
case and a parole request, in the days following one of the incidents.
204. Email from Monica’s lawyer to ICE officials, dated 21 December 2017.
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When Amnesty International met with the director of ICE’s Otay Mesa Detention Center on 2 May
2018, who had denied Monica’s parole request, he confirmed the incidents described by Monica
and her lawyers, yet appeared to cast blame on Monica for the sexual assaults.205
After being denied parole for a second time at Cibola, Monica said the conditions of detention
caused her to suffer there as well: “At Cibola, you have to die for the doctors to pay attention to
you. What they do is they say you have to make a request.” After numerous requests, Monica
said it took approximately 20 days before the doctors and nurses at Cibola initiated ARV
medications to treat her HIV. She also complained of an erratic schedule of treatment, consistent
with others whom Amnesty International interviewed: “The nurses come sometimes at 8 a.m.,
sometimes at 1 a.m. The medical attention needs to improve, and the medical officers.”
According to Monica, the health care at Cibola was so poor that her epileptic roommate in the
Trans Pod signed her own deportation papers in May 2018, out of fear for her life:
“Since they don’t treat us if I am dying of some pain – I will just die,
and they will not treat us. My roommate has epilepsy. She is new. She
had an epileptic attack, and the guards acted like it was a joke. They
were laughing, until they saw how scared and concerned I was. I was
even crying, because I could see how much she was in danger on the
ground. So they called a doctor, but while this was happening, they just
talked amongst themselves, and were chatting while she was on the
ground. The rest of us started helping her, and they brought a stretcher.
She is in segregation now. Because of her experience, they got her to
sign her deportation papers. Last week she had the seizure. She talks
to me quite a bit, and she told me the reason she was signing the
deportation papers was that she was frustrated she was not getting the
treatment she needed, and that they did not appreciate the seriousness
of her situation.”206
Amnesty International raised this case with ICE and CoreCivic officials the day after hearing of
the incident. The officials expressed alarm and inquired internally about the case, though did not
share their findings with Amnesty International.
Despite her serious concerns about the inadequate health care at Cibola, Monica also said that
Cibola was a safe space for transgender women: “We are treated as women. I see the difference
here in Cibola: it doesn’t always feel like detention. They made a garden for us, where we plant
things. So for a moment, we can forget all the many things we have gone through and suffered.
205. Interview with Joe Greene, ICE’s Assistant Field Office Director at Otay Mesa Detention Center (2 May 2018): “We had to transfer that case
over to Cibola two or three months ago. There was some speculation on the assault itself. That person [Monica] wanted to be in certain units.
Sexual encounters are prohibited, so corrective actions are taken – including segregation. […] The other party typically says it was consensual in
sexual assault allegations. There are not cameras in bathrooms or physical cells, so those are the vulnerable areas.” At the time of the interview,
he indicated there were approximately 15 to 20 transgender asylum-seekers being held in all-male detention facilities at Otay Mesa. Earlier in
2018, he said the maximum number of transgender detainees in the facility was approximately 30, but that many either were released on bond or
transferred to Cibola.
206. In a related but separate case in August 2017, an asylum-seeking transgender woman named Mirna also reportedly signed her deportation
papers to leave Cibola, “due to her critical health conditions.” The transgender rights activist Nakai Flotte said Mirna “was fainting every day. Her
pain was so strong that she signed her own self-deportation. She only lasted a week in detention – she couldn’t handle the pain. She was pulling
her hair out. She said they gave her some medication, but it wasn’t adequate to treat her levels of pain.” Conversation on 1 May 2018 with Nakai
Flotte, from Diversidad Sin Fronteras.
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CASE OF ROXANA (HONDURAS)
‘SHE ASKED TO THE SEE THE DOCTOR, BUT THEY DIDN'T
GIVE HER ACCESS.’
On 25 May 2018, a 33-year-old Honduran trans
woman named Roxana Hernandez died in ICE
custody at a hospital in New Mexico, 16 days after she
requested asylum at the US–Mexico border.
Out of the 32 asylum-seekers in the trans contingent
of the April 2018 “caravan” of asylum-seekers,207
Roxana was one of about 10 who were living with HIV.
Roxana’s death highlights the risks faced by asylum-
seekers who are trans and living with HIV in the US
immigration detention system.
CBP turned away Roxana at the US–Mexico border
with numerous other trans asylum-seekers on 29
April and again on 6 May. CBP then allowed Roxana
to request asylum on 9 May, but detained her for
five days by in CBP detention facilities known as the
“hielera” (ice box) due to the low temperatures and
rough sleeping conditions.
A trans woman named Stacy, who was subsequently
detained at Cibola and traveled with Roxana through
Mexico to the US border, told a lawyer at Cibola that
Roxana became more ill while detained by CBP:
“We were together for the entire journey to the US–Mexico border. She
didn’t tell me on the journey that she had an illness but I could tell that
she was sick. When we entered Chaparral [port-of-entry], she was ok, when
we were put in the hielera she started coughing a lot, had much pain in her
whole body. When she ate she would vomit and had diarrhea from the food.
[…] She asked to the see the doctor but they didn't give her access. She
didn't get medical care until she arrived at Cibola. She was in the hielera
five days. When she arrived at Cibola she was very sick.”208
ICE issued a statement on May 25, noting that Roxana was transferred to an area hospital the day
after she arrived at Cibola, “with symptoms of pneumonia, dehydration and complications associated
with HIV,” and that she remained in intensive care until the day she died.209 ICE declined repeated
requests from Amnesty International to provide any more information than in the statement about her
treatment in detention and ultimate cause of death.
207. See, Section 2 above.
208. Statement taken by lawyer at Cibola, and shared by email on 30 May 2018 with consent for public use.
209. See, ICE statement, “ICE detainee from Honduras passes away in New Mexico hospital” (25 May 2018): https://www.ice.gov/news/releases/
ice-detainee-honduras-passes-away-new-mexico-hospital.
Roxana Hernandez in Tutitlan, Mexico, April 2018. (Luc
Forsyth for BuzzFeed News)
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CBP informed Amnesty International that Roxana “received a medical evaluation from an off-site
local medical facility and was cleared for travel and detention before being transferred [on May 13]
to the custody of ICE.” However, CBP did not respond to two follow-up written requests by Amnesty
International for information on the location, temperature and conditions in which Roxana was
held by CBP; and for more information about the medical assessment she received in light of the
conflicting account from Stacy that Roxana was denied health care by CBP and ICE prior to her
arrival at Cibola with extreme symptoms.
According to the lawyer in Cibola, other women detained in the Trans Pod (including Alejandra,
see above) became extremely distressed following Roxana’s death, and contemplated giving up
their asylum claims out of fear that they would die in immigration detention. Stacy, the woman who
traveled with Roxana from Mexico to Cibola, informed the lawyer: “She had HIV and died from
complications from the hielera. Since she died, I’ve dreamed about her being at my side; we were
always together through Mexico. Because of what happened, I feel bad and am afraid that the same
could happen to me, since I have HIV.”210
In an interview with a journalist while still traveling through Mexico, Roxana said that she contracted
HIV in Honduras after previously being deported by the United States, where she was then sexually
assaulted by criminal gangs who threatened her life and forced her again to flee persecution in the
country.211
210. Statement taken by lawyer at Cibola, and shared by email on 30 May 2018.
211. Buzzfeed News, “A Transgender Woman Who Was Part Of The Migrant Caravan Has Died In ICE Custody” (31 May 2018): https://www.
buzzfeed.com/adolfoflores/a-transgender-woman-who-was-part-of-the-migrant-caravan-has.
4.3 ‘THEY DON’T RESPECT BLACK PEOPLE HERE’:
ACCOUNTS OF AFRICAN ASYLUM-SEEKERS
In the cases of three African asylum-seekers, Amnesty International documented credible and consistent
claims of discriminatory treatment they said they faced on the basis of race and nationality, during
protracted immigration detention in ICE facilities.
Compounded by reportedly inadequate physical conditions, food and water, as well as substandard
medical care, Amnesty International found their experiences of discrimination and prolonged and indefinite
detention to constitute ill-treatment, which is prohibited absolutely in international law.
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CASE OF SADAT (GHANA)
‘I’M TIRED OF THE PROLONGED DETENTION …I FEEL
SOMETIMES LIKE, ‘I JUST CAN’T!’’
Sadat (32) sought asylum at the US–Mexico border,
after fleeing homophobic attacks against him in
his native Ghana. Following his request for asylum
in January 2016, ICE held Sadat in immigration
detention for over 2.5 years, until he was finally
released on humanitarian parole on 25 July 2018.
Sadat called Amnesty International from detention
in Pearsall, Texas, on 18 May 2018, and voiced
the mental anguish he was experiencing due to
indefinite immigration detention as he pursued his
asylum claim:
“I’m tired of the prolonged detention. To be
honest, I feel sometimes like ‘I just can’t, I just
can’t!’ I am living in panic, I am unsure of what
will happen.”212
While his asylum claim was still being adjudicated,
US authorities sought to forcibly return Sadat to
Ghana, where he claimed to face human rights
violations by both law enforcement and the criminal
groups he fled.
On 18 June 2018, Sadat’s attorney informed Amnesty International that ICE was taking Sadat onto
a plane at the airport, from where they hoped to deport him to Ghana while his lawyers continued to
adjudicate his asylum claim: “Sadat just called ...they took him all the way up to the plane then pulled
him out of line at the last minute.”213
Sadat said he felt the ill-treatment to which ICE subjected him in protracted detention – including the
attempts to forcibly deport him back to the persecution he fled – was rooted in racial discrimination
against him as an African:
“I don’t mind waiting for the case, but I feel discrimination toward me and
the rest of the Africans. We don’t get any kind of relief – no bond. All that
they say [in the Texas facility] is that they are going to send us back to
Africa. In Georgia too, all they would tell me is ‘we are going to send you
back to Africa.’”214
Sadat fled Ghana in 2015 after being beaten by members of a vigilante group, which he said burned
down his house and beat his uncle three days later as Sadat was in hiding. The vigilantes identified
Sadat as gay after beating and interrogating his gay friend and intimate partner, and posting a video of
Sadat pictured in July 2018, immediately after being released
by ICE from the South Texas Detention Complex in Pearsall,
Texas. (Alicia Perez)
212. Phone call to Amnesty International from detention on 18 May 2018.
213. Email from lawyer of Sadat, dated 18 June 2018.
214. Phone call from detention on 18 May 2018.
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that beating on the leader’s Facebook page. The group re-posted the video in April 2017, which
received over 53,000 views, further exposing Sadat as a gay man. Same-sex sexual acts remain a
criminal offense in Ghana, and the police consistently fail to prosecute and punish attacks on the
lesbian, gay, bisexual and transgender (LGBT) community.215
Despite the possibility that Sadat would continue to face persecution, imprisonment, and threats
to his life if returned there, US authorities denied his parole requests and sought his deportation,
claiming he failed to prove that he still faced threats in Ghana. Sadat’s family mailed him a video
as evidence of the ongoing threats of persecution he faces, yet ICE removed the video from the
package his family sent, without informing him. In rejection of Sadat’s appeal in November 2017,
the immigration judge stated that even though ICE officers withheld this evidence, Sadat failed to
reach out to his family to confirm that they had sent it.
Sadat went on hunger strike twice in December and February 2018 to protest the poor conditions
of prolonged detention that he suffered. His lawyers provided Amnesty International with written
documentation in February 2018 of specific instances of ICE personnel retaliating against Sadat
in response to his hunger strikes.216
“All I am asking for is my case to be reopened,” he said. “They never really listened to the
evidence in my case. All I am asking is that they reopen my case and consider the evidence.”217
In a 12 July 2018 decision to reopen Sadat’s case, the Board of Immigration Appeals found that
Sadat “has submitted new evidence regarding the prominent nature of his claim in both the
United States and in Ghana, along with evidence that his return to Ghana may be met with a lack
of adequate safety protocols.”
As he now fights to win his asylum claim in freedom, Sadat said his goals on parole are to live a
full life in freedom: “my dream is to go back to school, and to start a foundation to help homeless
kids and other people in need.”218
215. US Department of State, “Ghana 2017 human rights report” (15 March 2018): https://www.state.gov/documents/organization/277249.
pdf. See also, Human Rights Watch, “Ghana: Discrimination, Violence against LGBT People” (8 January 2018): https://www.hrw.org/
news/2018/01/08/ghana-discrimination-violence-against-lgbt-people.
216. Email from lawyer of Sadat, dated 22 February 2018. Those instances of retaliation included: placing him in a disciplinary cell; shouting at
and threatening him with deportation to Africa, despite his stay of removal; writing reports in his case file of his “bad attitude”; insulting him and
saying they were tired of feeding him with their tax money; and denying access to medical services when he got the flu.
217. Phone call from detention on 18 May 2018.
218. Ibid.
On 25 July, Sadat was released from the South
Texas Detention Complex, after being held
for more than 2.5 years in ICE’s immigration
detention system while pursuing his asylum
claim. (Amnesty International)
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CASE OF JULES (DRC)
‘YOU CAN’T PUT ANYONE THERE WHO IS AN IMMIGRANT.’
Jules (36) fled from the Democratic Republic of Congo (DRC) in September 2014, after escaping
from a rebel military group that he said had kidnapped, tortured and enslaved him to perform manual
labor.
When Amnesty International interviewed Jules at Cibola County Correctional Center on 7 May 2018,
he had just won his asylum claim on 10 April. He was released on parole soon after the interview. The
Trump administration subsequently appealed his asylum victory, and sought to challenge the basis of
persecution from which he had sought asylum. Jules had already been detained for almost 1.5 years
in multiple ICE detention facilities, since he first requested asylum at the US–Mexico border on 4
January 2017.
Jules described how he and other Africans had suffered in ICE’s immigration detention facilities, due
to both the poor conditions of detention and the racial discrimination they face at the hands of ICE
personnel.
“They don’t respect the black people here [at Cibola]. Sometimes they ask
us, ‘In Africa, do you run with the lions?’ There is also physical abuse: If you
challenge their behavior, they punish you and put you in the shoe [isolation],
and they keep you from going outside, or from interacting with others, for
15 or 20 days.”
Nonetheless, Jules said his treatment in Cibola was much better than in Alabama, where both the
poor physical conditions and racial discrimination he faced were much more extreme.
“Alabama is so, so, so bad. You can’t put anyone there who is an immigrant.
You don’t see the sun. Never. […] They put you in the cell, and it is too
cold, at night you cannot sleep. They don’t give you blankets or coats. We
were held with criminals, we were mixed with them. […] In Alabama, if you
want to be good, you have to have someone give you money. You have to buy
food to survive. The people starve and suffer in that place.”
Jules’s lawyer said to him during Amnesty International’s interview, expressing concern about his
treatment in the Etowah County Detention Center in Alabama: “Then you just showed up here,
and you had lost so much weight. Your skin was yellow. I started crying when I saw you, because I
became so afraid for the guys who are still there in Etowah.”
In Cibola, he said he had received medication for sleep and psychological care for the trauma he
still lived with from his experience in the DRC. In contrast, he said immigration detention at ICE’s
notorious Etowah and Sierra Blanca facilities219 had constantly re-traumatized him, based on his
experience in captivity in the DRC: “Everything in detention is not good. In Africa, we have never seen
anything like this. I was four months with no coat in Sierra Blanca.”
219. See joint report of RAICES and Texas law schools, “‘I was treated like an animal’: Abuses Against African Detainees at the West Texas
Detention Facility” (22 March 2018): https://law.utexas.edu/clinics/2018/03/22/abuses-at-wtdf/. See also, AL.com, “Inside Etowah County jail”
(22 March 2018): https://www.al.com/news/birmingham/index.ssf/2018/08/suspect_sought_in_armed_robber.html; and Daily Beast, “‘The Worst
Place Ever’ Is ICE’s Etowah County Detention Center in Alabama” (8 June 2018): https://www.thedailybeast.com/the-worst-place-ever-is-ices-
etowah-county-detention-center-in-alabama.
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CASE OF BOKOLE (DRC)
‘THE WAY THEY TREAT US, I CANNOT SURVIVE FOR LONG.’
On 8 May, Amnesty International interview Bokole, a 30-year-old member of an opposition party
in the DRC. In June 2017, he sought asylum in the United States from political persecution that
he said he faced in the DRC. Bokole’s last hearing was on 31 January 2018, and on 22 March
the government denied his asylum claim. As of September 2018, he remained in detention as he
pursued his appeal.
After he first requested asylum, Bokole said he was shocked to be confined in mandatory and
indefinite detention after seeking protection:
“I told them my story, but they put me in detention. I did not know it was
going to be like this. There is nothing good here; everything is bad. The
condition is not good. I have never been in a jail like this before. The way
they treat us, I cannot survive for long. The officers don’t respect us for who
we are – because of our skin. There is lots of racial discrimination here.
When one guard passes, he waves his hand in front of his nose, as though
to say, ‘you smell.’ Mostly it is psychological abuse. The way we are exposed
to sickness, not being able to go outside. We need the wind. And the water
we are using is not good enough to shower or drink.”
Bokole said he contracted tuberculosis while in detention at Cibola in April 2018, yet he claimed
not to have received adequate medical treatment for his condition since that time. After visiting a
specialist at an area hospital, Bokole said the doctor instructed authorities to provide him with a very
specific treatment, yet he was not getting it.
“I need a professional who will save my life, because I feel that I am in
danger. I need special treatment, which they are not giving me here. They
are giving me a tablet at the wrong time, with horrible food. If you are
taking this tablet, you need to eat good food. They give us no respect. If I
have to take it in the morning, they come in the afternoon, or at the middle
of the night. The food they are giving us is making us sick; when I go to the
bathroom, I see blood [in my feces]. I have complained to the doctors many
times, but they offer me no solutions. I have explained to my lawyer. I am
so scared, that maybe I am going to lose my life. I will be happy if I get the
right treatment for this sickness. It is the first time I have been sick like
this.”
Amnesty International raised Bokole’s case with the CoreCivic warden and ICE supervisor at Cibola.
The ICE supervisor confirmed he was aware of Bokole’s complaints, but said he thought they were
meritless: “Yes, he’s got a medical condition. He has something on his lung, which is treated as TB
[tuberculosis]. He is upset about the treatment, and is going on hunger strike.”
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4.4 ALTERNATIVES TO DETENTION
Under international law, alternatives to detention must always be expressly considered before resorting
to immigration detention – particularly in the cases of asylum-seekers, who may experience heightened
vulnerability in a detention setting, including due to traumatic past experiences.
Amnesty International has long advocated for effective alternatives to immigration detention, since
detention is rarely necessary or proportionate to achieve legitimate objectives. 220
The US government has previously found that people participating in its alternative-to-detention programs
appeared at their immigration hearings in 99.6 percent of cases. In 2017, the Trump administration
terminated the Family Case Management Program (“FCMP”), even though it was 99-percent effective in
ensuring that asylum-seeking parents and their children appeared at their immigration court hearings – by
helping them to find legal representation, guiding them through the court system, and connecting them
with other community resources.221
The United States can and must renew those efforts to implement humane and rights-respecting policies
that neither unnecessarily detain asylum-seekers who request protection in the United States, nor separate
families through criminal prosecutions of irregular entry, which ought instead to be addressed through
administrative procedures.
Alternatives to detention can include reporting requirements, parole or an affordable bond, and supervision
programs operated by community-based organizations. Reporting requirements should not be unduly
onerous, invasive, or difficult to comply with, especially for families and those of limited financial means.
Conditions of release should be subject to review by an immigration judge.
Underscoring the arbitrariness of immigration detention in the United States as it is currently applied, a
Syracuse University program released statistics in July 2018 confirming that the likelihood and cost of
being released on bond from immigration detention appeared to depend primarily on the geographical
location of the court deciding.222
In July 2017, the UN Working Group on Arbitrary Detention urged the US government to “put an end to the
mandatory detention of immigrants and asylum-seekers because of their irregular status,” and immediately
“allow alternative forms of custody of immigrants and asylum-seekers, such as case-management-based
release of individuals into the custody of family members or other community sponsors, non-monetary
parole and release on recognizance.”223
220. Amnesty International policy paper, “Irregular Migrants and Asylum-seekers: Alternatives to Immigration Detention” (April 2009): https://
www.amnesty.org/download/Documents/48000/pol330012009en.pdf.
221. Women’s Refugee Commission, “Backgrounder: Family Case Management Program”: https://www.womensrefugeecommission.org/images/
zdocs/Backgrounder-FCMP.pdf.
222. See, TRAC data on arbitrary variations of bond amounts, depending on jurisdiction: http://trac.syr.edu/immigration/reports/519.
223. Report of the Working Group on Arbitrary Detention on its visit to the United States of America (17 July 2017), at para. 92. See n. 174
above.
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5. CONCLUSION
In its first year-and-a-half, President Trump’s administration has deliberately adopted immigration policies
that have caused catastrophic harm to thousands of asylum-seekers along the US–Mexico border. The
United States is bound under international law by the principle of non-refoulement, which prohibits states
from returning or turning away people to territories where their life or freedom would be threatened. Yet the
US government has flagrantly violated this legal obligation through routine pushbacks of asylum-seekers
at the US–Mexico border, and by using the threats of indefinite detention and family separation to compel
asylum-seekers to return to a risk of serious human rights violations.
The severe mental anguish of family separations, which US officials intentionally imposed upon asylum-
seekers to coerce them to give up their claims and deter other asylum-seekers, amounts to torture. In
September 2018, CBP informed Amnesty International that it had forcibly separated over 6,000 family
units from just 19 April to 15 August 2018 – more than it previously divulged – and confirmed that this
number excluded countless other families whose separations were not recorded. The government also
separated 1,800 family units earlier in 2017 and 2018. Hence, approximately 8,000 family units have been
separated so far by this administration, and this figure likely excludes hundreds – if not thousands – of
other separated families.
Congress and the US Department of Justice should rigorously investigate officials who authorized the
Trump administration’s de facto policy of family separations, and hold them to account.
Congress should also exercise increased oversight on CBP’s illegal pushbacks of asylum-seekers along the
US–Mexico border, which also constitute refoulement. Mexico is not a uniformly safe country for all asylum-
seekers, and any treatment of it as such through the blanket rejection of asylum claims at US ports-of-entry
would be in violation of international law. Senior Mexican immigration officials in two of the six Mexican
states bordering the United States independently informed Amnesty International that the US government
encouraged them to detain and check the legal status of asylum-seekers whom the US was forcing to
wait in Mexico, with a potential view to their deportation. If true, this would constitute a gross violation of
international refugee law.
RECOMMENDATIONS
TO CONGRESS:
• Exercise greater oversight of DHS agencies to: halt the illegal pushbacks of asylum-seekers at
US ports-of-entry; curtail any executive overreach, especially in its attempts to separate and/
or indefinitely detain asylum-seeking families and children; and end the arbitrary and indefinite
detention of asylum-seekers, in violation of international law.
• Request regular information to ensure DHS promptly accepts and processes all individuals seeking
asylum.
• Increase funding for immigration judges, and USCIS asylum and refugee officers.
• Decline to fund ICE’s planned expansion of immigration detention, especially in light of ill-treatment
experienced by asylum-seekers in detention.
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• Decline to fund CBP operations, absent rigorous external oversight of CBP field operations and US
Border Patrol.
• Pass legislation banning the separation and/or detention of families with children.
• Pass legislation to provide for a presumption against detention of asylum-seekers, and to ensure the
right to judicial review and due process in case of detention.
• Support and fund community-based alternatives to detention, such as the previous Family Case
Management Program.
• Decriminalize irregular entry into the United States, in line with international standards, and ensure
that administrative sanctions applied to irregular entry are proportionate and reasonable.
• Ratify the UN Convention on the Rights of the Child, which the United States signed in 1995 and is
the only country in the world not to ratify.
• Press the federal government to halt negotiations with Mexico regarding a “safe third country
agreement,” which would be in violation of both US and international law.
TO THE US DEPARTMENT OF HOMELAND SECURITY:
DETENTION OF ASYLUM-SEEKERS
• Ensure that liberty is the default position, and that the detention of asylum-seekers and other people
is exceptional and only resorted to when it is determined to be necessary and proportionate to a
legitimate purpose, based on an assessment of the individual’s particular circumstances.
• Record any exceptional denials of parole in asylum-seekers’ case files with individualized and
reasoned justifications for those decisions.
• End detention of children, whether accompanied or unaccompanied, separated or held together
with their family, as it is never in their best interest.
• Resume and expand alternative-to-detention programs for all asylum-seekers, and particularly
asylum-seeking families, including the Family Case Management Program.
• Exercise both CBP’s and ICE’s authorities to grant humanitarian parole to asylum-seekers,
unless absolutely necessary to detain them, and then only with reasoned decisions identifying
demonstrable risks faced or posed by the individual as a basis for denying paroled.
• Increase funding of oversight initiatives by DHS custody programs, specifically for the purpose of
review and improvement of humanitarian conditions in immigration detention facilities.
• Address and improve inadequate conditions of immigration detention, including: health care; food
quality; interpretation services; and discriminatory treatment by custodial personnel.
• Improve health care services at the Cibola County Correctional Center.
• Improve ICE’s implementation of the 2015 Transgender Care Memo in detention facilities.
• Improve conditions in CBP’s temporary processing facilities at the US–Mexico border (including
those known as the “ice box” or hielera).
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FAMILY SEPARATIONS AND DETENTION
• Immediately release all asylum-seeking families detained in US immigration detention facilities,
especially at unlicensed family immigration detention facilities.
• Reunify, unconditionally, as quickly as possible and sparing no costs, any and all children who
remain separated from their parents or guardians.
• Halt family separations in all circumstances, except following a rigorous determination of best
interests of the child, which must be articulated to family members and recorded in the case files of
those affected.
• Strengthen mechanisms and procedures to ensure that the separation of children of asylum-seekers
and migrants occurs only when it is in their best interest, including improved safeguards for the
determination of those best interests.
ILLEGAL PUSHBACKS
• Immediately stop turning away asylum-seekers at the US–Mexico border, both at and between
official ports-of-entry.
• Bolster CBP capacity as necessary to receive immediately all asylum claims presented at US ports-
of-entry.
• Halt negotiations with Mexico for a “safe third country agreement.”
• Discontinue all plans and actions that would require asylum-seekers at the US–Mexico border to
wait in Mexico during pendency of their asylum claims.
• Discontinue efforts to hold “credible-fear interviews” directly at US ports-of-entry, which would deny
asylum-seekers access to legal advice and representation.
• Publicly affirm, including through public signage at US ports-of-entry, that asylum-seekers are
legally allowed to enter the United States and request protection.
• Halt issuing derogatory public statements suggesting all asylum-seekers and migrants are
“criminals” or other pejorative terms.
OVERSIGHT MECHANISMS
• Facilitate on-site inspections by DHS Office of the Inspector General at ports-of-entry in order to
prevent, and hold authorities accountable for, the turning away of asylum-seekers.
• Invite and cooperate with an investigation by DHS Office of the Inspector General into reports that
US authorities have encouraged INM officials to screen, detain and deport asylum-seekers from
Mexico, after CBP has refused to receive their asylum requests.
• Ensure impartial, prompt and effective investigations into all allegations of illegal pushbacks,
arbitrary detention (including in cases of blanket parole denials), forcible family separations,
deportation of asylum-seekers to harm, and other abuses of authority.
• Ensure that all those found to be responsible for abuses of authority are held to account, and that
victims are granted full reparations for the harm they have endured.
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TO THE DEPARTMENT OF JUSTICE:
• In line with US obligations under the international human rights treaties to which it is party: prohibit
the practice of family separations; initiate a criminal investigation into the practice, and the harm
it has caused to those subjected to it; hold accountable all those who authorized the practice; and
grant compensation and other reparations to families who were separated, in order to ensure their
rehabilitation, with specific attention to the needs of children.
• Abandon efforts to recognize Mexico as a “safe third country” for all asylum-seekers, in violation of
US and international law.
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AMNESTY INTERNATIONAL
IS A GLOBAL MOVEMENT
FOR HUMAN RIGHTS.
WHEN INJUSTICE HAPPENS
TO ONE PERSON, IT
MATTERS TO US ALL.
CONTACT US
info@amnesty.org
+44 (0)20 7413 5500
www.facebook.com/AmnestyGlobal
@AmnestyOnline
JOIN THE CONVERSATION
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In 2017 and 2018, the Trump administration has deliberately
adopted immigration policies that have caused catastrophic harm
to thousands of people, have spurned and manifestly violated
both US and international law, and appeared to be aimed at the
full dismantling of the US asylum system.
Those policies and practices have included, among others: (1)
mass illegal pushbacks of asylum-seekers at the US–Mexico
border; (2) thousands of illegal family separations, through which
the Trump administration has deliberately and purposefully
inflicted extreme suffering on families, ill-treatment which
constituted torture in some cases; and (3) increasingly arbitrary
and indefinite detention of asylum-seekers, without parole,
constituting cruel, inhuman or degrading treatment or punishment
(ill-treatment) which is absolutely prohibited in international law.
In September 2018, US authorities informed Amnesty
International that they had forcibly separated over 6,000 family
units from just 19 April to 15 August 2018 – more than ever
previously divulged – and confirmed that this number excludes
countless other families whose separations were not recorded. In
total, the Trump administration separated more than 8,000 family
units so far, which Congress and the US Department of Justice
must act immediately to remedy and prevent from ever happening
again, including by holding authorities accountable.
USA: ‘YOU DON’T HAVE ANY
RIGHTS HERE’
amnesty.org
Index: AMR 51/9101/2018
October 2018
ILLEGAL PUSHBACKS, ARBITRARY DETENTION & ILL-
TREATMENT OF ASYLUM-SEEKERS IN THE UNITED STATES
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Exhibit B
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MEXICO'S DEADLY REFOULEMENT OF CENTRAL AMERICANS SEEKING ASYLUM
OVERLOOKED,
UNDER-PROTECTED
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Amnesty International is a global movement of more
than 7 million people who campaign for a world where
human rights are enjoyed by all.
Our vision is for every person to enjoy all the rights
enshrined in the Universal Declaration of Human Rights
and other international human rights standards.
We are independent of any government, political
ideology, economic interest or religion and are funded
mainly by our membership and public donations.
Cover photo:
Illustration by Joaquín Castro Caceres for Amnistía Internacional
© Amnesty International / Joaquín Castro Caceres
Index: AMR 41/7602/2018
Original language: English
© Amnesty International 2018
Except where otherwise noted, content in this document is licensed
under a Creative Commons (attribution, non-commercial, no derivatives,
international 4.0) licence.
https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode
For more information please visit the permissions page on our website:
www.amnesty.org
Where material is attributed to a copyright owner other than Amnesty
International this material is not subject to the Creative Commons licence.
First published in 2018 by Amnesty International Ltd
Peter Benenson House, 1 Easton Street, London WC1X 0DW, UK
amnesty.org
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CONTENTS
GLOSSARY
4
1. EXECUTIVE SUMMARY
5
1.1 Methodology
6
2. FALLING THROUGH THE CRACKS: FAILURES IN SCREENING PROCESSES
8
2.1 First stage of screening by INM field agents
10
2.2 Falling through the cracks: Second stage of screening in detention centres
11
3. LEGAL LIMBO AND HASTY RETURNS
14
3.1 Voluntary return papers
14
3.2 The failure to fully inform individuals about their casefile
16
3.3 Failures of INM information systems
16
4. ILL-TREATMENT OF MIGRANTS AS PART OF THE DEPORTIONS MACHINE
18
4.1 Arbitrary detention of asylum seekers and its impact on refoulement
20
5. RECOMMENDATIONS
22
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GLOSSARY
TERM
DESCRIPTION
REFUGEE
A refugee is a person who has fled from their own country because they have a well-founded fear of
persecution and their government cannot or will not protect them. Asylum procedures are designed
to determine whether someone meets the legal definition of a refugee. When a country recognizes
someone as a refugee, it gives them international protection as a substitute for the protection of their
home country.
ASYLUM-
SEEKER
An asylum-seeker is someone who has left their country seeking protection but has yet to be
recognized as a refugee. During the time that their asylum claim is being examined, the asylum-
seeker must not be forced to return to their country of origin. Under international law, being a
refugee is a fact-based status, and arises before the official, legal grant of asylum.
MIGRANT
A migrant is a person who moves from one country to another to live and usually to work, either
temporarily or permanently, or to be reunited with family members. Regular migrants are foreign
nationals who, under domestic law, are entitled to stay in the country. Irregular migrants are foreign
nationals whose migration status does not comply with the requirements of domestic immigration
legislation and rules. They are also called “undocumented migrants”. The term “irregular” refers
only to a person’s entry or stay. Amnesty International does not use the term “illegal migrant.”
UN REFUGEE
CONVENTION
AND PROTOCOL
The 1951 Convention Relating to the Status of Refugees is the core binding international treaty
that serves as the basis for international refugee law. The 1967 Protocol relating to the Status of
Refugees retakes the entire content of the 1951 Convention and simply adds an extension on its
application to all refugees, not just those arising from specific time bound conflicts in the 1940s
and 50s. Mexico has ratified both the Convention and the Protocol while the USA has ratified the
Protocol, which gives it identical obligations. This treaty, along with the International Covenant on
Civil and Political Rights of 1966, ratified by both USA and Mexico, provide a series of fundamental
rights to be enjoyed by all humans.
REFOULEMENT
Refoulement is the forcible return of an individual to a country where they would be at real risk of
serious human rights violations (the terms “persecution” and “serious harm” are alternatively used).
Individuals in this situation are entitled to international protection; it is prohibited by international
law to return refugees and asylum-seekers to the country they fled – this is known as the principle
of non-refoulement. The principle also applies to other people (including irregular migrants) who
risk serious human rights violations such as torture, even if they do not meet the legal definition of a
refugee. Indirect refoulement occurs when one country forcibly sends them to a place where they at
risk of onwards refoulement; this is also prohibited under international law.
MARAS
Colloquial name commonly given to organized groups from the Northern Triangle of Central America
that are characterized by violent criminal activities and generally associated with territorial control.
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1. EXECUTIVE SUMMARY
Mexico is witnessing a hidden refugee crisis on its doorstep. For a number of years, citizens from
nearby countries who formerly passed through Mexico in search of economic opportunities have
been leaving their countries due to fear for their lives and personal liberty. This briefing analyses the
results of a survey carried out by Amnesty International with 500 responses from migrants and people
seeking asylum travelling through Mexico. The information presented demonstrates that the Mexican
government is routinely failing in its obligations under international law to protect those who are in need
of international protection, as well as repeatedly violating the non-refoulement principle1, a binding
pillar of international law that prohibits the return of people to a real risk of persecution or other serious
human rights violations. These failures by the Mexican government in many cases can cost the lives of
those returned to the country from which they fled.
The so-called “Northern Triangle” countries of Guatemala, El Salvador and Honduras continue to
experience generalized violence, with homicide rates four to eight times higher than what the World
Health Organization considers “epidemic” homicide levels.2 Nearly all of the respondents to Amnesty
International’s survey came from these three Central American countries.3 Of those detained by
Mexican authorities, 84% (263 out of 310 that answered the question) did not desire to be returned to
their country. Of these, 54% (167 out of 310) identified violence and fear as a principal reason for not
wanting to go back to their country, and 35% (108 out of 310) identified direct personal threats to their
life back home as the reason for not wanting to return.
Violations by Mexican authorities of the non-refoulement principle directly affect human lives and deny
protection to those most at need. One man who came to Mexico seeking asylum after fleeing death
threats in Honduras told Amnesty International he wept in desperation to try to stop his deportation,
yet officials did not listen to him or inform him of his right to lodge an asylum claim, and simply
deported him back to his country. This testimony echoes dozens collected by Amnesty International
and contrasts with the official responses received from Mexican authorities, who informed Amnesty
International that refoulement cases were rare.
Amnesty International analysed the 500 responses received and found 120 testimonies that gave solid
indications that a refoulement had occurred, which is 24% of the total set of responses, and equates
to 40% of the responses provided by those individuals who had been detained by the National Institute
of Migration (INM). These testimonies involved people explicitly seeking asylum or expressing fear for
their lives in their country of origin, yet nevertheless being ignored by the INM and deported to their
country.
In addition, Amnesty International found that 75% of those people detained by the INM were not
informed of their right to seek asylum in Mexico, despite the fact that Mexican law expressly requires
this and public officials assured Amnesty International that the requirement is complied with. Amnesty
International also found evidence of a number of procedural violations of the rights that people seeking
asylum should be afforded in line with international human rights law. These violations effectively deny
them the possibility to challenge their deportation and to obtain protection in Mexico.
1. Article 33 of the 1951 UN Convention Relating to the Status of Refugees provides that states must not return persons to territories where
their “life or freedom” would be threatened. The non-refoulement principle is also considered a binding principle of international customary
law.
2. The World Health Organization (WHO) considers a murder rate of more than 10 per 100,000 inhabitants to be an epidemic level.
However, in 2016, the murder rate in El Salvador was recorded as 81.2 per 100,000 inhabitants (National Civil Police), in Honduras 58.9
per 100,000 (SEPOL) and in Guatemala 27.3 per 100,000 (National Civil Police). 2017 figures from these same sources noted 60 per
100,000 for El Salvador, 42.8 per 100,000 for Honduras, and 26.1 per 100,000 for Guatemala.
3. Of the 385 people interviewed, 208 people were from Honduras, 97 from El Salvador, 59 from Guatemala, and a series of other countries
represented less than five cases each
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1.1 METHODOLOGY
Between May and September 2017 Amnesty International carried out a survey of irregular migrants
and asylum seekers with the aim of understanding how Mexican authorities are implementing their
obligations to ensure the effective enjoyment of the right to seek asylum in Mexico. Surveys were
carried out in queues for government offices, lawyers and UN offices, as well as in migrant shelters,
in the southern states of Chiapas, Tabasco and the northern state of Coahuila. Surveys were also
carried out in a reception centre for deportees in Guatemala. Three hundred and eighty-five people
were surveyed in individual interviews responding to a standardized questionnaire that was read out
to them.4 Many of these people detailed multiple experiences of entering Mexico, giving a total of
500 responses to the questionnaire based on 500 discrete episodes of leaving one’s country. Many
migrants and people seeking asylum cross by land into Mexico more than once, which means that the
data set for this survey was based on each separate experience of crossing into Mexico. At times, one
interviewee filled out a number of survey responses, based on separate journeys they had made over
the years.
Eighty-two per cent of the interviewees were men, 17% were women, 1% did not wish to specify their
gender and 2 cases identified as transgender. The over-representation of males is reflected in the
migratory flow as noted by officials statistics, with females accounting for approximately a quarter of the
apprehensions of irregular migrants carried out in 2017.5 Nevertheless, this official data does not take
into account other routes that may be more precarious or clandestine that women may be forced to
make and precise assessments of women-led migration routes are not readily available.
Of the 500 survey responses collected by Amnesty International, 297 pertained to migrants or people
seeking asylum that had been at one point apprehended by the INM. The rest had either never been
apprehended by Mexican officials, or had been apprehended by police (116 responses) the Army (11
responses) or the Navy (4 responses). Further detail on the role of the police in apprehending migrants
(mostly illegally), will be outlined briefly below, however the focus of this briefing is the role of migration
authorities. Survey responses were anonymous and participants were offered no benefit in their
individual cases in return. The data set gathered is not a randomized sample of the estimated 500,000
irregular migrants that cross Mexico’s southern border annually.6 As such, the percentages presented
here in graphs, while an indication of wider trends, are not a statistical sample of the hundreds of
thousands of people that pass through Mexico each year. Nevertheless, the data obtained from the
survey provides important information on the common practices of Mexican authorities in order to
inform Amnesty International’s recommendations.
4. Of the 385 people surveyed, 208 people were from Honduras, 97 from El Salvador, 59 from Guatemala, and a series of other countries
represented less than five cases each.
5. From January to November 2017, females accounted for 29% of irregular migrants aprehended by the INM:See: Unit for Migratory
Policy, Ministry of the Interior, Unidad de Política Migratoria, Secretaría de Gobernación, Extranjeros Presentados y Devueltos, 2017 Cuadro
3.1.3: Eventos de extranjeros presentados ante la autoridad migratoria, según grupos de edad, condición de viaje y sexo, available at: http://
www.politicamigratoria.gob.mx/es_mx/SEGOB/Extranjeros_presentados_y_devueltos. Last accessed XX January 2018
6. United Nations High Commissioner for Refugees, “Factsheet – Mexico” February 2017 - Available at: http://reporting.unhcr.org/sites/
default/files/Mexico%20Fact%20Sheet%20-%20Februrary%202017.pdf
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THE HUMAN EXPERIENCE OF REFOULEMENT
1. You flee threats to your life and grave danger.
2. You enter Mexico without documents.
3. Tired and hungry, you travel by foot or bus.
4. Migration agents (INM) detain you without explaining anything to you.
5. They lock you up without explaining your right to seek protection in Mexico.
6. They pressure you to sign a deportation paper.
7. They deport you by bus to your possible death back in your country.
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2. FALLING THROUGH THE
CRACKS: FAILURES IN
SCREENING PROCESSES
“Here we are not interested in your lives. Our job is to
deport you.”
Mexican INM agent in response to a 27 year old Honduran man who expressed fear of returning to his country.7
The National Institute of Migration (INM) is the federal government body responsible for regulating
borders, travel and residence documents and the flow of regular and irregular migration throughout the
country. The INM is also responsible for apprehending and deporting irregular migrants. It pertains to
the Interior Ministry and has a staff of close to 6,000.8 The officials of the INM that have direct contact
with people seeking asylum generally fall into two categories: INM field agents who carry out a first
stage of interception and apprehensions in field activities such as highways or checkpoints; and INM
officials assigned to migration detention centres, of which the INM has 54 throughout the country.
Amnesty International analysed the 500 survey responses received and found 120 testimonies that
gave solid indications that a refoulement had occurred, which is 24% of the total set of responses, and
equates to 40% of the responses provided by those individuals that had specifically been detained by
the INM. These testimonies involved people seeking asylum more specifically expressing fear for their
lives in their country of origin, yet despite this being ignored by the INM and deported to their country
of origin.
These failures are more than simply negligent practices, and each case of refoulement is a human
rights violation that risks costing the lives of people seeking asylum. The practical experience of an
illegal deportation or refoulement involves the return of a person seeking asylum by land to Guatemala,
Honduras and El Salvador. In the case of El Salvador and Honduras, these countries comprise limited
amounts of territory where mara networks stretch across nearly all regions. Deportation centres
and highway drop-off points for deportees are easily trackable places for these powerful and violent
networks to operate and persecute deportees from different parts of the country.
7. Anonymous survey response from a 27 year old Honduran man interviewed by Amnesty International in the city of Saltillo on 18
September 2017
8. According to the Federal Budget of 2017 (Presupuesto de Egresos de la Federación, 2017), the INM had a staff of 5,809 employees.
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SAÚL*: MURDERED THREE WEEKS AFTER BEING ILLEGALY DEPORTED
BACK TO HONDURAS BY THE INM
Saúl worked in the transport industry as a bus driver in Honduras. The transport industry has
been specifically outlined by the UNHCR as one of five specific categories of at-risk profiles
within the context of widespread violence in Honduras, given the grip that maras have through
demanding bus drivers extortions or “war taxes.” In November 2015 Saúl suffered an armed
attack in which two of his sons were seriously wounded. Fearing for his life, Saúl fled to Mexico
and applied for asylum. The COMAR denied him asylum arguing that he had options for security
in his country, and the INM subsequently violated the non-refoulement principle by deporting
him within the 15 day legal window in which he had the right to appeal his claim. Amnesty
International researchers interviewed Saúl in Honduras in July 2016, three weeks after he had
been deported. He expressed an acute fear for his life and had already suffered an attack in his
house on arriving home. A few days later, Saul was murdered.
Amnesty International interviewed Saúl just days
before he was murdered. [An asterisk next to
his name* indicates Amnesty International has
changed the name in order to protect his identity.]
©Amnesty International/Encarni Pindado
Officials of the INM are required by domestic law to “detect foreigners that, based on their expressions
to the authority, or indeed based on their personal condition, can be presumed to be possible asylum
seekers, informing them of their right to request asylum.”9 They are also required to channel those
people that express their intention to seek asylum to Mexico’s refugee agency, the Comisión Mexicana
de Ayuda a Refugiados (COMAR).10 The law and regulations do not distinguish between different
categories of INM officials in relation to this obligation, as all are required to comply with these
requirements, whether they are field agents or officials in detention centres. A representative of the
INM informed Amnesty International that regardless of whether INM officials carry out activities related
to interception and apprehensions in field operations, or whether they are in migration detention
centres, they are all given uniform training on human rights and international refugee law.11 Indeed,
authorities should be capable of screening for protection needs in a variety of settings.12
9. Article 16 of the Reglamento de la Ley sobre Refugiados y Protección Complementaria, available at: http://www.diputados.gob.mx/
LeyesBiblio/regley/Reg_LRPC.pdf
10. Article 21 of Mexico´s Refugee Law (Ley de Refugiados y Protección Complementaria) outlines that: “Any authority that becomes aware
of the intention of a foreigner to seek refugee status, must immediately advise in writing to the Ministry of the Interior [to which the COMAR
pertains.] The failure to comply with the requirement will be sanctioned in line with the legal stipulations on responsibility of public servants.
[Own translation].
11. Amnesty International interview with INM delegation in Chiapas, southern Mexico, 16 August 2017
12. The United Nations High Commissioner for Refugees (UNHCR) outlines that “Screening and referral can be conducted at border or
coastal entry points, in group reception facilities or in places where detention takes place (including detention centres). See: United Nations
High Commissioner for Refugees, “The 10-point action plan: Mechanisms for Screening and Referral”, available at: http://www.refworld.org/
pdfid/5804e0f44.pdf, page 119.
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2.1. FIRST STAGE OF SCREENING BY INM FIELD AGENTS
“The INM agent said to me: now that you've been detained, you're screwed and you're gonna
get deported to your country.”
Comments from a Honduran man13 who had fled death threats, describing the response he received from an INM field agent when
he expressed his fear of returning.
The field agents of the INM are often the very first point of contact with Mexican authorities for a
number of migrants and people seeking asylum. Yet, they do not have their names on their official
uniforms, and in many cases function as a faceless force dedicated to apprehending migrants and
asylum seekers and turning them over to migration detention centres without an individualized
assessment of each detainee’s personal circumstances and protection needs.
Amnesty International analysed the conduct of INM field agents and found that this first stage of
screening during interception and apprehension of migrants displays overt failures to detect people
seeking asylum and act accordingly. Amnesty International noted just 10 cases out of 297 people
apprehended by the INM where field agents responded according to the law, by explaining asylum
seekers their right to seek protection in Mexico and informing them of the procedure they could
undergo in the COMAR. While these are promising practices from public officials, the fact that this was
the minority of cases is extremely concerning and points to grave and systemic failures by the INM to
comply with law and international human rights obligations. The vast majority of cases involved INM
field agents ignoring or at times humiliating people seeking asylum in response to their expressions of
fear of return to their country.
Amnesty International found that 69% of those that had been apprehended by INM noted that the
field agent never asked them their reasons for having left their country. This is despite the fact that in
the Latin American Regional Guidelines for the preliminary identification and referral mechanisms for
Migrant Populations,14 one of the preliminary questions that should be asked to irregular migrants is
why the person left their country. While this is one of a series of questions that can be asked during the
first stages of identification of asylum-seekers and refugees, and Amnesty International recommends
more precise questions,15 the fact that field agents did not pose even such entry-level questions reveals
a lack of adequate attention to their legal obligations to screen for people seeking asylum. Many
responses to Amnesty International’s questionnaire noted that INM field agents did not allow migrants
and people seeking asylum to speak and simply shouted orders at them and loaded them into vans.
A number of survey responses pointed to the indifference of INM field agents to the comments from
people seeking asylum as to their fear of returning to their country; comments that by law should
detonate a response from the agent that informs asylum authorities of the intention of the person to
seek asylum.16 A number of responses to Amnesty International’s survey outlined a rude or teasing
attitude from INM agents. INM field agents routinely ignored asylum seekers’ concerns, and told
asylum seekers they could not do anything and that they should talk to their colleagues once they
arrived at the migration detention centre. This response, as will be seen below, is inadequate, given the
fact that the processes in the migration detention centres also routinely fail to detect people seeking
asylum.
13. Interview response to survey carried out with Honduran man in Tapachula, Chiapas state, 14 August 2017
14. These guidelines were agreed upon in an IOM and UNHCR sanctioned process that produced this document in 2013: http://
rosanjose.iom.int/site/sites/default/files/LINEAMIENTOS%20ingles.pdf Page 19.
15. See Amnesty International discussion of screening procedures in Italy: Hotspot Italy: How EU’s flagship approach leads to violations of
refugee and migrant rights, 3 November 2016, Index number: EUR 30/5004/2016, p34ff.
16. Op Cit. See footnote 9.
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One person seeking asylum told Amnesty International “I asked [the INM field agents] for asylum, and
they told me that it didn’t exist, and that in Mexico they didn’t like Hondurans because we commit
mischief.”Another migrant told Amnesty International “the field agents know that you don’t know your
rights. They say whatever they want.”
2.2 FALLING THROUGH THE CRACKS: SECOND STAGE OF
SCREENING IN DETENTION CENTRES
Mexico has 54 migration detention centres, many of which are highly securitized and controlled
facilities resembling prison-style conditions.17 These detention centres are the second stage of
processing for irregular migrants and asylum seekers and are run by a different category of INM
officials that interview detainees, prepare a casefile for each, and determine whether they are to be
deported, which in the case of Central Americans, involves loading them onto buses that leave from
the migration detention centres on Mexico’s southern border. In the case of people seeking asylum,
the law requires that these persons are channelled to COMAR without delay and are shielded from
deportation.18
The INM informed Amnesty International that each migrant or asylum seeker that enters a detention
centre is given at least an hour individually where they are interviewed and explained their rights.19
Nevertheless, only 203 of 297 (68%) of responses from people that passed through detention centres
indicated to Amnesty International they were given an interview when they entered. Of those that said
they were given an interview, 57% said that it lasted less than ten minutes. Thirty-five percent said their
interview lasted less than 30 minutes, and only 8% noted that it lasted more than half an hour. The
UNHCR notes that the recommended time for screening interviews is between 30 minutes and a few
hours per person.20
17. The UN Special Rapporteur on Torture and other cruel, inhuman and degrading punishment noted having received reports of
beatings, threats, humiliation and insults experienced by migrants in Mexico’s migration detention centres in his visit to Mexico in 2014
18. Op. cit. see footnote 9.
19. Representative of the General Directorate for Control and Verification of the INM in an Interview with Amnesty International, Mexico
City, 2 May 2017.
20. United Nations High Commissioner for Refugees, December 2016: “The 10-point action plan: Mechanisms for Screening and
Referral”, available at: http://www.refworld.org/pdfid/5804e0f44.pdf, page 119
WHAT WAS THE INM FIELD AGENT´S ATTITUDE WHEN YOU EXPRESSED YOUR REASONS FOR NOT WANTING
TO RETURN TO YOUR COUNTRY?
(171 responses to this question)
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The data collected by Amnesty International demonstrates a systematic failure to properly inform
detained migrants and people seeking asylum of their rights. This is a violation of the law by the INM,
which aims to ensure proper protection for asylum seekers and guard against illegal refoulement of
people whose lives are at risk. It is extremely concerning that 75% of responses from people who
passed through detention centres noted that they were not informed of their right to seek asylum in
Mexico.
WERE YOU INFORMED OF YOUR RIGHT TO SEEK ASYLUM?
DURATION OF THE INTERVIEW IN THE MIGRATION DETENTION CENTRE
(297 responses of people that passed through migration detention centres)
(297 responses of people that passed through a migration center)
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GIVEN THE RUN-AROUND IN THREE MIGRATION DETENTION CENTERS:
"The people in the migration detention centre did not advise or direct me well. They told me that it would be better to
return to my country, ...They gave me lots of pretexts, “buts”. They said there was no COMAR office in the state I was
in, so it was going to take months for my claim, so it was better to go back to my country. At first I was in the migration
detention centre [in a northern state of the country]. From that place, and from the very first moment, I said I wanted
asylum. They told me they couldn’t do anything. On arrival at the next migration detention centre in Mexico City, the
official said to me: “I can’t do anything, you are already on the list to be returned to your country.” It was not until
Tapachula, after speaking to my consul, that I was able to speak to the COMAR!"
Comments from an El Salvadorian woman interviewed by Amnesty International who passed through three different
detention centres: One in a state of northern Mexico [location has been omitted to protect the identity of the interviewee],
then Mexico City and then Tapachula, Chiapas, on the southern border. In none of these did the INM properly inform her
and it was only by chance that her consul informed her of the asylum procedure.
21. Article 21 of Mexico´s Refugee Law (Ley de Refugiados y Protección Complementaria) outlines that consuls must not be informed of
their citizens´ asylum claim, only unless the person gives express consent.
“The INM has not improved in informing people about
asylum. People get the information by word of mouth.”
Lawyer working on asylum and migration cases in Chiapas in the south of Mexico
Also of concern is the fact that in numerous cases, INM officers told people seeking asylum that
their consul was the person in charge of explaining to them their rights to asylum in Mexico, thereby
indirectly pushing them to contact their consular authorities. International practice tends to shield
asylum-seekers from contact with their consular authorities, as a form of protection against the risk of
identification, retaliation and human rights violations at the hands of state agents.21
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3. LEGAL LIMBO AND HASTY
RETURNS
“I can't do anything for you – you are already on the list for
the deportation bus.”
Comments by an INM official to a 25-year-old man from El Salvador who expressed fear for his life if he was returned to his
country. He told Amnesty International that INM officials did not let him read his return papers, and simply loaded him onto
the bus to be deported.22
The detention and return of an irregular migrant or asylum seeker to their country of origin is the
default response that the INM takes in relation to Central Americans arriving in Mexico. The INM opens
a casefile for each person detained, taking the form of an administrative legal procedure, in which the
person detained has 15 days to present arguments in their favour and seek legal counsel.23 Once all
of these stages are completed, or once the person signs papers withdrawing their intention to present
arguments within the 15 day window, the INM prepares a resolution concluding the casefile and places
the irregular migrant on a list to board a bus headed for their country of origin. The names on this list
are checked off by the consul of the country of origin who verifies the nationality of each person.
3.1 VOLUNTARY RETURN PAPERS
An alarming aspect of the way the administrative migratory procedure is implemented in practice is
that one of the very first steps in putting together a casefile involves detainees signing a number of
papers, accepting their “voluntary return”24 to their country and waiving their rights to present legal
arguments in their favour within the stipulated 15-day procedural window. This is the default process
that is carried out in the first interview or “declaration” (comparacencia) of the migrant or asylum-
seeker before an INM official in the detention centre. This comparecencia takes place within the first
24 hours of a migrant or asylum-seeker entering the detention centre, and it is at this time that the INM
official is by law required to comprehensively explain to them their right to asylum, among other rights.
In practice, this process often involves the INM official asking the detainee to sign a number of papers,
often without explaining their contents. It is extremely concerning that the signing of return papers
and the waiving of very important procedural rights are the default steps in this process. Rather than
being informed in detail of the different avenues available to them, including seeking asylum, thereby
allowing an informed decision by each person, migrants are routinely asked to sign “voluntary return”
22. Anonymous survey responses from an interview carried out with an El Salvadoran man seeking asylum in Mexico, interviewed in
Tapachula, Chiapas state, 8 August 2017
23. Article 56 of the Federal Law on Administrative Procedures (Ley Federal de Procedimiento Administrativo) outlines that each party
in an administrative legal process must be formerly notified with the lodging of a deed as to the opening of the period for arguments and
responses. Nevertheless, this does not occur in relation to the Migratory Administrative Process [Procedimiento Administrativo Migratorio].
24. "Voluntary return” refers to deportations which do not imply administrative sanctions on re-entry in Mexico, as opposed to official
deportations, which have punitive implications upon re-entry.
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papers, which effectively allow for their deportation. Since the signing of the “voluntary return” paper
is a default step on arriving at a migration detention centre, in order not to be returned to their country
detainees must actively desist from this return, and only then will it be reversed. Reasons for desisting
on “voluntary return” papers may include the decision to request asylum, or the decision to open a
judicial proceeding to stop one’s deportation. However, many irregular migrants and asylum seekers
are also asked to sign a paper waiving their rights to present legal arguments in their favour within the
stipulated 15 day procedural window.
“The INM official in the detention centre said ´if you don’t
sign here [my voluntary return paper], we won’t give you
food, you won’t be able to have a shower. We will treat you
like you don’t exist.' ”
Comments from a 23 year old Honduran man25 to Amnesty International regarding his experience in the detention centre in
Acayucan, Veracruz, in 2017.
According to the testimonies collected by Amnesty International, people seeking asylum whose lives
are at risk in Central America are very frequently pressured into signing “voluntary return” deportation
papers. Amnesty International received numerous testimonies of people in detention centres being
hastily asked to sign voluntary return papers without being explained what they were, as well as a
number of cases where people desired to seek asylum yet were ignored and told to sign their return
papers. In some cases, INM officials in immigration detention centres were verbally forceful with
asylum seekers or even pressured them into signing papers through coercive tactics. These overt
displays of illegality on the part of INM officials are demonstrative of an institutional culture that enables
systematic failures in complying with the non-refoulement principle.
“The lady from INM told me 'I'm not even going to talk
with you.' She got angry with me because I didn't sign my
deportation.”
Comments from a Guatemalan woman who had asked for asylum but was refused access to the procedure while in
immigration detention
25. Anonymous survey interview carried out in Saltillo, Coahuila state, 19 September 2017
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3.2 THE FAILURE TO FULLY INFORM INDIVIDUALS ABOUT
THEIR CASEFILE
People seeking asylum and migrants are made even more vulnerable by the fact that they are never
given a copy of their “voluntary return” paper or the casefile that pertains to them. This undermines
their ability to understand the process they are being subjected to or to oppose any of the decisions
made about their case. In the case of “voluntary return” papers, a public official co-signs each of
these papers alongside the detainee. Denying rights-holders a copy of these papers strips them of any
possibility for redress in light of arbitrary or illegal actions by authorities.
A lawyer working on dozens of cases of detained migrants and asylum seekers in the state of Chiapas
told Amnesty International it is even very difficult for her to access casefiles. The fact that legal
representatives also battle to access such information gravely undermines asylum seekers’ rights to
effective legal counsel.26
3.3 FAILURES OF INM INFORMATION SYSTEMS
In addition, internal systems within the INM enable repeated breaches of the non-refoulement
principle. In an interview with Amnesty International, an INM chief in the southern state of Chiapas27
admitted that the internal INM computer registries do not have a field on each person’s individual file
as to whether they are an asylum seeker or not. This is a grave oversight from the INM, the very same
body that is able to control a sophisticated system of biodata, travel permissions and entry permits
for each passport holder on its computer database. The fact that no unified system exists within INM
databases that indicates whether a person is an asylum seeker or not is extremely concerning and
leaves open the possibility that these at risk populations fall through the cracks. Amnesty International
has received a number of reports of people seeking asylum being deported despite being in a current
process of an asylum claim before the COMAR. Amnesty International has also received a number of
reports of INM field agents apprehending asylum seekers and then ripping up their official paper from
COMAR. This paper specifically calls on the INM to refrain from deporting them and asylum seekers
carry it on them with their name and photo.
26. In line with article 8 (1) and (2) of the American Convention of Human Rights, those people before an administrative legal process,
as is the case with detained migrants and asylum seekers subject to deportation, have the right to be heard before competent authority;
to have access to a legal representative and interpreter at no charge; and the right to appeal the decision that affects them (including
deportation or “voluntary return”).
27. Amnesty International interview with INM delegation in Chiapas, southern Mexico, 16 August 2017
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EMILIA* AND FAMILY: FINDING SAFETY AND A NEW LIFE IN MEXICO
AFTER FORMERLY BEING DEPORTED
Emilia fled El Salvador and arrived in Mexico in late 2016 with her seven children,28 after two
of her other children and her brother had been killed by the mara in El Salvador. Her teenage
daughter had also been attacked by the mara and the family couldn’t take it anymore and fled
the country. On arrival to Mexico, Emilia’s eldest daughter went in to labor and had to be rushed
to a hospital on entry into Mexico in order to give birth to Emilia’s first grandchild, a baby girl. The
family rented a small hotel room in southern Mexico in the days following, and soon afterwards
Emilia had to take a bus back to the hospital to carry out paperwork for the vaccinations of
the newborn baby. On her way to the regional hospital in Tapachula, Chiapas state, Emilia
was stopped at an INM checkpoint alongside her teenage son who was accompanying her.
Emilia pleaded with the INM agents not to return her to El Salvador where her life was at risk,
and through tears, told them that she was on her way to the hospital for the paperwork for her
newborn granddaughter. INM agents ignored her pleas, and detained her and her son in the
nearby detention centre where they were separated and deported a few days later. By sheer
luck, on arriving in El Salvador, Emilia was able to find her son and a willing citizen lent her some
money to quickly return to Mexico. She found the rest of her family on return to Mexico, and
remained living in a cramped room on the border, all together, for months on end while they
awaited their asylum claim outcome. Emilia and her family were granted international protection
in Mexico in April 2017. After a few months, the family organized themselves to move to northern
Mexico where they currently live. Emilia’s children are now attending school and her baby
granddaughter is now walking. Her eldest daughter is working in a local shop and the elder sons
have obtained agricultural work. The family told Amnesty International they feel safe and out of
harm’s way.
28. For the full story of threats and persecution against Emilia and her family, see: Amnesty International Facing Walls: USA and Mexico´s
Violation of the Rights of Asylum Seekers. June 15, 2017. AMR 01/6426/2017. Available at: https://www.amnesty.org/es/documents/
amr01/6426/2017/en/
Emilia and one of her younger sons
©Amnesty International/Benjamín Alfaro Velázquez
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4. ILL-TREATMENT OF
MIGRANTS AS PART OF THE
DEPORTATION MACHINE
The almost automatic response by federal authorities to irregular migrants is to apprehend them and
turn them over to migration detention centres. As outlined above, the INM is the authority responsible
for this function, nevertheless Mexico’s Migration Law specifically allows for the Federal Police to act
in an auxiliary function alongside the INM in migratory verification exercises.29 Notwithstanding this
stipulation, the involvement of the Federal Police must respond to an express request by the INM, and
police cannot simply pick up migrants in different parts of the country as part of their daily functions.30
Unfortunately, irregular migrants and people seeking asylum are often subjected to arbitrary detentions
by federal, state and municipal police.
The treatment by INM agents in apprehensions did not rate as poorly as the police in the response to
Amnesty International’s survey. While this is promising to note, the fact that the INM did not present
such overwhelmingly poor ratings as police does not mean there is no cause for concern.
POLICE VIOLENCE AND ILL-TREATMENT
A total of 68% of those 116 responses that detailed a detention by the police described their
treatment as “bad” or “very bad”.
Federal and municipal police were most commonly mentioned as being involved in
apprehensions that very frequently involved robbery or extortion
of migrants by police. On a limited number of occasions police
handed migrants over to migration detention centres.
Some testimonies noted torture or ill-treatment by police: One
migrant told Amnesty International:
"They beat me and applied electric shocks to me and they took
my money. I told them I had rights, but they tortured me with
a pistol that they had on their waist. They gave me electric
shocks for 10 minutes" 31
29. Mexico´s Migration Law (Ley de Migración) outlines in its Article 81: The revision of documents of people entering and leaving the
country, as well as the inspection of transport lines entering and leaving the country, are considered actions of migratory control. In these
actions, the Federal Police will act in an auxiliary function, in coordination with the National Institute of Migration.
30. Mexico´s Migration Law (Ley de Migración) outlines in its Article 96: Authorities will collaborate with the National Institute of Migration
in the exercise of its functions, when the Institute requests it, without this implying that authorities can independently carry out functions of
migratory control, verification and revision.
31. Amnesty International has received a number of reports about the use of Tasers against migrants and asylum seekers throughout
Mexico. The reports focus on the use of these instruments by federal agents, yet it is not clear in testimonies whether the INM also carries
these instruments.
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Amnesty International received a number of reports of grave human rights violations committed by
INM officials during the moments of apprehension as well as in detention centres. One Honduran
man32 told Amnesty International that on entering Mexico in the southern state of Tabasco, he was
apprehended by INM agents who tied him up and beat him with a tennis ball wrapped inside a wet
sock in order to avoid leaving marks on his body. A number of other migrants and asylum seekers
mentioned beatings and forceful treatment during their apprehension by INM agents, as well as
racist and humiliating remarks. One young Honduran man told Amnesty International that an INM
agent offered to let him go free in return for sexual favours.33This chain of ill treatment against people
seeking asylum and migrants is replicated during the time in immigration detention. While a number
of migrants and asylum seekers told Amnesty International that the treatment in immigration detention
centers was “fine”, a number of responses pointed to ill- treatment. In addition, Amnesty International
has documented a number of instances of prolonged detentions for months or even up to a year,
including the detention of small children and babies in detention centers. A citizen advisory body of
the INM recently released a comprehensive report based on site visits and inspections of migration
detention centres, which signalled the commonplace use of practices that undermine the physical and
mental health of detainees and go against international standards that call for the non-detention of
people seeking asylum.34
In addition, Amnesty International has received a number or reports from lawyers and civil society
organizations of solitary confinement in “punishment cells” in migration detention centres, where
detainees can be kept for weeks on end. In at least three testimonies, Amnesty International was
informed by detainees that they had been separated and placed in a small cell with very little light,
where they remained all day and were not able to join other detainees during meal times. The reasons
for placing detainees in these cells were in two cases in response to a fight or scuffle that guards
claimed the detainee had been part of, and in the third case the confinement was a response to a
woman who had experienced a psychotic episode while inside the detention centre.
Amnesty International questioned the INM on the existence of these solitary confinement cells. After
an initial denial of their existence, officials admitted that their installations did in fact allow for this sort
of imposed segregation of certain individuals.35 While there are no doubt security concerns inside
migration detention centres that may warrant limited disciplinary measures, the conditions reported
in these “punishment cells” appear disproportionate in relation to international standards on the
deprivation of liberty and rights of detainees.36 In addition, it is important to emphasize that irregular
migrants and asylum seekers have not committed a crime and are not being detained on criminal
charges, as would be the case in prisons.
32. Honduran man interviewed in an anonymous survey response in the city of Saltillo, Coahuila state, on 18 September 2017
33. Survey interview - anonymous response from a 20 year old man from Honduras interviewed in Tenosique, Tabasco State, 29 May
2017
34. Citizen Council of the National Institute of Migration, (Consejo Ciudadano del Instituto Nacional de Migración). Personas en detención
migratoria en México: Misión de Monitoreo de Estaciones Migratorias y Estancias Provisionales del Instituto Nacional de Migración, July
2017
35. Amnesty International interview with INM delegation in Chiapas, southern Mexico, 16 August 2017.
36. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) prohibits solitary
confinement under a variety of circumstances. For more information, see: https://www.unodc.org/documents/justice-and-prison-reform/GA-
RESOLUTION/E_ebook.pdf
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4.1 ARBITRARY DETENTION OF ASYLUM SEEKERS AND
ITS IMPACT ON REFOULEMENT
Migrants, asylum
seekers and refugees
should not suffer any
restriction on their
liberty or other rights
(either detention or
so-called alternatives
to detention) unless
such a restriction is
(a) prescribed by law;
(b) necessary in the
specific circumstances;
and (c) proportionate
to the legitimate aim
pursued. In particular,
any measure (either
custodial or non-
custodial) restricting
the right to liberty of
migrants, asylum-
seekers and refugees
must be exceptional
and based on a case-by-case assessment of the personal situation of the individual concerned,
including their age, history, need for identification and risk of absconding, if any. The individual
concerned should be provided with a reasoned decision in a language they understand. Children, both
those unaccompanied and those who migrate with their family, should never be detained, as detention
is never in their best interests.37
In the case of Mexico, the decision to detain an irregular migrant or asylum seeker is almost completely
devoid of any individualized assessment. Detention is the automatic response, and all irregular
migrants apprehended by INM are detained, even if they express a wish to seek asylum. This flies in
the face of international law under Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) which prohibits arbitrary detention.38 In addition, due to the failures in the screening system
discussed above, asylum-seekers end up being unlawfully detained together with the migrants.
Under the UN Refugee Convention and its 1967 Protocol, states are not allowed to apply punitive
measures to those seeking asylum.39 The detention of people seeking asylum can be seen as a punitive
measure that undermines their intention to seek protection. In Mexico, the prospect of being unlawfully
detained often pushes asylum-seekers to return to their country of origin, despite the risks they face
upon return.
37. See also:“UNHCR’s position regarding the detention of refugee and migrant children in the migration context” (January 2017)
clarifying that “children should not be detained for immigration purposes, irrespective of their legal/migratory status or that of their parents,
and detention is never in their best interests.: http://www.refworld.org/docid/503489533b8.html
38. In addition, The UN Working Group on Arbitrary Detention has explicitly stated that where the detention of unauthorized immigrants is
mandatory, regardless of their personal circumstances, it violates the prohibition of arbitrary detention in Article 9 of the UDHR and Article
9 of the ICCPR. See Report of the Working Group on Arbitrary Detention on its visit to the United Kingdom, E/ CN.4/1999/63/Add.3, 18
December 1998, Paragraph33
39. 1951 UN Convention on Refugees, Article 31. Full text of the Convention available at: http://www.unhcr.org/3b66c2aa10
The entry point for men at a migration detention centre in the southern state of Chiapas
©Amnesty International
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Amnesty International
A recent promising development from the INM has been the implementation of the Programme
of Alternatives to Detention (Programa de Alternativas a la Detención) since August 2016, as a
result of an agreement between COMAR, INM and the UNCHR. Amnesty has observed that a
number of asylum seekers are being released as a result of this programme, yet many failures
remain. Before August 2016, asylum seekers making claims from inside a migration detention
centre remained in detention for up to 3 months or more. Since late 2016, the majority of
asylum seekers in detention centres are now being released within a matter of weeks due to the
Programme of Alternatives to Detention that places them in migrant shelters run by civil society
organizations.
Nevertheless, it is concerning that this programme is not institutionalized or published officially
and thus risks being simply an act of good faith that could disappear at any moment.
In 2016, 24% of asylum claims commenced with COMAR were abandoned by the asylum
seeker before the procedure was concluded. The 2017 rate of abandonment of asylum claims
had dropped to 16% by August, according to figures published by the COMAR. These figures
demonstrate that the fact that asylum seekers are no longer being detained for such prolonged
periods could be having an impact on their adherence to the asylum procedure in Mexico and
possibilities for obtaining protection rather than being returned to their country.
There may be a correlation between periods in migration detention and refoulement of asylum seekers
from Mexico. Of 49 responses that noted that they wished to return to their country, eight that had
been apprehended by INM said that the reason they wanted to return to their country was because
they did not want to remain in migration detention. In the case of Emilia* (see Section 3), despite the
fact that her life was at grave risk in El Salvador, she told Amnesty International that she could not bear
to be locked up and separated from her son in detention, so she decided to risk her life and sign her
voluntary return paper that would allow her to get out of detention, yet at the same time risk her life in
the hope of being released and reunited with her son and family.
Such examples demonstrate that the failures in screening processes for asylum seekers, coupled with
the failures of the migration detention system, end up enabling further violations by Mexico of the non-
refoulement principle.
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MEXICO’S DEADLY REFOULEMENT OF CENTRAL AMERICANS SEEKING ASYLUM
Amnesty International
Street scene near Ciudad Hidalgo, on the Mexico - Guatemala border
© Amnesty International
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OVERLOOKED, UNDER-PROTECTED
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Amnesty International
5. RECOMMENDATIONS
TO THE PRESIDENT:
• Urgently order a review of screening processes implemented by the National Institute of Migration
(INM). This review must have the aim of:
• Ensuring irregular migrants who are apprehended and detained are properly informed of
their right to seek asylum in Mexico;
• Guaranteeing that their access to asylum procedures faces no obstacles; and
• Curbing illegal practices of refoulement and ensuring they are met with administrative
sanction.
TO THE NATIONAL INSTITUTE OF MIGRATION (INM):
• Urgently implement a review of screening processes implemented by the National Institute of
Migration (INM). This review must have the aim of:
• Implementing a pro-active screening system that improves identification of potential asylum
seekers within the first moments of contact with the INM;
• Ensuring irregular migrants who are apprehended and detained are properly informed of
their right to seek asylum in Mexico;
• Guaranteeing their access to asylum procedures faces no obstacles;
• Curbing illegal practices of refoulement and ensure they are met with administrative
sanction.
• Improve internal coordination databases and processes to ensure that asylum seekers are clearly
identified in official registries to avoid oversights that enable unlawful deportations.
• Publish and institutionalize the Programa de Alternativas a la Detención in the Official Gazette
(Diario Official de la Federacion).
• Provide all detained migrants and asylum seekers, as well as their legal representatives, with a full
photocopy of their casefile papers on entry to a detention centre as well as a copy of their voluntary
return paper and resolution in their administrative migratory procedure.
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AMNESTY INTERNATIONAL
IS A GLOBAL MOVEMENT
FOR HUMAN RIGHTS.
WHEN INJUSTICE HAPPENS
TO ONE PERSON, IT
MATTERS TO US ALL.
CONTACT US
info@amnesty.org
+44 (0)20 7413 5500
www.facebook.com/AmnestyGlobal
@AmnestyOnline
JOIN THE CONVERSATION
Case 3:18-cv-06810-JST Document 35-3 Filed 11/16/18 Page 102 of 103
Mexico is witnessing a hidden refugee crisis on its doorstep.
Citizens from nearby countries who formerly left Guatemala,
Honduras and El Salvador and passed through Mexico in
search of economic opportunities have for a number of
years been leaving their countries due to fear for their lives
and personal liberty. This briefing outlines the results of a
questionnaire carried out by Amnesty International with 500
responses from migrants and people seeking asylum
travelling through Mexico. The information presented
demonstrates that the Mexican government is routinely
failing in its treaty obligations under international law to
protect those who are in need of international protection, as
well as repeatedly violating the non-refoulement principle, a
binding pillar of international law that prohibits the return of
people to life-threatening situations.
OVERLOOKED,
UNDER-PROTECTED
amnesty.org
Index: AMR 41/7602/2018
January 2018
MEXICO’S DEADLY REFOULEMENT OF CENTRAL
AMERICANS SEEKING ASYLUM
Case 3:18-cv-06810-JST Document 35-3 Filed 11/16/18 Page 103 of 103
SUPPLEMENTAL DECLARATION OF ADAM ISACSON
I, Adam Isacson, declare as follows:
I.
I am over 18 and have personal knowledge of the facts described herein.
2.
I am the Director for Defense Oversight at the Washington Office on Latin
America ("WOLA"), a nonprofit research and advocacy organization based in Washington, D.C.,
that is committed to advancing human rights in the Americas. Since 2011, a significant part of
my work has been focused on border security in the United States.
I have visited the U.S.-
Mexico border approximately 20 times. Together with the Border Security and Migration
program at WOLA, I have published dozens of reports, memos, and multimedia projects about
the security efforts of U.S. agencies at the border and the resulting human impact.
I earned a
B.A. in Social Science from Hampshire College and an M.A. in International Relations from
Yale University.
3.
I have previously submitted a declaration in this case.
4.
I am the co-author of a recent report on the serious challenges facing asylum
seekers waiting at ports of entry. I
5.
There is a rising backlog of individuals waiting to present themselves for asylum
at ports of entry. In Tijuana, 2,500 people are currently on a waiting list; CBP is accepting about
40 people per day for processing.2 In Nogales, service providers told me in September that
families are waiting 14 days for a chance to approach CBP. Two hundred people right now are
waiting their tum on the Paso del Norte bridge between Ciudad Juarez and EI Paso, where there
I Adam Isacson, Maureen Meyer, & Adeline Hite, "Come Back Later": Challenges For Asylum
Seekers Waiting at Ports ofEntry, Washington Office on Latin America (Aug. 2018),
https:llwww.wola.orglwp-contentluploads/20 18108/Ports-of-Entry-Report_PDFvers-3.pdf.
2 Sandra Dibble, "Central American migrants stir sympathy, fears in Tijuana," San Diego Union-
Tribune (Nov. 14,201 8), https:llwww.sandiegouniontribune.contlnews/immigrationlsd-me-
tijuana-shelter-2018I 114-story.html.
Case 3:18-cv-06810-JST Document 35-4 Filed 11/16/18 Page 1 of 3
are far fewer shelters. Similar waits are currently the norm on the bridges connecting Reynosa
and Hidalgo/McAllen, and Matamoros and Brownsville.
6.
This backlog creates dangerous conditions for asylum seekers, who are forced to
wait days to weeks, often without adequate shelter, and sometimes in dangerous border towns
where organized crime preys on vulnerable people, for a chance to seek protection in the United
States.
7.
U.S. Customs and Border Protection ("CBP") has exacerbated these long lines
and dangerous conditions. Among other things, CBP officers at many ports of entry routinely
instruct asylum seekers to "come back later" because the port of entry is full.
8.
In some cases, port of entry capacity may be an issue. Often, though, advocates
credibly report that the ports are not full, and that CBP appears to be throttling the daily flow of
asylum seekers.
9.
Border agents at smaller ports of entry also have told migrants that they no longer
process asylum seekers and have redirected them to larger ports of entry that are up to 50 miles
away. All ports ofentry, however, are legally designated to accept asylwn seekers.
10.
The security conditions in many border towns are precarious.
Asylum seekers
who must wait in a backlogged line are vulnerable to kidnapping and other violence. The risk is
extreme in the border towns across from south Texas, the area of heaviest flow of Central
American child and family migrants.
There-the border zone of the state of Tamaulipas,
Mexico-factions of the Gulf and Zetas cartels are fighting each other on a constant basis. CBP
and Border Patrol agents have told me of witnessing running gunbattles from the U.S. side of the
border. Migrants in that zone have told me that they risk murder if they attempt to cross the Rio
Grande in this area without an approved smuggler. Kidnapping for ransom is also common: in
Case 3:18-cv-06810-JST Document 35-4 Filed 11/16/18 Page 2 of 3
20 I0, in San Fernando, Tamaulipas, the Zetas massacred 72 mostly Central American migrants
whom they had kidnapped.
11.
Based on my research and experIence, there are strong reasons why Mexico
cannot be designed a "safe third country."
Migrants in transit through Mexico are frequently
subject to crimes and abuse, including kidnapping, extortion, robbery and sexual assault. These
crimes almost never result in a conviction of the person responsible.
Corruption in Mexico's
security and migration authorities makes the situation worse; additionally, one reason migrant
smugglers thrive is the relationships they maintain with corrupt officials.
12.
Because it is often difficult to apply for asylum at ports of entry, some asylum
seekers, out of necessity, must cross between ports to apply. There are also many other reasons
why some asylum seekers apply between ports, including that they are unaware of the ports of
entry and criminal gangs force them to cross between ports.
I have heard the latter reason-
organized crime groups forcing migrants to cross in areas they designate---expressed quite often
in interviews with local experts, service organizations, and U.S. and Mexican law enforcement.
I hereby declare under the penalty of perjury pursuant to the laws of the United States
that the above is true and correct to the best of my knowledge.
Adam Isacson
Executed this 16th day ofNovember, 2018
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