The Advocates for Human Rights condemns plans by the administration to summarily return asylum seekers to Mexico without a hearing while simultaneously asking Congress for more than $800 million for federal immigration enforcement.
On Tuesday The New York Timesreported the White House plans, stating that “[u]nder the policy, asylum seekers would not be held for any length of time in an American facility nor would they be given due process.” Alongside the measure, the White House has requested more than $800 million in increased spending for Customs and Border Protection and Immigration and Customs Enforcement. Roll Call reports the increased funding is earmarked for migrant quarantine facilities and for charter deportation flights to allow continued deportations despite commercial airline shutdowns.
“This move, made at the very moment when federal immigration officials are refusing to release people from ICE detention centers who are at high risk of contracting COVID-19, makes clear that the administration has no interest in ensuring the health of people in its custody or in meeting its international human rights obligations,” says Robin Phillips, executive director of The Advocates for Human Rights. “While we are encouraged by Wednesday’s announcement by ICE that it will temporarily halt interior enforcement activities, people cannot be allowed to languish inside detention centers.
“We call on Congress to reject the White House’s request for more money for immigration enforcement. We also call on the administration to comply with international obligations to ensure that people are not returned to torture or persecution without a hearing. By reuniting people with their families, rather than detaining or deporting them, we can keep our communities safe and meet our legal obligations.”
By Michele Garnett McKenzie, Deputy Director at The Advocates For Human Rights
The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.
The current administration in Washington is waging an all-out war on asylum, which it falsely characterizes as a charade or loophole rather than an essential human right. While the war is focused on the influx of refugees at the southern border who flee violence and chaos in Central America, it threatens to demolish protections for refugees all over the world who come to the United States seeking safety. The Advocates for Human Rights deals every day with the desperate ones whose fates are at issue. Since policy affects real people, it is instructive to examine the government’s anti-asylum initiatives in juxtaposition with just one of the many stories in our case files, which is used with our client’s consent.
Maria was 11 years old and living with her family in Guatemala when a 22-year-old man began preying upon her, inducing her to engage in a sexual relationship with him. Her father forbade her from seeing the man, but he coerced Maria into returning to him by threatening to harm her family if she didn’t. The man kept her locked in a room in his mother’s house.
Having failed in the courts with previous anti-immigration tactics, the U.S. government just launched two new attacks on asylum by executive fiat, with other assaults being planned..
At the age of 14, Maria was forced to marry her abductor. She went to the police in Guatemala, but they told her this was a domestic matter that she should “work out” with her husband. When Maria’s husband found out she had gone to the police, he beat her. As time went on, the beatings continued.
First, the administration announced that there would be a great expansion of the use of the expedited removal process, by which immigration courts and asylum officers are bypassed completely and lower-level immigration officials are allowed to apprehend and deport undocumented immigrants with no due process so long as they have not been in the country for two years. The U.S. Commission on International Religious Freedom has sharply criticized the expedited removal process, finding that border officials often are biased against asylum claims and fail to take steps necessary to ensure that asylum seekers are protected from arbitrary expedited removal. Nevertheless, the administration has embraced it.
Maria became pregnant and told her husband. He continued to beat her, so badly that she lost the baby. She escaped and hid with a family member, but her husband searched for her relentlessly. With no other escape from her situation, and no possibility of help from her country’s government, Maria embarked on the arduous and dangerous journey through Mexico and across the U.S. border.
A second attack on asylum was the announcement of a new rule excluding people from asylum if they failed to first ask for asylum in a country through which they travelled. While this rule would affect all refugees, it is directed mainly at the Central American refugees who cross through Mexico and Guatemala before reaching the United States.
Non-profit advocacy groups promptly sued, challenging the administration’s third- country rule. Among other grounds, they argued that the rule violates an express Congressional prohibition against relying on the asylum procedures of any country unless we have in place with that country a “safe country” agreement, ensuring their asylum procedures provide an acceptable level of safety for claimants. No such agreement exists with Mexico. (On July 26, the U.S. entered into a purported safe country agreement with Guatemala, even though Guatemala does not come close to meeting the standards for a safe country and was in fact the country from which Maria fled due to the lack of any governmental remedy for the domestic violence that threatened her life.)
On July 24, federal district courts on opposite coasts issued opinions concerning the new rule. U.S. District Judge Timothy Kelly in the District of Columbia refused to enjoin the rule, essentially on a finding that the advocacy groups had failed to make a factual showing of standing to make their claims. The very same day, however, Judge Jon Tigar of the Northern District of California issued a lengthy opinion enjoining the rule, finding ample evidence that no reasonable asylum process was available in either Mexico or Guatemala. Appeals in both cases seem inevitable.
Maria found her way to The Advocates for Human Rights. Represented by Program Director Sarah Brenes, Maria won asylum. She is now living safely in the United States, where she is finishing high school and hopes to become a police officer.
Either of the latest attacks on asylum might have been used to deport Maria and send her back to her violent husband and a government unwilling to protect her. Can anyone believe that the United States would somehow have benefitted from that?
A humane asylum system is critical if we are to fulfill our legal and moral obligations to offer succor to the world’s most desperate. As many of us have been asking for some time now, what kind of country are we?
-James O’Neal, Board Chair of the Advocates for Human Rights
The long-expected announcement of the expansion of expedited removal authority throughout the United States, just a week after the administration rewrote the rules on establishing a credible fear of persecution or torture, is like a 1-2 punch for due process and the right to seek asylum.
Expedited removal, a product of the 1996 Illegal Immigration and Immigrant Responsibility Act, gives low-level immigration officials the power of judge, jury, and executioner of deportation orders. This is particularly disturbing given the record of misconduct and lack of accountability that permeates federal immigration enforcement. Expedited removal authorizes immigration officers to summarily arrest, detain, and deport people believed to be in violation of two provisions of immigration laws. The American Immigration Council has a good primer on expedited removal here.
These provisions – INA 212(a)(6)(C) and (a)(7) – render people “inadmissible” to the United States based on misrepresentation or failure to have required documents for entry.
No actual proof of these violations is needed. There’s no appeal. The penalty: a five-year bar to returning to the United States on a visa.
These provisions are slippery creatures. Here’s how these laws work in practice.
A political dissident escapes their country after spending weeks in jail for attending a political rally. They have a visitor visa to the United States, granted to them so they can travel to this country for a conference of democracy activists, so they buy a plane ticket and head for safety. When they finally arrive at the U.S. airport, exhausted from a long flight and worn out after weeks of imprisonment and torture, they present their lawfully obtained visa to the immigration official. But, when they tell the officer that they want asylum, they invalidate their visitor visa because they say they want asylum, not just to visit. They have violated INA 212(a)(6)(C). Immigration officials arrest, detain, and interrogate them. They sit for hours without food or access to a phone. An immigration agent with little training on the political situation unfolding in this far-flung nation has the power to return them on the spot. No judge. No lawyer. No hearing.
Years ago, one of our volunteer attorneys called for help finding out what had happened to friend’s mother. The elderly grandmother had come to the U.S. for her annual visit. Her flight arrived, but she never came out of immigration control. Days later the woman made contact with her frantic children. She had been deported under the expedited removal laws. Apparently immigration officials saw other travelers with a similar last name on the flight who did not have visas. They accused her of being in cahoots with them. Eventually, after spending the night in an interrogation room at the airport, she was sent home with an expedited removal order. Five years of missed school plays and family celebrations were the result.
For years this extraordinary authority was limited to people arriving at airports and sea ports. Then the power expanded to people found within 100 miles of a U.S. border who couldn’t prove they had been in the country at least 14 days. (For my Minnesota friends, that meant that a visit to the North Shore could result in being pulled over, questioned by Border Patrol, and followed to your campsite – at least if you don’t “look Minnesotan” – as we documented in our 2014 report on immigration in Minnesota).
The law treats people at the border differently. And bit by bit the “border” has expanded so that race-based traffic stops, document checks on trains and buses travelling in the northern part of the country, and roadblock checkpoints throughout the southwest all have become routine.
But the immigration law cannot override foundational constitutional protections against arbitrary arrest, incommunicado detention, disappearance, and torture.
So what should people do?
#1 Know your rights. Throughout the past weeks, as threatened ICE raids put communities on high alert, we saw examples of how making ICE play by the rules works to protect people. If you want a good overview of the constitutional limits on search and seizure, check out ICE’s own training on the Fourth Amendment. (Thanks Mijente and Detention Watch Network for forcing ICE to turn over it’s 2017 Operation Mega documents).
You have the right to remain silent. Immigration officials like to rely on people’s admissions of unlawful presence.
You have the right to refuse to let ICE into your home unless they have a warrant signed by a judge. ICE likes to show up with administrative warrants of arrest or removal, which are not enough to authorize them to enter your home.
Remember that even the draconian expedited removal procedures have a review process. People who fear persecution or torture have a right to a review of their claim. People who claim U.S. citizenship, lawful permanent residence, or refugee or asylum status have a right to a “claimed status review” before being deported under expedited removal laws.
#2 Plan ahead. You don’t have to carry a giant folder of documents with you, but gathering your important papers together and storing them in a safe place where a trusted person can access them is a smart move. Help people who may have trouble explaining or even knowing their status know what to do if ICE asks them questions.
#3 Sue. Seriously. Immigrant rights organizations around the country are planning litigation, but individuals whose rights are violated need to step forward. Violations need to be documented and accountability demanded.
#4 Speak out. The expansion of expedited removal was announced in the Federal Register on July 23, 2019. Public comments will be taken for 90 days. You may submit comments, identified by Docket Number DHS-2019-0036 using the Federal e-Rulemaking Portal at https://www.regulations.gov.
Call your congressional representatives at 202-224-3121 and ask them to restore due process by repealing the expedited removal laws.
By Michele Garnett McKenzie, Deputy Director of The Advocates for Human Rights
A new regulation by the Department of Homeland Security and the Department of Justice seeks to bar asylum to people who enter or attempt to enter the United States at the southern border if they do not first apply for asylum in at least one other country through which they traveled. The Interim Final Rule published July 16 took immediate effect and allows only 30 days for public comment.
The new asylum bar is the latest in a series of actions designed to limit access to protection for refugees. The federal government has engineered a crisis at the southern border by starving the system of adjudicatory resources while exponentially expanding the capacity to detain people arriving in search of protection from persecution or torture. The government has used this engineered crisis to change unilaterally and without debate asylum eligibility rules.
The Advocates for Human Rights is deeply concerned about this restriction on the fundamental human right to seek and enjoy asylum from persecution. We are reviewing the regulation and monitoring its impact on our clients. Volunteer attorneys should watch for practice guidance and should reach out to The Advocates’ staff or consulting attorneys with questions.
What does the new rule do?
The new rule establishes a new mandatory bar to asylum for people who enter or attempt to enter the United States across the southern border if they did not apply for protection from persecution or torture in at least one third country through which they transited on their way to the United States.
Who does the rule apply to?
The new rule applies to anyone who enters or attempts to enter the United States at the southern border on or after Tuesday, July 16, 2019. This rule does not affect people who entered before July 16, 2019, or who enter or attempt to enter at other ports of entry.
Are there exceptions to the new rule?
There is a very limited exception for people who demonstrate that they are a victim of a severe form of trafficking in persons.
How can I help?
Comments to this rule, identified by EOIR Docket No. 19-0504, may be submitted via the Federal eRulemaking Portal: http://www.regulations.gov.
Call your congressional representatives at 202-224-3121 to ask them to protect the right to seek and enjoy asylum.
The Advocates for Human Rights provides free legal help to more than 1000 victims of human rights abuses, including asylum seekers, victims of trafficking, and people in detention. We need your help now more than ever. Please click here to give.
…it seems that the concept of freedom no longer has a consensus understanding among the American people. What’s more, we have lost our ability to engage in debate, a cornerstone of a healthy democracy.
Until recently, I had not visited Ellis Island or the Statue of Liberty. Working with immigrants and asylum seekers has thus far defined my professional career, but my visit to Lady Liberty served as a reminder about our nation’s concept of freedom. The audio guide (love this modern invention) shared many new facts about Lady Liberty, reinforced ones commonly known and challenged visitors to define the statue’s significance to them.
At its inception in 1886, the Statue of Liberty was built as a sort of nod from the French to the United States which was, by then, a century-old democracy with a bright future, having recently withstood a civil war.
She was built filled with symbols: her torch as a sign of enlightenment; her sun ray crown sharing her light with the rest of the world; her tablet of laws symbolizing the importance of the rule of law; and at her feet, broken chains as a sign of freedom from slavery and political oppression.
A powerful part of the statue’s story is that the significance of her symbols has changed alongside U.S. history, a true sign of her aspirational nature.
In her early years, Lady Liberty was a symbol of hope, freedom and new beginnings, welcoming over 12 million new immigrants, accepting 98% of those who passed through Ellis Island from 1892-1954. During WWI and WWII, she welcomed troops back to the homeland, standing as a reminder of the freedoms they were fighting for while stationed in other parts of the world. She now stands with the Manhattan skyline at her side, including the new World Trade Center, as a reminder of strength and resilience to rebuild in the name of freedom.
At the end of the tour, the audio guide challenged me (and everyone else who listened to it) to define what liberty means.
I was just about 10 when the Cold War ended, just over 20 when the Twin Towers fell and right around 30 when the Great Recession hit. Each of these events has shaped my understanding of political, ideological and economic freedoms. There was much debate among the American people about how much “liberty” could be sacrificed in order to protect “freedom” but little question about what “freedom” meant at the time. At forty, it seems that the concept of freedom no longer has a consensus understanding among the American people. What’s more, we have lost our ability to engage in debate, a cornerstone of a healthy democracy.
Immigration is one of the many issues where debate has become nearly impossible. The last comprehensive reform to our immigration laws was over half a century ago. The last meaningful attempt at reform was a decade ago. A week ago, without discussion or debate, our government temporarily closed the San Diego port of entry to asylum seekers and is attempting to close off the rest of the border permanently.
The 1980 Refugee Act amended the Immigration and Nationality Act to “revise the procedures for the [S. 643] admission of refugees, to amend the Migration and Refugee Assistance Act of 1962 to establish a more uniform basis for the provision of assistance to refugees, and for other purposes.” (Source: Public Law 96-212) Refugee law and humanitarian law recognize that refugees seeking safety cannot always follow an orderly immigration process when death is at their door. Thus, our laws allow for anyone in the U.S. to apply for asylum, regardless of how or where they entered.
Monday, December 10 is Human Rights Day and the 70th anniversary of the Universal Declaration of Human Rights which establishes the equal dignity and worth of every person. It confirms that the State has a core duty to promote standards of life that enable us to enjoy equality and freedom, achieve justice, and live in peace.
I cannot think of a simpler concept of freedom than to be able to go to school, run your business, raise your family or live in your home without fearing that you might be killed. As we turn our backs on these families and children seeking this most basic freedom that the Statue of Liberty symbolized, I cannot help but fear that in the next decade “freedom” in America will may lose its meaning altogether.
By Sarah Brenes, Director Refugee & Immigrant Program at The Advocates for Human Rights
In July, the New York Times reported that a prominent, former Thai general had been sentenced to nearly three decades in prison for conspiring in the trafficking of Bangladeshi and Burmese Rohingya, a minority, stateless ethnic group fleeing persecution in Myanmar. Dozens more, including police officers and smugglers, were also convicted of participating in the human trafficking ring after the discovery of several mass graves thought to contain the bodies of migrants were discovered in 2015 near the Thai-Malaysia border, along a route often used to smuggle Rohingya out of Myanmar. The crackdown on trafficking has increased since the mass graves were discovered; this is only one of many Thai authorities that has been caught or suspected of colluding in the trafficking of refugees.
The Rohingya are an Muslim, ethnic minority residing in the Rakhine state of Myanmar and Bangladesh. Increasing abuse, persecution, and displacement has forced the Rohingya to flee to neighboring countries; according to a recent report by the United Nations High Commissioner for Refugees, more than 168,000 Rohingya are estimated to have fled the country in the last five years. Although the Rohingya have lived in Myanmar for generations, the 1982 Citizenship Law has consistently been used by the government to deny citizenship to hundreds of thousands of Rohingya, despite recent calls by human rights organizations and the UN General Assembly in 2014 to amend the legislation. The Citizenship Law effectively renders the Rohingya stateless, and it is this stateless status which makes it particularly difficult for the Rohingya to obtain legal status in any other country.
Thus, the Thai government treats asylum seekers as illegal migrants, and arrests and deports them as such. Thai law allows for police to arrest, detain, and fine people who have migrated illegally, even if they are children; because many refugees, particularly the stateless Rohingya, are not able to obtain legal status in Thailand under the Immigration Act of 1979, they are very likely to be subject to abuse by employers and human traffickers or to indefinite detention, abuse, and refoulement by Thai officials, even when the U.N. has recognized their refugee status. In fact, since 2004, the Thai government has not even allowed the United Nations High Commissioner for Refugees (UNHCR) to conduct screenings on Rohingya to determine refugee status.
This lack of protection, from either Thailand, other ASEAN countries, or the UNHCR within Thailand, puts the Rohingya at great risk of trafficking. The struggles of the Rohingya were put under the spotlight in May of 2015, when images emerged of overcrowded boats carrying hundreds of Rohingya from Bangladesh and Myanmar, adrift in the Andaman Sea between Thailand and Malaysia. The migrants had paid smugglers to take them out of Bangladesh and Myanmar, but due to Thailand’s recent crackdown on trafficking, these smugglers soon abandoned the migrants. When their boats neared the shores of Malaysia and Thailand, the refugees were turned away and pushed farther out to sea by authorities, where many perished due to exposure and lack of food and water. Survivors reported suffering horrific abuse at the hands of the traffickers, who beat, killed, and deprived migrants in order to force their families to pay a ransom.
Had they managed to arrive in Thailand, they likely wouldn’t have endured a fate much better. Once they reach the mainland, many migrants are sold by their smugglers to other traffickers, who then hold them in camps along the borders of Thailand. Here, they endure equally gruesome conditions and beatings; in May 2015, Rohingya in camps along the Thailand-Malaysia border were found being held in extremely overcrowded spaces, and even in pens and cages.
Even upon rescue from these camps, migrants are not safe. Because of Thailand’s treatment of refugees as illegal immigrants, refugees found in camps are generally arrested and placed in indefinite detention. Within immigration detention centers, migrants are subject to further abuse by Thai police and officials, who, like traffickers, often beat and harass detainees in order to obtain payment, and sometimes force them to return to Myanmar, an act which violates the international principle of non-refoulement. Further, detention officers sometimes even sell refugees back to the trafficking rings they were rescued from.
Thailand has taken steps in the last decade to combat human trafficking in the country, such as passing a law in 2008 which criminalizes trafficking and details punishments for perpetrators, including imprisonment and fines, and a more recent law in 2016 which expedites the judicial process for trafficking cases. Nonetheless, problems such as inadequate identification procedures for victims of trafficking, low rates of trafficking prosecutions and convictions, and most importantly, Thai official complicity in trafficking persist.
In its 2016 Universal Periodic Review, Thailand received eight recommendations from other state delegations relating to refugees and asylum seekers. It rejected almost all of these recommendations, including those which requested that Thailand offer legal status to refugees and asylum-seekers and that it put an end to arbitrary detention and refoulement of refugees, especially children. In its report, Thailand noted that despite not being party to the international treaties regarding refugees, the country has a “humanitarian tradition” of providing assistance to displaced people. Despite Thailand’s very recent push to prosecute traffickers, the state’s clear involvement in the trafficking and abuse of such displaced people and its refusal to conduct refugee screenings on them would suggest otherwise.
In order to truly demonstrate its commitment and “humanitarian tradition” of helping refugees, Thailand must immediately halt the return of Rohingya refugees to Myanmar, ratify international treaties relating to refugees and proceed with the investigation and prosecution of those responsible for the egregious human rights violations of migrants.
By: Abby Walker, a junior at Carleton College (class of 2019) in Northfield, Minnesota studying sociology, anthropology, and education. She was a 2017 summer intern with The Advocates’ International Justice Program.
Two photo options below:
Thailand Immigration Police bring Rohingya refugees to a port outside Ranong City (October 30, 2013)
Two Rohingya refugees in a Thai immigration detention center in Kanchanaburi province (July 10, 2013)