Border policies are endangering lives

On Dec. 20, 2018, U.S. Homeland Security Secretary Kirstjen NielsenKirstjen Michele NielsenCongressional Hispanic Caucus demands answers on death of migrant children Trump expected to tap Cuccinelli for new immigration post Kobach gave list of demands to White House for 'immigration czar' job: report MORE announced the roll out of a new “remain in Mexico” policy, requiring asylum seekers who present their claims along the southern border to stay in Mexico while the U.S. Department of Homeland Security (DHS) and Executive Office of Immigration Review (EOIR) process their asylum claims.

This action marks the latest in a series of egregious and legally questionable actions by our government against asylum seekers. However, having just returned from assisting asylum seekers in Tijuana, Mexico, I can state that this policy is not only illegal, in clear violation of the international law prohibiting re-foulement of refugees, but will place the lives of thousands of asylum seekers in ongoing danger while they wait months or years to be granted asylum.

Announcement of the “remain in Mexico” policy is even more horrifying to advocates who have witnessed the machine put in place by our government at the border to block people from exercising their lawful right to apply for asylum.

As has been reported in a number of media outlets and documented in pending litigation against the Department of Homeland Security, for the past two years Customs and Border Protection (CBP) has repeatedly turned away asylum seekers lawfully presenting themselves at U.S. Ports of Entry and engaged in “metering,” limiting the number of individuals permitted to apply for asylum each day.  

When I was in Tijuana, the U.S. government was only accepting forty asylum seekers per day, under the metering system, at the San Ysidro Port of Entry. To provide further context, San Ysidro is one of the busiest land border ports of entry in the country, with approximately 100,000 people crossing into the U.S. from this port every day, so the suggestion that this port only has the resources to process forty people per day defies credulity.

The metering system also has a significant human cost. For many of the thousands in Tijuana and other border cities in Northern Mexico who have not yet been able to apply for asylum, waiting in Mexico is not an option. A number of asylum seekers in Tijuana, including many families with small children, have faced threats to their safety at the hands of local drug cartels.

The harm of the unlawful metering system is even more apparent in light of the proposed “remain in Mexico” plan announced by Secretary Nielsen. In a particularly unfair twist, this plan would force thousands of asylum seekers who have been patiently waiting their “turn” in Tijuana and other border communities to stay in Mexico while their asylum claims are processed in the U.S.  

Had they been accepted by CBP when they first arrived and presented themselves at a port of entry in accordance with the law, these asylum seekers would not be at risk of being forced to stay in Mexico under this plan.

Of note, DHS and CBP have repeatedly stated publicly to the press and in testimony before Congress that anyone who lawfully presents at a U.S. port of entry to apply for asylum will be admitted and processed. However, before leaving Tijuana I personally saw with my own eyes that this is not true.

On Dec. 17, 2018, I was part of a team, comprised of several attorneys, law students, non-attorney volunteers and two Members of Congress, Rep. Nanette Barragan (D-Calif.) and Rep. Jimmy GomezJimmy GomezLawmakers call for 'time out' on facial recognition tech Amazon shareholders vote down limits on facial recognition software The Hill's Morning Report — Presented by Pass USMCA Coalition — Trump: GOP has `clear contrast' with Dems on immigration MORE (D-Calif.), who accompanied a group of asylum seekers who presented themselves at the Otay Mesa Port of Entry.

At approximately 2:00 PM that day, the asylum seekers sat down on U.S. soil near the turnstiles at the port of entry as two immigration attorneys, Kara Lynum and Christina Brown approached the CBP officers to state that the individuals sitting behind them wished to apply for asylum as is their right under 8 USC 1158. When the CBP officer refused to process their claims,

Reps. Barragan and Gomez approached to ask why CBP was refusing to follow the law requiring the agency to process the asylum claims of individuals presenting themselves at a port of entry. But CBP did not relent.

Despite presenting themselves lawfully at a port of entry accompanied by a team of lawyers and two members of Congress, CBP refused, for 18 hours, to process all of the asylum seekers and did not admit the last of the group until 8:00 AM the morning of Dec.18, 2018. The fact that CBP engaged in such an egregious violation of U.S. and international law in front of two Congressional Representatives should shock us all.

If the “remain in Mexico” plan is allowed to move forward, I fear that this rogue agency will be able to act with even more impunity at the expense of asylum seekers who our country has an obligation to protect.

Ana Pottratz Acosta is an assistant teaching professor at Mitchell Hamline School of Law where she specializes in immigration law.