What could the processing of asylum applications look like after the end of border deportations?
A few days before he traveled to the port of entry of San Ysidro with his family to seek asylum, a 7-year-old boy died in Tijuana.
The child was a client of Al Otro Lado, a nonprofit legal services organization that supports asylum seekers in Tijuana. He and his family have been waiting to receive exemptions to Title 42, which will soon end after a federal judge ordered it overturned last week.
The boy is one of many who have died waiting for this to end, said Erika Pinheiro, the organization’s executive director. She said the judge’s order would save lives.
Title 42 has been used by border officials to deport migrants nearly 2.5 million times since its implementation in March 2020. The policy tells authorities to return asylum seekers to Mexico or their country of origin. origin without carrying out the checks normally required by law to see if they qualify as refugees. The policy has also closed ports of entry to asylum seekers, and customs and border protection officials have turned many back inches from US soil.
It is unclear exactly how many people the policy has affected. Many have tried to cross the border several times, which has led to an increase in the number of deportations. Countless asylum seekers have been turned away by CBP at ports of entry.
The Trump and Biden administrations have said it is necessary to slow the spread of COVID-19, but many critics, including a number of public health experts, have argued that the policy is meant to be a way a migration deterrent rather than a public health measure. .
Critics also point to the damage done by the policy – asylum seekers have been frequently attacked after being turned away from the United States. From January 2021 to mid-June 2022, Human Rights First documented more than 10,300 reports of murders, kidnappings, rapes, torture, and other violent attacks against people waiting in Mexico due to Title 42.
In his decision to rescind the policy on Tuesday, U.S. District Judge Emmet Sullivan in Washington, DC, pointed to this Human Rights First report and concluded that those affected by Title 42 suffered irreparable harm. Although Sullivan wanted his order to go into effect immediately, he ultimately granted the government’s request for five weeks to prepare for the transition away from Title 42, writing that he was doing so “WITH GREAT RELUCTANCE.”
When Abraham Suarez learned that Title 42, which recently led to the expulsion of him and other Venezuelans, was coming to an end, he wasn’t sure whether to believe the news. Once he confirmed it was real, he said he felt a wave of relief.
“It was a light that we saw,” he said in Spanish. “But it was an emotion that, just as it stirred up every feeling we could possibly have, immediately crumbled when we saw that, whatever, they had asked for five more weeks.”
A 30-year-old Guatemalan who spent about six months in Tijuana said he cried with joy when he heard the news. He too hopes that the change is real.
He asked not to be identified due to the danger it could pose to him or his family. He said that as a gay man he experienced violence and discrimination at home, and it continued in Tijuana.
“Mexico is not a place to come and say that’s where I want to be,” he said.
It is not yet clear what the processing of asylum claims at the border will look like once this order takes effect on December 21. A government memo says CBP will likely use a mobile app to help with processing, and the local port manager has indicated there may be a move away from detention. Asylum advocates are skeptical whether the government’s moves will go in a more humanitarian direction.
“There are certainly ways to make it work, to make it non-chaotic, but in the past we’ve seen more resources used to prevent them from reaching entry points than to deal with them,” said Pinheiro said of the government’s treatment of asylum seekers.
In the years before Title 42 began, seeking asylum at ports of entry was already difficult. Authorities used a policy known as “counting” to limit the number of asylum seekers processed at a port of entry on any given day. Those who showed up at the gates guarded by CBP were turned away and asked to return another day. This has led to months-long waiting lists, with migrants from Tijuana using an infamous notebook to track each asylum seeker’s place online.
Pinheiro recalled escorting asylum seekers to the border before Title 42. She said CBP would ask Mexican authorities to come and remove them from the port entrance. Sometimes Mexican officials threatened to arrest lawyers, Pinheiro said.
CBP has often cited a lack of resources, particularly the capacity of its holding cells in the basement of the San Ysidro Port of Entry, as a reason for the rollbacks.
Pinheiro’s organization filed a complaint on behalf of asylum seekers refused under the counting policy. In a trial deposition, a CBP whistleblower from the Tecate port of entry said the government lied about his detention capacity.
Last year, a federal judge in San Diego ruled in favor of the asylum seekers, saying that if they were arriving on US soil approaching a port of entry, they would not could not be repelled. But because of Title 42, CBP continued to justify turning them around when they approach its officers from the San Ysidro pedestrian line.
“The reality for us is that I can never process everyone who is going to arrive at the same time,” San Ysidro port director Mariza Marin told the Union-Tribune in September when asked about the possible end. of Title 42. “We need to focus on efficiency, orderly flow, and dealing with people in a timely manner.
Marin said some of the processing delays were due to backlogs with other agencies, such as immigration and customs, which decide whether an asylum seeker will remain in long-term detention while pursuing a case.
“We really have to look holistically as a government at the rest of the pipeline and how to avoid the bottlenecks of CBP processing at the next point,” Marin said.
She said she sees the way forward in the way her staff processes about 180 asylum seekers a day now through a Title 42 exemption process – a program that began earlier this year to allow a limited number of asylum seekers to pass through the port of entry due to emergencies. Needs. Under this system, as with the hundreds of Ukrainians processed daily earlier this year, asylum seekers do not spend time in holding cells.
“They are given a calm and dignified experience and they are dealt with as efficiently as possible and do not enter a place of detention unless there is a threat,” Marin said.
In November 2021, CBP rescinded the memorandum that had formally created the counting policy and provided guidelines for processing asylum seekers if Title 42 were to go away. In particular, he suggests increased use of technology, such as CBP One, an app that allows non-nationals to submit certain information to CBP before they arrive. It notes, however, that asylum seekers “cannot be required to provide advance information in order to be processed”.
Pinheiro is concerned that CBP One is perpetuating some of the problems currently present in the exemption process with a variety of groups controlling access to the asylum system. She said the best way to prevent issues like fraud or extortion is to have CBP officers process asylum seekers when they show up at the port of entry.
“Asylum seekers can be treated safely. CBP has the ability to do that,” she said. “We have seen with the Ukrainians that they can do it in an orderly way. It can be positive for everyone. »
In his September interview, Marin acknowledged that there have been difficulties with processing by groups — a combination of nonprofits, churches and shelters — helping with Title 42 exemptions.
“We don’t want to restrict access to this type of legal route,” she said. “Like everything else in Mexico, there are security challenges and concerns and so, from CBP’s perspective, our ability to increase throughput and process these people quickly, especially those with vulnerabilities. higher, is really the key to helping mitigate this threat.”
Once asylum seekers are on US soil, border officials have in the past used “expedited removal” to process them. This meant that unless migrants said they were afraid to return to their home country, border officials could formally order their deportation without them seeing a judge and send them back from the United States to their home country. . Those who expressed fear of returning home were first screened by asylum officers. If they passed these checks, they were taken to court to pursue their asylum claims before immigration judges.
Many, especially adults traveling without children who passed through ports of entry, were held in detention centers throughout their immigration court proceedings, and even more were held until what they can pay to be released to family and friends.
Private prison groups that operate immigration detention centers for ICE have long hoped for an end to Title 42 in anticipation of the increased revenue it would bring. Management at CoreCivic, which owns and operates the Otay Mesa Detention Center in San Diego, mentions this in quarterly shareholder calls.
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