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Trump policy requiring asylum seekers to stay in Mexico challenged in court

"Asylum seekers who are attacked, kidnapped, or killed in Mexico will be wholly unable to pursue their asylum applications.”

by Emily Green
Feb 15 2019, 1:33pm

Getty Images

Civil rights organizations filed a lawsuit Thursday challenging the Trump administration’s policy of requiring asylum seekers to stay in Mexico while their cases play out, saying it “eviscerates” long-standing protections for individuals fleeing persecution.

The lawsuit was filed on yet another bizarre day in D.C.: The White House said that Trump would declare a national emergency to bypass Congress and fund the construction of a 200-mile steel-concrete wall on the southern border, even as he was expected to sign a bipartisan spending bill on border security that explicitly does not fund the wall.

But while public attention has focused on the back-and-forth over the wall, the administration’s policy of requiring refugees applying for asylum from Mexico to remain in Mexico while their cases are decided — a process that routinely takes months or years — could have more immediate and far broader consequences.

The lawsuit, filed in federal court in the Northern District of California by the ACLU and the Southern Poverty Law Center, among other civil rights groups, names the Department of Homeland Security, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement as defendants. It asks the court to vacate the policy and allow asylum seekers to remain in the U.S.

A representative for Customs and Border Protection said the agency doesn’t comment on pending litigation. ICE referred reporters to the Department of Homeland Security, which didn’t respond to a request for comment.

The lawsuit alleges that requiring asylum seekers to remain in Mexico places them in extreme danger, noting that Mexican cities along the border have some of the highest rates of crime in the country and that organized crime is common. Tijuana, the first place for the policy to take effect, is one of the deadliest cities in the world and in the grips of a homicide crisis.

“Asylum seekers in Mexico face a heightened risk of kidnapping, disappearance, trafficking, sexual assault, and murder, among other harms,” according to the lawsuit. “The conditions in Mexico will make it difficult if not impossible for asylum seekers to meaningfully exercise their right to apply for asylum. Asylum seekers who are attacked, kidnapped, or killed in Mexico will be wholly unable to pursue their asylum applications.”

READ: Arizona city officials want the Army to remove the “inhuman” razor wire it installed on the border wall

In December, two underage teenage migrants from Honduras who travelled alone with the migrant caravan were kidnapped and murdered in Tijuana while waiting to apply for asylum.

Known as Migration Protection Protocols, the policy was announced on Dec. 20 by Department of Homeland Security Secretary Kirstjen Nielsen. She said the policy was needed because lots of undocumented immigrants’ “game” the asylum system, make false claims, and skip their court dates once they are released from detention in the U.S.

In fact, most asylum seekers show up to their court hearings. Records from the Department of Justice show that of 43,013 asylum seekers who had court hearings scheduled in 2017, just 11 percent, or 4,776, didn’t show up, according to an analysis by PolitiFact.

The first asylum seeker was returned to Mexico on Jan. 29, after spending months on a waitlist in Tijuana to legally apply for asylum at the San Ysidro Port of Entry. This week, U.S. officials began sending mothers with their children seeking asylum in the U.S. back to Tijuana to wait for the hearings. There are more than 2,000 people on a waitlist in Tijuana alone waiting their turn to seek asylum in the U.S.

According to the Department of Homeland Security, migrants will have a hearing in 45 days and a decision on their case within a year.

One of the more surprising aspects of the policy is that the Mexican government has agreed to go along with it, at least in principle. President Andres Manuel López Obrador, who took office in December, has gone out of his way not to antagonize Trump, while attempting to win support for his so-called Marshall Plan to pump money into Central America in an effort to stem the wave of migration.

Beyond the geopolitical forces at play, asylum seekers are left stranded in Mexico with diminished chances of winning their case because they can’t prepare and have limited access to attorneys, according to the lawsuit.

A 2015 study published in the University of Pennsylvania Law Review found that asylum seekers are five times more likely to win their case if they have legal representation. A 2008 Government Accountability Office report concluded that migrants with legal representation had twice as good a chance of winning asylum as those without.

“Many of the individual plaintiffs fear they will be unable to properly prepare their cases from Mexico, access or meaningfully communicate with attorneys, and access expert or other professional services necessary to make out their asylum claims,” the lawsuit says.

Cover image: Central American migrants remain at a warehouse used as shelter in Piedras Negras, Coahuila, Mexico, on the border with the US on February 14, 2019. (JULIO CESAR AGUILAR/AFP/Getty Images)