Government Records Shed Light on Illegal Expulsions of Asylum Seekers and Children

A group of leading epidemiologists and public health experts wrote that the order, which was indefinitely extended on May 19 and re-issued with minor modifications on October 13, relies on specious arguments, including false claims about CBP capacity to process asylum seekers, and “fails to further public health and disregards alternative measures that can protect public health while preserving access to asylum and other protection.”

The documents—which we received from DHS via a Freedom of Information Act (FOIA) request—detail the highly concerning practices that have led to illegal expulsions, including:

​A highly and intentionally flawed screening process

• Between March 20 and May 27, 2020, CBP referred only 85 individuals out of more than 43,000 asylum seekers and migrants expelled under the CDC order to be screened for a fear of torture, according to a CBS News report. The FOIA response obtained by Human Rights First show that nearly half (41) of these referrals were made in the first four days the CDC order was used by CBP, meaning that during the rest of March, April and May 2020, CBP allowed fewer than one asylum seeker per day, on average, to request protection on the southern border.
• The FOIA records also indicate that CBP requested permission in April 2020 for Border Patrol agents to carry out the very limited number of torture screenings CBP is permitting. This is likely be unlawful, as a federal court has blocked Border Patrol agents from conducting credible fear screenings, as of August 2020. The federal judge in that case rejected the government’s contention that Border Patrol agents receive the same training as the U.S. Citizenship and Immigration Services asylum officers, who ordinarily conduct fear screenings, as “poppycock.”

Forced returns of pregnant asylum seekers and migrants to Mexico

• The FOIA results reveal that the U.S. Border Patrol “reserves” the Migrant Protection Protocols (MPP)—an illegal policy the Trump Administration has used to force asylum seekers and migrants to remain in danger in Mexico while they wait for asylum hearings—as a “reliable alternative” to “expel[] pregnant females.” People expelled to Mexico are not guaranteed housing, food, or medical care by either the U.S. or Mexican governments. Human Rights First has recorded at least 1,114 public reports of kidnappings, rape, extorsion, and murder of returned individuals. Recently, a pregnant woman was forced to give birth on the ground in the middle of the makeshift tent encampment in Matamoros for asylum seekers returned under MPP. These FOIA results also appear to contradict DHS’s own MPP policy, which states that individuals with known physical health issues should not be returned to Mexico.

Evasion of U.S. anti-trafficking laws adopted to protect children

• Since March 2020, thousands of unaccompanied children have been expelled by CBP under the CDC order in violation of the protections Congress adopted in the Trafficking Victims Protection Reauthorization Act (TVPRA). Indeed, the FOIA results show how CBP has purposely sought to evade the requirements of the TVPRA by unilaterally redefining which children are considered to be unaccompanied (defined in the law as without a parent or legal guardian present, but erroneously redefined by CBP as without any family member present), updating this guidance to “reduc[e] litigation liability risk,” and falsely informing Border Patrol agents that the “TVPRA does not apply under [CDC order expulsions] if [unaccompanied children and families] are not brought into facilities.” The protections of the TVPRA apply to all unaccompanied children in the United States, regardless of whether or not they are inside of a CBP facility.

In addition, the FOIA results indicate that:

• If the CDC order is lifted, CBP plans to restart fast-track asylum processing programs (Prompt Asylum Claim Review and Humanitarian Asylum Review Process) that deny asylum seekers access to counsel and subject them to detention in CBP facilities with a record of inadequate conditions. CBP also plans to restart the use of asylum cooperative agreements, which the government had used to block asylum seekers from U.S. protection and return them to danger in Guatemala prior to the pandemic.
• A draft policy to temporarily deny asylum and other humanitarian protection to asylum seekers based merely on their recent presence in Mexico or Canada, which seems to be the policy reported by Buzzfeed News, was circulated from Chad Mizelle, Acting DHS General Counsel, to Ken Cuccinelli, Senior Official Performing the Duties of the Deputy DHS Secretary, in late March 2020. At the time, COVID case rates in the United States already far outpaced those in Mexico and Canada. Medical and public health experts have warned that a similar rule, formally proposed in July 2020, “ignores and misuses the science and core principles of public health” and would “undermine public health and further endanger people seeking protection in the United States.” The letter, signed by 170 experts, concluded that the July 2020 “proposed rule, like the March 20 CDC order, is xenophobia masquerading as a public health measure.”