Asylum Officers Side with Plaintiffs Suing DHS “Remain In Mexico” Policy

Canary. Photo by 4028mdk09.

[h/t to PoliticalWaif]

In a rare public rebuke a union representing more than 2000 US Citizenship and Immigration Services (USCIS) asylum officers, the American Federation of Government Employees (UFGE), Local 1924, made a surprise friend-of-the-court amicus curiae filing to the Ninth Circuit Court of Appeals last week in support of a lawsuit challenging the Trump administration and DHS siding with plaintiffs – the ACLU and other groups – to block Trump’s “Remain In Mexico” policy known as the Migrant Protection Protocols (MPP) program.

Under the new Trump MPP policy, “migrants who claim asylum at U.S. ports of entry along the southern border are required to wait in Mexico while their cases are adjudicated in American immigration courts.”

According to a Washington Post report, the asylum officers, part of the Department of Homeland Security, say that the policy they are now being directed to implement “is threatening migrants’ lives and is “fundamentally contrary to the moral fabric of our Nation,” and that the policy “is compelling sworn officers to participate in the “widespread violation” of international and federal law.”

“Asylum officers are duty bound to protect vulnerable asylum seekers from persecution,” the American Federation of Government Employees Local 1924, which represents 2,500 federal workers, including asylum officers, said in a 37-page court filing with the U.S. Court of Appeals for the 9th Circuit in California. “They should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.”

Typically, the Customs and Border Protection (CBP) officers are the first to encounter immigrants, either at the ports of entry, or in between, and are “supposed to ask migrants if they fear returning to their home country,” and if they say yes, “they are then referred to undergo so-called credible fear interviews with asylum officers.”

But under MPP policy, which was put in place this past December under the direction of former DHS Secretary Kristjen Nielsen, “15,079 Central American migrants who claimed asylum at U.S. ports of entry along the southwestern border have been turned back to Mexican border cities as their petitions are processed in the U.S. immigration court system,” according to what a Mexican official told CBS.

Of those 15,000, a benchmark of 5000 have been in the last two weeks as the Trump administration is accelerating and expanding the new policy along the entire Mexican border instead of the original three ports of entry of El Paso, Calexico, and San Diego.

The administration,” WDEF reports via CBS, “is betting that the expansion will send a powerful message of deterrence to people in Central America considering undertaking the perilous journey north,” and even if “they arrive at the U.S. border and seek asylum, this line of reasoning goes, they will likely be force to wait in Mexico for months while their case are adjudicated.”

But the asylum officers said the recent filing that “Remain in Mexico” is “entirely unnecessary” and not designed to stem the current large-scale flow of migration from Central America. They argued the U.S. immigration system has been “tested time and again” and is capable of efficiently processing asylum claims if it has the adequate resources to do so.

“The MPP, contrary to the Administration’s claim, does nothing to streamline the process, but instead increases the burdens on our immigration courts and makes the system more inefficient,” the officers wrote.

Echoing concerns raised by immigrant advocates and attorneys since the Trump administration policy was first implemented, the union said the policy violates the “non-refoulement” standard in domestic and international law, principally because it returns vulnerable populations to Mexico. The filing specifically cites the precarious conditions pregnant women, families with children, LGBT individuals and members of indigenous communities face in Mexico.

“The administration of the MPP results in a violation of the nonrefoulement obligation because, under the MPP, individuals whose lives and freedoms would be threatened on the basis of their race, religion, nationality, political opinion, or membership of a particular social group in Mexico, or who would be in danger of being subjected to torture in Mexico, will be returned to Mexico,” the officers wrote.

Citing a report by the State Department, the union noted there’s widespread impunity for human rights abuses in Mexico. It also accused the Mexican government of not keeping its promise to protect migrants returned under “Remain in Mexico.”

The officers noted that the U.S. asylum system built in the wake of World War II and subsequent years is “highly respected internationally” for being compassionate, while at the same time enforcing laws, cracking down on fraud and safeguarding national security. The migrant policy, they said, abandons the commitment the U.S. has made to people around the world who’ve been displaced by conflict, ethnic strife and natural disasters during the last decades.

In April, the administration had halted the program when it was ordered blocked by US District Court Judge Richard Seeborg, citing that the plaintiffs had “met their burden” on the grounds that the policy “lacks sufficient protections against aliens being returned to places where they face undue risk to their lives or freedoms.”

However, in that same month, the Trump administration appealed to the Ninth Circuit who then granted the government’s motion to stay the lower court’s ruling while the case was under appeal, allowing the MPP program to resume.

CBC News – June 10, 2019 – More than 10,000 asylum seekers have been returned to Mexico by U.S. authorities to await court hearings as the Trump administration prepares for the immediate expansion of the controversial practice — known as “Remain in Mexico” — along the entire southern border. CBS News politics reporter Camilo Montoya-Galvez joins CBSN to discuss the policy.

Meanwhile, was newly appointed acting director of the USCIS Ken Cuccinelli directly responsible for pushing the asylum officers past their limits after sending out an office email that “appeared to push asylum officers to stop allowing passage to some people seeking refuge at an initial screening at the border”?

PoliticalWaif writes:

“This tag teams with another revelation last week.. that many were quite unhappy with [Ken] Cucinnelli’s email pressuring those initially screening to arbitrarily raise the threshold for the likelihood of success at asylum. This is done without the benefit of legal representation and asks these initial asylum officers to predetermine a court’s opinion on whether they qualify for asylum.”

“Or as one DHS employee noted, the email was “insane,” while former officials said the email was clearly a threat.”

“I read this only in one way — a threat. A threat that asylum officers will be blamed by their new boss for the repeated failures of the Trump administration,” Ur Jaddou, a former chief counsel at USCIS, told BuzzFeed News. “This is an unbelievable threat and not something a director would normally ever send.”…

In part, Cuccinelli claimed in his email to asylum officers that “they have tools to combat “frivolous claims” and to “ensure that [they] are upholding our nation’s laws by only making positive credible fear determinations in cases that have a significant possibility of success.”

Policy analyst at the Migration Policy Institute Sarah Pierce said that Cuccinelli’s understanding of the law was misguided and that he appeared to be “trying to ramp up the pressure on officers in whatever way he could.”

“The acting director is trying to place the burden of reducing the difference between the high level of credible-fear acceptances and the low level of ultimate asylum approvals on the shoulders of asylum officers,” she said. “However, the reason for this difference can be traced back to Congress—which purposefully made a low bar for the credible-fear process—and the failure to provide counsel for asylum-seekers, which all but guarantees the majority will fail in the court system.”

Pierce said the standard for being allowed initial entry into the country when claiming asylum in the screening was actually lower than Cuccinelli made it seem.

“To obtain asylum, applicants must establish that there is as little as a 10 percent chance that they will be persecuted on account of a protected ground,” Pierce said. “To demonstrate a credible fear, applicants need only show a ‘significant possibility’ that they could establish at least that 10 percent chance.

After the filing by the asylum officers last week, Cuccinelli took to Twitter to complain about “complaining” union leaders are “choosing to deny reality.”

We’ll keep an eye on this one. Stay tuned.

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