January 25, 2019—The Trump Administration’s announced implementation of a cruel and dangerous policy that makes asylum seekers wait in Mexico for their opportunity to ask for asylum in the United States clearly undermines important bi-partisan immigration laws that were written to ensure the United States fairly processes protection claims. KIND believes forcing any asylum seeker to wait in dangerous border towns, for unspecified amounts of time, without access to U.S. attorneys and other support, is a blatant violation of due process.
The government has provided only scant detail about how this dramatic shift in our country’s asylum system would work in practice. Absent from DHS’s announcement is information about how asylum seekers will be informed about the application of the “Migrant Protection Protocols” to their cases, and how access to legal counsel in Mexico would ensure due process in proceedings to occur in the U.S. The announcement similarly fails to provide information about where asylum seekers will be housed, and the safety and other conditions of any such locations or facilities. In a visit to Tijuana in December, KIND found children and families living in squalid and dangerous conditions at the border with no sense of when they would be allowed to make their claim for asylum
Despite DHS’s suggestion that unaccompanied children may be excluded from this policy, it is clear from KIND’s research that unaccompanied children are being blocked in other ways from accessing U.S. protection. Recent practices underscore the lethal danger of the Administration’s efforts to sideline due process and foreclose access to humanitarian protection.
As KIND outlined in our report The Protection Gauntlet unaccompanied children are being denied access to the U.S. ports of entry by both Mexican and U.S. officials. They are not given an opportunity to ask for protection. DHS’s suggestion that unaccompanied children are exempt from the “Remain in Mexico” plan is an empty consolation because children continue to be denied access to our justice system.
Together, these policies and practices create grave danger for already vulnerable children and families—and defy our country’s moral and legal obligations to those fleeing threats to their lives.
Unsafe in Mexico
It is not safe for vulnerable children and families to wait in border towns while their cases are processed. Children and families fleeing threats to their lives and safety are frequently targeted throughout their journey and face significant risk of extortion, human trafficking, kidnapping, and sexual assault in Mexico because these areas are frequently controlled by or the site of ongoing conflict among criminal gangs, drug traffickers and cartels, and law enforcement. A 2017 study reported 5,289 crimes against migrants in Mexico, more than 900 of which were committed by government officials. Sexual violence against migrant girls is highly normalized in Mexico and often deemed part of the “price” girls pay for migrating.
Mexico Lacks Capacity to Safely Care and House Children Seeking Asylum in the U.S.
The Remain in Mexico plan raises grave concerns about where and under what conditions asylum seekers would be housed while awaiting proceedings and decisions in their legal cases. It is not clear how the plan would be implemented, including where asylum seekers would be housed and for how long. Prolonged detention or homelessness are unacceptable conditions for vulnerable populations.
Under Mexican law, unaccompanied migrant children may not be detained in immigration detention facilities and instead must be transferred to the care of Mexico’s National System for Integral Family Development (DIF). Despite this law, Mexico detained nearly 70 percent of migrant children in immigration detention facilities in 2016. These facilities fail to address the unique needs of children, are frequently overcrowded, unsanitary, and lack access to basic education and recreation. The detention of children in these or similar facilities, potentially indefinitely, would exacerbate the trauma of children who have survived horrific violence and abuse. The safety and well-being of asylum seekers may be compromised in Mexico outside of detention, as they are likely to be preyed upon by violent gangs, narco-traffickers and other criminal groups because of their extreme vulnerability. The governments of Mexico and the United States have not detailed how they would ensure adequate protection, nutrition, education and housing for asylum seekers for the duration of their cases in the United States.
The appropriate care and treatment of unaccompanied children is critical and has been specifically prioritized by Congress through the bipartisan Trafficking Victims Protection Reauthorization Act of 2008 and the Homeland Security Act of 2002 with the recognition of the unique vulnerabilities of these children. Unlawful metering practices – in which adults and families are being told by officials to put themselves on an unofficial list and wait until they are called – and efforts by U.S. and Mexican officials to deny unaccompanied children access to U.S. ports of entry fail to account for the important substantive and procedural protections in these laws and run contrary to the very spirit of these laws. The Remain in Mexico plan, if applied to unaccompanied children, would similarly defy these laws and place at great risk the lives of thousands of children.
Remain in Mexico Violates the Constitutional Guarantees of Due Process
In addition to screening concerns, requiring children and families seeking asylum to prepare their legal cases from detention in Mexico poses significant barriers to due process. Detention, even in facilities in the United States, creates numerous hurdles for the cases of asylum seekers, including restricted visitation, difficulties accessing and securing needed documentation, experts and evidentiary support, and limited access to legal services providers. Indefinite confinement also compounds the trauma of survivors of violence, abuse, and neglect, and may frustrate asylum seekers’ ability to reveal sensitive and painful experiences that form the basis of their asylum eligibility.
It is unclear how attorneys in the United States would be able to work in and access their clients in Mexico—if at all. Moreover, legal services capacity in Mexico would be insufficient to address these needs or to ensure the provision of accurate legal information and preparation of cases in accordance with U.S., rather than Mexican, law. Cases would be similarly difficult to prepare from the United States, with only limited ability to consult with and interview clients in person. These barriers are especially problematic for unaccompanied children, who experience unique difficulties in preparing their cases due to their age, limited understanding of legal procedures, fear, and prior trauma. Without quality legal representation, unaccompanied children and other asylum seekers will be unable to fully present their cases for protection, and as a result, may be returned to harm, danger, or death.
The United States must not implement “Remain in Mexico.” The policy would not only obliterate due process for those seeking protection, but would represent an historic and dramatic departure from international protection standards put into place after World War II to ensure the horrors of that period would never happen again and that we would not send people, including children, back to grave harm or death.
For questions please contact: Jennifer Podkul, firstname.lastname@example.org (202) 824-8692
 Kids in Need of Defense (KIND), The Protection Gauntlet, December 2018. https://supportkind.org/resources/the-protection-gauntlet-how-the-united-states-is-blocking-access-to-asylum-seekers-and-endangering-the-lives-of-children-at-the-u-s-border/
 Human Rights First, Dangerous Territory: Mexico Still Not Safe for Refugees (July 2017), at 3.
 Dangerous Territory, at 4.
 Kids in Need of Defense and Human Rights Center Fray Matias de Cordova, Childhood Cut Short (2017), at 35.
 DIF is the child protection branch of the Mexican government: https://www.gob.mx/difnacional
 Human Rights Watch, Closed Doors Mexico’s Failure to Protect Central American Migrant and Refugee Children (2016), available at: https://www.hrw.org/report/2016/03/31/closed-doors/mexicos-failure-protect-central-american-refugee-and-migrant-children#6451b4.