What to do when faced with Trump, desperate refugees, climate disruption?
Bob Sheak – July 29, 2019
There is a steady stream of reports and widespread concern about how migrants attempting to enter the US through the southern border with Mexico are being cruelly and illegally mistreated. There is little doubt, outside of what the Trump administration and its supporters think, that the situation at the border is an unprecedented humanitarian crisis. It remains to be seen how much harm Trump’s anti-immigration policies will continue to have, but they have already caused immense suffering among migrants seeking entry into the US.
Trump’s well-known purpose is to stop most migrants from entering the US, with special focus on the US-Mexico border and those fleeing from Guatemala, El Salvador, and Honduras. That’s not all. Trump is also determined to increase the deportation rate of the undocumented workers and families that already reside in the US., although I won’t write much about this topic here. The focus of this post is on the border. Why are so many migrants from Central America making the long, dangerous, and uncertain trek to seek a safe place to live in the US.? What has the Trump administration done to keep a large and increasing number of them from relocating in the US, while putting a large and increasing number of them into under-resources detention facilities for long period of time? And what are the alternative policies that would, if implemented, minimize the suffering of migrants and expedite decisions on their asylum claims?
Whatever the policies, the migration out of Central America (and other under-developed countries) will most likely continue in large numbers unless the conditions drive people to emigrate are radically changed. And the prospects are not good, given that such changes would be opposed not only by the wealthy and government elites in these countries but by the imperialistic, America-first policies of the Trump administration and his Republican allies in the US Congress. This is not to say that previous governments have not advanced policies in these countries that have been un-democratic and self-serving. The present situation is seriously complicated by the effects of increasingly destabilizing, existentially threatening climate disruption. As it stands now, the number of people forced to migrate is going up, the number reaching the border is rising, while Trump’s policies is “succeeding” in reducing the number of asylum seekers who are permitted to enter the US.
In the meantime, the Trump administration and the US Congress are spending an enormous amount of taxpayer money on trying to seal off the border and on rounding up undocumented individuals and families living in the US for deportation. In the process, they are intentionally compounding the misery of the migrants who come to the border and generating widespread destabilizing fear in the undocumented population residing in the US.
Part 1: A review of Trump’s anti-immigration policies
Wikipedia gives a useful account of Trump’s build-the-wall saga (https://en.wikipedia.org/wiki/Trump_wall. Trump promised to construct a much larger border wall than the one that existed during his 2016 presidential campaign, “claiming that if elected he would ‘build the wall and make Mexico pay for it.” The President of Mexico at the time, Enrique Pena Nieto, stated that his country would not pay for the wall. And, up to the present, this has been the unwavering position of the Mexican government.
On January 25, 2017, after being elected, “Trump signed Executive Order 13767, which formally directed the US government to begin attempting wall construction along the US border with Mexico using existing federal funding,” though “actual construction did not begin at this time due to the significant expense and lack of clarity on how it would be funded.
Trump continued to grapple with Democrats in Congress through 2017over funding and threatened at his rallies and through his tweets to shut down the government if Congress did not approve funding. Congress refused and Trump did partially shut down the federal government for 35 days, from December 22, 2018 to January 25, 2019, and insisted that he would “veto any spending bill that did not include $5.7 billion in border wall funding.” This turned out to be the longest government shut down in US history. In the end, Trump lost this battle and did not get the funding he wanted.
The persistence of Trump on obtaining funding from Congress for the border wall continued. Congress did authorize $1.4 billion for border security, but that did not satisfy the president. On February 15, 2019, he “signed a Declaration of National Emergency, saying that the situation at the Mexico-United States border is a crisis requiring money allocated for other purposes to be used instead to build the wall.” Following this, “Congress passed a joint resolution to overturn the emergency order, but Trump vetoed the resolution.” This led Trump to say that he would go ahead and transfer already authorized funds for other purposes (e.g., military funds) to be transferred to wall building projects. Up to the present, July 2019, this effort has been stopped by the courts (https://www.bloomberg.com/news/articles/2019-06-29/judge-blocks-trump-s-funding-plan-for-more-sections-of-the-wall). However, it was just announced on the Public Television’s News Hour, that the Supreme Court has ruled to allow Trump to shift $2.5 billion from other agency budgets to border security (July 26, 2019).
According to the US Customs and Border Protection agency, as of July 2019, construction “had begun to replace old fencing [but] no new wall had yet been built” with government money.
There are currently “a series of vertical barriers” along the border, “a discontinuous series of physical obstructions variously classified as ‘fences’ or ‘walls.’” In January 2019, there were 580 miles of barriers in place, according to US Customs and Border Protection. There are also other security measures “provided by a ‘virtual fence’ of sensors, cameras, and other surveillance equipment used to dispatch United States Border Patrol agents to areas where migrants are attempting to cross the border illegally. Legal expert Marjorie Cohn points out that Trump is” increasing his illegal militarization of the southern border by deploying 2,100 additional troops to join the 4,500 military personnel already there” (https://truthout.org/articles/trump-is-obliterating-the-right-to-asylum).
Uncertain and punitive treatment for those who get to the border
Trump and his administration have done a lot more than push for a wall. Once in the White House, Trump and his administration have advanced a series of policies that violate or attempt to re-interpret existing immigration laws to reduce, if not stop, the number of migrants permitted to enter the country legally as well as those attempting to enter illegally. When one policy doesn’t work or is met with public outrage, Congressional opposition, and/or legal challenges, another one with the same intent is concocted.
One thing is clear. Overall the policies have had the effect of intensifying the suffering of those who come to the border and who typically have few if any hopeful options. From the perspective of the administration, this is exactly what they have intended, that is, to make conditions so bad that word would get back to others in their home countries that the costs of migration to the US-Mexico border are too great to justify the arduous and dangerous trek of over a thousand miles from Central America, through Mexico, to the border with the US. In advancing such policies, they ignore or dismiss the deteriorating and unsafe conditions in Guatemala, El Salvador, Honduras and other countries that compel them to migrate.
The subjectivity of the asylum application process
It is not clear when a claim for asylum into the US is acceptable? Kate Smith tries to clarify the issue, writing that, even after waiting for extended periods of time, the official acceptability of such a claim rests initially on whether the claimants’ are able to present acceptable evidence that they have “suffered persecution or fear that will they will suffer persecution due to race, religion, nationality, membership in a particular group or political opinion” https://www.cbsnews.com/donald-trump-on-immigration-topics-likely-2019-state-of-union-fact-check).
However, decisions by border officials and immigration judges have a large subjective element as well as reflecting whatever the current policy agenda of the White House happens to be. The facts indicate that many claims have been rejected. In 2018, during the second year of Trump’s reign, “the U.S. Citizenship and Immigration Services processed about 100,000 ‘credible fear’ claims, the first step in an immigrant’s asylum proceedings.” She continues: “Judges decided about 42,000 asylum cases during the same time period, more than any other year since 2001,” and “rejected 65 percent of the asylum claims they ruled on in 2018.”
Immigration lawyer Jennifer Harbury provides further details in an interview on Democracy Now on the process by which migrants seek “legal resettlement,” or legal entry, into the U.S. It’s complex that requires asylum seekers provide not only considerable documentation but must satisfy other requirements as well. (https://www.democracynow.org/2018/7/9/human_rights_lawyer_jennifer_harbury_on). Here is what some of what she said.
“…under 8 U.S.C. 1225, [a person] goes up to the port of entry, knocks on the door and literally says, ‘I’m in danger. I need to apply for asylum.’ And as I said earlier, they then go to a credible fear interview [no criminal record] and then to a detention center, initially, and they’ll be put in proceedings before an immigration judge. The way – the norm that has always been in place for either group of people, whether they went by the river or went across the bridge – is that if they’ve got perfectly good identification, they’ve never committed a crime, they’re not a threat to anyone, they’re just on the run from the cartels, and they have legal status relatives, citizen or LPR [legal permanent resident of the U.S.], who will take them in and sponsor them and pay all their expenses.”
At that point in the process, a person or parent and children who satisfied all these requirements would pre-Trump have “always been released” on conditional approval of resettlement. Zong and Batalova (cited earlier) point out, “Once granted U.S. protection, refugees and asylees are authorized to work and may also qualify for assistance (including cash and medical, housing, educational, and vocational services) to facilitate their economic and social integration into society.” Trump contemptuously calls this a “catch and release” policy that he is determined to end and has advanced policies that are aimed at ending “catch and release.” Bear in mind, that only a shrinking minority of migrants seeking a safe haven in the US are resettled in the US. And Caitlin Dickerson cites information from Heidi Altman, director of policy at the National Immigrant Justice Center, that case management programs have been used in the past to ensure immigrants show up for court have proven to be “both cheaper than detention and have a proven track record of near universal court compliance (https://www.nytimes.com/2019/04/22/us/immigration-detention.html).
Metering: To delay entry and hope that migrants return to their home countries
The metering method, begun in mid-2018, requires migrants who have come to the border claiming the right of asylum to sign their name on a “notebook,” be given a number, sometime later be called for an asylum hearing before an immigration judge, but in the meantime be required to remain on the Mexican-side of the border. often without shelter and other basic requirements of life and neighborhoods that are unsafe. Some give up and try to enter the US illegally. If they are caught on the US-side of the border, they often will be put in a detention facility until their asylum status is assessed by an immigration judge. This may take weeks, months, or more. Either way, they can be in a limbo time awaiting an official decision on whether they will be granted asylum or not.
Dara Lind addresses the issue of metering in an article for Vox (https://www.vox.com/2018/11/28/18089048/border-asylum-trump-metering-legally-ports). She describes what she has seen: “…asylum seekers wait, for days or weeks or (increasingly) months: sometimes in migrant shelters whose capacity has stretched to the breaking point, sometimes huddling together on bridges, sleeping on the street, in the cold, vulnerable to violence they hoped to escape in their home countries.” Under the pertinent law, the US government has an obligation to consider asylum claims once migrants have approach a US port of entry.
The metering policy grows out of a situation in which the CBP (Custom and Border Patrol) officials have been unable to deal with the large number of asylum seekers. Lind elucidates: ““Logistically…there’s a limit to how many asylum seekers CBP officials can process at once. People seeking asylum are generally [in the past] held in federal custody until they can undergo a screening interview with an asylum officer [and be given] medical and background checks shortly after their arrival. At ports of entry, officers also have to check the papers of people coming who already have legal status and scan cars for drugs and other contraband.”
Given the large number of asylum seekers, metering is one method by which the Trump administration has enabled border officials to avoid the ordinary, legal process. According to Lind’s on-the-ground research, the practice of metering varies along the border from entry port to entry port, but fundamentally when asylum seekers present themselves at ports of entry, they are told there’s no room for them to enter the country at that time and that they should sign their name(s) on a waiting list or to remain close to the entry port to await being called. In some cases, there are no lists and those who happened to be at the head of the line will be called first. In the meantime, they find shelter and other necessities on their own or, if they are lucky, obtain some assistance from the Mexican government, local volunteers, or NGOs that help out for a period of time. For example, Lind describes how the government in Tijuana, Mexico, converted a sports complex into a temporary shelter for 4,700 migrants.
The metering process has often backfired. After long waits, some unknown number of migrants cross the border between ports of entry with the paid help of smugglers or on their own. The number who actually avoid apprehension is unknown, though apprehensions by CBP continue to rise.
“Remain in Mexico”
In this case, migrants who reach the US-Mexico border are told to return to the Mexican towns near the border, which are violent places with limited or no shelters or centers in which they can stay, and, as transits, they are particularly vulnerable. Marjorie Cohn, professor-emeritus of law and prolific writer tells us that “Remain in Mexico” policy the colloquial name for “Migrant Protocols Program” (https://truthout.org/articles/trump-is-obliterating-the-right-to-asylum). It is a program designed to return asylum seekers and migrants to Mexico. It differs from the metering program in that it offers no official opportunity to be considered for asylum in the US. In both cases, they are prevented from entering the US for an asylum hearing. The “Remain in Mexico” program began on January 25, 2019. Within five months, Cohn writes, “the U.S. had returned 15,079 people – including at least 4,780 children – who came mostly from Guatemala, Honduras and El Salvador, to Ciudad Juárez, Mexico. Human Rights Watch reported at least 29 instances of harm to asylum seekers in Juárez, including kidnapping, violent attacks and sexual assaults.”
In an in-depth report, journalist Debbie Nathan provides a recent analysis on the program, verifying what Lind, Cohn, and others have documented, that is, how Trump’s “Remain in Mexico” Policy “exposes migrants to rape, kidnapping, and murder in dangerous border cities” (https://theintercept.com/2019/07/14/trump-remain-in-mexico-policy). By the end of June, 2019, “almost 17,000 asylum-seekers up and down the border” had been booted out of US border cities or told that, if metered, they would have an opportunity by and by to be considered for asylum, but only if they were at a port of entry at the time when their number was called. In the meantime, US border officials told them that they were to remain in Mexico. There are times when the metering and “remain in Mexico” policies are very similar in their impact, that is, they both are designed to keep asylum seekers from entering or remaining in the US border areas.
Hansen emphasizes a point already made, that is, the cities to which they returned or in which they remained were “crime-ridden Mexican border cities for months, even years, waiting for U.S. courts to decide their asylum claims.” According to Hansen, “Every few weeks, refugees enrolled in the MPP [Migrants Protocols Program] are brought into U.S. border cities such as El Paso to see an immigration judge. But after their hearings, they are sent back to Mexico, to cities so violent that the U.S. State Department recommends that Americans limit travel to them or avoid travel entirely.” She refers to Juarez as an example, which “is one of the 50 most violent cities in the world, so dangerous that the State Department forbids its employees from traveling through the poverty-stricken northern and western parts of the city.
While forced to remain in border cities near the border, they are vulnerable to being abused or attacked because most “are transient, poor, and without local ties.” Jeremy Slack, a University of Texas at El Paso anthropologist, has extensively documented what happens to immigrants in Mexican border cities in his recently published book, Deported to Death. As Hansen interprets Slack’s findings: “They are at severe risk of being robbed, kidnapped for ransom, beaten, raped, murdered — or at the very least, traumatized by violence they witness.
There are some 5,000 children up and down the border who are in the MPP, “and they are not spared from assaults. Among many examples, Hansen gives the following example.
“In July, I learned from an immigration lawyer in California that a distraught client had called to report that her sister, a Salvadoran woman, with a 14-year-old, 10-year-old, and 3-year-old, were kidnapped in Juárez. The “California family scraped together $4,000 for a ransom payment, and after several days, the family was freed near a church in downtown Juárez. The mother said that she and her children had been captured after the kidnappers had spotted them wandering into Juárez disoriented, after being dumped there following their enrollment into MPP. When I met them by the church, the family told me that during their captivity they’d had almost nothing to eat, and they barely slept. After being freed, they made it to a migrant assistance organization that operates behind locked doors. A psychologist there told me that the family was suffering from shock, including the kids.”
Hansen also describes what happens for migrants who beat the odds and have their cases assessed by an MPP court (her example is a court in El Paso). Most do not have legal representation, even pro bono lawyers are in scarce supply. Observers from Human Watch observed multiple MPP hearings in El Paso and only three out of 54 persons had legal representation. The asylum seekers tell their stories to Judge Nathan Herbert, who “is always punctiliously pleasant and respectful to the refugees, calling them ‘sir’ and ‘ma’am,’ and asking after their children’s health before testimony begins. His politesse only underscores the Alice-in-Wonderland absurdity and cruelty of the MPP.” And, adding to the already dire conditions of asylum seekers, Judge Herbert doesn’t proceed with a case unless there is legal representation.
In a few cases, according to a Reuters report cited by Hansen, “about one in 100 migrants in the MPP receive non-refoulement interviews that get them out of Mexico. To pass the interview, according to the rules, one must show that it is ‘more likely than not’ that they will be subjected to violence.” But, this rule is ignored in practice, because the US government takes the position that “a migrant [who] has already been victimized in a third country [Mexico as opposed to their home country] does not mean they will be hurt in the future.” Hansen clarifies this point: “An asylum officer recently told Vox that the standard for prevailing on a non-refoulement claim regarding Mexico is ‘all but impossible for applicants to meet.’ “Another officer, speaking on condition of anonymity, told me that they think the standard violates the law.”
The MPP has been challenged. According to Hansen, “Back in February, a few weeks after the MPP was first rolled out, the ACLU, the Southern Poverty Law Center, and other civil rights groups sued the government, arguing that the MPP violates U.S. immigration and administrative law, as well as U.S. obligations under international law not to send people back to countries where they are threatened. The plaintiffs at first won a preliminary injunction, but the government appealed. In May, the U.S. Court of Appeals for the Ninth Circuit held that the MPP could continue pending resolution of the appeal. Today the MPP remains in effect indefinitely.”
Hansen cites a new Human Rights Watch report that says the US government is now planning to vastly expand the MPP and “Mexico expects to receive 60,000 migrants by August .”
Punitive, long-term detention
If they have gained entrance into the country with a pending asylum claim, have been apprehended after entering the country “illegally,” or give themselves up an entry port without asylum-appropriate papers, they are increasingly put into sorely inadequate detention facilities that are ill-suited to provide even minimally adequate space, food, heat or cooling, medical care, or decent accommodations for children. Marjorie Cohn also addresses this issue with her typical legal and analytical expertise (https://truthout.org/articles/indefinite-detention-of-migrants-violates-international-law).
On June 26, 2018, according to Cohn, a federal judge in San Diego ordered the Trump administration to stop separating children from their parents and to reunite them. This was after 2,300 children had been separated since May 5. Then on June 29, “the Department of Justice filed a notice of compliance with the court order, but indicated its intention to indefinitely detain families together.” Cohn adds that indefinite detention violates international law, noting that such detention can last for months or even years. On July 2, “a federal judge in Washington ordered the government to give asylum applicants a meaningful opportunity to be released….[But] More than 1,000 applicants have been incarcerated for months or years with no resolution of their cases.”
According to Cohn, the indefinite detention policy of the Trump administration violates the International Covenant on Civil and Political Rights, which the US has ratified, and the Supremacy Clause of the Constitution, “which says treaties shall be the supreme law of the land.” According to the UN Human Rights Committee, “the expert body that monitors compliance with the covenant, detentions are arbitrary [and unlawful] if they do not accord with due process and are manifestly disproportional, unjust or unpredictable,” and “Keeping families locked up for months with no good reason is unjust and inappropriate. It denies them due process and a timely resolution of their legal claims. And their time of release is unpredictable.” Cohn points out that “Negative effects of prolonged detention may amount to torture or cruel, inhuman or degrading treatment or punishment, in violation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States has ratified.”
There are exceptions under this law: “Parties to the covenant may refuse to comply with them only ‘in time of public emergency which threatens the life of the nation.’ But, Cohn quotes Aflred de Zayas, UN independent expert on the promotion of a democratic and equable international order, who says “Neither the war on terror nor restrictive immigration policies justify indefinite detention.”
The atrocious conditions in detention facilities
As already indicated, the conditions in the detention facilities are bad. Adam Serwer reviews the recent evidence on the conditions in an article for The Atlantic magazine on July 3, 2019 (https://www.theatlantic.com/ideas/archive/2019/07/border-facilities/593239).
Observers who have visited immigration detention facilities in the Southwest have “reported that children were being held in cruelly austere conditions.” They told the press that at the facility in Clint, Texas, children, as young as 7 and 8 were sleeping on concrete floors and being denied soap and toothpaste. Many of the children were “described as wearing clothes caked with snot and tears … caring for infants they’ve just met.’ Serwer quotes a visiting doctor called the detention centers “torture facilities.” He refers to reports that “at least seven children have died in U.S. custody in the past year, compared with none in the 10 years prior.” And, astoundingly, Serwer writes that “[m]ore than 11,000 children are now being held by the U.S. government on any given day.” Beyond such beastly deprivations, “the administration has canceled recreational activities, an act that, like the conditions themselves, likely violates the law.”
There’s more evidence. According to Serwer, “At a processing center in El Paso, Texas, 900 migrants were ‘being held at a facility designed for 125. In some cases, cells designed for 35 people were holding 155 people,’ The New York Times reported. One observer described the facility to Texas Monthly as a ‘human dog pound.’ The government’s own investigators have found detainees in facilities run by Immigration and Customs Enforcement being fed expired food at detention facilities, ‘nooses in detainee cells,’ ‘inadequate medical care,’ and ‘unsafe and unhealthy conditions.’ An early-July inspector-general report found ‘dangerous overcrowding’ in some Border Patrol facilities and included pictures of people crowded together like human cargo. More than 50,000 people are being held in facilities run by ICE, and something close to 20,000 in facilities run by Customs and Border Protection, and more than 11,000 children in the custody of the Department of Health and Human Services. (The government describes them as “unaccompanied,” a label immigration advocates say is misleading because many were separated by the government from the relative who brought them) Some of the people detained by the U.S. government have entered the United States illegally or overstayed their visas; some are simply seeking to exercise their legal right to asylum.”
“‘There were definitely parts of the Obama program that did similar—and, in fact, some of the same—things,’ said Chris Rickerd, a policy counsel at the ACLU. ‘But this all-encompassing skepticism of asylum seekers fleeing violence—justifying cruel treatment, justifying changes in the law, and justifying overcrowding to the point of unsafe and deadly conditions—[is] of a scale and a type that we haven’t seen before.’ One pediatrician who visited a Border Patrol facility in Texas observed ‘extreme cold temperatures, lights on 24 hours a day, no adequate access to medical care, basic sanitation, water, or adequate food.’ Photographs show migrants huddled together, languishing in filth behind chain-link fences, some with little more than Mylar blankets for shelter. The president’s defenders on Fox News have compared these conditions to summer camp and house parties.”
As I argued earlier, these policies are intentional, or as Serwer writes, “deliberately inflicted suffering on children to deter illegal immigration, with its use of family separation. It has altered immigration policy and the asylum process so as to force the authorities to hold migrants, whether they have properly sought asylum at a port of entry or crossed illegally, and has made it more difficult for children to be released to sponsors in the United States by threatening to arrest and deport family members who lack legal status. By deliberately throttling the asylum process, the administration has pushed desperate migrants to risk death by crossing the border illegally rather than presenting themselves at ports of entry, and has sought to prosecute those who would help migrants survive the journey by leaving them food and water, effectively making the federal misdemeanor of illegal entry a capital crime. In private, some Border Patrol agents consider migrant deaths a laughing matter; others are succumbing to depression, anxiety, or substance abuse.”
And, even with all of it, the number of people seeking refuge here continues to rise. And the response of the Trump administration is to intensify the “unlawfully draconian treatment it has inflicted on migrants.”
How many are in detention now?
Caitlin Dickerson reports that government detention facilities are unable to find the spaces for the increasing number of asylum seekers (https://www.nytimes.com/2019/04/22/us/immigration-detention.html).
The number of migrants housed in the detention facilities has risen every year since 2015, and is “currently housing 50,223 migrants, one of the highest on record, and about 5,000 more than the congressionally mandated limit of 45,274.” Therefore, federal immigrant authorities are being forced to scour the country to find space to for the rising number of detainees. She quotes Kevin K. McAleenan, then acting homeland security secretary, as saying: “It’s clear that all of our resources are being stretched thin. The system is full, and we are beyond capacity.”
The numbers at risk are daunting
Bear in mind that in 2019 there are over 31 million people living in Guatemala (17.3 million), El Salvador (4.5 million) and Honduras (9.6 million). According to the research of Stephanie Leutert, Director of the Mexico Security Initiative at the University of Texas at Austin, migrants from Guatemala, El. Salvador, and Honduras, make up half of the total migrants coming to the US border in 2018 who were apprehended by US border officials, that is, over 150,000 plus a small number who came through ports of entry and were granted asylum (https://www.lawfareblog.com-whos-really-crossing-us-border-and-why-they’re-coming).
According to an article by Georgina Gustin, “the World Bank projects that nearly 4 million people from Central America and Mexico could become climate migrants by 2050.” The crisis is already reflected in the number of migrants from Guatemala, El Salvador and Honduras who were apprehended by the US Border Patrol in 2018 as they attempted to cross the border. In that year, 115,722 people from Guatemala were apprehended, 76,513 from Honduras, and 31,369 from El Salvador, for a total of 223,604 (https://insideclimatenews.org/98072019/climate-change-migration-honduras-drought-crop-failure-farming-deforestation-guatemala-trump).
The numbers may become confusing, but overall those seeking asylum continue to go up, while the number granted asylum goes down.
Trump’s attempt to eliminate asylum altogether
The Trump’s Department of Justice and Homeland Security advanced a new rule, the “interim final rule,” on July 15, 2019. The rule says that migrants, including unaccompanied children, must apply for refugee status in any country they travel through on their way to the US. For those fleeing from Guatemala, El Salvador, or Honduras, this would be Mexico. The rule specifies that unless the request is rejected, they are assumed to have asylum in that country and so requests for asylum in the US will be considered unnecessary. Marjorie Cohn contends that “the new asylum rule undermines well-established law and prevents refugees fleeing persecution from receiving asylum” (https://truthout.org/articles/trump-is-obliterating-the-right-to-asylum). She continues that the Interim Final Rule (IFR) “creates an enormous bar to eligibility for asylum” and explains her reasoning as follows.
“Under the IFR, a noncitizen who crosses or tries to cross the U.S. southern border is ineligible to apply for asylum unless he or she: (1) applied for and was denied asylum in at least one country through which he traveled en route to the United States; (2) demonstrates that she is the ‘victim of a severe form of trafficking in persons’; or (3) has traveled to the U.S. only through countries that were not parties to the 1951 Refugee Convention and its 1967 Protocol, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Mexico is a party to these laws. North Korea isn’t.
Cohn states unequivocally that the IFR violates existing law. She writes: “It is well-settled that merely traveling through a third country is not a valid basis to categorically deny asylum to refugees who arrive in the United States. It is also widely accepted in international refugee law that ‘asylum should not be refused on the ground that it could be sought from another State.”
Cohn is hardly alone in her opposition to the rule. Here are some examples from Cohn’s article. “U.N. High Commissioner for Refugees Filippo Grandi said the new asylum rule ‘will put vulnerable families at risk.’ UNHCR, the U.N. Refugee Agency, issued a statement saying it ‘believes the rule excessively curtails the right to apply for asylum, jeopardizes the right to protection from refoulement, significantly raises the burden of proof on asylum seekers beyond the international legal standard, sharply curtails basic rights and freedoms of those who manage to meet it, and is not in line with international obligations.’
On July 16, the ACLU filed a lawsuit in the Northern District of California, arguing “on behalf of four immigrants’ rights groups that the IFR violates US and international Law,” and, fortunately, the judge supported their argument. Miran Jordan and Zolan Kanno-Youngs pen an article in the New York Times on the court’s decision, reporting as follows: “Judge Jon S. Tigar of the United States District Court in San Francisco issued a preliminary injunction against a new rule that would have effectively banned asylum claims in the United States for most Central American migrants, who have been arriving in record numbers this year. It would have also affected many migrants from Africa, Asia and other regions.” In his ruling, Judge Tigar also argued that the rule is likely to be invalid “because it is inconsistent with the existing asylum laws” and because “the government’s decision to put it in place was ‘arbitrary and capricious’ (https://www.nytimes.com/2019/07/24/asylum-ruling-tro.html).
Despite all their anti-immigration efforts, the flow of asylum seekers does not diminish
More recent figures indicate that Trump’s policies have not deterred the flow of migrants from Central America. According to CBS News, “More than 490,000 migrants were apprehended or turned away at the southwest border between January and May” of 2019 (https://www.cbsnews.com/news/ice-border-patrol-conditions-at-controversial-migrant-detention-centers-focus-of-congressional-hearing).
Camilo Montoya-Galvez reports: “Border apprehensions spike to 92,000 in March” and “We’ve arrived at the breaking point” (https://www.nytimes.com/border-apprehensions-103000-migrants-apprehended-along-us-mexico-border-customs-and-border-protection-says. He writes:
“U.S. immigration authorities apprehended or turned back more than 103,000 migrants — including approximately 53,000 families and nearly 9,000 unaccompanied children — along the U.S.-Mexico border last month, further overwhelming the Trump administration’s efforts to address the unprecedented surge in migrant families from Central America heading north.
“‘We’ve arrived at the breaking point,’ Brian Hastings, chief of law enforcement operations for U.S. Customs and Border Protection (CBP), told reporters Tuesday. About 92,000 of the 103,000 migrants were apprehended between ports of entry, while nearly 11,000 migrants who appeared at ports of entry to claim asylum were deemed “inadmissible” and turned back, according to CBP statistics.
“With an average of 3,000 apprehensions per day in March, Hastings said immigration authorities are struggling to confront an ‘unprecedented humanitarian and border security crisis’ near the southwestern border. In the previous month, the busiest February for border officials in the last 12 years, the government apprehended more than 76,000 migrants — including about 36,000 families — along the southern border. A senior Trump administration official told CBS News CBP is projecting approximately 150,000 apprehensions this month.”
Alan Besin, Nate Bruggeman and Ben Cohrbaugh,offer further documentation on the border crisis (https://www.politico.com/magazine/story/2019/04/05/border-crisis-donald-trump-226573).
“In fiscal year 2017, the last year of the Obama administration and the first of Trump’s, 303,916 migrants were arrested by the Border Patrol. This was the lowest level in more than three decades. The Clinton, Bush and Obama administrations had worked hard to tackle the problem of illegal migration through substantial increases in border security staffing, improvements in technology, innovations in strategy and improved security coordination and assistance to Mexico. Coupled with improved economic conditions in Mexico, these administrations were hugely successful in deterring and breaking the cycle of illegal crossing: Unlawful Mexican economic immigration, which had historically been the primary immigration enforcement issue at the border, dropped nearly 90 percent between 2000 and 2016.
“But the nature of undocumented immigration to the U.S. has changed. Today, it is primarily driven not by Mexican economic migrants—and not by a flood of criminals, as Trump claims—but rather by large numbers of families and minors from Central America who are seeking political asylum. Although this issue first rose to public attention in 2014, the influx then was only a fraction of what it is today. The Department of Homeland Security estimates that triple the number of 2017 apprehensions—more than 900,000—will occur at the southern border in 2019. Many of those will be migrants seeking asylum, and they will descend on a border and immigration court system ill-equipped to handle those claims.
Part 2: Why are they fleeing?
They migrants from Central America are fleeing not only the staggering levels of gang violence, government corruption, and persecution that is highlighted in media accounts but also the high levels of poverty, deprivation, and deteriorating environmental conditions that exist in these countries. These are conditions that have deep roots in history but are being exacerbated by the effects of relentlessly unfolding climate disruption and structural inequalities that have deep roots in history of Guatemala, El Salvador, and Honduras.
It has been well documented by historians that the countries of Central and South America have been ruled much of the time, certainly over the two hundred years, by authoritarian and self-serving government that siphon off foreign assistance money, promote foreign investment to extract resources, exploit cheap labor, and enable land graps and special treatment to forcing corpoations. And the US has been instrumental in fostering such conditions. Historian Greg Grandin provides an in-depth analysis of the US involvement in creating this system in his book, Empire’s Workshop: Latin America, the United States, and the Rise of the New Imperialism (2006). The thrust of his analysis is captured in the following paragraph.
“An interventionist military posture, belief that America has a special role to play in world history, cynical realpolitik, vengeful nationalism, and free-market capitalism have all driven U.S. diplomacy in one form or another for nearly two centuries. But what is new is how potent these elements have become and how tightly they are bound to the ambitious of America’s domestic ruling conservative coalition….” (p. 7)
Legal scholar Majorie Cohn echoes Grandin’s account and provides a concise summary, as follows.
“The history of U.S. intervention in the Northern Triangle countries has destabilized them and exacerbated the migrant crisis. “[W]e must also acknowledge the role that a century of U.S.-backed military coups, corporate plundering, and neoliberal sapping of resources has played in the poverty, instability, and violence that now drives people from Guatemala, El Salvador, and Honduras toward Mexico and the United States,” (https://truthout.org/articles/trump-is-obliterating-the-right-to-asylum).
Alison Bodine and Tamara Hansen point to how the relationship between U.S. intervention in Latin America and the severe problems in Honduras, El Salvador and Guatemala “is most clearly expressed by the 2009 U.S.-backed coup in Honduras” (https://www.commondreams.org/views/2019/07/23/imperialist-made-crisis-migrants-and-refugees). They elaborate: “10 years ago, the United States backed a right-wing overthrow of the elected government of Manuel Zelaya. Since then political repression, state violence, and increasing poverty in Honduras have escalated, creating structural and institutional vacuums, along with deep instability throughout the country. After the U.S. supported coup Honduras ended Manuel Zelaya’s presidency, a country with a prospect of political and economic development became a failed state.”
Trump and right-wing forces in the US frequently refer to the gangs, like MS-13, throughout the region, and how gang members are said to join migrants on their way to the US-Mexico border. There is little evidence to verify this point. Nonetheless, gang violence is a prominent reason in causing the flight of migrants out of Central America. At the same time, an often overlooked part of the story is that the gangs, or many of them, were created in the US. On this point, Bodine and Hansen say the gangs “were first formed in U.S. prisons, and then transplanted to Honduras, El Salvador, and Guatemala when people were released from prison and then deported.” The cite UNHCR reports to illustrate some of the consequences, and write: “Current homicide rates are among the highest ever recorded in Central America. Several cities, including San Salvador, Tegucigalpa and San Pedro Sula, are among the 10 most dangerous in the world. The most visible evidence of violence is the high rate of brutal homicides, but other human rights abuses are on the rise, including the recruitment of children into gangs, extortion and sexual violence” (https://www.commondreams.org/views/2019//07/23/imperialist-made-crisis-migrants-and-refugees).
Guns made in the US often end up in the hands of gangs and drug cartels
Francis Moore Lappe presents evidence to substantiate this statement as follows (https://www.commondreams.org/views/2019/07/23/blood-on-our-hands-how-we-help-drive-immigration-north). More than 212,000 US weapons are smuggled across the US southern border into Mexico each year. The process begins when the guns are purchased from American gun dealers located in the US who “rely on this business to stay afloat.” According to a 2013 report by researchers at the University of San Diego. In Mexico, “these weapons end up in the hands of drug cartels or get shipped to gangs in Honduras, Guatemala and El Salvador,” says The Associated Press. In Honduras, “armed holdups on public transportation are a regular occurrence, where nearly half of the unregistered weapons originated in the U.S.,” reports the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Lappe continues: “El Salvador has one of the highest homicide rates in the world, and “almost half of weapons found at the country’s crime scenes are from the U.S. officials here estimate.”
For the people in Guatemala, El Salvador, and Honduras , there are presently a growing number of famers cannot grow enough food to feed themselves and to sell for money to buy essentials. There are many others who, amidst high levels of unemployment, cannot find paid work with wages that enable them to stay out of poverty. And corrupt governments there offer too few and inadequate public assistance, while promoting policies that disproportionately benefit foreign corporations and their own wealthy classes. These are systemic problems.
Hannah Holleman documents in her new book, Dust Bowls of Empire: Imperialism, Environmental Polices and the Injustice of “Green” Capitalism, that farmers not only in Central America but around the world have been locked into an agricultural system imposed by rich, capitalist countries that drive them into debt, degrades the soils and depletes water sources. This unsustainable situation is combined and made worse by the intensifying effects of climate disruption, reflected in increasing periods of drought and other extreme weather events.
The effects of climate disruption
Oliver Milman, Emily Holden, and David Agren address how climate change is increasingly figuring into the mass migration from Guatemala, Honduras, and El Salvador (https://www.theguardian.com/world/2018/oct/30/migrant-caravan-causes-climate-change-central-america). They report that “[w]hile violence and poverty have been cited as the reasons for the exodus, experts say the big picture is that changing climate is forcing farmers off their land – and it’s likely to get worse.” They confirm what so many others have found that most of the migrant caravans come from Guatemala, Honduras and El Salvador, “the three countries devastated by violence, organized crime and systemic corruption, [have roots] which can be traced back to the region’s cold war conflicts.” Now people in these countries also being increasingly afflicted by climate change.
According to experts interviewed by Milman, Holden, and Agren, climate change “is likely to push millions more people north towards the US.” The journalists quote Robert Albro, a researcher at the Center for Latin American and Latino Studies at American University, says, “‘The focus on violence is eclipsing the big picture – which is that people are saying they are moving because of some version of food insecurity,’ And Albro continues: “‘The main reason people are moving is because they don’t have anything to eat. This has a strong link to climate change – we are seeing tremendous climate instability that is radically changing food security in the region.’ Albro adds:
“Migrants don’t often specifically mention ‘climate change’ as a motivating factor for leaving because the concept is so abstract and long-term…. But people in the region who depend on small farms are painfully aware of changes to weather patterns that can ruin crops and decimate incomes.”
“An unimaginable refugee crisis”
In another report for The Guardian in December 2016, Damian Carrington reminds us that the facts about climate change had been verified and well known for decades by scientists. Even the US military came around back in 2016 to acknowledge how the increasing ravages of climate change would generate
an unimaginable refugee crisis (https://www.theguardian.com/environment/2016/dec/01/climate-change-trigger-unimaginable-refugee-crisis-senior-military).
Carrington also quotes Brig Gen Stephen Cheney, a member of the US Department of State’s foreign affairs policy board and CEO of the American Security Project, as follows: “Climate change could lead to a humanitarian crisis of epic proportions. We’re already seeing migration of large numbers of people around the world because of food scarcity, water insecurity and extreme weather, and this is set to become the new normal.” Carrington also reminds readers that in September of 2016, “coalition of 25 US military and national security experts, including former advisers to Ronald Reagan and George W. Bush, warned that climate change poses a ‘significant risk to US national security and international security, increased risk of terrorism as states fail, and unprecedented migration that would overwhelm international assistance.’ Cheney is also quoted as saying that “Countries are going to pay for climate change one way or another… The best way to pay is by tackling the root causes of climate change and cutting greenhouse gas emissions. If we do not, the national security impacts will be increasingly costly and challenging.”
The example of one Honduran village
In a report published by Inside Climate News (cited earlier), Georgina Gustin provides a graphic example of one village in Honduras that faces a choice: “Pray for Rain or Migrate” (https://insideclimatenews.org/news/08072019/climate-change-migration-honduras-drought-crop-failure-farming-deforestation-guatemala-trump).
The name of the village is El Rosario with a population of 500 people whose staple crops are corn and beans. Gustin describes the community and how people are trying to cope without regular or enough rain. The situation is precarious in this village, though it is not atypical in that generally poverty afflicts nearly two-thirds of all Hondurans, according to Gustin. And, she quotes the US Agency for International Development that Honduras “is also among the countries in the world most vulnerable to climate change, because of its ‘high exposure to climate-related hazards. Gustin continues:
“For a period of 20 years, from 1998 to 2017, it was among the three most weather-battered countries in the world, a distinction largely attributable to Hurricane Mitch, which devastated the country in 1998. The situation is projected to get more dangerous, especially in Western Honduras, which is predicted to become a climate ‘hotspot,’ with greater temperature increases.”
The situation of people living in El Rasario, like in many villages in Central America and around the world, is that farmers need assistance in learning “new techniques for planting drought-tolerant crops” like sorghum and deep-rooted crops to control erosion, and new cash crops like avocados and plantains that survive in heat with less water, but, according to John Chater, who represents “a non-profit development group called Partners of the Americas, there “are very few organizations providing that training.” During the Obama administration, Congress doubled funding to the region from $338 million in 2014 to $754 million in 2016, and began directing more funding to climate and agriculture programs.” But the Central American governments and “the donor community” have “abandoned small and mid-sized agriculture for years,” while President Trump “has called for slashing foreign aid in general.” According to Gustin:
“In March , Trump said his administration would cut aid to Central American countries to punish them for failing to stop migration flows….In June, the administration made the cuts official, saying it would withhold some of the funds allocated by Congress for the 2017 fiscal year and would suspend all funds Congress approved for 2018. The administration said it would also make 2019 and 2020 funds conditional.”
The problem of the people in El Rosario is also worsened not only by the effects of climate disruption, unsustainable farming practices, and the lack of government assistance and foreign aid, but also by extensive deforestation. Gustin offers some evidence. “For the past 10 or 15 years, maybe longer, people here have watched as loggers cut down the pine forests around them.” She describes the effects.
“The vast subtropical pine forests surround the village, which are now seriously diminished, once helped lower temperatures, controlled erosion and created a natural irrigation system that kept rainfall from running down the hillsides and taking precious soil.”
Part 3: A framework of feasible solutions
The migration out of Guatemala, El Salvador, and Honduras will continue in large numbers and rise unless the conditions driving the emigration are radically changed. The prospects are not good, given that such changes would be opposed not only by the wealthy elites in these countries but by the imperialistic, America-first policies of the Trump administration and his Republican allies in the US Congress. We don’t have much time. Nonetheless, if the political landscape changes in 2020, and progressive Democrats have a significant voice in the federal government, it is useful to identify what a humane border policy would entail.
The elements of a comprehensive immigration policy on asylum seekers
Nonetheless, one can imagine progressive and radical alternatives that, if implemented, would in various combinations, reduce the suffering of migrants and increase the number who are permitted to enter the US. It would adhere to international and national laws on refugees, while expanding the criteria that define a legitimate asylum claim. It would decriminalize those who are caught trying to enter illegally. It would expedite the asylum process so that migrants who satisfy the criteria can enter the country without long waits. There would not be the dreadful detention facilities that exist under Trump, rather there would adequately-resourced and humanely managed facilities for those who have crossed the border illegally or who are waiting for an asylum decision by an immigration judge. Children would not be separated from their parents and unaccompanied children, those who come without a parent or legal guardian, would be housed in appropriate facilities until homes were found for them. Those permitted to relocate in the US would be provided with transitional assistance, unless that had relatives or other sponsors who were able to assist them. One thing is for sure. There would be far less detention than now.
End detention for asylum seekers
Alexia Fernandez Campbell argues for the end of detention (https://www.vox.com/2019/7/4/20681298/trump-migrant-detention-camps). She recommends two alternatives. “One alternative is to release immigrants under community supervision, in which a nonprofit group or government contractor provides families with social workers, who help them find housing and transportation, and who make sure they attend court hearings and comply with the law.” And: “Another alternative is to release immigrants with electronic monitoring, which generally involves placing GPS ankle monitors on adults and assigning them caseworkers.”
Similar policies were in place just a few years ago, Campbell informs us, when Immigration and Customs Enforcement (ICE) ran “the Intensive Supervision Appearance Program (ISAP), which involves electronic monitoring, and the less restrictive Family Case Management Program (FCMP), which relied on community monitoring. The administration ended one of the programs and has not expanded the other. The methods used in these programs are available to DHS, and are much cheaper than traditional detention — but the Trump administration is operating as if locking everyone up in squalid conditions is the only way.” The enforcement of these alternatives relies on how ICE officers decide to enforce it and she worries about this. But, if the enforcement question can be resolved, her basic position stands, that is, there have been and can be alternatives to detention.
She gives the example of the “Family Case Management Program,” which was launched by the Department of Homeland Security in 2015 “ in response to the waves of mothers and children seeking asylum from gang violence.” The program released families in certain cities where they were “monitored by social workers, who helped them find lawyers, housing, and transportation and made sure they attended their court hearings.” According to ICE, it worked pretty well, “though officers never had more than 1,600 people enrolled in the program during the two years it existed (compared to more than 350,000 immigrants who were held in ICE detention centers just in 2016). Ninety-nine percent of participants “successfully attended their court appearances and ICE check-ins. It’s also economical to putting people into detention. Campbell cites numbers from DHS: “it cost about $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention.” But, “the agency said the average cost of placing someone in an alternative programs is $4.50 per day.” She also cites a report from NBC News that found “housing immigrants in tent cities would cost a whopping $775 per detainee.”
This is not an “open border” policy. There would still be a need under this policy for some system of border security to enforce the new immigration system, and that would mean keeping some migrants out of the country. Who might be kept out? Perhaps gang members, those with criminal records, persons who have known records of domestic violence. However, there would be far more migrants admitted into the country than is now the case.
Assistance to the “home” countries from which asylum seekers flee
The number of migrants from the northern tier of Central America might be curtailed at the source. The US could help to reduce the number of migrants who are forced to migrate in the first place. This could be accomplished by launching a modern-day Marshal Plan to address the complex political, economic, and environmental problems responsible for the rising levels of migration to the US border. This would only work if the authoritarian political structures and neoliberal economic policies that now prevail are somehow ended.
Changing US foreign policy goals from “America first” to recognizing the need for equitable international relations with “under-developed” countries
However, much of the needed change must occur in the US itself. These are changes that require discussion that go far beyond this post and that address the concerns of American citizens, which feed the opposition to immigration. Nonetheless, here are some general ideas. There is a need to stop or severely restrict the sale of guns to Mexico. The drug policy in the US must be changed, with the goal of reducing the supply of illegal drugs that now come into the country through US ports of entry, and of enhancing assistance for Americans who use such drugs. US foreign policy must stop propping up authoritarian government leaders in these countries and stop opposing political forces that want to control over their own resources.
A Green New Deal to allay the fears some Americans have about immigration and address the unfolding climate crisis
The implementation of a Green New Deal would be a first step in significantly addressing the climate crisis and the economic insecurities of Americans. It calls for the development of plans to phase out fossil fuels and reduce greenhouse gas emissions, support renewable forms of energy and energy efficiency measures, create and begin to implement a full-employment policy, address the country’s infrastructure problems, and provide a social safety net to ensure that all Americans are assured adequate medical care, housing, and the other basics of a decent and dignified life, along with an improved public school systems, affordable or free post-high school education, universal, and single-payer health care.