Blockading Asylum Seekers at Ports of Entry at the US-Mexico Border Puts Them at Increased Risk of Exploitation, Violence, and Death

The United States has pursued a number of policies to deny migrants access to its asylum system. It has supported migrant interdiction programs in Mexico. US border officials have refused to allow many asylum seekers who are subject to expedited removal to pursue asylum claims, even when they request asylum or express a fear of return. The administration has criminally prosecuted and detained asylum-seekers in order to deter others from coming. It has separated children from parents at the border, and it now proposes to reunify these families, albeit in detention facilities. It has even raised the possibility of declaring Mexico a “safe” third country, thus barring asylum claims from migrants that first pass through Mexico.

Over the last several weeks, it has pursued a simpler strategy. Although the US Customs and Border Protection (CBP) has insisted that asylum-seekers pass through ports-of-entry (POEs), rather than between them, it has denied potential non-Mexican asylum seekers access to the inspection area at POEs, and left them stranded in Mexico.[1] CBP has done this by initial questioning and turn aways of some pedestrians at the international boundary line—ones who do not have admission documents, and who express a desire to present themselves for asylum.

The operating legal theory seems to be that if such people do not enter the territory of the United States, they cannot begin the asylum process by expressing fear to a border inspector. This legal theory – which certainly violates the spirit, if not the letter of the law – is an important topic for research and debate, but our concern is the serious potential harm of forcing non-Mexicans back into the northern Mexican border region, a highly dangerous area. The turn away policy has been used sporadically for several years at the border, often targeting specific groups, such as Haitians attempting to enter at San Ysidro.[2] What is notable currently is that it applies to all border ports and asylum-seeking nationalities, with particular implications for Central Americans who arrive in substantial numbers through Mexico. The fundamental issue is that by turning away vulnerable people at the border, US authorities seriously worsen the risks they face.[3]

When asylum seekers are blocked at POEs, they are forced to return into Mexican border cities; often they are homeless there, having little or no money, with migrant shelters sometimes far off (an expensive cab ride), resorting in some cases to sleeping in the open on bridges or in areas around their entrance. They are trapped between an inaccessible goal (the US port) and a largely inhospitable urban environment. The place in which they are stalled, the northern Mexican border region, has a high level of death, violence, and criminal exploitation. It is risky for migrants who lack local knowledge and ties, and especially for non-Mexican migrants, who make up most of the asylum seekers. Many are alone, or have casual migration partnerships of uncertain trustworthiness. Without Mexican citizenship, such people often lack real official protection (despite the law), and are targets for criminals and exploitative officials. Mexicans sometimes hold prejudicial stereotypes about non-Mexicans from the main asylum seeking countries, such as the northern triangle of Central America (Guatemala, Honduras, and El Salvador) and black-skinned people. Asylum seekers also may be targeted because of their sexual orientation and gender, which sometimes form part of their motivation to seek asylum. The risks we characterize here are in part garnered from general information about risks in the northern border region, but they are heightened for non-Mexicans.

The homicide rate in Mexico, and particularly the northern border, is horrifying. In 2017, Mexico recorded the highest number of homicides, 29,168, since records began in 1997, even higher than the peak of the open drug-war violence of 2011.[4] While the rate per capita in some other countries is even higher, including those that produce most asylum seekers, the Mexican level is horrendous. Mexican forensic data gathering methods do not always allow us to determine the individual identity and thus nationality and migration status of victims, but evidence of mass graves and disappearances in Mexico suggest disproportionate killing of non-Mexican migrants.[5] Importantly, the northern border cities into which asylum seekers are pushed back are among the most dangerous areas of the country. Tijuana has the fifth worst homicide rate of all world cities with over 300,000 inhabitants (over 100 per 100,000) and Ciudad Juárez is ranked twentieth in this tragic index (56 per 100,000).[6] Homicides are worsening in 2018, for example in Juárez,[7] but no northern border sites are truly safe.

The state of Tamaulipas, which contains the major return sites of Matamoros, Reynosa, and Nuevo Laredo, plus a number of smaller border ports, does not have markedly high homicide rates, but this is partly accounted for by a high rate of disappearances and the shattered situation of police and forensic examinations, meaning that many deaths there likely do not make it into homicide statistics. Mexico has a terrible problem of disappearances: the National Human Rights Commission (CNDH) estimates 32,236 disappearances occurred between 2007 and September 2016, with five border states, Tamaulipas (highest), Nuevo Leon, Chihuahua, Coahuila, and Sonora among the top eight states.[8] While the official count of non-Mexicans was 312, this is certainly a huge underestimate, because many bodies are not identified by nationality and many families of migrants have no realistic way to report disappearances in Mexico. Tellingly, two northern border states witnessed extreme cases of mass forced disappearances and ultimately death, 72 non-Mexican migrants in San Fernando, Tamaulipas (2010), and 49 Mexican and Central American migrants in Cadereyta, Nuevo Leon (2012).[9] But disappearances of individuals and small groups are continuous and widespread, resulting in homicide or exploitative kidnapping.

Kidnapping takes advantage of the migrants’ lack of adequate protective relations and knowledge. While Mexicans on the whole suffer widespread kidnapping, it particularly victimizes migrants, according to a systematic field study by Jeremy Slack. As he writes:

Those engaged in clandestine border crossing have become the perfect victims, not because of their wealth but because of their relationship to the border. Juanito [a research informant] explained that focusing on bodies in movement is a way to avoid the backlash from locals that might stand up and fight if their loved ones and relatives were taken, but are less willing to risk death for strangers. …Certain people can be kidnapped because they are either undocumented Central Americans headed through Mexico, or deportees dropped off on the streets of an unfamiliar border city. …whereupon they can be taken, held, tortured and exploited in a variety of ways without repercussions (Slack 2016: 271-272).[10]

The factors described here represent precisely the situation of blockaded asylum seekers in northern border cities.[11] Slack also found that kidnapping serves a number of criminal purposes, not solely holding people for ransom from their relatives. For example, kidnapping is used to recruit killers and other foot soldiers of violence, targets of sexual exploitation, suppliers of human organs, drug packers, drug scouts, and other providers of low level criminal labor. That is, kidnapping is a key stage in the human trafficking process.

Blockaded asylum seekers in northern Mexican border cities, bottled up in those sites with few or no resources or connections, are particularly vulnerable to labor, sexual, and other trafficking. The Inter-American Commission for Human Rights, for example, identified Reynosa, Tamaulipas as a high-risk site for trafficking crimes against migrants involving repeated mass abductions: “On July 9, 2012, the [Mexican] Secretariat for Public Safety reported that, in the course of an operation against a group of alleged human traffickers, the Federal Police rescued 85 migrants from a safe house located outside Reynosa, Tamaulipas. The migrants found in the safe house included 44 Salvadorans, 27 Hondurans and 14 Guatemalans. There were also 10 minors in the group.” Also, “In late August 2012, the Army rescued 77 migrants in an irregular situation, who were concealed inside a home in Reynosa, Tamaulipas. …Concerning the recurrence of these events in places that have already been identified as high-risk areas for migrants, the Commission is deeply troubled by the fact that events of this kind continue to be repeated over and over again in the very places that have already been identified as high-risk areas or municipalities for migrants, such as San Fernando and Reynosa in Tamaulipas.”[12] Perhaps most disturbing was the group of 480 migrants rescued from a safe house in Matamoros. The group was so large that a high school auditorium was used to house the migrants.[13] Beyond these dramatic incidents, hundreds and probably thousands of cases of individual or small-group trafficking entrap migrants in border and non-border Mexico.[14]

Kidnapping is the extreme tip of a vast mass of criminal victimization of migrants. This includes fraud, extortion, robbery, and assault (sexual and non-sexual). A notable risk facing migrants is sexual crimes, including those against women, men, gay women and men, and bisexuals and transsexuals. These latter populations tend to be highly represented among asylum-seekers. A survey of 429 Central American migrants in Mexico found that 31.4 percent of women and 17.2 percent of men had been sexually assaulted.[15] The conditions that encourage victimization have already been identified: lack of local knowledge; reduced social connections; being marked as stigmatized outsiders; often living on the streets or in shelters; and absence of police protection.

Police, the military (who exercise police functions in many areas of border and non-border Mexico), immigration officials, and human rights commission officials rarely are responsive to the reports and needs of migrants, and indeed often are perpetrators. This is documented in two thorough reports, one by José Knippen, Clay Boggs, and Maureen Meyer, and the other by Ximena Suárez, Andrés Díaz, José Knippen, and Maureen Meyer.[16] Key issues include caution about Mexican authorities, limited knowledge of how to file a complaint, lack of concern on the part of authorities who might receive complaints, failure by these authorities to investigate and prosecute crime against migrants, and widespread crimes and abuses by federal, state, and local authorities themselves, usually protected by other authorities. Impunity, the lack of consequence for crimes, is widespread in Mexico, particularly for powerless and marginalized victims like non-Mexican migrants. La Comisión Mexicana de Ayuda a Refugiados (COMAR), the Mexican government agency that assists non-Mexican migrants, is understaffed and, importantly, does not have an office north of Mexico City (thus, not at the northern border). After the south-central Mexican earthquake of fall 2017, COMAR altogether suspended its operations.[17] Weak official protection and widespread official abuse means that blockaded asylum-seekers are largely unprotected in the violent, criminalized, and exploitative environment of northern border cities.

When asylum-seekers are turned away by US authorities, they return to areas around the Mexican-side POEs. These are characteristically busy zones of businesses, restaurants, bars, discos, drug sellers, hustlers, and commercial sex work, although each border port has its own characteristics. They are areas that increase the vulnerability and exploitability of non-Mexican migrants with little knowledge and few resources. Migrant shelters vary in terms of how close and accessible they are to port exits. Often they are distant and require an expensive taxi ride that migrants may not be able to afford. Mexican agencies (such as Grupo Beta) meet large groups of deported Mexicans exiting from the United States and transport them to shelters, but it is unclear if they will do this for scattered non-Mexican individuals who have been turned away at the ports. Shelters themselves strive to meet basic needs, with considerable effort. However, as sites filled with exploitable, vulnerable people, they can become targets for kidnapping, criminal recruitment, trafficking, domination, and violence.[18] Blockaded asylum-seekers with limited or no money and few or no personal connections must find places to eat, sleep, and bide their time in this victimization-prone environment.

Moreover, it should be noted that many of the threats people are fleeing are also present along the migration routes and in northern border cities. For example, MS-13 has developed relationships with several Mexican drug cartels and often collaborates with them, working for drug traffickers in Mexico. This means that people fleeing gang violence in Central America are often exposed to the exact same actors while in Mexico. Sending people back to wait along the border is often no different than telling someone to stay at home and wait for an appointment despite a death threat. Recent arguments that asylum seekers should stay in Mexico neglect this important reality. Moreover, bottling people up at the border the United States increases their exposure to the very threats they are fleeing.

The turn back practice is an important part of current efforts to deny people legal access to asylum or to punish them for claiming it, particularly at the US-Mexico border. Turn backs indirectly produce family separation and whole or partial family detention. Presentation at POEs does not constitute a crime, though the entrant may be inadmissible (depending on their documents). In any event, they can pursue their asylum claim in civil immigration courts, alongside the charge of inadmissibility. However, when the port option is physically denied, they are forced to seek asylum by means of illegal entry between POEs, where they may be arrested by the Border Patrol. Illegal entry can be prosecuted as a criminal charge, as the Attorney General recently ordered in all cases. Criminal prosecution is the immediate cause of family separation at the border. Meanwhile, prosecuted asylum seekers are detained and the asylum process – typically involving “credible fear” interviews by asylum officers and, if successful, leading to immigration court proceedings – is pending. While the family separation policy has been revoked by Executive Order last week, the administration now seeks to keep such families intact in detention camps through the full course of their immigration court proceedings, which would violate the Flores settlement agreement.[19]

Turn backs form part of other recent policy moves that significantly limit access to asylum, especially for Central Americans. Attorney General Jeff Sessions ruled on June 11, 2018 that fear of crime from which people cannot be protected by their home government does not in general form a ground for granting asylum.[20] This denies key bases for asylum sought by Central Americans, including domestic and gang violence. Turn backs likewise occur in a context where the United States is seeking in negotiations with Mexico to have that country declared a safe third country.[21] Were Mexico a safe third country, then asylum seekers at the border could overtly be turned away on the grounds that they already are in a safe third country and should apply for asylum there.[22] That would formalize the turn back policy. Our information here, as well as other recent reports (see endnotes 3, 5, and 22), casts serious doubt on the safety of Mexico, particularly for Central Americans. Turn backs form part of a broad initiative—with long historical roots but intensified currently – to prevent, deter, punish, and deny asylum seekers coming to the United States

The people we are concerned with have a credible fear that they seek to express to US border authorities. If previous fears derive from their home country and their trip through Mexico, once they are turned away at the literal boundary line, their return to Mexico and time there adds to their fear. They face serious risks of homicide, disappearance, kidnapping, trafficking, extortion, robbery, sexual assault, and so forth. The turn away policy holds responsibility for any additional harms they experience once forced back into Mexico. It is wrong and must change, and any policy idea premised on the security of migrants in Mexico should be abandoned.

[1] Robert Moore, “Border Agents Are Using a New Weapon Against Asylum Seekers,” Texas Monthly, June 2, 2018. https://www.texasmonthly.com/politics/immigrant-advocates-question-legality-of-latest-federal-tactics/ (accessed June 22, 2018); Robert Moore, “At the U.S. border, asylum seekers fleeing violence are told to come back later,” Washington Post, June 13, 2018. https://www.washingtonpost.com/world/national-security/at-the-us-border-asylum-seekers-fleeing-violence-are-told-to-come-back-later/2018/06/12/79a12718-6e4d-11e8-afd5-778aca903bbe_story.html?utm_term=.a61a06cd90da (accessed June 22, 2018); Eric Lach, “’We Are at Capacity’: An Asylum Standoff on the Bridge Between Ciudad Juárez and El Paso,” The New Yorker June 20, 2018. https://www.newyorker.com/news/dispatch/we-are-at-capacity-an-asylum-standoff-on-the-bridge-between-ciudad-juarez-and-el-paso (accessed June 22, 2018).

[2] Maureen Meyer, The Impact on Asylum Seekers at the Border. Washington Office on Latin America, Feb. 21, 2017. https://www.wola.org/analysis/new-enforcement-policies-restrict-asylum-seekers-border-overload-mexican-authorities/ (accessed June 22, 2018).

[3] Our work updates, in the context of the recent complete turn back policy, the valuable report Situation of Impunity and Violence in Mexico’s Northern Border Region, March 2017 [no author]. Washington, DC and Tucson: Latin American Working Group, Washington Office on Latin America, and Kino Border Initiative.  https://www.wola.org/wp-content/uploads/2017/04/Situation-of-Impunity-and-Violence-in-Mexicos-northern-border-LAWG-WOLA-KBI.pdf (accessed June 22, 2018).

[4] Eli Meixler, “With Over 29,000 Homicides, 2017 Was Mexico’s Most Violent Year on Record,” Time Jan. 22, 2018. http://time.com/5111972/mexico-murder-rate-record-2017/ (accessed June 22, 2018).  There are several ways to calculate murders in Mexico, and this figure is the more conservative number.  (See Molly Molloy, http://smallwarsjournal.com/jrnl/art/homicide-mexico-2007-march-2018-continuing-epidemic-militarized-hyper-violence [accessed June 22, 2018]).  The per capita rate in 2011 was higher but 2017 approximated it.

[5] Human Rights First, Dangerous Territory: Mexico Still Not Safe for Refugees July 2017, New York and Washington: Human Rights First. Cited at p. 3. http://www.humanrightsfirst.org/sites/default/files/HRF-Mexico-Asylum-System-rep.pdf (accessed June 22, 2018).

[6] Seguridad, Justicia y Paz, Metodología del ranking (2017) de las 50 ciudades más violentas del mundo. https://www.seguridadjusticiaypaz.org.mx/biblioteca/download/6-prensa/242-las-50-ciudades-mas-violentas-del-mundo-2017-metodologia (accessed June 22, 2018).

[7] Molly Molloy, https://groups.google.com/forum/#!topic/frontera-list/sPYNSj40Cig, summarizing Mexican media reports for 2018 (accessed June 22, 2018).

[8] Comisión Nacional de los Derechos Humanos [México], Informe Especial sobre Desaparición de Personas y Fosas Clandestinas en México, 2017, http://informe.cndh.org.mx/uploads/menu/30100/InformeEspecial_Desapariciondepersonasyfosasclandestinas.pdf (accessed June 22, 2018).

[9] José Knippen, Clay Boggs, and Maureen Meyer, An Uncertain Path: Justice for Crimes and Human Rights Violations against Migrants and Refugees in Mexico. Washington, DC: Washington Office on Latin America [and 8 other organizations]. 2015. At pp. 20-21. https://www.wola.org/wp-content/uploads/2015/11/Uncertain-Path.pdf (accessed June 22, 2018).

[10] Jeremy Slack, “Captive bodies: migrant kidnapping and deportation in Mexico,” Area 48(3) 2016: 271–277.

[11] Slack and his colleagues in the Migrant Border Crosser Survey, Waves I and II, used a method that encountered more deported Mexicans and fewer deported non-Mexicans, such as Central Americans.  Their study, the most systematic view of kidnapping in the border region and the migration process, found that seven percent of migrants reported being kidnapped or held against their will.  It is likely that this underestimates the victimization specifically of Central Americans.  Their qualitative data certainly holds true for all these populations.

[12] Inter-American Commission on Human Rights. Rapporteurship on the Rights of Migrants. Human Rights of Migrants and Other Persons in the Context of Human Mobility In Mexico. OEA/Ser.L/V/II. Doc.48/13, 2013 [English translation; original in Spanish]. At pp. 57-58. Washington, DC: Organization of American States. http://www.oas.org/en/iachr/migrants/docs/pdf/report-migrants-mexico-2013.pdf (accessed June 22, 2018).

[13] Jimenez, Miguel. 2018. “Suman 480 migrantes rescatados en Matamoros.” El Manana de Matamoros, February 14, 2018. Accessed 06/18/2018. https://www.elmanana.com/suman-480-migrantes-rescatados-matamoros-matamoros-430-liberados-migrantes/4320422

[14] See Slack, op. cit. and Buch, Jason. 2014. “In Mexico, Gangs Target Central American Migrants.” San Antonio Express-News, August 4. http://www.expressnews.com/news/us-world/border-mexico/article/In-Mexico-gangs-target-Central-American-migrants-5667857.php (accessed June 22, 2018).

[15] Medecins San Frontiere/Doctors Without Borders. 2017. Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian Crisis. At p. 12.

http://www.msf.org/sites/msf.org/files/msf_forced-to-flee-central-americas-northern-triangle_e.pdf (accessed June 22, 2018).

[16] Knippen, Boggs, and Meyer, op. cit.; Ximena Suárez, Andrés Díaz, José Knippen, and Maureen Meyer, Access to Justice for Migrants in Mexico: A Right That Exists Only on the Books. July 2017. Washington, DC: Washington Office on Latin America [and seven other organizations]. https://www.wola.org/wp-content/uploads/2017/07/Access-to-Justice-for-Migrants_July-2017.pdf (accessed June 22, 2018).

[17] Guillermina Lincoln, “El derrumbe de la COMAR y la ayuda a refugiados,” Animal Politico Jan. 18, 2018. https://www.animalpolitico.com/blogueros-blog-invitado/2018/01/18/derrumbe-ayuda-refugiados/ (accessed June 22, 2018).

[18] See Jeremy Slack, “Appendix: A Note on Migrant Shelters,” in Jeremy Slack, Daniel E. Martinez, and Scott Whiteford, eds., The Shadow of the Wall: Violence and Migration on the U.S.-Mexico Border, pp. 227-31, esp. 229; and for cases from northern border cities in Tamaulipas, Inter-American Commission on Human Rights, op. cit. pp. 58-60.

[19] Inadmissible entrants at ports of entry, should they actually be able to present themselves for asylum, are also subject to individual or family detention. The Flores settlement has been implemented by releasing children after 20 days of detention, and parents to accompany them.

[20] 27 I&N Dec. 316 (A.G. 2018), June 11, 2018. https://www.justice.gov/eoir/page/file/1070866/download (accessed June 22, 2018).

[21] Kirk Semple, “U.S. Pushes Plan to Make Mexico Handle Asylum Seekers,” New York Times May 17, 2018.  https://www.nytimes.com/2018/05/17/world/americas/mexico-migrants-caravan-asylum.html (accessed June 22, 2018).

[22] Concerning the serious flaws in Mexico’s asylum system and why in many cases it does not offer a realistic and reliable option, see Human Rights First, Dangerous Territory, op. cit.; Human Rights First, Mexico: Still Not Safe for Refugees and Migrants, March 23, 2018 https://www.humanrightsfirst.org/resource/mexico-still-not-safe-refugees-and-migrants (accessed June 22, 2018).