Where are people supposed to go...now?

There are now tens of thousands of people who exist in a liminal space from which there is no exit due to the immigration policies of the United States and Mexico, and border closures in Central America. The shelters we work with, collectively forming the Red Franciscana de Migrantes, all report a similar situation: Instead of helping people traveling north, the people they are serving now are increasingly people who have been pushed out of the United States and have no place to go unless forced back home.

The end of asylum

The roots of this crisis run deep, growing well before the onset of the COVID-19 crisis, and in many ways, before Trump took office. However, over the last 3 years the most immediate antecedent for the current dislocation people are suffering is the Trump administration’s effort to dismantle the process of seeking asylum in the United States. Threatening sanctions, tariffs, suspension of aid, and border closures, Trump has forced erstwhile allies in the region into forging a dragnet intended to keep people  from Central America out of the United States.

The first step in the administration’s incremental deconstruction of the law was an executive order to deny anyone detained between ports of entry the ability to seek asylum. This ban was overturned by the Supreme Court as a violation of the Refugee Act - yet, as we will see this is now effectively the law as a response to COVID-19. Shortly after, then Attorney General Jeff Sessions, who, as Attorney General oversees the immigration court system and is empowered to act as a unilateral appellate authority, issued new guidance to limit the ability of people to seek asylum if they are fleeing the violence of “non-state” actors, e.g. those fleeing situations of domestic violence and criminal gangs. Later, further guidance was issued that in effect denies asylum to people fleeing threats to family members. All of which means, even if people get into the country, and pass a credible fear interview, once they stand before an immigration judge their ability to present a viable case has been severely restricted.

Such restrictions on the allowable bases for seeking asylum were coupled with a massive campaign of deterrence. The lowlights here include the explicit policy of separating children from parents charged with irregular entry or reentry violations, mandatory detention for most asylum seekers, and rapidly deteriorating conditions within detention facilities - especially those managed by Customs and Border Protection which has long held people in freezing rooms as inducement to self-deport. The message being delivered by the administration was loud and clear - if you are an asylum seeker, you are not welcome. If you come anyway, we will take your children and detain you indefinitely. Even if you make it this far, you will almost certainly be deported anyway. So, don’t bother trying.

It didn’t work. The premise of the restrictions being put in place was that people were gaming the system, and could thus be deterred by a “get tough” strategy. The administration did not account for the fact (nor, clearly, do they care) that the vast majority of people seeking asylum really are fleeing conditions that put their lives, and the lives of family members at grave risk. Even people who would otherwise be seen as economic refugees are in fact fleeing circumstances that threaten their survival. And so, people kept coming. Indeed, between December of 2018 and July of 2019 people arrived at the border in numbers not seen in well over a decade. Deterrence failed - just as it has repeatedly failed throughout the recent history of this country.

From Reagan to Clnton to Obama, administrations facing increases in refugee flows have all attempted deterrence first and ended up treating people horribly. Reagan created the infrastructure of private detention we are now burdened with - and which Clinton helped to quadruple in size - to manage the flow of refugees from Haiti and Cuba. Bush I and Clinton would use Guantanamo Bay to detain Haitians seeking asylum rather than allow them direct access to U.S. immigration courts. All of these administrations kept Haitian asylum seekers within the United States behind bars rather than grant a humanitarian parole that refugees from other countries typically received before Trump. Obama met a dramatic increase in unaccompanied children from Central America in 2014 with detention and expedited removal For those who arrived as a family, family detention was the norm - and yes, in some cases, the separation of children from family members was done as a deterrent (not simply as a by-product of other policies as Obama’s team has later claimed). And we should never forget that Trump has yet to come close to Obama’s monthly average of deportations. In short, Trump had a recent history of abusive policies and practices to draw from, and draw he did. But rather than be satisfied with deterrence, which anyone could see was not working, Trump’s team went into overdrive: Asylum would simply become impossible. No one gets in. 

A different kind of wall 

The next phase in the assault on asylum became issuing emergency orders for locking down the border. First, there was the Orwellian-named Migrant Protection Protocol in January of 2019. The MPP meant that people seeking asylum in the United States would be forcibly returned to Mexico to await their asylum hearings. Ultimately 60,000 people were thus returned to Mexico, many of whom are still waiting in dangerous, unsanitary camps along the U.S./Mexico border for a chance to make their case. While courts were in session, they did this in a temporary court room - under a tent in Brownsville or El Paso - where they spoke to immigration judges via video conference. These hearings are currently suspended. 

Then the administration went further. In July 2019, Trump issued an executive order that denied anyone arriving at the U.S./Mexico border the ability to seek asylum if they had first passed through a third country. This “transit” ban means that, with few exceptions, only people from Mexico can seek asylum at the border. Anyone else is denied the ability to seek asylum until they first attempt to receive asylum in another country and are denied. Such an order violates U.S. law which only allows such restrictions on a limited basis and only if the U.S. has a “safe third country” agreement in place with the transit country. The only such agreement in place is with Canada. 

And so, defying all logic, the Trump administration established a version of such agreements with Guatemala, El Salvador and Honduras - the very countries that most asylum seekers are actually fleeing - called Asylum Cooperation Agreements (ACAs). The first agreement negotiated was with Guatemala in July of 2019. As explained by NISGUA, “This signing came after the Guatemalan Constitutional Court ordered former President Morales not to sign the agreement without congressional approval. After Trump threatened to ban Guatemalans with lawful U.S. visas and to tax remittances, Morales sent his Interior Minister to sign.” El Salvador and Honduras quickly followed in September of 2019. Under the terms of these agreements people who seek asylum in the United States can be returned to one of these countries in order to seek asylum there instead. The ACA with Guatemala was the only one operative prior to COVID-19 closures. Everybody traveling by land from Central America must pass through Guatemala. And so, starting in December, people from El Salvador and Honduras who were seeking asylum in the U.S. began to be returned to Guatemala. By March nearly 1,000 asylum seekers had been sent to Guatemala. Less than 20 have actually sought asylum there. 

Alongside these efforts, the Trump administration pressured the government of Mexico to dramatically increase its own immigration enforcement to keep people away from the U.S. border. Mexico has cooperated with U.S. immigration policies for a long time. However, Trump wanted the government to do even more. And so last spring, amidst spiking apprehensions at the U.S. border, Trump demanded that Mexico do more to stop migration, threatening a massive increase in tariffs unless Mexico’s government gave in. Under the threat of such sanctions, the government of Mexico expanded its already robust efforts to capture and expel migrants. Patrols along its southern border were expanded, detention facilities were quickly filled to overflowing, and deportations, overland and by air, increased. Mexico also agreed to continue to cooperate with the Migrant Protection Protocol.

The COVID-19 response

The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws.  Lucas Guttentag, Just Security

Against this backdrop, COVID-19 has provided the administration with a perfect justification to do what it has wanted to to do all along: Shut down the border. At least for those seeking to come into the United States. Under the provisions of an order issued by the Centers for Disease control, the administration is now denying everyone access to asylum processes. People detained on the U.S. side of the border are simply sent back to Mexico - no credible fear interview, no hearing. Just sent back. At ports of entry - no one gets in. As a result, asylum no longer exists at the U.S. border. Will this be a temporary reality? I sincerely doubt it. This administration will not open the border up to asylum seekers again unless courts mandate it, or Congress forces it to. Even then, it will be a fight to implement new procedures. Remember that all of this has happened even though U.S. law says very clearly that anyone, ANYONE, no matter how they arrive in this country, can seek asylum.

While the U.S. denies entry to people under the guise of containing COVID-19, it continues to deport thousands of people throughout Latin America, the vast majority to El Salvador, Guatemala and Honduras. In doing so, the U.S. is contributing to the spread of the disease outside its borders. The United States is now the global hub of the COVID-19 crisis, and some of the hardest hit institutions are jails, prisons, and immigrant detention facilities. Despite the evident risks, Immigration and Customs Enforcement continues to move people all around the country, making containment impossible. An outbreak in the Prairieland, Texas facility this week, for example, has been traced back to transfers from hard hit detention facilities in Pennsylvania. 

As a result of people being moved around from facility to facility, there is almost no place in the detention network where COVID-19 is not now present. And so, when people are deported there is a high risk that all have been exposed. Increasingly, many are testing positive - after they arrive at home. This has been most evident in Guatemala, where an estimated 20% of all of the country’s COVID-19 positive cases have been found among people deported from the United States. ICE has thus been under pressure to halt flights altogether (in the last few days, the editorial boards of the Miami Herald, Washington Post, and Boston Globe have denounced these flights). Not ones to give into reason, Trump’s team at ICE will not stop flights, but did finally agree to begin testing people for COVID-19 - some people at least, some time soon, pinky swear. Meanwhile, deportation flights continue with, at best, a temperature check before people get onboard the plane.

And what do people find when they get back to Guatemala, Honduras, El Salvador, Haiti, Mexico, Brazil or Ecuador? The very same conditions they fled to begin with - though in most cases made worse by the pandemic. In the “safe third countries” the human rights situations are deteriorating rapidly. CISPES issued a report last week documenting a variety of abuses being carried out by Nayib Bukele’s government in El Salvador, including massive arbitrary detentions, ostensibly for violating the government’s stay at home orders. As thousands of people have been crowded into detention facilities, these sites have become major sources of exposure and infection. In Honduras, the government has suspended the constitution, and implemented a draconian curfew and nationwide lock down. Human rights organizations have denounced the government for using the pretext of this crackdown to detain activists. For example, COFADEH has documented the arrest and detention of 45 human rights organizers under the government’s COVID-19 orders. 

Guatemala, which has been bearing the brunt of the United States and Mexico's dual efforts to deport people during the COVID-19 crisis, is seeing a different kind of crisis.  People being deported into Guatemala are not wanted - some have been attacked as have the new shelters put in places to temporarily house people in transit across the country. Tensions in border areas over the movements of people there are mounting.  The government has thus been pressured to close its border even more tightly.

Where to now?

Last week I was getting an update on the situation in Tenosique from Lori Winther, the coordinator of the Red Franciscana de Migrantes. She explained how people were being forced south by the Mexico's immigration agency, often dumped near the border and told to make their own way into Guatemala, or detained in temporary detention facilities that have been built near the Mexico/Guatemala border.  Some refugees make their way to La Casa de Migrantes (La 72).

People have also started coming to La 72 from the northern border on their own, about 40-50 in the last week . For example, [recently], 10 people arrived at La 72, only one from Mexicali who was picked up by border control. The rest had come from the border region on their own because they cannot apply for asylum in the US anymore and the situation at the northern border is a mess, full of people, no help, no jobs, nothing. 

The situation is extremely complicated with COVID-19. La 72 is assisting people who arrive with food and shelter for one night. If they decide to stay, they are quarantined for 14 days apart from the rest of the population. If they decide not to stay, La 72 is helping them get to El Ceibo. They just can't stay for an indefinite amount of time and integrate with the rest of the guests. They have to commit to quarantine.

While [a coworker] was leaving me this last voice text, the contact in El Ceibo (on the Guatemalan side) called and told them that the border station is no longer going to accept returnees. They don't know what they are going to do now.

This is the question. What to do now? Where are people going to go? How are people going to sustain their lives? It is increasingly clear that our political establishments seem capable only of turning migrants into discursive tropes - disease vectors, security threats, people to be feared and thus contained. These tropes by and large serve only to cover the same governments' incapacity to provide health and real security to their people. Fear is indeed a mind killer, and thus the salvation for inept leaders the world round.

However, if COVID-19 is unveiling much of the inhumanity embedded in official discourses and practices concerning immigration, borders and national identity, it is also revelatory of the commitment of people to help. From shelters in Mexico to people demonstrating at detention facilities in the United States, there is a counter movement afoot that is growing. Some years ago Arundhati Roy, speaking of the need to confront U.S. militarism said, "Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing." Today I would add that another world is not only possible, it is necessary. We need to hurry her on her way, from a breath to a roar. Time is of the essence. We will find a way to share this earth or perish.