27 February, 2022
by Sam Biden, Global Leadership Fellow
‘Zero Tolerance’ and ‘Remain in Mexico’ policies
US migration policy has been at the forefront of the electoral process for decades and the main talking point of the last two elections. With rising pressures to control immigration due to an influx of migrants from Central America, both parties have taken to focusing on solving this developing crisis.
In 2017, President Trump announced a ‘zero tolerance’ migration policy. Otherwise known as Migration Protection Protocols (MPPs) or ‘Remain in Mexico’, it was designed to handle the ongoing, unauthorized migration crisis steadily mounting on the US-Mexico border. The goal of this policy was to achieve prosecutions against any unauthorized migrants, regardless of their needs, status or risk of harm if refouled. With this came family separation, parents were duly prosecuted and children were either returned to a fleeing State, detained or eventually reunited after extensive legal battles to defend their best interests. For those that were detained, conditions on the border were nothing short of inhumane. In 2017, US Federal investigators found reports of systematic and suspicionless strip searches, rotten food, mouldy bathrooms, misuse of segregation and exaggerated delays to receive medical attention. These were exacerbated by over 800 cases of slurs and abusive actions against detainees by staff – these incidents related to protected identities such as race, religion, ethnicity and sexual orientation. Statistics show that over 69,000 people were placed under the program since January 2019, with a further 21,300 asylum-seeking children being sent back to dangerous Mexican cities under the Trump administration.
In 2020, President Biden promised to scrap MPPs. Initially, every individual has to be registered with the UNHCR as a potential refugee. This resulted in over 13,000 successful pursuits of asylum in the US, a drastic change from the hollow figures of the previous administration. These successful pursuits were made possible not just by the opening of new asylum cases, but also closed cases. The Department of Homeland Security (DHS) Secretary, Alejandro Mayorkas, described this process as a response to the MPPs “unjustifiable human costs” and failure to provide humanitarian protection. In what has been described as MPP 2.0, the Biden administration was forced to reinstate the program upon order by a Texas court. After this, 15,000 children were left vulnerable and stranded after August 2021. Under an agreement between President Biden and Mexican President Andrés Manuel López Obrador, they expanded the list of those who could be detained to anyone within the Western hemisphere. The initial MPPs were limited to inadmissible non-citizens that approached from the South-West border, but now anyone coming from the East or even North of the US is admissible under the reinstated program.
These two programs have caused serious concerns amongst the international community regarding their legality in a number of key areas. These concerns are the implications under the Refugee Convention, non-refoulement and the right to reunification and restriction against the separation of the family under the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR).
The Refugee Convention
A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. This status can only be obtained upon evaluation of the individual circumstances for each person, until this point for legal reasons, they are asylum seekers.
Many potential refugees arriving at the US border are fleeing persecution or poor living conditions in Central America. For example, the Northern Triangle consisting of El Salvador, Honduras and Guatemala are considered some of the most dangerous countries in Latin America. They have very high rates of internally displaced persons (IDPs). These are individuals who have fled regions of the State, yet remain within its borders. IDPs in the Northern Triangle are fleeing threats, assassinations and murder, all stipulated by regional criminal gangs. Efforts are underway to mitigate the levels of violence. However, they are not working as intended. One strategy employed in El Salvador was to cut off contact between top gang leaders in prison and the outside world. While this has resulted in a slow decrease in violent crime, rates of violence against the families of security officials who enforce these new rules have grown exponentially. This has caused a skyrocketing effect on asylum procedures coming from the region. UNHCR reports that asylum claims from citizens of these countries grew eleven-fold between 2011-2017 and ten-fold with asylum claims in the US.
With large numbers of asylum seekers fleeing these States, Article 31 of the Refugee Convention is engaged, Article 31 states:
- “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.
A basic reading of this Article stipulates negative connotations for the Remain in Mexico policy. The penalties imposed so far have included detention, refoulement and conditions that may amount to inhuman or degrading treatment. The good cause element of the article relates to the fleeing of persecution as found in the refugee definition. When reading from testimonial issues in the Northern Triangle, such as a fear of violence, murder and State instability, these are prima facie, good causes.
Non-refoulement is an absolute prohibition of international human rights and migration law. This principle is non-derogable, meaning a State must enforce it at all times. It restricts the right of a State to remove or transfer any persons, regardless of their status, to a State where there are substantial grounds for believing they may be at risk of harm such as torture, inhuman or degrading treatment and other fundamental rights violations. Under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), the competent authorities of a State must take into account all relevant considerations including, where applicable, the existence in a State of consistent patterns of gross human rights violations.
The US declared a safeguard surrounding the Remain in Mexico policy that was designed to mitigate the risk of harm from refoulement. This safeguard stated that if an asylum official believed people were likely to face a risk to their lives or freedom, then they shall not be sent there. However, the threshold of harm had to be near-certain. Threats of serious harm against an individual did not restrict them from being refouled unless directly linked to protected refugee category. This refouling of thousands to the most dangerous Mexican border cities proved to have fatal consequences.
For those who were held in Mexico awaiting asylum proceedings, there are legal concerns surrounding the safety of the areas they are kept in. Thousands were sent to Mexico’s border towns such as Nuevo Laredo, Matamoros and Ciudad Juárez. In Matamoras, a listed ‘Do Not Travel’ zone by the US Government, over 2600 asylum seekers sent there had to flee to a riverside informal camp not run by either the Mexican or US Government. In Nuevo Laredo, many instances of kidnappings, attempted kidnappings and over 1100 cases of murder, rape and torture of asylum seekers under the Remain in Mexico policy were brought to light. One family was denied a non-refoulement interview and subsequently was physically forced into Nuevo Laredo. The father of the family was told that because he was “non-cooperative”, that if he did not take his family into Nuevo Laredo as ordered, then they would be separated. By far the most dangerous of the three cities mentioned is Ciudad Juárez. Listed as another ‘Do Not Travel’ zone, over 1,544 kidnappings and 7,647 violent attacks were committed on individuals who had become stranded in Mexico. These conditions were facilitated by the US Governments abuse of ‘Title 42’, a US migration policy allowing for the blocking of all ports of entry, asylum and the expelling of individuals on the grounds of public health.
Family Reunification and Separation
Figures from 2021 paint a distressing picture of the reunification process. After a new task force was established in coalition with the International Organization for Migration, 50 families were reunited as of September 2021. Over 5,500 cases of separated children were analysed in the same year, meaning less than 1% of total reunifications have been made. Some families have argued the best interests of their child is to be with their family, this has allowed for 10 unifications across the border between Mexican and US authorities. Reunification is well-documented in International law. There are negative restrictions, such as arbitrary separation, but also positive obligations such as ensuring reunification. Article 23 and 17 of the ICCPR guarantees the protection of family life, and its freedom from arbitrary interference, including a right to reunification. To assess the efforts of the US government, an analysis of their unifying methods needs to be highlighted.
The main bodies involved in the separation and subsequent reunification process were the Office of the Inspector General (OIG), Department of Health and Human Services (HHS) and the DHS. None of these departments had the necessary facilities to even begin basic reunification processes. After an initial investigation, the OIG found no evidence that any central database was in existence, despite claims from the HHS and DHS in mid-2018. This misinformation only damaged the reunification process; some parents were given wrong information about their families, many were told they would not be separated and they were made promises of unification after a court appearance that left many hopeful, only to be separated regardless. Young children were given no adequate means to be tracked. Pre-verbal children were routinely not fingerprinted or given identification tags, meaning even if a central database existed, there would be no way to link them to their parents without physically doing so. Because of these fallacies, Customs and Border Protection (CBP) openly admitted that they did not make any attempts to reunite parents and children due to the missing information. These procedural improprieties cause serious legal ramifications concerning the welfare of the child.
1. Article 7 (1) & 8 (1) UNCRC
These Articles grant the child a right to be known or cared for by their parents and the right to preserve their own identity, including family relations. There are clear reasons why the US could be in breach of these legally. One example is paid cartel mules forcing families to carry drugs over the border. In these instances, the US is free to separate the family due to the nature of the offence and for anti-organised crime purposes. Since the primary goal of most of these families is to seek asylum, the separation must only take place for procedural purposes, as Article 7 (1) implies that a permanent separation is not an amicable solution. When this separation does take place, detention, imprisonment and deportation are not grounds that restrict a child’s right to be able to be cared for or have any relation with their parents. Preservation of family relations can only be achieved with sufficient resources to facilitate these relations. The evidence for a non-existent tracking system enforced on the border during the program’s existence shows no pathway to upholding these Articles at all.
2. Article 9 (1) UNCRC
This Article restricts a State’s right to separate a child from their family unless a competent authority, subject to judicial review, determines this is in the best interests of the child. The Remain in Mexico program during its conception and current practice still aims to prosecute every adult family member that comes across the border unlawfully. This automatically leads to the separation of any children associated with those being prosecuted, automatically engaging this Article. Those involved on the border are all competent authorities, from the CBP to the DHS, so they are liable for violations of this Article. One reason the program is a cause for concern is that the best interests of the family altogether are not served by remanding children and other family members in dangerous cities away from their parents where they are most at risk. In fact, adequate family facilities inside the border itself is most amicable, yet these are often overflowed and have poor living conditions, this is cannot be considered in the best interests of the child regarding their own welfare.
With all areas considered, there is no doubt that the Remain in Mexico policy is a multi-layered, flagrant violation of a multitude of international documents. While immigration is a touchy issue in the current political climate, the enforcement of migration laws need not be this harsh. A combination of a lack of due process, poor living conditions, violations of non-refoulement, violations of the rights of the child and arbitrary separation only lead to a single conclusion. Suggestions for US migration policy need to air more on the side of the humane, rather than the side of near cruelty. A policy such as this could have been legally effective should the detention facilities have been big enough and a high standard, families could wait for their asylum proceedings together, asylum seekers not being sent to ‘Do Not Travel’ zones and efficient, individual assessment of the best interests criteria be made. Sadly, however, the current and past nature of Remain in Mexico lacks this and is, therefore, unlawful.
Image: the US/Mexico San Ysidro Border Crossing (source: Philkon (Phil Konstantin) via CC BY-SA 3.0)