Statement Submitted to the U.S. House of Representatives Committee on Homeland Security

Statement submitted to the U.S. House of Representatives Committee on Homeland Security Hearing on
“The Way Forward on Homeland Security”

HIAS is the international Jewish humanitarian organization that provides vital services to refugees and asylum seekers in 16 countries. We advocate for the rights of all forcibly displaced people to rebuild their lives and seek to create a world in which they find safety, welcome, and opportunity.

HIAS serves asylum seekers on both sides of the U.S./Mexico border. Through our robust pro bono program, and with the assistance of our seven offices in Mexico, we provide legal support services to asylum seekers and refer cases to our legal fellows in California and Texas. We also provide essential mental health support to our clients. We have seen firsthand how the previous administration’s inhumane asylum policies directly impact individuals and families, so we very much appreciate Secretary Mayorkas’ early commitment and engagement in grappling with the complex challenges facing the U.S. asylum system. We recognize that after withstanding four years of withering attacks, the Department of Homeland Security (DHS) cannot fix all of the asylum system’s deep-rooted issues overnight. We therefore welcome the administration’s early efforts to unwind the Migration Protection Protocols (MPP), also known as the Remain in Mexico program.

However, more work is needed. Beginning on February 19, 2021, DHS began to allow small groups of people in MPP to enter the United States to wait in safety while their asylum cases are heard. This is encouraging progress, as these asylum seekers have been waiting in areas of Mexico so dangerous they have the same State Department travel advisory level as Syria and Afghanistan.[1] NGOs have cataloged more than 1,500 publicly reported instances of rape, murder, kidnapping, and other violent crimes against these asylum seekers in Mexico.[2] Yet, much more needs to be done expeditiously.

Current DHS policy restricts this program to those in MPP who are in Mexico and with an active asylum case in front of the Executive Office for Immigration Review (EOIR). This excludes those asylum seekers who were formerly in MPP, despite the fact that these asylum seekers had no real possibility of obtaining asylum. The dangerous conditions forced the asylum seekers to concentrate on their safety rather than their asylum cases. Few asylum seekers had legal counsel; of the more than 71,000 asylum seekers placed into the program only about 5,500 were represented.[3] Of the more than 32,000 asylum seekers ordered removed as a result of MPP, only 872 were represented. Many asylum seekers also were removed in absentia for missing a court date due to being as little as 15 minutes late to the port of entry or because they were victims of crime. DHS must allow these asylum seekers a fair chance at asylum while waiting in the safety of the United States.

DHS must also provide relief to asylum seekers subjected to other programs which unfairly restricted the right to asylum. The prior administration’s “Prompt Asylum Claim Review” (PACR) and “Humanitarian Asylum Review Process” (HARP) required asylum seekers to stay in Customs and Border Protection (CBP) custody while waiting for their credible fear interviews, rather than Immigration and Customs Enforcement (ICE). CBP cells were not designed to house people for more than 72 hours, and according to one lawsuit, as a result CBP conditions were overcrowded and lacked “sanitation, beds, adequate food or water, or proper medical care.”[4] Lawyers are also not allowed on CBP premises, eliminating the ability for counsel to meet in-person with asylum seekers in these programs. CBP allowed asylum seekers in these programs to access a telephone, but whether the program participants could actually call a lawyer varied greatly. President Biden ended both PACR and HARP as part of a series of Executive Orders on asylum on February 2, 2021, but there has been no announcement of relief for those placed in these programs.

Similarly, the Trump administration entered into “asylum cooperative agreements (ACAs)” with the governments of El Salvador, Honduras, and Guatemala.[5] These agreements allowed the United States to reject asylum seekers and send them to another one of these countries to apply for asylum there instead. Many individuals asking for asylum in the United States were fleeing transnational gangs in Central America; under these agreements the United States sent these asylum seekers back into danger. A Senate Foreign Relations Committee report found that despite the Trump administration sending 945 asylum seekers to Guatemala under the ACA, none actually received asylum protection.[6] These agreements were suspended on February 6, 2021, but again there has been no announcement of relief for those placed into this program.

HIAS also welcomed President Biden’s directive, in his February 2, 2021 Executive Order on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border”, for a comprehensive review of expedited removal to be completed within 120 days. [7] HIAS notes that the United States Commission on International Religious Freedom (USCIRF) already completed two reviews of expedited removal and, as HIAS did when those reports were issued in 2005[8] and 2016[9] – we urge DHS to implement the Commission’s recommendations, including:

1. End DHS’ longstanding practice of detaining all arriving asylum seekers in jail-like facilities and actual jails, a practice that has essentially criminalized asylum in the United States.
2. USCIRF has documented that asylum seekers are frequently mistreated – detained inappropriately and/or returned to places where their lives would be in danger, in violation of DHS’ own policies and procedures. Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) should implement meaningful quality assurance procedures, including recording and monitoring interviews, making the recordings available to applicants and their attorneys, and using recordings of interviews to ensure that DHS’ own policies – designed to protect asylum seekers – are actually being followed by DHS officers. USCIRF has demonstrated that existing DHS training and file reviews do not suffice.
3. Expedited removal has many moving parts across multiple agencies and departments and cannot protect asylum seekers unless those parts are coordinated. USCIRF has urged the appointment of a high-ranking DHS official who would be empowered and resourced to address issues related to asylum and expedited removal. With the expansion of expedited removal and other border-oriented initiatives impacting asylum seekers, that position is needed now more than ever.

Moreover, HIAS urges the Biden administration to fully respect the fact that under international human rights law as well as U.S. asylum law, the United States may not turn away people at our frontier who may have a well-founded fear of persecution. For that reason, U.S. law requires that people who express a fear of return cannot be turned away without being screened for “credible fear.” On March 20, 2020, the Trump Administration, however, used the pandemic to justify turning away all asylum seekers under an old public health law (42 USC 265)[10] which predates not only the 1996 expedited removal law, but the 1951 Refugee Convention. The Biden Administration has continued using “Title 42” to exclude adult asylum seekers in spite of the fact that public health experts are unified in their opposition to this practice.[11]

We encourage DHS and Secretary Mayorkas to continue in their efforts to ensure that the U.S. asylum system adheres to U.S. and international norms. We understand that there are multiple competing demands and that the Biden administration inherited a severely weakened asylum infrastructure However, we urge the administration to move expeditiously to end all of the programs and policies that violate the rights of individuals to seek safety in the United States and give them a fair chance at asylum in the United States.