Thursday, May 31, 2018

Hold Accountable DHS Officers and Authorities Denying Protection to Asylum Seekers

Guest blogger: Valeria Vera, Masters in Migration Studies student, University of San Francisco

On May 5 - 6, 2018, six unknown armed assailants attacked a Tijuana shelter, Centro Comunitario Caritas, on two different occasions. [1]  The first time, the individuals stole all of the belongings of the migrants staying there and punched a non-migrant inside the shelter.  The following day, they returned and placed a mattress on the door to the shelter, blocking its only exit, and set the mattress on fire. This shelter housed 11 members of the LGBT community who belonged to the caravan that arrived in Tijuana on April 29, 2018. [2] The police were called, but they never showed up and allege no complaint was ever registered. The mayor of Tijuana, Juan Manuel Gastelum Buenrostro, and the State Commission for Human Rights, opened an investigation to determine whether the attack was a hate crime. It is clear that the Mexican government chooses to continue to be blinded to its homophobic culture and society, contrary to what the shelter allies and caravan advocates state: “the building was targeted because trans immigrants were staying there.” [3]

On May 6, 2018, at night, those 11 migrants presented themselves at the San Ysidro-Tijuana Port of Entry (POE) accompanied by immigration attorney and ally, Nicole Ramos, to request asylum[4]. They presented a letter from a Mexican attorney stating the facts and the country conditions faced in Mexico and Central America, which these women were running from for their lives. According to Ramos, they spoke to two CBP officers and their supervisor, only to be informed that “there was no space.”

Under 8 U.S. Code § 1225(B)(1)(A)(ii), an officer shall refer “any alien who indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution... for an interview by an asylum officer under subparagraph (B).”

Asylum and refugee laws are rendered under the U.N. Convention Against Torture, the U.N. Convention Relating to the Status of Refugees, and the Refugee Act of 1980, all of which the United States has signed and ratified. It is a violation of those laws to refuse protection to an immigrant expressing fear of return. Under the Title 8 code 1225 highlighted above, a person who expresses fear of return should be immediately processed to see an asylum credible fear officer. There is no “waiting list” for those outside of the country seeking asylum at any U.S. POE to be granted an opportunity to meet with an asylum officer for the determination of whether someone’s fear is credible and qualifies for them to apply for asylum. As Ramos mentions in her live video, CBP’s refusal to accept the transwomen is illegal. It is the irony of a country that produces refugees on a self-proclaimed false pedestal of saving women and people elsewhere from ideological, religious, sex, gender, and orientation oppression because its involvement in those countries it seeks to “protect,” they just create more refugees and asylum seekers.

The abuse of immigrants and citizens by U.S. government authorities and U.S. government agencies’ are not secret or news. In fact, these violations have been reported for years. One of the most significant publications was by Human Rights Watch in 1995, when it investigated allegations against Border Patrol agents committing serious human rights violations, including unjustified shootings, rape, and beatings, while enjoying virtual impunity for their actions. [5] The report also claimed that the former Immigration and Naturalization Services (INS) (now replaced with DHS) would not punish its agents who violated policies and the law because the INS "procedures for receipt and review of complaints alleging violations [were] wholly inadequate.” Since that report was published, Border Patrol agents have been prosecuted and investigated for murder [6], deported U.S. citizens, and immigration officers, law enforcement, and government leaders accused of holding labor camps, such as Sheriff Joe Arpaio, sexually and physically abusing detained women and children, forcing immigrants to sign voluntary departure, separating families, and killing other innocent individuals, some not even physically on U.S. territory, such as 16-year-old Sonoran Jose Antonio Elena Rodríguez in 2012.[7] Now, in 2016 and again 2018, CBP is outwardly refusing to allow immigrants seeking asylum at the border because there is “ no room.” 

In these situations, how can we utilize the laws to hold the responsible individuals accountable? Why is it that they can use their laws to protect our border to equip themselves with the power and impunity to criminalize innocent people and commit human rights abuses, including extrajudicial killings? [8]

The militarization of the U.S.-Mexico border, which escalated as a result of 9/11 and will only continue to increase under Trump, serves to normalize abuses against individuals and “Others” on the basis of the protection of the nation. The impunity with which violations and corruption occur along the border raises questions as to what extent security dilemmas have been invented, especially when these have been used to justify the widespread exploitation and domination of the bodies of immigrant, citizen, and undocumented folks. Whose responsibility is it to hold the United States authorities and agents responsible -- the United Nations or the Inter-American Court of Justice? Justice for Anastasio Hernandez Rojas, who was murdered by Border Patrol officers on the border, is still pending after seven years of his murder.  The FBI investigated the crime and refused to charge the individuals involved and the case is now currently pending at the Inter-American Court of Justice, which is the first time any case for extrajudicial killings is heard at this court. [9] What justice will be served to the thousands of people around the world whose lives are daily threatened because of the hegemonic masculinity and patriarchal cultures that normalize domestic and gender violence to oppress and exploit them? This is a pressing issue because earlier in 2018, Attorney General Jeff Sessions claimed is considering to eliminate asylum for survivors of domestic violence, who qualify under the nexus and protected ground of particular social group (“PSG”)? [10] Karen Musalo, a law professor and director of the Center for Gender and Refugee Studies (CGRS) at UC Hastings Law School and the attorney of a survivor of domestic violence from El Salvador whose case A.G. Sessions is reviewing, states that, “The attorney general’s intervention represents ‘a combination of anti-immigrant and misogynist (policies) from this administration… Everything that he’s trying to do would cut back on the procedural and substantive rights of asylum-seekers.’”[11]

In the hopes of eradicating the abuses of power and denial of human rights that immigration agents continue engage in, Senator Kirsten Gillibrand, co-sponsored by Senators Warren and Merkley, have introduced the Security Accountability and Transparency Act through DHS, a bill that would apply more broadly to immigrants–and perhaps also to other people of color–in their interactions with immigration agents. The bill would require immigration agents to document every time in which they stop, question, search, or interrogate people. Senator Warren explained that, “Border patrol agents have a duty to protect our borders without trampling on our constitutional rights” or deterring the integrity of border enforcement.[12]

I agree that the power of any authority requires careful checks and balances for all those reasons, but not limited to, described above. The current disciplinary practices against a CBP officer, according to their manual and given their historical impunity, seem arbitrary. For instance, the             U.S. Customs and Border Protection Complaints and Discipline Systems Review published a public report on November 23, 2015, about findings and recommendations. The “discipline” section is 5 short paragraphs long and states that:

Discipline can involve formal or informal non-adverse actions, including verbal or written counseling, memorandum of instruction, written reprimand, disciplinary suspension between one (1) and fourteen (14) days… The authority to propose or decide specific actions is delegated to supervisors and managers at the lowest organizational level, appropriate to the severity of the misconduct, pursuant to CBP’s Delegation of Authority.     Even less that warrant less severe discipline (i.e., non-adverse actions) are remanded to local management for appropriate action. Cases that warrant more severe discipline (i.e., adverse actions) are presented to CBP’s Discipline Review Board (DRB). [13]

The bill proposed by Senators Gillibran, Warren, and Merkley, and the pending prosecution at the Inter-American Court of the officer who murdered Anastasio Hernandez Rojas evidence the attempts for justice currently pending. There is a security dilemma, but it is not of the United States. It is of the security of the individuals who come to this country seeking protection and are unlawfully denied it. We must, as individuals with the power to influence politics in this country, become aware about these issues that seldom receive media attention and demand that our leaders act to protect and uphold human dignity. As Nicole Ramos begs her audience in her live video: Call your representatives. Support legal aid organizations at the border. Bring up these uncomfortable conversations to those in your communities who are unaware or choose to be unaware of these abuses and narratives.

The realities at the border, the abuses that this country’s border officers perpetrate, and the limited protection that is exercised to those expressing fear of return at the border trumps the 45th presidential administration’s narratives about immigration. President Trump has spent his political career spitting out unfounded racist rhetoric about the need for a higher and more secure border wall, never mind that there are already up to three walls at the border. He has tweeted that the country’s immigration laws are “weak,” and both he and Jeff Sessions allege that immigrants are stampeding into the country as a result of those weak laws.[14] The cases of the Translatinas seeking asylum at the border on May 6, 2018, as well as other cases in previous years not mentioned here, such as two caravans that sought asylum at the border in 2017, the thousands of Haitians who sought asylum in 2016, and the thousands of Unaccompanied Children who have been seeking asylum since 2013. On May 7, 2018,  Jeff Sessions held a press conference at the San Ysidro-Tijuana border to deliver a hateful message of the “urgent” need for a “zero-tolerance” policy, which aims to criminalize all immigrants who enter the country without inspection.[15] If this country wants immigrants to stop entering the country, then its leaders should get their foreign and domestic policy out of other countries and stop making refugees and forced economic displacement. The only people who should receive zero-tolerance are the authorities for their continued perpetration of abusive, racist, and inhumane violations of international and human rights laws.






[5] Human Rights Watch (1995). "Crossing the Line: Human Rights Abuses Along the U.S. Border with Mexico Persist Amid Climate of Impunity." Human Rights Watch, 7(4). Retrieved May 8, 2013.












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