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Confidential documents show CBP prepping for lawsuits over new asylum limits

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Confidential documents show CBP prepping for lawsuits over new asylum limits

  • Immigrants at a shelter in Tucson waiting for soup just hours after they were released from ICE custody in December.
    Paul Ingram/TucsonSentinel.comImmigrants at a shelter in Tucson waiting for soup just hours after they were released from ICE custody in December.

Officials at U.S. Customs and Border Protection are preemptively preparing for a lawsuit over the implementation of a new Migrant Protection Protocols, a controversial plan that will begin returning Central American asylum seekers to Mexico while their cases wind through the immigration system.

An internal document, leaked to, shows that CBP is requiring all staffers to sign a "litigation hold" to preserve documents, in anticipation of a lawsuit over the new process. That document, provided by an internal source who requested anonymity, includes a requirement that all agency employees keep the existence of the document itself confidential.

Immigrant-rights groups are likely to sue to block the process.

Originally called Remain in Mexico, or "Return to Territory," the Trump administration's plan would send asylum seekers back to Mexico in an attempt to "reduce illegal migration by removing one of the key incentives that encourages people from taking the dangerous journey to the United States in the first place," Homeland Security Secretary Kirstjen Nielsen claimed in December. "'Catch and release’ will be replaced with ‘catch and return,'" she said.

The plan was implemented as a pilot program at the San Ysidro, Calif., border crossing beginning Friday, and will initially apply to whose who are requesting asylum at that port of entry.

The people who enter at the port will likely not be screened for asylum, but instead will be given a notice to appear before a U.S. immigration judge in 45 days.

So far, only a handful of people have been sent back across the border by CBP personnel under the plan, but that will likely grow to hundreds of people who will find themselves waiting for their case to be processed while staying in temporary shelters in Tijuana.

In an email sent out to CBP personnel on Monday, Bennett Courey, associate chief counsel for Enforcement and Operations, wrote that "in reasonable expectation of litigation" officials should "preserve any and all records, in either electronic or paper form, relating in any way to the planning for, development of, and implementation of the Migrant Protection Protocols."

CBP employees were required to read, acknowledge and promise to keep confidential the document, which requires CBP employees to hold on to files and paperwork because the agency "anticipates that it may face litigation" related to the Migrant Protection Protocol.

After reading the litigation hold's requirements, employees were to send their agreement to comply with it to an attorney with the Office of Chief Counsel at CBP.

Lawsuit likely

A lawsuit has not been filed against the new policy, however, sources with two immigration advocacy groups, who were not authorized to speak publicly, indicated that a lawsuit over the new protocols was likely to be filed soon. As one source said, "we need to see how DHS implements this."

Just days before Christmas, Homeland Security's Nielsen announced the plan, calling it a "historic action" to "bring the illegal immigration crisis under control."

The announcement came weeks after an exodus of Central Americans arrived in Tijuana, resulting in a months-long panic by DHS officials and the White House over the "caravan" of people. As the group of people approached, U.S. officials deployed up to 5,900 active-duty soldiers in Texas, and sent engineering specialists to string concertina or "razor" wire on 70 miles of the U.S.-Mexico border under Operation Secure Line. 

While the mission was extended to Sept. 30, about 3,600 active-duty troops returned home. However, this week Acting Defense Secretary Pat Shanahan told Congress that "several thousand" troops could be deployed following a DHS request after a new caravan numbering up to 12,000 people appeared to be forming. 

The measure also comes as the Trump administration continues to press for more than $12 billion in spending for border security, including 234 miles of new border barriers, a signature promise during Trump's election in 2016.

Immigration advocates and lawyers criticized the plan, arguing that the plan was "dangerous" and potentially "illegal."

As Joanna Williams, the director of education and advocacy for the Kino Border Initiative, a bi-national Catholic organization that helps migrants in Nogales, Ariz., wrote in December, "individuals, families and children will suffer from insecurity and lack of opportunity in northern Mexico. We are particularly concerned about the scant civil society infrastructure to support people who wait and the absence of legal resources," Williams said.

In a policy brief published just after the announcement of the plan in December, the American Immigration Lawyers Association called the plan "cruel and likely illegal."

"This plan will prevent most, if not all, returned asylum seekers from receiving a fair day in court," wrote Jason Boyd and Kate Voight. "Individuals forced to remain outside the U.S. will encounter substantial barriers to accessing U.S. attorneys—representation that can make the difference between life and death."

"Asylum seekers in the United States who lack counsel already face profound challenges in navigating complex immigration laws, obtaining documents critical to substantiating their claims, and obtaining relief," they said. "The legal obstacles faced by unrepresented asylum seekers marooned in Mexico will prove even more prohibitive."

As DHS said on Tuesday, the protocols are "a U.S. Government action whereby certain foreign individuals entering or seeking admission to the U.S. from Mexico – illegally or without proper documentation – may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay."

DHS said that people "who need to return to the U.S. to attend their immigration court hearings will be allowed to enter and attend those hearings." People whose claims are "found meritorious" by an immigration judge will be allowed to remain in the U.S.

Meanwhile, "those determined to be without valid claims," will be deported back to their country of nationality or citizenship, DHS said.

All told the new protocols will "reduce the number of aliens taking advantage of U.S. law and discourage false asylum claims. Aliens will not be permitted to disappear into the U.S. before a court issues a final decision on whether they will be admitted and provided protection under U.S.," DHS said.

The agency also noted that people will not be provided a lawyer at "expense to the U.S. government," but they can "use a counsel of their choosing."

In the document, shared with by a government source whose job might be in jeopardy if their identity were made public, Courey told employees that the agency believes that lawsuits could "include, but are not limited to, statutory claims" under the Administrative Procedure Act, the Immigration and Nationality Act, the due process clause of the 5th Amendment, and even international law claims "related to the treatment of asylum seekers."

Other asylum limits blocked by courts

Several other measures put in place by DHS have been stymied by lawsuits using similar claims, including a plan to limit how people can apply for asylum, and a plan to create a screening process to bar people who entered the U.S. between the ports of entry from applying for asylum.

Under U.S. law, asylum claims can only be filed by people who are within the United States.

In a ruling released on Dec. 19, U.S. District Court Judge Emmet Sullivan, based in Washington D.C., said that a decision made by former Attorney General Jeff Sessions to alter the standards of credible fear, a framework that allows people to apply for asylum, were "arbitrary, capricious, and in violation of the immigration laws."

Sullivan struck down the policy after issuing a temporary restraining order, arguing that Sessions' decision violates the Immigration and Nationality Act, the Refugee Act, and the Administrative Procedure Act. Because "it is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal, the Court finds that those policies are unlawful," he wrote.

In California, U.S. District Court Judge Jon Tigar battered the administration's attempts to create a "screening process" specifically to bar people from seeking asylum if they entered the United States between ports of entry. Like Sullivan, Tigar issued a restraining order, arguing that the ban "irreconcilably conflicts" with federal law and the "expressed intent of Congress."

The litigation hold came just as Nielsen traveled to San Diego to meet with U.S. Immigration and Customs Enforcement employees and review the implementation of the protocols, which DHS said are "designed to help ensure migrants are protected according to U.S. and international obligations while also addressing the security and humanitarian crisis at our Southern Border."

During her announcement, Nielsen said that DHS expected that "affected migrants will receive humanitarian visas to stay on Mexican soil, the ability to apply for work, and other protections while they await a U.S. legal determination,"

Despite Nielsen's statement that Mexico had agreed to the plan, and "commit to implement essential measures on their side of the border," Mexican officials appeared to be caught flat-footed by the announcement. However in recent weeks, officials there have reluctantly agreed to accept some asylum seekers.

During a Friday press conference, Roberto Velasco, an official with Mexico’s Foreign Relations Secretariat said that Mexico will accept 20 migrants from the United States each day who crossed at the California port of entry, the Texas Tribune reported.

However, Mexican officials said they won't accept certain migrants, including people who are appealing their asylum case, children who traveled to the United States without parents or guardians, and migrants with health problems.

And, Mexican officials remained concerned that Mexico does not have the capacity to support "tens of thousands of U.S.-bound asylum seekers for months or years," reported analysts with the Washington Office on Latin America, a nongovernmental human rights organization.

The analysts at WOLA said that during the fiscal year of 2018, U.S. Citizenship and Immigration Services, the DHS office that interviews asylum seekers for "credible fear" claims administered preliminary screenings for nearly 93,000 people and that 80 percent of people pass their credible fear interviews.

"At that rate, of last year’s applicants alone perhaps 75,000 people (minus a few thousand Mexican citizens and others who are deemed vulnerable) might potentially have been sent back to Mexico to await their asylum decisions, had 'Migrant Protection Protocols' been in place," they said.

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