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Aid group: Border officials rejected legal asylum claims, subjected migrants to physical & mental abuse

A humanitarian group based in Nogales, Sonora, has accused U.S. Customs and Border Protection officials of violating the due process rights of asylum seekers over a nine-month period, including rejecting legal asylum claims and subjecting migrants with mental and physical abuse.

In a 21-page report, the Kino Border Initiative, joined by the Network Lobby for Catholic Social Justice, documented 35 instances in which CBP agents in the Tucson Sector quickly expelled migrants to Nogales, Son., and often "lied" to migrants about their rights by rejecting asylum claims out of hand.

In some instances, migrants endured "inhumane treatment at the hands of CBP" officials — who are alleged to have confiscated clothing, baby food and diapers; forced people to sleep on concrete under bridges; subjected people to freezing facilities; and even engaged in "outright physical attacks," including an instance when an agent assaulted a pregnant woman seeking asylum at the Dennis DeConcini Port of Entry in Nogales, Ariz.

"These violations are not new," the group said, noting that in 2021, they wrote to Homeland Security Secretary Alejandro Mayorkas detailing the same pattern of abuse.

Federal officials declined to respond to questions about the report or specific claims, citing an internal investigation.

While President Joe Biden promised a "blueprint for humane asylum," in August, all but six of these instances occurred during his administration. In most instances, CBP officials relied on Title 42, a CDC order implemented in April 2020 in response to the  CVOID-19 pandemic, and immediately expelled people who crossed into the United States after traveling through a country with COVID-19 infections.

KBI said that Biden's blueprint "hinges on CBP following the rules and referring all who claim fear to be assessed" by the U.S. Citizenship and Immigration Services. Migrants should remain in the U.S. "as long as the assessment continues rather than being deported before due process can be achieved," the group said. 

"This snapshot is the latest of numerous reports highlighting CBP's systemic pattern of abuse, which violates U.S. laws and regulations, as well as international law," KBI said.

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The group said that the 35 complaints demonstrate that "CBP is incapable of performing the function of trained asylum officers and therefore is not the appropriate agency to assess whether a migrant’s fear claim warrants being paroled into the U.S. to continue the asylum process." 

Rather, they said, CBP is "woefully inadequate in such a role."

"CBP places great emphasis on the professionalism and integrity of its workforce," said John Mennell, a spokesman for CBP. The agency, he said, "constantly works to ensure that all employees understand and maintain the highest level of professional standards in their interactions with stakeholders, those they apprehend in violation of the law as well as with each other, in a manner consistent with law enforcement standards of performance and conduct. "

"As the incidents have been reported to the DHS Office for Civil Rights and Civil Liberties and CBP’s Office of Professional Responsibility, we cannot comment on the allegations identified in the report," he said.

In his plan, Biden said he would seek to create a "fair, orderly and humane" immigration system, creating a dedicated docket for asylum claims, speeding up system by allowing asylum officers to adjudicate claims without a judge, and expanding legal representation. He also said he would knock-down the court's historic backlog, which grew to nearly 1.3 million cases under the Trump administration, and restart the Central American Minor program, a system that allows children to apply for asylum in their home countries. The Trump administration ended CAM in 2017.

"President Biden’s plan cannot be humane until there is an end to patterns of abuse and impunity within CBP," KBI said. "We respectfully ask that both the Biden administration and Congress exercise all their powers and initiate external oversight mechanisms over CBP that will end impunity within CBP."

KBI said that in many cases "despite filing complaints about individual agents, these abuses often go unnoticed and unpunished."

"Of the 35 complaints in this report, none of them resulted in a response to KBI or the complainant about disciplinary action taken against the perpetrators of these abuses. This means agents who attack migrants may still be on the job, repeating these same violations," the aid group said.

Title 42 allows agency to rapidly expel people

CBP has been hit with complaints throughout the last decade, and in February 2020, a federal judge ruled that conditions at Border Patrol stations near Tucson are "presumptively punitive and violate the Constitution." Following his ruling, U.S. District Judge David C. Bury blocked CBP from holding people who have been processed by agents for more than 48 hours after their "book-in time."

Within months, CBP began implementing Title 42, and rapidly expelling people from the U.S., often avoiding holding them in the Tucson Sector's eight stations by setting up ad-hoc remote processing sites. Critics have argued before that this fast-paced system gives short-shrift to asylum claims, and that Title 42—along with the previously-established and highly-controversial Migrant Protection Protocols—have allowed CBP to largely avoid dealing with asylum claims.

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Under U.S. law, if a person makes a credible claim that they fear being returned to their home country that person must be allowed to stay in this country to pursue their case. CBP officials must put that person into a process called "expedited removal" and ask people four questions to "ensure that each detainee is afforded the ability to articulate claims of fear. "

"CBP agents and officers have no discretion as to whether or not to refer an alien for a credible fear interview," the agency notes on its website. "CBP agents and officers do not make any determination on the validity of such claims and refer the person for an interview" with an asylum officer.

In 2019, CBP said that about 15 percent of people agents encountered "credible fear" claims, the first legal hurdle to seeking asylum in the U.S. However, the agency stopped reporting that figure as the Trump administration moved to implement MPP.

In the dozens of incidents documented in their report, KBI said that agents often told people they couldn't apply for asylum. In one instance, agents in McAllen, Texas, and later in Tucson, told a Honduran family that since they came to the U.S. illegally, they had no right to asylum and that they should attempt to seek asylum at the nearby border crossing.

In another case, agents told a Honduran man traveling with his wife and daughter that they could leave if family members in the U.S. paid for their travel. "But this was a lie," KBI said. "The family was instead taken to an airport and flow to Tucson, and then expelled."

Since October, CBP officials have expelled people nearly 865,000 times under Title 42, most of them single adults. However, the agency has also expelled nearly 92,000 people traveling as families, and 4,735 minors traveling without parents or guardians. 

In the Tucson Sector, Border Patrol agents used Title 42 to expel more than 14,000 children traveling without parents, and nearly 10,000 people traveling as families. Officers with the Office of Field Operations, which manages Arizona's border crossings, expelled 2,004 people traveling as families and 206 children traveling without parents or guardians.

However, some people have been allowed into the U.S. In late June, the director of Pima County's Emergency Management Office told County Administrator Chuck Huckelberry that in just a week, CBP released 615 to the county's Casa Alitas shelter. And, the county plans to spend $2 million to house asylum seekers in hotels if they test positive for COVID-19.

'You should have thought about that before you brought your daughter here'

In May, a Guatemalan women said that she crossed into the United States with her son and her minor-age brother.

She said that she was separated from her brother, and that agents refused to review power-of-attorney paperwork that showed she was his legal guardian. According to the complaint, the woman tried to show documents that proved she was fleeing Guatemala because family members had been murdered by a criminal group, but the agents refused to look at the documents, and one agent said they were likely fake because she comes from a "corrupt" country.

She was later expelled with her son to Nogales, she said. However, her brother was detained with other minors, and that was "the last time" she saw him, the complaint read.

In another instance, a Honduran woman said that she entered the U.S. with her daughter, and a neighbor and her daughter in February. The four were taken into custody, and the woman said that an agent called them "rats." Following procedure agents confiscated their jackets, and when the women asked for them back when they were about to be expelled to Nogales, Sonora, the agent "threatened to shoot them," and said that "you should have thought about that before you brought your daughter here."

"Don't move! I've got a gun and I'm not afraid to use it," the agent said, according to the complaint.

The agents also refused to give her a new diaper, and her daughter spent 18 hours in a soiled diaper, before they were expelled to Mexico, she said. After they were expelled, KBI filed a complaint, and weeks later, in late March, an official with CRCL said that "based on the information we received from other sources" the agency is investigating allegations of violations of civil rights and civil liberties in the Tucson Border Patrol Sector, including Nogales."

The CRCL official also said that the agency "plans to conduct an onsite investigation of the Tucson Sector later this year."

KBI said that "no additional details were provided about disciplinary actions for officers or recourse for victims of abuse." 

In another instance, a Guatemalan woman who was taken into custody in April near Sasabe, Ariz., said that she wanted to apply for asylum to avoid physical abuse at home, but agents told her that was "unavailable because of the pandemic." And, then the agents started "yelling" that she should have gone to a port of entry if she wanted asylum, and that she was breaking the law by coming this way.

"They said to her she was doing what the mafia does, crossing the border illegally," the complaint said. The agents also "threw the name of her abuser in her face and taunted her, telling her they were going to call him."

"She felt humiliated by the agent's actions," the complaint said. "By this time, she had three separate agents decline to help her apply for asylum. She was expelled to Mexico the next morning." 

In July, a Guatemalan woman said she crossed into the U.S. "in a big group" with her four children, and while the agent they encountered was "very nice to them," an agent at the station tossed documents, including an x-ray, that showed her son needs surgery in the next two months. When she tried to retrieve the documents, the agent told her "they belong in the trash," KBI said.

KBI said that CRCL responded to their complaint, saying that it was forwarded to Office of the Inspector General, but "no details were provided about disciplinary actions for officers or recourse for victims of abuse." 

Finally, a Cuban man who entered the U.S. near Yuma said he was separated from his wife and held in the Campo Border Patrol station in California. There he was "not allowed to shower for five days, and the lights were always kept on."

A Border Patrol agent interviewed him in Spanish, but told him that he could not present in his case for asylum, rather "that was for a courtroom with a lawyer."

KBI said the man "asked why the agent didn’t ask him why he left Cuba, and the agent still said no."

Five days later, agents expelled him to Tijuana in the early-morning without his wife. KBI said that a week later, he tried to cross again in Yuma "as his wife was still in CBP custody."

"He was then expelled to Nogales," KBI said.

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Paul Ingram/TucsonSentinel.com

A family at the Kino Border Initiative on July 28 in Nogales, Sonora.

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