DHS: Asylum seekers will be returned to Mexico as cases reviewed

Calling it a "historic action," Homeland Security Secretary Kirstjen Nielsen announced Thursday that people who seek asylum in the United States may be returned to Mexico for "the duration of their immigration proceedings." 

The announcement comes on the heels of two court loses Wednesday federal judges in Washington D.C. and San Francisco rejected two of the administration's attempts to limit how people can seek asylum. 

This includes a decision that again halts the government from instituting a ban on asylum for people who entered the country between the U.S. border crossings, and a second decision rejecting a policy that restricted the grounds for asylum that people can use to make their claims. 

"Today we are announcing historic measures to bring the illegal immigration crisis under control," Nielsen in a statement.  "We will confront this crisis head on, uphold the rule of law, and strengthen our humanitarian commitments.  Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico." 

"'Catch and release’ will be replaced with ‘catch and return.’ In doing so, we will 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," Nielsen claimed. "This will also allow us to focus more attention on those who are actually fleeing persecution," she said. 

Nielsen said that the U.S. government had notified the Mexican government about this policy and in response Mexico said that it would "commit to implement essential measures on their side of the border." 

"We expect 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," Nielsen said. 

Joanna Williams, the director of education and advocacy for the Kino Border Initiative, a bi-national Catholic organization that helps migrants in Nogales, Ariz., said that her group was "deeply concerned about this development because it is illegal, dangerous, and impractical. 

"U.S. influence in the region has  contributed to the conditions that force people to flee, but in this decision the government is shirking their responsibility for that damage. Simply put, 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. 

"It is tragically ironic that the decision was announced just a few days before Christmas, when we remember that Mary, Joseph and Jesus also had to flee and seek refuge, just as so many men, women and children are doing today," she said. 

The new policy will leave hundreds in Mexico as the U.S. immigration system has slowed to a crawl amid increasing court backlogs, and advocates have said that by leaving often vulnerable people in the borderlands, they will be preyed upon by gangs, or pressured into trying to cross illegally by drug cartels. 

Five days ago, two teenagers from Honduras were stabbed and strangled in an alleyway in Tijuana, the victims of an apparent robbery attempt. The boys, their ages estimated at 16 and 17, were staying with another teenager at a shelter for migrants when they were killed, said the prosecutor's office in the Mexican state of Baja California. 

Two men and a woman were arrested on Thursday for the murders, the prosecutor's office said. 

"The administration is creating additional chaos at the border, not reducing it. Today’s announcement, ‘effective immediately,’ comes with no regulations or guidance. It is impossible to see how officials will be able to implement these changes in an orderly fashion," said Jacinta Ma, the director of policy at the National Immigration Forum. "This policy squelches due process for people seeking asylum. We do not know where asylum seekers will go or be placed in Mexico, and neither will attorneys who might represent them," Ma said. 

In data published by CBP, in the fiscal year of 2018, around 93,000 people made "credible fear" claims. Border Patrol agents apprehended 54,690 people, or nearly 60 percent of those who asked for credible fear, while the remainder, or 38,269 arrived at U.S. ports. 

From 2017 to 2018, the number of credible fear claims have jumped 67 percent, CBP data showed. 

CBP officials will place the migrants in a process called  "expedited removal." If a person makes a claim of "credible fear," saying they fear returned to their home country because they could be harmed, an agent or officer is required to take their sworn statements, and forward those claims to asylum officers with U.S. Citizenship and Immigration Service, another part of DHS. 

For the last several months, Nielsen and other administration officials have complained that "legal loopholes" allow people to stay in the United States while their case winds through the court system. On Thursday, Nielsen said that the United States has "an overwhelming asylum backlog of more than 786,000 pending cases." 

This follows a long-term trend going back to 2008. In 2016, there was a backlog of around 521,000 cases. 

Data shows from the Transactional Records Access Clearinghouse, a non-partisan project based at Syracuse University, shows that as of November 30, there are 809,041 cases, a 50-percent increase compared to the 542,411 cases that were backlogged when the Trump administration was ushered into office. 

This does not include an additional 330,211 previously completed cases that were re-opened by Trump administration officials, said TRAC. 

"Most of these claims are not meritorious—in fact nine out of ten asylum claims are not granted by a federal immigration judge. However, by the time a judge has ordered them removed from the United States, many have vanished," Nielsen said. 

Data from TRAC showed that in 2018, 35 percent of people received asylum and 39 percent can remain in the United States. Additionally, during this year, only about 573 people or 1.4 percent were denied asylum because they failed to appear. This may be attributable to a sudden shift in the availability of attorneys through pro bono efforts. As TRAC noted, "these efforts picked up speed after the asylum seekers from Central America - many involving mothers with children -- began arriving in large numbers beginning in 2014." 

 However, cases that began in 2014 may have just worked through the court system due to frequent delays in the court system, which has become increasingly moribund, and with the current backlog would take about three-and-a-half years to work through just the pending cases, TRAC said. 

Nielsen did not say how the courts would deal with the current backlog, or if the government would fast-track cases for people in Mexico, saying only that DHS believes that it expects the number of "illegal immigration and false asylum claims" to decline, and that "more attention can be focused on more quickly assisting legitimate asylum-seekers, as fraudsters are disincentivized from making the journey." 

Nielsen also claimed that "precious border security personnel and resources will be freed up to focus on protecting our territory and clearing the massive asylum backlog," though she didn't make clear how the shift would free up agents and officers. 

Previous efforts to "meter" or otherwise block people from asking for asylum at the ports may be linked with a large increase in the numbers of people crossing the U.S.-Mexico border in Yuma and Lukeville, Ariz., to turn themselves over to Border Patrol and ask for asylum.