To: Members of the Biden transition agency review team for the Department of Homeland Security
CC: Nominee for Secretary of the Department of Homeland Security Alejandro Mayorkas, Director of the Domestic Policy Council designate Susan Rice, National Security Advisor designate Jake Sullivan
Re: Ensuring humanitarian border reception
Sent via email
January 14, 2021
On behalf of Human Rights Watch, I write to offer recommendations to operationalize the commitment of President-elect Joe Biden to build a “fair and humane” immigration system with respect to southern border policies. The Biden administration can and should act quickly and resolutely to provide a fair asylum system and humane treatment of all migrants at the US border.
Human Rights Watch has documented how for the past four years, the administration of President Donald Trump has worked relentlessly to decimate the US asylum system, holding migrants in inhumane and dangerous detention conditions at the border and turning away tens of thousands of vulnerable asylum seekers. Those asylum seekers have then often been stranded in dangerous and inhumane conditions in Mexican border cities or swiftly returned to potential harm in their countries of origin or other countries of transit with no meaningful due process. Our research shows that the consequences of returning those in need of protection from danger can be catastrophic – resulting in sexual assault, torture, and death. Abusive border measures such as the Migrant Protection Protocols (MPP) and metering expose asylum seekers to harm in Mexico and deny them due process.
In the immediate future, a rise in the number of people arriving at the US-Mexico border to seek asylum in the United States is likely. The US Agency for International Development (USAID) estimates that two powerful hurricanes this year have left hundreds of thousands of people in emergency shelters and impacted over five million people in Guatemala and Honduras. People forced to flee gang or other violence in Central America or elsewhere, meanwhile, have – under the Trump administration’s ill-justified Covid-19 summary expulsion order – been denied a fair opportunity to seek asylum. Any increase in border arrivals can be addressed in a fair, efficient, and rights-respecting manner that also protects public health by ending summary expulsion and return, building out a humanitarian reception system, providing sufficient resources and structural reforms to process asylum claims fairly and efficiently, and acting quickly to address agency impunity.
Ending Summary Expulsion and Return
Some of the most urgent actions the Biden administration should undertake will include rolling back a series of illegal and abusive measures that allow summary expulsions and returns of asylum seekers. These include the Suspending the Introduction of Certain Persons from Countries Where a Communicable Disease Exists” (hereinafter CDC Order), along with the corresponding Department of Homeland Security (DHS) Order, “Temporary Travel Restrictions;” the “metering” policy limiting the number of asylum seekers allowed into ports of entry; and the Asylum Cooperative Agreements (ACAs) with El Salvador, Honduras, and Guatemala.
Many of these policies have had the effect of stranding asylum seekers in dangerous Mexican border cities where they have no meaningful access to due process or legal representation, often leaving them no choice but to live in unhygienic camps and shelters without adequate measures to ensure social distancing amid the Covid-19 pandemic. These include the approximately 20,000 asylum seekers still waiting in Mexico with pending hearings in US immigration courts,  those who have been subject to “metering” or limitations on asylum seekers into ports of entry, and some of those expelled under the CDC order. Almost 1,000 asylum seekers have been transferred to Guatemala under the ACA. We urge you to move quickly to end these programs, taking into account the following recommendations which address challenges related to processing capacity at ports of entry.
As top-line matters, we urge President-elect Biden to commit to an immediate and full reversal of the Title 42 CDC Order, particularly given media reporting that links its promulgation not to public health concerns, but political ones, while taking rational, evidence-based, non-discriminatory measures to ensure public health without violating the right to seek asylum. We welcome the president-elect’s commitment to ending the abusive MPP and Asylum Cooperative Agreements. We urge the administration to do so immediately upon taking office and while simultaneously acting swiftly to transform border reception to a humanitarian model as detailed further below. With respect to a rapid roll-back of border expulsion and return programs:
- Asylum seekers should be removed from the MPP program as expeditiously as possible, while ensuring the process for doing so is orderly. To do so:
- DHS should first and foremost accept and grant, on a rolling basis, parole requests from at least the following groups that are at a higher risk “not amenable to MPP,” as that phrase is used in MPP policy guidance, and their families: older people, people with health conditions that put them at increased risk of complications from the virus that causes Covid-19, people who are pregnant, have medical conditions requiring specialized treatment or care, are living with a disability or chronic health condition, or who are lesbian, gay, bisexual, or transgender. DHS should also very quickly develop and implement a plan to allow all others placed in the MPP to report to a US border crossing and be allowed to reenter the United States pending resolution of their asylum claims. This plan should not require people to wait until their next scheduled immigration court hearing.
- The plan should also make provision, in coordination with the US Department of State, for the option of pre-processing at a US consulate in Mexico or in other countries where people placed in the MPP have relocated. That processing would consist of identity confirmation and should also make provision for Covid-19 testing, adequate resources to practice safe hygiene and social distancing, and safe transport for asylum seekers to the United States. It should include financial support and personal protective equipment (PPE) supplies for shelter networks throughout Mexico and Central America that have provided care to asylum seekers throughout the implementation of the MPP program and other policies that resulted in asylum seekers being turned back, often using their own resources to do so.
- Ensuring the correct information reaches as many asylum seekers as quickly as possible will be critical to maintaining an orderly process in ending the MPP program and to providing redress for those asylum seekers improperly returned or expelled by other anti-asylum policies. Doing so will thus require a robust public communication plan providing adequate notice of these and any other arrangements by a variety of means, including regular radio announcements in Spanish, Portuguese, English, French, Creole, and the most common Indigenous languages spoken in Guatemala, including K’iche’, Q’eqchi’, Kaqchikel, and Mam. DHS should coordinate with the Department of State, the Office of the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), the Mexican government, and civil society organizations, including shelters in Mexico, to implement these outreach efforts.
- Because Customs and Border Protection (CBP) has already screened and collected identifying information for asylum seekers in the MPP program, as well as those transferred under the ACA agreements, the initial process for paroling in those persons in particular will be only a matter of identity confirmation, notwithstanding health screening measures that may be necessary as part of renewed inspection and entry procedures for all border crossers, and should not significantly impact port of entry operations.
- Asylum seekers formerly subject to summary expulsion or return policies should not be detained, but rather paroled into the United States with quarantine or other measures as necessary for public health. DHS, along with the Department of Health and Human Services (HHS), should act quickly to increase its capacity to accomplish appropriate health screenings and quarantines as warranted by public health standards of not only asylum seekers, but all international travelers. The CDC Order giving CBP the power to expel asylum seekers has no justification on public health grounds, and Human Rights Watch has repeatedly warned that the order violates US obligations to asylum seekers under US and international law. CBP also has a longstanding record of detaining migrants, including families and children, in grossly inhumane and dangerous conditions. More than 91 percent of asylum seekers have family or close friends in the United States, meaning many asylum seekers could likely be released to those friends and family members for quarantine and in accordance with public health measures.
- For those asylum seekers in need of quarantine space and for whom there are no such spaces in existing shelters, CBP should consider using hotels along the border to house asylum seekers in quarantine. Hotels have been used successfully by a number of other countries to quarantine newly arrived travelers, including Mexico, providing comfortable and appropriate accommodations with the added potential benefit of infusing money into pandemic-damaged economies. DHS already has existing contracts with major hotel chains along the border and recently used hotels improperly to detain unaccompanied children and families prior to expelling them under the CDC Order. If hotels are used for quarantine, DHS should refrain from contracting with private security companies, given existing concerns around transparency and accountability, and instead use those resources to contract with healthcare providers trained in Covid-19 response. Neither CBP nor ICE should be tasked with quarantining asylum seekers.
- DHS should coordinate closely with shelter networks when releasing asylum seekers to ensure the transportation process is as safe and orderly as possible.
- Additionally, those asylum seekers whose immigration cases were terminated or otherwise closed by a judge under the MPP program, including those who received in-absentia orders and regardless of whether any appeal was made, should be given a chance to re-apply for asylum with no prejudice.
Building out a Humanitarian Reception System
If the incoming Biden administration is to follow through on the promise of a more humane immigration system, it will need to turn away from measuring success by the number of asylum seekers border agents manage to keep out, but rather by its success in meeting refugee protection and public health standards.
To that end, the incoming administration should as soon as possible
- Begin increasing the number of appropriately trained personnel – such as asylum officers, doctors, child-care specialists, mental health services professionals, Honduran, Guatemalan and Salvadorian sign language interpreters, and other first responders trained to care for trauma victims – and resources – such as rapid Covid-19 testing kits –at the southern border using funds currently allocated to the immigration enforcement and detention components of DHS (already in keeping with the administration’s stated plans).
- It should also move toward building up a response from the Federal Emergency Management Agency (FEMA), another agency under the DHS umbrella trained to provide humanitarian support. FEMA’s operation model allows it to coordinate with and assign federal assets to local partners, including individuals and non-profits, and the Biden administration should use that model to partner with community-based organizations, faith-based organizations, and other NGOs able to provide humanitarian support services. The public-private partnerships established in the United States for refugee resettlement are another example of effective and humane management of newcomers, including traumatized people, that combines welcoming reception and transitioning to integration and self-sufficiency.
DHS’ October 2020 Homeland Threat Assessment acknowledged that the majority of arriving migrants pose no threat to national security or public safety but claimed that an increase in border arrivals could stretch government resources, preventing border agents from focusing on actual threats. Any claims by DHS about capacity need to be carefully vetted given the agency’s efforts to intentionally mislead Congress and the public during the last increase of mostly asylum-seeking families and children in 2018: a DHS Office of the Inspector General (OIG) report found that while CBP claimed to have reached capacity, it had actually stopped processing asylum seekers altogether at several ports of entry and turned asylum seekers away at other ports of entry despite there being existing detention capacity. Another May 2019 report found that CBP is capable of processing migrants within a couple of days, yet CBP often held asylum seekers in squalid and overcrowded temporary detention facilities well beyond the 72-hour limit.
To encourage accurate dissemination of information and to ensure smooth and orderly border processing, the administration should:
- Immediately place appointees in key leadership and communications positions throughout both DHS and its subsidiary agencies. By doing so, the incoming administration can take an active role in stopping further misinformation coming from the agency.
- CBP should act as quickly as possible to transfer asylum seekers to the existing network of shelters along the US side of the border that has already been working to build out its capacity and to design and implement public health procedures to limit the spread of Covid-19.
- DHS, including CBP and FEMA, should collaborate closely with that network to ensure shelters have the resources they need to receive asylum seekers and to help them reach their family members or other networks of support in the United States, where they will pursue their asylum claims.
- In the process of both providing redress to asylum seekers and moving forward with humane border policies, the Biden administration should not use expedited processing, whether the pre-Trump expedited removal process, or the newer “Humanitarian Asylum Review Process” (HARP) and “Prompt Asylum Claim Review” (PACR) processes.
- Additionally, the administration should roll back US Department of Justice policies that have criminalized immigration, and work with Congress to ensure the immigration court system is made independent.
- To avoid contributing to the existing immigration court backlog, the administration should also work with Congress to ensure asylum seekers at the border are no longer automatically placed into removal proceedings, which make their asylum claims defensive. By contrast, people who apply from within the United States go through the more appropriate affirmative application process first. If a US Citizenship and Immigration Services (USCIS) asylum officer denies their claim for protection, they can raise a de novo asylum claim as a defense against deportation from within removal proceedings before a judge. Instead of these separate pathways, all asylum seekers should uniformly go through the same affirmative process and should only need to use asylum as a defense against removal in those cases where a trained USCIS asylum officer has already rejected the claim.
Acting Quickly to Address CBP’s and DHS’s Culture of Impunity
The Biden administration should quickly push for transparency and accountability within DHS, and particularly within CBP.
Instead of treating asylum seekers with dignity and abiding by US and international laws, CBP has subjected thousands of people to a series of abuses, including family separation, lengthy detention in freezing border jails or dog kennel-style cages with inadequate access to personal hygiene, leading to several deaths of children in CBP custody in recent years. After CBP successfully petitioned Congress for additional emergency funding, claiming to be overwhelmed by the number of children and families, CBP then misspent that money on dog food and dirt bikes instead of the food and medicine for which it was designated.
CBP, the largest law enforcement agency in the United States, has a long and well-documented history of racism, excessive use of force, and human rights abuses, as well as corruption by drug cartels, problems that are exacerbated by the agency’s lack of transparency and accountability and its substandard vetting criteria in the process of surge hiring new agents. Not only do these serious issues make the border less secure, but they may contribute to mental health conditions or emotional distress for CBP agents themselves, who have endured low morale and rising levels of suicide that are disproportionate compared to other law enforcement agencies.
A volume of evidence shows that CBP’s existing accountability mechanisms have failed to effectively address abuse and misconduct. Records of misconduct and abuse are shrouded in secrecy: Though a Cato Institute study found strong evidence of CBP’s misconduct and disciplinary infractions between 2006 to 2016, it was “virtually impossible to assess the extent of corruption or misconduct in U.S. Customs and Border Protection . . . because most publicly available information [was] incomplete or inconsistent.” The agency also suffers from a failed disciplinary system, taking “no action” in 95.9 percent of complaints made against agents including verbal abuse, theft of property, and physical assault, over a three year-period.
In addition to the recommendations outlined in the Big Book Border Response Chapter, Topic #1, Subtopic #1, Priority Action #2, concerning attorney, congressional and third-party monitoring access to initial border processing locations, the Biden administration should work closely with Congress to create legislation addressing these deeply entrenched problems. In the short term, the administration should work as quickly as possible to address CBP’s pervasive culture of impunity by doing the following:
- Staff all CBP detention and processing facilities and ports of entry with officials mandated to ensure impartial oversight and accountability. Hiring preference for these oversight officials should be given to people from outside ICE and CBP. Such persons should report regularly to both the Detention Ombudsperson, referenced below, and the relevant Congressional committees (such as the Senate Committee on Homeland Security and Government Affairs and the House Committee on Homeland Security). They should also be given a process by which to report misconduct to the CBP Office of Professional Responsibility (OPR), which investigates employee corruption and misconduct.
- Appoint staff to leadership and media communications roles, including staff tasked with rooting out and combating the spread of misinformation across social media platforms. That staff should work quickly to disseminate clear information about the border reception plan and should coordinate with the team responsible for asylum seeker outreach. No staff should be allowed to comment publicly or in any official capacity on the merits of asylum seekers’ claims.
- Bar CBP agents from continuing to perform nonrefoulement screenings, as they are not trained asylum officers and should have no role in adjudicating claims.
- Promptly appoint an Immigration Detention Ombudsperson tasked with investigating misconduct and human rights abuses. The CBP OPR staff should be compelled to disclose information requested by the Detention Ombudsperson.
- Require CBP to publish within 24 hours any use-of-force incidents that involve serious injury or death.
- Require CBP agents to identify themselves by name and rank when interacting with civilians.
- Begin hiring more CBP OPR staff – at least 300 more OPR staff are needed to place CBP at levels comparable to the size of the internal affairs offices of that of the FBI or other law enforcement agencies.
- Implement a more rigorous investigation and disciplinary process that requires misconduct be documented by supervisors or agents with knowledge of the misconduct incident and referred to the OPR office, instead of the Labor and Employee Relations office, where cases are often closed regardless of whether allegations of misconduct are substantiated or not.
- Implement an agency-wide process for receiving and documenting complaints, including a database where those complaints can be tracked and made available to the public.
- Initiate an outside, independent review of the Border Patrol hiring and training program, and implement a moratorium on hiring new Border Patrol agents until hiring standards can be reviewed, altered, and/or raised.
- Begin hiring other staff within CBP more appropriately trained to interact with and process asylum seekers, including medical and mental health professionals.
- Begin hiring and training more asylum officers within USCIS. In the short term, they may need to continue performing credible fear interviews by telephone, but officers should eventually be posted at the border where they can conduct fear screenings in person.
- Work with Congress to create a border accountability taskforce for every Border Patrol sector composed of stakeholders and advocates and give each taskforce the power to subpoena records and testimony in the process of conducting investigations. That taskforce should also be empowered to make policy recommendations.
Please be in touch with Ariana Sawyer, US border researcher, at email@example.com should you have any questions regarding this letter or our recommendations.
Associate Director, US Program
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 American Immigration Council, “Why Caution is Needed Before Hiring Additional Border Patrol Agents and ICE Officers,” Josiah Heyman, April 2017, https://www.americanimmigrationcouncil.org/sites/default/files/research/why_caution_is_needed_before_hiring_additional_border_patrol_agents_and_ice_officers_final.pdf (accessed December 16, 2020).
 Justin Rohrlich and Zoë Schlanger, “’Bodies and minds are breaking down’: Inside US border agency’s suicide crisis,“ Quartz, July 2, 2019, (accessed December 16, 2020).; https://www.nteu.org/legislative-action/congressional-testimony/cbp-1-14 (accessed December 16, 2020).; https://qz.com/1738901/us-border-officers-die-by-suicide-30-percent-more-often-than-other-cops/ (accessed December 16, 2020).https://qz.com/1656790/inside-the-us-border-agencys-suicide-crisis/ (accessed December 16, 2020).; “Statement on CBP Morale Issues,“ National Treasury Employees Union news release, January 14, 2020, https://www.nteu.org/legislative-action/congressional-testimony/cbp-1-14 (accessed December 16, 2020).; Justin Rorhlich, “US border officers die by suicide 30% more often than other cops,“ Quartz, October 31, 2019, https://qz.com/1738901/us-border-officers-die-by-suicide-30-percent-more-often-than-other-cops/ (accessed December 16, 2020).
 Guillermo Cantor, Ph.D. and Walter Ewing, Ph.D., “Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered,” American Immigration Council, (August 2, 2017), https://www.americanimmigrationcouncil.org/research/still-no-action-taken-complaints-against-border-patrol-agents-continue-go-unanswered (Accessed December 17, 2020); see also Daniel E. Martinez, Ph.D., Guillermo Cantor, Ph.D. and Walter Ewing, Ph.D., “No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse,” American Immigration Council, May 4, 2014, https://www.americanimmigrationcouncil.org/research/no-action-taken-lack-cbp-accountability-responding-complaints-abuse (accessed December 17, 2020). (of 809 complaints of alleged abuse lodged against Border Patrol agents between January 2009 and January 2012 - including cases involving physical, sexual, and verbal abuse - 97 percent resulted in “No Action Taken”); Dana Liebelson, “A CBP Officer Shot A 21-Year-Old American In the Head. 6 Months Later, CBP Won’t Say Why,” HuffPost, (Aug. 19, 2019), https://www.huffpost.com/entry/cbp-shooting-unarmed-vehicles_n_5d24cd0ae4b0583e4828365f (accessed December 17, 2020).
 Alex Nowrasteh, “Border Patrol Termination Rates: Discipline and Performance Problems Signal Need for Reform,” CATO Institute (November 2, 2017), https://www.cato.org/publications/policy-analysis/border-patrol-termination-rates-discipline-performance-problems-signal (accessed December 17, 2020).
 Guillermo Cantor, Ph.D. & Walter Ewing, Ph.D., supra 8.; A.C. Thompson, Years Ago, the Border Patrol’s Discipline System Was Denounced as ‘Broken.’ It’s Still Not Fixed, Propublica, (June 20, 2019), https://www.propublica.org/article/border-patrol-discipline-system-was-denounced-as-broken-still-not-fixed (accessed December 17, 2020).
 Chris Rickerd, “Whistleblower Says CBP Has Culture of Impunity and Violence,” American Civil Liberties Union, Augus 15, 2019, https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/whistleblower-says-cbp-has-culture-impunity-and (accessed December 16, 2020).
 Debbie Nathan, ”An Asylum Officer Speaks Out Against the Trump Administration’s ’Supervillian‘ Attacks on Immigrants,” The Intercept, September 13, 2019, https://docs.house.gov/meetings/JU/JU01/20190906/109889/HHRG-116-JU01-Wstate-DrakeS-20190906-SD004.pdf (retrieved January 6, 2021).
 “Glaring Need for Robust Structures of Accountability and Hiring at CBP,” America’s Voice new release, September 19, 2018, https://americasvoice.org/press_releases/glaring-need-for-robust-structures-of-accountability-and-hiring-at-cbp/ (accessed December 16, 2020).