Magdalena,* a 30-year-old mother of two who is on the run from gangs in Mexico, has tried to claim asylum at the U.S. border three times. Each time, she has been turned away.
She fled her home in Mexico’s Guerrero state in January after gang members forced her to perform sexual acts when she refused to turn over her adolescent son to them, she said in a written declaration provided by her lawyer.
After sexually assaulting her, the gang members showed her a video of a man whose hands had been cut off. The message: This will happen to you if you refuse to comply.
She feared that the cartels’ long reach and collusion with police would leave her at risk anywhere in Mexico, so she fled to the official U.S. border crossing near San Ysidro, California, in late January and asked for asylum.
U.S. border officers turned her away, telling her to go to Grupo Beta, an arm of Mexican immigration services, before they would allow her to enter the border post to request asylum.
The second time she returned to the border, in early February, after consulting an attorney who agreed to take her case pro bono, a U.S. Customs and Border Protection (CBP) agent asked her if she knew about a president of another country – Magdalena couldn’t remember which, according to her declaration. He told her that in that country, “they are killing people who are Christians. Those are the people we are giving asylum to, not people like you. You do not qualify.”
President Trump’s first executive order banning refugees and nationals of seven Muslim-majority countries had given priority to religious minorities, and Trump said he was concerned about protecting persecuted Christians. But the order, since halted by federal courts, applied only to refugees seeking resettlement, not asylum seekers. U.S. statutes and treaty commitments continue to provide protections for those seeking asylum.
Border agents are not legally trained U.S. asylum officers and have no authority to reject asylum seekers on the grounds that they do not “qualify” for asylum.
When someone arrives at the border indicating fear or the intention to seek asylum, CBP agents must read a series of statements, including one relating to U.S. legal protections for those in fear of return to their home country. Both U.S. statute and regulations require that they be referred for a screening interview by an asylum officer, who is trained to assess potential eligibility for asylum or other protection.
Human Rights First has reviewed documents relevant to Magdalena’s case as part of recent research on asylum seekers being turned away by CBP agents across the U.S.-Mexico border. Her case is illustrative of a broader, concerning trend.
When another border agent asked Magdalena if she was afraid of the Mexican officials at the border in Tijuana, she replied that she was afraid to go back to Mexico, but not of those particular officers, as she had never interacted with them. Even so, she still didn’t trust them to protect her.
“Well, then you have to answer ‘no’ to the question, ‘are you afraid?’” the CBP agent instructed Magdalena.
A day later she returned to the border a third time with her American pro bono lawyer. CBP agents took Magdalena into custody, telling her lawyer they “would decide what she is eligible for.”
“Lady, are you dumb or just pretending? Quit playing games. You’re supposed to say you’re not afraid [to return to Mexico],” Magdalena says a border agent told her.
Given the prior refusals to allow Magdalena to request asylum, her lawyer had written emails to a CBP supervisor, stating that Magdalena was an asylum seeker and was requesting an interview with an asylum officer. CBP officers nevertheless returned Magdalena to Tijuana yet again. She says one officer told her that his colleague is “going to do whatever she can to stop you from ever coming in again.”
After Magdalena’s third attempt to seek protection, U.S. senator Dianne Feinstein’s office filed an inquiry with CBP regarding the case. In a response issued on March 15, CBP states that Magdalena never expressed fear of returning to Mexico.
This response is shocking. Evidence to the contrary includes Magdalena’s written declarations and the correspondence between Magdalena’s attorney and CBP officials.
Most asylum seekers can’t afford or find a lawyer before approaching a U.S. “port-of-entry” to seek asylum, and pro bono help is scarce, yet Magdalena’s lawyer alone represents three Mexican asylum seekers turned away in the last month.
Problems for asylum seekers at U.S. border crossings aren’t new. A 2016 report issued by the bipartisan U.S. Commission on International Religious Freedom found flaws in CBP’s implementation of border processes for asylum seekers including “certain CBP officers’ outright skepticism, if not hostility, toward asylum claims; and inadequate quality assurance procedures.”
Yet the blatant disregard for the law Magdalena experienced signals an alarming turn for the worse.
A complaint filed by the American Immigration Counsel in January 2017 indicated that Central Americans seeking asylum at crossing points in California, Arizona, and Texas are also being turned back without due process.
Human Rights First researchers, during a recent trip to the U.S. southern border, found that both Mexican and non-Mexicans had been blocked at several points along the border.
Trump has targeted immigrants and refugees with toxic rhetoric and policy. Yet the U.S. remains obligated by its own statutes and treaty commitments to provide protection to those who seek asylum at its border.
That includes non-refoulement: the principle of not sending refugees back to face persecution. Sending asylum seekers back into Mexico, without first referring them for protection screening, is a clear violation of law.
“From here on out, I’m asking all of you to enforce the laws of the United States of America,” Trump said to CBP earlier this year. Some U.S. border agents may be interpreting this instruction to mean exactly the opposite.
*Name changed to protect anonymity.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.
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