A new anonymous whistleblower has accused the Trump administration of requiring U.S. asylum officers to enforce an illegal and immoral policy “clearly designed to further this administration's racist agenda of keeping Hispanic and Latino populations from entering the United States.”
The policy in question is the so-called Migrant Protection Protocols, or MPP, the controversial program requiring that most asylum seekers who attempt to request protections in the United States via the southern border be returned to Mexico to await their immigration proceedings there rather than inside the U.S.
Under the MPP, which was first announced at the end of last year, more than 50,000 migrants have been sent to dangerous Mexican border towns to await asylum proceedings in the U.S. — most of which are being carried out in tent courts on the U.S. side of the border, to which both attorneys and the press have reported being denied access.
Besides due process concerns, immigration attorneys and advocates say the program places migrants in dangerous and inhumane conditions, with many migrants in the program reporting that they’ve been subjected to kidnappings, rape and other violent crimes south of the border. Many others simply disappear and fail to show up for hearings.
The whistleblower is an asylum officer who recently resigned from U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security that oversees the legal immigration system, including asylum.
In an email written in August to USCIS management, the asylum officer provided a detailed explanation of why he or she refused to participate further in the MPP, starting with the assertion that “the program violates U.S. immigration law.”
The Refugee Act of 1980 provides that anyone physically present in the United States, even if they entered without papers and regardless of their immigration status, can request asylum.
The email, which was first published Tuesday by the Washington Post, was provided by the office of Sen. Jeff Merkley. It will be part of a comprehensive report on the Trump administration’s asylum policies that Merkley’s office plans to release this week.
The email argues that the administration policy, besides flouting federal immigration law, also violates U.S. obligations under international law, including the agreement under the 1967 Protocol on the Status of Refugees “to not discriminate against refugees on the basis of their race, religion, or nationality, and to not penalize refugees for their undocumented entry into the country.”
“However, the MPP both discriminates and penalizes,” the asylum officer writes, describing the program’s implementation as “arbitrary” and designed to punish migrants — particularly those from certain Central American countries — who attempt to seek asylum at the southern border.
“Participating in such a clearly biased system further violates our oath of office,” the whistleblower writes, concluding that even aside from questions of legality, the “process is still morally objectionable.” Officers who enforce it “would still be complicit in returning individuals to an unsafe and unreasonable situation.”
A USCIS spokesperson defended the MPP as “a lawful use of authority” and insisted that migrants will not be returned to Mexico if they can prove they are “more likely than not” to be persecuted or tortured south of the border.
“If at any time during the process an alien asserts a fear of return to Mexico, USCIS will interview that individual,” said the spokesperson. “If they meet the standard set forth in the guidance, they will not be returned to Mexico to await their next hearing.”
However, the guidance for implementing the MPP does not require that migrants be asked whether they fear persecution in Mexico before they are placed in the program, only that they be referred to a USCIS officer to assess the legitimacy of their fears if the migrants themselves bring it up. Lawyers argue that, in practice, this process results in migrants regularly being sent back to dangerous situations in Mexico despite making their fears known.
Taylor Levy, an El Paso, Texas, immigration attorney who works with migrants returned to Juárez under the MPP, told the Texas Observer in September that, in the previous six months, she hadn’t met any migrants who received an assessment after expressing a fear of returning to Mexico when they first turned themselves over to U.S. border officials.
Last week, the ACLU of San Diego filed a class action lawsuit against the Department of Homeland Security arguing that migrants who express a fear of returning to Mexico are being wrongly denied access to legal counsel before the crucial interview with USCIS where they must make the case against remaining in the MPP.
On Tuesday, U.S. District Judge Dana Sabraw in San Diego ordered the government to allow the plaintiffs in that case, a Guatemalan family who say they were assaulted and forced to take off their clothes at gunpoint by men in government uniforms while traveling through Mexico, to meet with their attorney before the interview to determine whether they should return to Mexico.
The MPP is the subject of multiple legal challenges by immigrants’ rights groups.
In April, a federal judge issued an injunction blocking implementation of the program, but it was overturned a month later by three federal judges on the Ninth Circuit Court of Appeals in San Francisco, allowing the administration to continue carrying out the policy at the border while its legal merits are debated in the courts.
The asylum officer noted that “assurances by the Mexican government that persons returned to Mexico under the MPP would receive work permits and protection were a key reason that the injunction has stayed. ... However, the Mexican government has not fulfilled its promise of providing work permits and protection.”
In an unusual move this summer, the union representing federal asylum officers filed a brief in the Ninth Circuit that called the MPP "fundamentally contrary to the moral fabric of our Nation," and articulated many of the same objections outlined in the whistleblower’s email.
At the beginning of the email to USCIS management, the asylum-officer whistleblower writes that he or she decided to memorialize their objections to the MPP in writing after “various meetings with Supervisory Asylum Officers last Thursday, August 8, 2019, and possible continued disciplinary action.” It’s unclear what kind of disciplinary action the officer may have received as a result of earlier attempts to challenge the MPP.