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Five Takeaways From the Lawsuit Over Trump's Plan to Keep Asylum Seekers in Mexico

The lawsuit, filed on behalf of 11 asylum seekers who have been returned to Mexico, alleges Border Patrol agents did not assess whether the migrants had reason to "fear for their lives."
Border Patrol agents shine a light through the border wall as migrants search for a way to cross.

Customs and Border Protection officers shine a light onto the Mexican side of the border in Tijuana, Mexico. A new lawsuit alleges that Trump's policy of returning asylum seekers to Mexico is illegal. 

Since January 29th, when United States officials forced a single Honduran asylum seeker to cross a pedestrian bridge from California back into Tijuana, the Trump administration has sent dozens of asylum seekers back to Mexico under its controversial "Migrant Protection Protocols," commonly referred to as the "Remain in Mexico" plan. On Thursday, after news broke that the government had, for the first time, returned children who were seeking asylum with their families, multiple prominent civil rights groups filed a lawsuit against the Trump administration challenging the Remain in Mexico policy.

The lawsuit was filed on behalf of 11 Central American asylum seekers who have been returned to Mexico, as well as multiple advocacy organizations. Counsel for the case includes the American Civil Liberties Union, Southern Poverty Law Center, and the Center for Refugee and Gender Studies.

While each of the asylum seekers named have unique cases, they all have something in common, according to the lawsuit: They are all in Tijuana, and they are all currently "fearing for their lives." The lawsuit's initial descriptions of each of the asylum seekers all end the same:

Plaintiff John Doe fled Guatemala to seek asylum in the United States. On January 30, 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently in Tijuana, where he fears for his life.

Plaintiff Gregory Doe fled Honduras to seek asylum in the United States. On January 30, 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently in Tijuana, where he fears for his life.

Here are five key takeaways from the new lawsuit.

1. Asylum Seekers Have Not Been Asked If Their Lives Might Be in Danger in Mexico, the Lawsuit Alleges

Refugee protections, both in the U.S. and international law, forbid what is called refoulement: returning someone to a country where they are likely to face persecution. As part of the normal asylum process, or even routine removal proceedings, U.S. authorities normally ask a series of affirmative questions to try to ensure the U.S. is not returning someone to a country where that person could be hurt or killed.

However, the lawsuit alleges that U.S. Customs and Border Protection has returned some asylum seekers to Mexico without first asking whether or not those asylum seekers might face danger or persecution in that country. The lawsuit claims that "almost none" of the asylum seekers were asked by CBP about their fears of going back to Mexico. And even when multiple migrants did explicitly and openly express fear of return to Mexico, the lawsuit alleges, officers either did not ask follow up questions, or returned them to Mexico without explanation.

One example stands out. A plaintiff named as Ian Doe claims he was never asked if he was afraid of returning to Mexico. When Ian told a CBP officer that he did not feel safe in Mexico, Ian says the officer replied that "it was too bad. He said that Honduras wasn't safe, Mexico wasn't safe, and the U.S. isn't safe either. ... He told me I'd have to figure out how to survive in Tijuana."

Multiple asylum seekers also reported being asked to sign documents written in English, a language they do not understand.

2. Multiple of the Asylum Seekers Have Already Faced Violence in Mexico, Reportedly

Much of the lawsuit underscores that Mexico is not a safe country for asylum seekers to wait in. A strong part of this argument comes from the violence multiple of the plaintiffs report having already faced in that country.

One plaintiff, named as Howard Doe, reports being robbed at gunpoint just days before he first entered the U.S. to ask for asylum. The two men who mugged him told him that they knew he was Honduran, and that they would kill him if they saw him again, according to the lawsuit.

Another plaintiff, Alex Doe, was sleeping on the beach in Tijuana with other migrants one night when a group of incensed town residents attacked them, throwing stones at the migrants as they fled, as he reports in the lawsuit.

The harm asylum seekers reportedly faced, much of it discriminatory violence toward migrants and Central Americans, did not just come from civilians. Mexican police allegedly stopped and harassed multiple of the asylum seekers, and forced Ian Doe to pay a 1,500 peso bribe (about $77) to avoid being taken to jail.

3. Mexican Cartels Might Be Hunting for at Least One of the Asylum Seekers

While traveling northwards through Mexico, the plaintiff named as Howard Doe says that he was kidnapped by members of a Mexican drug cartel. He and other migrants were held for two weeks, before Howard managed to escape. Now, according to the lawsuit, Howard fears that "the well-connected cartel will find him in the border region and torture and murder him for escaping."

In a study of the situation migrants face in Mexico, the advocacy organization Human Rights First reported that cartels frequently target migrants for kidnapping, extortion, trafficking, and robbery.

4. One Asylum Seeker Reports Facing Anti-LGBT Persecution in Honduras, and Might Also Be Targeted in Mexico

One of the plaintiffs, named as Bianca Doe, fled anti-LGBT persecution in her home country of Honduras, according to the lawsuit. Bianca, a lesbian woman, reports she became pregnant by a man who raped her because of her sexual orientation. When she gave birth to a boy, a judge reportedly stripped the child of her custody, citing her sexuality as reason to consider her unfit to be a parent, and put the child in the custody of her rapist.

Now, even though Bianca has fled her home country, she might still face anti-queer persecution in Mexico. Human Rights First's report, along with many other reports from human rights groups, found Mexico to be a dangerous country for members of the LGBT community.

The lawsuit dedicates a significant portion of its arguments to describing how the Remain in Mexico plan makes it intolerably difficult for asylum seekers to access legal representation while in Mexico.

Although the asylum seekers themselves are the most prominent plaintiffs in the lawsuit, multiple of the other plaintiffs are non-profit legal organizations who argue that the new policy has made it extremely difficult for them to represent their clients, because doing so involves sending attorneys to Mexico.

CBP has returned asylum seekers to Mexico with information for hotlines to call for lawyers in the U.S., but advocates report that the numbers for hotlines do not work when called from outside the country. Attorneys also note that, even if they could teleconference with their clients, a phone call or video conference is a poor substitute for an in-person visit with a lawyer. Part of the asylum process often involves sharing experiences of deep trauma and persecution with one's lawyer. Telling the story of how one was raped or tortured can be much more difficult over the phone.

In a statement provided to Pacific Standard by the Tahirih Justice Center, a legal non-profit and one of the plaintiffs in the suit, Archi Pyati, chief of policy and programs, explained that attorneys need to be able to meet in person with their clients to effectively prepare a case.

"Survivors also need to be in a safe living environment and have access to mental and physical health care to heal from trauma," Pyati wrote. "For these reasons, we provide precisely these services in each of our five offices across the country, but we cannot do that effectively if asylum seekers are forced to wait in Mexico for their cases to be heard."