[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE COURT-ORDERED REIMPLEMENTA-
TION OF THE REMAIN IN MEXICO POLICY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
BORDER SECURITY, FACILITATION,
AND OPERATIONS
OF THE
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
MARCH 2, 2022
__________
Serial No. 117-47
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-641 PDF WASHINGTON : 2022
-----------------------------------------------------------------------------------
COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Sheila Jackson Lee, Texas John Katko, New York
James R. Langevin, Rhode Island Michael T. McCaul, Texas
Donald M. Payne, Jr., New Jersey Clay Higgins, Louisiana
J. Luis Correa, California Michael Guest, Mississippi
Elissa Slotkin, Michigan Dan Bishop, North Carolina
Emanuel Cleaver, Missouri Jefferson Van Drew, New Jersey
Al Green, Texas Ralph Norman, South Carolina
Yvette D. Clarke, New York Mariannette Miller-Meeks, Iowa
Eric Swalwell, California Diana Harshbarger, Tennessee
Dina Titus, Nevada Andrew S. Clyde, Georgia
Bonnie Watson Coleman, New Jersey Carlos A. Gimenez, Florida
Kathleen M. Rice, New York Jake LaTurner, Kansas
Val Butler Demings, Florida Peter Meijer, Michigan
Nanette Diaz Barragan, California Kat Cammack, Florida
Josh Gottheimer, New Jersey August Pfluger, Texas
Elaine G. Luria, Virginia Andrew R. Garbarino, New York
Tom Malinowski, New Jersey
Ritchie Torres, New York
Hope Goins, Staff Director
Daniel Kroese, Minority Staff Director
Natalie Nixon, Clerk
------
SUBCOMMITTEE ON BORDER SECURITY, FACILITATION, AND OPERATIONS
Nanette Diaz Barragan, California, Chairwoman
J. Luis Correa, California Clay Higgins, Louisiana, Ranking
Emanuel Cleaver, Missouri Member
Al Green, Texas Michael Guest, Mississippi
Yvette D. Clarke, New York Dan Bishop, North Carolina
Bennie G. Thompson, Mississippi (ex Andrew S. Clyde, Georgia
officio) John Katko, New York (ex officio)
Brieana Marticorena, Subcommittee Staff Director
Natasha Eby, Minority Subcommittee Staff Director
Zachary Wood, Subcommittee Clerk
C O N T E N T S
----------
Page
Statements
The Honorable Nanette Diaz Barragan, a Representative in Congress
From the State of California, and Chairwoman, Subcommittee on
Border Security, Facilitation, and Operations:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Clay Higgins, a Representative in Congress From the
State of Louisiana, and Ranking Member, Subcommittee on Border
Security, Facilitation, and Operations:
Oral Statement................................................. 4
Prepared Statement............................................. 6
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Prepared Statement............................................. 10
The Honorable John Katko, a Representative in Congress From the
State of New York, and Ranking Member, Committee on Homeland
Security:
Oral Statement................................................. 8
Prepared Statement............................................. 9
Witnesses
Mr. Blas Nunez-Neto, Acting Assistant Secretary, Border and
Immigration Policy, Department of Homeland Security:
Oral Statement................................................. 11
Prepared Statement............................................. 13
Mr. Benjamine ``Carry'' Huffman, Acting Chief Operating Officer,
U.S. Customs and Border Protection, Department of Homeland
Security:
Oral Statement................................................. 17
Prepared Statement............................................. 19
Ms. Emily Mendrala, Deputy Assistant Secretary, Western
Hemisphere Affairs, U.S. Department of State:
Oral Statement................................................. 22
Prepared Statement............................................. 24
Mr. Timothy Roemer, Director and Chief Information Security
Officer, Department of Homeland Security, State of Arizona:
Oral Statement................................................. 36
Prepared Statement............................................. 37
For the Record
The Honorable Nanette Diaz Barragan, a Representative in Congress
From the State of California, and Chairwoman, Subcommittee on
Border Security, Facilitation, and Operations:
Statement of the Women's Refugee Commission.................... 45
Statement of Human Rights First................................ 50
Statement of The Hope Border Institute (HOPE).................. 56
Letter From the Coalition for Humane Immigrant Rights (CHIRLA). 59
Statement of the California Welcoming Task Force............... 60
Statement of the Center for Gender & Refugee Studies (CGRS).... 61
Appendix
Questions From Chairwoman Nanette Diaz Barragan for the
Department of Homeland Security................................ 65
Questions From Chairman Bennie G. Thompson for the Department of
Homeland Security.............................................. 66
Questions From Ranking Member Clay Higgins for Blas Nunez-Neto... 67
Questions From Ranking Member Clay Higgins for Benjamine
``Carry'' Huffman.............................................. 69
Question From Chairwoman Nanette Diaz Barragan for Emily Mendrala 70
Questions From Ranking Member Clay Higgins for Emily Mendrala.... 70
Questions From Chairwoman Nanette Diaz Barragan for Timothy
Roemer......................................................... 71
Questions From Chairman Bennie G. Thompson for Timothy Roemer.... 71
EXAMINING THE COURT-ORDERED REIMPLEMENTATION OF THE REMAIN IN MEXICO
POLICY
----------
Wednesday, March 2, 2022
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border Security,
Facilitation, and Operations,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., via
Webex, Hon. Nanette Diaz Barragan [Chairwoman of the
Subcommittee] presiding.
Present: Representatives Barragan, Correa, Clarke, Higgins,
Guest, Bishop, and Clyde.
Also present: Representative Katko.
Chairwoman Barragan. The Subcommittee on Border Security,
Facilitation, and Operations will be in order. Without
objection, the Chair is authorized to declare a recess at any
time.
Thank you for joining today's hearing to examine the court-
ordered reimplementation of the Migrant Protection Protocols,
MPP. Donald Trump's Remain in Mexico policy, or MPP, was
inhumane. Rather than upholding U.S. asylum laws, he dismantled
the asylum process and forced migrants to wait in dangerous
conditions in Mexico until their asylum hearing. Under
President Trump, there were more than 1,500 documented reports
of kidnapping, torture, murder, rape, and assault amongst the
70,000 migrants he enrolled into MPP. That is why the Biden
administration is working to terminate this program.
Earlier this year, I was thrilled to welcome some of those
MPP enrollees into the United States under President Biden's
wind-down. Unfortunately, since that time, a Texas district
court ordered the Department to restart the Remain in Mexico
policy. To date, we have seen about 700 enrolled into MPP in
the San Diego, Rio Grande Valley, El Paso, and Laredo Sectors.
I visited some of these migrants last week in San Diego and
Tijuana, and I was disappointed with what I saw. When this
reimplementation was rolled out, we were told that the program
would be improved. We were told that there would be more access
to legal counsel and it would be more humane for migrants.
An important role of Congress and this committee is to
conduct oversight of executive agencies. We are here today to
examine how the administration has handled the reimplementation
of MPP and whether they have met the high standards required
for working with migrants presenting asylum claims. I argue
that more work needs to be done.
While at the port of entry in San Diego, I spoke to an
elderly father who travelled through Central America to seek
asylum with two young adult sons. He was entering the United
States for his court hearing. One of his children was kidnapped
on the journey to the United States and is still missing. Upon
arriving at the border, he and his remaining son were
separated. His 23-year-old son was allowed to stay with family
in the United States. This man was enrolled in MPP. This man
was elderly, illiterate, and could not speak English, nor could
he write or read in Spanish. Despite his vulnerabilities, he
was told to wait in Mexico.
Despite the emphasis this administration places on family
unity and the trauma these men had already suffered, this
family was separated. This family separation was not a unique
incident. We have heard similar reports from across the border,
including of pregnant women being separated from their husbands
and partners. This is not in line with our values. I urge this
administration to expand its definition of a family unit,
beyond just minor children and their guardians, to keep
families together.
Unfortunately, family separation wasn't the only problem I
saw at the port of entry. The elderly migrant asked for my help
and repeatedly showed me his Notice to Appear. However, I was
told I couldn't take a picture of his information. I was told
we could follow him to court and get it. So, my staff followed
him to court, and this man repeatedly asked for her help. She
wasn't even allowed to speak with him or take a picture of his
information. If this is how a Member of Congress is treated,
what does access look like for lawyers and advocates?
I would also like to mention my concerns with CBP's
implementation of the vaccine policy for MPP. Currently,
migrants receive the second dose of the vaccine at the port of
entry, on their way into court. Those who refuse to receive a
U.S.-approved vaccine, are denied entry. Yet, as most of us
know, side effects from the vaccine often start within hours.
As we saw on our trip, most of these migrants are representing
themselves. The vast majority request another fear screening
while at court. Those of us privileged enough to participate in
this hearing today were likely told to take it easy after
receiving the vaccine. In comparison, these migrants are
expected to conduct potentially life-altering interviews. These
migrants remain in Federal custody the entire time they are in
the United States. I ask the administration to take another
look at how their vaccine program and protocols impact a
migrant's ability to present their asylum claims and fear of
return to Mexico.
In addition, it was clear there were communication gaps
between the various agencies and organizations working on MPP.
These gaps had real consequence for migrants. For example, as
CBP officers explained to me, the migrants had to approach the
port of entry with the International Organization for Migration
to be admitted for court. I then walked into Mexico with
migrants who were being deported and listened to IOM and the
State Department tell us, and these migrants, that they could
present themselves to the port of entry at the designated time
with their NTA, which isn't happening.
Now, for some migrants, this gap in communication means
missing court, a possible closed case, and removal in absentia.
I also travelled to a migrant shelter in Tijuana where some
MPP enrollees stay until their court date. I spoke to MPP
enrollees and learned most could not secure a lawyer, despite
calling the contact list provided by the Department. Migrants
are given 24 hours to secure a lawyer, yet there is no
guarantee that a lawyer is even available or will answer the
call. If a lawyer is secured, it can be difficult, if not
impossible, for the migrant and lawyer to adequately
communicate about a decision that can literally be one of life
or death.
We must do better. To start, legal access for enrollees
must be meaningful, and not only exist on paper. The agencies
implementing this program must give migrants clear and
consistent rules and guidelines. While I appreciate the
administration's work to create meaningful changes to MPP and
terminate the program, more needs to be done. I look forward to
hearing from our witnesses how the administration plans to
resolve the many issues remaining with the implementation of
the Remain in Mexico policy.
With that, the Chair now recognizes the Ranking Member of
the subcommittee, Mr. Higgins of Louisiana, for an opening
statement.
[The statement of Chairwoman Barragan follows:]
Statement of Chairwoman Nanette Barragan
March 2, 2022
Thank you for joining today's hearing to examine the court-ordered
reimplementation of the Migrant Protection Protocols (MPP). Donald
Trump's Remain in Mexico policy was inhumane. Rather than upholding
U.S. asylum laws, he dismantled the asylum process and forced migrants
to wait in dangerous conditions in Mexico until their asylum hearing.
Under President Trump, there were more than 1,500 documented reports of
kidnapping, torture, murder, rape, and assault amongst the 70,000
migrants he enrolled into MPP. This is why the Biden administration is
working to terminate this program.
Earlier this year, I was thrilled to welcome some of those MPP
enrollees into the United States under President Biden's wind-down.
Unfortunately, since that time a Texas district court ordered the
Department to restart the Remain in Mexico policy. To date, we've seen
about 700 enrolled into MPP in the San Diego, Rio Grande Valley, El
Paso, and Laredo Sectors.
I visited some of those migrants last week in San Diego and
Tijuana, and I was disappointed with what I saw. When this
reimplementation was rolled out, we were told that the program would be
improved. We were told that there would be more access to legal
counsel, and it would be more humane for migrants.
An important role of Congress and this committee is to conduct
oversight of Executive Agencies. We are here today to examine how the
administration has handled the reimplementation of MPP--and whether
they've met the high standards required for working with migrants
presenting asylum claims. I argue that more work needs to be done.
While at the Port of Entry in San Diego, I spoke to an elderly
father who travelled through Central America to seek asylum with two
young adult sons. He was entering the United States for his court
hearing.
One of his children was kidnapped on the journey to the United
States and is still missing. Upon arriving at the border, he and his
remaining son were separated. His 23-year-old son was allowed to stay
with family in the United States. This man was elderly, illiterate, and
could not speak English--nor could he read or write in Spanish. Despite
his vulnerabilities, he was told to wait in Mexico.
Despite the emphasis this administration places on family unity,
and the trauma these men had already suffered, this family was
separated. This family separation was not a unique incident. We've
heard similar reports from across the border, including of pregnant
women being separated from their husbands and partners. This is not in
line with our values. I urge this administration to expand its
definition of a family unit, beyond just minor children and their
guardians, to keep families together.
Unfortunately, family separation wasn't the only problem I saw at
the port of entry. The elderly migrant asked for my help and repeatedly
showed me his Notice to Appear. However, I was told I couldn't take a
picture of his information. My staff followed him to court, and this
man repeatedly asked her for help. She wasn't allowed to speak with him
or take a picture of his information.
If this is how a Member of Congress is treated, what does access
look like for lawyers and advocates?
I'd also like to mention my concerns with CBP's implementation of
the vaccine policy for MPP. Currently, migrants receive the second dose
of the vaccine at the port of entry, on their way into court. Those who
refuse to receive a U.S.-approved vaccine are denied entry. Yet as most
of us know, side effects from the vaccine often start within hours. As
we saw on our trip, most of these migrants are representing themselves.
The vast majority request another fear screening while at court.
Those of us privileged enough to participate in this hearing today
were likely told to take it easy after receiving the vaccine. In
comparison, these migrants are expected to conduct potentially life-
altering interviews. These migrants remain in Federal custody the
entire time they are in the United States. I ask that the
administration take another look at how their vaccine program and
protocols impact a migrant's ability to present their asylum claims and
fear of return to Mexico.
In addition, it was clear there were communication gaps between the
various agencies and organizations working on MPP. These gaps had real
consequences for migrants. For example, CBP officers explained to me
that migrants had to approach the Port of Entry with the International
Organization for Migration to be admitted for court. I then walked into
Mexico with migrants who were being deported and listened to IOM and
the State Department tell us, and these migrants, that they could
present themselves to the port of entry at the designated time with
their NTA.
For some migrants, this gap in communication means missing court, a
possible closed case, and removal in absentia. I also travelled to a
migrant shelter in Tijuana where some MPP enrollees stay until their
court date. I spoke to MPP enrollees and learned most could not secure
a lawyer, despite calling the contact list provided by the Department.
Migrants are given 24 hours to secure a lawyer, yet there is no
guarantee that a lawyer is even available or will answer the call. And
if a lawyer is secured, it can be difficult, if not impossible, for the
migrant and lawyer to adequately communicate about a decision that can
literally be one of life or death.
We must do better. To start, legal access for enrollees must be
meaningful, and not only exist on paper. And the agencies implementing
this program must give migrants clear and consistent rules and
guidelines. While I appreciate the administration's work to create
meaningful changes to MPP and terminate the program, more needs to be
done. I look forward to hearing from our witnesses how the
administration plans to resolve the many issues remaining with the
implementation of the Remain in Mexico policy.
Mr. Higgins. Thank you, Madam Chair. It is good to be
reconvened in the committee hearing room. I am looking forward
to when we can gather as a committee in person again and I beg
your support on that endeavor. Thank you for having today's
hearing.
Since the start of the 117th Congress, this subcommittee,
the Border Security, Facilitation, and Operations Subcommittee,
has held 4 hearings. Yet, not a single hearing that directly
addresses border security until today, despite the fact that,
arguably, most Americans would likely agree that border
security is one of the main concerns of the average American
today. The impact upon our Nation is difficult to measure. So,
I am glad we are having today's hearing. We have a lot to
discuss what I think is long overdue. This should have been one
of the busiest subcommittees in Congress and, yet, here we are
with our first hearing to actually address the border security
crisis. There have been over 2.1 million documented border
encounters at our Southwest Border since President Biden has
been in office, and that number continues to rise.
I would like to thank your Federal Government partners for
being here today. Although I am disappointed that our Federal
partners requested to testify on a Federal Government-only
panel, thereby excluding our Minority witness from the
conversation. I believe it is important for our Federal
partners to hear directly from State and local governments to
work closely with those jurisdictional authorities, especially
the border States. We need to be able to candidly discuss
across jurisdictional boundaries how the Biden administration
policies are impacting every sovereign State.
One year into President Biden's term, we have witnessed a
total disintegration in law and order at the Southern Border.
The cartels run the border. Democrat policies have turned
America's border into a porous superhighway where crime and
drugs and human smuggling into our communities and
neighborhoods is abundantly clear that Secretary Mayorkas, and
the Biden White House, and the Democrats in Congress have no
intent to support the front-line agents on the border with the
necessary policies and resources to restore operational control
of the border.
Cartel control of our border is not Federal operational
control in the sovereignty of our Nation. Instead of arresting
and prosecuting those who violate our laws, CBP enforcement
personnel have been restricted from doing their jobs. This
crisis at the Southwest Border could have been avoided if the
current administration were to aggressively enforce the laws
that were in place and kept key Trump-era security policies
fully intact.
Since the President took office, not counting for the
rising number of getaways, which my sources have at 35 percent,
encounters have surpassed 150,000 for the 11th straight month.
These record numbers stem from the Biden administration's
failure to No. 1, secure the border, and No. 2, to discourage
illegal immigration into the United States.
We are discussing the migrant concerns as if there is no
difference in America any longer between legal immigration and
illegal crossing of our sovereign borders. The current crisis
is a direct result of President Biden's actions, including
suspension of the border wall construction, implementation of
Executive action aimed at halting deportations, reinstituting
the failed Obama-era prosecutorial discretion policy, the
attempt to end the Migrant Protection Protocols, which we are
discussing today, and expanding large-scale catch-and-release.
The crisis this administration has created could have been
averted or stopped at any time and still can be. We could stop
this thing in 2 weeks if the Biden administration would fully
reimplement common-sense policies like MPP.
Although my colleague has stated that MPP participants were
in a dangerous circumstance in Mexico, let me say they made the
choice to begin a dangerous journey when they headed to America
illegally. Our friends to the south are not necessarily--are
not necessarily considering themselves as a dangerous nation.
The MPP program, also known as Remain in Mexico policy, was
originally initiated in January 2019 under the Trump
administration. When MPP was first introduced, the United
States returned to Mexico certain non-Mexican citizens and
foreign nationals while their removal proceedings were pending.
This program was successful resulting in decreased illegal
border crossings, which enabled the U.S. Border Patrol to
actually patrol our Southwest Border and remove almost 70,000
illegal migrants from our country.
This crisis is not just about migrants seeking asylum in
the United States. Unfortunately, criminals, including
murderers, child predators, weapons traffickers, drug
traffickers, all the business that the cartels push, is flowing
across our border. According to a DHS official, since October
2021, there were over 220,000 documented cases of illegal
aliens who were deemed got-aways. That fits loosely with my
percentage that my understanding is about 35 percent of the
total documented interactions. Criminals and drug cartels are
benefiting the most from the Biden administration's border
failures.
According to a report by the Federal Commission on
Combatting Synthetic Opioid Trafficking, Mexico is now the
dominant source of fentanyl supply to the United States. Just
this past year alone, CBP has seized over $760 million worth of
fentanyl, and this is barely making a dent. This is what was
seized. For example, it has been reported that overdose now is
the leading cause of death for Americans aged 18 to 45 years
old. This should be a wake-up call to President Biden's
administration to end this madness and restore common-sense law
enforcement at our border.
The reimplementation of the MPP program can provide CBP the
assistance it needs as it attempts to resecure our Nation's
borders. In August 2021, a Federal court required the Biden
administration to reimplement the MPP program in good faith,
but there has been no evidence of any good-faith effort. In
addition to Secretary Mayorkas openly seeking to terminate the
MPP program for a second time, despite the court order, there
was an average of only 13 individuals per day being enrolled in
the program in January 2022. That is abhorrent. To put that in
perspective, in the same time frame in January 2022, CBP had an
average of almost 5,000 encounters per day at the Southwest
Border. No one could call this current effort to reimplement
MPP an actual good-faith effort.
I expect to hear more about this administration's plan to
reimplement the court-ordered MPP program in genuine good
faith. We cannot let politics get in the way of sound governing
or ignoring Constitutional obligation to secure our sovereign
border. I look forward to the witnesses' testimony today and I
thank them for appearing before us. Madam Chair, I yield back.
[The statement of Ranking Member Higgins follows:]
Statement of Ranking Member Clay Higgins
March 2, 2022
Thank you, Madam Chair, and thank you for having today's hearing.
Since the start of the 117th Congress, the Border Security,
Facilitations, and Operations Subcommittee has held 4 hearings yet the
subcommittee has not held a single hearing that directly addresses
border security until today. Since January 2021 and under President
Biden's leadership, there have been over 2.1 million border encounters
at our Southwest Border and the number continues to rise.
I would like to thank our Federal Government partners for being
here today. Although, I am disappointed to hear that our Federal
partners requested to testify on a Federal Government-only panel,
thereby excluding our Minority witness from the conversation. I believe
it is important for our Federal partners to hear directly from the
State and local governments, especially the border States, how the
administration policies are impacting their States.
One year into President Biden's term, we have witnessed the total
disintegration of law and order at the Southern Border. Democrat
policies have turned America's border into a porous superhighway for
crime, drugs, and human smuggling into our communities and
neighborhoods. It is abundantly clear that Secretary Mayorkas, the
Biden White House, and the Democrats in Congress have zero intent to
support front-line agents with the necessary policies and resources to
restore operational control at the border.
Instead of arresting and prosecuting those who violate our laws,
CBP enforcement personnel have been hamstrung from doing their jobs.
This crisis at our Southwest Border could have been avoided if this
administration were to aggressively enforce the laws in place and kept
key Trump-era security policies fully entact.
Since the President took office, not counting the rising number of
gotaways, encounters surpassed 150,000 for the eleventh month straight.
These record numbers stem from the Biden administration's failure to:
(1) Secure the border, and (2) discourage illegal immigration to the
United States. The current crisis is a direct result of Biden's
actions, including:
suspension of border wall construction,
implementation of Executive Action aimed at halting
deportations,
re-instituting the failed Obama-era prosecutorial discretion
policy,
the attempt to end the Migrant Protection Protocols,
and expanding large-scale catch and release.
The crisis this administration has created could have been averted
or stopped at any time, and still can be, if the Biden administration
fully reimplements common-sense policies like MPP.
The MPP program, also known as the ``Remain in Mexico'' policy, was
originally initiated in January 2019 under the Trump administration.
When MPP was first introduced, the United States returned to Mexico
certain non-Mexican citizens and foreign nationals, while their removal
proceedings were pending. This program was successful, resulting in
decreased illegal border crossings, which enabled the U.S. Border
Patrol to actually patrol our Southwest Border and remove almost 70,000
illegal migrants from our country.
This crisis is not just about migrants seeking asylum in the United
States; unfortunately, criminals, including murderers and child
predators, weapons, drugs are also flowing across our border. According
to a DHS official, since October 2021, there were over 220,000
documented cases of illegal aliens who were deemed ``gotaways.''
Criminals and drug cartels are benefiting the most from the Biden
administration's border failures. According to a report by the Federal
Commission on Combating Synthetic Opioid Trafficking, Mexico is now the
dominant source of fentanyl supply to the United States. Just this past
year alone, CBP has seized over $760,000,000 worth of fentanyl, and
this is barely making a dent. For example, it has been reported that
overdose is now the leading cause of death for Americans aged 18 to 45
years old. This should be a wake-up call for the Biden administration
to end the madness.
The reimplementation of the MPP program can provide CBP the
assistance it needs as it attempts to resecure our Nation's borders. In
August 2021, a Federal court required the Biden administration to
reimplement the MPP program in good faith, but there has been no
evidence of any good-faith effort. In addition to Secretary Mayorkas
openly seeking to terminate the MPP program for a second time despite
the court order, there was an average of only 13 individuals per day
being enrolled into the program in January 2022. To put that in
perspective, in the same time frame in January 2022, CBP had an average
of almost 5,000 encounters per day at the Southwest Border.
No one could call this a good-faith effort.
I want to hear more about this administration's plan to reimplement
the court-ordered MPP program in genuine good faith. We cannot let
politics get in the way of sound governing or ignoring Constitutional
obligations. I look forward to the witnesses' testimony today and I
thank them for appearing before us.
I yield back.
Chairwoman Barragan. Thank you, Mr. Ranking Member. I am a
little disappointed with the comments about this is the first
hearing on border security because I--you and I have direct
communication. You have my cell phone number. This is the first
time I am hearing. We have had two hearings on unaccompanied
children at the border, which is a border issue. We have had
seaport hearings. We had moved a hearing at your request
because you could not attend, which I happily did. But that did
then take another spot, you know, for us to have to move it.
So, I am more than happy to work with you and we are going as
quickly as we can on hearings. So, I welcome your, you know,
your communication with me on it.
So, I thank you for, you know, for your statement, but I
just wanted to also mention, you know, we provided the Minority
the opportunity to have a witness today. The Minority was
informed this was a hearing with Federal witnesses on MPP on
January 18. You all had plenty of time to choose a Federal
witness. We didn't hear anybody until Friday. That really left
little time for us to have a discussion with the Department.
Last, you all approved your witness to be on a second
panel, which we are only going to do one round of questions so
we can get to your witness as quickly as possible. So, we are
trying to be fair and, again, you know, we--I am here to work
with you and work with the Minority to make sure that, you
know, we are doing all we can on this subcommittee. So, if you
want to say something, Mr. Higgins, I am going to go ahead and
yield to you before I move to Ranking Member Katko.
Mr. Higgins. That is very kind of the gentlewoman to yield.
Let me just state in the interest of bipartisan endeavor, that
I appreciate your comments. I just suggest that this
subcommittee has been, perhaps, not as engaged as we could be.
I sit here in a committee hearing room with my Republican
colleague, Representative Guest, and none others.
So, we are completely prepared to engage and move forward
to address the challenges of border security that face our
Nation and that have, indeed, disintegrated our border States'
ability to function as sovereign States without devoting a
tremendous amount of manpower and treasure to securing their
own borders because the Federal Government has failed. So,----
Chairwoman Barragan. OK.
Mr. Higgins [continuing]. I look----
Chairwoman Barragan. So,----
Mr. Higgins [continuing]. Forward to our discussions today
and I thank you for the opportunity to comment.
Chairwoman Barragan. OK. Well, for the record, the
Chairwoman is here, virtually, along with other Republican
Members. So, the fact that it is a full or virtual, people can
go in person or virtual, people have every opportunity.
With that and in the interest of time, I am going to--the
Chair will recognize the Ranking Member of the full committee,
the gentleman from New York, Mr. Katko, for opening statement.
Mr. Katko. Thank you, Madam Chair, and it is good to see
you again. I am pleased that the Border Security, Facilitation,
and Operations Subcommittee is holding a hearing today related
to the crisis on our Southwest Border, specifically, regarding
the reimplementation of the critical Migrant Protection
Protocols, otherwise known as the Remain in Mexico policy.
I want to thank our witnesses for being here today and I
look forward to hearing about the on-going efforts to fully
reimplement this program. The Biden administration started 2022
with a record number of Southwest Border encounters in the
continuing crisis along our Northern and Maritime Borders.
Every month, U.S. Customs and Border Protection is reporting
concerning figures, not just in encounter numbers, but also in
arrests of individuals with known criminal histories, gang
members, weapons seizures, and illicit drugs, not to mention
those that may be on a terror watch list. Fentanyl is plaguing
communities across our Nation and in my hometown in central New
York, poisoning far too many Americans and becoming the leading
cause of death of young adults. Think about that, the leading
cause of deaths in the age group from 18 to 40. That is a
stunning statistic.
Also concerning is a reported increase in the number of
what we call got-aways. Those are individuals seen on Customs
and Border Patrol technology illegally crossing the border and
entering into the United States without being encountered by
Border Patrol agents.
The administration's required by Federal court order to
reimplement the Migrant Protection Protocols in good faith.
However, recent data shared with the committee has been dismal,
to say the least. According to statistics provided by Border
Patrol, there was a per-day average of nearly 5,000 Southwest
Border encounters. Yet, the average number of legal migrants
enrolled in Migrant Protection Protocols per day was only 13,
only one-fourth of 1 percent of those caught. That is not
right.
Today, I would like to hear from our Federal partners at
the Department of Homeland Security and the Department of State
how their respective agencies are, in good faith, and I stress
the term, good faith, reimplementing the Migrant Protection
Protocols and the numbers shown--as the numbers above show
otherwise.
Not only is the surge of migrants at the border putting a
strain on Border Patrol agents, but on local law enforcement
and community resources as well. The number of border crossings
has reached a shocking level. For example, border encounters in
Yuma, Arizona went up by more than 2,000 percent since 2020.
This is why fully reimplementing the Remain in Mexico policy is
critical to stemming the flow of illegal crossings and will
allow Customs and Border Protection to regain operational
control at our Southern Border.
Again, I am not here to cast aspersions on anyone, but it
strains the imagination to think that if this Migrant
Protection Protocols were being reimplanted as the court
ordered, there would be a hell of a lot more than less than 1
percent of the individuals being put in MPP protocols.
So, I am looking forward to hearing about, if I have to get
off this early, I trust that the Ranking Member can pursue this
area for me with vigor. With that, I yield back. Thank you very
much.
[The statement of Ranking Member Katko follows:]
Statement of Ranking Member John Katko
March 2, 2022
Thank you, Madam Chair. I am pleased that the Border Security,
Facilitations, and Operations Subcommittee is holding a hearing today
relating to the crisis on our Southwest Border, specifically regarding
the reimplementation of the critical Migrant Protection Protocols,
otherwise known as the Remain in Mexico policy. I want to thank our
witnesses for being here today, and I look forward to hearing about the
on-going efforts to fully reimplement the program.
The Biden administration started 2022 with a record number of
Southwest Border encounters and a continuing crisis along our Northern
and Maritime Borders. Every month, U.S. Customs and Border Protection
(CBP) is reporting concerning figures, not just in encounter numbers,
but also in arrests of individuals with known criminal histories, gang
members, weapon seizures, and illicit drugs. Fentanyl is plaguing
communities across our Nation, and in my home town of Central New York,
poisoning far too many Americans and becoming the leading cause of
death of young adults.
Also concerning is the reported increase in the number of
``gotaways,'' individuals seen on CBP technology illegally crossing the
border and entering into the interior of the United States, without
being encountered by Border Patrol agents.
The administration is required by Federal court order to
reimplement MPP in good-faith, however, recent data shared with the
committee has been dismal to say the least. According to statistics
provided by CBP, there was a per day average of nearly 5,000 Southwest
Border encounters, yet the average number of illegal migrants enrolled
in MPP per day was only 13--only a quarter of 1 percent!
Today, I would like to hear from our Federal partners at the
Department of Homeland Security and the Department of State how their
respective agencies are reimplementing MPP in ``good faith'' as the
numbers show otherwise.
Not only is the surge of migrants at the border putting a strain on
Border Patrol agents, but on local law enforcement and community
resources as well. The number of border crossings has reached a
shocking level. For example, border encounters in Yuma, Arizona went up
by more than 2,000 percent since 2020. This is why fully reimplementing
the Remain in Mexico policy is critical to stemming the flow of illegal
crossings and will allow CBP to re-gain operational control of our
Southern Border.
Once again, I look forward to the witnesses' testimony and I thank
them for appearing before us. I yield back.
Chairwoman Barragan. Thank you and thank the full
committee's Ranking Member. I want to make sure that Members
are reminded that the subcommittee will operate according to
the guidelines laid out by the Chairman and the Ranking Member
in their February 3, 2021, colloquy. Additional Members may
submit statements for the record.
[The statement of Chairman Thompson follows:]
Statement of Chairman Bennie G. Thompson
March 2, 2022
Good afternoon.
I thank Chairwoman Barragan for holding this important hearing to
examine the reimplementation of the Migrant Protection Protocols (MPP),
also known as ``Remain in Mexico.''
Donald Trump started this misguided policy to advance his anti-
immigrant agenda.
Like family separation, MPP is another cruel, Trump-era policy that
has left a stain on our Nation's tradition of protecting refugees and
asylum seekers.
MPP forces vulnerable migrants to wait in dangerous conditions in
Mexican border towns until their asylum hearing.
Many migrants have been victims of kidnappings, extortion, and
assaults while being forced to remain in Mexico under MPP.
Our border policies must be humane and reflect our values.
We must treat people with respect and dignity, while following
international law and honoring our obligations toward asylum seekers.
MPP does not live up to those values. We have heard President Biden
say just that. Hours after being inaugurated, he suspended new
enrollments into the program.
The administration began to wind down MPP and processed migrants
with pending cases into the United States.
Like many, I applauded when DHS officially terminated the Remain in
Mexico policy.
Unfortunately, a Federal Court in Texas ordered the Department to
re-start the program.
The administration has appealed the Court decision and issued a new
MPP termination memo, which will go into effect once the current
injunction is lifted.
The Department has been forced to restart the MPP program, but the
administration has worked with the government of Mexico and
international organizations to make changes to the program, mostly for
the better.
For example, the Department committed to certifying that migrants
have access to legal representation.
While this is a welcome step, I continue to have significant
concerns about implementation.
If lawyers are not available to take migrants' calls or do not have
sufficient time to consult with migrants, the access not meaningful.
We look forward to hearing how the Department intends improve legal
access going forward.
DHS also directed employees to screen migrants for vulnerabilities
and expanded the categories of asylum seekers considered too vulnerable
to be returned to Mexico. This is, too, is a welcome improvement.
However, not all of the changes have been for the better.
Notably, the Department has chosen to expand eligibility for
enrollment into MPP to nationals of any country in the Western
Hemisphere, other than Mexico.
This includes Haitian migrants and other non-Spanish speaking
individuals, who are particularly vulnerable in Mexico.
This change to the program was not required by court order, and it
is disturbing to see the Department choose to expand a program it
opposes.
Furthermore, the committee's oversight has raised questions about
implementation of many of the Department's promises, as well as
coordination between the agencies and organizations carrying out the
Remain in Mexico Policy.
Particularly in light of these challenges, it is imperative that we
conduct rigorous oversight of the Federal agencies and partners
responsible for re-implementing the policy.
That is what we are here to do today.
I am grateful that the Supreme Court has agreed to expeditiously
review the lower court's ruling requiring the Department to reimplement
MPP.
I am hopeful for a positive outcome that will allow the termination
of this terrible policy.
Until then, the Federal Government must work to ensure the safety
of migrants enrolled in MPP and improve implementation of the program
and protections for migrants.
I look forward to hearing from our witnesses on how the
administration is taking action to accomplish this.
Chairwoman Barragan. Now, I would like to take the
opportunity to welcome our first panel of witnesses.
Mr. Blas Nunez-Neto is acting assistant secretary for
border and immigration policy at the U.S. Department of
Homeland Security. Mr. Benjamine ``Carry'' Huffman is the
acting chief operating officer at U.S. Customs and Border
Protection. Ms. Emily Mendrala is the deputy assistant
secretary for Western Hemisphere affairs at the U.S. Department
of State.
Without objection, the witnesses' full statements will be
inserted in the record. I now ask each witness to summarize his
or her statement for 5 minutes, beginning with Mr. Nunez-Neto.
STATEMENT OF BLAS NUNEZ-NETO, ACTING ASSISTANT SECRETARY,
BORDER AND IMMIGRATION POLICY, DEPARTMENT OF HOMELAND SECURITY
Mr. Nunez-Neto. Chairwoman Barragan, Ranking Member
Higgins, and Members of the subcommittee, thank you for the
opportunity to appear before you today to discuss the court-
ordered reimplementation of the Migrant Protection Protocols,
or MPP.
I would like to begin by noting that Secretary Mayorkas has
made clear that MPP is not aligned with this administration's
values and poses an unjustifiable human cost on migrants and
pulls resources away from more important efforts that seek to
address the root causes of irregular migration and
comprehensively manage irregular migratory flows at our border.
Despite this, and consistent with our support for the rule
of law, DHS has moved forward expeditiously with the court-
ordered reimplementation of this program. As of this week, MPP
returns are now occurring in 4 locations across the entire
Southwest Border. We also continue to expand enrollment numbers
despite dealing with the unprecedented global COVID-19 pandemic
that has impacted operations on both sides of the border.
As part of the court-ordered reimplementation of MPP, we
have made a number of changes that attempt to address the grave
humanitarian concerns associated with the previous
implementation, concerns shared by this administration and the
government of Mexico. First, DHS is committed to excluding
particularly vulnerable individuals from being put in harm's
way. This includes individuals with known mental and physical
health issues, disabilities, or advanced age, among other
factors. Second, we have enhanced the policies and procedures
that protect individuals from being returned to Mexico who fear
facing torture or persecution there. CBP personnel now
affirmatively ask enrollees about their fear of being returned
to Mexico, something that brings this process more in line with
international norms. We have also lowered the screening
standard for individuals who express a fear of persecution or
torture in Mexico.
Third, DHS and DOJ are committed to providing individuals
subject to MPP with reasonable and meaningful opportunities to
access legal services. This includes providing them with 24
hours to speak to a legal representative before undergoing a
non-refoulement interview and also facilitating access to legal
orientation programs and counsel before they attend their court
hearings.
Fourth, we are working to ensure that individuals enrolled
in MPP receive a ruling on their cases to the greatest extent
possible within 180 days to minimize the time they spend in
Mexico. Fifth, as my Department of State colleague will
explain, we have worked closely with the government of Mexico
and international organizations to enhance the safety and
security of individuals returned to Mexico. Sixth, we have
created a case review process for individuals who believe they
clearly should not be subject to MPP.
I want to be exceptionally clear, however, that this
administration recognizes these changes, while significant, are
not sufficient to address the concerns we have identified with
the program and we will continue to fight the court's ruling.
As Secretary Mayorkas noted in his second termination memo,
there is no version of MPP that can fully address the inherent
flaws of the program and the human costs it imposes on migrants
who may have legitimate claims to protection in the United
States.
DHS will continuously evaluate MPP's operations and
effectiveness and make adjustments, as needed, as we comply
with the court order. We are also committed to transparency and
have been publishing a detailed monthly report on MPP
operations.
Last, as the Biden-Harris administration and Secretary
Mayorkas have repeatedly acknowledged, the United States is a
Nation with borders and laws that must be enforced. It is also
a Nation that was built by immigrants. This administration is,
as a result, committed to securing our borders while also
offering protection to those fleeing persecution and torture.
That said, our efforts to address irregular migration
cannot solely be focused on our borders. Our immigration laws
have not been updated in decades. During this time, we have
seen a dramatic change in the nature and magnitude of migratory
flows. These changes have only accelerated during the COVID-19
pandemic. We are committed to working with Congress to
transform our flawed and outdated immigration system so that we
can both better secure our borders and create fair, orderly,
and humane pathways for migrants seeking protection or
opportunity in the United States.
Thank you and I look forward to answering whatever
questions the committee may have.
[The prepared statement of Mr. Nunez-Neto follows:]
Prepared Statement of Blas Nunez-Neto
March 2, 2022
introduction
Chairwoman Barragan, Ranking Member Higgins, and distinguished
Members of the subcommittee, thank you for the opportunity to appear
before you today.
I have been serving as the acting assistant secretary for border
and immigration policy since October 1, 2021. My permanent role is the
chief operating officer at U.S. Customs and Border Protection (CBP),
within the Department of Homeland Security (DHS), which I began on
March 5, 2021. Since August 24, 2021, I have been concurrently serving
as the vice chair for the Secretary of Homeland Security's Southwest
Border Taskforce. I also previously served at DHS as an advisor to CBP
Commissioner Gil Kerlikowske from January 12, 2015 to January 16, 2017.
Before discussing the court-ordered reimplementation of the Migrant
Protection Protocols (MPP), I want to highlight the fact that Secretary
of Homeland Security Alejandro N. Mayorkas has repeatedly stated that
MPP has endemic flaws and should be terminated. These flaws include
that it imposed unjustifiable human costs on migrants, subverted the
asylum system, pulled resources and personnel away from other priority
efforts, and failed to address the root causes of irregular migration.
DHS continues to vigorously defend its decision to terminate MPP in
court and has taken the extraordinary step of asking for expedited
review by the U.S. Supreme Court. In the interim, however, DHS is
required to abide by the order to re-implement the program in good
faith and it continues to do so, demonstrating this administration's
commitment to the rule of law.
As we move forward with this court-ordered reimplementation of MPP,
DHS is seeking to do so in the most humane way possible. I want to make
clear, however, that this administration recognizes that these changes,
while significant, are not sufficient to address the concerns with the
program that Secretary Mayorkas has identified, and that no matter what
measures are put in place to attempt to protect migrants enrolled in
MPP, we cannot ensure their safety and security in Mexico.
We will continue to challenge the court's ruling, even as we abide
by the court order to reimplement MPP in good faith.
terminating mpp
On February 2, 2021, President Biden issued Executive Order (EO)
14010, Creating a Comprehensive Regional Framework to Address the
Causes of Migration, to Manage Migration Throughout North and Central
America, and to Provide Safe and Orderly Processing of Asylum Seekers
at the United States Border. EO 14010 directed the Secretary of
Homeland Security to ``promptly review and determine whether to
terminate or modify the program known as the Migrant Protection
Protocols.''
During the course of his first review, Secretary Mayorkas
identified a number of critical factors that contributed to his final
conclusions to terminate MPP:
While DHS originally intended the program to more quickly
adjudicate legitimate asylum claims and clear asylum backlogs,
over the course of the program, asylum backlogs actually
increased before both the U.S. Citizenship and Immigration
Services (USCIS) Asylum Offices and the Department of Justice's
(DOJ) Executive Office for Immigration Review (EOIR).
The focus on speed was not matched with sufficient efforts
to ensure that conditions in Mexico enabled migrants to attend
their immigration proceedings.
As a result, a high percentage of cases resulted in an order
of removal in absentia (approximately 44 percent, based on DHS
data) which raised significant questions about whether the
process provided enrollees an adequate opportunity to appear
for proceedings to present their claims for relief and whether
conditions faced by some MPP enrollees in Mexico--including,
for example, the lack of stable access to housing, income, and
safety--resulted in the abandonment of potentially meritorious
protection claims.
MPP as initially implemented did not sufficiently improve
border management so as to justify the program's extensive
operational burden and other shortfalls. The program also
imposed additional responsibilities on border personnel and
resources that detracted from other aspects of DHS's critically
important mission sets.
Having completed the comprehensive and thorough review required by
the EO, Secretary Mayorkas concluded that MPP should be terminated and
issued a memorandum to that effect on June 1, 2021.
On August 13, 2021, the U.S. District Court for the Northern
District of Texas determined that the Secretary's June 1 memorandum was
not issued in compliance with the Administrative Procedure Act of 1946
because it failed to address all relevant considerations. As a result,
the District Court vacated the June 1 memorandum in its entirety,
remanded the matter to DHS for further consideration, and ordered DHS
to re-implement MPP. DHS sought a stay of this injunction to the Fifth
Circuit, which was denied by both the Fifth Circuit and then the
Supreme Court.
As a result, Secretary Mayorkas began a second comprehensive review
of MPP. During this process, the Secretary once again carefully
reviewed the arguments, evidence, and perspectives presented by those
who support re-implementation of MPP, those who support terminating the
program, and those who have argued for continuing MPP in a modified
form.
After this review, Secretary Mayorkas again determined that MPP
should be terminated. Secretary Mayorkas considered perspectives the
District Court determined were insufficiently addressed in the June 1
memorandum, including claims that MPP discouraged unlawful border
crossings, decreased the filing of non-meritorious asylum claims, and
facilitated more timely relief for asylum seekers, as well as
predictions that termination of MPP would lead to a border surge, cause
DHS to fail to comply with alleged detention obligations under the
Immigration and Nationality Act, impose undue costs on States, and put
a strain on U.S.-Mexico relations.
Throughout the course of this second review, Secretary Mayorkas
examined multiple factors that informed the Government's decision to
terminate the MPP. These factors included:
As described by an assortment of independent findings,
including those made by non-governmental organizations and U.S.
courts, MPP placed migrants in harm's way. Significant evidence
indicates that individuals awaiting their court hearings in
Mexico under MPP were subject to extreme violence and
frequently became targets for transnational criminal
organizations that profited by exploiting migrants'
vulnerabilities.
As previously designed and implemented, MPP's non-
refoulement screening process was inadequate. Issues included
individuals not being affirmatively asked questions about fear
of return to Mexico, insufficient access to counsel, and use of
the ``more likely than not'' standard during non-refoulement
screenings, a standard typically reserved for adjudication on
the merits of withholding of removal and Convention Against
Torture claims before an Immigration Judge.
Individuals in MPP faced numerous barriers in accessing
counsel and receiving sufficient information about their court
hearings. There were several problems in communicating accurate
and up-to-date information to enrollees about rescheduled court
hearings. Opportunities for attorneys to meet with their
clients, outside of those meetings organized at the hearing
locations, were limited due to, among other constraints,
complications associated with cross-border communication and
U.S. attorneys not being licensed to practice law in Mexico.
Due to these factors, among others, many individuals in MPP
were unwilling or unable to remain in Mexico during the course
of their removal proceedings. Comparing noncitizens enrolled in
MPP to similar noncitizens (i.e., non-Mexican single adults and
family units who were issued notice to appear) from the same
period who were not enrolled in MPP, EOIR granted relief to 3.4
percent of non-MPP enrollees who had been issued NTAs versus
1.1 percent of MPP enrollees. This discrepancy suggests that at
least some MPP enrollees with meritorious claims either
abandoned or were unable to adequately present their claims
given the conditions faced by migrants in Mexico and barriers
to legal access.
Additionally, MPP was originally intended to reduce burdens
on border security personnel and resources and to help clear
the backlog of unadjudicated asylum claims. In reality,
however, Secretary Mayorkas observed that backlogs in
immigration courts and asylum offices grew significantly during
the period that MPP was in effect. MPP also diverted resources
from other priority Department missions by requiring DHS to
build, maintain, and operate the infrastructure and processes
supporting MPP.
MPP also played a particularly outsized role in diplomatic
engagements with the government of Mexico (GOM), diverting
attention from more productive efforts to fight transnational
criminal and smuggling networks and address the root causes of
irregular migration and forced displacement.
Last, MPP also diverts DHS's resources from the
administration's priority efforts to implement effective, fair,
and durable asylum reforms that reduce adjudication delays and
tackle the immigration court backlog. For example, both the
Dedicated Docket, designed so that immigration judges can
adjudicate cases within 300 days, and the Asylum Officer rule,
which will substantially streamline the asylum process, rely on
the same USCIS personnel.
As a result, on October 29, 2021, Secretary Mayorkas issued a new
memorandum terminating MPP that will be implemented as soon as
practicable pending a final judicial decision to vacate the injunction.
As part of our vigorous efforts to challenge this injunction, on
December 28, 2021, the U.S. Government (USG) filed with the U.S.
Supreme Court a petition for a writ of certiorari seeking expedited
review of the judgment of the Fifth Circuit in Texas v. Biden, which
rejected DHS's arguments and left the injunction in place. DHS's
petition for writ of certiorari was granted by the Supreme Court on
February 18, 2022, and oral arguments are anticipated in April. For as
long as the injunction remains in place, DHS is bound to comply with it
and make good faith efforts to reimplement MPP.
Ultimately, while recognizing that MPP may potentially have
contributed to some reduced migratory flows, Secretary Mayorkas
concluded that the program imposes unjustifiable human costs, pulls
resources and personnel away from other priority efforts, and fails to
address the root causes of irregular migration. The Secretary also
noted that MPP is inconsistent with the values and approaches taken by
the Biden-Harris administration, which is pursuing a series of policies
that disincentivize irregular migration while incentivizing safe,
orderly, and humane pathways for persons seeking to enter the United
States. These policies--including the on-going efforts to reform the
U.S. asylum system and address the root causes of irregular migration
in the region--seek to achieve sustainable, long-term change by
addressing long-standing problems that have plagued the U.S.
immigration system for decades. Once fully implemented, Secretary
Mayorkas believes that these policies will address migratory flows more
effectively while holding true to our Nation's values.
operational changes to mpp
DHS, working with our Federal and international partners, has taken
multiple steps to re-implement MPP while attempting to address some of
the most profound humanitarian concerns that MPP presents. These
changes are intended to minimize the harms associated with the program
to the greatest extent feasible, but as Secretary Mayorkas has
repeatedly confirmed, no changes short of termination are sufficient to
fully address the inherent flaws and human costs of MPP.
First, both the U.S. and Mexican Governments are committed to
protecting particularly vulnerable individuals from being returned to
Mexico and put in harm's way. Although GOM is not responsible for
reimplementing MPP nor upholding U.S. court decisions, its cooperation
is critical to operationalize the program. Unaccompanied children
cannot be enrolled in MPP. Additionally, those with particular
vulnerabilities including those with known physical and mental health
issues, disabilities, and advanced age are not eligible for MPP. When
CBP officials observe or learn of a particular vulnerability, they make
case-by-case decisions about whether the vulnerability falls within an
exception to enrollment. When there is doubt as to whether a
vulnerability merits exception to enrollment, CBP has been instructed
to err on the side of excepting the individual from MPP.
Second, DHS has enhanced policies and procedures to protect from
return those who may be subject to torture or persecution in Mexico.
CBP officials are now required to proactively ask individuals subject
to MPP if they fear being returned to Mexico. In the prior
implementation, individuals were not asked these questions and had to
instead affirmatively assert a fear of return to Mexico. Individuals
who express a fear of being returned to Mexico are referred to USCIS
for a non-refoulement interview. Rather than the ``more likely than
not'' standard that was used in the previous version of MPP, USCIS
officials now use the lower ``reasonable possibility'' standard.
Importantly, they are provided access to telephones and are generally
given 24 hours to consult with a legal representative in advance of
their interview. It continues to be the case that individuals enrolled
in MPP can tell a USG official that they fear return to Mexico at any
time while they are in the United States, including during initial
processing, court hearings, or any other encounters with USG officials.
Third, DHS and DOJ are taking additional steps to provide
individuals subject to MPP with reasonable and meaningful opportunities
to meet with counsel or a legal representative. Upon enrollment,
individuals are provided a legal resource packet. As already stated,
individuals who express a fear of return to Mexico have 24 hours prior
to their USCIS non-refoulement interviews to consult with legal
representatives on the telephone. Under current operational guidance,
CBP is to provide individuals enrolled in MPP with access to telephones
during their time in custody, and volunteers from law firms and legal
service providers are providing migrants with free telephonic legal
consultations. At the request of an individual in MPP, legal
representatives may participate by telephone in USCIS non-refoulement
interviews. DHS and DOJ are coordinating returns to the United States
for court hearings to allow individuals enrolled in MPP with
substantial time to meet with counsel on the day of the hearing, and
DOJ is providing access to the Legal Orientation Program for
individuals in MPP. Counsel may be present at the noncitizens' court
hearings by video or in person. Additionally, the Department of State
is working with international organizations to increase access to legal
and other informational resources via shelters in Mexico, including
through provision of WiFi and outfitting of private spaces that can be
used to consult remotely with legal representatives or others.
re-implementation to date
On December 6, 2021, DHS began to enroll individuals in MPP and
subsequently return them through a port of entry (POE) in El Paso, and
court hearings began at the El Paso Immigration Court for individuals
enrolled in MPP on January 3, 2022. On January 3, 2022, DHS began to
enroll individuals in MPP and subsequently return them through a POE in
San Diego, and court hearings began at the San Diego Immigration Court
on February 1, 2022. On January 20, 2022, DHS began to enroll
individuals in MPP and subsequently return them through a POE in
Brownsville, and court hearings began at the Brownsville Immigration
Hearing Facility on February 15, 2022. On February 28, 2022, DHS began
to enroll individuals in MPP and will subsequently return them through
a POE in Laredo, and court hearings will begin on or about March 28,
2022 at the Laredo Immigration Hearing Facility. DHS intends to
continue incremental expansion of returns across the Southwest Border
in the coming months contingent on GOM's continued agreement to receive
returns and location-specific reception capacity.
As of February 28, a total of 1,602 individuals have been enrolled
in MPP and 893 of them have been returned to Mexico, while 181 are
still being processed. Not all individuals who are enrolled in MPP are
actually returned to Mexico since some are disenrolled due to a
particular vulnerability or a positive determination in their non-
refoulement interview.
Of the 1,602 enrollments, only 1 was a family unit individual (who
was later disenrolled), while the rest were single adults. To date, all
individuals enrolled have been Spanish speakers primarily from
Nicaragua, Venezuela, Cuba, Colombia, and Ecuador. In principle, anyone
from the Western Hemisphere (other than Mexico) is potentially eligible
for MPP processing if they are not an unaccompanied child or fall into
another vulnerable group.
Of the 1,602 enrollments, 82 percent (1,313) claimed a fear of harm
in Mexico during initial enrollment and were referred to USCIS for a
non-refoulement interview, 225 of which resulted in a positive
determination (17 percent). The remaining 83 percent of those who
claimed fear either received a negative determination (69 percent), had
their cases administratively closed (12 percent), or remain pending (2
percent). Individuals disenrolled from MPP generally still have a
pending Notice to Appear before EOIR and continue their removal
proceedings while remaining in the United States. During their non-
refoulement interviews, 2 percent were legally represented.
DHS will continuously evaluate MPP operations and effectiveness and
make necessary adjustments to improve the integrity and operations of
the program, and the safety of those who are enrolled in it. As part of
these efforts, DHS has created a case review process for individuals
who believe they should not have been subject to MPP or should no
longer be subject to MPP due to a particular vulnerability or a changed
circumstance. Individuals or their representatives can email DHS with
information about why the individual's enrollment is believed to have
been incorrect or how the individual's circumstances have changed since
enrollment, and DHS will promptly review their cases.
conclusion
As the Biden-Harris administration and Secretary Mayorkas have
repeatedly acknowledged, the United States is a nation with borders and
laws that must be enforced, and it is also a nation that was built by
immigrants. This administration is, as a result, committed to securing
our borders while also offering protection to those fleeing persecution
and torture. The Secretary has been clear that, in his view, MPP is not
the best strategy for achieving either of these goals--even with the
significant changes that have been made that seek to mitigate its
inherent flaws.
Despite the Secretary's views concerning MPP, DHS is bound by court
order to make good-faith efforts to implement it until the injunction
is lifted--and we have been complying with this court order.
That said, efforts to address irregular migration cannot solely be
focused on our borders. Our immigration laws have not been updated in
decades, and during this time we have seen a dramatic change in the
nature and magnitude of migratory flows. These changes have only
accelerated during the COVID-19 pandemic. This administration is
committed to working with Congress to transform our flawed immigration
system so that we can better secure our borders and create fair,
orderly, and humane pathways for migrants seeking protection or
opportunity. A key part of these efforts involves the critical work our
colleagues at the State Department are engaged in to create regional
approaches to addressing migration that recognize it is a shared
responsibility of all countries in the Hemisphere. DHS hopes to work
alongside Members of this committee and this Congress to develop
sustainable solutions to better manage migration at the border and in
the region.
Thank you. I am pleased to answer your questions.
Chairwoman Barragan. Thank you for your testimony. I now
recognize Mr. Huffman to summarize his statement for 5 minutes.
Mr. Huffman.
STATEMENT OF BENJAMINE ``CARRY'' HUFFMAN, ACTING CHIEF
OPERATING OFFICER, U.S. CUSTOMS AND BORDER PROTECTION,
DEPARTMENT OF HOMELAND SECURITY
Mr. Huffman. Thank you. Good afternoon, Chairwoman
Barragan, Ranking Member Higgins, and Ranking Member Katko, and
distinguished Members of the subcommittee. It is an honor to
testify today on behalf of the U.S. Customs and Border
Protection and discuss CBP's role in the implementation of the
Migrant Protection Protocol program, or MPP, across our
Southern Border.
I currently serve as CBP's acting chief operating officer.
While I am new to this role, my career in border security has
spanned 37 years. It is fair to say it has been a career that
has taken me across our hemisphere conducting this line of
business. To that end, the border has always been a dynamic
environment, but there is one constant I am reminded of every
day, the men and women of CBP have a complex, important, and
frequently dangerous mission. It is a mission we are called up
to perform with the spirit of vigilance, service, integrity,
and honor. I am honored to serve on the leadership team of one
of the Nation's premier law enforcement agencies. Due to the
challenges we face today, it is also the most humanitarian law
enforcement agency in the country, possibly the world.
I would like to point out that since the beginning of 2021,
CBP has performed over 13,000 life-saving rescues in sometimes
extremely dangerous conditions and terrain. Spent hundreds of
millions of dollars providing medical support, and provided
care for over 146,000 unaccompanied children, our most
vulnerable migrant population. These are just a few examples of
the care and compassion that defines CBP's values of vigilance,
service, integrity, and honor.
In regards to MPP, our primary responsibility involves
enrollment of individuals and facilitating them through the
ports of entry prior to and following their hearings. CBP's
operational framework is grounded by three key principles
essential to our mission. First, enforce the law and implement
policy. Second, ensure individuals in our custody are provided
care and afforded rights. Third, work collaboratively with our
interagency and international partners.
First, CBP is a law enforcement organization. We are
committed to enforcing our Nation's law and implementing the
policies of the Executive branch. I personally have worked
under 7 administrations, and while strategies change, there has
always been a commitment to enforcing the rule of law. To that
end, CBP carries out its responsibilities in accordance with
the U.S. laws and the DHS MPP policy guidance. CBP officers and
Border Patrol agents determine whether an encounter or
apprehended individual should be processed under MPP or under
other procedures such as expedited removal. These
determinations are made on a case-by-case basis and with the
appropriate supervisory review.
Trust in the rule of law is a pillar of our Nation and CBP
is committed to faithfully executing its responsibility, which
brings me to my second point, which is commitment to providing
care and communicating afforded rights to individuals
throughout the entire MPP process.
During an MPP determination, CBP procedures are designed to
identify the correct processing pathway for every migrant as
soon as possible. This includes providing multiple
opportunities to identify migrants in vulnerable populations.
Once enrolled, we provide individuals with a list of legal
service providers, including information on low-cost or free
legal services. We also care for the health and welfare of
migrants, which includes providing COVID vaccinations for MPP
enrollees. Additionally, if at any time MPP enrollee states
that he or she has fear of persecution or torture on return to
Mexico, that migrant is referred to a U.S. Citizenship and
Immigrations Services asylum officer for screening. CBP is
committed to providing care and communicating rights to
individuals throughout the MPP process.
Third, it is important to recognize the interagency and
international efforts in this area. CBP is one of many
organizations involved in implementing MPP, and we must work
effectively with all of our partners. DHS establishes guiding
policies and parameters of MPP, and implementation is
coordinated among multiple agencies. Within DHS, CBP works
closely with USCIS and ICE. We also coordinate closely with the
Department of Justice Executive Office for Immigration Review,
the Department of State, and the government of Mexico's
National Institute of Migration. Clear and timely communication
with non-governmental organizations is also a critical part of
this partnering effort.
Among other mandates, this administration has set a
benchmark of allowing all MPP enrollees to have a hearing
within 180 days. We work closely with our interagency
colleagues to help us take swift and decisive action to enroll
migrants, facilitate hearings, and meet administration's
priorities.
The border has always been a dynamic and complex
environment. For CBP, we will continue to do our part in
upholding the rule of law, ensuring individuals are properly
cared for, and being a trusted partner to all of the entities
working on this effort. Thank you for the opportunity to appear
today and I look forward to your questions.
[The prepared statement of Mr. Huffman follows:]
Prepared Statement of Benjamine C. ``Carry'' Huffman
March 2, 2022
Chairwoman Barragan, Ranking Member Higgins, and Members of the
subcommittee, it is my honor to appear before you today to testify
about the role of U.S. Customs and Border Protection (CBP) in the
court-ordered reimplementation of the Migrant Protection Protocols
(MPP).
I am proud to be here representing the men and women of CBP, who
serve the American people 24 hours a day, 7 days a week. Based on my
personal experiences of over 37 years in border security, I can attest
that CBP remains committed to balancing the need for enforcing our
Nation's laws, protecting U.S. economic interests, safeguarding the
health of the American people and our workforce, and providing
appropriate safety, security, and care for those in our temporary
custody.
The Department of Homeland Security (DHS), in consultation with its
components, and following negotiations with the Government of Mexico
coordinated by the Department of State, has been responsible for
establishing guiding policies and parameters of MPP. Implementation of
the day-to-day operations of MPP involves several U.S. and Mexican
Departments and agencies, with support from the International
Organization for Migration (IOM).\1\ Within DHS, CBP plays a central
role in MPP, coordinating closely with our law enforcement and
adjudicatory partners to ensure effective, consistent, and humane
application of immigration laws, policies, and procedures.
---------------------------------------------------------------------------
\1\ Within the Department of Homeland Security (DHS), U.S. Customs
and Border Protection (CBP), U.S. Citizenship and Immigration Service
(USCIS), U.S. Immigration and Customs Enforcement's (ICE) Enforcement
and Removal Operations (ERO) and Office of the Principal Legal Advisor
(OPLA), in addition to the Department of Justice's (DOJ) Executive
Office for Immigration Review (EOIR), and the Department of State.
---------------------------------------------------------------------------
For CBP, MPP has two basic operational parts--initial enrollments
and facilitating the passage of MPP enrollees through ports of entry
(POEs) on their way to and on their return from immigration court
hearings. The enrollment process includes the initial apprehension or
encounter; the determination of whether the individual is subject to
MPP; subsequent communication to MPP enrollees of enrollment
requirements; the coordination of a non-refoulement interview and
consultation with services providers for those enrollees who express a
fear of return to Mexico; the coordination of court hearing dates and
times; and the transport and return of the individual enrolled in MPP
to Mexico to await a hearing. The return of MPP enrollees for court
hearings involves processing them for temporary entry at designated
POEs, transferring custody to U.S. Immigration and Customs
Enforcement's Enforcement and Removal Operations (ICE ERO) for
transportation to and from hearings (where necessary), and processing
enrollees for their return to Mexico.
Migrants from Western Hemisphere countries other than Mexico who
are apprehended by U.S. Border Patrol (USBP) in the United States after
crossing without authorization between POEs may be assessed to
determine whether they may be subject to MPP. In March 2020, to reduce
the spread of COVID-19, DHS, in conjunction with the Department of
Justice's Executive Office for Immigration Review (DOJ EOIR), paused
all immigration court hearings for individuals enrolled in MPP.
Consistent with the January 20, 2021, memorandum issued by Acting
Secretary David Pekoske, CBP temporarily suspended new enrollments into
MPP pending further review.\2\ On February 2, 2021, President Biden
issued Executive Order (EO) 14010, Creating a Comprehensive Regional
Framework to Address the Causes of Migration, to Manage Migration
Throughout North and Central America, and to Provide Safe and Orderly
Processing of Asylum Seekers at the United States Border.\3\ In this
Executive Order, President Biden directed the Secretary of Homeland
Security to ``promptly review and determine whether to terminate or
modify the program known as the Migrant Protection Protocols'' and
``promptly consider a phased strategy for the safe and orderly entry
into the United States, consistent with public health and safety and
capacity constraints, of those individuals who have been subject to
MPP.''\4\ In response, Secretary Mayorkas initiated a comprehensive
review of MPP. CBP subsequently terminated MPP processes in accordance
with Secretary Mayorkas' June 1, 2021, memorandum.\5\ Following a court
order on August 13, 2021, permanently enjoining DHS from implementing
or enforcing the June 1 memorandum,\6\ CBP participated in the DHS-led
interagency effort to reimplement MPP.
---------------------------------------------------------------------------
\2\ Memorandum from David Pekoske, Acting Sec'y of Homeland Sec.,
Suspension of Enrollment in the Migrant Protection Protocol Program
(Jan. 20, 2021).
\3\ Exec. Order No. 14010, 86 Fed. Reg. 8267 (Feb. 2, 2021).
\4\ Id. at 8720.
\5\ https://www.dhs.gov/publication/dhs-terminates-mpp-and-
continues-process-individuals-mpp-united-states-complete-their.
\6\ https://www.dhs.gov/news/2021/08/24/dhs-statement-supreme-
court-decision-mpp.
---------------------------------------------------------------------------
New MPP enrollments under the court-ordered reimplementation of MPP
commenced on December 6, 2021, in the El Paso Sector, with noncitizens
reporting for their scheduled immigration court hearings beginning on
January 3, 2022. MPP enrollments expanded to the San Diego Sector on
January 3, 2022, with noncitizens reporting for their scheduled
immigration court hearings beginning February 1, 2022. On January 20,
2022, MPP enrollments expanded to the Rio Grande Valley Sector, with
noncitizens reporting for their scheduled immigration court hearings
beginning February 15, 2022. On February 28, 2022, MPP enrollments
expanded to the Laredo Sector, with noncitizens reporting for their
scheduled immigration court hearings beginning tentatively on March 28,
2022.
As DHS continues to work in good faith to reimplement MPP
consistent with the court order, MPP enrollments are expected to resume
in other Southwest Border locations and returns to Mexico facilitated
at 7 ports of entry in San Diego and Calexico, California; Nogales,
Arizona; and El Paso, Eagle Pass, Laredo, and Brownsville, Texas.
enrollment process
In accordance with the December 2, 2021, DHS Guidance Regarding the
Court-Ordered Reimplementation of the Migrant Protection Protocols,\7\
CBP officers and USBP agents, with appropriate supervisory review,
determine whether an encountered or apprehended individual should be
processed under MPP or under other procedures (e.g., expedited removal)
on a case-by-case basis. Inadmissible noncitizens encountered at the
Southwest Border within 96 hours of crossing between POEs are subject
to placement in MPP if they are nationals of any country in the Western
Hemisphere other than Mexico.
---------------------------------------------------------------------------
\7\ https://www.dhs.gov/sites/default/files/2022-01/
21_1202_plcy_mpp-policy-guidance_508.pdf.
---------------------------------------------------------------------------
The following persons are exempted from processing under MPP:
Unaccompanied children (UC),\8\ U.S. lawful permanent residents;
noncitizens with an advance parole document or in parole status;
noncitizens with criminal history; noncitizens of law enforcement
interest to the U.S. or Mexican Governments; and noncitizens with
particular vulnerabilities, such as those with a known mental or
physical health issue; a disability or a medical condition related to
pregnancy; particular vulnerabilities given their advanced age; and
those at increased risk of harm in Mexico due to their sexual
orientation or gender identity.
---------------------------------------------------------------------------
\8\ 6 U.S.C. 279(g)(2).
---------------------------------------------------------------------------
Upon initial MPP enrollment, CBP collects biometrics \9\ and all
available biographic information for the case file and proactively asks
questions to determine whether the individual possesses a fear of
return to Mexico. If, in response to those questions, or at any other
time while in the United States, an individual expresses a fear of harm
if returned to Mexico, the individual is referred to U.S. Citizenship
and Immigration Services (USCIS) for a non-refoulement interview.
---------------------------------------------------------------------------
\9\ CBP collects biometrics on all individuals age 14 and older
during the intake process.
---------------------------------------------------------------------------
Unless waived, individuals are to receive 24 hours to consult with
a legal services provider prior to the non-refoulement interview. This
24-hour period for consultation takes place in DHS facilities, and DHS
is to ensure that individuals have access to legal resource packets,
the ability to use telephonic or virtual means to contact counsel in a
confidential space, and interpretation services if needed. Individuals
who establish that there is a ``reasonable possibility'' that they will
be persecuted on account of a statutorily protected ground (race,
religion, nationality, membership in a particular social group, or
political opinion) or that they will be tortured in Mexico are not
subject to MPP and will not be returned to Mexico.
CBP coordinates with ICE ERO and DOJ EOIR liaison officers to
schedule the initial master calendar court hearing dates. When
individuals are enrolled in MPP, they are issued a Notice to Appear
(NTA) with the time and location of their initial court hearing, and an
informational tear sheet instructing them as to what time to appear at
the designated POE to allow sufficient time for processing,
transportation, and if necessary, meeting with their attorney or
accredited representative either in person or via remote communication
prior to the hearing. CBP also provides MPP enrollees with a DOJ EOIR
list of pro bono or low-cost legal service providers, specific to the
court location where the case is docketed.
MPP enrollees remain in CBP custody until return to Mexico can be
arranged. All individuals enrolled in MPP who meet COVID-19 vaccine
eligibility criteria are offered vaccinations and provided access to
food, water, and restroom facilities. Proof of a COVID-19 vaccination
is required for all individuals (age 5 and over) for reentry to the
United States. CBP provides the Mexican National Migration Institute
(INM) with an advance list of individuals who will be returned so that
Mexican immigration officials can prepare documentation that
temporarily permits the individuals to remain in Mexico pending their
immigration proceedings in the United States. Following local
agreements, CBP uses designated times and locations to coordinate the
return of MPP enrollees to Mexico.
return process for court hearing
Individuals enrolled in MPP wait in Mexico until their assigned
court date. The MPP enrollee is responsible for obtaining
transportation back to the POE, but in some cases, IOM and government
of Mexico services facilitate transportation from specified locations
in Mexico to the POE. MPP enrollees are instructed to arrive at the
designated POE so that there is sufficient time before their scheduled
hearings to meet with any retained counsel or legal representation in
advance of the hearing. Any attorneys \10\ or witnesses coming from
Mexico to attend removal proceedings or meet with clients must present
themselves at a POE to be inspected and admitted to the United States,
or considered for parole, consistent with all U.S. laws and policies.
Attorneys and witnesses do not accompany MPP enrollees through the
inspection process; they are processed separately and must arrange
their own transportation to the hearing facility.
---------------------------------------------------------------------------
\10\ In order to practice before DOJ EOIR, the attorney must be
licensed in a U.S. State, territory, or the District of Columbia, or be
accredited by DOJ EOIR.
---------------------------------------------------------------------------
At the POE, CBP officers use biometrics to verify the returning
individual's identity, ensure requisite documents are in place, and
process the individual to enter the United States for the immigration
court hearing. CBP officers may use the CBP OneTM App to
conduct identity verifications. This allows DHS users to submit a
photograph to return biographic details of an individual including
name, date of birth, A-number (alien number) if any, and citizenship.
If CBP OneTM is not available, CBP officers will utilize
other available means to conduct the required biometric verification.
Once identity verification is complete, ICE ERO assumes custody and
is responsible for the transportation or escort of MPP enrollees
between the POE and court location, as well as the custody and care of
the enrollees during all court proceedings. DOJ EOIR conducts the
hearing with ICE's Office of the Principal Legal Advisor (ICE OPLA)
representing the U.S. Government in proceedings. If the individual
receives a final order of removal from an immigration judge, or is
granted protection or relief from removal, they will be processed in
accordance with ICE ERO policies and procedures. If the individual's
removal proceedings remain on-going, ICE ERO will transport the
individual back to the POE for coordination of return to Mexico. MPP
enrollees typically return to the United States for multiple hearings.
DHS established temporary immigration hearing facilities (IHFs) in
Laredo and Brownsville in September 2019 to facilitate removal
proceedings at the actual POE. Although these facilities were partially
demobilized when MPP enrollments were suspended, the facilities were
redeployed in the fall of 2021 and are fully operational. With MPP
enrollees physically in the IHF, immigration judges conduct proceedings
by video teleconference, and processes are designed to be as consistent
as possible with DOJ EOIR guidance for in-person immigration court
proceedings in permanent facilities. Just as in DOJ EOIR facilities,
individuals at IHFs have the opportunity to meet with counsel or legal
representatives ahead of their hearings in a confidential setting.
Because the facilities are located within the physical space of
existing POEs, access must be prioritized for those critical to the
hearings, such as witnesses, family members, interpreters, and
attorneys and accredited representatives who are representing
individuals in these proceedings.
After the hearing, ICE ERO transports or escorts the enrollee to
the POE. CBP then returns any of the enrollee's possessions that were
held at the POE and, if a new hearing date was scheduled, issues a new
tear sheet with instructions on the date, time, and POE to which they
must report for their next hearing date. The individual is then
processed for return to Mexico.
Again, if at any time while in the United States the MPP enrollee
affirmatively states a fear of return to Mexico, they are referred to
USCIS for a non-refoulement interview. If USCIS determines that there
is a reasonable possibility that the individual will be persecuted or
tortured in Mexico, the individual is disenrolled from MPP and CBP
coordinates with ICE ERO to determine whether the individual may be
maintained in custody or paroled, or if another disposition is
appropriate. In this situation, the individual may not be subject to
expedited removal, and may not be returned to Mexico to await further
proceedings.
CBP will again provide INM with an advance list of MPP enrollees
who will be returned so that it can prepare documentation that
temporarily permits the individuals to remain in Mexico until their
next hearing date.
CBP established dedicated MPP teams consisting of a combination of
Office of Field Operations (OFO) and USBP personnel who are available
to assist port and station personnel with questions or concerns about
implementing MPP procedures. In addition, CBP welcomes assistance from
the DHS Office of the Immigration Detention Ombudsman, which provides
on-site visitation to MPP enrollees to observe implementation of MPP
and reviews access to legal counsel. Each participating port and
station have a designated MPP point of contact to ensure effective
communication and coordination within CBP and with our Federal and
international partner agencies.
conclusion
CBP will continue to work with our partners to ensure MPP is
applied appropriately, consistent with policy, and that MPP enrollees,
including those who fear returning to Mexico, are provided clear
information about their rights and responsibilities under MPP, and are
treated with civility and in accordance with U.S. law and our mission.
We will also continue to assess and reassess our performance,
processes, and procedures to find areas where we can further improve
MPP and better collaborate with our partners across the Department and
Federal Government.
Thank you for the opportunity to testify. I look forward to your
questions.
Chairwoman Barragan. Thank you, Mr. Huffman, for your
testimony. I now recognize Ms. Mendrala to summarize--sorry--
Ms. Mendrala to summarize her statement for 5 minutes.
STATEMENT OF EMILY MENDRALA, DEPUTY ASSISTANT SECRETARY,
WESTERN HEMISPHERE AFFAIRS, U.S. DEPARTMENT OF STATE
Ms. Mendrala. Thank you. Chairwoman Barragan, Ranking
Member Higgins, Ranking Member Katko, and Members of the Border
Security, Facilitation, and Operations Subcommittee, thank you
for inviting me to testify before you today. As deputy
assistant secretary for the Bureau of Western Hemisphere
Affairs at the State Department, I am honored to have this
opportunity to discuss the Department's role in the
implementation of the Migrant Protection Protocols, or MPP.
This year marks the bicentennial of bilateral relations
between the United States and Mexico. Our two governments share
deep commitments to humane and orderly migration, transnational
security, and economic prosperity in the Western Hemisphere.
The Biden-Harris administration has repeatedly stated that MPP
has endemic flaws, imposes unjustifiable human costs, and pulls
resources and personnel away from other priority efforts. As
the appeals process continues, we are working closely with the
government of Mexico in accordance with the court order
requiring us to make good-faith efforts toward reimplanting
MPP.
On December 2, 2021, the government of Mexico publicly
announced its independent decision to accept individuals
returned from the United States to Mexico under the
reimplementation of MPP. The U.S. Government announced measures
to mitigate safety and protection risks to MPP enrollees,
addressing humanitarian concerns also shared by the government
of Mexico.
The U.S. Government leveraged the State Department's
expertise supporting humanitarian programs to make available
relevant support to MPP returnees in Mexico as we do for other
vulnerable migrants or asylum seekers. The Department's Bureau
of Population, Refugees, and Migration, or PRM, supports on-
going programming through humanitarian partners in Mexico for
shelter, legal orientation programs, psychosocial services,
access to Wi-Fi, and other support for which all vulnerable
migrants, including MPP enrollees, are eligible. The Department
of State is also supporting access to COVID-19 testing for MPP
migrants prior to arrival at a port of entry to reenter the
United States to attend court.
In the previous implementation of MPP, some MPP enrollees
were preyed upon by criminal groups upon reentry to Mexico. To
mitigate this risk, the State Department is supporting
facilitation of humane transportation for MPP enrollees in
Mexico between shelters and ports of entry. Our international
organization partner provides this transport assistance. Return
times are coordinated to minimize travel within Mexico after
dark or before sunrise. The government of Mexico provides
security escorts for transport to further minimize risks.
In negotiations with Mexico, we arranged for a dignified
and organized reception in Mexico where Mexican authorities
immediately provide MPP enrollees with documentation upon
arrival that allows them to access local services and
permission to work legally in the country. The Department of
State, our international organization partners, provide
assistance to ensure access to local services based on
eligibility as determined by the government of Mexico.
As we continue to work closely with the government of
Mexico in accordance with the court order, the administration
maintains that MPP contains endemic flaws and poses
unjustifiable human costs and pulls resources and personnel
away from other priority efforts. The United States and Mexico
share an interest in sustainable solutions that humanely reduce
irregular migration and forced displacement in, from, and
through the region. This requires a comprehensive, long-term
approach that works to address the root causes of irregular
migration and forced displacement, while simultaneously
enhancing collaborative regional approaches to expand access to
international protection and other legal migration pathways and
to humanely manage unprecedented mixed migration flows through
consistent border enforcement, visa regimes, and other tools.
Madam Chairwoman, Ranking Member, and Members of the Border
Security, Facilitation, and Operations Subcommittee, thank you
again for the opportunity to testify and I look forward to your
questions.
[The prepared statement of Ms. Mendrala follows:]
Prepared Statement of Emily Mendrala
March 2, 2022
Chairwoman Barragan, Ranking Member Higgins, and Members of the
Border Security, Facilitation, and Operations Subcommittee--thank you
for inviting me to testify before you today. As deputy assistant
secretary for the Bureau of Western Hemisphere Affairs at the State
Department, I am honored to have this opportunity to discuss the
Department's role in the implementation of the Migrant Protection
Protocols (MPP).
This year marks the bicentennial of bilateral relations between the
United States and Mexico. Our two governments share deep commitments to
humane and orderly migration, transnational security, and economic
prosperity in the Western Hemisphere. The Biden-Harris administration
has repeatedly stated that MPP has endemic flaws, imposes unjustifiable
human costs, and pulls resources and personnel away from other priority
efforts. As the appeals process continues, we are working closely with
the government of Mexico in accordance with the court order requiring
us to make good-faith efforts toward re-implementing MPP.
On December 2, 2021, the government of Mexico publicly announced
its independent decision to accept individuals returned from the United
States to Mexico under the re-implementation of MPP. The U.S.
Government announced measures to mitigate safety and protection risks
to MPP enrollees--addressing humanitarian concerns also shared by the
government of Mexico. The U.S. Government leveraged the State
Department's expertise supporting humanitarian programs to make
available relevant support to MPP returnees in Mexico as we do for
vulnerable migrants or asylum seekers. The Department's Bureau of
Population, Refugees, and Migration (PRM) supports on-going programming
through humanitarian partners in Mexico for shelter, legal orientation
programs, psychosocial services, access to Wi-Fi, and other support for
which all vulnerable migrants, including MPP enrollees, are eligible.
PRM is also supporting access to COVID-19 testing for MPP migrants
within 3 days prior to arrival at a POE to re-enter the United States
to attend court.
In the previous implementation of MPP, some MPP enrollees were
preyed upon by criminal groups upon reentry to Mexico. To mitigate this
risk, State/PRM is supporting facilitation of humane transportation for
MPP enrollees in Mexico between shelters and ports of entry. Our
international organization partner provides this transport assistance.
Return times are coordinated to minimize travel within Mexico after
dark or before sunrise. The Government of Mexico provides security
escorts for transports to further minimize risks.
In negotiations with Mexico, we arranged for a dignified and
organized reception in Mexico where Mexican authorities immediately
provide MPP enrollees with documentation upon arrival that allows them
access to local services and permission to work legally in the country.
PRM international organization partners provide assistance to ensure
access to local services based on eligibility as determined by the
government of Mexico.
As we continue to work closely with the government of Mexico in
accordance with the court order, the administration maintains that MPP
contains endemic flaws, imposes unjustifiable human costs, and pulls
resources and personnel away from other priority efforts. The United
States and Mexico share an interest in sustainable solutions that
humanely reduce irregular migration and forced displacement in, from,
and through the region. This requires a comprehensive long-term
approach that works to address the root causes of irregular migration
and forced displacement while simultaneously enhancing collaborative,
regional approaches to expand access to international protection and
other legal migration pathways and to humanely manage unprecedented
mixed migration flows through consistent border enforcement, visa
regimes, and other tools.
Madame Chairwoman, Ranking Member, and Members of the Border
Security, Facilitation, and Operations Subcommittee--thank you again
for the opportunity to testify. I look forward to your questions.
Chairwoman Barragan. Thank you so much for your testimony.
I want to thank the witnesses, all of you, for your testimony.
I will remind the subcommittee that we will each have 5 minutes
to question the panel. I will start with myself and then we
will alternate with the first question going to you, Mr.
Huffman of CBP. Mr. Huffman, are migrants allowed to share
information regarding the Notice to Appear and other MPP-
related documents with advocates?
Mr. Huffman. Yes, ma'am, they are to those advocates that
have been recognized to represent them, certainly they can
share their information.
Chairwoman Barragan. Mm-hmm. Would a sitting Member of
Congress be allowed to photograph an individual's NTA if that
individual grants permission?
Mr. Huffman. So, ma'am, I think it has been a long-standing
procedure for CBP, and has for years, to protect the--in the
interest of protecting the migrant--the security and the
privacy of migrants. When they are in our custody, in our care,
they are not allowed then to be photographed or take those
pictures as you described what happened to you the other day. I
mean, I regret it that you didn't--you weren't satisfied with
your interaction that day, but just to be clear, that is not--
that is how we have always done it with folks that are in our
custody or in our care is to limit access to others outside
the--not certified to represent them in those cases.
Chairwoman Barragan. OK. Mr. Huffman, just so you are
aware, this was not trying to take a picture of the migrant.
This was the migrant trying to give me his information so I
could follow up on the separation of him and his son and was
offering it to me. So, I just, you know, I think it is--as a
lawyer, when there is an attorney-client privilege, the
privilege belongs to the client. In this case, I think the
privacy belongs to the migrant if they, you know, want somebody
to follow up and I don't see the harm in doing that. Again, it
was not a picture of the migrant. It was simply a picture of
his Notice to Appear to get his information down.
OK. My second question goes to Mr. Nunez-Neto. Would you
say that this administration prioritizes keeping families
together?
Mr. Nunez-Neto. Yes, Chairwoman, DHS is committed to
preserving family unity.
Chairwoman Barragan. OK. Now, I just want to remind you
like during my oversight trip, I met with a migrant who was, as
I mentioned, illiterate and separated from his 23-year-old son
and he was enrolled in MPP. How does that align with the policy
of keeping families together?
Mr. Nunez-Neto. Thank you, Chairwoman, for that question.
As you know, the definition of a family unit that DHS uses is
based on the TVPRA definition of an unaccompanied child. It
basically notes that a parent or a legal guardian traveling
with the minor children is a family unit. Parents traveling
together with adult children have traditionally not been
treated as a family unit at the border. They have been treated
as single adults. That said, we have directed CBP to ensure
wherever possible that individuals who are traveling together
and are subject to MPP, should either be enrolled together or
disenrolled together if they have familial ties. As Chief
Huffman would likely point out, however, this can be pretty
difficult to operationalize, you know, in the border depending
on when and how people cross.
Chairwoman Barragan. OK. Well, I want to just encourage you
and the administration to rethink the family unit definition,
and as you mentioned, trying to keep families together. It just
was a little challenging to see a vulnerable elderly man being
the one that was an MPP and separated.
I just want to follow up to my second question as well, can
DHS or CBP, do you have the power to alter the guidelines on
how to define a family?
Mr. Nunez-Neto. Chairwoman, we are happy to work with you
and the committee on what our current policies are and maybe
have a conversation around, you know, what we can do to better
reflect our shared concern about family--families being kept
together.
Chairwoman Barragan. OK. Maybe my question is kind-of just
directed on who has the authority to change that definition? Is
it DHS? Is it CBP? Is it somebody else?
Mr. Huffman. On behalf of CBP, I don't believe we have the
authority to change that definition. I think that is a policy
issue and then as Mr. Nunez-Neto reflected, it is codified in
the TVP--TV Protected Trafficking Victims Protection Act, as
well. So, that would be a policy-level decision, perhaps even a
legislative change. I am not really sure.
Chairwoman Barragan. OK. My understanding is that DHS has
the written guidance on MPP guidelines and so, it would be DHS,
but we can, you know, talk about that off-line more.
I want to move on to question--well, with my time expiring
here, with only 7 seconds left, I am going to--I am going to go
ahead and wrap up. I just thank our witnesses for being here
and your willingness to answer questions. Votes are going to be
called around 20 minutes or so. So, I want to make sure we give
everybody ample time to get questions in as much as they can
before they have to run to vote.
So, with that I will wrap up and I will now recognize the
Ranking Member of the subcommittee, the gentleman from
Louisiana, Mr. Higgins, you are recognized for your 5 minutes.
Mr. Higgins. I thank the Chairwoman. Mr. Nunez-Neto, in
your written testimony, you say that as of February 28, a total
of 1,602 individuals have been enrolled in MPP and 893 of them
have been returned to Mexico, while 181 are still being
processed. But not all individuals who are enrolled in MPP are
actually returned to Mexico since some are disenrolled due to a
particular vulnerability or a positive determination of their
non-refoulement interview. The numbers here seem very low. At
the reference from January 2019 through January 2021, nearly
70,000 individuals were enrolled in MPP and the program was
stopped. Now it allegedly is being reinstituted.
Most Americans get the sense, as we reasonably assess this
alleged good-faith effort to reinstitute MPP, as reflective of
the court order, most Americans would reasonably assess that a
good-faith effort is being slow-rolled at best or being
resisted perhaps would be more accurate. Sir, do you support
MPP as a policy or do you oppose it?
Mr. Nunez-Neto. Thank you, Ranking Member. As I have noted
in my written testimony and oral statement, this administration
opposes the MPP, but is committed to reimplementing it per
the----
Mr. Higgins. OK. So,----
Mr. Nunez-Neto [continuing]. Court order in good faith.
Mr. Higgins [continuing]. Thank you. Thank you for that
clarification. So, why would--why would we expect DHS to
legitimately comply with the court order in good faith when it
is clear that DHS leadership opposes MPP as a policy? I think
it is, I mean, we expect compliance with the law. That means to
fully comply with the law means to bring all your authority to
bear on compliance with that law. That would be the definition
of a good-faith effort. But what we are seeing in these numbers
are certainly translate to a lack of actual effort to comply.
How long do you think it would take for MPP to be fully
implemented? In fact, what would the numbers need to be for you
to say it is now fully reimplemented given the fact that we are
trending another 2 million-plus illegal crossings this year?
What would be a success? You say, how should America measure a
good-faith effort to reimplement MPP reflective of the court
order that exists?
Mr. Nunez-Neto. Thank you, Ranking Member. I would like to
point out that the previous implementation of MPP took a number
of months to ramp up and increase enrollments. We are actually
in line with their numbers for the first couple of months of
implementation. That said, we are implementing MPP during a
global pandemic and the government of Mexico has required that
individuals be tested and quarantined when they are returned to
Mexico. That has limited to some extent our ability to enroll.
We are hopeful that as the pandemic eases and restrictions
begin to be raised, that we will be able to increase
enrollments a little faster. We are committed----
Mr. Higgins. Well, let me----
Mr. Nunez-Neto [continuing]. To doing this in good faith,
sir.
Mr. Higgins [continuing]. Let me just in the interest of
time, let me just clarify that our understanding is that the
illegal immigrants that are not returned to Mexico that are
released into the interior of America are not tested for COVID.
That is my understanding. They are distributed across the
United States without getting tests. So, I appreciate you
pointing out that we are dealing with COVID. We are now well
into the third year or 14 days to flatten the curve. So, we are
all very familiar with the barriers that COVID has presented.
But the sanctity of our sovereign border is at stake. We
are losing our Nation at the Southern Border.
Under MPP, Mr. Nunez-Neto, my final question, please
explain what happens to migrants who are specifically
disenrolled in MPP when they do not appear in front of an
immigration court as specified in their custody paperwork? What
happens if they don't show up for court?
Mr. Nunez-Neto. Sir, individuals who are disenrolled from
the MPP would be processed under a different Title 8 pathway,
and that could include expedited removal or some other
authority. For individuals who are enrolled in MPP and who do
not show up for their court hearing, some of that really
depends on the immigration judge and, you know, the OPLA ICE
attorneys' determination. But we are already seeing some in
absentia orders of removal being issued.
Mr. Higgins. That would be by ICE? You are saying they
would be referred to ICE?
Chairwoman Barragan. The gentleman's time has expired.
Mr. Higgins. Thank you, Madam. Perhaps he could answer that
final question.
Chairwoman Barragan. Well, I specifically cut my questions.
I stopped without even asking another question when I had 7
seconds left because I want to make sure we get to the
Minority's witness as quickly as we can because there is going
to be a huge interruption with votes. My concern is who will be
engaged in returning.
Mr. Higgins. Yes, ma'am.
Chairwoman Barragan. So, I am going to----
Mr. Higgins. That was a yes or no question, but I
understand. I yield.
Chairwoman Barragan. OK. The witness is welcome to in his
next question to answer the question if he would like. The
Chair will now recognize other Members for questions they may
wish to ask the witness. As previously outlined, I will
recognizes Members in order of seniority, alternating between
Majority and Minority.
Members are reminded to unmute themselves when recognized
for question. The Chair recognizes, for 5 minutes, the
gentleman from California, Mr. Correa.
Mr. Correa. Thank you, Madam Chair. I want to thank all of
our witnesses for being here with us today. You have a
difficult job. We all have a very challenging job. I kind-of
agree with Mr. Higgins. We have, you know, the numbers are
probably very significant. But I do believe that we can protect
our border and accept more refugees to the United States, after
all, we are a country of immigrants.
You know, as part of my job here being on Homeland, I try
to go out and look at the field to see what you all are doing,
what your challenges are. Last year, I went out to El Paso,
Texas to address the refugee challenges there and I remember I
met the two young ladies, Yuri and Yareli, the 3- and 5-year-
old girls that had been thrown over the border by smugglers.
Mr. Huffman, if it wasn't for your smart and alert border
officers, those young ladies would have perished out in the
desert. So, thank you and thank them.
You know, I met with Central American ambassadors in the
past few months, and one of them was telling me that probably
80 percent of those refugees from his country, by the time they
get to the United States border, 80 percent of the women are
sexually violated and molested. It is an ugly road, but when
you are hungry, when your life is threatened, you take risks.
You know, I wish I could say this thing is going to get
better, but I took a tour out to Tijuana, San Ysidro border
crossing about a month ago. As I was crossing the border, I
started up a conversation with a Border Patrol border agent,
and he jokingly asked me if I knew Russian. I asked him, I
said, what is your punchline, bro? He said, you see those 20
vehicles in secondary inspection? I said, yes, I do. He says,
they are full of Ukrainian and Russian immigrants, and a lot of
those guys try to run the border with their vehicles, and we
have stopped them. My point to you is, given what is going on
in Russia right now, given what is going on in Ukraine, given
what is going on in other parts of the world, this problem is
not going away. We have to figure out, like Mr. Higgins said,
how to protect our borders. But like I would say, how to open
up our borders to refugees that we can accept and be part of
our great country and our great society.
I concur with the Chairperson. I have opposed the Remain in
Mexico policy for a lot of reasons and part of it is that I
have seen that it doesn't work. I know President Biden ended
this policy, but apparently now he is expanding it. So, you
know, without debating this a little bit, the facts are the
facts. Without debating this, I would ask you, gentlemen, and
as witnesses, just help us come up with a solution here. Can we
come up with ways to have these refugees possibly, you know,
apply for refugee status in their home country? What can we do
to keep them safe? It breaks my heart when I see human beings
that look my family, that look like my neighbors be in such
dire straits. Mr. Nunez-Neto, what do you think? What can we do
in the 2 minutes I have left? Thank you.
Mr. Nunez-Neto. Thank you for that question, sir. I agree
wholeheartedly with you that there is more that needs to be
done. As I noted in my opening statement, you know, we haven't
reformed our immigration system in decades. Our laws are simply
outdated and have not kept up with the changes that we have
seen at the border. We are seeing surges of migration happen--
--
Mr. Correa. I would probably say, sir, that our immigration
laws have not changed and kept up with the reality of the
world.
Mr. Nunez-Neto. That is right.
Mr. Correa. Continue.
Mr. Nunez-Neto. No, I agree completely, sir. That is why I
think, you know, you have seen administrations of both parties
move through executive action to make changes. I do not believe
that is the way----
Mr. Correa. Very quicky--I am sorry to cut you off. Mr.
Huffman, like I mentioned to you, out in El Paso, your agents
were excellent using that electronic infrared night stuff to
patrol the borders. What can we do better in that respect?
Mr. Huffman. So, I appreciate you recognizing the acts of
our agents. As I mentioned in my thing, I do believe we are the
most humanitarian law enforcement agency in the country because
of the circumstances we have been put into and we have been
placed into that role. The reliance on that technology is great
and the support we get from Congress to allow us to increase
our reliance on technology to give us greater situation on what
is going on around on the Southwest Border is huge. Those kind
of things help us effect those type of rescues, plus help us
secure the border, and address the narcotics smuggling issue,
all those things together. The technology, and the personnel,
and the infrastructure, are key to our success on the Southwest
Border----
Mr. Correa. How much time----
Mr. Huffman [continuing]. In addition to----
Mr. Correa [continuing]. Do I have left, Madam Chair?
Chairwoman Barragan. Thank you. Your time has expired. I
was about to chime in as he was completing his----
Mr. Correa. Thank you very much.
Chairwoman Barragan [continuing]. His response. The
gentleman yields.
Mr. Correa. Yes.
Chairwoman Barragan. The Chair recognizes, for 5 minutes,
the gentleman from Mississippi, Mr. Guest.
Mr. Guest. Thank you, Madam Chairwoman. Mr. Nunez-Neto, I
want to talk a few minutes and walk through a couple things. It
appears from your testimony, your written testimony, a brief
history that on February the 2nd, President Biden issued an
Executive Order directing Secretary Mayorkas to review MPP.
Five months later, on June the 1st of 2021, Secretary Mayorkas
concluded and issued a memorandum that the program should be
terminated. Following that there was a court challenge to that
on August the 13th 2021. The Federal court from the Northern
District of Texas ordered this program to continue or to be
reimplemented. There was an appeal of that both to the 5th
Circuit and later to the Supreme Court, both of which were
denied. You say there in your testimony, you say DHS is
required to abide by the order to reimplement the program in
good faith, and has continued to do so, demonstrating this
administration's commitment to the rule of law.
So, looking at recent border figures, in December of last
year, the total number of encounters along the Southwest Border
was 179,219 individuals. In January, that number dropped to
153,941. So, taking the January figures for total numbers of
encounters at 179,219, and then looking at the individuals from
the statistics I have that were enrolled in the program and
actually returned to Mexico, I see only 191 individuals. So, if
my math is correct, that would be less than 1/10 or almost
right at 1/10 of 1 percent of every encounter that was returned
to Mexico in December. Looking at January's figures, again in
January, 153,941. There were 212 that were returned in the
initial program, and another 42 in the post-reentry. Again, a
staggering figure of barely over 1/10 of 1 percent.
So, with figures that are so low that they barely register,
it is difficult for me and other Members on this committee for
us to believe that you are acting in good faith to reinstitute
this program. I want to give you a brief opportunity to explain
how those figures being so miniscule, how we can have faith
that you are doing what you say you are doing, which is acting
in good faith and following the law. Because that is what, as
law enforcement officers at the Department of Homeland
Security, we are required to follow the law whether we like it
or not. You have been very clear. You don't like the law. You
think it is a bad law. You think it should go away. The
Secretary thinks that. The President thinks that. The court has
now ordered you to do that and it seems to us that you are just
saying we don't care what the Federal court says, we will
deport a handful of people, but it is less than 1/10 of 1
percent. So, please share with me, please convince me during
these next couple of minutes, as to how you and how the
Department is acting in good faith on a policy that you are
very clear you don't like, you disagree with, and you wish you
didn't have to apply.
Mr. Nunez-Neto. Yes, thank you, Representative. I would
like to point out just right off the bat that we are still
implementing the CDC's Title 42 Public Health Authority at the
border. So, in the month of January, as you noted, roughly half
of the individuals we encountered of that number you cited were
actually expelled under Title 42 and were not processed under
Title 8 authorities. That said, you know, as I noted in my
previous answer, under the Trump administration, it took a few
months for MPP to ramp up enrollments. It is a new program. It
takes a while for us to get started. We are doing this during a
pandemic and Mexico has imposed some restrictions on how we can
return people, including when and the kind of testing and
quarantine that needs to be available on the Mexican side for
them to accept people.
So, we are committed to increasing enrollments. We are
working with DOJ to add immigration judges and courtrooms. We
are working internally to streamline our processes. We have
been expanding across the border and just started in Laredo,
Texas this week. So, sir, with all due respect, we are
implementing in good faith and are committed to continuing to
expand enrollments in the coming months.
Mr. Guest. Thank you. Very quickly, Mr. Huffman, thank you
first for your service. I want to ask you if you agree with
this statement, the director of the Arizona Department of
Homeland Security, who is in our second panel, made this
statement. When applied properly, MPP helps protect the lives
of every Arizona communities and those throughout the Nation.
When MPP--with MPP, law enforcement spends less time chasing
the same traffickers, smugglers, and coyotes, and more time
protecting Arizona and America. Do you agree with that
statement?
Mr. Huffman. So, again, thank you for the question and the
opportunity to respond to that. I haven't heard the statement
previously, but as I think even the Secretary recognized, there
was some success with MPP of reducing flows across the
Southwest Border, although there was a lot of other things
going on at the same time to understand how MPP was really, I
don't want to say pressure-tested under the circumstances we
have now, but as my colleague from DHS said, we are committed
to implementing in good faith as best we can. We continue to
find efficiencies at the border to make it work better and
faster. One of the challenges is it involves the
synchronization of many organizations outside of just CBP and
DHS to make it work, to reconstruct that, and get it in place
is taking a little bit of time. But it is consistent with the
numbers--if you measure against the same time from the same
time period last time to this time, so far the numbers are
pretty consistent. We hope to ramp up as we increase, as you
mentioned the availability for court, but we are working hard
to get there as fast as we can.
Chairwoman Barragan. The gentleman's----
Mr. Guest. Thank you, Madam Chairman. I yield back.
Chairwoman Barragan. Thank you. The gentleman yields back.
The Chair recognizes, for 5 minutes, the gentleman from North
Carolina, Mr. Bishop, for 5 minutes.
Mr. Bishop. Thank you, Madam Chairman. Mr. Nunez-Neto, I
noticed that your testimony began, Mr. Guest followed up, and
Ms. Mendrala's testimony also began with making clear that you
disapprove the policy behind the MPP. Of what relevance is
that? You would agree with me wouldn't you that if you have got
an obligation under law, that you have to perform the
obligation under law without regard to whether you like or not.
Isn't that true?
Mr. Nunez-Neto. That is true, sir, and we are, as I have
noted, complying in good faith with the court order and we
believe very much in the rule of law.
Mr. Bishop. Yes, but you didn't answer my question. Of what
relevance is it and why do you start off your statement by
making clear that you disapprove the law that you are required
by court to follow?
Mr. Nunez-Neto. We disapprove of this program and the
President and the Secretary have made quite clear that MPP is
not aligned with this administration's values, and actually
distracts from some of the important priorities that we have
that we believe will have a similar effect on reducing border
flows, sir.
Mr. Bishop. So, now you have repeated your preference. But
again, my question is, you are supposed to carrying out the
law. The Constitution requires you faithfully to execute the
law. So, my question is, not why you believe--not why your
preferences are what your preferences are, but why do you start
your testimony before this committee concerning compliance with
MPP, compliance with the court's order, why do you begin it by
telling us what your preferences are?
Mr. Nunez-Neto. Sir, we believe the law supports our
position that the Secretary has the authority to terminate MPP.
We are committed to fighting the court's order all the way up
to the Supreme Court, if needed, and have done so already, and
will continue to do so, and are looking forward to the
arguments before the Supreme Court, which will happen in April.
Mr. Bishop. Would it be--but that doesn't change the fact
of what your legal duty is now, does it, sir? You are under an
obligation by order of a court. In fact, the U.S. Supreme Court
has declined to grant a stay from that order, right?
Mr. Nunez-Neto. That is correct, sir, and that is why we
have moved forward with implementation and are reimplementing
in good faith with the court's order.
Mr. Bishop. Would it be possible to sabotage a policy with
which you disagree even while professing that you are
proceeding in good faith to execute it?
Mr. Nunez-Neto. All I can say to that, sir, is that we are
committed to implementing in good faith. We have worked around
the clock many thousands of hours across the U.S. Government to
reimplement this program that we disagree with. We are
committed to continuing to comply in good faith and continue to
increase enrollments even as we fight this court order.
Mr. Bishop. Yet we have the sheer data that indicates that
given the level of illegal migration at the border, almost none
of the persons being encountered are being put into MPP.
Mr. Huffman, I would like to ask you, I noted that as being
implemented, if there is a--people will be disqualified from
MPP or not put into MPP if they have a physical or mental issue
or some other disability, but a physical or mental issue. What
would prevent lawyers from--that are furnished to prospective
enrollees, from coaching them to say that they are depressed or
have anxiety? Would that then--if they then repeated that to a
CBP agent, would that keep them from being going into MPP?
Mr. Huffman. Sir, thank you for the question and for that.
So, not really having privy to what their consultation with the
attorneys are, but certainly people have been enrolled and then
disenrolled when vulnerabilities were found out at a later
time. How they arrived at those vulnerabilities, or how they
became, I don't really have insight into. But the scenario you
described, I guess is certainly possible.
Mr. Bishop. So, well, then what are the prophylactic
devices or prophylactic measures to make sure you are not
susceptible to just fraudulent manufacturing of evidence or
indications like that to keep somebody from being enrolled in
MPP?
Mr. Huffman. Sir, we try to focus on those when we are
deciding who is going to be the best suitable candidate to be
enrolled into the program would be least likely having any
vulnerabilities that would show up at a later date because for
us to enroll someone, and then have to disenroll them, is a--it
takes time, operational time away from the work. So, we focus
on those that we are confident will--we have a high likelihood
to get through the program and not become vulnerable or
declared vulnerable at a later date.
Mr. Bishop. So, I don't hear any protection for that
whatsoever, which to me, it sort-of gives the lie to entire
notion of a good-faith compliance. If you start off your
statement by saying you don't want to, you know, you despise
the program. You note your obligatory obligation to faithfully
to--excuse me--to execute in good faith and dispose one notion
to the courageous CBP right there. There is no defense for
that. You can just evade it at will. That is what I think is
happening. So, I yield back.
Chairwoman Barragan. Thank you. The gentleman yields back.
The Chair will now recognize, for 5 minutes, the gentleman from
Georgia, Mr. Clyde, you are now recognized.
Mr. Clyde. Thank you, Madam Chairwoman. OK. This question I
have is for Ms. Mendrala. Thank you for your testimony, ma'am.
Twice in your statement, you say the Biden-Harris
administration has repeatedly stated that MPP has endemic flaws
and poses unjustifiable human costs and pulls resources and
personnel away from other priorities. Now, can you justify that
statement for me? I mean, do you support--first off, do you
support MPP?
Ms. Mendrala. Thank you for the question, sir. As my
colleague from DHS recently stated, the administration has
repeatedly----
Mr. Clyde. Ma'am?
Ms. Mendrala. Can you hear me? Hello, can you hear me?
Chairwoman Barragan. We can hear you. We can hear you.
Mr. Clyde. I have got you now.
Ms. Mendrala. OK. As my colleague from DHS has repeatedly
said, the administration has stated on several occasions that
the--that it does disagree with the policy of MPP but is,
nevertheless, committed to the rule of law and to implement in
good faith the court order to reimplement MPP.
Mr. Clyde. OK. But you say it has endemic flaws and poses
unjustifiable human costs. All right. I mean, I am not seeing
unjustifiable human costs. I am not seeing endemic flaws in the
MPP. In fact, I think it is a vital program that is both fair
and necessary. The MPP is the law of the land and the courts
have rightly ordered DHS to implement it. So, that is what DHS
needs to be doing and doing it wholeheartedly.
The purpose of the MPP is to ensure people that are coming
illegally across our border stay in Mexico. Those who have that
desire and that request for asylum that they stay outside our
country so that they don't just forget to show up for their
asylum hearing and end up in our country as an illegal, as an
illegal immigrant. So, I think it is a very important program.
I think that the administration is way off-base in fighting
this program. Obviously, it is the law. It is legal. It is
fair. It is humane, all right? I don't believe the court would
have ordered it to be implemented if it was--if it imposed
unjustifiable human costs. I think that is totally
inappropriate--or had endemic flaws.
My next question for you. In your testimony, you say, state
PRM is supporting facilitation of human transportation for MPP
enrollees in Mexico between shelters and ports of entry. Our
international organization partner provides this transportation
assistance. So, who pays for this? Are there tax dollars
involved?
Ms. Mendrala. Yes, sir. It is funded by the Department of
State through our Bureau of Population, Refugees, and
Migration.
Mr. Clyde. OK. So, there are tax dollars involved here. All
right. So, what you are saying then is you are paying for
transportation in another country, in Mexico, to bring these
people from wherever they are to the port of entry. You know,
they got to the border by themselves the first time they showed
up. Now, here we are paying using taxpayer dollars to bring
them for wherever they are in Mexico back to the border for
their hearing. Now, what is your obligation under the law to
provide that transportation?
Ms. Mendrala. Sir, the court ordered us to reimplement in
good faith MPP and do so recognizing that the government of
Mexico is a party to that agreement. Over the course of several
months, we negotiated with the government of Mexico the terms
of reimplementing MPP. The government of Mexico had several
concerns with the prior iteration of MPP implementation,
humanitarian concerns with which we agreed. One of the concerns
was that individuals returned under MPP fell victim oftentimes
to criminal organizations upon their return. So, we took
several steps in consort with the government of Mexico to
improve the humanitarian conditions for those MPP enrollees in
Mexico.
Mr. Clyde. So, what you are saying then is that without the
United States paying that transportation, that MPP probably
would not have been negotiated between Mexico and the United
States? Is that right?
Ms. Mendrala. We negotiated several aspects of humanitarian
treatment of MPP enrollees in Mexico and security concerns were
at the top of that list. Mexico is also providing security
accompaniment to those transportation routes to and from ports
of entry. The Department of State is also working with
international organization partners to facilitate shelter, to
improve Wi-Fi access at shelters so individuals can have access
to counsel while in Mexico and other services as well.
Mr. Clyde. You know, I wish we treated our United States
citizens that well. I just don't see it. I just don't see
treating folks who have broken the law, as they have done here,
and giving them all these benefits is all that does is
encourage more people and more people and more people to
illegally enter this country and that is a disgrace. I yield
back.
Chairwoman Barragan. The gentleman yields back. Given that
votes have not been called, we are going to take this
opportunity to close out the first panel.
I just want to remind all our viewers that it is not
illegal to head to America to go to the border and apply for
asylum and seek asylum. Unfortunately, the opportunity to
present yourself at the border to do that is not happening so,
this--we need to get back to that and maybe that will help
having people come between ports of entry, which is what we are
talking about here today.
So, I want to thank the panelists on the first panel for
being here, for appearing, for your testimony. You are now
excused. I am going----
Mr. Clyde. Madam Chair, point of clarification on your
comment, please?
Chairwoman Barragan. Yes, sir.
Mr. Clyde. We are talking about people here that are not
arriving at a port of entry. We are talking about people here
who are illegally crossing the border between ports of entry,
and that is----
Chairwoman Barragan. Mr. Clyde, that is----
Mr. Clyde. Yes.
Chairwoman Barragan [continuing]. That is exactly----
Mr. Clyde. Go ahead.
Chairwoman Barragan [continuing]. My point. My point is----
Mr. Clyde. Right, OK.
Chairwoman Barragan [continuing]. That.
Mr. Clyde. That is illegal.
Chairwoman Barragan. My point is that people are coming
between ports of entry because right now, the border is closed
and not allowing people to legally come and present themselves
at a port of entry to claim asylum, which has been the law and
the process. So, that is what I was pointing out. So, you and I
are kind-of on the same page just we are saying it differently.
I want to move on to our second panelist because it is--it
is a guest of our Ranking Member here. I want to make sure he
has an opportunity to ask questions of his guest. So, thank
you, Mr. Clyde. The first panel is now excused. Thank you again
for appearing.
I now welcome our second panel. Mr. Tim Roemer is the
director of the Arizona Department of Homeland Security for the
State of Arizona. Without objection, the witness's full
statement will be inserted in the record. I now ask Mr.
Roemer--so, I now ask Mr. Roemer's witness--our witness to
summarize his statement for 5 minutes. You are now recognized.
STATEMENT OF TIMOTHY ROEMER, DIRECTOR AND CHIEF INFORMATION
SECURITY OFFICER, DEPARTMENT OF HOMELAND SECURITY, STATE OF
ARIZONA
Mr. Roemer. Chairwoman Barragan, Ranking Member Higgins,
and distinguished Members of the committee, good afternoon and
thank you for the opportunity to testify. I would like to
summarize my statement for the record by focusing my opening
remarks on Arizona's support for border security and how the
border crisis in our home State affects the rest of the Nation
from a National security, public safety, and humanitarian
perspective.
I would like to first start by thanking the brave men and
women of CBP and all law enforcement on the front lines of the
border that work tirelessly to protect our State and Nation,
day and night. Their efforts are sincerely appreciated and we
must come together to do more from a policy and legislative
perspective to support their efforts. The dedication of these
brave men and women along the border is what stands in the way
of dangerous criminals reentering the country, many with
previous convictions of violent crime within the United States,
the seizure of deadly drugs on their way into our communities
across the Nation, and the rescue of migrants struggling to
make it safely into our country.
This past year, we saw many records being broken and it is
heartbreaking to watch knowing all too well that many were
avoidable with stronger action. From a record-breaking number
of drug overdose deaths to a record number of migrant deaths,
our border has become increasingly deadly. The Migrant
Protection Protocols are a thoughtful policy that protects
migrants looking to the United States of America for a better
life. We need strong, lasting, and consistent application of
not just MPP, but also immediate action on the part of the
Federal Government to protect our communities, both on the
border and throughout the Nation. This isn't just a matter of
border security. It is a matter of National security and public
safety.
In Arizona, we are on the front lines and the front door to
this National crisis. Our border communities, cities, towns,
sheriffs, police chiefs, and health care facilities are on the
front lines of this National emergency. They are the first to
suffer from border policy that is not well-reasoned. Dangerous
and deadly drugs, human smuggling, and cartel actions thrive
off of an unsecured border and patchwork enforcement of even
helpful policies.
An unsecured Southern Border creates a public safety
crisis, not just in Arizona but across local, State, Tribal,
and Federal jurisdictions throughout the country. When applied
properly, MPP helps protect the lives of every Arizona
community and those throughout the Nation. Consistent
application of strong border security policies including MPP
gives Federal law enforcement authorities the ability to stop
the individuals who are taking advantage of the asylum system
and allows the system to work better for those in need. MPP
allows authorities to take significant action, as opposed to
the catch-and-release tactics from the past that are sadly
becoming all too real again today. With MPP, law enforcement
spends less time chasing the same trafficker, smuggler, and
coyotes and more time proactively and effectively protecting
Arizona and America from dangerous drugs and transnational
criminal organizations who continue to profit off of vulnerable
populations.
In an operation just this December, Arizona DPS seized over
664 pounds of methamphetamine and 37 pounds of fentanyl. These
drugs were being transported from southern Arizona toward
Phoenix and the street value of these drugs seized in just this
one operation was $5.1 million. As Governor Ducey has said,
drugs are slipping through the cracks and into the bloodstream
of our communities. The cartels are using America as a business
venture and are continuing to capitalize on Federal policies
and an insecure border.
Arizona ranchers, farmers, law enforcement, victim
services, non-profit organizations, and community members, our
officials, and our State officials, are impacted by MPP. MPP
and border security is not an immigration issue, but a
humanitarian issue. Humans are treated as transnational items
by transnational criminal organizations and having patchwork
mismanaged, the border security policy is not only
insufficient, but irresponsible. The cartels continue to profit
billions of dollars off of human smuggling and MPP is a
critical tool to keep migrants safe.
In closing, Arizona has done and continues to do everything
within our legal authority to provide law enforcement and
communities with the resources they need to protect our border.
While border security is not a simple problem to solve, we need
to come together to find these solutions. Thank you again for
allowing me the opportunity to testify, and I am happy to
answer your questions.
[The prepared statement of Mr. Roemer follows:]
Prepared Statement of Timothy Roemer
Wednesday, March 2, 2022
Chairwoman Barragan, Ranking Member Higgins, distinguished Members
of the subcommittee, and other Members in attendance, good afternoon
and thank you for allowing me to testify on the Migrant Protection
Protocols (MPP) and how this policy has impacted Arizona, our
communities, and our efforts to combat the opioid crisis and dangerous
criminal activity coming across our Southern Border.
MPP is a thoughtful policy that protects migrants looking to the
United States of America for a better life and those living in the USA.
This is a common-sense policy the Biden administration repealed without
thought about the implications to communities and States along the
border and those migrants it is meant to protect. The Biden
administration only began considering reinstating the policy once such
action was court-ordered.
Chairwoman Barragan, Members, we need strong, lasting, and
consistent application of the Migrant Protection Protocols but also
immediate action on the part of the Federal Government to protect our
communities--both on the border and throughout the Nation. This isn't
just a matter of border security--it's a matter of National security.
In Arizona, we are the front door to this National crisis. Our
border communities, cities, towns, sheriffs, police chiefs, and health
care facilities are on the front lines of this National emergency and
are the first to suffer from border policy that is not well-reasoned.
Dangerous and deadly drugs, human smuggling, human trafficking,
labor trafficking, firearms smuggling, and cartel actions thrive off an
unsecured border and patchwork enforcement of even helpful policies.
An unsecured Southern Border creates a public safety crisis not
just in Arizona but across local, State, Tribal, and Federal
jurisdictions throughout our country.
When applied properly, MPP helps protect the lives of every Arizona
community and those throughout the Nation. Consistent application of
strong border security policies, including MPP, gives Federal law
enforcement authorities the ability to stop individuals from taking
advantage of the asylum system and allows the system to work better for
those in need. In addition, MPP allows authorities to take substantial
action instead of ``Catch-And-Release'' tactics from the past that are
sadly becoming all too real again today.
With MPP, law enforcement spends less time chasing the same
trafficker, smuggler, and coyotes and more time proactively and
effectively protecting Arizona and America from dangerous drugs and
transnational criminal organizations who continue to profit off
vulnerable populations.
Policies like MPP and Title 42 kept the situation at the border
under control. Unfortunately, the Biden administration's reversal of
these policies chipped away at the progress made securing the border
under the previous administration to make a political statement while
putting public safety at risk.
Meanwhile, we all saw a record number of drug overdose deaths
Nation-wide in 2021. The Center for Disease Control and Prevention
reports over 100,306 drug overdose deaths in our country last year.
This is a 28.5 percent increase from the previous year. Furthermore,
the data shows that estimated opioid overdose deaths increased to
75,673 in the 12 months ending in April 2021, up from 56,064 the year
before. Overdose deaths from synthetic opioids, primarily fentanyl, and
psychostimulants such as methamphetamine, also increased in the 12
months ending in April 2021. Cocaine deaths increased as well.
As Governor Ducey has said, ``These drugs are slipping through the
cracks and into the bloodstream of our communities.''
In 2021, the DEA seized more than 9.5 million pills in Arizona, a
substantial increase from the 6 million they seized in 2020.
In December 2021, the DEA, Scottsdale Police, and the Arizona
Attorney General's Office worked to seize more than 1.7 million pills
in a 2-month-long drug bust investigation.
In a separate operation in December, the Arizona Department of
Public Safety Troopers seized over 664 pounds of methamphetamine and 37
pounds of fentanyl. Troopers seized these drugs along smuggling routes
between southern Arizona and Phoenix. These drugs were being smuggled
to Phoenix to be then sold Nation-wide. The street value of the drugs
seized during the operation is over $5.1 million.
The cartels use America as a business venture and continue to
capitalize on Federal policies and an insecure border.
Arizona ranchers, farmers, law enforcement, victim services, non-
profit organizations, community members, local leaders, and elected
officials in our communities and State are all impacted by the migrant
population. MPP and border security is not an immigration issue but a
humanitarian issue.
Transnational criminal organizations routinely treat vulnerable
humans as transactional and reusable goods. Therefore, having a
patchworked and mismanaged approach to border security policy,
including MPP, is not only insufficient but irresponsible.
Transnational criminal organizations (TCO) profit billions of
dollars on human smuggling. Officials estimate TCOs profited $3 billion
from those smuggled into Arizona last year alone. These profits are
fueling the drug smuggling operations of the cartels.
The albeit temporary repeal of MPP and similar policies have put
vulnerable children in danger.
One family spent 6 hours in a storm on a small boat, with kids
getting horribly sick. The family was kidnapped by a drug cartel and
forced to pay a ransom to live during the journey.
Another family was torn apart forever when a mother and her 10-
year-old daughter were found dead, and her 2-year-old son was the only
member to survive the dangerous journey. The 2-year-old son was turned
over to the Federal Government's custody--and as Governor Ducey has
said, the Federal Government doesn't make a very good parent.
MPP is a critical tool to keep migrants safe--but it must be
accompanied by consistent use and a consistent message enforcing the
rule of law.
According to a 2020 report from Doctors Without Borders, over 57
percent of interviewed migrants and asylum seekers experienced some
type of violence, including cases of assault, extortion, torture, and
sexual assault. These crimes are devastating and directly result from
the administration's misleading messaging that our Nation's borders are
open.
In my role, I have visited the border several times throughout my
career and purposely several times during these last 2 years to see
first-hand how the policies are impacting border security and the
humanitarian crisis.
U.S. Border Patrol made nearly 1.66 million arrests for unlawful
crossings on the U.S.-Mexico border during the fiscal year 2021, the
highest annual number of apprehensions on record. As the number of
migrants crossing increases, so does the number of criminals ready to
exploit these vulnerable individuals.
Arizona encompasses two enormous, dangerous, geographically,
politically, and economically complex CBP sectors, Tucson and Yuma.
Here in Arizona, I hear from our law enforcement officials and
community leaders every day as they recount the unfathomable number of
apprehensions. Yet, across the Southwest Border, we are seeing a record
number of apprehensions, leading to an unknown number of getaways and
migrants.
This last year, the Yuma Sector apprehended a Saudi immigrant with
ties to a known terrorist organization.
Criminal organizations are smart. They are aware of the narrative
and practice of Federal policies and feed off of any perceived weak
points. The art of misdirection and knowing when to fight your battles
is not a secret held close. The Art of War is also a cautionary tale in
these situations. TCOs know how to overwhelm the already exacerbated
and preoccupied Federal law enforcement who diligently do their duties
as directed by the Biden administration. TCOs know how to get dangerous
drugs, personnel, and materials into and out of the United States by
using innocent migrants as distraction tactics during their dangerous
operations.
In closing, Arizona has done and continues to do everything within
our legal authority to provide law enforcement and communities with
resources to help secure our border and protect our communities. Still,
Arizona and our Nation need the Federal Government to do its job and
secure the Nation's border.
This starts with ensuring common-sense policies like the Migrant
Protection Protocols are enforced in a strong, consistent, and reliable
fashion.
While border security is not a simple problem to solve, strong
rhetoric, consistent policies, and lasting application of MPP is one
action the Biden administration could take TODAY to protect Arizonans
and Americans across the country.
I'd like to thank the brave men and women of law enforcement from
CBP and all law enforcement on the front lines of the border that work
tirelessly to protect our State and Nation day and night. Their efforts
are sincerely appreciated, and we must come together to do more from a
policy and legislative perspective to support their efforts.
Thank you again for allowing me the opportunity to speak to this
distinguished committee on this important topic.
Chairwoman Barragan. Thank you, Mr. Roemer, for your
testimony. As Mr. Roemer is Ranking Member Higgins' witness, I
will start by recognizing him for questions. The Chair will now
recognize Mr. Higgins, the Ranking Member, for 5 minutes.
Mr. Higgins. I thank our Chairwoman. Mr. Roemer, thank you
for being here today to speak of behalf of the challenges our
Nation faces at the Southern Border. Your perspective from the
State of Arizona and you with your official duties gives you an
excellent--gives you an excellent view to the realities that
face our Nation.
May I ask you to talk about the policies of the Biden
administration and how they are affecting your State? For
instance, can you talk about MPP and whether fully
implementing, or reimplanting MPP would make a significant
difference in dealing with the surge, and how your perspective
of that relates to the kind-of anemic numbers that we are
seeing from this alleged good-faith effort out of the
administration?
Mr. Roemer. Well, thank you Ranking Member Higgins for your
question. I believe if we just look at the metrics and the data
on this issue, the answer is there for us, which is that MPP
was implemented in 2019. If you look at 2019 and 2020 metrics
of Southwest Border apprehensions and you combine those 2 years
combined, it still is not anywhere near the number of
apprehensions we saw on our Southwest Border just last year in
fiscal year 2021. That proves to me that MPP when implemented
and used effectively, does work. It does allow our Border
Patrol and law enforcement on the border to spend more time out
there in law enforcement actions and less time of the
processing, which does make us safer. When they are out there
doing proactive work, is when our Nation and our State are at
our strongest. But when they are just tied up doing processing
at the sheer numbers that we have seen, it puts them in a
difficult position and it affects all of our communities around
the Nation.
Mr. Higgins. Do you see the criminal network responding
proactively be very aware to the absence of regular patrol and
law enforcement on the border when those law enforcement
personnel have been pulled to processing duties? You seeing----
Mr. Roemer. Yes.
Mr. Higgins. You are seeing that the cartel recognizes that
and knows that and ramps up their own actions?
Mr. Roemer. Yes, Ranking Member Higgins, absolutely.
Unfortunately for us, the cartels are very good at the business
side of this. They are very well-versed and experienced. What
they do is they use a couple of different techniques to allow
migrants to go over the border in certain numbers to pull
resources and then they use that opening to either bring in
dangerous narcotics and dangerous drugs into our communities,
or they use that time to use the dangerous individuals. So, we
have seen them using that tactic.
The DPS operation I noted in my remarks was in partnership
with local law enforcement and Governor Ducey's directive to do
more to secure our State and our Nation, we surged DPS and the
National Guard to a portion of the border east of Yuma. We were
able to quickly seize massive amounts of drugs, were well over
500 pounds in that operation that were coming into the Nation.
We know based on our own intelligence, that what was happening
is the cartels were sending the big groups through San Luis and
Yuma to tie up law enforcement while they then ran the
dangerous drugs or dangerous individuals to the east.
Mr. Higgins. Exactly. Finally, sir, because we are going to
try and move quickly here, and I thank the Chairwoman for
allowing us to do so, in my remaining 45 seconds here, can you
describe to the committee just what you see on the ground in
Arizona from your local communities? How are your local
communities feeling the impact of this unprecedented illegal
crossing at our Southern Border and criminal activity?
Mr. Roemer. Ranking Member Higgins, they are frustrated,
and many are. We saw the mayor of Yuma, Arizona declare an
emergency based on the high numbers that are coming through
Yuma Sector. So, they are extremely frustrated. They see the
impacts that it is having on their health care facilities, on
their hospitals, on their law enforcement's ability to respond
to emergencies, and they share that with us directly. The
Governor is listening to those local leaders and local law
enforcement and that is why we are surging resources to the
border to help protect the State and the Nation.
Mr. Higgins. Thank you, sir, for your candid answers today
and for being here. Madam Chair, I yield.
Chairwoman Barragan. Thank you, Mr. Ranking Member Higgins.
The Chair will now recognize other Members for questions they
may wish to ask the witness. As previously outlined, I will
recognize Members in order of seniority, alternating--well, I
am not going to alternate between Majority and Minority. I am
going to give the preference to the Minority since this is a
Minority witness. I am going to skip myself and just wait for
my comments, given that votes have been called. So, I will go
after Mr. Bishop and Mr. Clyde go as I am just closing out
remarks. So, with that said, in order to get to my colleagues
here, the Chair will recognize, for 5 minutes, the gentleman--
let me just check to see who I have on here--the gentleman from
North Carolina, Mr. Bishop, you are up first.
Mr. Bishop. Thank you, Madam Chairman. Mr. Roemer, I am
sorry you weren't together with the previous panel. Did you get
a chance to hear the interactions and the testimony from the
previous panel?
Mr. Roemer. Yes, sir, I did. Thank you very much.
Mr. Bishop. Yes, sir, thank you. Mr. Correa, who is now no
longer on the screen, I don't think, very admirably and
candidly described the suffering and the inhumanity that has
resulted from in no way stanching the flow of this 2 million
illegal immigrants into the United States. Even if, you know,
not all 2 million are being released into the United States
rootless and so forth, the suffering that Mr. Correa correctly
described from everything I hear, is, you know, 80 percent of
females being raped, young girls being raped. He talked about
the young girls being dropped off from the wall that the Nation
saw and was shocked by. This is happening every day.
I just wonder, you know, I have never heard Mr. Nunez-Neto,
despite repeated testimony before the committee or
subcommittee, or any other Biden administration witness ever
express a personal preference or a concern about the inhumanity
to which millions now of migrants are being subjected by having
this uncontrolled Southern Border. I just wonder, sir, in your
experience, are you aware of any logic that would--by which one
who is purportedly concerned with inhumanity allegedly visited
upon people who are enrolled in MPP by not having Wi-Fi, or
lawyers, or transportation, how that would possibly be seen as
justifying discontinuing MPP, when the result is to have this
unbelievably, unconstrained flow of migrants who are suffering
all the other inhumanity that Mr. Correa described? Do you
perceive any logic that explains that?
Mr. Roemer. Well, Congressman Bishop, I thank you for the
question. You know, really I applaud, you know, all Members of
Congress for their important, you know, work on this issue.
From a humanitarian crisis, sure, absolutely, with all due
respect, I completely understand the humanitarian concerns. It
is something that is there. However, with that said, MPP when
implemented properly, does actually protect the individuals
coming into the Nation. What I have seen on the ground is that
the drug cartels and transnational criminal organizations are
ruthless criminals. We need every tool implemented to the full
extent of the law to combat these criminals.
We see it, you know, day in and day out. I think MPP based
on the metrics I cited previously, does work. I will give you a
quick statistic. If you look at CBP data on the dangerous
individuals that have been caught coming across the border and
you look at fiscal year 2021, there were 60 individuals
arrested with a previous conviction for homicide or
manslaughter. That is 60 just in fiscal year 2021 alone. I went
back and I tallied up the previous 5 years on that topic, and I
counted 19. So, 19 in the previous 5 years with a previous
homicide or manslaughter conviction and 60 in fiscal year 2021.
Already in this next fiscal year, we have seen 22 so far this
year. Then in addition to that, in the publicly-available data,
I see 1,178 that had previous assault charges and 488 with
sexual offenses.
So, my point with the statistics are is that what we are
seeing is these dangerous transnational criminal organizations
are not just bringing in dangerous drugs through the border.
They are bringing in dangerous individuals as well. Policies
like MPP allow law enforcement to get back to their law
enforcement duties and not be caught up in processing. That is
what I see on the ground as having a significant impact on this
important issue.
Mr. Bishop. Well, I thank you for those comments. They are
extraordinarily cogent. I just, it continues to elude me why
Members of the Majority on this committee and DHS on the Biden
administration is pleased or satisfied to see the U.S.
Government become the logistics arm for the Mexican cartels,
and yet, expresses no end of remorse, rather than viewing it as
an opportunity to implement MPP in a manner that is consistent
with all the humanitarian concerns that they are troubled by.
But that, unfortunately, is not what we are seeing. I
appreciate your testimony very much, and I yield back.
Chairwoman Barragan. Thank you, Mr. Bishop. I will save my
5 minutes and my remarks until after the gentleman from
Georgia, Mr. Clyde, is recognized. Mr. Clyde, you are
recognized for 5 minutes, given that votes have been called and
I want to make sure you get your 5 minutes of time.
Mr. Clyde. Well, thank you, Madam Chairwoman. Mr. Green,
are you aware of any legal ports of entry that are closed?
Mr. Roemer. No, sir, I am not.
Mr. Clyde. OK, all right. I didn't think so. I didn't think
there were any legal ports of entry that were closed. So, there
should be no reason that an illegal--or that an immigrant who
wants to come here under a case of asylum couldn't go to a
legal port of entry. Is that correct?
Mr. Roemer. Yes, sir, that is my understanding.
Mr. Clyde. OK, all right. So, let me ask you another
question about--a question about MPP. Obviously, you know, the
Trump administration was the one who implemented it and then on
February 5, 2021, President Biden issued Executive Order 14010
to suspend it. Then he had Secretary Mayorkas review it and
then on June 1, 2021, Secretary Mayorkas determined that MPP
should be terminated and issued a memorandum on that effect--or
to that effect. Less than 2\1/2\ months later, the U.S.
District Court in Northern Texas determined that that was not
legal, and the Secretary was not in compliance with the
Administrative Procedures Act and ordered the DHS in good faith
to reimplement the MPP program.
So, there is already a roadway for the implementation of
the MPP program. It had only been just a few months since it
was officially terminated before it was ordered to be
reinstituted. So, how long do you think it should have taken or
should have taken to reimplement this particular program that
had only been shut off literally for 2\1/2\ months?
Mr. Roemer. Well, sir, I think it should have been
implemented, you know, reimplemented immediately because the
statistics show that it works. So, I will also note that per my
previous comments about the cartels, what they are doing is
they are controlling who comes across the border. Our best
estimates is that the transnational criminal organizations
charge between $5,000 and $10,000 per person to come across the
border. In Arizona last fiscal year, we had about 305,000
apprehensions that we know about of people coming across the
border. If we do the math and we say $10,000 a person at over
300,000 people coming in across the border, that doesn't even
account for the recidivism rate or the get-aways, we are
looking somewhere in the ballpark of these transnational
criminal organizations profiting approximately $3 billion on
human smuggling alone. Those figures are what fuel their
pockets and the drugs to then be trafficked and smuggled into
the United States.
So, they are using the human smuggling side to fuel other
dangerous criminal enterprises and that is really what is
considered most significant and of concern to us on the ground.
That is why we have seen the Governor take significant action.
Mr. Clyde. Those are absolutely terrible statistics.
Imagine if our Government--basically that is exactly what is
happening. Our Government is funding these criminal
organizations, these cartels through allowing illegal
immigration to occur to the tune of $3 billion. It is stunning.
You know, we as a Government have to do better. I don't think
that we are actually helping the immigrant at all by allowing
them to come illegally when the legal ports of entry are truly
open. With that, thank you, and I yield back.
Chairwoman Barragan. Thank you. Thank you for the
questions. I am now going to yield myself and recognize myself
for 5 minutes. I will start the clock now.
I almost don't know where to begin. I am not sure I can get
through in 5 minutes to respond to the slew of inaccurate
information that has been put out there.
Mr. Roemer, you mentioned that you are relying on
statistics and then you cite to, you know, criminals and when
we are talking here about MPP. So, let me begin to help you get
an understanding of why the statistics that you are providing
are not apples to apples and why they are inaccurate.
First of all, you are talking about 2019 numbers and you
are comparing 2019 numbers. I just remind you there was
something called a pandemic and COVID and borders were shut
down between here and Central America starting in March 2020.
People were unable to leave their country, and the
administration started putting people into Title 42. They were
turning people away because of COVID and they were using Title
42 and not putting them into MPP. So, if you want to take the
statistics and data from 2019 and start comparing them when you
still have the implementation, by the way, of Title 42,
something I don't even agree with, then it is not accurate to
rely on those statistics and to make those comparisons.
So, it bothers me to kind-of hear these comparisons being
made without the explanation of why more people were not put
into MPP that is because they were put into Title 42 and
comparing years where you had a pandemic and COVID. Now, that
is one of the reasons why I think when you talk about the
number of apprehensions at the border don't equal in 2019 and
2020 what they are in 2021, that you just can't make that
because we still have Title 42 where people are still being put
in there and being turned away.
The other thing is that you went on to mention at great
length information about criminals and, you know, the concerns
of people's records. Migrants with a criminal history cannot be
enrolled in MPP. That is true now. That is true under Trump.
This program is not intended to deter criminals and so, that
is--I really don't see the relevance other than the
continuation of folks on the other side who don't believe in
the values I believe on immigration, and to trying to
criminalize migrants who are fleeing violence in their home
countries and coming over. In America, it is completely legal
to head to America and to present yourself at a port of entry
to claim asylum.
Now, we have heard repeatedly that the ports of entry are
open. You were even asked this question whether ports of entry
were open. Ports of entry are only open to those traveling with
travel documents. Ports of entry are not open for migrants to
come and present themselves and present their claim of fear to
get into the system to claim asylum. That is not happening. Mr.
Roemer, if you are not aware of this, I am going to make an
offer to take you to the border so that you could see how
people cannot do it. I have done it before. I have traveled
with these groups. I have seen first-hand people are being
turned away at the border who are trying to present themselves
legally. It is not allowed. It is not being allowed, OK?
So, this notion that the ports of entry are open, this
notion that the border is open, is completely false. It is open
to Americans. It is open to people who have documents. But it
is not open. That is one reason that I and immigration
advocates are calling for immigration reform and are calling
for this administration to eliminate Title 42 and to get back
to the process of what is legal in this country. What is legal
in this country is to allow migrants to come to a port of
entry, for example, San Ysidro and to say I am here to apply
for asylum to get into the system and to be allowed to be
admitted into this country pending their court hearing. That is
not happening. That is not happening, OK?
So, again, I just had to make sure that we, you know, I
took this opportunity to do that because, you know, this
division on immigration is often based on misinformation and
people who take facts and distort them and it is just very
troubling.
So, with that, I don't really have any questions for you,
Mr. Roemer. I wanted to take my 5 minutes. I wasn't even going
to use my 5 minutes but after the line of questioning and what
I was hearing, I had to take the opportunity to make sure to
correct, (A) the record, and (B) what I have been seeing at the
border and what I know to be the case.
So, I want to take this opportunity to close out our second
panel. I want to thank the witnesses for their testimony. The
testimony has been valuable and I appreciate the panelists on
the first panel and the second panel. I want to thank the
Members for their questions.
Without objection, I want to submit statements for the
record from the Women's Refugee Commission, the Human Rights
First, the Hope Border Institute, Coalition for Humane
Immigrant Rights, California Welcoming Task Force, and the
Center for Gender and Refugee Studies.
[The information follows:]
Statement of the Women's Refugee Commission
March 2, 2022
Dear Members of the House Homeland Security Subcommittee on Border
Security, Facilitation, and Operations: The Women's Refugee Commission
(``WRC'') submits this statement to the House Homeland Security
Subcommittee on Border Security, Facilitation, and Operations for the
March 2, 2022 hearing, ``Examining the Court-Ordered Reimplementation
of the Remain in Mexico Policy.''
WRC is a non-profit organization that advocates for the rights of
women, children, and families fleeing violence and persecution. We are
leading experts on the needs of refugee women and children and the
policies and programs that can protect and empower them. The Migrant
Rights and Justice (``MRJ'') Program focuses on the right to seek
asylum in the United States and strives to ensure that migrants and
refugees, including women and children, are provided with humane
reception in transit to and in the United States, given meaningful
access to legal protection, and are protected from exposure to gender
discrimination or gender-based violence.
Since 1996, MRJ staff have made numerous visits to the Southwest
Border region, including along Mexico's Northern Border, as well as to
immigration detention centers for adult women and families and to
shelters housing unaccompanied children throughout the country. WRC has
interviewed hundreds of detained women, families, and children seeking
asylum in the United States.\1\ Based on the information that we
collect on these visits and our analysis of the laws and policies
relating to these issues, we advocate for improvements, including by
meeting with government officials and service providers and by
documenting our findings through fact sheets, reports, backgrounders,
and other materials. We make recommendations to address identified or
observed gaps or ways in which we believe the corresponding department
or agency can improve its compliance with the relevant standards.
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\1\ Reports of our findings include: Women's Refugee Commission,
Prison For Survivors: The Detention of Women Seeking Asylum in the
United States, (2017); Women's Refugee Commission, Lutheran Immigration
and Refugee Service, and Kids in Need of Defense, Betraying Family
Values: How Immigration Policy at the United States Border is
Separating Families, (2017); Women's Refugee Commission and Lutheran
Immigration and Refugee Service, Locking Up Family Values, Again: A
Report on the Renewed Practice of Family Immigration Detention, (2014);
Women's Refugee Commission, Migrant Women and Children at Risk: In
Custody in Arizona, (2010); Women's Refugee Commission, Torn Apart by
Immigration Enforcement: Parental Rights and Immigration Detention,
(2010); Women's Refugee Commission, Innocents in Jail: INS Moves
Refugee Women From Krome to Turner Guilford Knight Correctional Center,
(2001); Women's Refugee Commission, Behind Locked Doors: Abuse of
Refugee Women at the Krome Detention Center, (2000); and Women's
Refugee Commission, Liberty Denied: Women Seeking Asylum Imprisoned in
the U.S., (1997).
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We commend the subcommittee for conducting this vital hearing. WRC,
alongside scores of other faith, immigration, human rights, and
organizations, agree with and have consistently corroborated Secretary
of Homeland Security's assessment that the human toll that the Remain
in Mexico (``RMX'') policy causes is ``intolerable.''\2\ Under the last
iteration of the Remain in Mexico policy, over 70,000 individuals were
sent back to wait for their U.S. immigration hearings in dangerous
Mexican border cities.\3\ Advocates tracked over 1,500 kidnappings and
other violent crimes that occurred to individuals in Remain in Mexico--
some of which occurred while individuals were in transit to the port of
entry for their U.S. court hearing.\4\ In the prior iteration of the
policy, fewer than 8 percent of individuals were able to secure access
to legal counsel. Despite existing guidance exempting people with known
physical or mental health issues from Remain in Mexico, WRC witnessed
individuals with severe health conditions who were enrolled anyway.\5\
Without access to housing or other basic services in Mexico, thousands
of individuals in Remain in Mexico were forced to wait in squalid
conditions in makeshift migrant encampments.\6\
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\2\ Alejandro N. Mayorkas, Migrant Protection Protocols (MPP)
Termination Memo (Oct. 29, 2021), https://www.dhs.gov/publication/
migrant-protection-protocols-termination-memo. See Women's Refugee
Commission and IMUMI, Stuck in Uncertainty and Exposed to Violence: The
Impact of US and Mexican Migration Policies on Women Seeking Protection
in 2021 (Feb. 2, 2022), https://www.womensrefugeecommission.org/
research-resources/stuck-in-uncertainty-and-exposed-to-violence-the-
impact-of-us-and-mexican-migration-policies-on-women-seeking-
protection-in-2021/; Women's Refugee Commission, WRC Response to
Request for Input on Family Separation (Jan. 25, 2022), https://
www.womensrefugeecommission.org/research-resources/wrc-response-to-
request-for-input-on-family separation/; ``Immigrants' Rights
Organizations Urge the Biden Administration to Permanently End Remain
in Mexico and Title 42 Policies,'' (Dec. 17, 2021), https://
www.womensrefugeecommission.org/research-resources/immigrants-rights-
organizations-urge-the-biden-administration-to-permanently-end-remain-
in-mexico-and-title-42-poli- cies/; Women's Refugee Commission, Asylum
Denied: Remain in Mexico 2.0 (Dec. 15, 2021), https://
www.womensrefugeecommission.org/research-resources/asylum-denied-
remain-in-mexico-2-0/; ``Coalition Letter on US Department of Homeland
Security's Stated Intention to Issue a New Memorandum Ending the
Migrant Protection Protocols (Remain in Mexico) Program,'' (Oct. 14,
2021), https://www.womensrefugeecommission.org/research-resources/
coalition-letter-us-department-homeland-security-stated-intention-
issue-new-memorandum-ending-migrant-protection-protocols-remain-in-
mexico/; ``Urgent Actions the Biden Administration Must Take Following
Supreme Court Decision on Migrant Protection Protocols (MPP),'' (Aug.
30, 2021), https://www.womensrefugeecommission.org/research-resources/
urgent-actions-the-biden-administration-must-take-following-supreme-
court-decision-on-migrant-protection-protocols-mpp/; ``Civil Society
Organizations Call on the Mexican Government to Reject Any
Reinstatement of Migrant Protection-Protocols (MPP),'' (Aug. 24, 2021),
https://www.womensrefugeecommission.org/research-resources/civil-
society-organizations-call-on-the-mexican-government-to-reject-any-
reinstatement-of-migrant-protection-protocols/.
\3\ U.S. Customs and Border Protection, Migrant Protection
Protocols FY22, https://www.cbp.gov/newsroom/stats/migrant-protection-
protocols.
\4\ Human Rights First, Delivered to Danger (Feb. 19, 2021),
https://www.humanrightsfirst.org/campaign/remain-mexico.
\5\ Women's Refugee Commission, Chaos, Confusion, and Danger: The
Remain in Mexico Program in El Paso (May 16, 2019),https://
www.womensrefugeecommission.org/research-resources/chaos-confusion-and-
danger/.
\6\ See Nicole Narea, ``The abandoned asylum seekers on the US-
Mexico border,'' Vox (Dec. 20, 2019), https://www.vox.com/policy-and-
politics/2019/12/20/20997299/asylum-border-mexico-us-iom-unhcr-usaid-
migration-international-humanitarian-aid-matamoros-juarez.
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The former iteration of RMX also led to different forms of family
separations. In some cases, families, including biological parents and
children, were separated by Customs and Border Protection (``CBP'')
through RMX. CBP would process some family members into the United
States for their immigration proceedings and return other members to
Mexico to wait for their U.S. court hearings. These separations
inflicted immense irreparable trauma on families and created huge due
process barriers during immigration proceedings. WRC documented
numerous cases of this type of family separation.\7\ For example, CBP
officials ripped apart Alvaro, an indigenous Guatemalan man who spoke
little Spanish, and his son, Enzo, claiming that their birth
certificates and documents were false. CBP sent Alvaro back to Ciudad
Juarez through Remain in Mexico and Ezo to an Office of Refugee
Resettlement shelter. It took nearly 3 months of anguish and the help
of pro bono immigration attorneys for the father and son to be
reunited. In other cases of family separation, for families who were
returned to Mexico through RMX, parents were forced to make the
impossible decision to send their children across the border to safety
in the United States.\8\ According to WRC's analysis of CBP data on
individuals entering the United States without inspection subsequent to
being returned to Mexico under the prior iteration of RMX, 900 children
crossed the U.S. Southern Border alone after being returned to Mexico
with their families.\9\
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\7\ Women's Refugee Commission, Separation of families via the
`Migrant Protection Protocols,' (Aug. 20, 2019), https://
www.womensrefugeecommission.org/research-resources/separation-of-
families-via-the-migrant-protection-protocols/.
\8\ Kids in Need of Defense, Forced Apart: How the ``Remain in
Mexico'' Policy Places Children in Danger and Separates Families (Feb.
24, 2020), https://supportkind.org/wp-content/uploads/2020/02/MPP-KIND-
2.24updated-003.pdf.
\9\ U.S. Customs and Border Protection, Migrant Protection
Protocols Fiscal Year 2022 (see ``Individuals Apprehended Entering the
US Without Inspection Subsequent to Being Returned to Mexico through
MPP''), https://www.cbp.gov/newsroom/stats/migrant-protection-
protocols.
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In August 2021, a Texas judge ordered the Biden administration to
restore RMX ``in good faith.''\10\ The administration appealed that
order and issued a new memo terminating RMX in October 2021.\11\ We
further expand on pressing issues concerning the reimplementation of
Remain in Mexico below.
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\10\ Texas v. Biden (Aug. 13, 2021), https://www.documentcloud.org/
documents/21042967-81321-ruling-in-texas-missouri-v-biden-
administration.
\11\ Alejandro N. Mayorkas, Migrant Protection Protocols (MPP)
Termination Memo (Oct. 29, 2021), https://www.dhs.gov/publication/
migrant-protection-protocols-termination-memo.
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expansion of nationalities eligible for enrollment in remain in mexico
Under the administration's reinstatement of Remain in Mexico,
individuals from all Western Hemisphere countries besides Mexico are
subject to placement in the program, significantly expanding it.\12\
Under the Trump administration, RMX was originally applicable only to
Spanish speakers.\13\ However, the Department of Homeland Security
(``DHS'') routinely returned individuals from Central and South America
who spoke Indigenous languages to Mexico, and later began returning
Brazilians under the program.\14\ The Biden administration's decision
to expand RMX, which was not ordered by the Court, and in particular
its decision to include Haitians, is alarming. Haitian and other Black
migrants and asylum-seeking individuals face pervasive, targeted anti-
Black racism and discrimination in Mexico and are at particular risk
for harm upon return to Mexico.\15\
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\12\ Robert Silvers, Guidance regarding the Court-Ordered
Reimplementation of the Migrant Protection Protocols (Dec. 2, 2021),
https://www.aila.org/infonet/dhs-releases-guidance-on-court-ordered.
\13\ Juany Torres, Priscilla Lugo, Emma Israel, and Jessica Eller,
Migrant Protection Protocols (May 2020), https://www.strausscenter.org/
wp-content/uploads/MPP-Two-Pager-2020-4-1.pdf.
\14\ TRAC Immigration, Details on MPP (Remain in Mexico) (Nov.
2021), https://trac.syr.edu/phptools/immigration/mpp/.
\15\ S. Priya Morley et al., ``There is a Target on Us''--The
Impact of Anti-Black Racism on African Migrants at Mexico's Southern
Border, IMUMI and Black Alliance for Just Immigration (2021), https://
imumi.org/attachments/2020/The-Impact-of-Anti-Black-Racism-on-African-
Migrants-at-Mexico.pdf; S. Priya Morley et al., A Journey of Hope:
Haitian Women's Migration to Tapachula, Mexico, IMUMI, Haitian Bridge
Alliance, and the Center for Gender and Refugee Studies (2021), https:/
/cgrs.uchastings.edu/sites/default/files/A-Journey-of-Hope-Haitian-
Womens-Migration-to%20-Tapachula.pdf.
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failure to accurately exempt individuals based on vulnerabilities
In the newest iteration of Remain in Mexico, the U.S. Government
once again promised to exclude ``vulnerable individuals'' from the
policy. In the prior iteration of RMX, a DHS Civil Rights and Civil
Liberties (``CRCL'') report from 2019 revealed that CBP officers
violated the DHS principles and sent individuals with medical issues
back to Mexico.\16\ WRC also witnessed this violation first-hand,
observing the case of a 4-year-old Honduran child with Guillain-Barre
syndrome who was nonverbal and could not walk on her own. Despite her
obvious health issues, this child was nevertheless unconscionably
placed into RMX with her mother and older sister.\17\
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\16\ Hamed Aleaziz, ``A Leaked US Government Report Documents How
People With Medical Conditions And Disabilities Were Forced Into The
`Remain In Mexico' Program,'' Buzzfeed News (Oct. 21, 2021), https://
www.buzzfeednews.com/article/hamedaleaziz/leaked-report-remain-in-
mexico-children.
\17\ Women's Refugee Commission, Chaos, Confusion, and Danger: The
Remain in Mexico Program in El Paso (May 16, 2019), https://
www.womensrefugeecommission.org/research-resources/chaos-confusion-and-
danger/.
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The new DHS policy guidance outlined exemptions from Remain in
Mexico for individuals with known mental and physical health issues,
advanced age, or those vulnerable to increased risk based on sexual
orientation or gender identity. However, within the first month of the
program's reimplementation, attorneys identified more than two dozen
individuals who were enrolled in the program who should have been
exempted, including LGBTQ individuals and people suffering from known
medical conditions.\18\ DHS created a redress mechanism where
individuals placed in the RMX can request a review of their
enrollment.\19\ However, DHS first returned some individuals to Mexico
prior to the creation of this mechanism, and since then it is unclear
if all individuals enrolled in RMX have been made aware of this
mechanism. Furthermore, even a short period enrolled in the program for
``vulnerable'' individuals eligible for exemption could be dangerous
for their safety and well-being.
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\18\ Adolfo Flores and Hamed Aleaziz, ``U.S. Border Authorities
Have Incorrectly Placed Immigrants With Medical Conditions In The
Relaunched `Remain In Mexico' Program, Attorneys Say,'' Buzzfeed News
(Dec. 20, 2021), https://www.buzzfeednews.com/article/adolfoflores/us-
border-authorities-wrongly-sought-to-force-asylum.
\19\ U.S. Department of Homeland Security, MPP Additional Resources
(Feb. 10, 2022), https://www.dhs.gov/mpp-additional-resources.
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lack of due process and meaningful legal representation
WRC is deeply concerned that Remain in Mexico is fundamentally
incompatible with due process \20\ and that individuals in Remain in
Mexico face nearly insurmountable hurdles in securing meaningful legal
representation or accessing protection. The reimplementation of Remain
in Mexico provides that individuals in the program are given 24 hours
to consult an attorney prior to their non-refoulement interview
(``NRI'') in CBP custody, but many are unable to reach an attorney in
that time frame.\21\ In addition, CBP facilities generally lack
confidential spaces for these sensitive consultations. The most recent
DHS data shows that the majority of individuals are unable to consult
an attorney during the NRI process and the majority of individuals who
express fear are sent back to Mexico.\22\ In December 2021 and January
2022, while 87 to 89 percent of RMX enrollees claimed fear, about 75
percent of NRIs resulted in negative fear decisions. Advocates have
documented that individuals in RMX have said they did not receive a
clear explanation of the NRI process by CBP.\23\
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\20\ Approximately 1 percent of individuals returned to Mexico in
the first iteration of RMX were granted relief, an egregiously low
grant rate that demonstrates the due process barriers inherent in the
policy.
\21\ Julia Neusner and Ana Ortega Villegas, ``Nothing Humane About
This Process:'' Biden Administration Launches ``Remain in Mexico''
Revamp at El Paso Port of Entry, Human Rights First (Dec. 16, 2021),
https://www.humanrightsfirst.org/blog/nothing-humane-about-process-
biden-administration-launches-remain-mexico-revamp-el-paso-port.
\22\ Office of Immigration Statistics at the Department of Homeland
Security, Migrant Protection Protocols Cohort Report (Feb. 2022),
https://www.dhs.gov/sites/default/files/2022-02/-
22_0215_plcy_mpp_cohort_report_feb2022.pdf.
\23\ Yael Schacher, MPP as a Microcosm: What's Wrong with Asylum at
the Border and How to Fix It, Refugees International (Feb. 11, 2022),
https://www.refugeesinternational.org/reports/2022/2/10/mpp-as-a-
microcosm-whats-wrong-with-asylum-at-the-border-and-how-to-fix-it.
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In addition, barriers to accessing legal support make it extremely
difficult, if not nearly impossible, for RMX enrollees to have a fair
opportunity to present their case in court. The prior implementation of
RMX put attorneys who crossed into Mexico to meet with their clients in
danger,\24\ and many shelters in Mexico are not equipped to provide
confidential meeting spaces. According to the DHS implementation
guidance for the current iteration of RMX, ``CBP will provide MPP
enrollees information provided by the Department of State about where
they can locate places in Mexico to engage in telephonic or video
communications with counsel.'' Virtual legal representation--including
via videoconferencing on televisions or tablets--creates significant
barriers for attorneys to effectively communicate with and represent
their clients.\25\
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\24\ Human Rights First, Remain in Mexico Restart Threatens Safety
of Attorneys and Humanitarian Workers (Nov. 30, 2021), https://
www.humanrightsfirst.org/resource/remain-mexico-restart-threatens-
safety-attorneys-and-humanitarian-workers.
\25\ Women's Refugee Commission, Asylum Denied: Remain in Mexico
2.0 (Dec. 15, 2021), https://www.womensrefugeecommission.org/research-
resources/asylum-denied-remain-in-mexico-2-0/.
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safety concerns in mexico
WRC and other civil society organizations are concerned that
enrollees will continue to face significant risks and exposure to
violence in northern Mexico while waiting for their cases to be heard
in the United States. In December 2021, advocates documented that many
of the first individuals enrolled in this iteration of Remain in Mexico
suffered harm in Mexico, including kidnapping and violence at the hands
of Mexican officials, before being selected for the program.\26\ Since
RMX's reinstatement in December 2021, individuals have been returned to
Matamoros (with government-provided transportation to Monterrey),
Tijuana, and Ciudad Juarez, with the expectation that individuals will
soon also be sent back to Nuevo Laredo. The State Department's current
Travel Advisory for Mexico includes a ``Do Not Travel'' warning level
for the Mexican State of Tamaulipas (where Matamoros and Nuevo Laredo
are located); a ``Reconsider Travel'' warning level for the Mexican
States of Baja California (where Tijuana is located); and Chihuahua
(where Ciudad Juarez is located), due to crime and kidnapping.\27\ In
2021, the Mexican government classified Tijuana and Ciudad Juarez as
the two most violent municipalities in Mexico due to the cities' high
homicide rates.\28\
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\26\ Human Rights First, Inhumane Again: Remain in Mexico Rollout
Confirms Endemic Flaws of Unfixable Policy (Dec. 2021), https://
www.humanrightsfirst.org/sites/default/files/
Inhumane%20Again%20Remain%20in%20Mexico%20Rollout%20Confirms%20Endemic%2
0- Flaws%20of%20Unfixable%20Policy.pdf.
\27\ U.S. Department of State Bureau of Consular Affairs, Mexico
Travel Advisory, https://travel.state.gov/content/travel/en/
traveladvisories/traveladvisories/mexico-travel-advisory.html.
\28\ Lidia Arista, ``En 22 de los 50 municipios prioritarios suben
hasta 50 percent los homicidios dolosos,'' Expansion Politica (Jan. 20,
2022), https://politica.expansion.mx/mexico/2022/01/20/en-22-
municipios-prioritarios-suben-homicidios-dolosos.
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difficulties accessing services in mexico
In the first iteration of Remain in Mexico, the U.S. and Mexican
governments failed to fulfill their promise to ensure access to housing
and services for individuals returned to Mexico. According to the DHS
policy guidance for this iteration of Remain in Mexico, the Department
of State will ``assist in coordinating safe transportation in Mexico to
and from the [ports of entry]'' and coordinate with the Government of
Mexico to ensure access to shelters in Mexico.\29\ However, the
Department of State has yet to publicly release details about
assistance with transportation and shelter for individuals enrolled in
Remain in Mexico, including the allocation of funding to international
organizations.
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\29\ Robert Silvers, Guidance regarding the Court-Ordered
Reimplementation of the Migrant Protection Protocols (Dec. 2, 2021),
https://www.aila.org/infonet/dhs-releases-guidance-on-court-ordered.
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the incomplete winddown of the first iteration of remain in mexico
From February to August 2021, the Biden administration worked in
collaboration with international organizations, regional task forces,
and local nonprofit organizations on a wind-down process that allowed
approximately 13,000 individuals returned to Mexico under the first
iteration of Remain in Mexico policy to continue their immigration
cases in the United States rather than waiting in Mexico. The
Department of Homeland Security suspended the process due to the court
order and said that it would not resume the wind-down as long as the
injunction remains in place, stranding families and adults who had been
waiting in dangerous conditions in Mexico for their U.S. immigration
proceedings since 2019.\30\
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\30\ Adolfo Flores and Hamed Aleaziz, ``Remain In Mexico'' Asylum-
Seekers Thought There Was Hope Under Biden, But Despair Is Sinking Back
In,'' Buzzfeed News (Sept. 10, 2021), https://www.buzzfeednews.com/
article/adolfoflores/asylum-seekers-remain-in-mexico-biden.
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on-going barriers to access to protection at the u.s. southern border
There are on-going barriers to access to protection at the U.S.-
Mexico border separate from Remain in Mexico's reimplementation. Since
March 2020, a provision of health law has been misused to summarily
block and expel most individuals arriving at the U.S. Southern Border,
either back into Mexico or even directly to home countries where they
may face persecution, including Haiti, Honduras, Guatemala, El
Salvador, and Brazil. This policy, known as Title 42, has been
resoundly rejected by thousands of medical professionals,\31\ hundreds
of civil society and human rights organizations,\32\ and more than 100
Members of Congress.\33\ Due to Title 42, currently there is no way
virtually no way for individuals to approach a port of entry and seek
asylum,\34\ leading people to cross the border along dangerous routes
between ports of entry to seek safety.\35\
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\31\ Physicians for Human Rights, ``1,300+ Medical Professionals
from 49 U.S. States and Territories Call on CDC to End ``Junk Science''
Border Expulsion Policy'' (Oct. 28, 2021), https://phr.org/our-work/
resources/u-s-medical-professionals-demand-cdc-end-title-42/.
\32\ ``Immigrants' Rights Organizations Urge the Biden
Administration to Permanently End Remain in Mexico and Title 42
Policies'' (Dec. 17, 2021), https://www.womensrefugeecommission.org/
research-resources/immigrants-rights-organizations-urge-the-biden-
administration-to-permanently-end-remain-in-mexico-and-title-42-
policies/.
\33\ ``Booker, Bush Lead 100 Congressional Colleagues in Urging
President Biden to Reverse Inhumane Immigration Policies Impacting
Black Migrants'' (Feb. 16, 2022), https://www.booker.senate.gov/news/
press/booker-bush-lead-100-congressional-colleagues-in-urging-
president-biden-to-reverse-inhumane-immigration-policies-impacting-
black-migrants.
\34\ Women's Refugee Commission, Restoring Access to Asylum: Safely
Reopening Ports of Entry at the US-Mexico Border (Oct. 19, 2021),
https://www.womensrefugeecommission.org/research-resources/restoring-
access-to-asylum-safely-reopening-ports-of-entry-at-the-us-mexico-
border/.
\35\ David J. Bier, How the U.S. Created Cuban and Haitian Illegal
Migration, Cato Institute (Feb. 15, 2022), https://www.cato.org/blog/
how-us-created-cuban-haitian-illegal-migration.
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conclusion
Despite efforts to mitigate the harms of the policy, the
reimplementation of Remain in Mexico has not resolved its fundamental
flaws with the policy: Individuals continue to wait for their U.S.
immigration hearings in dangerous Mexican border cities; individuals
continue to face near-insurmountable barriers to due process and
meaningful access to legal representation; and the U.S. Government has
not consistently applied exemptions based on its own vulnerabilities
guidance. We provide the following recommendations to Members of this
subcommittee regarding the reimplementation of Remain in Mexico.
recommendations
Members of Congress should conduct regular and robust oversight
over the relevant agencies responsible for implementing Remain in
Mexico to ensure that the Biden administration takes all lawful and
appropriate steps to uphold its promise to end the unlawful and
dangerous policy once and for all and to ensure that:
The Department of Homeland Security renews its efforts to
bring individuals subjected to the previous iteration of Remain
in Mexico into the United States to continue their immigration
cases in safety, rather than continuing to wait in Mexico.
The Department of Homeland Security continues to release
monthly updates on the cohorts of individuals enrolled in RMX,
and works to incorporate data from the Executive Office for
Immigration Review (``EOIR'') on hearing outcome/legal
representation and from Immigration and Customs Enforcement
(``ICE'') on transfer outcomes for individuals disenrolled from
RMX.
Customs and Border Protection properly and consistently
screens individuals for potential exemptions from the Remain in
Mexico program across sectors.
Customs and Border Protection does not interfere with access
to legal representation during NRIs and provides confidential
spaces for legal consultations prior to NRIs and immigration
court hearings.
All relevant agencies, including the Department of State,
disclose the amount of funding provided to international
organizations to support individuals returned to Mexico in
Remain in Mexico and release regular reports on the support
provided to individuals returned to Mexico, including
transportation, housing, video and telephone conferencing, and
know-your-rights sessions.
The Department of Homeland Security works with the
Department of State to track all reported kidnappings and other
violent crimes suffered by individuals returned to Mexico in
Remain in Mexico.
Members of Congress should continue to conduct periodic
monitoring trips to U.S. and Mexican border cities where
individuals are returned to visit CBP facilities and Mexican
shelters, immigration courts--including tent courts used for
Remain in Mexico hearings--and to meet with international
organizations and local legal and humanitarian service
nonprofit organizations supporting or representing those in
Remain in Mexico.
We also urge Members of Congress, including this committee,
to ensure that DHS expeditiously takes steps to end the use of
Title 42 expulsions and promptly restores access to asylum at
the Southern Border, including at ports of entry.
We thank you for your consideration and time reviewing the Remain
in Mexico policy's reimplementation. We look forward to engaging
further with Members of this subcommittee to ensure necessary oversight
is conducted of this policy.
______
Statement of Human Rights First
March 2, 2022
Human Rights First thanks the House Committee on Homeland Security,
Subcommittee on Border Security, Facilitation, and Operations for
holding a hearing on ``Examining the Court-Ordered Reimplementation of
the Remain in Mexico Policy.''
Since 1978, Human Rights First has worked to protect and promote
fundamental human rights. We have long advocated for U.S. compliance
with international refugee and human rights law in addition to
providing pro bono legal representation--in partnership with many of
the Nation's leading law firms--to asylum seekers in U.S. asylum and
immigration court proceedings. Since 2019, Human Rights First has
issued a series of human rights reports (March 2019, August 2019,
October 2019, December 2019, May 2020, December 2020, and January 2022)
and factsheets (January 2020, April 2021, and December 2021)
documenting the harms inflicted by the Remain in Mexico (RMX) policy
and its reimplementation--as well as the similar Title 42 policy, which
also evades the refugee laws enacted by Congress and endangers refugees
seeking asylum. Human Rights First has also joined a series of amicus
briefs in cases challenging the Remain in Mexico policy (October 2020,
January 2021, August 18, 2021, August 23, 2021, and September 2021). In
addition, Human Rights First's attorneys have represented asylum
seekers subjected to the RMX policy, including the first--and one of
the very few--refugees who received asylum through the inherently
flawed RMX.
The Biden administration has rightly concluded that significant due
process issues are ``endemic to the [RMX] program's design'' and that
it should be ended. However, the administration's stated position is at
odds with its decision to expand the Remain in Mexico policy to include
additional nationalities and its decision to evade refugee law by using
the similarly dangerous Trump administration Title 42 policy to block
and expel people seeking protection at the border. Use of these
policies to circumvent international refugee protection obligations and
U.S. refugee law is counterproductive and sets a dangerous example for
other countries and future administrations. The United States should
lead by example, upholding the right to asylum at its own borders as it
looks to other countries to do the same--including as people flee from
Ukraine in search of protection.
As outlined below, Congress has a critical role to play in ensuring
that the Executive branch and the Department of Homeland Security
uphold and comply with the refugee laws that Congress enacted, as well
as the Refugee Convention and its Protocol, and end Trump-era policies
that trample on those laws and legal treaty commitments. Congress must
hold the Biden administration accountable to its refugee protection
obligations.
remain in mexico endangers migrants and asylum seekers
Returning migrants and asylum seekers to Mexico to await their U.S.
immigration court hearings is dangerous and inhumane. Under the Trump
administration, RMX resulted in massive human rights violations against
migrants and asylum seekers forcibly returned to Mexico. During the 2
years that the Trump administration implemented RMX, Human Rights First
tracked at least 1,544 publicly-reported cases of kidnappings, murder,
torture, rape, and other violent attacks against people returned to
Mexico. They include a Honduran woman and her 7-year-old daughter who
were abducted from inside the Mexican migration office in Nuevo Laredo
immediately after DHS returned them to Mexico following an RMX
immigration court hearing, a Salvadoran asylum seeker who was killed in
Tijuana in November 2019 after having been returned under RMX, and a
19-year-old Cuban asylum seeker who was shot and killed in Ciudad
Juarez in May 2021. The U.S. Department of Homeland Security (DHS)
concluded in its October 2021 memorandum terminating RMX that
``significant evidence indicates that individuals were subject to
extreme violence and insecurity at the hands of transnational criminal
organizations that profited from putting migrants in harms' way while
awaiting their court hearings in Mexico.''
The Biden administration also continues to use the Trump-era Title
42 policy to block and expel migrants and asylum seekers to danger in
Mexico and the countries they fled under the pretext of protecting
public health--a policy that the State Department's top legal expert
determined was illegal and has been repeatedly condemned as specious by
leading public health experts. The U.S. Department of State advises
American citizens to avoid travel to the very border regions of Mexico
where asylum seekers are returned under Remain in Mexico and Title 42.
As of February 2022, the Mexican border state of Tamaulipas remained at
a designated Level Four ``Do Not Travel'' threat level as ``[o]rganized
crime activity--including gun battles, murder, armed robbery,
carjacking, kidnapping, forced disappearances, extortion, and sexual
assault--is common along the northern border'' and ``[h]eavily armed
members of criminal groups often patrol areas of the State and operate
with impunity, particularly along the border region from Reynosa to
Nuevo Laredo.'' In addition, the State Department advisory reports that
in Baja California ``[t]ransnational criminal organizations compete in
the border area to establish narco-trafficking and human smuggling
routes,'' warns of ``[b]attles for territory between criminal groups''
in Chihuahua state which borders New Mexico and Texas, and acknowledges
that to Arizona's south ``Sonora is a key location used by the
international drug trade and human trafficking networks.''
Since President Biden took office, Human Rights First has tracked
at least 8,705 additional reports of kidnapping, rape, human
trafficking, torture, and other violent attacks against migrants
expelled to or blocked in Mexico due to the Title 42 policy. Migrants
and asylum seekers the Biden administration is returning to Mexico
under RMX are forced to endure escalating dangers in Mexico. For
example, in January 2022 a Venezuelan asylum seeker told Human Rights
First he was beaten and robbed in Ciudad Juarez as he was returning to
his shelter after obtaining a COVID-19 test to be able to attend his
RMX hearing. Other RMX enrollees have been robbed in shelters in Mexico
after DHS returned them. Mexican authorities, including police and
immigration officers, perpetrate and refuse to investigate violent
attacks against asylum seekers and migrants, including through
collusion with powerful cartels that use their control over Mexican
territory to kidnap, torture, and extort returned/expelled asylum
seekers who are targeted due to their status as migrants as well as
their race, gender, sexual orientation, and ties with family in the
United States. These targeted attacks are not limited to the U.S.-
Mexico border region.
Cartels and other organized criminal groups subject migrants and
asylum seekers to kidnappings, extortion, and other violence throughout
the country, including in central and southern Mexico.
remain in mexico blocks refugees from asylum protection and cannot
provide fair access to the u.s. asylum system
Under the Trump administration, RMX denied asylum seekers due
process and drastically restricted access to counsel, legal
information, and the ability of asylum seekers to attend and
participate in their own immigration hearings. Just to reach U.S.
immigration courts, asylum seekers were forced to risk kidnapping and
violence. Many were abducted while traveling through border regions to
attend hearings or directly outside ports of entry before or after
their hearings. As a result of the policy's inherent flaws, in absentia
removal orders were issued in at least 44 percent of RMX cases.
Immigration judges have ordered asylum seekers in RMX deported when
they missed court hearings even after being informed that the asylum
seekers were kidnapped in Mexico. As a result of these dangers,
refugees with protection needs have given up on their cases rather than
risk their lives to attend court, and some have even returned to their
home countries at risk of further persecution because of the harms they
had suffered while trapped in Mexico.
Many U.S. attorneys and humanitarian groups have unable to travel
to dangerous Mexican border regions to represent asylum seekers
stranded under RMX because of the risks to their safety. Their fears
are justified. As Human Rights First explained in a November 2021
factsheet, U.S.-based attorneys have been threatened with kidnapping
and violence in connection with their representation of people in RMX.
Given the many security, logistical, due process and ethical
impediments to legal representation that are inherent to RMX, the vast
majority of RMX returnees were not able to find lawyers, according to
immigration court data analyzed by the Syracuse University
Transactional Records Access Clearinghouse (TRAC). As of December 2020,
97 percent of individuals in RMX whose cases had been decided did not
have an attorney. By contrast, in non-RMX proceedings, only 9 percent
of non-detained asylum seekers whose cases concluded in fiscal year
2018 did not have legal representation at any point during their
proceedings. Of the nearly 70,000 people placed in RMX under the Trump
administration, only 523 people--less than 1 percent--were granted
relief while in RMX.
the biden administration's reimplementation of rmx has not addressed
the policy's fundamental, unfixable flaws
The inherently flawed RMX policy cannot be made safe, as its
reimplementation by the Biden administration has already made clear.
Customs and Border Protection (CBP) officers continue to return
migrants and asylum seekers to grave danger in Mexico, including
individuals who were previously harmed or threatened there, including
by Mexican government officials. More than 90 percent of the more than
673 people placed by CBP in RMX since December 2021 are from Nicaragua
(59 percent), Venezuela (23 percent), and Cuba (10 percent)--countries
from which many are fleeing repressive regimes and deepening political
and humanitarian crises. Very few have been able to find attorneys to
represent them in immigration court to assist them in preparing their
applications for asylum. The changes to RMX procedures implemented by
the Biden administration cannot fix its fundamental flaws. Indeed, the
UNHCR representative to the United States stated, in response to the
reimplementation of RMX, that ``the announced adjustments to the policy
are not sufficient to address [UNHCR's] fundamental concerns'' about
the safety and due process rights of asylum seekers subjected to RMX.
Soon after its reinstatement in December 2021, the asylum officers'
union described the RMX policy as ``irredeemably flawed'' and stated
that its restart ``makes our members complicit in violations of U.S.
Federal law and binding international treaty obligations of non-
refoulement that they have sworn to uphold.'' The Round Table of Former
Immigration Judges wrote, ``there has been no greater affront to due
process, fairness, and transparency than the MPP, or ``Remain in
Mexico'' policy. Instituted under the Trump administration, it appears
to have been motivated by nothing other than cruelty.''
Return to Danger, Risk of Refoulement
CBP officers continue to return migrants and asylum seekers to
grave danger in Mexico, including individuals who were previously
harmed there, where they are at risk of onward refoulement by Mexican
officials.
In a January 2022 report, ``A Shameful Record,'' Human Rights First
documented cases of people returned by CBP to Ciudad Juarez under RMX
after severe harm in Mexico. For example, a Nicaraguan asylum seeker
who had been recently kidnapped near the border in Mexico and tortured
by electrocution and beatings for 3 weeks was sent back to Mexico by
CBP in December 2021. Nearly all of the 16 RMX returnees Human Rights
First interviewed in Ciudad Juarez in December 2021 reported having
suffered violence, kidnappings, and/or extortion in Mexico--including
at the hands of Mexican police or other government officers. Likewise,
the Border Project, which provided legal consultations to individuals
being returned to Ciudad Juarez in December 2021, reported that more
than 70 percent of the 87 individuals that Border Project attorneys
spoke to had been persecuted by Mexican police and other government
officials. As the Border Project noted in a communication to Human
Rights First, this level of violence by Mexican officials ``raises
serious concerns about the Biden administration's assurances that the
Government of Mexico will assist in protecting the migrants returned''
under RMX.
Asylum seekers returned to Mexico by the Biden administration are
at grave risk of chain refoulment, i.e., illegal return, to countries
where they would face persecution or torture. The Mexican government
has deported asylum seekers whom the Biden administration had expelled
or blocked from seeking U.S. protection under Title 42--including some
who presented documentation showing they had legal status in Mexico.
Though the Biden administration is offering to bus people returned to
the dangerous border city Matamoros under RMX to Monterrey, a city in
Mexico's interior, they remain at risk of violent crime or chain
refoulment. For example, a Venezuelan asylum seeker told Human Rights
First that Mexican police twice extorted him in Monterrey before he was
placed in RMX and returned to Mexico in December 2021. This Venezuelan
asylum seeker also reported that Mexican immigration authorities in
Monterrey had threatened and forced him and other asylum seekers on to
a bus to the south of Mexico, where Mexican immigration officers
detained him, even though he had documentation showing he was legally
present in Mexico. The asylum seeker was released in southern Mexico
with instructions to leave Mexico within 10 days or face deportation to
Venezuela.
Flawed Fear Screenings
RMX fear of return to Mexico screenings remain fundamentally flawed
at every stage. The Biden administration has chosen to use a heightened
screening standard, instead of the credible fear standard set by
Congress for the expedited removal process, for RMX non-refoulement
interviews (NRI). The ``reasonable possibility'' standard applied in
these preliminary telephonic screenings is equivalent to what asylum
seekers must show to establish eligibility for asylum after a full
immigration court hearing. These interviews are conducted while
individuals are being held--often for days--in freezing CBP holding
cells and generally without counsel present--only 20 (3 percent) of 595
people in RMX who claimed fear of return to Mexico in December 2021 and
January 2022 had an attorney present for their NRI. Unsurprisingly, few
individuals have been found to have a fear of return to Mexico under
RMX. According to DHS data, 88 percent of migrants and asylum seekers
placed in RMX in December 2021 and January 2022 expressed fear of
return to Mexico, but only 14 percent of those screened were found to
face ``a reasonable possibility'' of harm in Mexico, despite DHS's own
recognition that people in RMX are targeted for kidnappings and other
violent crimes. The extraordinarily low percentage of individuals
receiving positive RMX fear determinations under the Biden
administration is nearly identical to when these screenings were
conducted under an even more heightened standard by the Trump
administration (13 percent of individuals subjected to RMX between
January and October 2019 were found to have a fear of return to
Mexico).
Information from the Border Project and Human Rights First
interviews with individuals returned to Mexico under RMX indicate that
CBP officers interfere with meaningful access to counsel for RMX fear
screenings including by pressuring individuals in RMX to waive their
opportunity to speak with an attorney, failing to inform individuals in
RMX of their opportunity to access counsel prior to a nonrefoulement
interview, and blocking individuals in RMX from hiring or consulting
private legal counsel. Many individuals returned to Mexico in December
2021 described the non-refoulement interview as confusing and chaotic.
They told Human Rights First that they did not understand the purpose
of the interview and were unsure who they had spoken with on the phone
during the interview. For instance, a Nicaraguan asylum seeker said
that he had a conversation by telephone while detained in CBP custody
but did not know whether he had spoken with a government official or
had received a consultation with a legal office. Indeed, none of the 18
people Human Rights First interviewed in December 2021 after they were
returned to Ciudad Juarez under RMX were certain whether they had
spoken with a lawyer prior to being returned to Mexico, even though
free legal consultations were available to anyone in RMX at the time.
Failure to Screen for Vulnerabilities
DHS has also returned to Mexico individuals with serious medical
conditions and LGBTQ persons, despite DHS guidance exempting from RMX
``those with a known mental or physical health issue'' and ``those at
increased risk of harm in Mexico due to their sexual orientation or
gender identity.'' People with health issues wrongly returned by CBP to
Mexico under RMX include a man with cancer. In December 2021 Human
Rights First found that CBP officers were failing to ask health
screening questions and falsely recording on the ``Initial Health
Interview Questionnaire'' that migrants and asylum seekers placed in
RMX have reported that they do not have any serious medical conditions.
None of the 18 individuals in RMX who Human Rights First interviewed in
Ciudad Juarez in December 2021 had been asked the 11 health screening
questions on the form. Some were not asked any health-related
questions, while others said that CBP officers inquired only generally
about health issues. None of the RMX enrollees Human Rights First
interviewed were asked any questions about their gender identity or
sexual orientation.
Separating Families
CBP continues to separate families, returning some family members
through RMX to danger in Mexico. In December 2021, the Border Project
identified approximately 10 RMX returnees who had been separated from a
spouse or adult children. One man who was returned to Mexico under RMX
told the Border Project that he had been separated from his wife, who
was 6 months pregnant and suffering from epilepsy and asthma. A
Venezuelan asylum seeker told Human Rights First that he had been
separated from his adult brother and uncle approximately 10 RMX
returnees who had been separated from a spouse or adult children. One
man who was returned to Mexico under RMX told the Border Project that
he had been separated from his wife, who was 6 months pregnant and
suffering from epilepsy and asthma. A Venezuelan asylum seeker told
Human Rights First that he had been separated from his adult brother
and uncle. DHS has also used the illegal Title 42 expulsion policy to
separate countless families.
Throwing Out Belongings
In addition, CBP is returning individuals without their belongings.
Multiple individuals reported to Human Rights First that CBP officers
discarded their personal possessions and that they were returned to
Ciudad Juarez in December 2021 under RMX without their clothing, shoes,
coats, or medication among other personal items--in violation of CBP's
detention standards. This cruel and unnecessary practice exacerbates
the challenges RMX enrollees face when left to wait for months in
unfamiliar Mexican cities with few resources to support themselves.
Due Process Barriers, Lack of Representation
The Biden administration's reimplementation of RMX has not
addressed its inherent due process denial. Like the first iteration of
RMX, a very small number of individuals in RMX have managed to secure
legal counsel. For example, only 6 percent (5 of 82) of asylum seekers
had legal counsel when they appeared at the El Paso immigration court
for the first 2 days of RMX hearings in early January 2022, according
to a court observer with Refugees International. By comparison, 93
percent of asylum seekers had legal counsel in non-RMX asylum
proceedings in fiscal year 2022 so far. Many asylum seekers returned to
Mexico under RMX have reported that attorneys on the U.S. Government-
provided list of legal service providers are not taking RMX cases
(often due to security concerns) or do not have capacity to assist
them. RMX court observers in El Paso and San Diego report that the
first RMX hearings were confusing and chaotic. Observers in both courts
heard RMX enrollees tell judges that they tried but were unable to find
legal counsel.
Since the Biden administration's reimplementation of RMX,
immigration court judges have already issued in-absentia removal orders
for some individuals who were not able to attend RMX hearings in
January 2022. Judges rescheduled hearings for others who were unable to
attend, but it is unclear how their new hearing dates will be
communicated, as people in RMX often lack stable housing cannot always
receive mail. Despite the Biden administration's claim that its version
of RMX would be more transparent, DHS has limited access to RMX
proceedings, improperly threatening an attorney monitoring RMX hearings
in January 2022 with legal action for publicizing her observations
(then later retracting the threat).
remain in mexico is illegal and cannot be made lawful
By returning asylum seekers to wait in danger in Mexico under the
Remain in Mexico program, the U.S. Government is violating U.S.
immigration law and international treaty commitments to avoid
refoulment. As extensive research by Human Rights First and other human
rights groups have documented, the U.S. Government's RMX policy (in
addition to the Title 42 policy) returns people to highly dangerous
regions of Mexico where they have subsequently faced, or are likely to
face, horrific danger, including murder, rape, torture, kidnapping,
human trafficking, and other violence. These returns violate the U.S.
Government's non-refoulement obligations under Article 33 of the 1951
Convention relating to the Status of Refugees (binding on the United
States through its accession to the 1967 Protocol relating to the
Status of Refugees), the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the International
Covenant on Civil and Political Rights, and customary international
law, which prohibit returning people to countries where they would be
at risk of persecution, torture, or other serious harm.
continuing illegal expulsions under the deadly title 42 policy
At the same time the Biden administration is using RMX to return
people seeking U.S. humanitarian protection to Mexico, it continues to
embrace and defend, rather than end, the Trump administration's Title
42 policy, which misuses public health authority to violate U.S. non-
refoulement obligations, block asylum at U.S. ports of entry, and expel
people seeking refuge to danger in Mexico and the countries they fled.
The suffering of families, adults, and children subjected to this
policy continues to mount, with at least 8,705 kidnappings and other
attacks on people blocked or expelled to Mexico under Title 42 since
President Biden took office. Since September 2021, the Biden
administration used this policy to illegally expel more than 18,000
Haitians to life-threatening insecurity in Haiti. The U.S. Department
of State's top legal expert, former Yale Law School Dean Harold Koh,
resigned from the Department in October 2021 after concluding that the
Biden administration's continued use of Title 42 to expel people
seeking protection is ``illegal and inhumane.''
Epidemiologists and public health experts have continued to condemn
the misuse of Title 42, explaining in September 2021 that the Centers
for Disease Control and Prevention (CDC) order ``does not provide
adequate public health justifications for expelling asylum-seeking
families at the border'' and that ``expulsions magnify the risks of
COVID-19 transmission.'' In a September 2021 letter to Biden
administration officials and the CDC director, public health experts
again expressed concern that the CDC has ``endorsed and extended the
implementation of the scientifically baseless and politically motivated
Title 42 order.'' The United Nations High Commissioner for Refugees has
urged the United States to ``swiftly lift the public health-related
asylum restrictions that remain in effect at the border and to restore
access to asylum for the people whose lives depend on it, in line with
international legal and human rights obligations.''
action needed by congress
Congress has a critical role to play in upholding U.S. refugee law
and treaties, urging all possible steps to end the Remain in Mexico
policy and its expansion, and urgently pressing for an end to the
similar Title 42 policy and others Trump-era policies that evade
refugee law, effectively block refugees from U.S. asylum and endanger
their lives. Congress should:
Continue to conduct oversight and strongly urge the Biden
administration to comply with U.S. and international refugee
law, definitively end the Remain in Mexico policy, stop
misusing Title 42 to evade refugee law, and fully restore
asylum processes at the Southern Border--including at ports of
entry, and to take all necessary administrative and judicial
steps needed to do so. Congress should also request updates on
action the administration has taken to end other Trump-era
policies including the asylum entry and transit bans, the
``Death to Asylum'' rule, and the interim final rule
implementing Asylum Cooperative Agreements (ACAs).
Update and reintroduce the Refugee Protection Act, to ensure
U.S. asylum laws uphold U.S. commitments under Article 33 of
the 1951 Convention relating to the Status of Refugees, the
Convention against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, and the International
Covenant on Civil and Political Rights.
While the inherently flawed and unfixable Remain in Mexico
and/or Title 42 policies continue to be implemented, conduct
oversight and advance recommendations to U.S. agencies to
ensure that:
DHS (through information it receives from asylum seekers
through USCIS, CBP, and/or ICE interviews and
communications) and the U.S. State Department track all
reported incidents of kidnappings and other violence
against individuals after they are returned to Mexico via
RMX or Title 42, and harms suffered by persons expelled to
other countries--including Haiti--under Title 42 without
being provided with access to the safeguards of U.S.
refugee law;
DHS and CBP allow, provide, and facilitate unimpeded
access to in-person legal consultations and legal
representation to people in its custody, including in
connection with RMX NRI interviews, eliminate the limit on
time permitted to consult with legal counsel, and prohibit
the conduct of any fear interviews without the presence of
in-person legal counsel when an asylum seeker requests such
representation; and
DHS and CBP allow and provide NRI interviews at POEs upon
request by asylum seekers or their counsel, and take steps
to ensure that CBP appropriately screens, identifies, and
exempts individuals who should be exempt from placement in
Remain in Mexico under DHS's internal implementation
guidelines.
Conduct official visits to Mexican, Guatemalan, and Honduran
border towns where asylum seekers have been returned/expelled,
CBP facilities and Border Patrol stations on the southern U.S.
border, immigration detention centers, immigration courts, and
humanitarian organizations in the border region assisting
asylum seekers and migrants. Examine potential structural
improvements to anticipate, plan for, and manage humanitarian
protection and uphold compliance with U.S. refugee law and
treaties, such as a new or reconfigured and elevated U.S.
agency with a humanitarian and refugee protection mission,
expertise, and capacities.
ATTACHMENT*
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* The document has been retained in committee files and is
available at https://www.humanrightsfirst.org/sites/default/files/
ShamefulRecord.pdf.
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Statement of The Hope Border Institute (HOPE)
March 1, 2022
The Hope Border Institute (HOPE) thanks the House Homeland Security
Committee for holding a hearing on the reimplementation of Remain in
Mexico. HOPE is a Catholic social justice organization working bi-
nationally in El Paso, Texas and Ciudad Juarez, Chihuahua to uphold the
right to asylum and dignity for people on the move in our region. In
addition to research and advocacy for asylum restoration and rights-
respecting border policy, we operate the Border Refugee Assistance Fund
to provide humanitarian support for migrants and asylum seekers forced
to remain in Ciudad Juarez, Mexico. As a borderland organization, we
are all too familiar with the harms that result from the
externalization of asylum and are advocating for a full restoration of
the asylum system and an end to policies that deny people on the move
access to U.S. territory.
In 2019, the Migrant Protection Protocols (MPP) changed the
landscape of asylum in our region. Over 20,000 people were placed into
the first version of the program in El Paso and Ciudad Juarez,
including highly vulnerable individuals such as families with children,
indigenous people and mentally disabled people. The cruelty of the
program lay in the fact that people were stranded with few resources in
an extraordinarily dangerous environment where kidnapping, extortion,
assault, and other forms of violence against migrants were commonplace.
Access to attorneys was severely limited and the challenge of
navigating the complex asylum system while living in danger meant that
pursuing and winning an asylum case was next to impossible.
The restart of MPP--and the unnecessary termination of the wind-
down program, leaving thousands of people stranded in Mexico with no
opportunity for parole--has been a devastating step backwards for
asylum seekers. While the Biden administration is under court order to
restart the program, its expansion to nationals of all Western
Hemisphere countries and continued human rights violations during
implementation are discouraging signs.
Changes to the structure of the program have not ameliorated
serious concerns about human rights and dignity. MPP never has been and
never will be a rights-respecting program. People we have spoken to and
accompanied in both versions of the program describe compelling root
causes that drove them from their homes, violence and extortion
throughout their journey in Mexico, fear of being forced to stay in
Mexico, and a desire to reunite with family in the United States and
build a new life in peace.
At the moment, with the Title 42 expulsion policy in place for the
indefinite future, MPP has perversely become the only de facto
opportunity for asylum at the U.S.-Mexico border, an alarming fact
because MPP is so deeply flawed and does not represent true access to
asylum. This results in a discriminatory impact on those who are
subject to Title 42 (such as people from Mexico, Guatemala, and
Honduras), while putting those who are subject to MPP in a deeply
unsafe position where their chances of securing representation and
winning an asylum case are extremely low. HOPE's research has
documented some of these human rights concerns through conversations
with individuals living in shelters and observation of MPP court
proceedings.
safety, human rights, and vulnerability
In January and February of this year, HOPE conducted interviews
with asylum seekers who are currently enrolled in MPP and living in a
shelter operated by the Mexican Federal Government in Ciudad Juarez.
These interviews surfaced major concerns with the implementation of the
program, in particular the impact on individuals' physical and mental
health and their access to due process in court. Notably, most of those
we interviewed fled home because of persecution and their political
opposition to authoritarian governments in Nicaragua and Cuba that the
U.S. Government has spoken out against.
The asylum seekers described feeling deeply unsafe in Mexico
and refused to leave the shelter for fear of being kidnapped or
extorted. A significant number also expressed fear of living
within the shelter due to the presence of Mexican police and
soldiers and noted that the shelter was unhygienic, the food
was inadequate and they did not have access to medical care
while sick with illnesses like chickenpox. Despite requesting
non-refoulement interviews and sharing their experiences with
asylum officers of being extorted, robbed, and kidnapped along
the journey through Mexico, they were returned anyway.
Many asylum seekers presented vulnerabilities that should
have exempted them from MPP, including a Black indigenous man
from Nicaragua whose dominant language is a dialect called
Miskito, another man who is bisexual and one man who has a
health issue in his lungs. Two of the men had expressed these
vulnerabilities to asylum officers or immigration agents in the
United States but were returned to Mexico; the bisexual man was
afraid to disclose his sexuality to asylum officers or
immigration agents for fear of being discriminated against.
The majority of those interviewed had left their country
because of persecution related to political affiliation. One
man from Nicaragua worked as an electoral count manager
(fiscal) for an opposition political party. After raising
inconsistencies with vote counts during the 2021 elections,
police and paramilitaries stalked him at his home and he fled
in fear of his life. He was experiencing major psychological
distress after being placed in MPP and did not feel safe or
well living in the shelter. Another man from Cuba worked as a
math and physics teacher and was persecuted for his refusal to
participate in communist party activities and incorporate the
party agenda into his curriculum. After he participated in the
July 11-12 protests in Cuba, he was detained and questioned by
police for a full day with no food or water, was fired from his
job and said that state agents in civilian clothes from the
comittee de la defensa de la revolucion harassed his family at
their home.
People placed into MPP are given limited info packets about
MPP and the asylum process, but the paperwork is in a mixture
of Spanish and English, making it difficult for monolingual
Spanish speakers to understand everything. One man from Cuba
who was unrepresented said he was learning about asylum and
preparing for his case by watching YouTube videos. Another
person noted that he knows several people in MPP who cannot
read or write, making it extremely difficult for them to
prepare a case and understand the written materials they were
given.
Many of those we interviewed described mental and physical
health issues stemming from shelter conditions as well as an
extreme fear of leaving the shelter for any reason. A
particular concern was having to leave the shelter to obtain a
COVID test in order to attend court. No transportation is
offered to clinics or testing labs in Cd. Juarez, forcing them
to leave the shelter against their will simply to meet the
prerequisite for attending court.
obstacles to due process in court
In addition to interviews with people enrolled in the program, HOPE
observed several days of MPP court proceedings in January and February
2022.
None of those we observed had legal representation. At least
one man said that he had attempted to contact pro bono
attorneys on the contact list but was unable to reach them.
Nonprofit service providers in El Paso have declined to take
on many MPP cases because of lack of capacity and obstacles to
due process, but they are still listed on the pro-bono, low-
cost legal access list. This gives respondents the impression
that substantial legal services are available when in fact they
are not.
On January 31, two men from Colombia were deported in
absentia after failing to appear for their court hearing in El
Paso. Despite the fact that shelter and transportation to the
ports of entry are coordinated with the Department of Homeland
Security, the U.S. State Department and the International
Organization for Migration (and thus the Government would
presumably have information about why the men were unable to
appear in court), no information was provided to the judge and
the men were deported. This is especially concerning because
deportations in absentia were frequent in the first version of
MPP, often because individuals had been kidnapped on the way to
ports of entry, had become ill or felt too unsafe to leave
their residence to present at the ports.
People in court expressed confusion about basic elements of
the asylum process, such as which country's governments are
involved in decision making and whether requesting more time to
find an attorney would prohibit them from having a non-
refoulement interview about fear of return to Mexico.
People in court were anxious to express fear of return to
Mexico and ensure they would have non-refoulement interviews
(NRI's). Government data on MPP reveals that following initial
enrollment in January 2022, 89 percent of individuals requested
non-refoulement interviews (NRI's), but 73 percent of the NRI's
resulted in a negative fear determination.
Judges incorrectly asked respondents on several occasions
whether they live in Casa del Migrante, a private shelter in
Cd. Juarez that does not currently house people in MPP. Because
``casa del migrante'' can refer to both the specific Casa del
Migrante or a generic ``casa de migrante'' or migrant shelter,
respondents have tended to answer the question in the
affirmative when they are actually living in a federally-
operated shelter with a different name.
It is clear from our research that grave human rights issues are
still present within the Migrant Protection Protocols and that new
safeguards to ensure the safety, well-being, and due process of people
in the program are not adequate. The program's founding intent was to
deny access to asylum and to make people so desperate and unsafe in
Mexico that they would give up and return home. We can and must do
better to offer protection to people fleeing from grave harm and
looking to the United States as a last resort.
recommendations
We recommend that Congress:
End funding for the Migrant Protection Protocols.
Work with the administration to resume the MPP wind-down
process that was in place in 2021 to allow people in the first
version of MPP to be paroled in from Mexico, from third
countries and countries of origin.
End Title 42 and a current patchwork approach to asylum
protections at the border that discriminates based on
nationality while leaving the most vulnerable at risk.
Restore full access to asylum at ports of entry without
resorting to metering and other forms of externalization,
including reliance on NGO's to screen individuals in Mexico for
extreme vulnerabilities.
Build capacity to safely process asylum seekers at the
border in a dignified manner and release people to reunite with
family or sponsors in the U.S. interior. This should not
include mass detention or indefinite stays in processing
facilities.
Partner with community organizations in border communities
to facilitate safe release and travel for asylum seekers.
Expand funding for community-based case management systems that
assist people in accessing social services at their destination
and offer legal representation and support with attending court
hearings.
The El Paso border community is ready and willing to welcome asylum
seekers and people on the move with dignity, as we have done for
generations. Putting vulnerable people who fled for their lives in
harm's way and denying their right to seek protection on U.S. soil is
not the answer to changing migration patterns and the root causes of
migration.
Thank you for the opportunity to submit this statement.
______
Letter From the Coalition for Humane Immigrant Rights (CHIRLA)
March 2, 2022.
Chair Nanette Diaz Barragan,
Committee on Homeland Security, Subcommittee on Border Security,
Facilitation, and Operations, Washington, DC 20515.
Ranking Member Clay Higgins,
Committee on Homeland Security, Subcommittee on Border Security,
Facilitation, and Operations, Washington, DC 20515.
Chair Bennie Thompson,
Ranking Member John Katko,
Committee on Homeland Security, Washington, DC 20515.
Re: Hearing ``Examining the Court-Ordered Reimplementation of The
Remain In Mexico Policy''
Dear Chairs Barragan & Thompson & Ranking Members Higgins & Katko:
On behalf of the Coalition for Humane Immigrant Rights (CHIRLA), the
largest State-wide immigrant rights organization in California, I
submit this statement for the record for today's hearing entitled
``Examining The Court-Ordered Reimplementation of the Remain In Mexico
Policy.'' As an organization serving the immigrant community for the
past 35 years, CHIRLA has worked to gain and maintain both trust and
credibility as a reliable source of accurate information of events both
in California and south of the U.S.--Mexico border.
Since December 2018, CHIRLA has monitored both the initial ``Remain
in Mexico'' policy (Migrant Protection Protocols, MPP 1.0) and more
recently the impact of the court-ordered re-implementation of MPP 2.0.
In both instances, CHIRLA bears witness to how the Orwellian
nomenclature used for this program is wholly matched by the sheer
cruelty of its impact on immigrants who are put through its grinding
process.
Indeed, CHIRLA's base analysis of MPP is mostly shared by the Biden
Administration, and this is what makes the ongoing court-ordered
implementation, which is effectively an extension of MPP, both baffling
and disconcerting. As a candidate, President Biden identified MPP as
the first ``detrimental asylum policy'' that needed to be ended.\1\
After first suspending new enrollments in MPP, pursuant to Executive
Order 14010, DHS Secretary Mayorkas on June 1, 2021 and then again on
October 29, 2021 issued memos on the ``termination'' on MPP.\2\ The
basic reason for the termination was the clear and convincing evidence
of MPP ``imposing substantial and unjustifiable human costs on the
individuals who were exposed to harm while waiting in Mexico.''\3\
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\1\ https://joebiden.com/immigration/.
\2\ https://www.dhs.gov/sites/default/files/publications/
21_1029_mpp-termination-memo.pdf.
\3\ Id. p. 2.
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chirla's role in mexico
Since 2017, CHIRLA has run an international program based in
Mexico, from the border with the United States, to Mexico City and
currently in Tapachula, Chiapas near the border with Guatemala. In the
course of this work, CHIRLA's team regularly encounters MPP enrollees
as well as other immigrant victims of the U.S. asylum system's
decimation.
chirla's perspective on policy solutions
Aside from the ongoing multi-year process, led by the Biden
Administration and Vice President Kamala Harris, of dealing with the
root causes in Central America and elsewhere that compel immigrants to
migrate, we believe there are immediate actions that the Federal
Government can take to improve the situation. These include:
1. First Reduce the Scope of MPP 2.0 and then Terminate It
(Again).--There is no reason for the Biden Administration to
have expanded the eligible pool beyond MPP 1.0's Spanish-
speaking countries and Brazil. The expansion will impact e.g.
Haitians, already being expelled en masse using Title 42.
2. End the Use of Title 42 to Expel Immigrants Arriving at the
Border.--Title 42 remains the central pillar of the anti-asylum
regime built by the Trump Administration. While this has been
ended for children, it has not for families arriving together
or for single adults.
3. Restitution for Victims of MPP 1.0 and 2.0.--The Biden
Administration in its initial wind down of MPP allowed pending
MPP enrollees to actually apply for asylum, with some 13,000
being processed into the United States for further
adjudication. However, there are tens of thousands of other MPP
victims who missed court hearings due to fear, kidnapping, and
more and were thus ordered deported in absentia. These
individuals also need an option to apply for asylum as was
their original intent.\4\
---------------------------------------------------------------------------
\4\ https://www.americanimmigrationcouncil.org/research/migrant-
protection-protocols.
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idel antonio--victimized by mpp 2.0
Recently, a member of the CHIRLA family has been subject to the
cruelty and arbitrariness of MPP 2.0. His name is Idel Antonio, and
this is his story:
He participated in the protests against the Cuban Government
in November 2021. He has since been targeted and has seen
friends jailed;
Despite not wanting to leave Cuba, where he has 3 young
children, fear of the government compelled him to leave;
In Mexico, he endured extortion, constant movement around
the country, corrupt officials, and attempted kidnappings;
Unaware of the new MPP, and out of fear of persecutors in
Mexico, he attempted to cross the border.
He did not mention the full extent of the crimes he endured
in Mexico, though he did express fear.
Moreover, he was unable/unaware of the possibility of
securing legal counsel, and therefore failed the fear interview
and was placed in MPP 2.0.
Although he was sent to a ``permanent'' shelter in Ciudad
Juarez, he continues to live in fear of his Mexican
persecutors;
Idel Antonio's case highlights the impossibility of
``justly'' implementing this monstrous program.
Thank you for considering CHIRLA's statement.
Please contact our General Counsel, Carl Bergquist, at
cbergquist@chirla.org, and our International Program Manager, Arturo
Viscarraa, at aviscarra@chirla.org, should you have any questions.
Sincerely,
Angelica Salas,
Executive Director, Coalition for Humane Immigrant Rights (CHIRLA).
______
Statement of the California Welcoming Task Force
March 2, 2022
``The California Welcoming Task Force calls for an end to the
inhumane and illegal Migrant Protection Protocols program. It is time
to rebuild our asylum system to welcome human beings with dignity.''
SAN DIEGO.--Three years ago the United States implemented the
Migrant Protection Protocols (``MPP'') program forcing individuals
seeking asylum to return to dangerous Mexican border cities where their
well-being and lives are in danger. MPP is a ruthless and unjust policy
impacting the lives of vulnerable people.
Despite initially taking steps to end MPP, the Biden administration
has reimplemented the policy and expanded it to include any person from
the Western Hemisphere. Individuals from countries such as Haiti and
Jamaica who were previously excluded from the program can now be
exposed to well-documented discrimination and harm in Mexico. The
administration's attempts to make this inhumane policy humane are not
only futile, but they have also demonstrably failed. We denounce the
reimplementation and expansion of this policy.
The California Welcoming Task Force can attest to the harsh reality
and failures of the MPP program:
On January 5, 2022, two Colombian men who sought asylum in
the United States days earlier were sent back to Tijuana,
Mexico under the program. Members of the California Welcoming
Task Force identified several problems with their processing,
including dehumanizing conditions in U.S. Customs and Border
Protection (CBP) custody, lack of access to counsel, lack of
access to health care and lack of access to necessities in
Tijuana. The shelter where they were placed in Tijuana has not
received the support necessary to guarantee access to clean
water, for example.
Two women seeking asylum were sent back to Tijuana under
Remain in Mexico and so far the U.S. Department of Homeland
Security (DHS) has refused to approve requests for their
removal from Remain in Mexico to allow them to safely seek
asylum within the United States. Migrant women in Tijuana are
often targets of kidnapping, assault, or even sex trafficking.
A person seeking asylum forced by Customs and Border
Protection into the program who contacted an attorney with
Immigrant Defenders Law Center while still in custody told the
attorney that they were a member of the LGBTQ community. DHS
had said that, under the current implementation of Remain in
Mexico, such individuals would not be enrolled in Remain in
Mexico. After intervening, the attorney was able to get the
individual removed from enrollment, but only after significant
time and resources were invested by the legal service
organization interviewing the individual and communicating with
DHS.
An asylum seeker who was injured by a government official
for expressing his political opinion was placed into the
Migrant Protections Protocol. With his arm in a sling, he
informed border officials of the recent surgery and physical
pain in his arm. Despite clearly needing protection from the
United States and to be with family in the United States, he
was placed in MPP and sent to Tijuana. During the non-
refoulement interview border officials took off his sling and
bandage.
We have observed court hearings where MPP respondents were
not properly served with important court documents by the
Department of Homeland Security.
Attorneys have spoken with MPP respondents who were unable
to attend their court hearing due to misinformation on
transportation arrangements by IOM to the San Ysidro Port of
Entry. Others missed their court hearing after being
misinformed to present themselves directly to the San Ysidro
Port of Entry instead of arranging transportation with IOM.
MPP respondents who pass the fear of Mexico interview (non-
refoulement interview) are held in Border Patrol stations for
extensive periods of time, sometimes up to 5 days. Border
Patrol stations have no showers and conditions are harsh.
MPP respondents have informed us they were told to sign
documents while in Border Patrol custody that they did not
understand and were not in their native language.
Dehumanizing and illegal immigration policies must end. We must end
Remain in Mexico. We must welcome human beings with dignity.
______
Statement of the Center for Gender & Refugee Studies (CGRS)
March 2, 2022
The Center for Gender & Refugee Studies (CGRS) defends the human
rights of refugees seeking asylum in the United States. We undertake
strategic litigation to advance sound asylum laws and protect due
process rights. Our current docket includes Federal lawsuits
challenging anti-asylum border policies, including Remain in Mexico,
and high-impact appellate cases that present opportunities to restore
paths to protection. Additionally, we provide free expert consultation,
comprehensive litigation resources, and cutting-edge training Nation-
wide to attorneys and advocates working with asylum seekers. We also
advocate for the fair and dignified treatment of asylum seekers and
promote policies that honor our country's legal obligations to
refugees.
We are grateful that the House Homeland Security Subcommittee on
Border Security, Facilitation, & Operations is examining the court-
ordered reimplementation of the Remain in Mexico policy, formally known
by its Orwellian name, the ``Migrant Protection Protocols'' (MPP). We
appreciate this opportunity to provide a statement for the record.
CGRS is deeply familiar with the cruelty and illegality of MPP,
having challenged many aspects of its first iteration in Innovation Law
Lab v. Mayorkas and Immigrant Defenders Law Center et al. v. Mayorkas.
In both cases we represent individual plaintiffs who have experienced
the horrors of Remain in Mexico first-hand and legal service providers
who have struggled to represent them. CGRS has supported the Biden
administration's efforts to end the policy by submitting amicus briefs
in Texas v. Biden before the Fifth Circuit Court of Appeals and the
Supreme Court.
congress must recognize that remain in mexico violates u.s. and
international law
When the Trump administration launched MPP in 2019, it completely
upended long-standing practices toward people seeking asylum at the
U.S. Southern Border. It was an unprecedented policy change that made
it impossible for most asylum seekers arriving at the border to safely
pursue their protection claims in the United States. MPP was widely
criticized by U.S. legal experts, Department of Homeland Security (DHS)
employees, and international bodies, including the UN Refugee Agency
(UNHCR) and the Inter-American Commission on Human Rights. They
explained that, by returning asylum seekers to dangerous conditions and
undermining their ability to mount a successful asylum case, MPP
violated the United States' non-refoulement obligations under the 1967
Refugee Protocol and the Convention Against Torture--that is, our
promise not to return people to persecution or torture. These
commitments have been reflected in both statutory law and Federal
regulations.
The courts agreed. As counsel in Innovation Law Lab v. Mayorkas,
CGRS successfully challenged the legality of the first version of MPP.
In April 2019 the District Court for the Northern District of
California granted a preliminary injunction, which would have
temporarily halted the policy. The Ninth Circuit Court of Appeals
initially stayed the injunction--allowing MPP to remain in effect--but
restored it in February 2020, ruling unequivocally that MPP violates
both U.S. and international law. The Trump administration then appealed
to the Supreme Court, which put the injunction on hold as it considered
the case, leaving the policy in place until the Biden administration
formally terminated it in June 2021. Following the termination, the
Supreme Court sent the case back to the district court, which vacated
the injunction as moot. The case remains pending.
reimplementation of mpp is based on the lower courts' misunderstanding
of the facts and the law
The Biden administration's decision to terminate MPP was based on a
sound analysis of the law and recognition of the untenable conditions
created by the policy. DHS Secretary Alejandro Mayorkas' second
memorandum terminating MPP cited copious evidence that the policy's
humanitarian and due process defects were ``endemic to the program's
design'' and beyond reform. In contrast, the legal positions adopted by
the U.S. District Court for the Northern District of Texas, and upheld
by the Fifth Circuit Court of Appeals, grossly distorted the law and
the facts. If the Supreme Court allows the Fifth Circuit's decision to
stand, it will send a dangerous message that a single court ruling can
arbitrarily override laws enacted by Congress.
CGRS joined partners in submitting an amicus brief on behalf of
non-profit organizations and former immigration judges in Biden v.
Texas, supporting the administration's decision to terminate Remain in
Mexico. Our amicus brief highlights fatal flaws in the lower court
decisions, which fault Secretary Mayorkas for failing to consider MPP's
``benefits''--namely, its purported success in deterring migration and
fraudulent asylum claims. The evidence in the case reveals the opposite
to be true. No matter what cruel policy the Trump administration
devised--from family separation, to MPP, to Title 42--violence and
insecurity in their home countries have continued to force people to
seek refuge in the United States. MPP merely denied asylum seekers safe
access to the U.S. immigration court system, trapping desperate
families and adults in precarious conditions that exposed them to
further violence and depriving them of a meaningful opportunity to
present their asylum claims.
Far from bringing greater integrity to the asylum process, the
program's procedural deficiencies, compounded by the inherent dangers
in northern Mexico, made it impossible for most asylum seekers to
access legal representation and prevented many from even making it to
immigration court. Under the Trump administration, only 7 percent of
people placed in Remain in Mexico were able to obtain a lawyer,
compared with 60 percent of asylum seekers applying inside the United
States. As the sobering evidence in the Texas case shows, many placed
in MPP were kidnapped at the time of their hearings and denied
protection through no fault of their own. Of the nearly 70,000 asylum
seekers enrolled in Trump's MPP, just 523 were granted asylum.
Remain in Mexico continues to cause incalculable violence and
suffering. The Remain in Mexico policy has caused enormous harm to
people seeking asylum. People returned to Mexico under MPP are
frequently kidnapped and assaulted by cartels and other organized crime
groups that regard asylum seekers as prime targets. Extortion of people
subject to MPP is so routine, experts have likened the policy to ``a
stimulus package for cartels.'' Human rights investigators have
documented numerous cases of pregnant women, children, LGBTQ+ people,
and people with disabilities suffering horrific abuses after being
returned to Mexico under MPP. While the Biden administration pledged to
make humanitarian improvements to the program, MPP 2.0 has been plagued
with the same problems as the original policy. Conditions in Mexico
remain incredibly dire for people seeking asylum. Since President Biden
took office, Human Rights First has documented at least 8,705 public
reports of violent attacks--including rape, kidnapping, and murder--
against people blocked from requesting protection at the U.S. border
and/or expelled to Mexico under the Title 42 policy.
Unsurprisingly, in MPP 2.0's first 2 months of implementation, 88
percent of asylum seekers placed in the program have expressed fear of
return to Mexico. Border officials have rejected 75 percent of these
fear claims, despite copious evidence of the harm that befalls asylum
seekers forced back over the border. Human rights investigators report
that the Biden administration is returning even people who have already
experienced severe violence in Mexico.
the texas case does not preclude the biden administration from
providing redress to those subjected to mpp 1.0
Even while the Texas v. Biden case proceeds, CGRS and our partners
continue to litigate a separate case, Immigrant Defenders Law Center et
al. v. Mayorkas, which challenges on-going harms suffered by asylum
seekers who remain stranded outside the United States due to the
effects of the policy's first incarnation under Trump. Individual
plaintiffs in the case recently filed a motion for class certification,
requesting that they be allowed to represent a class of similarly
situated individuals who had their cases terminated or received final
removal orders after being deprived of meaningful access to the U.S.
asylum process under MPP 1.0. Our lawsuit alleges that the Biden
administration unnecessarily and unlawfully suspended the wind-down
process that had previously enabled many such individuals to re-enter
the United States to pursue their asylum claims. The following quotes
and excerpts from our plaintiffs' declarations offer a glimpse of the
horrific circumstances facing asylum seekers returned to Mexico. Their
experiences represent just the tip of the iceberg that is the profound
trauma inflicted by Remain in Mexico under both the Trump and Biden
administrations.
``My daughter and I lived in horrible conditions in the
migrant camp in Matamoros, and I was kidnapped and raped while
we waited in Mexico for my immigration court hearings,'' our
plaintiff Dania Doe stated in her declaration. ``I thought we
were going to die . . . I begged [U.S. officials] not to return
us to Mexico, but they did not listen . . . I was never able to
find an attorney to represent me in my immigration case, and
the immigration judge denied my asylum claim.''
``Nobody explained why they were returning us to Mexico or
what would happen,'' our plaintiff Sofia Doe stated in her
declaration. ``I missed my third immigration hearing because I
was experiencing complications with a high-risk pregnancy and
had just been released from the hospital. As a result, my
family and I received in absentia removal orders. In addition,
my husband was assaulted while he was working in Mexico, and he
has now been missing since early December . . . I feel alone,
afraid, and trapped in Mexico.''
``I would never wish this experience on anyone,'' our
plaintiff Francisco Doe said in a recent statement. ``It has
been so difficult since the first day, when they just left us
here to survive by ourselves. People don't know about the
suffering we've experienced here. I just want to be safe and
reunited with my family in the U.S.''
``MPP was such a lie because I never had any opportunity to
present my case,'' our plaintiff Gabriela Doe said in a recent
statement. ``I am so frustrated and scared, and I am so afraid
that something will happen to me here in Mexico. This has been
so difficult for me, especially since I am just trying to
protect my young daughter and have nevertheless seen her suffer
because of MPP. This has been the terror of our lives, and I
just want our lives to continue and to free my daughter of this
agony. We are in agony every day, being in limbo and not
knowing what we can do.''
conclusion
Federal law, as well as our treaty commitments, require the United
States to ensure that noncitizens are not returned to countries where
they face persecution or torture. Congress must ensure through
oversight and appropriations that the inhumane and unlawful Remain in
Mexico policy is ended, once and for all. Congress should also ensure
that the Biden administration does everything in its power to mitigate
the harms of MPP 1.0 by providing redress to people subjected to the
original version of the policy and ensuring that they have a meaningful
opportunity to present their claims for protection.
Chairwoman Barragan. The Members of the subcommittee may
have additional questions for the witnesses and we ask that you
respond expeditiously in writing. The Chair reminds Members
that the committee record remains open for 10 days. Without
objection, the committee will stand adjourned. Thank you.
[Whereupon, at 3:42 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Questions From Chairwoman Nanette Diaz Barragan for the Department of
Homeland Security
Question 1. During my recent oversight trip, Border Patrol agents
stated that they only ask migrants about fear of returning to Mexico
and not whether they meet specific vulnerabilities that would exempt
them from MPP.
Why is this the case and will DHS consider changing this?
Answer. Determining whether an individual has a particular
vulnerability, such as a known physical or mental health issues,
advanced age, and at increased risk of harm in Mexico because of their
sexual orientation or gender identity, is separate from determining
whether an individual has a fear of returning to Mexico.
There are multiple points in the screening and enrollment process
during which U.S. officials may become aware that a potential enrollee
in MPP may have vulnerabilities that should except them from MPP,
including following the health screening or upon notification by a
representative or legal consultant assisting migrants placed in MPP.
When such vulnerabilities are identified, individuals are disenrolled
from MPP. Individuals who are enrolled in MPP but believe they should
not be due to a vulnerability or fear of potential persecution or
torture in Mexico may contact DHS at the following email inbox:
MPPRequest@hq.dhs.gov.
If at any point while enrolled in MPP, an individual in the United
States expresses to a U.S. Government official a fear of harm if
returned to Mexico, the individual will be referred to U.S. Citizenship
and Immigration Services (USCIS) for a non-refoulement interview.
Individuals who demonstrate a reasonable possibility of being
persecuted on account of a statutorily-protected ground or tortured
upon return to Mexico will not be subject or remain subject to MPP.
Question 2a. While in San Diego, CBP informed us that migrants had
to arrive at the port of entry with the International Organization for
Migration (IOM) for their court appearance. However, the IOM and State
Department were telling migrants that they could arrive at the port of
entry on their own or with advocates from other organizations.
What is the policy and how will this communication lapse be
addressed?
Question 2b. What actions will the administration take to help
migrants who arrived at the port of entry on their own at the
designated time but were not allowed in by CBP? Is the administration
even tracking this group?
Answer. Individuals enrolled in MPP are provided documents by the
U.S. Government that indicate the next time and date of their hearing,
and the location and time the individual needs to arrive at a specified
port of entry to access the court hearing. There are shelters run by
the government of Mexico and non-governmental organizations; however,
individuals may choose to reside in a location of their choice. While
transportation is provided from designated locations to and from the
port of entry (POE) to enter the United States for their court
hearings, it is not a requirement, and individuals may elect to arrive
to the port of entry on their own means. Some individuals choose to
arrive at the POEs of their own accord, and they are processed into the
United States to attend their court hearings. Individuals who do not
meet health requirements or who arrive late may be rescheduled for a
new hearing. We are unaware of any situation where an individual in MPP
who arrived on their own at the proper time and location and who met
all health requirements was not processed by the U.S. Customs and
Border Protection (CBP).
Question 3. What special accommodations does CBP provide illiterate
migrants, or migrants who speak indigenous languages native to certain
areas of Mexico and Central America, to ensure they understand the
process and the documents they are signing?
Answer. CBP officials provide migrants a legal resource packet and
verbally explain the MPP process in a language that is understood by
the migrant, using interpreters as needed. For migrants who cannot
understand and speak English, interpreters are provided by the U.S.
Government and at no cost to the migrant. Interpreters are available to
migrants during their initial encounter and processing, and non-
refoulement interview conducted by U.S. Citizenship and Immigration
Services, and court hearings. Individuals in MPP also view a video in
Spanish which explains basic information about MPP.
Question 4. Does DHS, the State Department, or the IOM track the
number of individuals who decide to disenroll from MPP and remain in
Mexico or return to their country of origin? If so, can you provide
information on when and where individuals who have decided to disenroll
from MPP have gone?
Answer. The U.S. Department of Homeland Security (DHS) has no way
to track how many individuals chose to abandon their immigration cases,
nor the reasons that might lead to that decision. DHS defers to the
U.S. Department of State any information that might be available about
migrant communication with the International Organization for Migration
and to the Department of Justice for statistics related to requests to
withdraw applications for admission during immigration proceedings.
Question 5. How is the reimplementation of MPP impacting the other
priority missions on the Southwest Border, such as processing legal
trade and travel at ports of entry?
Answer. Each time an MPP enrollee returns to the United States to
attend a court proceeding, which could happen multiple times over the
life of a case, DHS personnel are required to conduct additional rounds
of processing. None of this is required for those in removal
proceedings outside of MPP.
The labor-intensive process of bringing migrants back into the
United States for their court proceedings directly impacts staffing at
the 4 U.S. ports of entry where migrants reenter, taking front-line
personnel away from other key missions such as facilitating lawful
cross-border trade and travel. In addition, DHS has devoted significant
resources and personnel to building, managing, staffing, and securing
specialized immigration hearing facilities to support DOJ's Executive
Office for Immigration Review. As Secretary Mayorkas has stated, any
perceived benefits of the policy do not justify the costs, particularly
given the way in which MPP detracts from other regional and domestic
goals, foreign-policy objectives, and domestic policy initiatives that
better align with the administration's values.
Questions From Chairman Bennie G. Thompson for the Department of
Homeland Security
Question 1. Why are so few individuals being found to have a fear
of return to Mexico during their NRI despite reports of thousands of
kidnappings and attacks against migrants and asylum seekers returned to
Mexico this past year?
Answer. If, at any point in the removal process, an individual
enrolled in MPP and present in the United States expresses to a U.S.
Government official a fear of harm if returned to Mexico, the
individual is referred to USCIS for a non-refoulement interview.
Individuals who demonstrate a reasonable possibility of being
persecuted on account of a statutorily-protected ground (race,
religion, nationality, political opinion, or membership in a particular
social group) or tortured upon return to Mexico will not be subject or
remain subject to MPP. USCIS officers are provided trainings on the
appropriate standard to apply in these interviews. Fears of generalized
violence do not meet the ``reasonable possibility'' standard, which
requires the noncitizen to demonstrate that they will be individually
persecuted on account of a particular protected ground.
As detailed in the most recent report covering data through
February 2022, a total of 1,357 individuals claimed fear following
their initial enrollment in MPP, accounting for 86 percent of the 1,569
noncitizens enrolled. About 70 percent of those fear claims resulted in
a negative fear decision. DHS publishes monthly data about the
reimplementation of MPP on the DHS website.
Question 2. Why did DHS make the choice to expand the program to
non-Spanish speaking individuals, like Haitians? These individuals are
particularly vulnerable, and I find that choice very concerning.
Answer. The United States and Mexico remain concerned about the
change in migration patterns and the number of migrants irregularly
migrating to the United States. As such, both the U.S. and Mexican
governments agreed to include nationals of any Western Hemisphere
country other than Mexico in the court-ordered reimplementation of MPP
in order to not categorically exclude any nationality from the region,
lest that be exploited by human smugglers for recruitment purposes.
As of the date of this hearing, no Haitians have been enrolled in
the court-ordered re-implementation of MPP.
Question 3. While we appreciate DHS is taking steps to provide
migrants with counsel, we have heard concerns that access to counsel in
this program is not meaningful. There are very few lawyers available
and 24 hours to consult is too little time to prepare. How does DHS
intend to strengthen legal access?
Answer. The Biden-Harris administration is deeply committed to
ensuring individuals have meaningful opportunities to access counsel.
DHS and DOJ both work closely with legal service providers to
facilitate access at both the non-refoulement interview and hearing
stages.
All noncitizens enrolled in MPP are provided with 24 hours to
consult with a legal representative or consultant prior to their non-
refoulement interview while the noncitizen is in CBP custody. A
noncitizen may request to waive the 24-hour consultation period. If a
noncitizen requests to waive this consultation period, the asylum
officer confirms that the noncitizen knowingly and voluntarily waived
the 24-hour period. Extending the 24-hour consultation period would
further lengthen the noncitizen's time in custody, leading to
noncitizens spending extended periods of time in Border Patrol
facilities unsuitable for this purpose.
At the time of the non-refoulement interview, asylum officers ask
every noncitizen if they have a legal representative or consultant. If
a noncitizen has a legal representative or consultant, that person may
attend the interview telephonically. Interviews may be rescheduled to
allow for the presence of the legal representative or consultant as
long as it does not unreasonably delay processing. Asylum officers also
confirm that noncitizens who did not waive the consultation period were
provided with a legal services provider list and access to telephones
during the 24-hour period.
Question 4. How is DHS headquarters ensuring that CBP sector chiefs
are implementing the practices and protocols set by headquarters?
Answer. DHS and CBP work together on MPP reimplementation, to
include public and internal guidance provided to those implementing
this program. In any instance where DHS or CBP leadership identify
areas of MPP reimplementation that need correcting, those corrections
are made expeditiously.
Questions From Ranking Member Clay Higgins for Blas Nunez-Neto
Question 1a. In Mr. Nunez-Neto's written testimony he says, ``As of
February 28, a total of 1,602 individuals have been enrolled in MPP and
893 of them have been returned to Mexico, while 181 are still being
processed. Not all individuals who are enrolled in MPP are actually
returned to Mexico since some are disenrolled due to a particular
vulnerability or a positive determination in their non-refoulement
interview.''
Looking at these numbers, less than 60 percent of those originally
enrolled in MPP were returned to Mexico. Returns for December, January,
and February together totaled less than 900. Given that less than 60
percent of those enrolled in MPP were returned to Mexico, should there
be an examination of how migrants are chosen to be initially enrolled
in MPP?
Answer. In order to ensure MPP reimplementation is humane, migrants
who have a particular vulnerability or establish a fear of being
returned to Mexico are disenrolled from MPP. It is not always evident
who has vulnerability or fear when the enrollment process is initiated.
However, DHS continues to refine and improve MPP reimplementation
including examining how to better identify those who are likely to be
good candidates for MPP enrollment, while also ensuring that MPP is
applied humanely and consistently.
Question 1b. How long does DHS believe it will take for MPP to be
fully reimplemented across all Sectors?
Question 1c. For DHS to consider MPP fully reimplemented, how many
individuals will be being enrolled per day?
Answer. Even in the last administration, MPP returns have never
occurred in all sectors along the Southwest Border (SWB). Currently,
MPP returns are occurring in strategic locations along the SWB agreed
to by both the U.S. and Mexican governments. DHS maintains the ability
to enroll anyone encountered by USBP along the entire SWB into MPP for
return to Mexico at any designated locations. DHS is closely
coordinating the court-mandated reimplementation of MPP with the
government of Mexico to address security concerns and operational
constraints. The number of enrollees continues to increase consistent
with the DOJ's court capacity and the capacity of our partners in
Mexico to safely receive individuals returned to Mexico. Whether, when,
and how to continue expand MPP enrollments or whether, when, and how to
begin returns at new locations, are issues that are under constant
consideration in coordination with all the MPP reimplementation
partners.
Question 1d. Under MPP 2.0, please explain what happens to
migrants, who are specifically disenrolled in MPP, when they do not
appear in front of an Immigration Court as specified on their custody
paperwork?
Answer. Individuals who are disenrolled from the Migrant Protection
Protocols remain in removal proceedings under Section 240 of the
Immigration and Nationality Act and are required to attend future court
hearings. Given the unique nature of each case, it is impossible to
provide an answer for what happens in every instance when an individual
fails to appear in court. However, generally, if documentary evidence
supports it, U.S. Immigration and Customs Enforcement (ICE) attorneys
will seek an in absentia removal order if an individual fails to appear
in court.
Question 1e. When considering enrolling an individual into MPP,
what guidance does Border Patrol use to determine whether or not an
individual is eligible for the 24-hour consultation hold?
Answer. If an individual enrolled in MPP and present in the United
States expresses to a U.S. Government official a fear of harm if
returned to Mexico, the individual is referred to USCIS for a non-
refoulement interview. Individuals who demonstrate a reasonable
possibility of being persecuted on account of a statutorily-protected
ground (race, religion, nationality, political opinion, or membership
in a particular social group) or tortured upon return to Mexico will
not be subject or remain subject to MPP. In such a situation,
individuals are processed into the United States for the remainder of
their removal proceedings.
All noncitizens enrolled in MPP are provided with 24 hours to
consult with a legal representative or consultant prior to their non-
refoulement interview. A noncitizen may request to waive the 24-hour
consultation period. If a noncitizen requests to waive this
consultation period, the asylum officer confirms that the noncitizen
knowingly and voluntarily waived the 24-hour period.
Question 2. In Mr. Nunez's testimony, he states that there has only
been one family unit individual (who was later disenrolled). Is there a
plan to enroll family units?
Answer. DHS makes every effort, as permitted under the law, to
preserve family unity. There is nothing in the public guidance that
precludes enrollment of family units.
Question 3a. In Mr. Nunez's testimony, he mentions a list of
vulnerabilities that include those with known physical and mental
health issues, disabilities, and advanced age are not eligible for MPP.
When CBP officials observe or learn of a particular vulnerability, they
make case-by-case decisions about whether the vulnerability falls
within an exception to enrollment.
Is DHS keeping records of what the vulnerabilities are that are
being claimed?
Question 3b. How is DHS ensuring that individuals do not claim fake
vulnerabilities?
Question 5a. On the vulnerable exemptions for individuals who are
being enrolled in MPP: Please provide to the committee the complete
list of all vulnerabilities that are considered under MPP.
Question 5b. What standard does DHS use for the individual's
claimed vulnerability? Is it a reasonable fear? A creditable fear?
Please explain.
Question 5c. Could you walk through the distinct steps DHS uses to
screen a migrant for a vulnerability that would result in the
individual's disqualification from MPP?
Question 5d. Can a migrant claim one vulnerability initially--that
is denied, be enrolled in MPP, and subsequently claim a different
vulnerability after enrollment? If so, how are those claims treated and
is there of record of vulnerabilities claimed?
Answer. Particularly vulnerable individuals, to include those with
known physical or mental health issues, advanced age, and at increased
risk of harm in Mexico because of their sexual orientation or gender
identity, are exempted from MPP on a case-by-case basis. While DHS
tracks the number of individuals disenrolled from MPP, the collected
data is not broken down by vulnerability type.
However, vulnerability is different from fear. Individuals are
proactively asked questions about fear of return to Mexico and provided
time to consult with legal representatives if they raise a fear. The
standard for non-refoulement interviews is the ``reasonable
possibility,'' in line with certain other USCIS screening processes.
If an individual enrolled in MPP and present in the United States
expresses to a U.S. Government official a fear of harm if returned to
Mexico, the individual is referred to USCIS for a non-refoulement
interview with an asylum officer. Individuals who demonstrate a
reasonable possibility of being persecuted on account of a statutorily-
protected ground or tortured upon return to Mexico will not be subject
or remain subject to MPP. All asylum officers who conduct MPP non-
refoulement interviews (NRIs) have completed extensive training and
have experience interviewing asylum seekers. Prior to conducting MPP
NRIs, all asylum officers and supervisory asylum officers received MPP-
specific training.
If an individual believes their circumstances changed significantly
since they were first placed in MPP such that they should be removed
from MPP, or that they clearly should not have been enrolled in MPP due
to a particular vulnerability, they may submit a request to DHS for
consideration on a case-by-case basis.
Question 4a. DHS demobilized several MPP facilities in January
2021--immediately after President Biden took office.
Why did this occur and what costs has DHS incurred as the
Department has stood these facilities back up?
Answer. DHS spent a one-time cost of roughly $7.9 million to fully
re-establish the Immigration Hearing Facilities (IHFs) used for MPP,
with an additional $6.4 million a month for IHF operational costs. The
IHFs were never completely demobilized and have existed since their
initial procurement in the summer of 2019.
The IHFs in Brownsville and Laredo, TX began operations around mid-
September 2019. These facilities continued operating as IHFs through
April 17, 2021. At that time, CBP assumed the original IHF contract
from ICE and converted the facilities into Centralized Processing
Centers. The modification resulted in a reduced facility footprint to
approximately 30% of the original IHF size at a cost of $2 million per
month. The Brownsville and Laredo facilities were re-converted to IHFs
effective November 4, 2022.
Question 4b. Where did the money from standing these facilities
back up come from?
Answer. ICE is funding this effort from its fiscal year 2022 base
resources to CBP via Interagency Agreement.
Question 6. Please explain how the Department of Homeland Security
intends to, ``to reimplement MPP in good faith'' as required by Federal
court order.
Answer. The administration continues to vigorously challenge the
court injunction that requires reimplementation of MPP, and the
termination will be effective as soon as practicable once the
injunction is lifted.
To comply with the court order, DHS is closely coordinating the
court-mandated reimplementation of MPP with the government of Mexico to
address security concerns and operational constraints. We continue to
increase the number of individuals returned to Mexico at each
designated port of entry as is operationally feasible and continue to
closely coordinate the court-mandated reimplementation of MPP with the
government of Mexico to address security concerns and operational
constraints.
Questions From Ranking Member Clay Higgins for Benjamine ``Carry''
Huffman
Question 1. We heard from Border Patrol agents on the ground along
the Southwest Border that DHS had instructed that certain individuals
with existing family ties in the United States is not allowed to be
enrolled or disenrolled in MPP.
Please explain why these individuals are not eligible for MPP,
despite not expressing a credible or reasonable fear, or having a
vulnerability. Moving forward under MPP 2.0, will individuals with
family ties in the United States be exempt from MPP?
Answer. This is incorrect. An individual's family ties in the
United States have no bearing on whether they are enrolled in Migrant
Protection Protocols (MPP) where they are otherwise suitable for
enrollment in the program. Rather, the Guidance Regarding the Court-
Ordered Reimplementation of the Migrant Protection Protocols states
that: ``Family units will not be separated for the purposes of MPP
enrollment'' (emphasis added). Simply put, members of family units
arriving at the Southwest Border will either all be enrolled together
in MPP or will all be placed together into a different processing
pathway.
Noncitizens who are excepted from MPP are:
Unaccompanied children (UC), as defined in 6 U.S.C.
279(g)(2);
U.S. lawful permanent residents;
Noncitizens with an advance parole document or in parole
status;
Noncitizens with criminal history;
Noncitizens of law enforcement interest to the U.S. or
Mexican Governments, and
Noncitizens with particular vulnerabilities.
The following individuals will be presumed to be excepted from
processing under MPP due to their particular vulnerabilities:
Those with a known mental or physical health issue,
including a disability or a medical condition related to
pregnancy;
Those with particular vulnerabilities given their advanced
age; and
Those at increased risk of harm in Mexico due their sexual
orientation or gender identity.
Question 2a. According to U.S. Customs and Border Protection's
(CBP's) Southwest Border encounter numbers, in January 2022, there were
almost 5,000 encounters per day. And the January 2022 MPP enrollee
numbers were less than 13 per day.
How does CBP make the decision to enroll a migrant in MPP versus a
different Title 8 processing pathway (like expedited removal or issuing
a notice to appear for immigration proceedings)?
Answer. CBP agents and officers make a case processing disposition
determination, to include enrollment in a specific processing pathway,
at the time of apprehension or encounter taking into account the
totality of the circumstances, to include available downstream
processing resources such as U.S. Immigration and Customs Enforcement
(ICE) detention capacity and criteria. Inadmissible noncitizens
encountered within 96 hours of crossing between the ports of entry may
be subject to placement in MPP if they are nationals of any country in
the Western Hemisphere other than Mexico and are otherwise suitable for
enrollment in the program pursuant to the DHS Guidance Regarding the
Court-Ordered Reimplementation of the Migrant Protection protocols. The
U.S. Government is currently enrolling individuals into MPP in good
faith to comply with the court order. Enrollments are based on the DHS
guiding principles.
Question 2b. One of CBP's roles in the implementation of MPP is
determining whether an individual is subject to MPP. How does CBP
determine of those almost 5,000 individuals who will be enrolled in
MPP?
Answer. As of March 17, the U.S. Border Patrol (USBP) is expelling
approximately 50 percent of daily apprehensions pursuant to the Centers
for Disease Control and Prevention (CDC) Title 42 public health order
(CDC Order). Individuals not subject to the CDC Order, including those
not eligible for either expulsion under Title 42 such as unaccompanied
children (UC) may be processed under any available Title 8 processing
disposition and enrolled in any applicable processing pathway.
Available dispositions and pathways include but are not limited to
Expedited Removal, Reinstatement of Prior Order of Removal, and Warrant
of Arrest/Notice to Appear. CBP agents and officers make a case
processing disposition determination, to include enrollment in MPP, at
the time of apprehension or encounter considering the totality of the
circumstances, to include available downstream processing resources
such as U.S. Immigration and Customs Enforcement (ICE) detention
capacity and criteria. Inadmissible noncitizens encountered within 96
hours of crossing between the ports of entry may be subject to
placement in MPP if they are nationals of any country in the Western
Hemisphere other than Mexico and are otherwise suitable for enrollment
in the program pursuant to the DHS Guidance Regarding the Court-Ordered
Reimplementation of the Migrant Protection protocols.
Question From Chairwoman Nanette Diaz Barragan for Emily Mendrala
Question. Does DHS, the State Department, or the IOM track the
number of individuals who decide to disenroll from MPP and remain in
Mexico or return to their country of origin? If so, can you provide
information on when and where individuals who have decided to disenroll
from MPP have gone?
Answer. Response was not received at the time of publication.
Questions From Ranking Member Clay Higgins for Emily Mendrala
Question 1a. In Mr. Nunez-Neto's written testimony he says,
``Additionally, the Department of State is working with international
organizations to increase access to legal and other informational
resources via shelters in Mexico, including through provision of WiFi
and outfitting of private spaces that can be used to consult remotely
with legal representatives or others.''
What are the organizations involved and how much has each received
to take part in this effort?
Question 1b. Could you go into more detail on what services are
being funded, and at what levels?
Question 1c. How does this funding level compare to State
Department funding of the original MPP program?
Question 1d. What is the State Department's overarching strategy
and spending plan for MPP-related projects?
Question 1e. How much funding has the State Department provided to
international organizations and non-profits for the reimplementation of
MPP?
Answer. Response was not received at the time of publication.
Question 2. Please explain how the Department of State intends to,
``to reimplement MPP in good faith'' as required by Federal court
order.
Answer. Response was not received at the time of publication.
Questions From Chairwoman Nanette Diaz Barragan for Timothy Roemer
Question 1. During my recent oversight trip, Border Patrol agents
stated that they only ask migrants about fear of returning to Mexico
and not whether they meet specific vulnerabilities that would exempt
them from MPP.
Why is this the case and will DHS consider changing this?
Answer. Response was not received at the time of publication.
Question 2a. While in San Diego, CBP informed us that migrants had
to arrive at the port of entry with the International Organization for
Migration (IOM) for their court appearance. However, the IOM and State
Department were telling migrants that they could arrive at the port of
entry on their own or with advocates from other organizations.
What is the policy and how will this communication lapse be
addressed?
Answer. Response was not received at the time of publication.
Question 2b. What actions will the administration take to help
migrants who arrived at the port of entry on their own at the
designated time but were not allowed in by CBP? Is the administration
even tracking this group?
Answer. Response was not received at the time of publication.
Question 3. What special accommodations does CBP provide illiterate
migrants, or migrants who speak indigenous languages native to certain
areas of Mexico and Central America, to ensure they understand the
process and the documents they are signing?
Answer. Response was not received at the time of publication.
Question 4. Does DHS, the State Department, or the IOM track the
number of individuals who decide to disenroll from MPP and remain in
Mexico or return to their country of origin? If so, can you provide
information on when and where individuals who have decided to disenroll
from MPP have gone?
Answer. Response was not received at the time of publication.
Question 5. How is the reimplementation of MPP impacting the other
priority missions on the Southwest Border, such as processing legal
trade and travel at ports of entry?
Answer. Response was not received at the time of publication.
Questions From Chairman Bennie G. Thompson for Timothy Roemer
Question 1. Why are so few individuals being found to have a fear
of return to Mexico during their NRI despite reports of thousands of
kidnappings and attacks against migrants and asylum seekers returned to
Mexico this past year?
Answer. Response was not received at the time of publication.
Question 2. Why did DHS make the choice to expand the program to
non-Spanish speaking individuals, like Haitians? These individuals are
particularly vulnerable, and I find that choice very concerning.
Answer. Response was not received at the time of publication.
Question 3. While we appreciate DHS is taking steps to provide
migrants with counsel, we have heard concerns that access to counsel in
this program is not meaningful. There are very few lawyers available
and 24 hours to consult is too little time to prepare. How does DHS
intend to strengthen legal access?
Answer. Response was not received at the time of publication.
Question 4. How is DHS headquarters ensuring that CBP sector chiefs
are implementing the practices and protocols set by headquarters?
Answer. Response was not received at the time of publication.
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