United States: Covid-19 and Detention

C. Shoichet and C. Hickey, "A 'Radical Shift' at the Border is Making Things Tougher for Biden," CNN, 30 August 2022, https://edition.cnn.com/2022/08/29/us/mexico-border-encounter-data-analysis-cec/index.html

On 30 August, the Committee on the Elimination of Racial Discrimination (CERD) released Concluding observations concerning its periodic review of US implementation of the UN Convention on the Elimination of Racial Discrimination. The Committee highlighted the discriminatory application of immigration enforcement measures, stating that mandatory detention measures have a “disparate impact on asylum seekers of African and Caribbean descent” and reported the use of excessive force by immigration officials, including killings of undocumented migrants, impacting “non-citizens of African and Caribbean descent, such as nationals from Cameroon and Haiti.”

Among the CERD’s recommendations for the United States:
> End the controversial policy of mandatory immigration detention;
> Take steps to end the use of excessive force by immigration and border officers;
> End criminal prosecution of non-citizens for irregular entry and provide procedural guarantees for detainees;
> “Set up a comprehensive data-collection system on immigration, disaggregated by ethnicity, nationality, gender and other relevant indicators, including information on, inter alia, detained non-citizens, asylum procedures and their outcomes and incidents of excessive use of force.”

CERD’s review of the US comes as the country faces growing pressures on its southern border, including from large numbers of irregular border crossers from countries other than Mexico and Central America’s Northern Triangle. This presents an important challenge as detained migrants and asylum seekers coming from elsewhere may be harder to deport rapidly, which “makes border enforcement all the more complicated,” as former US immigration chief Doris Meissner told CNN (30 August).

On 9 August 2022, the Department of Homeland Security (DHS) said that it had ended the “Remain in Mexico” policy (officially known as Migrant Protection Protocols or MPP) requiring asylum seekers to wait in Mexico for hearings on their immigration status in the US, after a judge lifted an order that the policy be reinstated. The DHS stated that the programme would be unwound in a “quick and orderly manner.” People are no longer being enrolled into the programme and those who now appear in court will not be sent to Mexico. The DHS said the policy “had endemic flaws, imposes unjustifiable human costs and pulls resources and personnel away from other priority efforts to secure our borders.” The move to scrap the policy came after a US Supreme Court ruling in favour of Joe Biden’s bid to terminate it.

In total, from January 2019 until its suspension by Joe Biden in January 2021, around 70,000 migrants were subject to the policy (see 16 February 2021 United States update on this platform). It was then reinstated in August 2021 by the US District Court for the Northern District of Texas in Texas v Biden ordering the DHS to “enforce and implement MPP in good faith.” Between December 2021 and June 2022, 9,563 people were registered under the MPP, most being from Nicaragua, with others from Cuba, Colombia, and Venezuela.

According to the American Immigration Council, there were 1,544 cases of murder, rape, torture, kidnap, and other crimes against people sent to Mexico under the MPP. Several people, including one child, died.

Despite ending the policy, several questions remain over its ongoing effects, including whether those whose claims have been denied or dismissed will get a second chance or if those whose court dates are months away will be allowed to return to the US any earlier. The DHS said it would provide information in the “coming days.” Marisol Castro from the Diocesan Migrant and Refugee Service said that “there’s a lot of unanswered questions and no clear direction on how many of these cases should be handled.” The DHS has not provided guidance as to what happens to asylum seekers that are in the middle of the hearing process, such as one of Castro’s clients who is seeking an appeal after his case was dismissed by a judge in El Paso. Castro’s client was placed on the MPP programme some eight months ago and has been staying at a migrant shelter in Juarez. However, as his case was denied, he was disenrolled from the MPP and “for now he has to continue waiting in Mexico although there’s a pending court date for his appeal”, Castro said.

Fernando Garcia, Executive Director of the Border Network for Human Rights, said that while the DHS announcement was a move in the right direction, they are “concerned that there’s no infrastructure in place to process people. We need clean, clear protocols but also funding to manage the movement of people and provide them representation in Court.”

Nonetheless, as highlighted by Marisol Castro, the policy has gone through numerous legal battles, and anything can change from one day to the next. Soon after the district court’s ruling, the states of Texas and Missouri filed a motion and argued that the Biden administration’s termination of MPP be deemed unlawful and be set aside.

In a separate though relevant development, in July 2022, news agencies reported that a privately run detention centre in Adelanto in California had an average daily population of around 49 detainees for 2,000 places. The government pays for at least 1,455 beds a day at the facility. In another facility in Tacoma, Washington, the guaranteed minimum is 1,181 beds but the average daily population is 369. A similar situation has been reported at a detention centre in Jena, Louisiana where there is a minimum of 1,170 beds, with an average daily population of 452.

According to data published by the Immigration and Customs Enforcement data, the US government pays to guarantee 30,000 immigration detention beds in four dozen facilities across the country, but so far this fiscal year, only around half have been occupied. From the 2017 fiscal year to May 2020, the minimum number of beds the government paid to guarantee rose 45 percent. The average daily cost of a detention bed was 144 USD during the last fiscal year.

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