US expels migrant children from South America to Mexico

An internal email obtained by The New York Times on Oct. 30 says migrant children from South America are being transferred to Mexico, where they may have no family to retrieve them. This violates American Public Health Service (PHS) policies.

On March 20, the Trump administration announced that it will no longer detain most undocumented immigrants at the border in efforts to combat the threat of COVID-19 in detention facilities and to personnel. The objective was to begin rapidly sending people who illegally cross the United States borders back to their home countries and would halt the processing of undocumented migrants at ports of entry. U.S. border authorities have been expelling migrant children from other countries into Mexico, violating a diplomatic agreement with Mexico, and testing the limits of immigration and child welfare laws. The details of the expulsions were laid out in a sharply critical internal email transmitted between senior border patrol officials, stating that the actions have been taking place under an aggressive border closure directive set forth by the Trump administration. According to the New York Times, the email stated that the spread of COVID-19 is the motivating factor.

Chad Wolf, the acting secretary of the Department of Homeland Security (DHS), said the United States would also close the legal entry points along the border with Mexico and Canada to tourism. American citizens, lawful permanent residents, and those crossing a border seeking medical treatment or attend educational institutions would not be affected. Commercial traffic would remain open and port officers would stop processing those without legal authority to be in the United States, including asylum seekers, The New York Times reports.

Wolf said the Centers for Disease Control and Prevention (CDC) had issued the order to turn away any people who crossed the Southwestern border illegally, instead of taking them to a detention center where they could ask for asylum in the United States.

On May 27, Refugees International issued a statement detailing the indefinite suspension of protection for asylum seekers, stating they “strenuously object to the administration’s exploitation of the COVID-19 pandemic as a pretext to implement indefinite, illegal and life-threatening restrictions on humanitarian protections at the southern U.S. border.”

The order was issued by the CDC and the Department of Health and Human Services (HHS) as an action notice. It states:

“The Centers for Disease Control and Prevention (CDC), a component of the Department of Health and Human Services (HHS), announces the issuance of an Order under Section 362 and 365 of the Public Health Service Act that suspends the introduction of certain persons from countries where an outbreak of a communicable disease exists. The Order was issued on March 20, 2020.”

According to Sections 362 and 365 of the Public Health Service (PHS) Act and their implementing regulations,  the CDC director is authorized to suspend the introduction of “persons into the United States when the Director determines that the existence of a communicable disease in a foreign country or place creates a serious danger of the introduction of such disease into the United States” and the danger is increased by the introduction of persons from the foreign country or place. 

The suspension of such persons’ introductions was deemed “necessary to protect the public health” and was applied to persons traveling from Canada or Mexico who would otherwise be introduced into a congregate setting in a land Port of Entry (POE) or a Border Patrol station at or near the United States borders. The order refers to “those persons” who are subject to immigration processing in the land POEs and Border Patrol stations and who are typically classified as “aliens who lack valid travel documents and are therefore inadmissible.” They are held in the common areas of the facilities, kept in close proximity to one another for days as they undergo immigration processing. The expressed concern was that the common areas of the detention facilities were not designed for or equipped to quarantine, isolate or enable social distancing by persons who have been diagnosed or may possibly be infected with COVID-19.

According to the DHS newsroom, within six weeks, DHS used the CDC order to block and remove at least 21,000 people in detainment centers. The Human Rights First non-profit organization states that it’s highly likely that thousands of asylum-seekers have been included in this estimate.

Over 1,000 unaccompanied children and minors are being expelled to places where they face the risk of kidnapping, rape and murder, without the legally required opportunity to seek protection in the United States, according to the New York Times.

Under the CDC order, border officers are expelling some Central American children and asylum seekers to Mexico, as well as refusing to accept protection requests from Cameroonians, Cubans, Eritreans, Venezuelans and other asylum seekers. Human Rights First reports that they have been blocking screenings for asylum seekers returned to Mexico under the so-called Migrant Protection Protocols, including those kidnapped and tortured there.

The Kids in Need of Defense (KIND) organization visited both formal and informal refugee camps and shelters in Tijuana, Mexico in Dec. 2018 to examine the conditions that the unaccompanied children are facing in U.S. custody. They found children living in squalid conditions, in grave danger, in fear and suffering greatly while waiting to be allowed to present at the port of entry. Not only are the children facing food insecurity and are left without running water, but they are also living outside in cold and wet conditions for weeks. As a result, many of the children needed medical care. Some unaccompanied children were (and still are) systematically prevented from applying for protection in the U.S., a significant violation of U.S. and international law.

According to the Texas Tribune, some children have tested positive for COVID-19 since arriving at the facilities and are facing deportation. Administration officials have said that they can’t risk infected children spreading COVID-19 through the system. Yet even after children test negative for the virus, they aren’t being allowed to access the usual protections.

Just Security reports that these expulsions blatantly violate U.S. law and treaty obligations to protect those seeking humanitarian protection. House members of the Foreign Affairs Committee have written that the administration’s legal justification is “deeply flawed” and “raises serious questions about the Administration’s respect for the rule of law.”

The United Nations addressed the issue of asylum-seeking at the beginning of the COVID-19 global pandemic on March 16, 2020, when posting the UN High Commissioner for Refugees (UNHCR) guidelines for international COVID-19 response to refworld.org. These guidelines state:

“This paper sets out key legal considerations, based on international refugee and human rights law, on access to territory for persons seeking international protection in the context of measures taken by States to restrict the entry of non-nationals for the protection of public health in response to the COVID-19 pandemic. It reconfirms that while States may put in place measures which may include a health screening or testing of persons seeking international protection upon entry and/or putting them in quarantine, such measures may not result in denying them an effective opportunity to seek asylum or result in refoulment.”

This means that the right to seek asylum is based on the principle of non-refoulment or the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution. This guideline was set forth by the UN to prohibit, without discrimination, any state conduct leading to the “return in any manner whatsoever” of refugees to an unsafe foreign territory, including rejection at the frontier or non-admission to the territory.