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In early 2017, apprehensions along the U.S.-Mexico border hit their lowest point in decades. President Trump was thrilled, quickly claiming credit for the deterrent “Trump Effect” on would-be migrants. But it already appears that this lull was short-lived. Border apprehensions are returning to their normal high levels, as refugees from Central America continue to flee their countries’ unabating violence. Those who are not immediately removed from the U.S. are detained. The New York Times reports that, with family detention centers filling up again, asylum seekers are being released to live in the community with ankle monitors.
For the Trump administration, this alternative to detention is a last resort. Yet it is also a small step closer to an international goal to which the U.S. has committed itself: ending immigrant detention.
In July 2014, the U.S. joined a new UNHCR initiative called “Global Strategy – Beyond Detention 2014-2019” (“Global Strategy”). The Global Strategy launched in 12 target countries, with the following goals: provide alternatives to detention for asylum seekers, improve detention conditions where detention is necessary, and end child detention.
For the U.S. and its fellow signatory Mexico, the Global Strategy began at the peak of a humanitarian crisis. This note compares and contrasts the progress that Mexico the U.S. have made towards their Global Strategy goals in the tumultuous years since they were announced, particularly with regard to providing alternatives to detention.
An Apt Year for Goal-Setting
Any mainstream press the Global Strategy may have received at its inception in Summer 2014 was swallowed by national and international headlines of record numbers of Central American refugees, particularly unaccompanied children, arriving at the U.S.-Mexico border, overwhelming authorities. This humanitarian crisis was long in the making, and its concurrence with the Global Strategy launch was either a stroke of good luck or an unfortunate irony, depending on one’s perspective.
Over the previous decade, the outpour of people from the Northern Triangle of Central America (NTCA), comprised of Honduras, El Salvador, and Guatemala, had become the largest refugee crisis in the Americas. Hundreds of thousands of families and unaccompanied minors fled the NTCA due to brutal gang violence, recruitment, and extortion, from which their countries’ governments have been unable to provide lasting protection.
As the violence worsened throughout the 2000s and early 2010s, many sought refuge in the United States, taking dangerous routes through Mexico—including thousands of individuals who travelled atop the notoriously perilous train called La Bestia—to either request asylum at the U.S.-Mexico border or cross the border clandestinely.
The summer of 2014 marked the beginning of a significant shift in international approach to the crisis: following a “surge” of 68,000+ unaccompanied NTCA minors at the U.S.-Mexico border, the Obama Administration announced international strategies to address the underlying issues at their source. This included humanitarian aid for NTCA countries, media campaigns in those countries to deter migrants, the establishment of the Central American Minors program allowing in-country applications for resettlement in the U.S., and a boost in financial support for Mexican immigration enforcement and its Southern Border Program, launched in July 2014.
But this international response does not tell the full story of the U.S. and Mexico’s reactions to the NTCA migration. Each country’s treatment of migrants, including by detaining them, is primarily a question of domestic policy, allowing the U.S. and Mexico to take divergent paths.
Mexico Breaks Ground on ATDs, Takes Modest Steps in the Right Direction
This section will track Mexico’s progress toward its Global Strategy goals. It cites heavily from two sources: the Global Strategy National Action Plan for Mexico (“National Action Plan”), updated August 2017, and the Global Strategy Progress Report for Mexico (“Progress Report”) from Mid-2016.
Between 2012 and 2016, NTCA migration to Mexico increased by 286 percent, with more than 400,000 people crossing the southern Mexican border each year. Over the same period, applications for asylum in Mexico increased by 1,000 percent, largely due to a six-fold increase in worldwide asylum applications by NTCA individuals. In 2016, Mexico received over 5,000 asylum applications.
In response, Mexico has predominantly—though not entirely—imported many of the heavy-handed detention and deportation practices of its northern neighbor, in order to satisfy U.S. pressure to keep refugees away from the border. The number of NTCA refugees deported from Mexico increased by almost 180 percent from 2010 to 2015, many without an asylum interview.
Under Mexican immigration law, detention remains the default measure for all individuals found in irregular migratory situations, including for asylum seekers. Those who declare asylum upon apprehension by immigration authorities are to be detained through the entire duration of their asylum procedure. Only those who manage to file an asylum claim at an office of one of the Mexican immigration agencies are not detained.
But since 2014, Mexican lawmakers and courts have made a number of exceptions to these rules. In 2011, Mexico adopted its first comprehensive immigration legislation, which was viewed as an important step forward to protect the rights of immigrants in Mexico. It also signaled the Mexican legislature’s political will to pass immigration law, in contrast to the U.S., where the last major immigration reform was passed in 1986.
The Regulations for the Law on the Rights of Children came into effect in December 2015, prohibiting the immigration detention of children, and a new protocol was launched in June 2016 to identify unaccompanied minors in need of protection and divert them from detention. In 2016, Mexican President Enrique Peña-Nieto made commitments regarding alternatives to detention, highlighting several actions the government is taking to avoid administrative detention for asylum seekers, particularly for NTCA refugees and for children. And in April 2017, a Mexican Federal Court ruled that indiscriminate detention of asylum seekers while they await adjudication qualifies as “arbitrary detention” as defined by the Inter American Court of Human Rights and is therefore impermissible. The United Nations hailed this as a “landmark legal decision.”
Of course, these laws and policies are only worth the weight of their words until they are implemented. The Mexican government’s primary method of establishing ATDs has been through partnering with and providing technical assistance to a variety of civil society actors. The government funds nonprofit legal aid organizations providing direct services to detained asylum seekers, in particular the Comisión Mexicana para la Defensa y Protección de los Derechos Humanos; it partners with UNHCR and civil society groups such as Asylum Access Mexico to educate government agencies about asylum rights and procedures; and it supports the growth of migrant shelters, many of which are run by faith organizations.
ATDs in practice
Mexico can boast at least one major success: since July 2016, more than 1,000 people who have applied for asylum have been allowed to continue their procedures outside of detention centers, mostly in “alternative reception spaces” run by faith-based organizations.
This is the result of a number of ATD programs that have started since 2015 and have been greatly expanded since 2016. The Progress Report identified a few nascent ATD programs. One program is designed to release asylum-seeking families to “community-based shelters”; as of 2015, it had released approximately 80 people. Another program, a partnership between international and community-based organizations, releases asylum-seeking children into specialized community-based care arrangements. Another program is an open-door shelter for asylum-seeking teenagers in Tabasco state, run by Mexican immigration authorities.
Still, thousands of asylum seekers remain in prison-like detention centers throughout their determination process, which is typically at least three months and can be up to six or seven months. As such, the need to establish and expand programmatic ATDs continues.
U.S. ATDs Face Obstacles as Penal Model for Migrants Expands
This section will track U.S. progress toward its Global Strategy goals. It cites heavily from two sources: the Global Strategy National Action Plan for the U.S. (“National Action Plan”), updated October 2015, and the Global Strategy Progress Report for the U.S. (“Progress Report”) from Mid-2016.
In response to the 2014 spike in crossings of the U.S.-Mexico border, the U.S. government’s domestic response, by and large, was increased detention. Pre-hearing detention of asylum seekers in prison-like centers, often lasting five to ten months or longer, became the norm. Detention center conditions are horrendous: an ongoing class action, Menocal et al v. The GEO Group, Inc., alleges forced labor of more than 60,000 immigrant detainees in a single detention center, and similar allegations have been made at other centers.
While the U.S. grants asylum to thousands of NTCA migrants every year, it denies asylum to thousands more, often resulting in deportation. Even more alarming is the well-documented practice by U.S. Customs and Border Protection (CBP) of turning away asylum seekers upon arrival at the border. Another ongoing class action, Al Otro Lado, Inc. v. Kelly, challenges this unlawful practice.
The systematic denial of rights to NTCA refugees in the U.S.—namely, detention and deportation without due process—is not some unfortunate consequence of a lack of resources, as it might be in Mexico. It is the product of an “immigration industrial complex,” a vicious cycle fueled by corporate stakeholders: private prisons, security companies, and the countless U.S. industries that rely on low-wage undocumented immigrant workers. As of 2014, 62% of immigrant detention centers were privately run, and since then they have lobbied, donated, and made deals in Washington to support their lucrative “crimmigration” agenda. This poses a major obstacle to reform in the U.S.
How U.S. law accounts for asylum seekers on paper is not so different from how Mexico does: anyone caught arriving in the U.S. without authorization, including asylum seekers, faces mandatory detention. And, like in Mexico, exceptions to this rule have been made by protocol, legal precedent, and pilot initiatives, giving immigration officials discretion to release certain qualified asylum-seekers.
U.S. immigration officials began implementing reforms to the immigrant detention system as early as 2011, mostly to improve conditions in detention centers, but also to allow some discretion in detention and release decisions based on level of risk.
But these reforms appear to be much stronger on paper than in practice; as of 2015, UNHCR concluded that “the U.S. detention system is . . . [still] affected by a lack of codified, enforceable standards, and conditions in detention facilities are governed by standards derived from a correctional model,” subjecting special populations to heightened risk.
The divisive politics of immigration and the resulting Congressional deadlock make the possibility of curbing detention through legislation extremely remote. As such, any change would have to come via executive policy, intra-agency reform, civil society, or judicial decision.
ATDs in practice
At the start of the Global Strategy period, the U.S. had access to and experience with a wide variety of ATDs, many more than Mexico had. These ranged from release to community support programs, to bond and periodic check-ins, to electronic reporting and ankle monitors. Before 2014, U.S. Immigration and Customs Enforcement (ICE) had already partnered with two faith-based NGOs to pilot community-based ATDs in four sites across the country.
These preexisting community-based ATDs were reviewed by UNHCR and informed the creation of one of the first pilot ATD programs under the Global Strategy goals, the Family Case Management Program, with the goal of releasing 800 vulnerable asylum-seeking families. The first 180 participants began the program in January 2016; released from immigrant detention to one of five U.S. cities, they received case management for assistance with attending immigration hearings and accessing social and legal services. Though inspired by a partnership with faith-based organizations, ICE controversially awarded the contract to GEO Care, a division of the GEO Group, a private prison and detention company with a record of abuses and mismanagement.
Despite its private prison affiliation, the Family Case Management Program was a promising start. However, in Summer 2017, it was shut down without explanation. At the time of its termination, the program was serving 630 families, 99% of whom successfully attended their court appearances and ICE check-ins.
With the Family Case Management Program gone, the only surviving ATDs in the U.S. are those that predated the Global Strategy goals and are adapted from the criminal justice system. Most notable is the Intensive Supervision Appearance Program, which consists of ankle monitors , electronic reporting, nighttime curfews, and periodic check-ins. Immigrant detention remains a massive industry, promoted in practice and required by law: the notorious “bed quota” requires the U.S. to have 34,000 immigrants in detention at any given time. The centers themselves, apart from remaining in bad condition, are located in rural areas that limit asylum seekers’ access to counsel. And as detentions have increased under the Trump administration, so too have ICE contracts with local jails and private prison companies to house immigrants.
Progress has been slow particularly due to the increase in arrivals of NTCA asylum-seekers. Following this increase, U.S. immigration authorities significantly expanded the use of immigrant detention, including of families. Efforts to better screen border arrivals and refer them to appropriate services and ATDs have stalled. And despite additional federal funding for the Legal Orientation Program, detained asylum-seekers still struggle to access legal advice.
Moving Forward: Turning Exceptions into Rules
The U.S. and Mexico both have a long way to go towards their goals of ending detention. But they can both learn from each other.
The Mexican government should continue investing resources in its nascent initiatives to treat migrants better. It should continue supporting community-based, open-door shelters, which are cheaper and more humane than prisons. It should avoid at all cost creating the sort of immigration- or “crimmigration”-industrial complex that exists in the U.S. While Mexico has built several private prisons, no evidence can be found that they are used to detain migrants or asylum seekers. This may give Mexico a somewhat easier path to reform.
However, Mexico could certainly learn from the U.S.’s now-defunct Family Case Management Program. Limited as the program was, it nonetheless still serves as a very promising ATD model; it goes beyond mere release, providing holistic services that help ensure community integration and due process. In establishing such a program, Mexico should continue partnering with civil society and not rely on private detention companies.
The U.S. should reopen its Family Case Management Program and also develop new ATDs that are not based off of the correctional model. In developing new ATDs, the U.S. should follow Mexico’s lead in partnering with civil society and nonprofit organizations, not with private prison corporations like GEO Group. It should identify community-based ATDs—those in Mexico as well as the limited U.S. examples, such as Freedom House in Detroit—study their models, and try to replicate and scale up their success.
Finally, there is one “alternative to detention” used by both countries that should never be permitted: deporting asylum seekers before their claims are heard. Hopefully, a victory for the plaintiffs in Al Otro Lado v. Kelly will reinforce a lesson fundamental to international refugee law and in the spirit of American due process: no country can deny people the right to seek asylum.
 This program has now been canceled. The USCIS website says: “On Nov. 9, 2017, the Department of State stopped accepting new applications for the Central American Minors (CAM) refugee program. USCIS will stop interviewing CAM cases on Jan. 31, 2018. After that date, individuals with pending applications who have not been interviewed will receive a notice with further instructions.” https://www.uscis.gov/CAM