Week 53: CBP agents perform illegal immigration enforcement in Guatemala
Immigration news, in context.
This is the fifty-third edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we break down a new Senate report that delves into U.S. Customs and Border Protection officers’ involvement in a Guatemalan immigration operation.
In Under the Radar, we discuss the opposition to a recent deportation flight to Cameroon, as well as new allegations of mistreatment in ICE detention.
In Next Destination, we look at the latest news regarding the potentially unlawful appointment of acting DHS head Chad Wolf.
The Big Picture
The news: The Senate Foreign Relations Committee released a report detailing U.S. Customs and Border Protection (CBP) agents’ involvement in the deportation of a group of Honduras from Guatemala, in violation of law and interagency agreements.
What’s happening?
We spend a lot of time discussing the myriad asylum and other immigration restrictions that the administration has spent the past nearly four years enacting domestically. Yet the project of shutting down immigration, and particularly humanitarian immigration, is a whole-of-government one, very much extending to foreign policy. Insofar as a U.S. foreign policy for Mexico and Central America has existed under the Trump administration, it’s been (aside from wrangling over a new trade deal) singularly focused on stemming migration. After the conservative Guatemalan President Alejandro Giammattei was sworn into office in January, he met privately not with Secretary of State Mike Pompeo, but with (alleged) Acting Secretary of Homeland Security Chad Wolf and Commerce Secretary Wilbur Ross.
Not even one day later, on January 15, CBP officers stationed in Guatemala improperly used State Department funds to rent three vans and—in an ad hoc operation undertaken jointly with Guatemalan border authorities—drove an unspecified number of Honduran migrants who had been taking part in a caravan back to the Honduran border for deportation. According to the report prepared by the Senate Foreign Relations Committee, which describes the number of Hondurans deported as in the “hundreds,” the agents took no precautions to ensure the safety of the migrants; weren’t able to confirm whether any families had been separated during the operation or whether any unaccompanied minors were part of the group; and could not say if any authorities, Guatemalan or U.S., had ensured that the migrants received or were even informed of access to an asylum process.
If you’re wondering what CBP agents were doing in Guatemala, the reality is that a variety of U.S. domestic law enforcement agencies have a presence abroad. A crucial question is whether they have any investigative or enforcement role or are merely in an advisory capacity. As the Congressional Research Service has noted, there are a number of domestic criminal statutes that Congress intends U.S. law enforcement authorities to be able to investigate abroad, including, for example, certain types of drug trafficking. Justice Department agencies like the FBI and the DEA maintain bureaus abroad, which, with the consent and assistance of local authorities can perform investigative and enforcement functions.
On the Homeland Security side of things, ICE’s Homeland Security Investigations (HSI), which is tasked with investigating drug smuggling and human trafficking, among other things, has agents stationed throughout Africa, Europe, Asia, Oceania, and Latin America. HSI and CBP agents have engaged in joint investigations with foreign authorities and even conducted arrests and interrogations. Controversially, CBP agents have taken an immigration screening role at airports abroad.
However, the CBP agents that devised and implemented this Guatemalan operation were there as a result of an agreement with the State Department’s Bureau of International Narcotics and Law Enforcement Affairs (INL). This agreement specifically barred U.S. personnel from conducting “immigration or law enforcement operations; they are in country for mentoring, advising and capacity-building purposes only.”
Beyond that, it’s not clear what U.S. laws the CBP personnel believed to be enforcing. The Hondurans were obviously not on U.S. soil and were not in violation of any U.S. laws; they were on the way to the United States to exercise their lawfully protected right to seek asylum. By taking them to be deported without an asylum screening, it was the agents themselves who were in violation of international law, specifically the principle of non-refoulement.
It’s relevant that by this point, the U.S. had signed and implemented an asylum cooperative agreement with Guatemala, deporting asylum seekers to seek asylum there instead of the U.S. on the argument that it had a functioning asylum system. Whatever the merits of this claim, in this case the CBP officials not only didn’t even allow the migrants to reach the U.S. to petition for asylum, but didn’t appear to allow them to petition in Guatemala either.
The operation was recorded in contemporaneous press reports, but when the Senate committee asked the State Department about it, the department initially claimed that there was no record of the operation and of funds being used for the buses. Eight days later, it amended its responses to say that it had been misled by DHS, and in fact the operation had taken place and State Department funds were used for it.
How we got here
One of Trump’s most popular claims on the campaign trail was (and continues to be) that the Mexican government will eventually pay for the wall along the U.S.-Mexico border. That’s obviously not going to happen; the Trump administration has invested considerable time and effort into redirecting money away from other federal agencies, as well as from the military, to pay for the wall’s construction. Even though Mexico won’t pay for the wall, however, the country has done plenty to support the Trump administration’s immigration crackdown.
There’s an argument to be made—and we’re not the first to make it—that Mexico effectively is the wall. The Mexican government has repeatedly helped slow immigration to the United States, often by deploying its own security forces to both its border with Guatemala and its northern border with the United States. In June 2019, for example, Mexico sent between 14,000 and 15,000 members of its Army and newly-created National Guard to its northern border, as well as 6,500 members of its security forces to patrol its southern border, according to Reuters. Gustavo Mohar, a former national security official, told Reuters that the deployment was part of a strategy to reduce Central American migration to the U.S., spurred by Trump’s order to impose tariffs on Mexico if it didn’t work to curb migration of foreign nationals.
In January, Mexico’s National Guard used tear gas on a group of around 2,000 migrants from Central America who were attempting to cross into Mexico en route to the United States. Mexican president Andres Manuel Lopez Obrador faced a wave of backlash over the incident from critics who said he was capitulating to Trump. Thanks in part to Mexico’s collaboration, arrests of migrants at the U.S.-Mexico border dropped by 70 percent from June 2019 to January 2020, according to Reuters.
Mexico isn’t the only country to help the U.S. with its immigration efforts. The Trump administration signed asylum cooperative agreements not only with Guatemala, but with El Salvador and Honduras, all with the ultimate goal of sending asylum seekers who arrive in the U.S. to those countries instead, ostensibly to apply for asylum protections there. For example, under the U.S.’s agreement with Guatemala—the only one to go into effect before the coronavirus pandemic began—Salvadoran and Honduran migrants could be sent to Guatemala to apply for asylum there, even though Guatemala doesn’t have a particularly robust asylum system in place.
Earlier in 2019, the U.S., Guatemala, Honduras, and El Salvador agreed to carry out joint police operations in Central America in order to curb “irregular migration”from the region to the United States.
Of course, there’s a clear difference between foreign governments using their own security forces and bureaucracies to do the U.S.’s bidding—even under duress—and actual U.S. forces being present in those countries. Broadly speaking, however, the U.S. has influenced operations in Mexico and Central America for some time.
U.S. military and law enforcement have had a longstanding presence in Mexico and Central America. Between 500 and 1,500 members of the U.S. military are stationed at an air base in Honduras, for example, where they provide “medical assistance, disaster response and military training for Latin American” security forces. This process began long before Trump took office; the U.S. has used the Honduran base since the 1980s. Moreover, a number of U.S. agencies—the State Department, the U.S. Agency for International Development, and the Department of Defense—train police forces in Central America, allegedly in order to help “professionalize” police departments and curb corruption there.
What’s next?
This case is representative of the single-mindedness and disregard for the law with which DHS is approaching the mission of stopping humanitarian migration from Latin American to the United States. In this particular case, the CBP agents clearly and flagrantly acted beyond the bounds of their authorities and the relevant agreements. However, the totality of the DHS agreements with Honduras, Guatemala, and El Salvador—which include not only the three asylum cooperative agreements but biometrics sharing programs and ill-defined “border security arrangements” meant to “address irregular migration”—are clearly geared towards preventing migrants from being able to even reach the U.S. border for an asylum claim.
Along with the actions of the Mexican government we discussed above, this is collectively a program to move the border effectively away from the border, and in doing so sidestep the thornier legal obstacles that arise once migrants reach the United States. While the administration has been meticulous in shutting down practically any access to asylum domestically, these restrictions are all at some measure of legal risk as, fundamentally, U.S. law protects the ability to seek asylum. Indeed, several restrictions have been blocked by the courts. By working with other countries to prevent migrants from ever reaching the U.S., however, the administration is able to sidestep some of this risk to its restrictionist policies.
This cooperation is likely to continue, in particular as the administration takes the position that this is not a request. In pushing for the asylum cooperative agreements and support from the Mexican government and armed forces, it variously threatened steep cuts to foreign assistance and significant tariffs if its counterparts didn’t play ball. It has become well-understood that the price of staying on the United States’ good side is doing everything possible to prevent migration, and this trend of an outward-reaching border is likely to continue.
That these CBP agents felt comfortable taking this step, and essentially directing Guatemalan immigration authorities in how to conduct their enforcement, probably indicates they felt at least some measure of institutional support in doing so. We wouldn’t be surprised if this sort of thing has happened more than once, and elsewhere. The Senate report notes that the official who “authorized the joint operation” had been recalled to Washington, but it’s not clear what sort of accountability could be sought.
The report makes a series of recommendations, including that Congress pass a law specifically prohibiting joint operations with “foreign government migration and border authorities,” but that’s unlikely to happen. It also pointedly implores the State Department to “reclaim its leadership of U.S. foreign policy,” but it’s not clear that a gutted State Department is even capable of retaking that role. The transition into a national security-supremacy state, where the domestic policy considerations of an empowered Homeland Security apparatus are king, will probably continue apace unless there’s a significant change in leadership.
Under the Radar
Cameroonian asylum seekers say they were pressured into signing deportation papers
Immigration advocates tried to stop the deportation of asylum seekers from Cameroon who say ICE officials pressured them into signing deportation papers, the Associated Press reports. The men, all of whom were detained in Mississippi, were transferred to a detention center in Texas in advance of the flight, which advocates told the AP would send at least 100 people to Cameroon and the Democratic Republic of the Congo—even though many say they fled the country’s ongoing civil war and face torture or persecution upon their return.
The eight men—identified in a complaint by the Southern Poverty Law Center, Freedom for Immigrants, the Cameroonian American Council, and other immigrant advocacy groups—claim that they faced physical and legal retaliation while detained in Mississippi and were forced to sign papers agreeing to deportation. “I can't see well still from the pepper spray,” one man said in the complaint. “As a result of the physical violence, they were able to forcibly obtain my fingerprint on the document.”
Activists were unable to stop the flight, but NBC News reports that two Cameroonian men, both of whom were named in the complaint, were pulled off the flight minutes before it took off. According to Cameroonian media, 81 of the 126 people on the flight were Cameroonian nationals, and the flight was expected to arrive in Douala, Cameroon on Wednesday.
Next Destination
Federal judge says acting DHS secretary was unlawfully appointed
Judge Randolph Moss of the U.S. District Court for Washington, DC is now the third federal judge to rule that Chad Wolf, the acting head of the Department of Homeland Security, is serving unlawfully. As a reminder, the Government Accountability Office determined in August that both Wolf and Ken Cuccinelli had been unlawfully appointed to their positions.
Several lawsuits against the administration’s policies, including a recent lawsuit regarding U.S. Citizenship and Immigration Services’ fee hike, have alleged that the policies are unlawful because the officials implementing them were unlawfully appointed to their positions. Moss took a bit of a different tack than the prior determinations, essentially ruling Wolf had been illegally acting as DHS secretary until September 10 of this year, when FEMA administrator Peter Gaynor — who by the rules of succession should have been acting secretary — changed the order of succession to make Wolf next in line, at which point he would have been the newly legally acting secretary.
However, Moss then goes on to make the argument that this action by Gaynor would have itself been unlawful, because the law does not permit an acting secretary to alter the rules of succession. Therefore, Wolf would still have been unlawfully acting, and his prior actions at the helm of DHS would have also been unlawful. This determination would make it so that even the White House’s attempts to install Wolf after questions had been raised about the legality of his appointment have failed.