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United States Senate WASHINGTON, DC 20510 September 12, 2019 ‘Acting Commissioner Mark Morgan U.S. Customs and Border Patrol 1300 Pennsylvania Ave NW Washington, DC 20229 Dear Acting Commissioner Morgan, We write to follow up on serious concerns that came to our attention during our July 26, 2019 tour of Customs and Border Protection (CBP) facilities in E1 Paso and Clint, Texas. We were troubled by the Trump Administration’s cruel treatment of migrant families along the border, unfounded efforts to prevent us from carrying out our oversight responsibilities, and the callous attitude towards the dangers faced by migrants subject to the administration’s Remain in Mexico policy, which is also called the Migrant Protection Protocols (MPP). First, both of us strongly believe families should be kept together, and we are concerned about your agency’s lack of commitment to this basic humanitarian principle. Recent court filings in Ms. L. v. US. Immigration and Customs Enforcement (ICE) show that CBP and ICE have separated more than 900 children, “including numerous babies and toddlers,” from their parents since President Trump's June 2018 Executive Order supposedly ended the practice.' Despite the court’s order prohibiting the government from separating families “absent a determination that, the parent is unfit or presents a danger to the child,” we are gravely concemed that your agency continues to separate families in apparent conflict with this order, including based on minor jal allegations or convictions such as traffic violations and misdemeanor property damage. We also have serious questions about the reported use of the MPP to separate children ftom their parents, legal guardians, and primary caregivers. We also saw firsthand your agency’s failure to properly support the unity of families and the best jerests of arriving children. We are deeply concerned by widespread separation of children from their siblings, aunts, uncles, or grandparents, who may be the primary caregiver for the children, after apprehension, Family and child welfare experts have long recognized the importance of keeping children with their caregivers and keeping sibling groups together, especially in adverse circumstances. We hope that, by answering our questions and requests in ' Pls.” Mem. in Support of Motion to Enforce Preliminary Injunction, Ms. L. v. ICE, No, 18cv-0428 (July 30, 2019), available at hips:/ 2 See: NBC News, “Migrant Families Are Being Separated Under Remain in Mexico Policy.” August 20, 2019,! -ws/migrant-families-are-being-* lunder-temain-m. icy ‘complaint-n044466, NPR, “3-Year-Old Asked to Pick Parent in Attempted Family Separation, Her Parents Say,” July 15, 2019, hitps:/ toddler-to-piek-a-parent this letter, your agency can identify ways to improve its treatment of children and keep more families together. Second, during our tour of CBP’s facilities, we had serious questions about the ways in which the tour was orchestrated to hinder our ability to fulfill our constitutional oversight responsibilities. Your staff initially advised us that we could not speak with migrants held in CBP facilities because they could not give such consent while in government custody. When we continued to question this premise, we were then permitted to speak only with certain individuals who had arrived at the El Paso border station that day. Your staff prevented us from speaking with any migrants who had been detained longer than a day or any pregnant detainees at the El Paso Border Station. ‘At the Clint border facility, we were surprised that officials on the tour cited the Flores settlement agreement as a reason to keep us from speaking to unaccompanied children in custody. We find no provision in the Flores settlement agreement that prohibits unaccompanied children from communicating with Members of Congress or other elected officials. According to the Flores Counsel, nothing in the agreement should be read as doing so. We expect your agency to provide more information about your justification for keeping us from conducting proper oversight. Finally, we were troubled by your implementation of the MPP, the misinformation we were provided regarding the policy, and your failure to protect the most vulnerable migrants. The US., asa signatory to the 1967 Protocol Relating to the Status of Refugees, is committed to the principle of non-refoulement, meaning the U.S. must not return asylum seekers to countries where their lives or freedom would be at stake, In 1980, the Refugee Act made the Immigration and Nationality Act (INA) consistent with the 1967 Protocol by prohibiting the Attorney General from deporting immigrants to any country where their life or freedom would be threatened because of their race, religion, nationality, or membership in a particular social group. Despite these legal restrictions, CBP has sent more than 35,000 migrants to dangerous parts of Mexico while their asylum claims are being processed in the United States. Your staff claimed that the El Paso sector has not sent any children or vulnerable migrants, such as LGBTQ individuals, to Mexico under the MPP. When presented with public reports refuting their claims, your staff promised to follow up with more information, but we have yet to receive such information, In fact, reports indicate that numerous small children and vulnerable individuals, including LGBTQ migrants, have been sent to Ciudad Juarez, Mexico from El Paso under the MPP. * ‘There is no doubt migrants face great danger in Ciudad Juarez. Migrants have been robbed, raped, and murdered after being sent back to Juarez.’ There is an abundance of evidence that ‘See: CBS News, “Leave Me in a Cell: The Desperate Pleas of Asylum Seekers Inside El Paso's Immigration Court” August 11, 2019, https: / in-el-paso-who-are-subjectto-trumps-poliey/, Human Rights Wateh, “We Can't Help You Here: U.S. Returns of ‘Asylum Seekers to Mexico,” July 2, 2019, htips:/ + Human Rights Watch, “Delivered to Danger: Illegal Remain in Mexico Policy Imperils Asylum Seekers Lives and Denies Due Process.” August 2019, htipsi/wvow.humanrightsfirst.orgsites/defaultfles/Deliveredto-Danger- August-2019%420 pdt women and LGBTQ individuals in particular face heightened risk of sexual violence and murder in Juarez, Since 1993, hundreds of women and girls there have been murdered and dumped in the desert around Juarez. The prevalence of these crimes in Juarez led to the creation of a new term —feminicidio — to fully capture the gender bias behind these murders. As recently as April, the State Department published a travel advisory, urging Americans to reconsider travel to the Mexican state of Chihuahua due to crime and even prohibited government employees from visiting large swathes of Juarez.’ Secretary Nielsen instructed the Department of Homeland Security in a January 25, 2019 memo to ensure that migrants’ placements in the MPP are consistent with non-refoulement principles outlined in the 1967 protocol and the INA.® During our time in El Paso, we saw firsthand the dramatic decline in the number of migrants in El Paso because so many are forcibly sent to Mexico. This raises serious concems that your agency is not acting consistently with these non- refoulement principles by putting thousands of vulnerable migrants in danger in Juarez under the MPP. With these concerns in mind, please provide answers to the following questions and requests by September 26, 2019: 1. Does CBP liaise with state family courts or local child welfare experts for purposes of accurately determining what is in the best interest of the child after apprehending children in a family unit with extended family members or siblings? 2. What training have CBP officers in El Paso received in child welfare best practices? 3. Please provide a copy of any and all guidance provided to CBP officers about how they are to process sibling groups, extended family members, and parents in terms of keeping them together or separating them. 4, Please explain how consideration of parental, extended family, and sibling group unity affects your officers’ assignments of migrants to the MPP, if at al. 5. Please provide the justification for your refusal to allow us to speak with unaccompanied children based on the Flores agreement. 6. Please provide any documents expressing this justification shared with partners to the settlement or the U.S. District Court for the Southern District of California, 7. What guidance, if any, is provided to CBP officers in E1 Paso instrueting them on how to identify vulnerable populations and ensure they are exempted from the MPP? 8. Who, if anyone, monitors agents’ compliance with non-refoulement principles and with protocols to identify and exempt vulnerable populations from the MPP? Ifa migrant feels he or she will be in danger if placed in the MPP and returned to Mexico, who, if anyone, in your agency would handle an appeal of the original decision to do so? SUS. State Department, “Mexico Travel Advisory,” April 9, 2019, en/traveladvisories/traveladvisories/mexico-travel-advisory him. © Kirsijen Nielsen, “Policy Guidance for Implementation of the Migrant Protection Protocols,” January 25, 2019, hitps:/ OPA migrant-protection-protocols-policy= guidance pdf, 9, What affirmative steps does CBP take, if any, to identify whether migrants fear being sent to Mexico and ensure that migrants are not sent to face dangerous conditions in Mexico? 10, Please provide the number of vulnerable migrants who have been sent to Mexico under the MPP, broken down by specific categories, including: tender age children (0 to 5 years old), young children (5 to 12 years old), teenagers (12 years old and older), LGBTQ individuals, disabled individuals, and individuals with serious health conditions. 11, Please provide the number of children separated from parents, siblings, and caregivers by the MPP program, i¢., where some family members are sent to Mexico under the MPP and other members are permitted to stay in the United States. 12. There have been reports that CBP confiscates documents from MPP participants.” What documents does CBP require from individuals placed in the MPP and when are those documents returned to the individual? What steps has CBP taken to prevent CBP agents from improperly confiscating documents from migrants? 13, Please provide copies of all photos taken of us with migrants at the CBP facilities during our tour, We were given no proper justification for withholding these photos from us after your staff refused to allow our staff to photograph key parts of our oversight visit, We believe it is possible to enforce immigration laws and ensure our country’s safety ina ‘manner that is consistent with our nation’s values. We will continue to conduct oversight to ensure your agency acts accordingly. If you have any questions or concerns, do not hesitate to contact Nicholas Widmyer at Nicholas Thank you for your prompt attention to these matters. Sincerely, Pan 1+ 2 c Tim Kaine — — Mazie @ Hirono United States Senator United States Senator 7 Women’s Refugee Commission, “Chaos, Confusion, and Danger: The Remain in Mexico Program in El Paso,” April 2019, htps:/swww svomensrefugeecommission oreimages/zdocs/EIPaso- Report. pdf?fbclid=IwAR2KYiUe_4WkbKeL.THZC_guik TkeakPmme7yWBaFpba-7eq7Ta4S6ouvuBs.