Submitted via: https: https://www.regulations.gov
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March 27, 2023
Daniel Delgado Laura Alder Reid Acting Director Assistant Director Border and Immigration Policy Office of Policy, EOIR Office of Strategy, Policy, and PlansU.S. Department
ofJustice
U.S. Department of Homeland Security telephone (703) 305-0289 telephone (202) 447-3459
Re: Comment on the Proposed Rule by the Department of Homeland Security (DHS) and theExecutiveOfficeforImmigrationReview(EOIR)onCircumventionofLawfulPathways, CIS No. 2736-22; Docket No: USCIS 2022-0016; A.G. Order No. 5605-2023
Dear Acting Director Daniel Delgado and Assistant Director Lauren
Alder Reid:The International Mayan League, the only Maya women and youth-led organization located in the United States (U.S.), respectfully submits these comments1 in response to the Department of Homeland Security (DHS) and Department of Justice (DOJ)’s proposed rule published in the Federal Register on February 23, 2023.2 The current efforts of the Biden Administration to implement an Asylum Ban is an alarming regression of human rights against all asylum seekers and migrants. President Biden’s plan to block migrants from applying for asylum in the U.S. if they do not first apply in a third country or if they enter the U S as an undocumented person, would ban thousands of refugees from asylum protection in the U.S. It would deprive refugees of the ability to reunite with their families and pursue a path to citizenship. We reiterate that many people seeking asylum are Black, brown, Indigenous, and LGBTQ2S+, all disproportionately impacted in their countries of origin by war, violence, persecution, and climate change. The proposed rule is a new iteration of similar asylum bans promulgated by the Trump administration that were repeatedly struck down by federal courts as unlawful.
Why are Indigenous Peoples migrating to the U.S.?
Indigenous peoples around the world are facing political persecution for defending their lands, territories, and natural goods of Mother Earth. In Guatemala, the effects of the war and genocide which targeted the Maya majority and had financial and military support from the U.S., continues to be felt. The continued lack of legal certainty over our lands and territories is directly tied to hundreds of thousands of Indigenous peoples forced to flee due to land conflicts, persecution, and climate change devastation.3 Indigenous peoples are a disproportionate sector in forced
2 https://public-inspection.federalregister.gov/2023-03718.pdf
3 https://www.thenation.com/article/world/guatemala-indigenous-exile/
migration because Guatemala is an Indigenous majority country, consisting of 22 distinct Maya Nations, Xinka, and Garifuna peoples. Per community leaders, the Maya population is as high as 85%.4 These data points indicate that migration for people coming from Guatemala, is an Indigenous human rights issue. We are deeply alarmed that a new era of forced displacement and persecution by transnational corporations, the imposition of megaprojects in our ancestral lands, structural violence and inequalities have disproportionately affected us resulting in continual human rights violations and instability. In an Indigenous majority country, we are the ones who are the most affected and denied our basic human rights.
In the 2011 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples, James Anaya stated that, “the current legal and institutional framework regarding the rights of indigenous peoples over lands, territories and natural resources [in Guatemala] is still far from international standards and the progress achieved in Latin America.”5 This situation has not changed and in fact, in 2018, the Special Rapporteur, Victoria Tauli-Corpuz, again identified that “the basic underlying cause of the problem affecting the Indigenous peoples in Guatemala is the lack of protection of their rights to their lands, territories and natural resources in conformity with the relevant international human rights standards.”6 Here as in 2011, the key rights to lands and territories of Indigenous peoples, a cornerstone to more than 500 years of conflict, continues in present day Guatemala.
With the lack of legal certainty over landsand territories is the rise of forced displacement through state sponsoredviolent evictionsincoordinationwithcorporationssuchas “monocultures, mining, hydroelectric projects, oil, or tourism, among others.”7 Just in 2018, there were a reported “125 eviction requests inthe department of Peten.”8 The human rights of Indigenous peoples have been violated during these evictions which are usually violent in nature, hurried, and “carried out by members of the National Civilian Police, the Army and the National Council of Protected Areas (CONAP).”9 “Violent land conflicts of this kind are intensifying across Q’eqchi’ territory, a large swath of northern Guatemala that has some of the highest rates of poverty, malnutrition, and land inequality in the hemisphere.”10 The Maya Q’eqchi’ peoples are a population that is steadily increasing in the U.S., and is indicative of a growing forced displacement and migration of this particular Indigenous nation as a result of accelerated land conflicts.
Just in FY 2022, there were 231,56511 apprehensions of Guatemalan Nationals at the U.S./Mexico border, higher than apprehensions for persons from El Salvador and Honduras. And in FY 2023, there have already been over 70,000 apprehensions of Guatemalan individuals, the highest numbers beingsingle adults and Unaccompaniedminors.12 Because Guatemala is an Indigenous majority country, we believe that these statistics reflect that hundreds of thousands of Maya children and families are seeking asylum, yet invisible in plain sight.
4 Maria Jose Longo. 2019. Tres argumentos del Consejo del Pueblo Maya para rechazar los resultados del Censo. Prensa Libre. https://www.prensalibre.com/. (Accessed March 23, 2023)
5 Translation ours, link here https://documents-ddsny.un.org/doc/UNDOC/GEN/G11/140/31/PDF/G1114031.pdf?OpenElement
6 https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/246/43/PDF/G1824643.pdf?OpenElement
7 https://www.oas.org/en/iachr/reports/pdfs/Guatemala2017-en.pdf
8 https://www.oas.org/en/iachr/media_center/PReleases/2018/158.asp
9 Ibid.
10 https://nacla.org/land-conflicts-targeting-indigenous-communities-intensify-northern-guatemala
11 U.S. Customs and Border Protection, Southwest Land Border Encounters. https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters
12 Ibid.
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Indigenous Peoples’ Particular Human Rights in Migration
Anti-asylum policies, such as Title 42, and now the proposed asylum ban will further marginalize Indigenous peoples, making the conditions to seek asylum even more difficult and deny them this right. As is the case of T’ek, a Maya Ixil human rights defender from Guatemala, they were denied their right to seek political asylum in the United States and deported to Mexico under Title 42, despite fleeingpoliticalpersecution. Herelatesthat forcing Indigenouspeoples like himself toseek asylum in Mexico is a death sentence.13 Erasure of Indigenous identities, Indigenous language exclusion, anti-Indigeneity, and ongoing discrimination andracism hindersdue processrights. The Mayan League is especially concerned that Indigenous women, girls, and the LGBTQ2S+ community, already at heightened risk for sex and human trafficking because of their gender, will be especially impacted by the asylum ban.
To date, “Indigenous people(s) in migration are not being identified as Indigenous. Indigenous identities are erased on an official level when governments misclassify them generally as Latino or Hispanic, specifically as only nation-state citizens (e.g., Guatemalan, or Mexican, rather than Mam or O’odham, respectively), or the identity-erasing designation, other.”14 Therefore Indigenouspeoplesin migrationare one ofthe most invisible,vulnerable,andmarginalizedgroups at the U.S./Mexico border. The full scope of the human rights violations they endure has not been adequately documented or acknowledged and the urgent needs and rights of Indigenous peoples are being completely ignored and denied. In the most extreme cases these rights violations have led to deaths of our children. “Since May 2018, [at least] six Indigenous children and youth have died in DHS custody or have been killed at the southern border by U.S. Border officials.”15 In the most extreme case of Indigenous language exclusion, Jakelin Caal Maquin was denied a Maya Q’eqchi Interpreter, and never able to adequately communicate her medical needs. She died on December 8, 2018, under the custody of the U.S. government.16
As the Mayan League, we have repeatedly denounced the human rights violations at the U.S./Mexico border17 , the deaths of Maya children and youth, and the necessity to adopt a more humanitarian approach within immigration policies – specifically because we are a large majority in forced migration 18 The Joe Biden administration promised to implement a safe, orderly, and humane immigration system that would uphold its duty to asylum seekers and refugees. Instead, the Administration is considering an asylum ban and reviving the practice of detaining migrant families trying to cross the border.
13 The Mayan League, Anti-Asylum Policies are a Form of Genocide Against Indigenous Peoples, https://www.youtube.com/watch?v=5fGoZepRUEg.
14 Juanita Cabrera Lopez, Patrisia Gonzales, Rachel Rose Bobelu Starks, and Lorena Brady. 2019. “Indigenous Peoples’ Right to Exist, Self-Determination, Language and Due Process in Migration.”: www.indigenousalliance.org (March 24, 2023).
15 The National Congress of American Indians Resolution #ABQ-19-012. 2019. Calling to Protect and Advance the Human Rights of Indigenous Peoples Migrating to the U.S. NCAI 2019 Annual Session. https://www.ncai.org/ (March 24, 2023).
16 https://issuu.com/mayanleague.org/docs/we_denounce_the_death_of_jakeline_c
17 https://issuu.com/mayanleague.org
18 Why Are Indigenous People Dying At The Border? https://www.youtube.com/watch?v=DVlvS30dOtI&t=2s
While President Biden previously committed to support asylum seekers and migrants who were severely dehumanized and criminalized under the Trump administration, his Asylum Ban revives a cruel Trump-era deterrence policy that will deny asylum seekers protection and threatens the lives of migrants and their families.19 It is important to note that Trump’s efforts of implementing metering and third country agreements to ban asylum seekers from entering the US was ruled illegal by federal courts since it violated due process and international laws and standards.20 On January 18, 2023, the International Mayan League, alongside 291 other civil, human rights, and immigrant groups, wrote to President Biden and demanding him not to break his “campaign promise to end restrictions on asylum seekers traveling through other countries”, and to respect asylum seekers rights in accordance to international laws and agreements.21 Despite this call, Biden, who once criticized Trump for this illegal deterrence policy, has ignored these concerns and is now actively harming and violating the human rights and due process of asylum seekers, with particularly detrimental effects to Indigenous peoples.
How does the new rule violate the rights of Indigenous peoples?
International human rights instruments endorsed or ratified by the U.S. outline the minimum human rights standards for the treatment of migrants including, children, women andfamilies, and specific rights of Indigenous peoples. As has already been outlined, the rights of Indigenous peoples in migration are complex because they require analysis of both the rights of migrants and the specific rights of Indigenous peoples. The U.S., as a member of the Organization of the American States, has the obligation to uphold the Human Rights obligations in the American Declaration of the Rights and Duties of Man. The detention and treatment of Indigenous migrant children and families by U.S. government agencies is in violation of these international law standards endorsed or ratified by the U.S., including those contained in the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), as well as the standards adopted in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and by the Organization of AmericanStates in the American Declaration on the Rights of Indigenous Peoples (ADRIP).
Specifically, the U.S. has the obligation to uphold the Human Rights specified in the American Declaration of the Rights and Duties of Man. In particular, we note Articles I, and II of the Declaration which affirm our right to life, liberty and personal security and equality before the law.22 Articles VII and XI uphold the right to protection for mothers and children, and the right to preservationof health and wellbeing.23 And articles XVII, XVIII, XXVI, and XXVII establish that all persons have the right to recognition of juridical personality and civil rights, right to a fair trial, right to due process, and right of asylum.24
19 https://www.reuters.com/article/us-usa-biden-immigration-promises-factbo/factbox-u-s-president-elect-bidenpledged-to-change-immigration-heres-how-idUSKBN29K1X1
20 https://www.hrw.org/news/2023/02/28/biden-asylum-ban-rule-would-send-thousands-danger
21 https://humanrightsfirst.org/wp-content/uploads/2023/01/Letter-to-President-Biden-re_-asylum-ban-NPRM-1.pdf
22 Article I. Every human being has the right to life, liberty and the security of his person; Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.
23 Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid; Article XI. Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.
24 Article XVII. Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights; Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights; Article XXVI. Every accused person is presumed to be innocent until proven guilty. Every person accused of an offense has the right to be given
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Under the new rule, asylum seekers are required to use CBP One, a smartphone app, to schedule asylum appointments at ports of entry alongside the U.S./Mexico border. Applicantshave reported technical difficulties using the app, such as the “inability to get an appointment, geo-location failuresandscreensfrozenbefore finalconfirmation”,25 and havingappointmentlocationsfar from where they are, which would force people to travel within Mexico, placing them at risk.26 Most concerning is CBP One’s facial recognition feature that requires applicants to upload a picture through the app, which “frequently fails to recognize the faces of black and darker-skinned migrants”.27 Asylum seekers have fallen victim to violence, kidnapping and extortion, or live in very precarious situationsin Mexico while waitingfor theirappointment. Forexample, in January, a 15 year old Haitian boy died in the border town of Tamaulipas,28 Mexico while waiting for his appointment made via the CBP One app.29 Moreover, this bars anyone without a cell phone or internet from seeking asylum, and it lacks Indigenous language options and gives error messages in English. The inefficiency and inadequacy of CBP One contributed to up to a thousand people attempting tocross from Ciduad Juarez toEl Paso March 13,2023, since they were unjustly forced to wait in Mexico without a clear path for their asylum cases and appointments.30
Like other deterrence and inhumane immigration policies such as Title 42,31 the Asylum Ban will most impact Black, brown, Indigenous, and LGBTQ2S+ asylum seekers. The violence against black migrants was further made visible by the kidnapping of four US citizens in early March, which resulted in two deaths after cartel members confused them to be Haitians 32 This was a reminderof the violence thatmigrantsandfamiliesconfront ona daily basisinMexico.Indigenous Peoples continue to be among the most vulnerable within asylum seekers, especially Indigenous women, children and LGBTQ2S+ peoples. One particular emblematic case of the violence experienced by Indigenous migrants in Mexico is the case of Juanita Alonzo Santizo of the Maya Chuj Nation who was arbitrarily detained in Mexico for more than 7 years. She was wrongfully arrested, interrogated without an Indigenous language interpreted and forced to sign Spanish documents. It was only through Maya women and youth-led advocacy that she regained her freedom in the spring of 2022.33 Her case highlights the danger and racism that awaits Indigenous asylum seekers in Mexico.
an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment; Article XXVII. Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.
25 https://www.bbc.com/news/world-us-canada-64814095
26 https://www.reuters.com/world/americas/first-migrants-cross-into-us-mexico-using-mobile-app-2023-01-19/
27 https://www.bbc.com/news/world-us-canada-64814095
28 https://www.elsoldetampico.com.mx/policiaca/muere-joven-haitiano-en-reynosa-esperaba-ingresar-a-estadosunidos-9552796.html
29 https://www.hrw.org/news/2023/02/28/biden-asylum-ban-rule-would-send-thousands-danger
30 https://kfoxtv.com/news/local/cbp-advises-migrants-without-appointments-should-not-attempt-entry-chaos
31 https://issuu.com/mayanleague.org/docs/mayanleague_ifr_comments-final_2022
32 https://www.cnn.com/2023/03/07/americas/mexico-matamoros-us-citizens-kidnapping-tuesday/index.html
33 https://www.nadja.co/2022/02/23/global-campaign-calls-for-release-of-mayan-woman-detained-for-7-yearswithout-trial/
The AsylumBan,alongsideotherdeterrence policiesaremeant topurposelyputmigrantsinharm's way as a means of preventing them from entering the US and accessing their rights as migrants, asylum seekers and refugees. Thus, we recommend the following:
● An end to the proposed Asylum Ban and deterrence policies that place migrants in precarious environments, and deny them their due process;
● Development of better appointment system that provides migrants with a timely appointment and in their respective language, witha focus on Indigenous languages, which is currently not available through CBP One app;
● Further investment in language interpreters for asylum seekers, and not militarization and detention;
● Halting all efforts of reinstalling family detention, which presents additional hurdles for asylum seekers and migrants;
● Work directly with Indigenous peoples advancing the human rights of their peoples and communities in migration in order to address the needs and rights of Indigenous asylum seekers
Conclusion
For the reasons outlined in these comments, the International Mayan League express our deepest concernsonthe proposed Asylum Ban, whichviolatesU.S.domestic andinternational obligations, and which will negatively impact Indigenous, Black and LGBTQ2S+ asylum seekers. Many of our peoples are being persecuted in our home countries by state-sponsored violence and corporations backed by the military and police and forced to flee to the U S to find refuge. Instead of finding safety, thousands of people face militarized borders and deterrence policies that adds to their already vulnerable positions and mark them for violence at the U.S./Mexico border. We reiterate the critical need to work with Indigenous peoples to propose Indigenous solutions in protecting and safeguarding the human right to seek asylum and all human rights for asylum seekers.
Sincerely,
The International Mayan League