Violation of Indigenous Peoples’ Right to seek Asylum Asylum at the US-Mexico Border

International Mayan League 1201 K St. NW Washington, D.C. 20005

Phone: (202) 827-6673 Email: info@mayanleague.org www.mayanleague.org

May 31, 2022 Submitted via www.regulations.gov Rená Cutlip-Mason Chief, Division of Humanitarian Affairs Office of Policy and Strategy U.S. Citizenship and Immigration Services Department of Homeland Security 5900 Capital Gateway Drive Camp Springs, MD 20588-0009 Lauren Alder Reid Assistant Director, Office of Policy Executive Office for Immigration Review 5107 Leesburg Pike, Suite 1800 Falls Church, VA 22041

Re: Procedures for Credible Fear Screening - Violation of Indigenous Peoples’ Right to seek Asylum at the US-Mexico Border Dear Chief Cutlip-Mason & Assistant Director Reid: The International Mayan League, the only Maya woman-led organization in the United States (U.S.) submits these comments in response to the Interim Final Rule (IFR) issued by the Department of Justice1.

We are gravely concerned that Indigenous Peoples will experience disproportionate human rights violations under the March 2022 Interim Final Rule (IFR) because Indigenous Peoples are invisibilized, erased, and marginalized within the United States’ immigration system. The U.S. government and its agencies have misclassified Indigenous Peoples as Hispanic, Latino, and Latinx which has further denied Indigenous Peoples the right to exist and affected due process rights such as the right to an Indigenous language interpreter. We believe the IFR will lead to the following human rights violations including: 1

Authored and researched by Dr. Giovanni Batz (K’iche’ Maya) in collaboration with Juanita Cabrera Lopez (Maya Mam). Dr. Batz is a 2020-2022 President's Postdoctoral Fellow in the Department of Native American Studies at the University of California, Davis. Juanita Cabrera Lopez is a member of the Maya Mam Nation and Executive Director of the International Mayan League.

1. Widespread denial of Indigenous identities due to lack of disaggregated data and erroneous misclassification; 2. Indigenous language exclusion hindering due process rights; 3. Increased expedited removal of Indigenous asylum seekers due to an inability to prove credible fear.

Historical racism, forced displacement, and genocide throughout Abiayala2 (the Americas) are some of the root drivers increasing involuntary migration of Indigenous Peoples. Indigenous Peoples also experience violence in migration through the militarization of borders, as well as racist treatment and discrimination by U.S. border agents and government officials. The U.S. government labeling of Indigenous Peoples as “Hispanic”, “Latina/o/x” or through a nationality such as Guatemalan or Mexican, contributes to this long legacy of colonial erasure. While Indigenous Peoples are guaranteed a wide array of rights which are outlined in international agreements such as International Labour Organization (ILO) Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), their rights such as their right to autonomy, self-determination, and language, are often violated.

Indigenous Peoples’ rights are further violated when crossing through Mexico and at the US-Mexico border by inhumane deterrence policies, such as Title 42 and “Migrant Protection Protocols” (MPP), and the lack of Indigenous language interpreters for those detained by U.S. Border Patrol. A joint report by Indigenous Alliance Without Borders/Alianza Indígena Sin Fronteras (AISF) and International Mayan League found “that close to 20% of Original Peoples arriving to this North American territory (Southern Arizona) are Indigenous and speak their Indigenous language.” In addition, they argue that: Indigenous peoples are denied both due process and their identity through language exclusion coupled with their erasure as distinct peoples through statistical omission and erroneous Latino or Hispanic categorization... At the U.S.-Mexico border and throughout the U.S. immigration system, Indigenous peoples’ rights to due process are violated because they cannot communicate their reasons for fleeing, nor their basic or urgent medical needs in Spanish or English. These human rights violations can contribute to their deaths.

In discussing Title 42, it is crucial to take into consideration the severe impacts that this inhumane policy has on Indigenous Peoples. Given the lack of data available on the number of Indigenous Peoples crossing, detained or deported in/from Mexico and/or the US, it is difficult to determine the full scope of human rights violations experienced by Indigenous Peoples. However existing data and estimates from several sources which examine migration from Guatemala allow us to demonstrate the severity of the problem of Title 42.

2

Emil’ Keme (2018). “For Abiayala to Live, the Americas Must Die: Toward a Transhemispheric Indigeneity.”

Native American and Indigenous Studies 5(1), 42-68.

International Mayan League 1201 K St. NW Washington, D.C. 20005

Phone: (202) 827-6673 Email: info@mayanleague.org www.mayanleague.org

Estimates on Central American, Guatemalan and Maya Migration The 2018 Guatemalan Census states that Indigenous Peoples, consisted of the Maya, Xinca and Garifuna, make up 44% of the population, but some have argued that this figure is meant to erase Indigenous Peoples, and that the population is actually higher and represent 75-80% of the population. The undercount is attributed to colonial legacies and racism expressed in data collection in Guatemala, and which also appears in the lack of data collection on Indigenous Peoples by U.S. immigration officials. As a result, there does not exist exact figures on how many Indigenous Peoples are coming from Guatemala, Latin America and elsewhere. This violates Indigenous Peoples’ right to exist and hinders Indigenous Peoples’ right to Indigenous interpreters. For example, in 2021, data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that there were at “least 40 different languages” spoken by “nearly 30,000 migrants with pending MPP cases,” which included indigenous languages such as Quechua and various Maya languages. According to the study, among these pending cases, there were at least 245 Maya language speakers: 71 Mam, 59 K’iche’, 40 Q’eqchi’, 25 Q’anjob’al, 16 Akateko, 10 Cubulco Achi, seven Chalchiteco, five Chuj, five Jakalteka, four Kaqchikel, and three Chuj. There were also other Indigenous languages reported such as Quechua with eight speakers, six Miskito and three Garifuna speakers. These figures likely capture just the minimum amount of Indigenous language speakers, given that oftentimes asylum seekers and migrants from Latin America may be denied the opportunity to declare their Indigenous identity, not given the right or option of an interpreter, assumed to be Spanish speakers, or do not mention them in credible-fear interviews due to historical racism, among other reasons.

Despite the difficulties in obtaining concrete data on the number of Maya peoples from Guatemala, there have been multiple estimates. Anthropologist Lauren Heidbrink claims that about “95% of returned minors” are Maya (primarily Mam and K’iche’) from the Departments of Quetzaltenango, Totonicapán, San Marcos, and Huehuetenango. The joint report by the Alianza Indígena Sin Fronteras and International Mayan League cited above found that “A groundbreaking study of asylum seekers in Tucson, AZ, migrant shelters from 2014-2017 demonstrates 60% were from Guatemala and, of those, 30% were primarily speakers of Maya languages.”

Recent Central American migration has steadily increased since 2015, and a significant percentage has been from Guatemala (See Tables 1 and 2). Unaccompanied Children from Guatemala were the largest group detained at the border: 13,589 in 2016, which more than doubled in 2019 to 30,329 (an 123.188% increase). Single adult Guatemalans detained in 2016 was 32,621, and increased to 60,589 in 2021 (an 85.74% increase).

Table 1: Unaccompanied Children Encounters by Country Country FY15 FY16 FY17 FY18 FY19

El 9,389 17,512 9,143 4,949 Salvador Guatemal 13,589 18,913 14,827 22,327 a Honduras 5,409 10,468 7,784 10,913 Mexico 11,012 11,926 8,877 10,136 Source: U.S. Customs and Border Protection Table 2: Single Adult Encounters by Country Country FY16 FY17 FY18

El 27,222 16,495 12,751 Salvador Guatemala 32,621 26,387 42,994 Honduras 22,258 17,110 26,161 Mexico 175,353 116,790 139,860 Source: U.S. Customs and Border Protection

FY20

12,021

2,189

FY21 TD MAR 3,755

30,329

8,390

18,372

20,398 10,487

4,454 14,359

11,949 11,785

FY19

FY20

20,893

9,960

FY 2021 TD MAR 17,343

48,606 44,981 149,967

27,948 25,152 228,842

60,589 47,684 242,290

Title 42 and Deportations to Guatemala Since Title 42 was implemented on March 21, 2020 by the Donald Trump administration, and continued by its successor Joe Biden, it has represented the majority of “Enforcement Encounters”, having outnumbered Title 8 apprehensions (those based in immigration law). Below are two tables that display U.S. Border Patrol Monthly Enforcement Encounters for the Southwest Land Border, and the total number of Title 42 Expulsions and Title 8 Apprehensions. Title 42 accounted for 60.3% of all total “enforcement encounters” between April 2020 and April 2022 (see table 3). During this time period, Guatemalans represented 15% of all Title 42 expulsions, and 12.6% of all Title 8 apprehensions (see table 4). The available public data does not determine where people were deported or expelled under Title 42, and whether they were deported to Mexico or their home country.

Table 3: U.S. Border Patrol Enforcement Encounters for the Southwest Land Border 2020 2021 2022 Total (Apr – Sept) (Oct.-Apr)_ 1,040,220 631,942 Title 42 189,962 1,862,124 19,239 618,986 584,231 Title 8 1,222,456 Table 4: U.S. Border Patrol Southwest Land Border Encounters, Guatemalans 2020 2021 2022 Total (Apr – Sept) (Oct.-Apr)_ 173,616 90,693 Title 42 14,064 278,373 1,557 109,419 43,446 Title 8 154,422

Phone: (202) 827-6673 Email: info@mayanleague.org www.mayanleague.org

International Mayan League 1201 K St. NW Washington, D.C. 20005

The Guatemalan government does not track deportees and returnees by their Indigenous identity. Data on deportations/returns from the Institute of Guatemalan Migration (IGM) labels people as either “deportees”, which is defined by the IGM as “People who violated the immigration regulations of the country of origin of deportation”, or “returnees” which are “People who infringed the immigration regulations of the country of origin of return” (translation by authors).

It is unclear which laws were applied in the US to justify their deportation, removal and/or expulsion. Thus, it is not known how many were deported or returned due to Title 42.

According to the IGM, 21,057 people were deported from the US by air in 2020. Of these, 11,456 or 54.2% were from four departments that are heavily Maya and Indigenous. For instance, 4,089 or 19.4% of those deported were from the department of Huehuetenango, 3,190 or 15% from San Marcos, 2,194 or 10.4% from El Quiche, and 1,983 or 9.4% from Quetzaltenango (See table 5). Other heavily Indigenous departments such as Totonicapán and Sololá also had significant numbers of people who were returned from the US. Table 5: Department of Origin of People deported in 2020 from the US via air Department People deported Department People deported Huehuetenango San Marcos El Quiche Quetzaltenango Guatemala Totonicapán Sololá Petén Jutiapa Chimaltenango Chiquimula

4,089 3,190 2,194 1,983 1,177 902 887 748 727 585 576

Suchitepéquez Escuintla Baja Verapaz Alta Verapaz Retalhuleu Jalapa Santa Rosa Izabal Zacapa El Progreso Sacatepéquez

554 485 471 464 435 426 392 338 230 140 64

Source: Institute of Guatemalan Migration The IGM reports that 23,969 people were deported from Mexico by land, and another 546 by air in 2020. Similar to those deported by air from the US, those deported from Mexico by land, 13,007 or 54% were from heavily Indigenous and Maya departments (see table 6). For example, 5,706 or 23.8% were from the department of San Marcos, 3,760 or 15.6% from Huehuetenango, 1,963 or 8.1% from Quetzaltenango, and 1,578 or 6.5% from El Quiché. These figures are consistent with the argument that a significant number of people migrating from Guatemala are most likely in their majority Maya or Indigenous Peoples.

Table 6: Department of Origin of People deported in 2020 from the Mexico via land Department People deported Department People deported San Marcos Huehuetenango Quetzaltenango Guatemala El Quiché Petén Escuintla Suchitepéquez Totonicapán Jutiapa Retalhuleu

5,706 3,760 1,963 1,627 1,578 913 846 756 750 722 698

Sololá Chiquimula Izabal Alta Verapaz Chimaltenango Santa Rosa Jalapa Baja Verapaz Zacapa El Progreso Sacatepéquez

683 623 543 508 498 480 385 355 310 199 66

Source: Institute of Guatemalan Migration

Recommendations: While official data is lacking on the number of Indigenous Peoples that are being impacted by inhumane immigration laws such as Title 42, the data presented above demonstrates that: i) Indigenous Peoples are being mislabeled as Hispanic/Latino/Latinx within the immigration system, and assumed to be Spanish speakers at first point of contact by U.S. immigration officials and agents; ii) the need of interpretation services in various Indigenous languages such as Quechua, K’iche’, Mam, and others, is still misunderstood and not guaranteed despite some initial studies and reports; iii) a significant amount of those expelled and deported by Title 42 are from Guatemala; and iv) that those that returned to Guatemala are from heavily Maya and Indigenous departments and communities. To guarantee recognition of Indigenous Peoples rights, it is urgent that Indigenous-led research be conducted to collect critical data needed to determine the impacts of Title 42 on Indigenous Peoples. However, it can be inferred that Mayas make up a significant population of Guatemalan migrants, who in turn make up a significant portion of those impacted

by Title 42. Thus, it is crucial that in order to ensure the guaranteed rights of Indigenous Peoples in accordance with UNDRIP and ILO 169 within Procedures for Credible Fear Screening, Indigenous peoples’ must be allowed the right to their indigenous identities, and Indigenous language interpreters must be provided at every stage in the asylum claim process.