Under the Trump administration’s new stringent border control measures, implemented in March, two migrants seeking humanitarian protections at the border have been permitted to remain in the US, according to US Citizenship and Immigration Services data.
Customs and Border Protection, the agency tasked with US border security, referred 59 migrants to US Citizenship and Immigration Services, which processes asylum claims, who expressed fear of torture if they were to be returned. Under the new policy barring most migrants at the border, the threshold to be exempted from expulsion is a claim under the Convention Against Torture, according to a Homeland Security official.
Previously, other asylum claims would be reviewed, but amid the pandemic, the administration has further limited access to humanitarian protections for migrants, claiming it is in the interest of public health.
As of May 13, of the 59 cases, 54 migrants did not establish a likelihood of torture in their home countries and are subject to immediate expulsion from the US. Three cases are pending, according to the data, which was first reported by The Washington Post.
USCIS could not provide comparable data for previous months. Some migrants are still being processed under traditional border protocols and it’s unclear how many, if any, of those people have had cases referred to USCIS for an asylum claim.
The new border policy gives “asylum applicants a negligible chance of receiving protection in the United States,” under the current system, said Sarah Pierce, a policy analyst for the US Immigration Policy Program at the Migration Policy Institute. “This administration has completely abandoned their responsibilities to protect vulnerable populations in favor of a policy that provides questionable safeguards against coronavirus.”
The standard of proof differs for asylum claims vs. claims under the Convention Against Torture – an international obligation. To make a claim under the torture convention, an applicant must demonstrate a more than a 50% chance they will be subject to torture, additionally, an applicant is trying to show that they will endure torture – an extreme and inhumane punishment that must cause severe pain or suffering.
Typically if USCIS determines a migrant faces a likelihood of torture, immigration court proceedings will follow for a final determination on the case. In fiscal year 2018, the most recent year available, 1,334 Convention Against Torture applications were accepted by the Department of Justice Executive Office for immigration review and 25,964 were denied.
The Department of Homeland Security, which oversees US immigration agencies, will “promptly return aliens home in order to prevent the spread of COVID-19 unless they express a fear of return to their home country,” a DHS spokesperson said in a statement.
If a migrant expresses a fear of return home, “that claim will be promptly heard and considered in accordance with all applicable laws, policies, and regulations,” the spokesperson added.
Earlier this month, acting CBP Commissioner Mark Morgan suggested the coronavirus-related measures would continue to stay in place, even as the United States moves toward re-opening.
“From a public health perspective, it has been determined that still is a risk from our borders,” Morgan said, referring to the increasing numbers of coronavirus cases and deaths in Mexico.
CNN’s Priscilla Alvarez contributed to this story.