The following summarizes findings and recommendations for Immigration reform by Human Rights Watch. The report documents abuses by US Border Officials through the analysis of recently released, internal Department of Homeland Security documents the organization accessed via the Freedom of Information Act (FOIA).

In 2017, a US Border Patrol agent kneed a woman in the lower pelvis, leaving bruises and pain days later, according to her statement to a government official screening her asylum claim. In a separate incident that year, a Border Patrol agent or Customs and Border Protection (CBP) officer forced a girl to undress and then inappropriately touched her. In 2018, a CBP officer hit another asylum applicant so hard he was knocked unconscious and suffered brain swelling. That same year, an officer wearing a green uniform, consistent with those of the Border Patrol, asked an asylum applicant to give him oral sex in exchange for being released from custody. Another asylum applicant was bitten in the testicle by a Border Patrol service dog and denied medical treatment for about one month and ultimately had to have his testicle surgically removed. In 2019, CBP officials appeared to withhold food from a man in a freezing cold holding facility until he agreed to sign a paper that he did not understand.

These are just some of the allegations of abuse catalogued in internal US Department of Homeland Security (DHS) reports received by Human Rights Watch on September 24, 2021 via the Freedom of Information Act (FOIA).

The internal reports include testimony and descriptions of testimony regarding over 160 cases of misconduct and abuse of asylum applicants at the hands of officers within several DHS components, particularly CBP officers and Border Patrol agents. The records, though heavily redacted, demonstrate that asylum officers within US Citizenship and Immigration Services (USCIS), another component of DHS, have repeatedly provided internal reports on allegations of assault, sexual abuse, due process violations, denial of medical care, harsh detention conditions, and dehumanizing treatment at the border.

The FOIA records include what appears to be an internal USCIS tally of 27 “possible CBP and ICE [US Immigration and Customs Enforcement] Due Process Violations” from 2017 to 2018, many of which describe officials preventing would-be asylum seekers from lodging claims or compelling them to sign papers they did not understand. One, for example, says the “applicant testified that she told the immigration officers that she was afraid to return. They wrote down that she said she was not. The applicant stated that the immigration officers did not tell her what she was signing when they typed in her signature.”

On September 28, Human Rights Watch provided DHS with summaries of 11 cases of abuse detailed in the FOIA documents, with a request for information about what, if any, investigations, or disciplinary actions occurred arising from the allegations. On October 12, Human Rights Watch provided DHS with additional details of concerns raised in the internal reports over violations of due process and dehumanizing treatment with a request for information about what, if any, training, investigations, or disciplinary actions occurred because of the allegations. At time of writing, DHS had not responded to either request.

Evidence that the nation’s largest federal law enforcement agency, CBP, suffers from serious transparency, oversight, and accountability deficits has been mounting for years. A 2019 report from the DHS Office of Inspector General found that 47 percent of CBP employees surveyed did not believe officials at all levels were held accountable for their conduct. In a 2018 affidavit, CBP’s former deputy assistant commissioner for internal affairs, James Wong, described CBP leadership as “reluctant to hold agents and others within the agency accountable for their actions, including if they were involved in criminal activity.”

The documents Human Rights Watch obtained via FOIA relate to internal reports sent primarily between 2016 and 2021 that include serious allegations, in some cases of criminal conduct. For example, the records show that a supervisor in the San Francisco Asylum Office communicated the following internally at DHS: “AO [asylum officer] [redacted] brought a serious matter to our attention just now: one of the applicants she interviewed today has a young child who was sexually molested by someone we believe to be a CBP or Border Patrol Officer. They were apprehended by Border Patrol, sent to the Ice Box [a border holding cell], then this occurred: the young girl was forced to undress and touched inappropriately by a guard in the Ice Box wearing green, with the nametag [redacted].” The documents do not record how DHS responded to these allegations.

Under USCIS policy, employees have a duty to report misconduct internally to DHS or federal government oversight bodies. That includes reporting violations or suspected violations of federal, state, and local laws, as well as agency rules, regulations, and policies. While the records do not contain information on whether any of the reports of abuse were investigated or any form of disciplinary action was taken, they reveal that in some cases USCIS employees were confused about proper reporting procedures for border abuses, especially where such reports should be sent.

For example, the records include an internal email from 2019 in which an asylum officer describes “alarming” evidence contained in an applicant’s file. The officer described corroborating in interviews with the applicant that a border agent intimidated an asylum applicant and failed to correctly record their fear of return to their country of origin or personal information. “I don’t know if this is an issue we can bring up to HQ or if there is even anything they would be able to do about it,” the email reads. “I just didn’t want to be the only one to know a thing.”

Three former asylum officers and Michael Knowles, President of the American Federation of Government Employees Local 1924, which represents asylum officers, told Human Rights Watch that based on their experience they have little expectation DHS will act on reports of CBP or ICE misconduct. They also said USCIS management did not uniformly enforce or encourage compliance with their reporting mandate, though the requirement is mentioned in asylum officer training.

The reports of misconduct and abuse contained in the documents appear to have been sent to USCIS supervisors or headquarters, the USCIS Office of Security and Integrity, the DHS Office for Civil Rights and Civil Liberties (CRCL), and the DHS Office of Inspector General (OIG). In many cases USCIS chose to redact sections of the documents containing crucial details such as dates, locations, and the nationality of the person who suffered abuse and omitted appended documents from the production. Human Rights Watch obtained the documents after litigation in federal court over a request it initially filed in 2015 and is considering a further appeal to press the government for greater transparency, including limiting redactions to those permitted under the FOIA statute.

The FOIA documents paint a picture of DHS as an agency that appears to have normalized shocking abuses at the US border. The US should take urgent and sustained action to stop such abuses by transforming migrant border reception and DHS accountability practices, including ensuring redress for migrants and asylum seekers who have been harmed. This should include investigations by Congress and other federal agencies, DHS reviews of its accountability and discipline practices, and the institution of more robust oversight and transparency policies.

Newly Obtained Documents Reveal Urgent Need for Justice, Reform

Key Recommendations

To the US Congress:

• Investigate allegations of misconduct and abuse documented in internal DHS reports, including those described in this report;
• Investigate DHS’ response to internal and external complaints of border abuses. The review should include an assessment of the agency’s capacity to ensure transparent, prompt, and effective investigation, disciplinary action, and redress with respect to such complaints. It should encompass the conduct and capacities of DHS internal oversight bodies, the role of Human Resources at CBP in imposing discipline, and the role of training, culture, and transparency practices;
• Allocate federal funds to support DHS in taking necessary measures to ensure accountability, redress, and culture change toward an embrace of transparency and respect for the right to seek asylum;
• Allocate federal funds to build appropriate capacity for short-term reception of asylum seekers at the border in safety and dignity on the way to their destinations in the US, with attention to humanitarian needs and core rights, including access to personal hygiene products; toilets; potable water; regularly served, culturally- and age-appropriate food; clothing that is clean and warm; blankets; beds; attorney access; free phone calls; medical and mental health services, and access to ongoing case-management services.

To the Administration of President Joe Biden:

• Bring the full resources of the federal government to bear to ensure accountability in US border operations, including by tasking a separate federal agency such as the Department of Justice to investigate rights violations at the border;
• Reject the “prevention through deterrence” enforcement strategy, which includes policies that limit the entry of asylum seekers and migrants at ports of entry and propel them into hostile terrain by concentrating enforcement in populated areas, and instead create more welcoming border management rooted in human rights and dignity that meets the humanitarian and protection needs of newly arriving people while ensuring order and efficiency.

To the Department of Justice:

• Investigate internal and external allegations of abuse by government officials at the US border and consider an investigation of a pattern and practice of rights violations by CBP and the Border Patrol.

To the Department of Homeland Security:

• Investigate the allegations of misconduct and abuse documented in internal reports, including those described in this report;
  Conduct an immediate review of DHS and CBP oversight, complaint, and disciplinary mechanisms, including appropriate referrals for criminal conduct, and publicly report the findings;
• Address persistent failures identified by the DHS OIG in implementation of discipline in CBP, even when a policy violation is found, including localized discrepancies, unchecked incentives to protect colleagues in the field and lack of outcome tracking;
• Review and strengthen protections against retaliation, deportation or expulsion of migrants who report abuses;
• Strengthen external and civilian oversight and engagement in reform efforts, including by incorporating independent, external, and directly impacted individuals and groups into the newly-announced DHS Law Enforcement Coordination Council, and other bodies aimed at improving CBP and law enforcement conduct at DHS.

Human Rights Watch’s FOIA Request and Internal DHS Reporting Structures

This report is based on records obtained by Human Rights Watch in response to a request filed under the United States Freedom of Information Act (FOIA). Human Rights Watch submitted its request together with the American Immigration Council on November 17, 2015, seeking records held by USCIS concerning alleged due process violations or other alleged misconduct by CBP impacting asylum seekers.

In late 2016, USCIS produced 110 documents totaling 229 pages at what it purported to be the conclusion of its review. One hundred-seventy-five of those pages were significantly or fully redacted. Less than a quarter of the produced pages were released in their entirety.

Represented by the law firm Nixon Peabody, Human Rights Watch sued USCIS under FOIA.[1]

The lawsuit alleged that the documents USCIS originally produced were inadequate because they were over-redacted and because the original FOIA request sought documents from October 1, 2006 through December 13, 2016, but the government failed to provide any records dated between 2006 and 2012. In 2018, Human Rights Watch received a heavily redacted excel spreadsheet that appears to categorize 1,043 sworn statements of people in expedited removal in 2013 and 2014 as showing “no apparent problem” or indicating potential due process concerns caused by CBP.[2]

A March 2021 settlement of Human Rights Watch’s claims required USCIS to conduct a new search for updated responsive documents. On September 24, 2021, USCIS provided to Human Rights Watch 224 pages containing 135 separate records in which asylum officers recorded misconduct and abuse, often identifying the abusive individual as an official working with a specific agency (often CBP or Border Patrol), or as an official wearing a green (olive green is the official color of the Border Patrol uniform)[3] or black uniform (black is often worn by ICE officers),[4] or as an official working in a specific named facility known to be under the administration of a particular component. The production also contained four copies of a spreadsheet summarizing a compilation of 27 reports of “possible due process” violations by CBP and ICE.

Under the expedited removal process, US law requires that when an individual apprehended at the border or near a point of entry expresses a fear of returning to their country of origin, CBP refer that individual to USCIS asylum officers for a “credible fear interview,” which determines whether the individual might qualify for asylum or other protection.[5] Most of the records in the FOIA production appear to be based on information reported to asylum officers by asylum applicants in these interviews. “Part of your job [in a credible fear interview] is to create an environment where someone is telling you very personal stuff,” a former asylum officer told Human Rights Watch.[6]

According to a description of a 2015 USCIS management directive contained in the FOIA documents, USCIS personnel are required to internally report known or suspected government misconduct including “violations or suspected violations of federal, state, local laws, agency rules, regulations, and policies.”[7] The management directive provides USCIS staff members with the options of reporting to the USCIS Office of Security and Integrity’s (OSI) Investigations Division by using an online reporting form, or to the DHS Office of Inspector General (OIG) through the OIG hotline web page.[8] The reports contained in the records obtained by Human Rights Watch appear to have been sent to USCIS supervisors or headquarters, the USCIS Office of Security and Integrity, DHS’ Office for Civil Rights and Civil Liberties (CRCL), and the DHS OIG.

Despite mandatory reporting, it is not clear how or whether DHS follows up on reports of misconduct or abuse at the border. On September 28, Human Rights Watch provided DHS with detailed summaries of the 11 cases of alleged abuse from the 2021 FOIA documents with a request for information about what, if any, investigations, or disciplinary actions occurred as a result of the allegations.[9] On October 12, Human Rights Watch provided DHS with details of the concerns raised about due process and dehumanizing treatment in the internal reports to DHS oversight bodies.[10] At this writing, DHS had not responded to either request.

A former asylum officer told Human Rights Watch she had advocated, ultimately successfully, in 2013 and 2014 for her office to collect and file reports of border abuse and misconduct, including systematic due process violations by CBP. Like many asylum officers, she is a licensed attorney. “My initial point was that as a member of the bar we are really ethically obligated to report this stuff even if upper management didn’t seem to care too much.” She continued:

I never heard that [reports/complaints we submitted] were followed up on or investigated. I inquired several times with my supervisor at the time … and he said that HQ Asylum has a huge database of these complaints about ICE/CBP officers and that they were trying to figure out what to do with them.[11]

A second former asylum officer told Human Rights Watch she interviewed applicants for credible fear for approximately a year and a half and submitted over a dozen reports of CBP abuse during that time.[12] She said:

When an applicant tells you about abuse during an interview, officers have a duty to take that information and then file a report with OIG… Many of us also had questions in our interview templates where we’d ask specifically how they were treated by CBP and ICE. It wasn’t required. But it’s something those of us concerned with this routinely did… It’s really surreal when are you taking down a persecution claim from the applicant’s country of origin, and you are simultaneously transcribing one from your own government.[13]

The former officer noted that out of the over a dozen reports she submitted, she “only ever got called about it once [from OIG], asking for more information.” Michael Knowles, President of the American Federation of Government Employees Local 1924, which represents asylum officers, told Human Rights Watch that when a USCIS employee reports alleged misconduct, waste, fraud, or abuse investigators are supposed to follow up and take a sworn statement from the complainant, but the complainant may never learn of the results of any investigation.

Another former asylum officer interviewed by Human Rights Watch estimated that asylum officers learn of border misconduct or abuse in a significant number of the credible fear interviews they conduct, though relatively rarely do they file internal reports.[14] “A lack of investigations or controls normalizes the abuse” at the border, the former officer said.

DHS failure to act on or investigate external complaints of CBP abuses has been widely reported.[15] In March 2021, the ACLU and the ACLU of Texas published a list of 13 unresolved external complaints about CBP filed with the DHS OIG between 2019 and 2020.[16] The external complaints highlighted by the ACLU cover similar ground as the internal complaints Human Rights Watch obtained via FOIA, including dangerous and inhumane conditions in Border Patrol detention, routine failures to provide necessary medical care, verbal abuse, and denials of the right to seek asylum. Similarly, the National Immigration Project of the National Lawyers Guild released a compilation of dozens of complaints alleging CBP and ICE misconduct in which DHS either failed to investigate or act to provide redress.[17] The Kino Border Initiative (KBI), a binational nongovernmental organization operating in Nogales, Arizona and Nogales, Sonora, Mexico, described in a February 2021 letter to DHS Secretary Alejandro Mayorkas 63 complaints about CBP misconduct and abuse that the OIG acknowledged receiving since 2017, only 14 of which “received definitive results” from the oversight body.[18]

A 2019 report from the OIG found that DHS “does not have sufficient policies and procedures to address employee misconduct,” resulting in localized discrepancies, unchecked incentives to protect colleagues in the field, and lack of outcome tracking.[19] The same report found that 47 percent of CBP employees surveyed did not believe officials at all levels were held accountable for their conduct. In a 2018 affidavit, CBP’s former deputy assistant commissioner for internal affairs, James Wong, described CBP leadership as “reluctant to hold agents and others within the agency accountable for their actions, including if they were involved in criminal activity.”[20]

On September 29, DHS announced the formation of the internal Law Enforcement Coordination Council (LECC) “to comprehensively assess a broad range of law enforcement matters.”[21] According to the announcement, the LECC will form subcommittees focused on use of force policies and training. No specific focus on improving accountability and redress is mentioned.

In the context of border abuses, key sources of information on abuses are migrants and asylum seekers themselves who are often pursuing an arduous legal process to gain asylum in the United States, and are ill-equipped and disincentivized to make official complaints or bring legal action against US government officials for abusive treatment. They also may be transferred, deported, expelled, or released in relatively quick timeframes. On September 22, DHS Secretary Alejandro Mayorkas promised a swift disciplinary investigation into the “extremely troubling” footage of Border Patrol agents on horseback wielding long reins and chasing Black migrants from Haiti taken on September 19 as well as internal oversight of the agents’ conduct at the Del Rio migrant camp.[22]

On September 24, four Black-led immigrant rights organizations filed a complaint with DHS CRCL about rights violations in Del Rio, Texas “imploring” DHS “to act with urgency to ensure that victims and witnesses of CBP misconduct and their families are not expelled, deported, or returned to Haiti, Mexico, or any third countries” so that they remain available to provide information to investigators.[23]

As of October 6, the US had deported or expelled over 7,500 migrants to Haiti over the 17 days since the events in Del Rio, including some who told reporters they were on the banks of the Rio Grande when Border Patrol deployed on horseback.[24] At time of writing, DHS had not released any outcome of a probe, which Mayorkas said would “be completed in days – not weeks.”[25]

Reports of Border Abuse: Physical Abuse During Apprehension and Detention

Multiple court cases, investigative reports, and media accounts have alleged that CBP, Border Patrol, and ICE officers perpetrated physical abuse against migrants.[26] The Southern Border Communities Coalition, an association of 60 organizations from the US border region, has tallied 55 deaths since 2010 related to agent or officer use of force in encounters with CBP personnel.[27] Efforts to hold agents accountable for excessive use of force have failed or faltered, even in the context of fatal incidents.[28]

The FOIA records obtained by Human Rights Watch and analyzed for this report contain multiple incidents of serious physical abuse of migrants and asylum seekers during arrests and while in the custody of Border Patrol, CBP, and ICE, including during periods of detention in CBP lockups.

For example, according to the FOIA records, a USCIS officer reported receiving testimony that on April 4, 2017, a woman was apprehended by the Border Patrol near Mexicali. The woman’s nationality is not included in the records. An asylum officer in Washington, DC sent an internal report on the testimony. According to the asylum officer’s record of their interview, this asylum applicant stated:

I was harmed and mistreated and beaten by a border patrolman. … So after he caught me, and threw me to the ground in a very aggressive way. And he pulled me up three or 4 times, and kept slamming me on the ground. He grabbed me by the hair. And, when he did that, he drew blood from my ear and my hand. And then he cuffed me. And I had quite a few bruises after that.[29]

In this same case, in response to the asylum officer’s question, “Did he strike you in your belly?,” the applicant responded, “Yes, he kicked me with his knee in the lower pelvis, on my belly. He hit me, below the rib cage. It hurts today.”[30]

According to the FOIA records, an asylum officer reported that an applicant testified:

[T]hat he experienced undue physical harm by a CBP officer. He believes this occurred at the San Ysidro station. The applicant testified that after he was apprehended EWI [“entered without inspection”] by CBP, upon being take[n] to the station for processing, [on December 17, 2018] he was hit and pushed into the wall by the back of the neck. His face hit and was rubbed against the wall. The CBP officer told him to ‘Shut up,’ although the applicant had not been saying anything. The applicant was so severely hit and pushed, that blood clots appeared from his nose several days after the incident and he suffered pain in his nose and head for over two weeks… The applicant stated that he believed cameras at the facility recorded the incident and that it was witnessed by other individuals.[31]

The applicant describes physically the alleged perpetrator and appears to name the individuals who witnessed this treatment, though those names are redacted from the documents released under FOIA.

In a separate incident, another asylum applicant is reported to have required medical care after he was apprehended by CBP on September 4, 2018. According to a record made by an asylum officer about an applicant he interviewed:

[An] immigration official hit him. … The applicant did not know the officer’s name. He said he was kneeling at the time after running and the officer came from behind and hit him, knocking him unconscious for 20 to 40 seconds. The applicant stated that he was taken to the hospital and given an MRI and an X-ray. He testified that doctors noted he had brain swelling. Counsel for the applicant informed me that an official complaint had been filed.[32]

No record of this official complaint is included in the FOIA documents.

Another report involved verbal and physical abuse by a Border Patrol agent on horseback. According to a FOIA record dated September 19, 2019, an applicant from Honduras testified to an asylum officer that he was subjected to mistreatment by a Border Patrol agent. The asylum officer reported what the applicant said:

I asked for water and he said you are a fucking moron. You are not in your country you cannot come here and give me orders. He told me I enjoy when I capture people like you. You are not gonna stay here, you’re gonna go back I’m gonna send you back and be glad I don’t have the dogs with me. . .that same officer. He kicked me when I turned myself in and he got down from the horse he said what do you want and then (makes sound) he kicked me close to my back.[33]

Weapons were involved in some reported incidents of physical abuse. In a case detailed in the FOIA records, a USCIS staff member reported to “HQ” that an asylum applicant testified to an asylum officer that:

[H]e was mistreated at the Florence Staging Facility in Florence, AZ. The applicant testified that a man wearing a black uniform, who helps [B]order [P]atrol officers, put a gun to his head and told the applicant to ‘shut up or I’ll shoot you.’[34]

The USCIS staff member states in the internal report that the asylum applicant decided to withdraw his claim for protection “due to the mistreatment at the Florence Staging Facility.” Immigration lawyers working at the Florence Staging Facility told Human Rights Watch that officers working for Immigration and Customs Enforcement (ICE), another subagency of DHS, use black uniforms in the facility.[35]

A gun was also used to physically threaten an asylum seeker from El Salvador, according to a record obtained from USCIS in its initial response to Human Rights Watch’s FOIA in 2018. In that case, the asylum applicant reported to an asylum officer that when he was apprehended, “a Border Patrol officer pushed an unloaded pistol into his stomach and pulled the trigger several times and threatened him.”[36] The asylum seeker reportedly told the asylum officer that his cousin witnessed the event.

Sexual Abuse

CBP, Border Patrol, and ICE officers have been accused, and in a small number of cases, criminally tried for sexual abuse.[37] The FOIA records analyzed for this report contain asylum officers’ reports of sexual abuse during apprehension and detention of asylum seekers and migrants. According to the FOIA records, a supervisory asylum officer in the San Francisco Asylum Office reported:

AO [redacted] brought a serious matter to our attention just now: one of the applicants she interviewed today has a young child who was sexually molested by someone we believe to be a CBP or Border Patrol Officer. They were apprehended by Border Patrol, sent to the Ice Box then this occurred: the young girl was forced to undress and touched inappropriately by a guard in the Ice Box wearing green, with the nametag [redacted].[38]

The supervisory asylum officer reporting this case wrote: “Please let us know if there is any other information you need from the applicant, beyond what is in the attached notes.”[39]

According to another FOIA record, a female applicant testified to an asylum officer that a female officer:

[P]ushed me, and she told me that l have to open very wide, and she touched my intimate [illegible] hit me there with a lot of force, and she touched me really hard. I said “I don’t understand…how am I going to hide something in my intimate parts?”[40]

The documents contain an excerpt from this female asylum applicant’s I-213, naming the primary CBP officer involved in her processing at the San Ysidro Port of Entry on September 20, 2015 at approximately 4:45 pm.[41]

In a third case of alleged sexual abuse contained in the FOIA records, an asylum officer reported:

Mr. [redacted]…was solicited with sex by an immigration officer on 12/6/18 while being transported alone in a government vehicle from the border with Mexico and California to the ‘Ice Box’ detention center in San Ysidro, CA. … The officer told Mr. [redacted] that if he gave him sex, he would be set free. When Mr. [redacted] refused the proposition, the officer swore at him in English and said that he would be locked up as punishment. Mr. [redacted] was also propositioned with sex by an officer on 12/14/18 at 5 pm while in detention. … The officer was performing body searches for the detainees and told the applicant to wait behind the others. He grabbed Mr. [redacted] shirt and asked him if he wanted to give him oral sex. He said that there were no cameras in the area. Government records indicate that the applicant would have been at the San Luis Regional Detention Center during this incident.[42]

The report contained physical descriptions of both officers involved in this alleged abuse.
Discriminatory and Dehumanizing Treatment

CBP’s culture of cruelty and dehumanization has long been documented by external observers.[43] One video from Border Patrol’s deployment of horses against migrants in Del Rio, Texas shows an agent telling a Haitian migrant, “This is why your country’s shit!”[44]

Several of the FOIA records describe discriminatory and intimidating language and treatment of asylum applicants by US border and immigration officials. In one record, a USCIS staff member describes a female asylum applicant from El Salvador as having “testified really clearly how she was harassed by our colleagues at the border.” An excerpt from her statement is included:

[W]hen I got to the cooler [or “hielera,” a slang phrase for border holding cells], they called me a whore and said I came to take what was theirs. … When I came here and crossed the border, they said damn Salvadorans, damn you people.[45]

Several complaints contained in the FOIA records indicate that DHS staff use words and phrases like the “dog pound” or “kennel” to describe CBP holding cells.[46] They also describe verbal abuse, for example, DHS staff comparing migrants to vermin. An asylum applicant from Honduras described such dehumanizing verbal abuse at a CBP facility in Chula Vista: “[T]hey called us sons of bitches, dogs, parasites, trash. Things like that.”[47] Another asylum applicant from Honduras whose gender is not indicated in the documents told an asylum officer of the dehumanizing language agents used:

[I]n the dog pound, they treat you like you are worthless, like you are not a human. … If we laid down and didn’t get up quickly they would kick us with their feet, and they told us that we gave birth to rats, and when we were eating if crumbs would fall they would say we look like rats.[48]

Abusive Detention Conditions, Denial of Food, Medical Care

The conditions of detention in CBP holding cells are notoriously inhumane. In a 2018 report, Human Rights Watch documented how CBP used border holding cells, also known as “the icebox” or “the freezer,” to subject children and families to inhumane treatment in violation of CBP’s own policies.[49] The documents obtained via FOIA include harrowing accounts of harsh detention conditions and the denial of food and medical care to asylum seekers.

According to a document dated September 19, 2019 contained in the 2021 FOIA production, an applicant from Honduras testified he was held in the McAllen “icebox” and for 38 days in Kingsville in a cell for 40 people. The applicant said:

I was there for 10 days sitting, I couldn’t move because it was 67 of us in that cell. We said we needed toilet paper and water and told us to drink water from the sink and we reported the animals, the scorpions in there. When we reported it, they would tell us you would be better off at home in your country you decided to come here. The mistreatment was psychological. They would tell us that we would spend a year there if possible and there were times we would just get a piece of bread, maybe every 8 hours, that’s all we would get to eat. In the area, there were scorpions, ants, ticks, fleas and they would tell us that it was fine, it was because of our own stink of being there 45 days.[50]

The FOIA records also contain evidence that Border Patrol officers withheld food as a tool of coercion. For example, an asylum officer conducting credible fear screenings reported to DHS investigators that he or she received testimony that Border Patrol withheld food to coerce detained people into signing documents in English that were not explained to them. The asylum officer included identifying information of the Border Patrol agent who interviewed the applicant who reported this treatment, though the name of the agent was redacted from the FOIA production. According to the testimony, an Ecuadorian man and an asylum officer had the following exchange about Border Patrol misconduct that took place when the applicant was at the Border Patrol’s Laredo Centralized Processing Unit in Laredo, Texas, at some point between March 2, 2019, and March 10, 2019:

They had me in the cooler for 8 days. … [Q:] Did they explain to you what you were signing? [A:] No, they just gave me a paper and the whole paper was in English and I don’t know English. [Q:] I’m just trying to understand, did they just ask you to sign things without explaining, or do you feel they were threatening you by withholding food until you signed? [A:] I didn’t know anything about anything. They just told me to go out and sign and get food. … [Q:] Do you feel you were being threatened in some way? [A:] Yes I don’t know how else to call it. …I just felt I was dying in the cooler. I just signed to get my food.[51]

The records also include evidence that Border Patrol and ICE personnel failed to ensure asylum applicants could access necessary medical care, with devastating consequences. According to the FOIA records, a male asylum applicant who had been arrested by Border Patrol in the desert near Tecate, California, on June 19, 2018, “was assaulted by a border patrol dog listed in the Form 1-213 as ‘Service Canine’ [redacted] under the control of U.S. Border Patrol Agent [redacted].” The asylum officer’s record continues:

Based on the testimony of the [applicant], it appears that the dog inadvertently severely injured the testicle of the [applicant]. The [applicant] was subsequently taken into custody, and based on his testimony, was transferred to U.S. CBP offices in Chula Vista, California. There, the applicant complained to officers about the severe pain he was experiencing in his testicle for the next approximately 23 days. The [applicant] was told by officers that he was going to be transported to ICE custody, and that if ICE had a doctor, the doctor could see him there, but there was no doctor to see him in the facility where he was located. Government records indicate that the [applicant] was then transferred to ICE custody at the San Luis Regional Detention Center in Arizona on 07/10/2018. The [applicant] testified that once he arrived in Arizona, he again complained of severe pain in his testicle and was told to fill out a form to be seen. He described that he filled out the form at least 10 times over the course of 10 or 11 days, until finally his medical condition resulted in a fever and headache so bad that he showed officers his testicle in order to get more immediate treatment. The applicant was then taken to the hospital, where his testicle had to be surgically removed. … The [applicant] complained of severe pain from an injury inflicted by an agent of the U.S. Border Patrol, albeit unintentionally, and was then subjected to over a month of negligence on the part of DHS agencies after repeatedly reporting a medical condition. This negligence resulted in the loss of a testicle for the [applicant].[52]

Intimidation of Asylum Seekers and Denial of Due Process

For years, Human Rights Watch and others have documented intimidation tactics used by Border Patrol and CBP officers against asylum seekers, often in an apparent effort to pressure asylum seekers to abandon their claims.[53] Human Rights Watch and many other external reporters have also documented CBP’s failure to record legitimate fear claims in the expedited removal process.[54] Under the expedited removal process, US law requires that when an individual apprehended at the border or near a point of entry expresses a fear of returning to their country of origin, CBP refer that individual to USCIS asylum officers for a “credible fear interview,” which determines whether the individual might qualify for asylum or other protection.[55] Despite CBP’s proactive duty to screen migrants it places in expedited removal for fear of return to their country of origin, in practice many credible fear referrals come to USCIS on an ad-hoc basis once an asylum seeker has left CBP custody and entered the custody of ICE, the agency responsible for more prolonged detention of migrants.[56]

Several of the records pertain to CBP’s intimidation of asylum seekers and failure to appropriately record fear claims in the expedited removal process. According to a record regarding a Honduran applicant for asylum,

The applicant stated that when he expressed he was afraid to return to Honduras, the [Border Patrol agent] told him that he doesn’t have the right to have asylum. That the government was not granting asylum, and not even women were receiving asylum. He was then told that he was going to be sent to a jail where they were going to rape him, and that he was told this because the applicant didn’t sign the paperwork the officer asked him to sign. The applicant stated that he didn’t sign because he thought it was papers to deport him, and it was in English.[57]

The reporting USCIS staff member included the name of the Border Patrol agent listed on the applicant’s paperwork in the description of this case and added,

Although I do not know the exact circumstances of the interview between the officer and the applicant, a threat of rape is a gross violation for refusing to sign paperwork that was not made clear to an applicant. Compounded by the fact that this applicant was in fact raped, which resulted in him fleeing his count[r]y, it is extremely disturbing that the officer acted with such insensitivity, and in my personal opinion, this is a serious act of misconduct.[58]

An additional record in the FOIA documents includes a complaint to the DHS Office of Inspector General on September 19, 2019, possibly regarding the same incident. It further specifies that the report relates to conduct by a US Border Patrol agent in Tucson, Arizona, on June 27, 2019. According to the summary included in the documents,

[A] CBP/Immigration officer advised an applicant in the credible fear process that it was okay if someone wanted to rape him because he was gay, and wasn’t that what he liked. The officer told the applicant that […] it would have been okay for them to rape the applicant. When the applicant attempted to read the officer’s name badge the officer covered the badge with his hand and said it was his word against the applicant’s.[59]

The FOIA production additionally includes an Excel file named “Possible CBP and ICE Due Process Violations” that appears to be an internal USCIS tally of 27 cases from 2017 to 2018. In a column entitled “Problem/issue raised by the applicant” USCIS staff recorded a series of accounts of asylum seekers who said CBP interfered with their right to seek asylum. These records refer to persistent inaccuracies and inconsistencies in the paperwork CBP completes for migrants in expedited removal, particularly Form I-867B. Form I-867B requires that the immigration officer ask and record the answer to the question, “Do you have any fear or concern about being returned to your home country or being removed from the United States?”[60] These accounts include the following (corrected for minor spelling errors):

Applicant claimed CBP never interviewed her and never asked her if she has suffered harm, fears she would be harmed, or if she is afraid to return to Guatemala. Applicant claims she did not sign anything at the time. The paperwork shows that CBP entered that the applicant responded “no” to questions about if she fears to return to her country.[61]
Applicant stated that she was told to sign papers in English without an explanation of what she was signing. Applicant claimed she was not asked if she fears to return to Honduras.[62]
Applicant claimed that CBP refused to let her speak. She told them she was afraid to return to her country and tried to tell them. I-867B lists the response as no to all four questions. Applicant claims CBP made her sign without explaining what she was signing.[63]
CBP wrote down that applicant was not afraid even though she stated the following: “Yes I did tell them that I was afraid and that I was also looking for a better future for my daughter. They asked if I was afraid of being tortured, extorted or afraid of the gangs, and my answer was no. That was all that they asked me.” Based on the applicant’s testimony, CBP asked different questions than the four on the I-867B and marked no under each question anyway.[64]
Applicant testified that she told CBP that she was afraid to return to her country and would be harmed if she returned. The I-867B reflects that she said no. The applicant claims that CBP “just said sign here and her[e] and here, and don’t worry because it has nothing to do with deportation,” rather than explaining what she was signing.[65]
Applicant testified that she told the immigration officers that she was afraid to return. They wrote down that she said she was not. The applicant stated that the immigration officers did not tell her what she was signing when they typed in her signature for the I-867B questions.[66]

The spreadsheet also notes eight cases in which asylum screening documents filled out by CBP indicate that the Border Patrol agent communicated with applicants in Spanish though USCIS records showed that the applicants were Indigenous language speakers and did not speak Spanish fluently.[67] In 2018, Human Rights Watch received a heavily redacted Excel spreadsheet that appears to categorize over one thousand sworn statements of people in expedited removal in 2013 and 2014 as showing “no apparent problem” or indicating potential due process concerns caused by CBP.[68] Of the 1,043 cases included in the spreadsheet, 389 were categorized under columns apparently referring to CBP’s administration of the Form I-867 interview questions entitled “not asked,” “too narrow,” “inappropriate,” “language,” and “BP did not record accurately.”[69] Only about 66 percent of the cases were categorized as showing “no apparent problems.”[70]

Acknowledgments

This report was researched and written by Clara Long, associate director in the US program. Thomas J. Rachko, Jr., senior coordinator in the US Program contributed to research and writing of the report. Alison Parker, US program managing director, edited, and contributed to research and writing. Emma Bredthauer, associate in the US Program, provided editorial assistance. The report was also edited by Bill Frelick, director of the Refugee and Migrants Rights division; Michael Bochenek, senior counsel in the Children’s Rights Division, Hillary Margolis, senior researcher in the Women’s Rights Division, Cristian González Cabrera, researcher in the LGBT rights program, and Ariana Sawyer, US Border researcher. Maria McFarland Sánchez-Moreno, senior legal advisor, provided legal review. Joe Saunders, deputy program director, provided program review. Travis Carr, senior publications coordinator; Fitzroy Hepkins, senior administrative manager, and José Martínez, administrative officer, produced the report.

Human Rights Watch extends its deep thanks for the pro bono legal assistance provided by the law firm Nixon Peabody and its attorneys, Matthew Richards, Karl Sung, Christina Fletes, Brianna Howard, Taylor Steele, and Sherene Tagharobi, without whom it would not have been possible to obtain the documents released under the Freedom of Information Act upon which this report is based. We also extend our gratitude to the courageous asylum applicants who, despite the difficult circumstances, spoke out about abuses they experienced.

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