ICE Deportations: More Flights, Less Rights

ICE officials prepare for one of the “repatriation” flights to Mexico City.

Newly-released documents about a controversial U.S. program that forces deportees aboard flights to Mexico City show that in 2012 U.S. and Mexican negotiators clashed over the rights of migrants drawn into the initiative and the U.S. push to make participation compulsory for certain kinds of deportees. Mexico also worried about “appearing ‘complicit’” with U.S. deportation policies and feared that human rights groups would accuse them of forcing “individuals to be repatriated to the interior against their will.”

U.S. Immigration and Customs Enforcement (ICE) re-launched the initiative last week, just as temperatures began to peak in the Arizona desert. Unlike previous iterations, where migrants could opt out of the program, participation is now obligatory for those apprehended inside certain sectors and who meet certain criteria. ICE officials also declined to provide information about the cost of the program.

But declassified documents show that in the nine years since the program first got underway what is now being called the Interior Repatriation Initiative (IRI) has proven to be a very costly solution to a vexing policy problem: how to safely deport Mexican migrants without leaving them in the dangerous and inhospitable border zones just inside Mexico. The U.S. has touted IRI as a more humane approach to deportation that breaks the cycle of recidivism and protects vulnerable migrants from drug gangs, human traffickers, and the harsh northern desert environment.

But is a program that forces migrants to relocate to the Mexican capital, often against their will, an appropriate response to these well-founded concerns? And is such a costly program sustainable over the long term?

Just a couple of weeks ago, a top ICE official described the plan to members of a congressional subcommittee:

This initiative is designed to reduce recidivism and border violence by returning Mexican nationals to their cities of origin. In those locations, there will be a higher likelihood that they will reintegrate themselves back into their communities, rather than fall victim to human trafficking or other crimes in Mexican border towns.

The first iteration of the program was launched in 2004 in the Border Patrol’s Tucson Sector (Arizona) as the Mexico Interior Repatriation Program (MIRP). Over the next four seasons the program was marked by very high costs and low participation rates. Nearly 40% of seats were left vacant on the expensive charter flights for the first three years of operation, according to a March 2007 ICE memo. Fewer than 2,000 migrants “volunteered” for the program over the first four years of operation (2004-2007) at a total cost of over $50 million (SEE NOTE, below). Over $3 million was spent on unused seats in 2007 alone, according to a 2009 ICE memo.

But the addition of two new punitive U.S. deportation programs in 2008 caused a dramatic increase in the number of migrants who opted for MIRP, according to the ICE memo. Operation Streamline, introduced in 2008, made criminal prosecution mandatory for all illegal entries in Arizona. A second initiative, the Alien Transfer Exit Program (ATEP), intentionally returned migrants to parts of Mexico far from the spot where they were apprehended. Faced with these options, many migrants “opted for voluntary removal” under MIRP “rather than face criminal prosecution,” according to the ICE memo. In other words, migrants could still opt out of MIRP, but the excessively punitive nature of those programs made MIRP the de facto method of deportation. The 2008 surge in MIRP participants turned the program around and led ICE to charter additional flights for that year.

ICE’s own statistics bear this out. The number of migrants deported through the MIRP program jumped dramatically in 2008, the year that Streamline and ATEP got underway. The vast majority of MIRPs that year were through the Border Patrol’s Tucson Sector, accounting for more than 18,000 deportations in 2008 and 2009.

MIRP/IRI also depends a great deal on the cooperation of the Mexican government, which, among other things, must cope with the influx of the “repatriated” individuals once they reach the airport in Mexico City. Mexicans officials “raised vociferous concerns” about the MIRP program in 2008, according to the 2009 ICE memo, arguing that the addition of Streamline and ATEP “resulted in perceived erosion of the voluntary nature of the MIRP program.” In a letter to the Department of Homeland Security from July 2008, the Mexican ambassador to the U.S. complained that the U.S. had violated the bilateral agreement on MIRP. He pointed out that at least three Mexicans recently apprehended in Arizona had been “sent laterally to Nogales” for deportation to Mexico under ATEP. The ambassador said that the U.S. had agreed not to apply lateral repatriation to individuals apprehended in the sectors where MIRP was operational.

Another 2009 ICE memo addressed other Mexican government concerns about MIRP:

[T]he Government of Mexico (GOM) has deep sensitivities about appearing ‘complicit’ in United States Government (USG) repatriation programs. Current Mexican policy considers any attempt to restrict or compel the movement of Mexican nationals within the geographic boundaries of Mexico as unconstitutional. For this reason, MIRP is the only formal U.S.-Mexico agreement that allows repatriation into the interior of Mexico. Given this background, MIRP receives substantial scrutiny and is very closely monitored at the highest levels of the GOM.

In early 2012, the U.S. and Mexico renegotiated the terms of what is now called the Interior Repatriation Initiative. Two big sticking points in the negotiations are highlighted in a series of emails between ICE officials on February 20, 2012, just a week before DHS secretary Janet Napolitano was scheduled to travel to Mexico City to sign the IRI agreement. The U.S. sought to force non-criminal deportees into the revamped program, while Mexico’s foreign ministry (SRE) insisted that the program remain voluntary for non-criminal deportees. Mexico also wanted to end the program in November 2012, at which point a new Mexican president would take office. “This is ridiculous,” said ICE director John Morton in one of the email messages. “If the Mexican position is accurately portrayed, I cannot agree to it.”

Another ICE email explained Morton’s position:

As I expected, he [Morton] will not agree to making participation voluntary for non-criminals. It doesn’t make sense for our logistics, particularly the expanded reality of ATEP, and it doesn’t comport with the underlying principal [sic] of the program, which is to make repatriation more humane and safer for the aliens being returned. We spent a lot of time on this with the GoM the other day and proposed language that would create a presumption of universal participation with an exception for special circumstances. Hopefully this can be a work around for the issue.

One of the ICE emails said that Mexico’s opposition to mandatory participation in the program was based on fears that it would feed criticism that IRI violated migrant rights:

SRE’s concern, as it is explained to me by the agency negotiators is the position they believe will be taken by NGOs and Human Rights Groups, which would accuse the GoM of agreeing to force individuals to be repatriated to the interior against their will.

ICE director John Morton insisted that the Memorandum of Coordination (MOC) exclude any reference to the deportee’s “right” or “option” to contact the Mexican consulate. The agency’s legal affairs bureau had pushed for language clarifying that IRI participants be provided with information regarding their “right” to consular notification. To which Morton responded: “ICE will provide Consulate Notification, not mention option or right.” Although one email indicates that ICE’s legal team decided that it could “live with” the use of the word “option,” the final, signed document refers to the “right to consular notification” (“derecho de notificación consular”).

Less clear are what aspects of the February 2012 agreement have been incorporated into the 2013 program. Is the new Mexican president, Enrique Peña Nieto, less sensitive about “appearing ‘complicit’” with U.S. immigration enforcement? Do migrants who are now forced into the program retain the “right” to consular notification enshrined in the 2012 MOC? Is the “presumption of universal participation” articulated by the former ICE director a bid to protect migrants or to fill seats on expensive IRI charter flights and make the program more cost effective?

NOTE: $50 million is a conservative estimate based on actual cost figures for 2004, 2005, 2006 and 2008, when costs ranged from $10-15 million per year. At this time, we do not know how much the MIRP program cost in 2007.