Immigration Matters - 2019


From “Wait in Mexico” to “Remain in Mexico”

The Trump Administration's Evolving Immigration Policies at the Southern Border

By Rishi P Oza

The Trump Administration is implementing yet another immigration policy meant to address what it believes to be a “migration crisis along our southern border." In a memo dated December 20, 2018, [the now former] Homeland Security Secretary Kirstjen Nielsen announced the rollout of the “Migrant Protection Protocols," (MPP) referred to as the “Remain in Mexico" policy by both administration officials and critics alike. The MPP would require certain asylum-seekers arriving at the border to remain in Mexico while U.S. immigration courts process their cases. The policy will not apply to unaccompanied minors or to asylum-seekers from Mexico, according to government documents. Traditionally, migrants arriving at the southern border, or at any port of entry, have a legal right to seek asylum once they set foot on U.S. soil. In fact, an individual can only seek asylum if they are already in the United States. It is this aspect of asylum, physical presence in the United States, that the Trump administration continues to try to prevent, delay, or limit at the southern border.

The MPP is the successor to another more “unofficial" policy known as “metering." The “metering" of asylum-seekers essentially amounted to officials at the border telling arriving migrants that there is no more room for them on the other side of the border, forcing them to wait in Mexico for an indeterminate amount of time. These asylum-seekers were waiting days, weeks, and even months, just for the opportunity to apply for asylum. This arbitrary system of allowing certain people in and keeping others out led to even more chaos at the border, with thousands waiting at ports of entry in Mexico.

The administration's solution was to introduce the MPP, a new, official policy, with an apparent statutory basis in the Immigration and Nationality Act (INA). More specifically, in the December 20, 2018 memo, Secretary Nielsen announced that DHS, “consistent with the Migrant Protection Protocols (MPP)," would begin implementation of Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) on a large-scale in order to “address the migration crisis along our southern border." Secretary Nielsen stressed that the administration would “undertake these steps consistent with all domestic and international legal obligations, including our humanitarian commitments."

So how well is the Trump administration adhering to these obligations and commitments? First, there is a question as to whether DHS even possesses the authority to implement such a policy under the INA. This is one of the central issues in the ACLU's lawsuit filed on February 14, 2019. The INA section DHS cites to, 235(b)(2)(C), authorizes DHS to return to Mexico certain aliens arriving on land from Mexico, pending the outcome of their removal proceedings. However, this “return authority" does not appear to cover those migrants the policy is meant for – asylum-seekers. Migrants who arrive at the border without valid entry documents – a group that includes most asylum-seekers from Central America – are generally subject to expedited removal. Therefore, on its face it does appear that most of the asylum-seekers arriving at the border would fall within DHS's return authority under Section 235(b)(2)(C).

The ACLU complaint also alleges that the MPP violates the INA protections for establishing a right to apply for asylum and blocking the removal of individuals to a country where they would face persecution. Although the MPP does not apply to Mexican asylum-seekers, Central Americans can fear persecution in Mexico as well. The fundamental principle of international asylum law is that you can't return a migrant to a country where they are in danger of being persecuted, known as non-refoulement. It has been reported that migrants are not being asked during initial processing whether they are afraid of being returned to Mexico and instead they are required to volunteer that information on their own. If a migrant happens to bring up a fear of persecution in Mexico, agents are supposed to refer them to a USCIS asylum officer for an interview. Typically, during this initial assessment in the asylum process, a migrant has to only establish a “credible fear" of persecution in their home country, a generous standard. Under the MPP, however, a migrant has to establish that they are “more likely than not" to be persecuted if they're sent back to Mexico, a much tougher bar to meet.

The rollout of the MPP just began in late January of this year at the San Ysidro border crossing. So far, only 240 migrants have been returned to Mexico, but the administration is currently expanding the policy to other ports of entry. The fate of the MPP remains to be seen. Will it die in the courts or live to evolve yet again? Stay tuned.

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Rishi P. Oza is the Partner at Robert Brown LLC, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com