Since my trip to the U.S./Mexico border last summer, the situation for families seeking asylum has only become more challenging, especially in light of the Administration's new "Remain in Mexico" policy. This week, I am in Mexico along with Proskauer colleagues, Valarie McPherson, special immigration counsel, and Savannah Sosa, a project assistant. We are providing asylum presentations and individual consultations in partnership with Institute for Women in Migration, IMUMI (www.imumi.org).
The new policy raises a number of questions, but first some background.
The Remain in Mexico Policy
On December 20, 2018, the Administration announced that it would begin implementing a "Remain in Mexico" policy – officially dubbed the Migrant Protection Protocols (MPP) – which requires asylum-seekers from Central America at the southern border to wait in Mexico for the duration of their U.S. immigration proceedings. This marks a fundamental shift in asylum policy because, until now, asylum-seekers who lack valid entry documentation generally have been placed in expedited removal proceedings. Applicants who passed a credible fear interview were then allowed to remain in the U.S., pending immigration court proceedings.
The MPP purports to implement Section 235(b)(2)(C) of the Immigration and Nationality Act (INA), which enables the Secretary of Homeland Security to return certain immigrants to the "foreign contiguous territory" from which they arrived while they await removal proceedings. Under the MPP, citizens of Central American countries arriving in the U.S. by land from Mexico without proper documentation – including those seeking asylum – may be returned to Mexico for the duration of their removal proceedings.
The Department of Homeland Security (DHS) has released guidance, which lays out the mechanics of the new policy. Customs and Border Protection (CBP) officers are given broad discretion to refer people who are in removal proceedings for deportation to Mexico pending their immigration court dates. These immigrants are not granted access to counsel in their preliminary interviews before being sent back to Mexico. Asylum-seekers who resist removal based on a fear of return will receive a limited screening from a U.S. Citizenship and Immigration Services (USCIS) asylum officer, in which they must establish that they are "more likely than not to face persecution or torture in Mexico." According to the guidance, this screening should be conducted in a private setting – not in the presence of counsel – and should be "non-adversarial" in nature. The USCIS asylum officer's determination as to whether an individual should be returned to Mexico is not reviewable by an immigration judge. Certain classes of people are excluded from the MPP, including unaccompanied children, citizens or nationals of Mexico, aliens processed for expedited removal, and aliens in special circumstances (e.g. criminals or individuals with known physical or mental health issues).
In February 2019, the American Civil Liberties Union (ACLU) and other advocacy groups filed suit challenging the MPP. The named plaintiffs are 11 asylum-seekers fleeing Central America who have experienced persecution – including beatings, rape, and death threats – in their home countries. Some of these plaintiffs have already suffered discrimination, robbery, and assault in Mexico, and are concerned that Mexico will deport them to their home countries where they will face further persecution. Moreover, the plaintiffs argue that they cannot properly prepare for their asylum cases from Mexico, where they lack access to attorneys and other services.
U.S. District Judge Richard Seeborg of the Northern District of California granted a preliminary injunction, blocking the MPP. He made two critical findings:
- First, the section of the INA at
issue here – which vests DHS with authority in some
circumstances to return certain aliens to a "contiguous
territory" – does not apply to the plaintiffs since they
are subject to expedited removal proceedings. In other words, as
long as individuals qualify for expedited removal (whether or not
they are actually placed in expedited removal proceedings), they
cannot be removed lawfully under the contiguous territory return
Second, even assuming they could be removed lawfully under that provision, the plaintiffs still met their burden to enjoin the MPP on grounds that the policy lacks sufficient protections to safeguard their lives or freedom.
Following Judge Seeborg's decision, the Court of Appeals for the Ninth Circuit issued a stay of the preliminary injunction pending appeal, thereby permitting the MPP to go forward. The judges, however, were deeply divided. Judge William Fletcher wrote that he was "hopeful" that the Court ultimately will "be able to see the Government's arguments for what they are — baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated."
Meanwhile, according to DHS, more than 1,600 immigrants have been sent back to Mexico to await immigration proceedings.
In addition to helping families seek asylum, and identifying pro bono opportunities for Proskauer, our purpose in making this trip is to help answer a number of questions:
- Where are people staying in Mexico as their immigration cases go forward in the U.S.?
- Are they safe from crime and/or continued persecution?
- To the extent families and children are involved, how are their basic needs being met?
- Are these immigrants permitted to work legally in Mexico?
- Do they have access to legal counsel?
- How will they make court appearances and submit legal papers in the U.S.?
We also want to learn more about why so many families are fleeing Central America. In Texas last summer, I heard countless stories of extreme violence, especially against women – there can be no effective, humanitarian response to the border crisis as long as these stories, and the great human suffering they represent, are ignored.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.