“Remain in Mexico” Policy
Joshua Dukes, Fall 2020
Immigration has been a pressing issue in US politics, especially in recent years. President Trump has notoriously belittled immigrants, asylees, and refugees, and his policies reflect that. One of the most significant of those policies came in January of 2019: the Migration Protection Protocols (MPP), or as most people call it, the “Remain In Mexico” order. Contrary to what the name suggests the MPP does little to protect migrants and instead further perpetuates the Trump Administration’s attacks on immigration. The MPP, which was agreed upon by the US and Mexico, returns people who enter the United States illegally or lack proper documentation, to Mexico to await their U.S. immigration court hearings and final adjudication. This policy is a violation of human rights and rather than providing asylees with the necessary tools to transition to a life without persecution in the United States, it causes them to continue experiencing trauma and life-threatening circumstances in their most dire time of need.
With the creation of the MPP, it’s important to note how the asylum process has changed with these new practices in place. Normally an asylee would request asylum directly at the United States border or once they’re already in the US. From that point they would have a year to compile as much evidence they can to build their claim for asylum. Evidence includes personal documents, affidavits, government forms such as an I-589, that would explain that the asylee has a well-founded fear of persecution in their home country. All of this would happen while they were residing in the United States. With the new protocols in place asylees are now forced to wait for their court hearings in Mexico which create life-threatening problems such as further persecution, coyotes, losing paperwork, and making it harder to find proper representation.
NPR reported on the policy in late June of 2019, six months after it had been implemented [1]. Reporter Joel Rose interviewed Linda Rivas, who is a nonprofit lawyer representing some of the migrants in the MPP system, about conditions that these migrants are facing. She explained that many immigrants fear for their lives in Ciudad Juarez, where about 6,000 migrants had been returned to at the time. A majority of them felt unsafe in Juarez and Rose shared a story that Rivas had told him during the interview about a single woman from Honduras. The woman had been sent to Mexico even though she pleaded with US officials to let her stay in the US until her court hearing. They put her in Mexico anyway. The result was that the woman was kidnapped and raped by multiple attackers when she was in Juarez. Rivas brought the woman back to the border with her and convinced officials to let her stay in the US, but by that time significant trauma had already been caused to the woman. Stories like this are all too common when talking about the impacts this program has had on migrants. A woman being sexually assaulted by two men in the street while her son had to watch, a man robbed at knifepoint and stabbed in the back, a woman and her 5 year old daughter being kidnapped by a taxi driver, constant threats of death; these stories are all real and the United States is allowing this to happen [9].
The MPP has not only led to human rights violations but also to the increase of family separations at the border [1]. For this I have two examples. The first example of this would be if a family of six were to seek asylum at the border: a mother and a father with four children, two of which are over 21. Under asylum rules the other two children who are under 21 are defined as children. So in this case the father and his two children who are over 21 would be sent to Mexico to await their court hearing while the mother and their two children would be admitted to the US, separating the family. The second would be if a child comes with someone who is not their parent or legal guardian (ie sibling, grandparents, aunts/uncles). In this case the child would be taken into American custody and the accompanying adult would be sent to Mexico to await their court date. This policy is put in place to stop trafficking, especially if the adult has no legal guardianship over the child.
The MPP has created a new obstacle for lawyers who are trying to provide free or low cost representation for these migrants. A majority of the migrants who have been returned to Mexico lack the resources to get lawyers whether that be money, a reliable telephone network, traveling, and the uncertainty of next steps to take. Lawyers also fear for the safety of their clients when they go back to Mexico after meeting with them. These migrants are seen as targets, they are easily discernible and have everything to lose if they were to be attacked. This leaves them extremely vulnerable in a place where crime is high like Ciudad Juarez. They stay in shelters run by churches and lawyers estimate about 20 out of the thousand migrants have been able to find attorneys to represent them [1]. One of the biggest challenges for lawyers is how time consuming it is to take on these clients. Not only is it difficult to reach them by phone or mail, it’s even harder to reach them in person. Wait times at the border can be hours long and the traveling the attorney may have to do makes it even harder to get adequate time with their client. Not only are they trying to compile evidence for their clients’ asylum claims form their home country, but they also need to gather information about their situation in Mexico, where they may face further persecution. All in all, it has made the ability to get representation that much harder, resulting in more asylum claims being rejected (90% of immigrant cases are denied when they don’t have legal representation [2]).
The argument the Trump Administration is making for this human rights violation disguised as a legal form of regulating immigration, is that migrants who have weak asylum cases are “abusing the system to gain entry to the US” [3]. This policy would limit the amount of asylees that are permitted to the US, where they can “manipulate” the United States immigration system once they are residing in the US. But it seems even agencies under the Trump Administration have contrary opinions. Back in June of 2019, asylum officers who were assigned to carry out the program filed a lawsuit that seeks to block the Remain in Mexico order. Reported by NPR, the “asylum officers say the program is ‘fundamentally contrary to the moral fabric of our nation’ ” and therefore it should be ended. It seems to me that the contrary opinions within the Trump Administration don’t play well to the resolution of a compromised immigration plan. Trump has continuously tried to impose radical and cruel policies throughout his presidency, some would even call them xenophobic, such as the Muslim Ban, which caused people who needed to seek asylum in those countries to lose that life saving opportunity, the transgender military ban, which is extremely transphobic, and his constant rhetoric when discussing Mexican immigrants. With all that being said it’s not hard to understand why his administration would impose such a controversial policy.
This policy, even if it was agreed upon by Mexico and the United States, does not only apply to asylees who are from Mexico, but to any asylee who lack proper documentation or who entered illegally, no matter the country they resided in. Asylum seekers from El Salvador, Guatemala, and Honduras have filed a lawsuit [3] after being forced to wait in Mexico [4]. After fleeing violence in their home countries, these asylum seekers were now faced with violence in an environment they were put in unwillingly and weren’t expecting. When asylees flee their home countries to seek asylum they know that it’s their last option. Being turned away by the US government during their worst times seems like more than just a slap in the face. “Human rights activists have documented cases of kidnappings, rapes and assaults,” [4] all of which contribute to the asylees list of unnecessary struggles. Doctors Without Borders “issued a report that found 80% of migrants waiting in Nuevo Laredo under MPP have been abducted by criminal networks and 45% to have suffered violence or violation” [5]. It’s quite alarming to know that the United States’ response to people seeking asylum in this country, is to put them right back into the same situation that they were fleeing from and claim that it’s “protecting” them.
The legality of the Remain in Mexico policy has been in question since its implementation, and the future of it still has been unanswered. The MPP is implemented when immigrants are put into removal proceedings. One of the options that an individual has in this situation is to seek asylum. While all of this is going on immigrants are put in Mexico to await their court dates, which are given to them once they have been placed into MPP. If an individual has a well founded fear of persecution in Mexico they would have to state that and then they would have an interview with a USCIS official. If that official grants that the immigrants status is admissible, then asylum will be granted. If not, then they would be sent to Mexico. Under the rules of MPP, immigrants in removal proceedings have access to counsel during their hearings, and it is no cost to them [6]. However, they don’t have access to the representation they need from the time they were put into MPP, to the time they have their hearing.
Approximately 60,000 immigrants have been sent or returned to Mexico since MPP was implemented, as of November 29, 2020 [7]. A federal district court in 2019 found the MPP “lacks sufficient protections against [persons] being returned to places where they face undue risk to their lives or freedoms,” citing the Immigration and Nationality Act. This decision was stayed and sent to the 9th Circuit Court of Appeals, where they removed and then reinstated the stay. On March 5 of 2020, the Wall Street Journal reported that the Ninth Circuit Court certified that it’s ruling that the MPP was unlawful was correct, but only limited their ruling to Arizona and California [8]. The case was sent to the Supreme Court, and the policy was still active in the states of New Mexico and Texas. Currently the case is waiting at the Supreme Court where they will decide the legality of the MPP. As of October 19, the petition filed in the Supreme Court has been granted and no further action has been taken yet [4].
Notes
[1] “Trump Administration’s ‘Remain In Mexico’ Policy Leaves Migrants Confused, Scared.” All Things Considered, June 27, 2019. Gale General OneFile (accessed November 24, 2020). https://link.gale.com/apps/doc/A591791839/ITOF?u=mlin_c_worstate&sid=ITOF&xid=d514ea76.
[2] https://www.scijimmigration.org/the-problem
[3] Hamm, Andrew, Amy Howe, and John Elwood. “Wolf v. Innovation Law Lab.” SCOTUSblog, 2020. https://www.scotusblog.com/case-files/cases/wolf-v-innovation-law-lab-2/.
[4] Chung, Andrew. “U.S. Supreme Court to Review Legality of Trump’s ‘Remain in Mexico’ Asylum Policy.” Reuters. Thomson Reuters, October 19, 2020. https://www.reuters.com/article/us-usa-court-asylum/u-s-supreme-court-to-review-legality-of-trumps-remain-in-mexico-asylum-policy-idUSKBN2741SO.
[6] “Migrant Protection Protocols.” Department of Homeland Security, November 5, 2020. https://www.dhs.gov/migrant-protection-protocols.
[7] “All About the ‘Remain in Mexico’ Policy.” Latin America Working Group, July 22, 2020. https://www.lawg.org/all-about-the-remain-in-mexico-policy/.
[8] Kendall, Brent, and Alicia A. Caldwell. “Court That Blocked ‘Remain in Mexico’ Policy Allows Trump Plan to Continue for Now.” The Wall Street Journal. Dow Jones & Company, March 5, 2020. https://www.wsj.com/articles/court-that-blocked-remain-in-mexico-policy-allows-trump-plan-to-continue-for-now-11583384892?emailToken=3d88d04ba6e0267b24183aeb003a59841pEMx5ESI74stBjp+ZpKYErsxvBZHs4r7z2JEGHjqSpm7KZjdf8IJ%2FiZcdhOB2Ytav16Qr6r69LWwl%2F7qGG8nBDWbh74ZK0%2Fs0LOHmwoISQqsM1pgRKc%2FuJmRZWGyLejN3fPtK25mg+isMJHOciZTg.
[9] “Written Testimony: ‘Examining the Human Rights and Legal Implications of DHS’s ‘Remain in Mexico’ Policy.’” Human Rights Watch, October 28, 2020. https://www.hrw.org/news/2019/11/19/written-testimony-examining-human-rights-and-legal-implications-dhss-remain-mexico.
Further Reading
Frey, John Carlos. Sand and Blood: America’s Stealth War on the Mexico Border. Bold Type Books, 2019.
Hing, Bill Ong. Defining America. Philadelphia, PA: Temple University Press, 2012.