In November 2020, Refugees International’s Yael Schacher, together with attorneys from Sidley Austin LLP, submitted an amicus brief in support of a challenge to the Remain in Mexico program (or MPP) in California federal court.
MPP, which was enacted during the Trump administration and implemented in a modified form by the Biden administration through the summer of 2022, required some people seeking asylum at the U.S. southern border to wait in Mexico while pursuing their claims—often in dangerous situations and without access to shelter and food or legal support. The court challenge, brought on behalf of asylum seekers whose cases had been terminated or who had been ordered removed during the Trump administration’s program, argued that MPP violated their right to seek asylum, to access counsel, and to a full and fair hearing on their asylum claims. They asked the court for a ruling that would allow them to enter the United States to meaningfully pursue asylum. The Biden administration asked that the case be dismissed, claiming that MPP is lawful, even if its benefits as a policy were outweighed by costs.
In March 2023, Judge Jesus Bernal of the U.S. District Court for the Central District of California ruled that MPP is unlawful and included a section in his decision affirming the argument made in Yael’s brief about the legal requirement to handle all asylum claims in a uniform way. “The differential treatment of individuals subjected to MPP is a plausible theory to allege violation of [this] uniformity principle,” Judge Bernal writes. The decision has implications not only for the Remain in Mexico policy but for the Biden administration’s proposed transit and entry asylum ban and U.S. asylum policy writ large.
Refugees International spoke with Yael Schacher to understand her argument, the decision, and its broader implications.
Q: What is the argument you made in your brief?
The brief is about the history of the Refugee Act of 1980, which codified the right to seek asylum in U.S. law. I show that, before 1980, the U.S. immigration authorities handled asylum applicants differently based on their race or nationality, their place of application, or their immigration status. When Congresswoman Elizabeth Holtzman included the provision on asylum in the Refugee Act, she intended to ensure uniformity and fair treatment for all claimants. In 1996, when Congress changed some aspects of asylum procedure, they did not change this. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) reaffirmed access to asylum for anyone “who is physically present in the United States or who arrives in the United States,” “whether or not” they arrive “at a designated port of arrival.” As I mention in my brief and as Judge Bernal notes, a provision of the 1996 law authorizing return of immigrants to Mexico “does not mention asylum at all.”
For this reason, he ruled it is unlawful for DHS to subject certain asylum seekers at the southern border to different procedures than others by placing them in MPP, which fundamentally hinders their right to seek asylum.
Q: Why is a uniform process for consideration of asylum claims so important—to members of Congress then, in 1980?
It was important because, in the 1970s, U.S. authorities handled asylum seekers in a discriminatory manner and in a way that did not meet U.S. obligations under the Protocol to the Refugee Convention, to which the United States acceded in 1968. By acceding to the Protocol, the United States was bound by the Convention’s prohibition against “refoulement,” or the returning of people to persecution, and its universal (i.e., not geographically and ideologically bound) definition of a refugee as a person with a well founded fear of persecution based upon their race, religion, nationality, political opinion, or membership in a particular social group.
But, the United States did not change its immigration law in the wake of accession to the Protocol. In the early 1970s, people in unauthorized status in the United States lacked protection from refoulement. In the late 1970s, the United States had different procedures for the handling of those from Ethiopia seeking asylum versus those from the Soviet Union. There really was no clear policy in place for how to handle asylum seekers at the land border. In a 1977 Congressional hearing that addressed Haitian asylum seekers in Florida, Russian Jews and Polish asylum seekers in New York City, and Chilean asylum seekers in California, Holtzman complained that “there really are no specific procedures” or uniform “guidelines” for the INS’s handling of asylum seekers. She indicated that too much was left to the discretion of “each individual district director.” Rep. Holtzman noted that “as part of a bill dealing with the problem of refugees we ought to try to insure that due process will be granted” to asylum seekers, adding “when Congress creates a statutory scheme and does not really specify how that scheme is to be implemented it can be thwarted by the executive branch.”
Q: What does this mean for the legality of the Biden administration’s proposed asylum ban?
The Biden administration’s proposed new regulation would treat people asking for asylum after crossing between ports of entry differently than other asylum seekers, presuming them ineligible for asylum. It’s just one of many policies the Biden administration has or is considering putting in place that treats asylum seekers differently for reasons unrelated to the merits of their persecution claims.
Q: What alternative options does the Biden administration have to fairly process asylum seekers who arrive at the border?
It is true that, back in 1980, Holtzman did not foresee the scope of current forced displacement and the scale of asylum seeking at the border. Handling claims uniformly and fairly is a challenge. In principle, there is no reason the Biden administration should not try to create ways to divert some asylum seekers away from land border ports of entry that cannot manage the demand. But it needs to ensure that there is a pathway for everyone that needs one. And once asylum seekers are in the United States, they must have access to counsel and must meet the same burden of proof to be granted asylum regardless of where they are in the United States.
What is lacking but sorely needed right now—from both the administration and Congress—is an honest conversation about how the federal government should work with foreign governments, with international organizations, with state and local governments, and with NGOs to provide all asylum seekers with a fair and humane process to seek protection.
Should the United States prioritize certain claimants? If so, why? Arbitrary deterrent measures for the sake of diverting forcibly displaced people elsewhere avoids facing one of the biggest moral questions and social problems of our century.
Cover Photo: A migrant girl walks at an improvised camp outside El Chaparral crossing port as her and other wait for US authorities to allow them to start their migration process in Tijuana, Baja California state, Mexico, on March 11, 2021. Photo by Guillermo Arias / AFP via Getty Images.