‘Remain in Mexico’ Is Illegal. Here’s How We’re Supporting a Challenge of It in Court.

Between March 2019 and January 2020, I made several trips to the southern U.S. border to interview asylum seekers placed in the Remain in Mexico program, officially known as the Migrant Protection Protocols. One mother that I met in Ciudad Juarez in spring 2019 messaged me a few months later when her son was sick and she did not have any food. In August 2019, in Matamoros, I spoke to asylum seekers who had been attacked just blocks away from the encampment where they were living next to the international bridge. A few weeks later, in the early morning on the Mexican side of the international bridge in Nuevo Laredo, I met a father and son who had been abducted making their way there to report for their immigration hearing. They also hadn’t been able to find an attorney to represent them. In January 2020, because of double booking of hearings in San Diego immigration court, I waited for two hours only to watch a judge cut off an asylum seeker’s traumatic testimony of domestic abuse. The Judge gave her a new date and sent her back to wait in Tijuana—where she is waiting still.

When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing.  I began researching this provision and it became clear that it was not intended to apply to asylum seekers.

In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.

In the Supreme Court case INS v. Cardoza-Fonseca, a majority of the Court found that the distinction between the Senate and House versions of the asylum provision and the eventual adoption of the House version in the Refugee Act was crucially important. It indicated to the Court that the standard of proof required to gain asylum was lower than that of the standard required to gain another form of relief called withholding of removal, which is the relief that fulfills the obligation of non-refoulement—or non-return to a place of persecution. The amicus brief discussed in this blog adopts the Supreme Court’s logic that Congress preferred the House bill for an additional reason beyond the question of the asylum standard. The brief argues that the adoption of the House version of the asylum provision indicates that the intent of Congress was to allow more people to apply for asylum, including those that did so at land borders, and to be treated just the same way. The asylum provision in the Refugee Act clearly reflects Congressional intent to establish a uniform process for asylum seekers, which cannot be squared with the strained and inaccurate claim from the Trump administration that an unrelated provision in a subsequent law justifies the return to Mexico of asylum seekers.