This piece originally appeared in the Fair Observer.
As the number of Central Americans coming to the United States has risen since the policy was first announced in January 2019, MPP is not deterring migration so much as increasing hardship on the Mexican side of the border.
In late January 2019, the Trump administration announced the “Remain in Mexico” policy, inappropriately named the Migration Protection Protocols (MPP). The policy requires that Central American asylum seekers at the southern border wait in Mexico while their cases are processed. The US Department of Homeland Security (DHS) secretary, Kirstjen Nielsen, claims the policy is necessary to curb the flow of migrants trying to enter over the southern border to “exploit” the asylum system. However, in fact, it is the policy and its implementation that are upending the asylum system.
The Migration Protection Protocols mark a milestone in the administration’s efforts to close off asylum space by depriving asylum seekers of their right to seek refuge under US and international law, and forcing them to wait in Mexico despite well-documented violence and exploitation faced by migrants there. About 240 asylum seekers, including families, have so far been returned to Mexico under this policy via the port of San Ysidro between San Diego and Tijuana. Last week, the author went to San Diego to watch the initial immigration court hearings of 18 of the first asylum seekers subject to MPP. Those proceedings underscored a series of flaws in the execution of what is already deeply problematic policy.
The policy requires that asylum seekers wait in Mexico, rather than in detention or on parole within the United States, while their cases proceed through the immigration court. The process itself departs from standard asylum procedures in many other ways. Rather than being given a hearing by an asylum officer about whether they have a credible fear of returning to their home countries, asylum seekers under MPP are given a basic interview by a Customs and Border Patrol (CBP) officer. During this interview, they are not given a chance to discuss in detail what led them to migrate from their home countries.
Furthermore, asylum seekers are not asked about any fear that they may have of being sent back to Mexico to wait for future hearings. If they do express such fear on their own initiative during their interview with a port officer, asylum seekers are supposed to be referred for an “MPP assessment” interview with a United States Citizenship and Immigration Services (USCIS) officer. During this assessment, they must show it is “more likely than not” that they would be persecuted or tortured in Mexico. This is a much higher bar to meet than the traditional credible fear standard, which requires only proving “significant possibility” of past or future persecution. Given the stakes involved, it is also wholly unreasonable.
Before being returned to wait in Mexico for their court hearings, asylum seekers are given a document explaining the MPP policy and instructing them to come back to the port on a date a few weeks later. They are also given a list of free or low-cost legal service providers. But all of the lawyers on the list are in the United States. Asylum seekers who are returned to Mexico cannot cross the border to meet with these attorneys at their offices. Most asylum seekers returned to Mexico are living in shelters in Tijuana or nearby, so that the few American attorneys willing to take their cases do not have places to meet with them on the Mexican side.
ALREADY STRAINED RESOURCES
A new set of explicit guidelines outlines the procedure for handling asylum seekers by CBP and USCIS. However, even these guidelines have not been adhered to during the pilot phase of the policy. For example, several asylum seekers — including a Salvadoran couple with three children and a Honduran woman fleeing domestic violence — told CBP officers at San Ysidro that they were afraid to wait in Mexico. Despite this, they were returned to Mexico without being referred to USCIS for interviews.
On Tuesday, March 19, three of the men who came to the port — on the date of their notice — were not transferred to the immigration court because their hearings were in fact slated to take place on Wednesday. However, because the men did not have the necessary paperwork to return to Mexico after entering the port, they were detained overnight in a hielera — the Spanish word used to describe US Custom and Border Patrol’s frigid holding cells.
They were then taken directly from detention to court the following day with the rest of the scheduled Wednesday group. This illustrates the lack of coordination both between the US and Mexican governments and between CBP (within DHS) and the immigration courts (within the Department of Justice) in rolling out of the MPP policy, despite the issued guidelines.
Attorneys from the American Civil Liberties Union (ACLU), the Southern Poverty Law Center and the Center for Gender and Refugee Studies challenging the MPP policy in federal courthave been interviewing potential plaintiffs returned to Mexico for the past several weeks. Despite this intense attention, several of the asylum seekers on March 20 did not have counsel in immigration court. They told the judge that they had reached out to attorneys on the list provided by DHS, to no avail. Attorneys I spoke with confirmed that they are having a hard time keeping track of and staying in touch with those returned to Mexico because of conditions on the ground there.
The increasing number and complicated nature of MPP cases is also taxing the already strained resources. For example, Jewish Family Services runs a shelter in San Diego for released asylum seekers that hosts over 100 new families each night. It has taken on the difficult task of representing six MPP cases involving families, sending several of its attorneys to Tijuana every Monday to find a way to meet with them there. However, it is clear that they will not be able to meet the growing need for representation by families who continue to be subject to MPP.
FEAR OF RETURNING TO MEXICO
On March 20, several asylum seekers in court told the judge that they feared remaining in Mexico, claiming they had been robbed, kidnapped and assaulted there. In an extremely poignant moment, a Guatemalan asylum seeker was asked by the judge at the end of his hearing if he had any further questions. The man sat thinking for a few seconds and then said firmly, for the second time in the short hearing, “I am afraid to return to Mexico.” The judge assured the Guatemalan man that he would be given an MPP assessment hearing. However, it is far from clear that these hearings provide a meaningful opportunity to seek relief.
For example, an attorney representing two Hondurans in court on Tuesday asked the judge if she could to be present during the MPP assessments given their fear of returning to Mexico. She also asked the judge to make sure that one of her clients, 19-year-old Ariel, had access to his required epilepsy medication. After they left the court Tuesday, her clients remained in CBP custody for two nights. One had his MPP assessment interview on Wednesday and the other on Thursday. Without notice to their attorney or any explanatory documentation, both were returned to Mexico, and Ariel had a seizure on the way. This despite the fact that asylum seekers with known physical or mental health issues are not supposed to be subject to the MPP program.
Last Wednesday’s hearings of unrepresented asylum seekers highlighted that neither USCIS officers nor immigration court judges are adequately assessing fear. Nor are they meaningfully attentive to the protection needs of asylum seekers under MPP. An illiterate Salvadoran told the judge that he was confused by two different dates on documents he received from DHS about his hearing. The Judge offered to give him more time to find an attorney on the list. The Salvadoran replied that his inability to read or write made finding an attorney in Mexico very hard.
“If you could help me stay in the US, it would be better,” the Salvadoran said. The judge did not ask if he feared return — as the judge is not obliged to — and insisted that whether he could stay in United States was not the issue in this stage of his case.
Later, when the same judge offered a different unrepresented Salvadoran a hearing date in late May so that he could have time to find an attorney, the Salvadoran asked for an earlier date. The judge agreed and asked when he would like to set the hearing. The Salvadoran seized the opportunity to ask for just one month because he did not want to be in Mexico. This prompted the judge to ask if he was afraid to return in Mexico, which the Salvadoran affirmed. The judge then asked the attorney for the government to refer him to USCIS for an MPP assessment. The Salvadoran then said that he had been interviewed already: “I was detained and interviewed, held for five hours and still returned. Will that happen again?”
As with other asylum policies enacted by the current administration, the implementation of the MPP is causing unnecessary harm because of a lack of planning. This was on display last week during the hearings. On Wednesday, the judge complained that, since his afternoon calendar was full for weeks to come with initial MPP hearings, he would have to put off hearings to consider the substance of asylum claims. Such hearings could not be held in the morning because asylum seekers had to be brought over from Mexico beforehand.
The fact that the illiterate Salvadoran had been given notices to appear on different dates led the judge to worry that this had happened to others. He was particularly concerned about those scheduled for hearings in court last Wednesday who had not appeared at the port of entry to be brought over from Mexico. The judge therefore refused the government’s request to deport in absentia those men who had failed to appear at the port. Instead, he scheduled further hearings in their cases, even though the government did not know how to get the men notices to appear at the future hearing date. Unless the government can find these asylum seekers and provide them notice of the date to appear, their cases could be terminated.
DETERRENCE IS THE WRONG APPROACH
The Trump administration argues that MPP will deter Central Americans from migrating to the United States. The Justice Department attorney defending the policy in federal court on Friday said that “a central reason” for the policy “is to deter baseless asylum claims.” However, deterrence is neither a lawful nor a humane way to handle people seeking asylum. The 11 Central American asylum-seeking plaintiffs in the federal court case challenging the MPP policy are fleeing brutal attackers, death squads, narcotraffickers and the MS-13 gang who targeted them for their ethnic, religious and sexual identities. Under US and international law, asylum seekers have a right to have their claims considered and should not be made to suffer during the process.
The MPP policy is the first deterrent-oriented policy since the passage of the 1980 Refugee Act — which allows those seeking refuge to ask for asylum at the border — to subject asylum seekers to potential harm and suffering by sending them back across the border after they’ve been partially processed in the United States. It is also the first deterrent policy to require bi-national coordination between US and Mexican officials, and the lawyers that asylum seekers are entitled to have. As the number of Central Americans coming to the United States has risen since the policy was first announced in January 2019, MPP is not deterring migration so much as increasing hardship on the Mexican side of the border.
On March 22, the government presented a second rationale in court, arguing that waiting in Mexico is necessary because it lacks the capacity to detain all of those seeking asylum. The government went on to assert that if asylum seekers are released from detention and allowed to wait in the United States, they will not show up to court, where most would anyway be denied asylum. But this belies the fact that the vast majority of released asylum seekers attend their court hearings, and that a third of asylum-seeking Central Americans are granted relief.
Despite egregious due process and protection concerns this author witnessed, and the federal court challenge, yesterday Secretary Nielsen met with Mexican officials to discuss the expansion of the policy from the San Ysidro to other ports of entry, including Calexico and El Paso, as well as between ports along the southwest border. If the policy becomes operational across the southwestern border, thousands of Central American asylum seekers will be affected, and the asylum system will be fundamentally altered.