By federal law, an immigrant may seek asylum at any port of entry or from anywhere inside the United States. Immigrants seeking asylum have been allowed to remain in the United States, pending a decision on their case. A new Trump Administration policy threatens this process.
On January 24, 2019, the Department of Homeland Security (DHS) began carrying out the “Remain in Mexico” policy, formally known as the Migrant Protection Protocols, at the San Ysidro port of entry. This policy forces immigrants seeking asylum at the southern border to wait in Mexico until an asylum hearing is scheduled before an Immigration Judge.
There are few exceptions to the policy. Unaccompanied minors, citizens and nationals of Mexico, and anyone who fears persecution in Mexico may remain in the United States. However, the burden is on the asylum seekers to establish that they are “more likely than not” to face persecution on the account of a protected ground in Mexico if they wish to remain in the United States.
In addition to imposing a more stringent standard for asylum seekers, the “Remain in Mexico” policy jeopardizes an asylum seeker’s access to legal counsel. United States Citizenship and Immigration Services (USCIS) has stated that they are unable to provide access to immigration attorneys during the assessment of an asylum claim between the asylum seeker and a USCIS officer. An asylum seeker may not apply for appeal or reconsideration of the assessment made by USCIS.
Asylum seekers awaiting their hearing in Mexico will face difficulties in finding a U.S. based immigration attorney to guide them and prepare them for their hearing. The “Remain in Mexico” policy also imposes increased burdens on U.S. based immigration attorneys who wish to represent asylum seekers who are forced to remain in Mexico. Finding a means of communication between clients and attorneys will prove difficult across international borders.
The “Remain in Mexico” policy jeopardizes the safety of asylum seekers while they remain in Mexico. It is likely that they will face exposure to kidnapping, murder, assault, and other types of harm based on the current country conditions in Mexico. While the Mexican government has announced that it will give protection to asylum seekers affected by the policy, no additional details have been given including where asylum seekers will live or in what type of housing.
On April 8, 2019, a federal judge in San Francisco halted the “Remain in Mexico” policy, following a legal suit brought by asylum seekers and other organizations represented by the American Civil Liberties Union (ACLU). The judge issued a preliminary injunction, ruling that the plaintiffs were likely to show that the policy violated federal regulatory law.
The Ninth Circuit appeals court reinstated the policy on April 12, 2019. This reinstatement will remain in force while the parties submit arguments to the court addressing the government’s desire that the policy remain in place throughout the whole appeals process. Whether the government at this time will continue returning asylum seekers to Mexico remains to be seen.
The process of seeking asylum in the United States already imposes a high burden on asylum seekers who seek refuge in this country. The “Remain in Mexico” policy places additional hurdles that jeopardize the safety of asylum seekers as well as their access to legal counsel. This policy sets forth a more stringent standard that asylum seekers must face in order to establish their fear of return. Whether this policy will eventually be struck down by the federal courts hangs in the balance.