Via Harvard Law Review Blog 

Tijuana, Mexico – Long lines of both cars and pedestrians wait on the Mexican side of the border to cross from Tijuana to San Ysidro, California. The Tijuana – San Ysidro crossing is widely considered to be the world’s busiest land border crossing. Otay Mexico border crossing, U.S. Customs and Border Protection Otay Mesa Port of Entry.
Source: iStock

By: Sabrineh Ardalan

For the past year, the Trump administration has been hard at work trying to unilaterally rewrite asylum law.  Its latest attempt, the so-called Migrant Protection Protocols, informally known as Remain in Mexico, is yet another unlawful gambit.

Announced in January by former Secretary of Homeland Security Kirstjen M. Nielsen, Remain in Mexico requires that certain asylum seekers leave the U.S. and wait in Mexico while their cases are pending in U.S. immigration court.  The policy makes it almost impossible for these individuals to access counsel and precludes them from effectively presenting their claims for relief in court.

The U.S. government has sent around 6,000 asylum seekers back to Mexico since this policy was first enacted. The asylum seekers, many of them families from Central America who have suffered brutal violence and threats of death, are then forced to wait in Mexico for the duration of their court proceedings.

Given the current backlog in the immigration system, the policy could mean years without a place to call home, under precarious conditions in Mexico, where migrants are often targeted for kidnapping and attack.  And given Mexico’s aggressive practice of rounding up and deporting Central American migrants, this new policy puts these asylum seekers at significant risk of return to torture or death in their countries of origin.

The Remain in Mexico policy is legally problematic on any number of fronts, but I will focus on three here.  First, it flies in the face of U.S. obligations under the Refugee Act of 1980 and the Protocol to the Refugee Convention, as well as under the UN Convention Against Torture, which require the U.S. not to return individuals to countries where they face persecution or torture.

Second, the policy undermines due process protections for asylum seekers by imposing barriers to legal representation and violating their right to counsel. The policy also significantly increases the risk of missed hearings due to bureaucratic failures to transport asylum seekers to immigration court, potentially leading to in absentia removal orders.

Third, the new procedures for screening asylum seekers’ fears of return to Mexico set forth in the policy are arbitrary and capricious and violate the Administrative Procedures Act (APA).  The procedures deviate from well-established practice without explanation or acknowledgement and fail to comply with the APA’s notice and comment requirements.

The administration insists that these new procedures are necessary to “reduce threats to life, national security, and public safety” due to “the urgent humanitarian and security crisis at the Southern border.”  But longstanding processes we have in place already address concerns about border security.  The expedited removal system set forth in Section 235(b)(1) of the INA was specifically designed to remove individuals who are inadmissible to the U.S. because they lack documents or have fraudulent documents, unless they express a fear persecution or torture.

Moreover, establishing eligibility for asylum is already difficult to do.  People often leave their home countries in a hurry, with little or no proof of what they’ve experienced.  Or, they may lose whatever they have on their journey to the U.S.  Although both U.S. and international law dictate that asylum seekers be afforded the benefit of the doubt, adjudicators often impose unreasonable credibility and corroboration requirements.  In some U.S. immigration courts, grant rates are as low as two percent.

A Court Challenge

As with so many of the Trump administration’s attempts to undermine protections for asylum seekers, Remain in Mexico was immediately challenged in the courts as unlawful, relying on some of the arguments I’ve outlined above.

On April 8, 2019, a federal court enjoined the program’s implementation, in response to a lawsuit filed by a coalition of nonprofits and asylum seekers from Central America forced to remain in Mexico under the policy.  Judge Richard Seeborg of the Northern District of California found that the government improperly relied on section 235 of the INA as a basis for the program.

Indeed, as the district court emphasized, Remain in Mexico ignores the plain language of the statute.  Section 235(b)(2)(C), on which DHS relies, provides that individuals “described in subparagraph (A),” arriving “from a foreign territory contiguous to the United States,” “may [be] return[ed] . . . to that territory” pending immigration court proceedings.  Yet, subparagraph (A) prescribes that “its application is subject to subparagraphs (B) and (C).”  Subparagraph (B), in turn, explicitly states that “Subparagraph (A) shall not apply to an alien . . . to whom paragraph (1) applies”—namely, the expedited removal provision, which describes the procedures that govern the treatment of migrants subject to the policy.

The district court also determined that the government failed to establish adequate procedures to comply with the nonrefoulement provisions in U.S. law and safeguard those who feared for their lives in Mexico.

When the government appealed, the Ninth Circuit temporarily stayed the district court’s decision, allowing the program to take effect, pending a ruling on the validity of the injunction.  At oral argument on April 24, two of the judges questioned the statutory basis for the policy and expressed concern that the program was arbitrary and capricious in its failure to ask those affected whether they feared return to Mexico.  Despite these concerns, the motions panel subsequently granted the government’s emergency motion for a stay of the injunction on May 7, pending appeal.

Two harsh concurrences, one by Judge William A. Fletcher, the other by Judge Paul J. Watford, accompanied the per curiam ruling.  And, despite concurring, Judge Fletcher wrote in a dissenting style, underscoring his strong disagreement with his colleagues.

Judge Fletcher rejected the government’s statutory arguments as “baseless” and emphasized that “[u]nder a plain-meaning reading of the text, as well as the Government’s longstanding and consistent practice, the statutory authority upon which the Government now relies simply does not exist.” He lambasted the government for putting forward “an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated” and expressed “hope[] that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are[.]”

Judge Watford focused his criticism on the policy’s failure to comply with U.S. nonrefoulement obligations, noting that “DHS will end up violating the United States’ treaty obligations by returning some number of asylum seekers to Mexico who should have been allowed to remain in the United States” and concluding that “it seems likely that the plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious.”

Litigation is ongoing, and it remains to be seen who will ultimately prevail on the merits.

The Administration’s Efforts to Deter Asylum Seekers from Coming to the U.S.

Remain in Mexico is only part of the Trump administration’s larger plan to gut the U.S. asylum system.  While the administration has long been openly hostile to Central American migrants, its assault on the asylum system ramped up last spring when the administration implemented its draconian “zero-tolerance” family separation policy.  The administration based that policy, like the ones that have followed, on the misguided assumption that introducing barriers to asylum would deter families who fear for their lives from coming to the U.S.

Then, last summer, former Attorney General Jeff Sessions issued a decision in Matter of A-B-, asserting, without basis,that people fleeing domestic violence and violence at the hands of gangs are generally not eligible for asylum.  From there, the president’s unlawful proclamation addressing “mass migration” in November (which he has since extended) sought to foreclose individuals crossing the border between ports of entry from applying for asylum.

Now the president has issued a memorandum mandating that the Department of Homeland Security (DHS) propose regulations barring asylum seekers who enter the U.S. without proper documentation from applying for work authorization, and imposing a fee for asylum applications and for work authorization for those still eligible to apply for it. The memo also calls for the “reprioritization” of officers within DHS, which would allow Customs and Border Protection (CBP) agents, or others, to adjudicate whether or not individuals have a credible fear of return to their countries of origin.

The current credible fear process requires that asylum officers, not CBP agents, do the screening and for good reason.  These officers undergo extensive training, including in trauma sensitivity, cross-cultural communication, and working with interpreters, all of which are skills critical to conducting fair and effective interviews.  Assigning CBP agents to the task would eviscerate procedures safeguarding individuals from return to persecution or torture.

In a further move to undermine the credible fear screening process, the government just revised its training materials for those interviews, mandating greater scrutiny of asylum seekers’ credibility and a written case analysis explaining the basis for a credibility finding. According to the new guidance, officers must probe inconsistencies in testimony, including discrepancies between statements documented by CBP and those made during the credible fear interview—despite long-standing recognition that the sworn statements completed by CBP are often rife with errors.

Fear-mongering and false facts

These policy changes are taking place against the backdrop of the president’s fear-mongering rhetoric and his repeated references to the asylum system as a loophole or a scam.  The administration and media alike have fanned fears about the number of migrants coming from Central America, regularly invoking the concept of a national emergency and suggesting the U.S. immigration system is at a breaking point.

Yet, fewer migrants are coming to the U.S. border now than a decade ago. In 2018, Border Patrol apprehended the fifth lowest number of migrants at the U.S.-Mexico border since 1973.

The administration also regularly conflates asylum seekers with criminals and gang members—incendiary rhetoric that ignores reality.  Many recent arrivals are Central American families, who have escaped violence and threats and fear torture or death if forced to return.  Moreover, the existing bars to asylum already screen out individuals who present a danger to the U.S., including those who have committed serious crimes or engaged in terrorist activities.  In fact, those existing bars are themselves overbroad in their application and implementation in the U.S.

So we find ourselves yet again facing an administration that struggles with both the facts and the law.  This country has long been committed to providing humanitarian protection to those who fear return to their home countries.  Through fear mongering, xenophobia, and racism, the administration is betraying that commitment and, with it, our standing in the world.

Filed in: In the News

Tags: Sabi Ardalan

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