** LEGAL UPDATE **
In January 2019, the U.S. Department of Homeland Security (DHS) announced that it would begin implementing a new "Remain in Mexico" or “Wait in Mexico” policy for asylum seekers at the southern border. The idea of the policy, officially called the Migrant Protection Protocols (MPP), was that people who seek admission at a U.S. port of entry to apply for asylum, or who are apprehended near the U.S. border after entering unlawfully and express a fear of returning to their home country, would be sent back to Mexico as they await a hearing with an immigration judge on their asylum claim.
IMPORTANT NOTE REGARDING SUBSEQUENT DEVELOPMENTS: The initial implementation of this policy was momentarily blocked by a federal court decision in the case of Innovation Law Lab v. Nielsen. Then the U.S. Supreme Court, in March 2020, ruled that the "Remain in Mexico" policy could continue during appeals. After President Joe Biden took office on January 20, 2021, DHS announced the suspension of new enrollments in the MPP program, saying the Department would cease adding people to the program but that all current MPP participants should remain where they are, pending further official information. Also, DHS cautioned people that current COVID-19 non-essential travel restrictions, both at the border and in the region, remain in place.
The below discussion refers to the policy as it stood before the injunction and stay; and as before, much depends on the Court's ultimate decision.
Previously, people who sought admission at a U.S. port of entry to apply for asylum, or who were apprehended after entering unlawfully and expressed a fear of returning to their home countries, were given an initial screening interview, known as a credible fear interview (CFI) with an asylum officer.
Someone who received a positive determination in this CFI interview would be issued what's known as a Notice to Appear (NTA) and given a hearing date with an immigration judge. At this point, the asylum seeker might have also been eligible for an immigration bond, allowing his or her release while the asylum case was pending in court.
Under the new procedure, however, DHS will bypass the CFI process. Instead, the agency will issue an NTA to people who express a fear of returning to their home countries. According to Customs and Border Protection (CBP) guidelines, the policy will not be applied to unaccompanied alien children (UACs), citizens or nationals of Mexico, or people who fear persecution or torture in Mexico itself.
After asylum seekers are returned to Mexico, they will be issued a humanitarian visa by the Mexican government (valid for one year) and told to return to a port of entry within 45 days for a hearing with a U.S. immigration judge.
If a non-Mexican asylum seeker fears return to Mexico, he or she must affirmatively state that fear to a CBP officer. Under the CBP guidelines, officers will not be screening for fear of return to Mexico for non-Mexican nationals or citizens.
After expressing a fear of returning to Mexico, an asylum seeker must demonstrate that it is “more likely than not” that he or she will be persecuted or tortured in Mexico. This legal standard is high, and difficult to meet. Furthermore, attorneys are not permitted to represent people as they try to demonstrate their fear of return to Mexico.
Access to legal counsel will be one of the most significant challenges for people subject to the new MPP. As asylum seekers wait for hearings in Mexico, they are unlikely to find U.S. attorneys to take on and adequately prepare their cases.
Asylum seekers may also be subject to persecution and danger in Mexico while they wait with other asylum seekers under harsh conditions.
In February 2019, the American Civil Liberties Union (ACLU) and the Southern Poverty Law Center (SPLC) filed a lawsuit against the MPP in the case Innovation Law Lab v. Nielsen. So far, no decision has been made in the case. In the meantime, use of the MPP is currently expanding for asylum seekers at the southern U.S. border.
Effective Date: January 25, 2019