Remain in Mexico: How the United States is Flouting its Obligation to Protect Asylum Seekers
The Trump Administration’s controversial “Remain in Mexico” policy—officially, the Migration Protection Protocols (MPP)—is being challenged in courts, as in Innovation Law Lab v. McAleenan.
By: Dale Kim, staff member
“Leave me in a cell, please. Leave me in a cell,” pled Ana, a despondent young woman from Guatemala, to a U.S. immigration court judge in El Paso. Though she had expressed her fear of returning to Mexico, Ana would be sent back to Ciudad Juàrez to wait there for further immigration proceedings under the Trump Administration’s controversial “Remain in Mexico” policy—officially, the Migration Protection Protocols (MPP). Since the announcement of the MPP in January 2019, U.S. immigration officials have subjected at least 51,000 migrants, mostly asylum seekers, to similar treatment. Chances for procuring legal representation in Mexico for their future hearings are slim—only a reported one percent of forcibly-returned asylum seekers have managed to do so. And while asylum seekers under the program are forced to wait weeks or months in Mexico’s notoriously-unsafe border regions for their turn to appear before an immigration judge, they are enduring targeted rape, kidnapping, sexual exploitation, violent assault, and persecution.
Since 2017, the Trump Administration has undertaken numerous efforts to deter migrants from entering the United States through its southern border. Like its predecessors, the MPP has drawn opposition in U.S. courts, including a challenge in Innovation Law Lab v. McAleenan. The plaintiffs in McAleenan contend that the Department of Homeland Security (DHS) program returns asylum seekers to Mexico without regard for their fears of persecution, thereby violating the United States’ nonrefoulement obligations under international law. The nonrefoulement principle, enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, prohibits countries (including the United States) from forcibly expelling or returning a refugee to a country or territory where he or she fears being persecuted on the basis of his or her race, religion, nationality, membership in a particular social group, or political opinion. An additional obligation of the United States to prohibit refoulement is laid out in Article 3 of the Convention against Torture.
In addition to the foregoing treaties, the United States is obligated to comply with the nonrefoulement principle as an accepted norm of customary international law. The complaint in McAleenan echoes this assertion by stating that the prohibition on refoulement is a “specific, universal, and obligatory norm of customary international law.” Furthermore, the case has been made that the nonrefoulement principle has become jus cogens, or a peremptory norm of international law that is binding on all states and cannot be superseded through the enactment of conflicting treaties or laws.
Conscious of its nonrefoulement obligation, the MPP program gestures towards compliance by setting out procedures for a U.S. asylum officer to interview an individual and assess his or her risk of persecution upon return to Mexico, but only if the individual first affirmatively states a concern that he or she faces a risk of persecution based on protected grounds. However, the McAleenan plaintiffs argue that the MPP does not comply with U.S. nonrefoulement obligations because the DHS procedures inadequately protect asylum seekers. An amicus brief filed by a union representing over 2,500 U.S. immigration and asylum officers concurs. In their brief, the officers argue that the MPP “virtually guarantees” an asylum seeker will not be permitted to remain within the United States—and forcibly returned to Mexico—as they await future immigration proceedings. They focus on two MPP procedures that have implemented virtual barriers.
First, the requirement that an asylum seeker affirmatively raises his or her fear of persecution in Mexico likely makes the MPP’s safeguards against refoulement deficient alone, because migrants are unlikely to claim protection that they may not know they are entitled to. In the Ninth Circuit’s May 7, 2019 decision to stay the district court’s injunction of the MPP, this procedure also drew the scrutiny of Judge Watford. In his concurrence, he notes that U.S. officials could comply with their nonrefoulement obligation by simply “ask[ing] asylum seekers whether they fear persecution or torture in Mexico,” and that he was “at a loss to understand how an agency whose professed goal is to comply with non-refoulement principles could rationally decide not to ask that question.” Like the union, Judge Watford also concludes that the policy is “virtually guaranteed to result in some number of applicants being returned to Mexico in violation of the United States’ non-refoulement obligations.”
Second, the officers also point to the MPP’s application of a higher evidentiary burden—a preponderance, or a “more likely than not,” standard—for determining whether an asylum seeker is at risk of persecution if they return to Mexico, rather than the lower standard that applies when evaluating their risk if returned to their home country. They argue that the preponderance standard should be reserved for a full evidentiary hearing before an immigration court, after asylum seekers have had time to seek counsel and gather evidence. It is not proper for use in the credible-fear interviews conducted to determine whether an asylum seeker should be returned to Mexico. Furthermore, even when officers determine asylum seekers have met the higher evidentiary burden, the determinations have at times been overruled by DHS officials, according to six U.S. asylum officers.
While litigation on the merits of the MPP is ongoing, asylum seekers like Ana beg to remain in a detention cell within the United States rather than across the border in nominal freedom. In the eyes of any objective observer, her fear of persecution is quite apparent. If the MPP had directed U.S. immigration officers to simply ask about her fears, her response would likely make it crystal clear (though, as Judge Watford notes, “one suspects the agency is not asking an important question…simply because it would prefer not to hear the answer”). But, it does not. As a result, it is equally apparent that the Trump Administration, driven by its xenophobia and blatant disregard for its international legal obligations, has put the legitimacy of international norms governing the protection of refugees at great risk. For now, asylum seekers on the U.S. southern border like Ana will continue to endure dangerous conditions in Mexico, wondering why “no one wants to help me.”
Dale Kim is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. Dale graduated from George Washington University in 2014 with a B.A. in International Affairs.