Remain in Mexico: An Assault on Asylum

Over the last six months, the Trump administration has forcibly returned thousands of Central American asylum seekers to Mexico to wait as their cases move through backlogged immigration courts in the U.S. A harsh, broadly applied program, “Remain in Mexico” sends vulnerable men, women, and children to dangerous regions for unknown duration, in direct violation of U.S. and international law. Here’s what you need to know.

What has come to be called “Remain in Mexico” is yet another tool of the Trump administration to curtail Latin American migration to the U.S., and to specifically target certain asylum seekers, who have a right to request protection. Officially and misleadingly referred to as the Migrant Protection Protocols (MPP) in government documents, the program was announced in December, and allows for the forcible return of Central American asylum seekers and others to Mexico for the duration of their claim proceedings. It does not protect migrants; rather it places asylum applicants in harm’s way, retraumatizes an already distressed population, and violates existing U.S. and international law (which is why humanitarian organizations and immigration advocates refer to the program as the “Migrant Persecution Protocols).

The Department of Homeland Security (DHS) rolled out the implementation of the program in late January, initially at the San Ysidro/Tijuana port of entry for male asylum seekers traveling on their own. Since then, Remain in Mexico has expanded to two other extremely busy ports—El Paso/Ciudad Juárez and Calexico/Mexicali—as well as, more recently, Laredo/Nuevo Laredo, and to asylum-seeking women and families (which represent over half of Border Patrol apprehensions), with the aim of extending it across the entire U.S.–Mexico border. The program has already accelerated at a dramatic rate. In the first two weeks of Remain in Mexico, 73 men were returned to Mexico to wait out their asylum proceedings; by late March, at the two-month mark, that number rose to 370 men, women, and children. In May, the number of returned people skyrocketed to 8,835, then to 10,393 by early June, and over 15,000 by the end of that month. The current count of people left stranded by Remain in Mexico is more than 18,000, an astoundingly rapid and methodical escalation that shows no signs of stopping, and the reason the KBI has flagged the program as a major advocacy priority.

HUMANITARIAN ISSUES: As ever-increasing numbers of asylum seekers are denied the protections of remaining in the U.S., the most immediate humanitarian concerns on the ground are criminal dangers and risks to health, safety and, well-being. Central Americans in Mexican border cities are often subjected to discrimination, and targeted for extortion, theft, kidnapping, sexual assault, or murder. Some of the highest homicide rates in the western hemisphere can be found in cities such as Tijuana and Ciudad Juárez where a majority of asylum seekers have been sent. With migrant shelters reaching capacity (and typically designed for stays of only 1–3 days), many individuals and families sent back to Mexico are forced into homelessness, sleeping on the streets and more vulnerable to crime as well as the elements. Moreover, Remain in Mexico—and other U.S. policies as well as Mexican ones—drive migrants away from safer routes to more perilous ones and toward smugglers who exploit them.

In addition to violence and residential shortages, the indeterminate duration of stays in Mexico raises other challenges—lack of work; restricted access to legal assistance; poor health services; and disrupted children’s schooling—subjecting people to greater life interruptions and uncertainty. Returned asylum seekers are also separated from U.S.-based family and communities who are ready to support them and offer services, but are denied the opportunity to do so. And as the Mexican government cooperates with the U.S. program (more on that, below), asylum seekers risk possible deportation from Mexico to the dangerous countries they fled.

Finally, Remain in Mexico compromises the due process rights of returned asylum seekers by impeding access to legal counsel. According to the Hope Border Institute, 86% of people returned under Remain in Mexico do not have lawyers (although applicants with representation are five times more likely to be granted asylum), and those lawyers who represent the rest must contend with the logistical and safety problems of their clients being in another country, such as reaching them by phone and, hence, meeting deadlines; being denied entry into Mexico; and risking being targeted by the same criminals who prey on migrants. The logistical challenges of Remain in Mexico don’t end there—as the program expands to more remote areas, asylum seekers will have to travel longer distances to report for a 9:00am check-in at the port of entry nearest their court proceedings, which can be as far as 120 miles away (or three hours by bus or car).

LEGAL ISSUES: On February 14, just weeks after Remain in Mexico was implemented, the American Civil Liberties Union, the Southern Poverty Law Center, and several other organizations filed suit on behalf of eleven Central American asylum seekers returned to Mexico under the program. Their challenge is based on violations of the humanitarian protections afforded under U.S. and international law. The U.S. Immigration and Nationality Act stipulates that asylum applicants remain in the U.S.—either in detention or released on parole to live with family or other sponsors—while their cases are pending. The Refugee Convention prohibits returning refugees to any country where they would face persecution or threat to their lives of freedoms (the right of non-refoulement). Though Remain in Mexico allows for asylum applicants to be exempt from the program if they can prove credible fear, the burden of proof is high—more so than for asylum—and most people are unable to provide the documentation to meet it. Remain in Mexico also instructs asylum offices not to ask about fear of persecution (the applicant must raise the topic), and even when they make a credible fear determination, it is often overruled by their supervisors.

Following up on the lawsuit, a California district court issued a preliminary injunction in April, halting Remain in Mexico due to insufficient safeguards against returning people to danger. The ruling applied to the plaintiffs and anyone to whom the program would subsequently apply, but not to those already returned. A month later, a three-judge panel of the Ninth Circuit Court of Appeals overturned the injunction, citing the “irreparable harm” DHS would experience in processing large number of migrants and asylum seekers, and allowing Remain in Mexico to resume. It is notable that, in an extraordinarily rare action for federal employees, the asylum officers’ labor union submitted an amicus brief to the Ninth Circuit, criticizing Remain in Mexico, explaining that the program undermines their duties and could endanger lives, and asking for the program to be revoked.

U.S.–MEXICO RELATIONSHIP: In June, President Trump tweeted about imposing tariffs on Mexican goods until migration at the U.S.–Mexico border stops. In the end, the terms agreed to nine days later in the “U.S.–Mexico Joint Declaration” were largely in place back in December when Remain in Mexico was announced: (1) Mexico will deploy security forces throughout the country to stem the flow of migrants (the June agreement included 6,000 National Guard at Mexico’s southern border with Guatemala); (2) the U.S. will expand Remain in Mexico across the border, and accelerate the adjudication of claims; and (3) Mexico will allow people seeking asylum in the U.S. to stay in the country, and provide them with jobs, healthcare, and education. The pact is to be re-evaluated sometime between 45 and 90 days after its announcement (between July 22 and September 5) to determine if immigration numbers meet the Trump administration’s expectations, though a particular benchmark was not specified. Effectively, the Mexican government has agreed to sell out thousands of people in exchange for a better relationship with the U.S. only to have the threat of tariffs—using trade in a rare quid pro quo fashion to advance an immigration agenda—suspended, not eliminated.

The declaration did not include an agreement to “safe third country” status for Mexico, a major goal for the U.S. that would allow DHS to legally reject asylum seekers. A safe third country policy would require that asylum seekers traveling through Mexico (or Guatemala) apply for protections in the first country through which they journey before applying in the U.S. However, Mexico likely does not meet the established standards to be a safe third country, which dictate that (1) it is not a source of asylum seekers itself, and (2) it can guarantee a safe environment for people seeking protection. But there are indeed asylum seekers from Mexico, and it is already evident that the country lacks the resources to safeguard large numbers of asylum seekers. In fact, there are human rights reports that document persistent dangers to migrants in Mexico.

The consideration of this negotiating point was upended last week when the Trump administration announced a new rule that automatically denies asylum to migrants who travel to the U.S. by land, traversing a third country en route and requiring them to seek asylum in the first country they pass through. This rule is already being challenged in court, and further, any designation of Mexico as a safe third country would need approval from the Mexican Congress to be implemented, an unlikely outcome.

THE KBI AND ADVOCACY: Remain in Mexico is a system that is set up to fail, and it follows in the wake of various attempts to restrict asylum, such as family separation and requiring presentation at a port of entry instead of anywhere along the border (which is supported by the Refugee Convention). It is increasingly apparent that the Trump administration is set on dismantling the asylum system through measures that prevent or discourage people from applying to begin with. It is also clear that the federal courts are an unwieldy, overly slow, and unpredictable method of protecting the rights of asylum seekers. From both a humanitarian and legal perspective, Remain in Mexico is cause for immediate concern and urgent public action.

The KBI stands in strong opposition to policies and programs that deny the right to asylum and intensify the suffering of migrants. On the same day in February that a legal challenge was mounted against Remain in Mexico, sixty humanitarian and immigration advocacy groups, including the KBI, signed a letter to then DHS Secretary Kirstjen Nielsen calling for an immediate halt to Remain in Mexico on humanitarian and legal grounds. You can join us in advocating for an end to Remain in Mexico in the following ways:

• Contact your Congressional representatives and senators. This month’s action alert provides a way to do that: https://www.kinoborderinitiative.org/revoke-remain-in-mexico/.
• Write op-eds and letters to the editor of your local paper to educate your community about Remain in Mexico and garner support of rescinding it.
• If you live in southern Arizona, attend one of the advocacy informational sessions sponsored by the KBI, the Florence Project, and Al Otro Lado. A Phoenix event took place on Monday, July 22, and there is one scheduled in Tucson on Thursday, August 8. At these gatherings, the KBI will compile a list of volunteers with legal expertise who are able to assist the asylum seekers we encounter. Check our website and FB page for updates.

Accompaniment takes many forms, and speaking out against injustice on behalf of those whose voices go unheard is but one. Thank you for your support and advocacy!