DHS recently announced an unprecedented new policy called the Migrant Protection Protocols ("MPP"). The MPP is currently only being implemented in Tijuana, but will imminently be expanded to other cities on the U.S.-Mexico border. As we brace ourselves for the expansion of this program, it is important to consider just how much of a blow it is to due process and human rights protections for refugees and asylum seekers.
The MPP, does not provide protection to migrants as its name suggests. On the contrary, the MPP, otherwise known as the Remain in Mexico policy, provides devastating barriers to asylum seekers. The ostensible purpose of the policy, according to DHS, is to keep people from "taking advantage of the immigration system" and to strengthen national security. However, the end result is a due process and human rights disaster. The MPP requires that migrants who seek to enter the United States from Mexico without documentation, and who have shown a credible fear of return to their home countries, will have to await their immigration court hearings in Mexico rather than the United States.
The Remain in Mexico policy strips asylum applicants and refugees of their due process rights. Under the new rules, they must try to secure competent legal representation, file the appropriate paperwork, and meet all filing deadlines from within Mexico. These respondents are only allowed to enter the United States to attend their removal hearings. They are denied the opportunity to meet with attorneys or prepare their cases. Preparing a viable asylum case in immigration court generally involves submitting a detailed declaration, often a medical, psychological, or country conditions expert's report, other supporting documentation, country conditions evidence, and a well-reasoned legal brief, all of which require representation by a zealous well-trained immigration attorney or accredited representative. It is well established that unrepresented respondents in immigration court are far more likely to lose their cases than those with legal representation.
Aside from the due process concerns, there are significant safety concerns with the Remain in Mexico policy as well. The respondents subject to the MPP who are from Central America, are being relegated to crowded and under-funded shelters in dangerous border areas in cities such as Tijuana and Ciudad Juarez. Some will be sitting ducks for the very persecutors they are trying to escape. DHS has even explicitly included migrants who fear return to Mexico, "but who have been assessed not to be more likely than not to face persecution or torture in Mexico" in the policy's implementation. This clearly violates international law's prohibition on refoulement, to which the United States is bound pursuant to the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees. Nonrefoulment is an obligation by which a country shall not return a refugee to a country where his or her life or freedom would be threatened on account of a protected ground. The MPP is another example of the Trump Administration disregarding the law simply to further its xenophobic agenda.
As with most of Trump's inhumane policies, the MPP has been challenged in federal court and the case is currently pending. It is important to keep an eye on the litigation as it will affect many asylum seekers in the near future.
If you or a family member is subjected to the Remain in Mexico policy, it is imperative that you try to schedule a phone consultation with an experienced immigration attorney. Filing for asylum in court is daunting enough as it is from within the United States, but will be exponentially more difficult if having to be done from Mexico.