In February 2019, the ACLU, Southern Poverty Law Center, and the Center for Gender & Refugee Studies sued the Trump Administration (the Administration) on behalf of “11 individual asylum seekers and organizational plaintiffs.” Innovation Law Lab v. Wolf, ACLU (Mar. 9, 2020), https://www.aclu.org/cases/innovation-law-lab-v-wolf; Kate Morrisey & Sandra Dibble, ACLU Sues Trump Administration over ‘Remain in Mexico’ Policy for Asylum Seekers, San Diego Union-Tribune (Feb. 14, 2019, 2:40 PM), https://www.sandiegouniontribune.com/news/immigration/sd-me-families-returned-20190214-story.html. The lawsuit challenges the Trump Administration’s implementation of its striking immigration policy, the Migrant Protection Protocol (MPP), also known as the “Remain in Mexico” Policy, which forces “asylum seekers to return to Mexico and remain there while their cases are considered.” Innovation Law Lab v. Wolf, supra.
The ACLU filed this lawsuit in the federal district court in Northern California “on behalf of 11 returnees from Guatemala, Honduras and El Salvador.” Morrissey & Dibble, supra. In their complaint, the ACLU argues the “Remain in Mexico” policy puts asylum seekers in danger by forcing them to wait in Mexico for their case and “that being returned to Mexico may prevent the asylum seekers from finding attorneys and getting ready for their hearings.” Id.
The district court barred the Administration from enforcing the MPP, ruling that it “is likely inconsistent with . . . federal immigration law” and the United States’ obligation under international law, to not return asylum seekers to a place where they face danger. Amy Howe, Government Asks Justices for Permission to Enforce “Remain in Mexico” Policy, SCOTUSblog (Mar. 6, 2020, 2:34 PM), https://www.scotusblog.com/2020/03/government-asks-justices-for-permission-to-enforce-remain-in-mexico-policy/. The Ninth Circuit affirmed the district court’s ruling and blocked the Administration from enforcing the policy. Id. However, the Administration asked the Supreme Court to allow them to enforce the policy pending the appeal of the Ninth Circuit’s decision, arguing that if the block went into effect, “tens of thousands of migrants could attempt to cross the border,” which would create an “immediate and unmanageable strain” on the United States’ immigration detention system. Id. The Administration also argued that the policy was “implemented pursuant to express authority granted by Congress decades ago.” Amy Howe, Court Grants Government’s Request to Enforce “Remain in Mexico” Policy, SCOTUSblog (Mar. 11, 2020, 2:38 PM), https://www.scotusblog.com/2020/03/court-grants-governments-request-to-enforce-remain-in-mexico-policy/. On March 11, 2020, the Supreme Court granted the Trump Administration’s request to enforce the MPP pending the Ninth Circuit appeal. Id.
II. What is the “Remain in Mexico” Policy?
In January 2019, the Trump Administration implemented the MPP, whereby “asylum seekers at ports of entry on the U.S.–Mexico border will be returned to Mexico to wait for the duration of their U.S. immigration proceedings.” All About the “Remain in Mexico” Policy, Latin Am. Working Group, https://www.lawg.org/all-about-the-remain-in-mexico-policy/ (last visited June 1, 2020) (emphasis omitted).
The U.S. Department of Homeland Security (DHS) describes the policy as:
[A] U.S. government action whereby certain foreign individuals entering or seeking admission to the U.S. from Mexico – illegally or without proper documentation – may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.
Migrant Protection Protocols, U.S. Dep’t Homeland Security(Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols. The DHS cites “a security and humanitarian crisis on the Southern border” as justification for the MPP. Id.
According to the DHS, the MPP applies to migrants who arrive on land from Mexico to the U.S. and are in removal proceedings and not otherwise admissible. Id. This incorporates asylum seekers who are afraid to return to Mexico “at any point during apprehension [or] processing . . .” but does not include those the government has deemed more likely than not to face persecution or torture in Mexico.” Id. Asylum seekers will receive a Notice to Appear (the charging document for immigration court) and are subsequently sent back to Mexico to await their hearings. Id.
III. Why the “Remain in Mexico” Policy is Harmful to Asylum Seekers
The DHS states that the “MPP will help restore a safe and orderly immigration process, decrease the number of those taking advantage of the immigration system, and the ability of smugglers and traffickers to prey on vulnerable populations . . . .” Id. However, in practice, the MPP places migrants at higher risk of experiencing violence. See Nicole Narea, The Supreme Court Just Allowed Trump to Continue Sending Migrants Back to Mexico, Vox (Mar. 11, 2020, 2:59 PM), https://www.vox.com/2020/2/28/20907053/remain-in-mexico-mpp-supreme-court-opinion.
Sending migrants back to Mexico exposes them to danger because “across Mexico’s northern border states, the very areas asylum seekers would be returned to, migrants face high rates of kidnapping, disappearances, extortion and gender-based violence.” Lily Folkerts, “Remain in Mexico” Must Go: An Illegal Policy Designed to Endanger, Not Protect, Migrants, Latin Am. Working Group (Feb. 12, 2019), https://www.lawg.org/remaininmx/ (providing infographic on dangers of the MPP). Since the MPP was implemented, 60,000 asylum seekers have been sent back to Mexico where many “have been victimized by sexual assault, kidnap and torture.” Miriam Jordan, Appeals Court Allows ‘Remain in Mexico’ Policy to Continue Blocking Migrants at the Border, NY Times (Mar. 4, 2020), https://www.nytimes.com/2020/03/04/us/migrants-border-remain-in-mexico-mpp-court.html. In fact, there is an identified “1,000 public reports of murder, torture, rape, kidnapping, and other violent attacks against migrants sent back to Mexico under MPP.” Narea, supra. Moreover, the U.S. State Department issued a travel advisory cautioning people not to visit these areas due to widespread crime and violence. Lily Folkerts & Annie Gallivan, Trouble for Turn Backs: Risks for Migrants in Mexico’s Northern Border States, Latin Am. Working Group, https://www.lawg.org/trouble-for-turn-backs-risks-for-migrants-in-mexicos-northern-border-states/ (last visited Mar. 22, 2019).
In addition to the violence, asylum seekers who are sent back to Mexico under the MPP face more barriers to litigating their asylum cases. See Folkerts, supra. For example, being sent back to Mexico inhibits their access to counsel because immigration attorneys would have to cross the border in order to see their clients and “[s]ome lawyers have even had their passports flagged and were barred from entering the country.” Id. Moreover, asylum seekers who are sent back to Mexico under the MPP do not have access to basic needs such as shelter, food, and running water. See Narea, supra.
The “Remain in Mexico” policy is unprecedented and puts asylum seekers at risk of experiencing the same danger and violence that led them to flee their home countries in the first place. See Folkerts, supra. The Trump Administration justifies the MPP by claiming it exists to protect asylum seekers. See Migrant Protection Protocols, supra. However, sending asylum seekers to Mexico to await their hearings exposes them to more dangerous hardships and inhibits their due process rights. Folkerts, supra.
Moreover, the MPP is unlawful because it violates the United States’ obligations under international law to not expel asylum seekers to a place where they face a known danger. Howe, Government Asks Justices for Permission to Enforce “Remain in Mexico” Policy, supra. The continued enforcement of this policy puts asylum seekers in grave danger. See supra Part III. It further disrupts their access to legal counsel, which is critical for migrants navigating the arduous and confusing process of seeking asylum in the United States. See Folkerts, supra. The Supreme Court should not have allowed the Trump Administration to continue to enforce this harmful, dangerous policy.
*Emma Dorris is a graduate from the University of Baltimore where she served as a staff editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Emma is currently a law clerk at Alperstein & Diener and will be a judicial clerk for the Honorable Michael Wachs of the Anne Arundel County Circuit Court. In Fall 2019, Emma was a Rule 19-220 Student Attorney in the University of Baltimore’s Immigrant Rights Clinic.