The Department of Homeland Security (“DHS”) is implementing a new set of protocols affecting those seeking entry and asylum at the southern border. While national attention was focused on the government shutdown, the DHS has quietly announced its intention to put into effect their “Migrant Protection Protocols.” The protocols are intended to address the perceived humanitarian crisis at the U.S./Mexico border. The current administration will no longer accept asylum applicants and other migrants into the U.S. for processing. Instead, the new protocols will turn away immigrants without documents, issue them a Notice to Appear in immigration court, and then force them to await in Mexico for their immigration hearing.
This plan was announced back in December of 2018, and it was originally referred to as “Remain in Mexico.” The Migrant Protection Protocols center on one specific part of the Immigration and Naturalization Act (“INA”). The DHS is invoking §235(b)(2)(C). This section authorizes the government to return people arriving in the U.S. by land from a contiguous foreign territory if they have pending immigration proceedings. The strategy by the current administration is therefore to begin issuing a Notice to Appear to immigrants arriving in the U.S. to put them in pending proceedings. Immigrants are then returned to Mexico to await their day in court, when a U.S. Immigration Judge will decide whether to grant their claim for asylum. This is a huge shift from how the government had protected asylum seekers for decades past, which was by paroling them into the U.S. This allowed asylum seekers an opportunity to gather information and access counsel to help them present their case, while waiting for their hearing safely in the United States.
A good analogy for this new protocol is to imagine forcing someone to wait on your doorstep while it is raining, instead of inviting them in to wait out the storm. The current administration has labeled the immigration processes at the southern border a “humanitarian crisis,” but their approach to resolving the issues immigrants face is anything but humanitarian. Conditions in Mexico can be dangerous for travelers. Many immigrants arriving from Central American countries have no resources to obtain food, shelter, and safety. Turning back applicants at the border places them in a very vulnerable position. It would also be very difficult for applicants to access competent and experienced immigration counsel across the border. Without counsel to present their case in court, it would be impossible for applicants to navigate the procedures and processes successfully.
This protocol is a two-way street, and the administration is relying on Mexico’s cooperation to receive the large numbers of immigrants whom U.S. authorities turn back at the border. Mexico in general has reacted negatively to the hard-line policies of the current administration. The campaign promise to force Mexico to pay for an expensive and ineffective border wall is not easily forgotten. Additionally, the thousands of immigrants arriving at border towns from the Central American caravans have already placed local Mexican officials in a difficult position. However, Mexico is authorizing the temporary stay of immigrants turned away by the U.S., granting them access to information and legal services, and even providing access to work permits to allow individuals to support themselves. Mexico has responded with an umbrella for immigrants waiting on the U.S. doorstep.
According to a memo published by U.S. Customs and Border Protection, immigration officers began implementation of the new protocols at the San Ysidro border crossing on Monday, January 28, 2019. The memo also outlines that the plan will be expanded “in the near future.” San Ysidro is one of the busiest border crossings in the world, and it services thousands of pedestrians and vehicles each day. Officials and advocates will have their attention focused on the border to ascertain the short and long-term effects these new protocols will have on immigration processes.
Immigration matters are complex and case-specific. If you, or anyone you know, have concerns about applying for asylum, appearing in immigration court, or entering the U.S., please contact a knowledgeable and experienced immigration attorney.
Sources and further reading:
DHS Migrant Protection Protocols
Department of Homeland Security, “Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration,” (12/20/2019)
Department of Homeland Security, “Migrant Protection Protocols,” (1/24/2019)
Nielsen, Kirstjen M., “Policy Guidance for Implementation of the Migrant Protection Protocols,” (1/25/2019)
McAleenan, Kevin K., “Implementation of the Migrant Protection Protocols,” (1/28/2019)
Reactions and Impact
Immigration Impact, “US Government to Force Migrants to Remain in Mexico and Await Their Immigration Court Hearings,” (1/25/2019)
Vox, “The US is sending some legal asylum seekers back to Mexico,” (1/25/2019)
National Public Radio, “Trump Administration Begins ‘Remain In Mexico’ Policy, Sending Asylum-Seekers Back,” (1/29/2019)
National Public Radio, “U.S. Is Rolling Out Its ‘Remain In Mexico’ Policy On Central American Asylum-Seekers,” (1/24/2019)