Blog post by Keshav Masani, an attorney admitted to the Bar in New York. Keshav is a volunteer attorney with the Immigration Justice Campaign, a joint initiative between the American Immigration Council and the American Immigration Lawyers Association.
On 24 August 2021, the US Supreme Court refused to block a ruling by a federal judge in Texas that orders the Biden administration to try and reinstate the ‘Migrant Protection Protocols’. The US Department of Homeland Security has stated that it will comply with the decision ‘in good faith’ as required by the order whilst it appeals the decision to the Court of Appeals for the Fifth Circuit. If the Biden administration is forced to bring the policy back, it is expected that asylum seekers will once again suffer under a policy that has little regard for the safety, welfare or due process rights of those hoping for a better future in the United States.
1. The Legal Challenge to the Biden Administration’s decision to end the Migrant Protection Protocols
The Migrant Protection Protocols (MPP), better known as the ‘Remain in Mexico’ policy was introduced by the Trump administration. Under this policy, asylum seekers arriving at the US border who are not Mexican nationals were ordered to return to Mexico and wait for their hearing. Trump’s Department of Homeland Security argued that this policy would increase efficiency and reduce lengthy backlogs for processing cases, whilst also providing a disincentive for asylum seekers with ‘meritless’ claims to come to the US where they may otherwise be admitted into the country pending a removal decision.
When the policy was in force during the Trump administration it raised a number of concerns. Vulnerable asylum seekers, including families with young children, were transported to dangerous regions in Mexico. Over the course of the policy, the US Department of Homeland Security states that approximately 68,000 migrants were turned away from the United States and sent to Mexico, where they faced the uncertainty of staying in a foreign country with limited access to housing, feared for their safety and faced challenges in gaining access to legal advice and representation. 44 percent of those who were subject to MPP had their cases decided in their absence, as they were unable to travel from Mexico back to the United States. The uncertainty was only further compounded by the onset of the pandemic.
The Biden administration suspended the policy on its first day in office. Alejandro Mayorkas, President Biden’s Secretary of Homeland Security, formally ended the policy on 1 June after issuing a seven-page memo outlining his reasons for doing so.
As a result of MPP’s termination on 1 June, the states of Texas and Missouri challenged the decision in court. In Texas v. Biden, both states argued that the decision to end the policy had not been made properly and was essentially ‘arbitrary and capricious,’ thereby in breach of the Administrative Procedure Act (APA). The APA is a statute in the United States that enables the courts to review the decision making process of government agencies.
The states argued that the government’s decision to end MPP failed to take into account the negative effects they would suffer as a result of the policy’s termination. The harm they have cited includes the cost of providing asylum seekers who have been allowed into the United States with driver’s licenses, emergency medical care and education to asylum seekers’ children. They also cite the fact that some asylum seekers may commit crimes, thereby increasing the burden on the state.
Judge Kacsmaryk, a judge in Texas who was appointed by Donald Trump, decided the case on 13 August. He ruled that the Biden administration had not taken the ‘harm’ to the states into consideration. Consequently, he vacated and remanded the decision. However, he also issued an injunction that ordered the government to reinstate MPP and send arriving asylum seekers back to Mexico.
Judge Kacsmaryk’s written opinion is riddled with problems. Perhaps the biggest problem with his opinion is that he misstated federal law by explicitly stating at paragraph 106 that the government only has two choices when dealing with asylum seekers who arrive at the border: to detain them or to send them away. He reasoned that until the government can detain every migrant who arrives at the border (which is unrealistic), asylum seekers must be turned away.
This interpretation of the law is incorrect; there is no binary choice. In truth, the judge ignores alternatives available to the government such as admitting migrants into the United States on parole. Indeed, the judge relegates the discussion of parole to a footnote in his opinion, and paints a narrative to diminish its importance and relevance. This is something that appellate courts that have been involved in the case have glossed over.
The Biden administration initially appealed to the Fifth Circuit, one of the most conservative courts in the country, to ask for a stay of the order so as to pause it from coming into effect. The court denied the government’s application to stay the order.
After this ruling, the Biden administration applied to the US Supreme Court for a stay. The Supreme Court has refused to stay the order by a 6-3 majority, thereby forcing the Biden administration to engage with Mexico and attempt to reinstate the policy. It should be noted that Supreme Court Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor would have granted the stay. The Biden administration is expected to appeal the merits of Judge Kacsmaryk’s decision in the coming months.
2. The Impact of the Migrant Protection Protocols on the Rights and Welfare of Asylum Seekers
2.1. The danger to asylum seekers in Mexico
By refusing to grant a stay of Judge Kacsmaryk’s order, the US Supreme Court seems to have potentially jeopardised the rights of asylum seekers looking to the United States for relief.
Under the policy, asylum seekers who are often fleeing violence and persecution in their own country are unfairly and inhumanely subjected to even further danger.
When MPP was in force during Donald Trump’s presidency, asylum seekers were forced to travel through dangerous regions of Mexico, such as the state of Tamaulipas, that are notorious for organised crime and kidnapping. The United States government is well aware of the dangerous conditions in this area, as there is a level 4 travel advisory in place for the state: the highest threat level that warns US citizens not to travel to this region. The US government recognises that criminal activity such as murder, armed robbery, extortion, kidnapping and sexual assault are common in this area. The US government further concedes that criminal groups target public and private passenger buses by taking passengers and holding them ransom. The government also points to the inability of local law enforcement to respond to crime. In an effort to protect its own employees, the US government stipulates that its employees may only travel within a limited radius around the US Consulates in Nuevo Laredo and Matamoros and must observe a curfew between the hours of midnight and 06:00 a.m. US government employees may also only travel on one highway within the state and must do so within daylight hours.
Asylum seekers are among the most vulnerable members of our society. They are forced to leave behind their lives and flee their homes because they cannot be who they are or believe in what they wish without fearing for their safety. A policy that knowingly forces such individuals to grapple with the dangers that the US government would not subject its own citizens to is, at best, reckless.
The dangers that migrants faced under the Trump-era policy have not gone unnoticed. Human Rights First has documented that there have been 1,544 publicly reported cases of murder, rape, kidnapping and assault up until 19 February 2021 for asylum seekers who were subjected to MPP. Of these cases, 341 have been instances involving kidnapping or attempted kidnapping of children. Human Rights First has also documented that the government has sent back asylum seekers who have subsequently experienced torture, harassment by Mexican the police, and in the case of LGBTQ asylum seekers, discrimination. Given that these statistics only reflect reported instances, in reality, the numbers are likely to be higher.
2.2. The impact of MPP on procedural fairness
In the past, US Customs and Border Patrol (CBP) did not ask asylum seekers whether they feared danger or persecution should they be returned to Mexico. It was for the individual to assert that fear proactively. This is an unconscionable burden to place on those seeking asylum, particularly with the language barriers they may face. There is nothing in the guidance that guarantees that those arriving at the border will be able to communicate with an official in a language that they understand. In addition, CBP officers must decide whether it is more likely than not that the asylum seeker would be subject to harm if they were sent back to Mexico. The burden to prove that they would be likely to face danger is on the individual asylum seeker. This decision is made with very few, if any procedural safeguards in place.
It is a decision made entirely at the discretion of the officer, usually within minutes and consists largely of ‘yes’ or ‘no’ questions. Crucially, the asylum seekers have no right to counsel whilst this decision is being made. Finally, if migrants are placed in MPP, there is no realistic way for them to challenge the decision itself or the decision-making process used by CBP.
MPP has impacted the procedural fairness of their removal proceedings as well. Trump’s Homeland Security Secretary, Kirsten Nielsen, stated in her memo proving guiding principles to set up the policy that ‘Individuals subject to [MPP] may return to the United States as necessary and appropriate to attend their immigration court proceedings.’ Yet the memo and any subsequent guidance fail to provide any support to ensure that this will be possible. The asylum seekers are left to fend for themselves and make the journey back to the United States in time for their hearing.
The Secretary’s words appear to show that the Trump administration was wildly out of touch with the reality of this situation. As a result of being in Mexico, many migrants have been unable to make the journey back to the United States. TRAC Immigration has documented that of the 71,038 MPP migrants who had removal hearings between March 2019 and February 2021, 28,405 of these cases were decided without the asylum seeker being present. These hearings and often conclude with the asylum seeker being ordered deported without ever having the chance to participate.
MPP has also negatively impacted asylum seekers’ access to counsel leading up to their hearing and at the hearing itself. Of the asylum seekers who could attend their hearing, 29,046 were unrepresented. The legal principles of claiming asylum are complex. According to experts such as Professor Elizabeth Hull, ‘immigration laws are second only to the tax code in complexity.’ Often, asylum seekers have little to no legal knowledge. Nor do they have the requisite skills to prepare asylum applications, gather documentation or translate documents into English for the benefit of the court and opposing counsel. Nor do they have any experience of trial advocacy and they cannot reasonably be expected to have a grasp on the procedural formalities of litigation. In contrast, an attorney always represents the US government in removal proceedings, leading to the inevitable conclusion that an unfair fight often leads to an unfair outcome. And yet, the magnitude of what is at stake almost demands that the process should be fair. For asylum seekers, their safety and wellbeing, and sometimes even their lives are at stake, and having a lawyer would undoubtedly be beneficial. Whilst there is no right to a government appointed attorney under US immigration law, forcing asylum seekers to remain in Mexico makes it even more difficult for them to seek out and pay for counsel themselves or to secure pro bono representation from the United States.
In his memo issued on 1 June in which he attempted to formally end the policy, Secretary Mayorkas states, ‘the United States is both a nation of laws and a nation of immigrants, committed to increasing access to justice and offering protection to people fleeing persecution and torture through an asylum system that reaches decisions in a fair and timely manner’.
Ending MPP would achieve that goal. This policy defeats the very purpose of asylum by casting away those who are fleeing violence and danger into the very midst of what they are trying to get away from without regard to their safety or welfare. It is carefully crafted to make it even more difficult to meaningfully participate in the complex and daunting process of representing oneself in immigration court and makes the quest to seek asylum in the United States as unattractive as possible. It is a policy that is incompatible with the aims and objectives of a fair immigration justice system.
Ultimately, whether this policy will definitely return depends on whether the court determines that the Biden administration ended the policy using the correct procedure. It also hinges on Mexico’s willingness to entertain this policy for a second time. However, until the matter is fully resolved, the Biden administration has to cooperate with the court order and MPP might end up being revived (in some form) to the detriment of asylum seekers who are desperately looking to America, a nation of immigrants, for help.
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