Migrant Protection Protocols Violate the Non-Refoulement Principle
In general, every noncitizen has a legal right to seek asylum at a US border.1 Previously, asylum seekers were detained within the United States or released into the United States to await their hearing before an immigration judge.2 Now, however, a new policy from the US Department of Homeland Security (“DHS”) requires that asylum seekers on the southern border remain in Mexico until their hearing date.3 This policy, called Migrant Protection Protocols (“MPP”) likely violates the United States’ obligations under international law.4
Since MPP was announced, as many as 50,000 asylum seekers, most from Central America, have been returned to Mexico after seeking asylum at the border.5 They are gathered in crowded shelters and encampments ridden with disease and violence.6 Some asylum seekers are waiting in areas so dangerous that the US State Department classifies them as a Level 4 security threat—on par with Somalia and Syria.7 Ethnic minorities from indigenous cultures, women targeted by gangs, LGBTI individuals, and others remain at risk from the same harms from which they fled in their home countries.8 It is these individuals whom the United States must treat with special care.
Article 33 of the 1951 Convention Relating to the Status of Refugees prevents the return of individuals whose life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion.9 This is known as the principle of non-refoulement.10 In rolling out MPP, the government is using two procedures that, in the words of a federal judge, “virtually guarantee[]. . . [a] violation of the United States' non-refoulement obligations.”11
First, the government’s position is that asylum seekers must make an unprompted, affirmative statement that they fear being returned to Mexico.12 Immigration law in other contexts requires an officer to ask noncitizens if they have a fear of return.13 Without the knowledge that the United States is returning asylum seekers to Mexico, and with limited English-language ability (or even Spanish in many cases),14 it is highly unlikely that, unprompted, these individuals will express a fear of return to Mexico.
Second, even if asylum seekers do express a fear of return to Mexico, the legal standard is all but unreachable. Individuals must demonstrate that they will “more likely than not” face persecution in Mexico.15 This is a standard typically reserved for removal proceedings conducted by an immigration judge, complete with procedural safeguards like a full evidentiary hearing, notice of rights, access to counsel, time to prepare, and a right to administrative and judicial review.16 It is not surprising that asylum officers implementing MPP have confirmed that approvals under this standard are rare.17
Against a rollback of asylum protections globally,18 the United States should, at a minimum, live up to its non-refoulement obligations by requiring officials to ask asylum seekers whether they have a fear of persecution in Mexico and use appropriate procedures to adjudicate that request.
Abigail Krusemark is a staff member of Fordham International Law Journal Volume XLIII.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
1 8 U.S.C. § 1158 (2018).
2 See Lindsay M. Harris, Contemporary Family Detention and Legal Advocacy, 21 Harv. Latinx L. Rev., 135, 143-44 (2018).
3 Robert Moore, In Juárez, 'Remain In Mexico' Policy Casts Asylum-Seekers Back Into Uncertainty, NPR (July 10, 2019), https://www.npr.org/2019/07/10/740159720/under-trump-policy-migrants-seeking-asylum-must-wait-in-mexico.
4 MPP is commonly referred to as “Remain in Mexico.” Id. DHS claims statutory authority to implement MPP from 8 U.S.C. § 1125(b)(2)(C) (2018). Press Release, Dep’t of Homeland Security, Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (Dec. 20, 2018), https://www.dhs.gov/news/2018/ 12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration. The justifications for MPP belie the evidence. The Trump Administration has focused the public’s attention on asylum seekers who do not show up for their hearings. Brett Samuels, Homeland Security touts end of ‘catch and release’ next week, The Hill (Sept. 23, 2019), https://thehill.com/homenews/administration/462699-homeland-security-touts-end-of-catch-and-release-next-week. Empirical evidence suggests this focus is misplaced. Ingrid Eagly, Steven Shafer & Jana Whalley, Am. Immigration Council, Detaining Families: A Study of Asylum Adjudication in Family Detention 23 (Aug. 2018), https://www.americanimmigrationcouncil.org/sites/default/files/research/detaining_families_a_study_of _asylum_adjudication_in_family_detention_final.pdf.
5 Kristina Cooke, Mica Rosenberg & Reade Levinson, U.S. migrant policy sends thousands of children, including babies, back to Mexico, Reuters (Oct. 11, 2019), https://www.reuters.com/article/us-usa-immigration-babies-exclusive/exclusive-u-s-migrant-policy-sends-thousands-of-children-including-babies-back-to-mexico-idUSKBN1WQ1H1.
6 Id.
7 See U.S. Dep’t of State, Mexico Travel Advisory: Tamaulipas State, https://travel.state.gov/content/travel/en/ traveladvisories/traveladvisories/mexico-travel-advisory.html (last visited Oct. 25, 2019).
8 Brief for Local 1924 as Amicus Curiae Supporting Appellees at 23-24, Innovation Law Lab v. McAleenan, 366 F. Supp. 3d 1110 (N.D. Cal. 2019) appeal docketed, No. 19-15716 (9th Cir. 2019).
9 189 U.N.T.S. 137, 176. See also 1967 Protocol Relating to the Status of Refugees art. I, Jan. 31, 1967, 19 U.S.T. 6223, 6225, 6276 (binding the United States to comply with Article 33).
10 See Ellen F. D’Angelo, Non-refoulement: The Search for a Consistent Interpretation of Article 33, 42 Vand. J. Transnat’l L. 279, 281-82 (2009).
11 Innovation Law Lab v. McAleenan, 924 F.3d 503, 511 (9th Cir. 2019) (Watford, J., concurring).
12 Id.
13 Id.
14 See Jennifer Medina, Anyone Speak K’iche’ or Mam? Immigration Courts Overwhelmed by Indigenous Languages, N.Y. Times (Mar. 19, 2019), https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html.
15 U.S. Citizenship & Immigration Servs., Guidance for Implementing Section 235(b)(2)(C) of the Immigration and Nationality Act and the Migrant Protection Protocols 3 (Jan. 28, 2019), https://www.uscis.gov/sites/default/ files/USCIS/Laws/Memoranda/2019/2019-01-28-Guidance-for-Implementing-Section-35-b-2-C-INA.pdf.
16 Supra note 8, at 18-19.
17 Dara Lind, Civil servants say they’re being used as pawns in a dangerous asylum program, Vox (May 2, 2019), https://www.vox.com/2019/5/2/18522386/asylum-trump-mpp-remain-mexico-lawsuit.
18 See Nanjala Nyabola, The End of Asylum, Foreign Aff. (Oct. 10, 2019), https://www.foreignaffairs.com/ articles/2019-10-10/end-asylum.