America's Voice En Español »
Originally published November 15, 2019
The ‘Remain in Mexico’ policy, also known as the Migration Protection Protocols (MPP, its official name), is a Trump Administration migration change that is undermining our asylum laws and endangering migrant children and families.
In the last three years, the Trump Administration has made change after change to the U.S. asylum system in an attempt to keep out migrants seeking help at our southern border. MPP is just one of those changes; the policy forces migrants to wait for months or years in camps in Mexico while their asylum case is considered.
Some 55,000 asylum seekers have been removed from the U.S. and forced to wait in MPP camps, which are dangerous and deplorable. Many migrants, already fleeing life-threatening conditions in their home countries, have faced further violence and kidnappings in the camps. MPP has left migrants without access to attorneys, resources to meet even their most basic needs, and the ability to build their asylum cases. One asylum officer tasked with implementing the policy wrote that it was “clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States”. This statement was echoed by the union that represents asylum officers, who said that the policy is “fundamentally contrary to the moral fabric of our Nation.”
Meanwhile, the Trump Administration touts this horrific policy as a success. In this explainer, we’ll go into more details about what MPP is and why we should oppose it.
(Want to know more about asylum process? Check out our blog Immigration 101: What is Asylum?)
MPP forces all migrants who enter the U.S. without documentation, even those who are trying to legally apply for asylum, to Mexico to wait for months on end. After reaching U.S. Customs and Border Protection (CBP), migrants (many of whom are families with children), are dumped them in Mexico with just a Notice to Appear. Initially, the Administration promised asylum seekers they would only have to wait 45 days before their asylum hearing, but that quickly turned into months and years. Many hearings require migrants to appear at a port of entry before dawn, when it is dangerous to travel in the area. And migrants are not typically presented with a single court date; rather, they are asked to appear multiple times, are sent back to Mexico after each time, and months pass between court dates.
The asylum seekers are being forced to wait in dangerous parts of Mexico, where cartels have a strong hold on the area. For example, the U.S. is sending migrants to Matamaros, where the State Department’s Overseas Security Advisory Council warns Americans not to travel because “violent crime, such as murder, armed robbery, carjacking, kidnapping, extortion, and sexual assault, is common.” They are also sending asylum seekers to Nuevo Laredo, where the U.S. government warns that “homicide, kidnapping, carjacking, and robbery, is widespread” and forbids government employees to “travel between cities after dark”.
Being forced to stay in these conditions leaves many asylum seekers vulnerable to gangs, rape, kidnapping, and violent assault — the same dangerous scenarios they fled in the first place.
Vulnerable populations, like LGBTQ migrants, disabled people, pregnant women, are supposed to be excluded from the ‘Remain in Mexico’ policy. However, individual cases have been left up to the discretion of agents, and the result has meant that vulnerable populations are also caught in the program. Rochelle Garza, an attorney with the ACLU, has identified at least 18 pregnant women who have been subject to MPP. Michael Knowles, a union representative for some 600 asylum officers said, “we have reason to believe that CBP’s reasons for doing that is they don’t want the individual to give birth to a child on American soil, because that would then create a new American citizen. This is very troubling.”
In October 2019, presidential candidate Julián Castro escorted twelve LGBTQ asylum seekers who sought exceptions to MPP and an end to being forced to wait in Mexico. But all twelve were denied and sent back to the camps. “If these people — LGBTQ migrants who have been assaulted for who they are in the camps, disabled people, children — do not meet the criteria for ‘vulnerable populations,’ then the ‘vulnerable’ exemptions in ‘Remain in Mexico’ are lip service,” said the Texas Civil Rights Project. A report by Human Rights First noted that a boy with Down syndrome, a deaf and mute woman, and a child who suffers brain seizures and needs specialized medical care, have all been sent back to Mexico under MPP.
Unaccompanied minors, Mexican asylum seekers, and non-Spanish speaking migrants are also explicitly supposed to be exempt. But members of all of these groups have reportedly been caught in the policy as well. Data from Syracuse University Transactional Records Access Clearinghouse (TRAC), shows that some fifty Mexican nationals have been sent back to Mexico under MPP, in clear violation of the policy. Even asylum seekers from Mexico who are not officially caught in MPP are now facing longer waits due to the backlog being caused by the program.
In June of 2019, the Administration added Cuban migrants to the expanding list of those subject to MPP. “It’s this really dramatic change,” Geoff Thale, a senior official at the Washington Office on Latin America told the Washington Post. “The number of Cuban asylum seekers in Mexico is way up, the number of Cuban deportees sent back by Mexico is way up, and attacks and kidnappings of Cubans by cartels are up.”
MPP is officially being implemented in six cities along the U.S.-Mexico border. But even where no official policy exists, asylum seekers crossing the border without documentation are also being subjected to the program.
A central motivating force animating the Trump Administration has been a desire to find new ways to kick out immigrants already inside the U.S. and prevent new migrants from entering. This is why asylum has faced attack after attack during the Trump Administration, despite being a legal right for migrants seeking safety. As Trump’s top immigration advisor and white nationalist Stephen Miller said, “my mantra has persistently been presenting aliens with multiple unsolvable dilemmas to impact their calculus for choosing to make the arduous journey to begin with”. ‘Remain in Mexico’ is one of the policy changes the Administration has employed to make migrating to the U.S nearly insurmountable and increasingly deadly.
In 2018, the Administration began pushing the ‘Remain in Mexico” policy with Mexico, threatening to shut down the border unless Mexico complied, according to reporting by Julie Hirschfeld Davis and Michael D. Shear. On Thanksgiving, the Washington Post first broke the story of the developing deal.
Soon after, in exchange for an informal deal that would allow the U.S. to keep asylum seekers in Mexico, the U.S. agreed to a $10 billion investment plan for Mexico and Central America, with half the money going to Mexico. Kirstjen Nielsen, then-Secretary of Homeland Security, publicly announced the deal in December. Delayed by Trump’s completely unnecessary government shutdown, the Department of Homeland Security officially began implementing MPP on January 24, 2019.
MPP was quickly challenged in court, and federal court judge in San Francisco initially blocked the policy in April 2019. But in May, the 9th Circuit Court of Appeals temporarily lifted the injunction and allowed the Administration to move forward with the policy, while legal challenges continue to work their way through the courts.
The ‘Remain in Mexico’ policy itself is a fundamental attack on our asylum process, and undermines the American values of due process and being a country of refuge for “huddled masses yearning to breathe free”. After pushing thousands of asylum seekers back across the border, the Administration set up secretive tent courts, mishandled and lied on official documents, and systematically ignored the threats migrants face after they are sent back to Mexico. As Aaron Reichlin-Melnick, a policy analyst for the American Immigration Council, put it: “The goal of MPP is to create a system which fools casual observers into thinking a process exists—while making success near-impossible and harm so pervasive that sensible people give up.”
Asylum seekers are mostly left to navigate the increasingly complex process of winning an asylum claim on their own. Immigrants have no legal right to an attorney when presenting an immigration or asylum case. And obtaining legal council is extremely difficult for asylum seekers under MPP. Since they are trapped on the other side of the border, many migrants are not able to access U.S.-based attorneys, nonprofit help, or the ability to pay for an international call.
Available attorneys are also spread thin and face numerous challenges in representing migrants under MPP. The Texas Observer notes that many attorneys “can’t or won’t go to Nuevo Laredo, where the State Department warns against all travel, and that limited access to technology will keep migrants from compiling and providing the proof necessary for a strong case.” Additionally, as the Wall Street Journal reports, “immigration attorneys want to work with MPP participants, often on a pro bono basis, but are wary of meeting migrants at shelters run by the Mexican government because they aren’t licensed to practice in that country”.
A recent court ruling may provide some relief. On November 13, 2019, federal District Judge Dana Sabraw ruled that a Guatemalan family stuck in MPP must be granted access to an attorney before they can be returned to Mexico. The judge said the family must have access to their attorney before and during an MPP exemption interview due to their legitimate fear of returning to Mexico. Judge Sabraw ruled that family would likely suffer “irreparable harm” without an attorney. A hearing to determine if the ruling should be applied to all asylum seekers under MPP is scheduled for December 13.
The difficulty of obtaining an attorney has meant that less than two percent of the tens of thousands of migrants living under MPP have been able to find a lawyer to represent them in their case. And even if Judge Sabraw’s ruling is expanded, migrants under MPP may still struggle to find the resources to obtain an attorney.
Further complicating the issue is the Administration’s move to erect secretive tent courts along the border to rush through the MPP asylum cases. As the opened the tent courts in September 2019, the Administration largely barred the media and the public from observing the expedited hearings. “It is just another attempt to cover up the flaws in this sham asylum process, a process created to block refugees from finding safety in the United States,” said Kennji Kizuka, senior researcher in refugee protection at Human Rights First.
In instances where the media was allowed to view hearings, DHS only allowed them to observe (via teleconference) a courtroom 150 miles away. The judge teleconferenced in as well. The Administration’s mass video conference proceedings have raised due process concerns.
Numerous members of Congress have called for an investigation of tent courts, calling the public’s inability to witness the hearings a federal violation. A letter making the same points was signed by the American Immigration Lawyers Association, Amnesty International USA, The National Immigrant Justice Center, and the Women’s Refugee Commission.
Many immigration judges have been assigned to MPP cases through the tent court / teleconference system, resulting in a ripple effect for all other U.S. immigration cases. Judges have been forced to delay previously-scheduled asylum and deportation hearings, causing further backlogs in other parts of the system.
Additionally, the Department of Justice, which oversees immigration courts, told immigration judges they needed to hear 80 to 100 MPP cases per session, which typically only last a few hours. This means that migrants are only given minutes to present the case for why they should be allowed to stay, again underscoring the lack of due process. “Everybody’s exhausted, the judge is exhausted, the interpreters are exhausted. There isn’t much room or opportunity to delve beyond very basic issues. So it makes it very difficult for the judges to effectively and fairly go through these cases”, said Ashley Tabaddor, President of the National Association of Immigration Judges. “It is “unsustainable demand to handle two, three times the cases that they would otherwise be assigned.”
The MPP camps are often far, far away from the border tent courts, further blocking migrants’ ability to make their court dates. Some migrants have been sent to as far as Chiapas, well over 1,000 miles away from the U.S. border. In Tamaulipas, the buses that would take migrants back to the border for their court date take 35 hours and cost $111 each way.
Other migrants subjected to MPP are reportedly missing court hearings because critical documents are reaching them in Mexico too late. Court dates and other summons have not been able to reach their intended recipients due to housing instability and CBP’s failure to collect correct contact information. Reportedly, some CBP agents have simply written “Facebook” as the listed address for asylum seekers under MPP.
An alarmingly large amount of migrants have faced rapes, kidnapping, and violent assaults in the MPP camps. But the Administration has largely ignored the abuses migrants have suffered in Mexico as well as their credible claims of fear. Immigation officials have only investigated the claims of 4 out of every 10 migrants who expressed fear about returning to Mexico, while 6 out of every 10 migrants were returned without any further investigation into the conditions they described. Fewer still were actually given exceptions to MPP no matter credible their fears. Reuters found that only one percent of migrants under MPP have been transferred out of the program for any reason.
The barriers erected by the Trump Administration have made winning an asylum claim a rare exception. As of August 31, well over eight months into the new policy, only two migrants under MPP were granted asylum. And only a dozen asylum claims were granted by October, according to one estimate.
Astonishingly, even the rare few who have been granted asylum have not been able to obtain relief. In several reported cases, even those granted asylum in the U.S. were again sent back to Mexico. This happened to a Cuban asylum seeker in Brownsville, Texas, who was returned to Mexico after being granted asylum; CBP only paroled the new asylee into the U.S. after her attorney threatened to sue. “If you don’t have someone who’s willing to sit around and spend five hours on the phone and stay up all night drafting litigation to force their hand, you’re going to be stuck,” said Jodi Goodwin, the immigration lawyer on the case.
In other closed cases, migrants have been sent back to Mexico after CBP agents falsified documents. Part of the MPP agreement states that only migrants with future court dates can be sent back to Mexico; if a migrant has finished their court case, they are supposed to be paroled into the U.S. or kept in federal custody. But the Los Angeles Times reported that in at least 14 occasions, CBP wrote down fake court dates so they could send the migrants back, again, to Mexico.
The situation remains so terrible that U.S. asylum officers have filed suit against the policy, saying that MPP is “fundamentally contrary to the moral fabric of our nation.” For migrants ensnared in MPP, brutal living situations and a near-insurmountable bureaucratic wall are creating conditions as dangerous as those they originally fled.
It was clear from the start that the Trump Administration was more concerned with pushing asylum seekers out of sight and out of mind than they were with any sort of protection for migrants. The Administration has sent tens of thousands of desperate asylum seekers into and dangerous cities, without any resources. This has led to tragic but predictable outcomes for many migrants stuck in MPP. Migrants face widespread rape, kidnapping, and violent assault. There is also little in the way of shelter, food, or sanitary conditions. “I don’t see humanitarian shelter,” said presidential candidate Julián Castro after visiting where MPP migrants were camped. “I see a lot of desperate parents, a lot of desperate children, sick children. I see a polluted river… It’s a disaster. People should not live like this.”
A report from Human Rights First found “over 340 public reports of rape, kidnapping, torture, and other violent attacks against asylum seekers returned to Mexico under MPP.” Vice News reported on an asylum seeker who feared being returned to Mexico under MPP but was sent back anyway; he and his young child were kidnapped by a cartel just five hours later. They were only released after family members in the U.S. went thousands of dollars into debt to scrape together the money to pay for their release. “One of the kidnappers told me that the kidneys of my [child] were good for removal,” the man told Vice News. “I can’t sleep thinking about it. Every night, I dream about everything that has happened to us.”
In another case, a woman seeking asylum in the U.S. with her 12-year-old son was kidnapped in Mexico, beginning a harrowing 63-day ordeal. After they were released, they appeared at their court date — only to be told that they were being returned to Mexico, the same place where they were kidnapped.
And even those attempting to help migrants in Mexico can find themselves in extreme danger. As Jonathan Blitzer at the New Yorker reported, “On August 3rd, cartel members arrived at a shelter in the border city of Nuevo Laredo, demanding that the pastor in charge, Aarón Méndez, hand over a group of Cubans to be ransomed; when Méndez refused, he was abducted, and he hasn’t been seen since.”
In a 600-person study conducted by the University of California San Diego’s US Immigration Policy Center, almost 9 out of 10 of all respondents expressed fear about being returned to Mexico. Their study found “63.9% reported that their persecutor(s) can find and have access to them in Mexico but [they] were returned to Mexico anyway.” Their study also found that 23.1% have been threatened with physical violence, and over half of those threats turned into actual experiences of physical violence.
The US Immigration Policy Center study found that 34.5% of migrants in MPP have experienced homelessness. Many are living on the street under tents and blankets and relying on donated food. Finding clean water for drinking and bathing has also been a challenge. There have been reports of pregnant women lacking running water, access to showers, and medical resources unless they are actively in labor. Many migrants have turned to the dangerous and polluted Rio Grande as a last resort. But there have been reports of adults and children developing rashes after bathing in the river.
The same river has also led to many tragic deaths. The desperation condition of migrants being forced to wait is leading some of them to try and cross the Rio Grande without seeking asylum. This has led to tragic deaths like the father and child who drowned in the river in June, and the mother and child who died trying to cross in September.
The dangerous and deplorable conditions brought on by MPP are also being felt by thousands of migrant children who are seeking asylum in the U.S. with their families. A Reuters report in October 2019 found that the U.S. sent 16,000 migrants under the age of 18 back to Mexico, or one-third of all the migrants in MPP. This number includes nearly 500 infants.
Unaccompanied minors, who are supposed to be exempt from MPP, have still been sent back by the program. In a case covered by the Wall Street Journal, an 16-year old migrant with a newborn baby came to seek asylum alone. She was sent back to Mexico, but an immigration judge overruled a government attorney and mover her out of the program after learning the young woman’s age.
This exemption has left some underage migrants in an impossible situation. Facing horrific conditions and little chance of winning asylum under MPP, some children have crossed on their own, leaving family they may never see again. Their families hope that. as unaccompanied minors, they will have a better chance to reach the safety of the U.S.
At TIME, you can view a child’s art project, depicting the tragic disconnect between American values and promises and the horrific realities of the Trump Administration’s immigration policies. One 11-year-old Honduran asylum seeker living under MPP drew a picture cut in half by the Rio Grande, with the words written in Spanish: “America, where they didn’t let me in. The promised land.”