Since November, the Trump administration has been working to keep vulnerable asylum seekers arriving at the U.S. – Mexico border in Mexico as they await the opportunity to apply for asylum, both through an agreement with Mexico and by limiting the number of asylum applicants processed per day. In spite of horrific conditions reported in camps where asylum seekers wait, today DHS formally announced it would begin returning to Mexico individuals arriving without documentation, including asylum seekers, as they await hearings to determine whether they may be admitted into the United States, a process that could take months or years.
The problem for the Trump administration is that the plan is illegal.
The administration is hanging its hat on section 235(b)(2)(C) of the Immigration and Nationality Act (INA) which provides that noncitizens arriving in the U.S. from Mexico, at or between ports of entry, may be returned to Mexico pending a removal hearing. But the statute also includes an exception at INA section 235(b)(2)(B) to the “Remain in Mexico” provision which applies to applicants for asylum. In other words, while certain arriving noncitizens may be returned to Mexico to await their immigration court hearings, asylum seekers are exempted.
In late November amid reports that the White House was close to a deal with Mexico to keep asylum seekers in Mexico, Huffington Post’s Roque Planas reported that immigration law experts seriously doubted that the “Remain in Mexico” provision applied to asylum seekers.
The problem with the Trump administration’s plan lies buried in the complexities of the Immigration and Nationality Act. Section 235 of the act does, in fact, allow the U.S. to send migrants back to Mexico if they arrive by land while they await deportation proceedings. But the same section of the law exempts people who make asylum claims and pass their “credible fear” interviews from getting sent back to a neighboring country.
Failure to Issue Regulations, Procedures and Guidance With Public Notice
Though the administration’s “Remain in Mexico” policy is “effective immediately” according to the DHS announcement, the administration has failed to issue any regulations, procedures, and public guidance. Not only is this a logistical nightmare for the government to suddenly change years of practice in processing asylum requests, the administration has failed to give the public notice and opportunity to comment on the change, a legal requirement under the Administrative Procedures Act.
Access to Counsel
Finally, though the DHS “Remain in Mexico” announcement says asylum seekers will have access to counsel, there is no explanation on how attorneys trained in U.S. immigration law will have access to clients who are stuck in Mexico with few resources. Will U.S. lawyers have to obtain visas to visit their clients in Mexico? What is that process? Will clients be allowed to enter the U.S. to visit lawyers?
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Once again, the Trump administration has abused the rule of law by issuing a new policy that is unlawful, fails to adhere to legally required public notice and comment procedures, and inhumanely keeps vulnerable people seeking safety and a better life in squalid conditions that have been documented by multiple sources. The law is clear. People seeking asylum at our border may may not be turned away to wait outside the U.S. As White House Press Secretary Sarah Sanders said this week, however, this administration “…want[s] to shut down the border“ which it legally may not do. Therefore, the administration is attempting to reinterpret the law in a perverse manner to achieve what Congress has specifically rejected. Once again, we will have to look to the courts to provide a critical check on the administration’s assault on the rule of law, as has occurred in case after case striking down Trump administration policies involving family separation, TPS, the asylum ban, restrictions on asylum, among several others.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Trump’s ‘Remain in Mexico’ policy is yet another legally infirm, cruel effort to unilaterally strike protections for victims of domestic abuse and gang violence from the immigration law. The problem for Trump is that law does not permit asylum seekers to be returned to Mexico before their cases are heard by an immigration judge in the U.S. The immigration law is a complicated creature, but on this point it is clear: Asylum seekers are exempted from the “Remain in Mexico” provisions. In its zeal to gut asylum protections for Central Americans fleeing horrific domestic and gang violence the Trump administration has concocted a variety of schemes, including the legally suspect zero-tolerance policy, the inhumane separation of children at the border, the slow walking of asylum claims at the ports of entry and the legally defective regulations barring asylum to individuals who enter between ports of entry. The “Remain in Mexico” policy is just the latest in a long list of unlawful policies designed to gut asylum protections for those in need of safe haven. Like so many other of the Trump administration’s extremist anti-immigrant policies the “Remain in Mexico” plan will undoubtedly meet its demise when challenged in a court of law.”
