Migrant Protection Protocols

Migrant Protection Protocols

On Friday January 25, 2019, the Trump administration announced it would begin implementing a policy at the southern border that forces many non-Mexican asylum seekers to wait in Mexico while their case moves through U.S. immigration courts. This most recent action to impede due process for asylum seekers will leave already vulnerable asylum-seeking refugees even more susceptible to danger. Under Migrant Protection Protocols, certain individuals entering from Mexico may be returned to wait outside the U.S. for the duration of their immigration proceedings. DHS informs that individuals will be given a Notice to Appear and returned to Mexico until their hearing date. Currently, there is apparently a backlog of more than 800,000 cases lodged in U.S. immigration courts due to a shortage of judges and surplus of cases. That backlog has grown even larger due to the partial government shutdown since immigration judges were furloughed. Additionally, thousands of migrants waiting in Tijuana are already suffering amid overcrowding and strained resources.

Is MPP really effective and does it ensure safety of asylum seekers fleeing violence and persecution in their home country?

It is important to note that the U.S. Justice Department employs only 395 immigration judges and the current backlog in U.S. immigration courts has reached over 800,000 cases. At the time of writing this article, initial hearing dates are scheduled for the year 2021, 2022 and 2023. It is not clear how soon will the asylum cases be finally adjudicated. In order for these individuals to attend hearings, they will have to be transported to United States multiple times. It is felt that this may restrict the ability of asylum seekers to counsel and further impact their ability to secure a job and adequate housing.

It is also a point of concern whether Mexican border cities present many of the same challenges that Central Americans flee due to the fact that the migrants are frequent targets of kidnapping, extortion, and other crimes at the hands of organized criminal groups and corrupt police and migration authorities. It is not clear how the individuals who are fleeing violence and persecution in their home country will be safe if they have to be pushed to border cities where violence and safety to their lives is a serious cause of concern. This defeats the very purpose for which MPP is being implemented.

The following are some of helpful points to understand what MPP is and who does it affect.

1. What is Migrant Protection Protocol?

The Migrant Protection Protocols (MPP) are a U.S. Government action whereby certain foreign individuals entering or seeking admission to the U.S. from Mexico illegally or without proper may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.

2. Why is DHS implementing MPP?

DHS is of the view that MPP will help restore a safe and orderly immigration process, decrease the number of those taking advantage of the immigration system, and the ability of smugglers and traffickers to prey on vulnerable populations, and reduce threats to life, national security, and public safety, while ensuring that vulnerable populations receive the protections they need.

3.Who is Subject to MPP?

With certain exceptions, MPP applies to aliens arriving in the U.S. on land from Mexico (including those apprehended along the border) who are not clearly admissible and who are placed in removal proceedings under INA § 240. This includes aliens who claim a fear of return to Mexico at any point during apprehension, processing, or such proceedings, but who have been assessed not to be more likely than not to face persecution or torture in Mexico. Unaccompanied alien children and aliens in expedited removal proceedings will not be subject to MPP. Other individuals from vulnerable populations may be excluded on a case-by case basis.

4. Who does it affect?

Certain aliens attempting to enter the U.S. illegally or without documentation, including those who claim asylum, will no longer be released into the country, where they often fail to file an asylum application and/or disappear before an immigration judge can determine the merits of any claim. Instead, these aliens will be given a “Notice to Appear” for their immigration court hearing and will be returned to Mexico until their hearing date. While aliens await their hearings in Mexico, the Mexican government has made its own determination to provide such individuals the ability to stay in Mexico, under applicable protection based on the type of status given to them. Aliens who need to return to the U.S. to attend their immigration court hearings will be allowed to enter and attend those hearings. Aliens whose claims are found meritorious by an immigration judge will be allowed to remain in the U.S. Those determined to be without valid claims will be removed from the U.S. to their country of nationality or citizenship.

This pilot program is launched at the San Ysidro port of entry and will initially apply to those who are requesting asylum at this port. This includes thousands of Central Americans and asylum seekers of other nationalities who have been waiting months in Tijuana for an appointment with U.S. officials. It is understood from reports that these individuals will not be screened for asylum; rather, they will be given a notice to appear before a U.S. immigration judge in 45 days.

It doesn’t pass muster how this program will help those asylum seekers fleeing violence and persecution in their home countries. It is still not clear how Mexico is going to handle significant number of asylum seekers deported from United States and ensure their safety considering extremely unsafe conditions in bordering cities. These helpless vast number of help seekers would need to stay in Mexico and await their hearings in the United States that may not be happening anytime soon. This may give rise to humanitarian issues at bordering cities.

United States is a great nation that has given shelter to immigrants from around the world; to those who are fundamental part of and have interwoven into the fabric of this nation of brave that contribute tremendously to US economy making it the richest nation in the world. United States has always been a symbol of freedom, democracy and international friendship and must continue to remain as such. Any act that pushes out those who seek shelter here and beg for safety to their lives will not be reflective of its symbol of peace, liberty and friendship.

Vijay Bhagwati, Esq.

Founder and Managing Partner