It Is Not Illegal to Seek Asylum: An Analysis of the New Migrant Protection Protocols

By Sam Kulhanek

Associate Editor, Vol. 24

In line with the Trump Administration’s recent efforts to restrict the right to seek asylum, the Department of Homeland Security (“DHS”) appears to be keeping its December promise to return certain asylum seekers to Mexico during the pendency of their immigration proceedings. Labeled as the “Migrant Protection Protocols,” these new guidelines represent a dramatic departure from current policy, which permits asylum seekers to remain in the U.S. while their claims are adjudicated.[1] Promulgated under the premise that there is a “security and humanitarian crisis on the Southern border,” these new Protocols jeopardize the rights of migrants to seek asylum and safety in the U.S. and raise questions about U.S. compliance with domestic and international law.[2]

The Administration previously attempted to undermine protections for asylum seekers in November 2018 when it issued an interim final rule[3] and presidential proclamation[4] seeking to deny the right to seek asylum for individuals who enter the U.S. between official ports of entry. Advocates immediately took legal action against the government, and a federal judge in the Northern District of California issued a nationwide temporary restraining order to prevent the rule from going into effect, as it clearly contradicted existing federal law.[5] Subsequently, the Ninth Circuit, as well as the U.S. Supreme Court, denied the government’s requests for a stay of the injunction pending appeal.[6] Following this unsuccessful attempt to partially block asylum access in response to the large numbers of migrants headed toward the U.S.-Mexico border, the Administration has since sought alternative ways to manage what Trump has repeatedly referred to as a “crisis” at our southern border.[7]

On December 20, 2018, DHS Secretary Kirstjen Nielsen first announced plans to issue the so-called “Migration Protection Protocols,” vowing to “bring the illegal immigration crisis under control.”[8] Immigration advocates quickly denounced the policy, calling it “ill-conceived, inhumane, and untenable . . . .”[9] Then, on January 24, 2019, DHS formally announced the Migrant Protection Protocols, which will apply to “aliens arriving in the U.S. on land from Mexico . . . who are not clearly admissible and who are placed in removal proceedings . . . .”[10] DHS cited §235(b)(2)(C) of the Immigration & Nationality Act (“INA”) as providing it with the authority to implement the Protocols.[11] Upon crossing the border into the U.S. and being detained by border agents, migrants who fall within the sweep of the Protocols will be issued a “Notice to Appear” for their immigration court proceedings and then returned to Mexico until their hearing.

Notably, while the announcement stated that the U.S. had “notified the Government of Mexico that it is implementing these procedures under U.S. law,”[12] on January 25th a spokesman for Mexico’s Foreign Ministry referred to the decision to begin returning migrants to Mexico as a “unilateral measure,” on the part of the U.S., highlighting a lack of consensus between the two governments.[13] Furthermore, there continues to be a dearth of clarity concerning how Mexico plans to house and meet the needs of what could be a large number of asylum seekers as their cases wind their way through the U.S.’s backlogged immigration courts. In sum, there is vast uncertainty surrounding the logistics of the Protocols, including when the first migrants will be returned, and what Mexico plans to do with them once they arrive. What is clear, however, is that the Trump Administration will inevitably face legal challenges if DHS follows through in implementing the Protocols.

First, if the U.S. returns Mexican asylum-seekers to Mexico while their cases are adjudicated,[14] it is directly violating domestic and international law, which prohibits “refoulement,” or the return of an asylum seeker to a place where their life or freedom would be threatened. Non-refoulement is the fundamental obligation enshrined in the 1951 Refugee Convention, which the U.S. codified in its domestic law.[15] If a Mexican national is fleeing Mexico due to a fear of persecution, the U.S. cannot simply return them to the very country from which they are attempting to escape. Furthermore, even when returning asylum seekers who are fleeing a third country, there is a “significant likelihood that Mexico would send those asylum seekers back to their countries of origin,” where they may face persecution in violation of the principle of non-refoulement.[16] Finally, advocates have voiced concerns that the lives and freedoms of asylum seekers may be jeopardized by the very act of returning them to Mexico, where “gang- and cartel-perpetrated violence and crimes against migrants have increased” in recent years, and migrants face “extortion, trafficking, sexual assault, and other harms.”[17]

The Protocols also pose due process concerns, as asylum seekers will have no choice but to prepare for their immigration cases in Mexico, where they will be physically cut-off from access to U.S. immigration attorneys and other legal resources that Mexico is unable to provide.[18] In addition, the Administration will likely face challenges under the Administrative Procedure Act (“APA”) based on this new and sweeping application of INA §235(b)(2)(C). DHS did not go through rulemaking procedures to issue the Protocols, and they may be challenged as legislative rules issued in violation of the APA. Advocates have also pointed out that many of the factual premises being used by Secretary Nielsen and the Trump Administration to support these restrictive policies are false and erroneous, such as the continued insistence that the overwhelming majority of asylum claims either fail or are fraudulent,[19] and that migrants released into the U.S. pending their immigration hearings routinely vanish and fail to appear at their court dates.[20]

DHS’s formal announcement of the new Migrant Protection Protocols raises a lot of questions surrounding their implementation and legality, and will likely result in legal challenges by advocates around the country who are concerned that these Protocols jeopardize the lawful right of every individual to seek asylum, which is protected by both domestic and international law. While the Administration’s last attempt to severely restrict asylum access has proven to be unsuccessful thus far, it remains to be seen what courts will do when faced with this new policy.

[1] Dep’t of Homeland Sec., Migrant Protection Protocols (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols.

[2] Id.

[3] 83 Fed. Reg. 55,934 (Nov. 9, 2018).

[4] Proclamation No. 9822, 83 Fed. Reg. 57,661 (Nov. 9, 2018).

[5] Emily Sullivan, Federal Court Blocks Trump Administration’s Asylum Ban, NPR, Nov. 20, 2018, https://www.npr.org/2018/11/20/669471110/federal-court-blocks-trump-administrations-asylum-ban.

[6] Caroline Kelly, Ariane de Vogue, & Dan Berman, Supreme Court Upholds Block on Trump’s Asylum Ban, CNN Pol., Dec. 22, 2018, https://www.cnn.com/2018/12/21/politics/supreme-court-upholds-block-on-trumps-asylum-ban/index.html.

[7] Joshua Barajas, Trump Says There’s a ‘Crisis’ at the Border. Here’s What the Data Says, PBS News Hour, Jan. 8, 2019, https://www.pbs.org/newshour/politics/trump-says-theres-a-crisis-at-the-border-heres-what-the-data-says.

[8] Dep’t of Homeland Sec., 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.

[9] CGRS Condemns Illegal Migration Protection Protocols, Ctr. for Gender & Refugee Studies, Dec. 20, 2018, https://cgrs.uchastings.edu/news/cgrs-condemns-illegal-migration-protection-protocols.

[10] Dep’t of Homeland Sec., supra note 1. Exempt from the policy are unaccompanied children and individuals placed in expedited removal proceedings; “individuals from vulnerable populations” may be exempt on a case-by-case basis.

[11] Id. That section provides that “in the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, [the Secretary of DHS] may return the alien to that territory pending [a removal proceeding] under section 240.”

[12] Id.

[13] Azam Ahmed, Miriam Jordan, & Elisabeth Malkin, Mexico Protests U.S. Decision to Return Asylum Seekers, N.Y. Times, Jan. 25, 2019, https://www.nytimes.com/2019/01/25/world/americas/mexico-asylum-seekers.html.

[14] Dep’t of Homeland Security, supra note 1. DHS itself states that the Protocols apply to “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.” The “more likely than not” standard is the legal standard defining eligibility for Withholding of Removal and protection under the Convention Against Torture; the standard for asylum is actually lower, meaning that DHS intends to return asylum seekers to Mexico who may actually have valid asylum claims based on a well-founded fear of persecution in Mexico. “I’m Afraid to Go Back:” A Guide to Asylum, Withholding of Removal, and the Convention Against Torture, Florence Immigrant & Refugee Rts. Project (May 2013), http://www.immigrantjustice.org/sites/default/files/FIRRP%20Asylum_WOR_CAT-Guide-2013_modified.pdf.

[15] Convention Relating to the Status of Refugees, Art. 33, 189 U.N.T.S. 137 (1951).

[16] The Impact of President Trump’s Executive Orders on Asylum Seekers, Harvard Immigration and Refugee Clinical Program, Feb. 2, 2017, https://today.law.harvard.edu/wp-content/uploads/2017/02/Report-Impact-of-Trump-Executive-Orders-on-Asylum-Seekers.pdf.

[17] Ctr. for Gender & Refugee Studies, supra note 9.

[18] Geoffrey A. Hoffman, Contiguous Territories: The Expanded Use of “Expedited Removal” in the Trump Era, 33 Md. J. Int’l L. 268, 279 (2018) (writing that Fifth Amendment due process “is guaranteed to [migrants] in INA § 240 removal proceedings”).

[19] The “Migration Protection Protocols” Are Based on False Premises and Further Erode Due Process for Immigrants, Hous. Immigr. Legal Services Collaborative, Dec. 21, 2018 (citing data from the Transactional Records Access Clearinghouse that in Fiscal Year 2018 thirty-five percent of asylum cases heard by an immigration judge were approved), https://www.houstonimmigration.org/the-migration-protection-protocols-are-based-on-false-premises-and-further-erode-due-process-for-immigrants/.

[20] Immigration Court Appearance Rates, Hum. Rts. First, Feb. 2018 (concluding that “immigrants appear for their immigration court hearings at high rates, particularly when they have legal representation or case management support, and accurate information related to the court process”).