The Department of Homeland Security (DHS) on January 28, 2019, started implementing a new policy that requires Central American asylum seekers arriving at the southern border of the United States to wait in Mexico while their cases are processed in U.S. immigration courts. In a report released on February 6, 2019, the Congressional Research Service (CRS) highlighted some of the legal issues regarding the plan.
The DHS program is formally called Migrant Protection Protocols (MPP) but also referred to as “Remain in Mexico.” The return policy will apply both to asylum seekers arriving at legal ports of entry and also to those attempting to enter illegally following the initial rollout at the San Ysidro port of entry located south of San Diego, California. Asylum applicants will be sent to Mexico under the MPP to await their U.S. court date or processed under other removal procedures, such as expedited removal.
The CRS report raised concerns about whether DHS has the legal authority under the Immigration and Nationality Act to apply the MPP to people who are subject to expedited removal. Migrants who arrive at U.S. ports of entry without valid visas or documentation, or attempt illegal entry between ports, are subject to expedited removal.
According to the CRS, DHS may face legal challenges due its decision to implement the MPP without promulgating regulations. The CRS report contended that the DHS may respond by characterizing the MPP as a “guidance document” instead of a legislative rule since officers have case-by-case discretion when deciding whether to apply the MPP.
Another legal claim the DHS may encounter is that the MPP violates asylum seekers’ due process rights. The ACLU has already filed a lawsuit in federal court challenging the MPP on behalf of 11 asylum seekers forced to return to Mexico to await hearings under the policy.
According to the DHS guidance, the MPP will exclude unaccompanied children and asylum seekers who have a likelihood of facing persecution or torture in Mexico. Mexico’s immigration agency said it will grant permission to remain in the country only to asylum seekers who are between the ages of 18 and 60. As a result, the DHS is unlikely to be able to apply the MPP to families arriving at the border.
Under U.S. law, foreign nationals have a legal right to seek asylum, regardless of their means of entry. Advocacy groups have raised concerns about the safety of asylum applicants forced to remain in Mexico for long periods of time, as well as their lack of access to legal counsel. There are also logistical questions about how they will manage their U.S. asylum cases while residing abroad for up to a year.