The Department of Homeland Security (DHS) recently released memos roughly outlining its plan to make asylum seekers wait in Mexico for immigration court hearings, which it calls the Migrant Protection Protocols. On Jan. 25, Secretary Kirstjen Nielsen released her initial memo directing Customs and Border Protection (CBP) and the U.S. Citizenship and Immigration Services (USCIS) to publish implementation guidance. Those agencies obliged her on Jan. 28, with two separate documents issued from CBP and another from the USCIS. For now, implementation is limited to the San Ysidro border crossing between Tijuana and San Diego.
Taken together, the memos describe a policy that gives CBP officials broad discretion to refer people who are in removal proceedings under Section 240 of the Immigration and Nationality Act (INA) for deportation to Mexico, pending their immigration court dates. Those non-Mexican nationals who do not want to be involuntarily removed to Mexico based on a fear of return to that country will receive a limited screening from a USCIS asylum officer, during which applicants will have to clear an unprecedentedly high burden of proof to show they are “more likely than not to face persecution or torture in Mexico.”
A bit of background on the current framework may be helpful for understanding what exactly DHS is changing with this plan. DHS deports most people under two different processes: expedited removal proceedings under Section 235 of the INA and removal proceedings under Section 240 of that statute. Section 235 proceedings apply to those whom CBP officials apprehend without valid documentation at a port of entry or who are apprehended within 100 miles of the border within 14 days of entering the United States. In most cases, someone who is placed in Section 235 expedited removal proceedings will be summarily deported without a hearing. Most other undocumented people who entered more than 14 days earlier are subject to Section 240 proceedings—meaning they are ordered to appear in an immigration court where applicants will be able to present defenses and pursue forms of relief such as asylum. Section 240 proceedings are formal and adversarial, with the government represented by a DHS prosecutor. Either party can appeal an immigration court decision to the Board of Immigration Appeals.
If during the course of the expedited removal process a person expresses a fear of returning to their home country, Section 235 requires USCIS to screen them in a process called a credible fear interview (CFI). During a CFI, an asylum officer determines whether there is a “significant possibility” that the person could “establish eligibility for asylum.” In other words, the asylum officer should find that the person has a credible fear of persecution—which, for the purposes of asylum, must be on the basis of race, religion, nationality, political opinion or membership in a particular social group—if there is a significant possibility that an immigration judge would grant that person asylum.
If the officer finds that the applicant has a credible fear of persecution, DHS then moves the applicant to a Section 240 proceeding and orders him or her to appear in immigration court. In court, applicants receive a full hearing on the merits of their asylum claims where they can present evidence of a “well-founded fear” of persecution, a burden that the Supreme Court has stated can be satisfied by demonstrating a “10% chance” of persecution.
In some cases, DHS places asylum seekers directly into Section 240 proceedings, without a CFI, and then paroles them into the United States to await their court dates. This typically happens because Immigration and Customs Enforcement (ICE) lacks bed space to detain asylum seekers while they wait for their CFIs to be scheduled.
In addition to asylum, the government affords two other forms of humanitarian protection: withholding of removal under INA Section 241(b)(3) and protection under the Convention against Torture or other Cruel, Inhuman or Degrading Punishment (CAT). These options are available to people otherwise ineligible for asylum, perhaps because of prior criminal activity or because they were deported previously. They simply provide a guarantee that the United States won’t deport the individuals, without providing any path to full legal status. These forms of relief are available in order to ensure that the United States complies with its obligation of non-refoulement, a French term from the original treaty language of Article 33 of the 1951 Convention on the Status of Refugees and Article 3 of the Torture Convention that refers to the rule that no contracting states shall “expel or return” a refugee to a country where they may face persecution or torture.
The standard for establishing eligibility for withholding of removal or protection under the Torture Convention is higher than that for asylum. To receive these protections, applicants must show that it is “more likely than not” that their life or freedom would be in danger because of a protected ground (in the case of withholding) or that they would be tortured (in the case of the Torture Convention).
In the expedited removal setting, these forms of relief usually come into play with refugees who were previously removed from the United States and then later are apprehended crossing the border again. If these individuals express a fear of return, they are eligible only for withholding protection or protection under the Torture Convention, and are referred to USCIS for a reasonable fear interview (RFI), during which they must show that there is a “reasonable possibility” that they would be persecuted or tortured upon return to their home country. This standard is more demanding because it looks to the probability of persecution occurring in the applicant’s home country rather than the possibility that an applicant can persuade an immigration judge that persecution is likely to occur. Moreover, USCIS officers are instructed to treat the “reasonable possibility” standard applied in initial screenings as a lower one than the “more likely than not” bar that applicants must clear to receive withholding or CAT protection.
The Remain in Mexico Policy
The guidance issued by CBP says that the agency may deport people to Mexico while they await Section 240 proceedings, with specific exceptions: unaccompanied minors, Mexican nationals, those who have been processed for expedited removal, anyone who is “more likely than not to face persecution or torture in Mexico,” and several smaller groups. Immigrants will be given a “specific court date” in immigration court (a detail that has proved a major stumbling block for DHS in the past) and eventually paroled into the United States for their hearing date. Those who express a fear of returning to Mexico to CBP officers upon apprehension will be referred to USCIS for an interview with an asylum officer who will evaluate whether it is “more likely than not” that they will face persecution in that country. If applicants pass this screening, CBP retains discretion to process them for removal under Sections 235 or 240 and to either detain them or grant parole into the United States. Applicants who fail the screening remain in Mexico.
All of this, including the interview with an asylum officer, may well happen during “primary or secondary inspection.” Primary inspection occurs the first time anyone encounters a CBP officer upon crossing at a port of entry or arriving at an airport, and involves basic checking of documents and limited questioning. Secondary inspections happen afterward, when CBP pulls someone aside for further questioning, physical searches, and verification against antiterrorism and law enforcement databases. Currently, initial screenings with asylum officers happen after people have been sent from CBP’s secondary inspection to ICE detention, where they typically wait for several days or weeks until an asylum officer is available to interview them. It’s difficult to know whether the Trump administration is serious about screening people for humanitarian protection during these relatively quick encounters with CBP, since they already have difficulty getting people in front of asylum officers under the current processes and staffing constraints, and it’s hard to imagine USCIS performing asylum interviews immediately upon someone’s seeking admission at a port of entry.
Since the policy does not distinguish between the various types of people placed in Section 240 proceedings—for example, between those who have passed a credible fear screening under Section 235 and those who are placed directly into Section 240 proceedings for various reasons—it seems that anyone placed in Section 240 proceedings would be eligible for removal to Mexico, including those whom U.S. officials have found to have a credible asylum claim after a credible or reasonable fear interview. The CBP memo excludes from the policy those who have received a final expedited removal order without saying anything about those who are merely in the process.
The Trump administration points to Section 235(b)(2)(C) of the INA as the legal basis for its plan, which provides that foreign nationals “arriving on land ... from a foreign territory contiguous to the United States” may be deported to that contiguous territory pending a proceeding under Section 240. Applying this provision to asylum seekers is not straightforward because of the non-refoulement obligation mentioned earlier.
The policy targets only non-Mexican nationals, likely because the Trump administration is aware that deporting Mexican nationals who fear persecution in Mexico would run afoul of the non-refoulement principle. Should a Mexican national express a fear of return to Mexico, deporting that person to Mexico to wait years for a hearing, either after a positive CFI finding or without conducting a CFI at all, would be a plain violation of this duty.
With respect to non-Mexican nationals who fear persecution in other countries, USCIS says it will honor non-refoulement by granting those who affirmatively claim a fear of return to Mexico an interview to establish whether it is “more likely than not” that they would be persecuted or tortured. This is the same standard used for establishing eligibility for withholding or CAT protection, and a higher one than has previously been applied for humanitarian relief screenings at the border. This echoes a previous attempt by congressional Republicans to limit access to asylum by requiring that applicants in CFI and RFI screenings show that it is “more probabl[e] than not” that their statements about persecution are true.
It is likely that far fewer people will pass this screening process than the roughly 76 percent who ultimately passed their CFIs in fiscal 2018. The standards of proof for CFIs and RFIs—“a significant possibility of establishing eligibility” in the former and a “reasonable possibility” of persecution” in the latter—are lower than those required for obtaining eventual relief because they are conducted on the basis of testimony alone. The purpose is to screen for potentially valid claims in a detention setting where those seeking humanitarian protection do not have the ability to gather and present evidence. This new interview scheme would require that applicants, on the basis of their testimony alone, satisfy a preponderance of the evidence standard.
This standard has until now been applied only in interviews or hearings in which immigrants can be expected to present more robust evidence, such as witness statements and country conditions reports. And, unlike CFIs and RFIs, in which applicants have a limited ability to consult with a lawyer at no expense to the government, applicants subject to the new policy may have no such access. Because USCIS envisions that these new screenings will take place during initial CBP inspections, they declare that they are “currently unable to provide access to counsel.”
As the Trump administration begins executing this plan, the public will, it is hoped, learn more about how DHS is going to exercise the broad discretion it’s claiming. Will it in fact turn back people who have landed in Section 240 proceedings because they established a credible fear of persecution during the course of expedited removal proceedings? Or will DHS stop performing CFI screenings altogether and try to send all asylum officers to conduct assessments under the “remain in Mexico” policy alongside CBP, in secondary inspection areas where there is no access to counsel? The policy assumes that Mexico is willing and able to hold up its end of the deal and protect asylum seekers who are turned back. Reports suggest that it might not be, which could doom the legality of this plan, if it becomes obvious that Central Americans are in danger of persecution or torture while they wait in Mexico.