As of last week, Central American migrants who attempt to cross the U.S.-Mexico border without proper paperwork at the San Ysidro port of entry — the most popular official border crossing — will be returned to Mexico to wait out their cases. Some immigration experts have called the policy — titled “Migration Protection Protocols” but known colloquially as “Remain in Mexico” — the largest change to U.S. immigration policy since the 1990s.
The change means that Central American migrants, who have a legal right to seek asylum in the United States, will be forced to wait for upwards of a year in Mexico while their claim languishes in a massive backlog of immigration court. Instead of holding immigrants in Customs and Border Protection (CBP) custody after they’ve been medically screened, identified, and ultimately transferred to Immigration and Customs Enforcement (ICE), the government will now issue asylum seekers a 45-day notice to appear before a judge in immigration court. They will be allowed to visit the United States for court hearings, but will have to live in Mexico during the interim. DHS anticipates it will take multiple hearings to resolve a case, meaning a lot of back and forth travel for asylum seekers. If they lose their case, they will be deported back to their country of origin.
Because the policy requires asylum seekers to make their case from Mexico, their rights to legal counsel will be severely infringed upon. The American Immigration Lawyers Association (AILA) has called the policy a “due process disaster for asylum seekers.”
“This plan will prevent most, if not all, returned asylum seekers from receiving a fair day in court,” AILA said in a statement. “Individuals forced to remain outside the U.S. will encounter substantial barriers to accessing U.S. attorneys—representation that can make the difference between life and death […] In fact, represented asylum seekers are ‘five times more likely’ to win asylum than their unrepresented counterparts.”
A 2015 study by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that without legal representation, only 1.5 percent of women with children who had passed their credible fear interviews were given asylum in the United States.
Aside from potentially violating international human rights laws, the “Remain In Mexico” policy could also puts thousands of Central American migrants at risk of harm or even death.
At present, Mexico has no public plan on how to house the influx of new migrants from Central America, and the head of Mexico’s National Migration Institute (INM), Tonatiuh Guillen, has stated that the country does not have the capacity to support tens of thousands of non-Mexican asylum seekers. It is not yet clear how long asylum seekers will have to remain in Mexico, but if the current immigration court backlog is any indication, it could be years. The U.S. Justice Department employs fewer than 400 immigration judges to adjudicate a backlog of cases that has reached over 800,000. Current asylum seekers are being given initial court hearings starting in 2021 at the earliest.
Many of the Mexico border cities where asylum seekers will have to wait out their cases often present the same dangers that many Central American asylum seekers are fleeing in the first place. A 2017 report from Human Rights First found Mexico to be the third most dangerous place for refugees.
Asylum seekers are the targets of countless kidnappings, disappearances, sexual assaults, and trafficking in Mexico. They are targeted not only for their vulnerable status as asylum seekers and refugees, but also because of their nationality, gender identity, and sexual orientation.
The Remain in Mexico policy harms the lives of LGBTQ asylum seekers in particular, with two-thirds of LGBTQ refugees from Central America suffering from sexual and gender-based violence in Mexico. Last spring, inhabitants of a shelter in Tijuana, Mexico for transgender members of the migrant caravan from Central America were attacked and robbed.
The policy also imposes new dangers for a vulnerable group of people who already face risks in the United States when they are placed in Customs and Border Patrol (CBP) holding cells.
Roxsana Hernández Rodriguez, a trans woman from Honduras who died over the summer while in the custody of Immigration and Customs Enforcement (ICE), reportedly succumbed to complications from pneumonia that were exacerbated by the freezing cold conditions of CBP cells. A second autopsy, however, found that in addition to her previously reported illnesses, the 33-year-old had been subjected to severe physical abuse. Blunt-force trauma “indicative of blows, and/or kicks, and possible strikes with blunt object” was found on her hands and abdomen, as well as hemorrhaging consistent with handcuff injuries, the report revealed.
“Trans people in my neighborhood are killed and chopped into pieces, then dumped inside potato bags,” she said.
There is still some confusion over just how the Remain in Mexico policy will be implemented in the coming weeks. The return of the first group of asylum seekers, who were supposed to be sent back Mexico last Friday, have yet to be accepted by Mexico.