The Department of Homeland Security, or DHS, released its new Migrant Protection Protocols, or Remain in Mexico Policy, on Jan. 24. The new policy sets out procedures to return asylum-seekers to Mexico to wait while their asylum case is pending in the U.S. immigration court system. There are still many unanswered questions about this effort to thwart asylum seekers, but this is what we know so far.

U.S. Customs and Border Protection, or CBP, issued memos and guidance in connection with the Remain in Mexico policy on Jan. 28. CBP’s “Guiding Principles” indicate the Remain in Mexico plan is currently only effective at the San Ysidro port of entry, but is expected to expand in the near future. DHS has stated that it intends to expand Remain in Mexico to all categories of entrants and to all geographic regions along the southern border without regard to whether the individual presented at a port of entry or crossed the border without inspection. For those not subject to Remain in Mexico, there will be no change in existing practice; asylum seekers without proper entry documents may be placed in expedited removal or may be released after being processed.

Individuals who will be subject to the Remain in Mexico plan include: single adult males, single adult females, and family units.

Those who will not be subject to Remain in Mexico include:

• Unaccompanied minors,
• Mexican citizens or nationals,
• Individuals who are processed for expedited removal,
• Any individual whom USCIS has determined is more likely than not to face persecution or torture in Mexico, and
• Individuals in special circumstances which include: returning lawful permanent residents; individuals with advance parole; individuals with known medical or mental health issues; individuals determined to have a criminal history or history of violence; and individuals of interest to the U.S. or Mexican government.

Once DHS has determined that it will process an asylum seeker through the new Remain in Mexico policy, the individual will be interviewed by a United States Citizenship and Immigration Services, or USCIS, asylum officer.

According to a USCIS policy memorandum for the implementation of the protocols issued on Jan. 28: Asylum seekers subject to Remain in Mexico will not have a Credible Fear Interview because they will not be placed in expedited removal.

Instead, asylum officers will conduct interviews to assess whether it is more likely than not that the asylum seeker will be persecuted based on a protected characteristic or be tortured if returned to Mexico.

DHS has stated that it will not allow asylum seekers access to counsel during these assessments.

This assessment does not provide the individual any sort of relief under withholding of removal or protection under the Convention against Torture. The sole purpose of this policy is to determine whether the individual fears persecution or torture in Mexico while they wait for their day in U.S. immigration court.

Many important questions are still not answered regarding this policy.  According to the guidance, individuals processed under Remain in Mexico will be given a Notice to Appear in immigration court in the United States. The individual will then be returned to Mexico and will have to re-enter the United States to attend the court hearing. There is no information about how long before the hearing date and time the individual would be permitted to seek entry at the border crossing. Likewise there is no information about how or whether an individual who has developed a fear of persecution or torture after the initial USCIS assessment can voice that fear to avoid remaining in or being returned to Mexico while waiting for a hearing date in the United States. And although the DHS questions and answers document on Remain in Mexico claims that these asylum seekers will have the same right to counsel as other asylum seekers, there is no explanation as to how attorneys located in the United States will be able to represent clients located in Mexico.

The Remain in Mexico policy is again seeking to limit access to asylum in the United States for very vulnerable people, and the DHS Guidance leaves many unanswered questions about how this policy will actually be implemented.  In the interim, many asylum seekers from Central American who have fled persecution and torture will be required to stay in Mexico and potentially live in a more precarious situation than that which they originally fled.

CLINIC will provide further analysis and updates on this policy, its implementation, and its effects on individuals’ access to seeking asylum. As of now, we know that asylum seekers at the San Ysidro port of entry are subject to the Remain in Mexico policy.