By Favio Ramirez Caminatti
Favio Ramirez Caminatti is a 1L at Mitchell Hamline School of Law. He was the Executive Director of El Centro del Inmigrante in New York, and President of the Staten Island Immigrants Council. He has received several awards for his work and advocacy for immigrants’ rights, such as: Mayoral Service Recognition Award, by New York City’s Mayor Bill de Blasio; Leadership & Advocacy Recognition, by Richmond County District Attorney’s Office; and 40 Under 40 Latino Rising Stars, by The Hispanic Coalition, among others. Currently, he volunteers at Catholic Legal Services providing free legal orientation for unrepresented people in Immigration Court.
The Migrant Protection Protocols (MPP), also called “Remain in Mexico” program, was implemented in January 2019 as a government protocol to address the migration crisis along the border of the United States. This protocol allows the Secretary of Homeland Security to return individuals arriving and seeking admission to the United States to return to the contiguous country from which they are arriving and to wait there for a hearing in Immigration Court.
According to the U.S. Department of Homeland Security (DHS), the MPP is “the implementation of Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) on a large-scale basis.” The government also highlights that one important benefit of the program is that “[a]liens will not be permitted to disappear into the U.S. before a court issues a final decision.” As January 23, 2020, marked one year from the enactment of this protocol, this article presents a brief examination of its impact on asylum seekers.
Legality and Arguments
The implementation of the MPP is controversial with major legal objections to the policy. The first issue to analyze is the legal basis for the enactment of this protocol. INA § 253(b)(2)(C) states that when an alien “arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding.” However, the law clearly states that this only applies as described in subparagraph (A): “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.”
Now, to be considered for asylum, immigrants must successfully pass a credible fear interview conducted by a DHS officer. A “‘[c]redible fear of persecution’ means that there is a significant possibility. . . that the alien could establish eligibility for asylum.” Therefore, there is a contradiction herein regarding the burden of persuasion. Since immigration law is civil matter the standard is a preponderance of the evidence. Additionally, as mentioned by Amnesty International, “the arbitrary application of Section 235(b)(2)(C) to only some people seems intended to circumvent the right of individuals at the US border to ask for asylum, as guaranteed under the US Immigration and Nationality Act.”
The second issue to analyze is the argument for the implementation. During the announcement of the adoption of the MPP, Secretary Kirstjen Nielsen described the program as a “historic action to confront illegal immigration.” The counterargument is that asylum is a legal practice in the American immigration system. Thus, when applied to asylum seekers, the MPP is confronting not only the legal immigration, but also likely confronting the Congressional intent to legislate this matter.
Lastly, despite Secretary Nielsen’s argument about asylum seekers not showing up to their hearings, statistics from the Department of Justice show that, between 2013 and 2017, ninety-two percent of asylum seekers appeared in court to receive a final decision. Furthermore, when they have access to legal representation, the rate of compliance is nearly ninety-eight percent. This also contradicts President Trump’s claim that only three percent of asylum seekers attend immigration court.
Implementation and Impact
Basically, this is how MPP works: (1) immigrants present themselves at the border where they must successfully pass a credible fear interview; (2) they are returned to Mexico to wait for their hearing; and (3) they need to show up in tent courts for videoconference hearings.
Since its implementation, more than 59,000 migrants have been returned to Mexico—including 16,000 children and 500 infants. Most of them were from Honduras, Guatemala, Cuba, El Salvador, and Ecuador. As they are sent to dangerous locations in Mexico, including Tamaulipas (a recommended no travel zone according to the U.S. State Department), and Ciudad Juarez (one of the world’s most violent cities), asylum seekers under MPP were victims of at least 816 violent attacks, rape, kidnapping, and torture, according to public records.
There are two main issues with this policy: (1) due process, and (2) access to legal counsel. Evidently, both issues are related, but the separation is worth it for a better analysis.
Several concerns are raised about the due process. First, the difficulty to comply with sufficient notice to the applicants. Immigrants do not have a permanent address in Mexico because it is a transitory location. If they do not receive a notification on time, they won’t show up, and, consequently, they will be automatically deported “in absentia.”
The second concern on due process is that MPP likely does not comply with the Administrative Procedures Act (APA). However, the Government appealed the decision of the District Court and the Ninth Circuit granted a motion to stay.
Finally, the due process must guarantee immigrants the right to counsel. That is a statutory right granted by Congress under 8 U.S.C. § 1362 and protected by the Fifth Amendment Due Process Clause requirement of a full and fair hearing.
Access to Legal Counsel
Only 2,765 out of 59,241 people (approximately four percent) subject to MPP and placed in court proceedings had access to legal counsel. In contrast, asylum seekers in the U.S. are seven times more likely to have an attorney. American Bar Association President, Judy Perry Martinez, expressed this concern clearly in a recent testimony at the House Judiciary Committee. She said that, under the MPP, “counsel who want to meet with their clients have to travel to dangerous places in Mexico. Hearings are held in tents in Texas, with judges and interpreters often appearing through videoconference.” She added that lawyers are only permitted to meet with clients for one hour before their hearings, but not afterwards. And affirmed, “[t]his does not look like justice.”
On March 4, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an order affirming a district-court injunction of the MPP. The Court held that “it is very clear that the MPP violates §§ 1225(b) and 1231(b), and it is equally clear that the MPP is causing extreme and irreversible harm to plaintiffs.”
Under this order, the Ninth Circuit put on hold the MPP in the states where it has jurisdiction: California and Arizona.
Just one week later, on March 11, 2020, the United States Supreme Court granted an emergency relief request from the government—an application for stay—so that the MPP may continue while lower-court challenges continue.
The MPP’s legality is, at the very least, disputable. Asylum seekers’ due process rights and access to legal counsel have been jeopardized, undermining the rule of law. The impact of the policy on asylum seekers has been catastrophic and resulted in people facing even more violence.
 Kirstjen M. Nielsen, Memorandum re: Policy Guidance for Implementation of the Migrant Protection Protocols, U.S. Dep’t Homeland Sec. (2019), https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf [https://perma.cc/XU3P-X88D].
 Migrant Protection Protocols, U.S. Dep’t Homeland Sec. (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols [https://perma.cc/JUD7-NM38].
 Immigration and Nationality Act § 253(b)(2)(C), 8 U.S.C.S. § 1225(b)(2)(C) (West 2020).
 8 U.S.C.S. § 1225(b)(2)(C).
 8 U.S.C.S. § 1225(b)(1)(B)(v).
 Amnesty International, USA/Mexico: Halt The “Remain in Mexico” Plan (2019), https://www.amnesty.org/download/Documents/AMR5101722019ENGLISH.PDF [https://perma.cc/ZW5S-7Z3S].
 Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration, U.S. Dep’t Homeland Sec. (Dec. 20, 2018), https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration# [https://perma.cc/KLY6-AZK4].
 U.S. Dep’t Justice – Exec. Office Immigration Rev., Statistics yearbook Fiscal Year 2017 33-34 (2017), https://www.justice.gov/eoir/page/file/1107056/download [https://perma.cc/9RU7-BA85]; see also FACT CHECK: Asylum Seekers Regularly Attend Immigration Court Hearings, Human Rights First (Jan. 25, 2019), https://www.humanrightsfirst.org/resource/fact-check-asylum-seekers-regularly-attend-immigration-court-hearings [https://perma.cc/ZS4A-MFXY] (explaining how this number was calculated).
 Priority Immigration Court Cases: Women with Children, TRAC Immigration (May 2018), https://trac.syr.edu/phptools/immigration/mwc/ [https://perma.cc/D38V-CT9B].
 Compare id., and U.S. Dep’t Justice – Exec. Office Immigration Rev., supra note 9, with President Trump Remarks on Immigration, C-SPAN (Nov. 1, 2018), https://www.c-span.org/video/?453960-1/president-trump-delivers-remarks-immigration-policy&start=74 [https://perma.cc/3SEE-N2PT].
 See Migrant Protection Protocols, supra note 3.
 Human Rights First, A Year of Horrors: The Trump Administration’s Illegal Returns of Asylum Seekers to Danger in Mexico (2020), https://www.humanrightsfirst.org/sites/default/files/AYearofHorrors-MPP.pdf [https://perma.cc/4ULV-E37W].
 See, e.g., Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019).
 8 U.S.C.S § 1362 (West 2020); Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985); Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977).
 Details on MPP (Remain in Mexico) Deportation Proceedings, TRAC Immigration (Dec. 2019), http://trac.syr.edu/phptools/immigration/mpp [https://perma.cc/FWW3-UX98].
 Contrasting Experiences: MPP vs. Non-MPP Immigration Court Cases (Nov. 2019), https://trac.syr.edu/immigration/reports/587/ [https://perma.cc/T6P3-VP59].
 Debra Cassen Weiss, ABA President Calls for Creation of Independent Immigration Courts, Criticizes “Remain in Mexico” Policy, ABA J. (Jan. 30, 2020), http://www.abajournal.com/news/article/aba-president-calls-for-creation-of-independent-immigration-courts-criticizes-remain-in-mexico-policy [https://perma.cc/PLF2-8785].
 Innovation Law Lab v. Wolf, No. 19-15716, 2020 U.S. App. LEXIS 7238, at *14 (9th Cir. Mar. 4, 2020).
 Wolf v. Innovation Law Lab, No. 19A960, 2020 U.S. LEXIS 1640, at *1 (Mar. 11, 2020).