Part one of a two-part post on the changing asylum landscape under the new administration.
The Biden administration has signaled its intention to repair the U.S. asylum system. As law students who worked directly with asylum-seeking families, this is welcomed news. Over the last four years, the Trump administration intentionally increased the hardships that asylum seekers face. It adapted harsh, inhumane immigration policies with the express goal of deterring people from seeking asylum in the U.S. One such policy was the Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” program. This policy treated displaced persons, including women, infant children, and the elderly, as dangerous adversaries that the country must defend itself against, and it caused widespread and profound human suffering at the U.S.-Mexico border.
MPP is a Trump-era policy enacted in January 2019 which, for the first time, required asylum seekers to wait for their asylum hearings outside the United States at the U.S.-Mexico border. This policy impacted tens of thousands of asylum seekers. They were forced to build makeshift refugee camps along the border while they waited for their day in U.S. Immigration Court. Those still waiting in MPP lack access to running water, medical care, or work opportunities and are vulnerable to kidnapping, assault, and sexual violence.
By stranding migrants in Mexico, MPP created significant barriers to accessing legal counsel. An estimated 94% of asylum seekers (some sources say 98%) do not have access to legal counsel under MPP. Lawyers often have to commute across the border, which takes hours at certain points of entry, to assist their clients. MPP also complicated communication with migrants. Migrants in MPP do not have stable addresses, access to WiFi, or cell phone numbers. In some circumstances, border patrol agents banned lawyers from observing hearings. Proceedings and forms are often in English, and unrepresented migrants routinely have to present their own asylum cases despite not speaking the language and with no other support or guidance. Importantly, immigrants with attorneys are five times as likely to succeed in legal proceedings than immigrants who are forced to proceed on their own. In MPP’s first year alone, approximately 56,000 migrants were processed through MPP and only 117, or 0.2% of asylum seekers, were granted asylum.
Among other deeply concerning consequences of the policy, MPP caused many migrants to be ordered removed in absentia. This is a highly prejudicial disposition that orders the migrant automatically deported for missing his or her court hearing. The order will ultimately complicate any future application for asylum. But many migrants never even received notice of their hearings due to the disorganized manner in which MPP is enforced and because they lack addresses at the makeshift refugee border camps. Many others had no choice but miss their hearing and flee the border cities due to the high risk of violence and kidnapping as well as due to their lack of basic resources.
Advocacy at the Mexico-U.S. Border under Trump
In March 2020, we met some of the asylum seekers directly impacted by these policies. Ten Temple Law students and a faculty member traveled to Tijuana, Mexico over Spring Break to volunteer with Al Otro Lado (spanish for “To the Other Side”). Al Otro Lado is a powerhouse for immigrant advocacy. It is a bi-national, direct legal services organization with offices in Los Angeles, San Diego, and Tijuana. It serves indigent deportees, migrants, and refugees. Its Border Rights project, located in Tijuana, provides legal services and know-your-rights training to migrants to assist them in applying for asylum and presenting to U.S. immigration authorities. Attorneys for the Border Rights Project also monitor the administration of the MPP waiting list at the San Ysidro port-of-entry.
We participated in the Border Rights Project work and witnessed the dangers of the MPP. While conducting interviews to prepare asylum applications, our migrant clients shared the intimate details of the persecution they faced in their countries of origin. Many of the clients, which included both adults and children, suffered ongoing violence, death threats or repeated sexual abuse with no help from the authorities in their countries of origin. Their perpetrators were often members of transnational criminal organizations with networks in Mexico. MPP forced our clients to wait where their perpetrators could find them. Clients also shared experiences of being robbed of all of their possessions, including vital documentation that is evidence in their asylum cases. Ultimately, our clients waited in danger for months and more commonly years to exercise their right to seek asylum.
Developments Under the Biden Administration
The new administration has announced changes to U.S. asylum policy through a series of executive branch actions. On January 20, 2021, the Department of Homeland Security (DHS) announced that it was halting any new enrollments in MPP. On February 2, President Biden signed an executive order pledging to “review and determine whether to terminate or modify” MPP while calling for the implementation of a phased system for allowing migrants forced to remain in Mexico to enter the United States and seek asylum without fear of further persecution in Northern Mexico’s border regions. This phased processing system officially began on February 19, when a group of twenty-five asylum seekers were allowed to enter the United States at the San Ysidro port-of-entry. While it was a symbolic day full of hope for many and DHS has announced that it could process up to 300 people per day, there remains a long and confusing road ahead.
Currently, there are an estimated 28,000 people subject to MPP who still have pending asylum cases in U.S. immigration courts. To aid this phased reentry, the UNHCR has created an online platform that enables migrants subject to MPP to register for an appointment to be processed at the border. Those registering for appointments have to complete a questionnaire, which has been created to identify the most vulnerable (e.g., those in poor health) for priority entry into the United States. However, since going live on February 19, many have had difficulty gaining access to the website due to heavy web traffic or a lack of internet connectivity.
The Biden administration must also address the other problems of MPP. The administration still has not announced its policy regarding the deeply troubling in absentia orders issued over the past several years. According to the latest reports from advocates on the ground, nearly 40,000 migrants were affected. Many migrants remain in a holding pattern at the border due to metering. There are also thousands of people who recently arrived or were not subject to MPP and are unsure about what this phased approach will mean for them. Given its stated intention to reverse these horrific border policies, the Biden administration should move more quickly to fully bring about their end.
Over the upcoming spring break, we will be working again with Al Otro Lado, albeit remotely, to support asylum seekers impacted by MPP. This work is now part of a school-designed practicum offered in the Spring semester. Twenty students, along with one faculty member, will be working with Al Otro Lado to identify and make outreach to migrants placed in MPP. This will include evaluating their priority for the phased reentry and completing registration with UNHCR.
The following students have participated in these efforts to provide advocacy and support to asylum seekers in Mexico: Erin Agnew, ‘21; Mana Aliabadi, ‘22; Mona Alsaidi, ‘22; Elizabeth Castillo, ‘22; Halston Chavez, ‘22; Lina Duiker, ‘22; Macarena Ferreira, ‘23; Daniela Florido, ‘22; Mariana Garcia, ‘23; Mike Geoffino, ‘23; Mary Beth Griffin, ‘23; Sarah Hampton, ‘22; Grace Hong, ‘22; Steven Jessen-Howard, ‘23; Jamie Klein, ‘22; Lauren Leiggi, ‘21; Maya Lucyshyn, ‘22; Alice Elmer, ‘21; Adalberto Rosado, ‘23; Angela Stoltzfus, ‘24; Maria Thomson, ‘22; Crystal Zook, ‘22. Professor Mary Levy created the school-designed practicum with the support of Al Otro Lado and supervises the students’ work.