Three Cases for the Immediate Reversal of the Department of Homeland Security’s Deadly Migrant Protection Protocol (MPP)

Better known as “Remain in Mexico,” The Migrant Protection Protocol (MPP), which went into effect January 2019, is a duplicitous non-entrée policy masquerading as a humanitarian solution meant to address the thousands of Central American migrants and asylum seekers at the U.S.-Mexico border. This policy returns “certain foreign individuals entering or seeking admission to the U.S. from Mexico—illegally or without proper documentation” to Mexico to await immigration hearings. Ambiguity in the criteria that would warrant return enables a wide set of interpretations, allowing the MPP to serve as a mechanism to turn away asylum seekers at the border. As a result, at least 46,000 asylum seekers await hearings in what Doctors Without Borders’ Sergio Martin compares to a “warzone.”

The MPP represents one piece of a broader legislative agenda intended to keep asylum seekers out of the United States. This agenda has left thousands in immediate physical danger, brought about an explosion of corruption and organized crime in the region, and manufactured a crisis at the border. Complementary efforts have included the “safe third country” agreement with Guatemala and attempts to deny asylum to all those who do not apply in Mexico, Guatemala, or an official port of entry (several have been struck down by the Supreme Court). This essay will detail in three sections how exactly this particular instance is not only dangerous for asylum seekers, but legally dubious and catastrophically ineffective. 

1. The Migrant Protection Protocol puts asylum seekers at a heightened risk of violence.

Prior to the protocol, asylum seekers had the option to affirmatively seek asylum by presenting themselves at the port of entry. Here, they could make their claim and await a decision about their case in the United States. Since the implementation of the MPP, asylum seekers are forced to return and remain in Mexico to await their immigration hearings. The lack of shelter space in borderlands often pushes impoverished migrants onto the streets. There they face not only homelessness and economic precarity, but also extreme risk of murder, trafficking, and sexual exploitation. The MPP hence provides no protection, it is effectively sending migrants to a country that lacks the resources and political will to ensure their safety. 

Ciudad Juárez, the most populous city in Chihuahua that also shares a border with El Paso, Texas, will be home to thousands of migrants waiting for immigration hearings under the MPP’s jurisdiction. The city has already seen a dramatic increase in homicides coinciding with the implementation of the MPP. The International Rescue Committee, interviews of over 200 families returned to Mexico under MPP describe rampant gang recruitment, kidnapping, sexual abuse, and gang violence, with the highest instances occurring in border towns like Ciudad Juárez or while in transit to other cities in Mexico.

Indigenous, LGBT+, and female migrants are especially vulnerable to hate crimes and dangerous attention from criminal enterprises betting that their identities and statelessness make them less of a priority for an already overwhelmed and corrupt Mexican police. 

2. The Migrant Protection Protocol is often illegal in practice.

Through the MPP, the United States denies protections to many entitled to protection from refoulement—the return of refugees to countries where they will face certain varieties of persecution or where the fear of such persecution renders them unable to return. This unlawful denial stands in defiance of the United Nations (UN), whose High Commissioner on Refugees determined that no refugee can be returned to a country where they would face persecution on account of their ethnicity, political viewpoints, or membership of a particular identity group.

The MPP fails to comply on three fronts. First, it places individuals fleeing identity-based persecution in areas where the same threats still exist, a clear violation of Article 33(1) of the 1951 UN Convention on the Status of Refugees. Second, it denies many the opportunity to make relevant non-refoulement claims until their official hearings. As the CBP assigns border officers to stand in as asylum officers due to high caseloads and low resources, many migrants do not receive proper evaluation or standard operating procedure from a qualified professional. Worse yet, many who fit the required criteria for refugee protections are denied anyway, according to numerous reports and lawsuits. Third, despite a federal judge having ruled that the United States could not block asylum seekers that entered the United States irregularly, the MPP openly seeks to accomplish this same end by proxy.

Finally the MPP has already been ruled in violation of the Immigration and Nationality Act, Affirmative Procedure Act, and the US’s obligations to international human rights law but kept for an alleged lack of other viable policies addressing the influx of migrants at the US’s Southern Border. To maintain a policy deemed illegal for reasons of practicality sets a dangerous precedent wherein convenience may openly take priority over legality.

3. The Migrant Protection Protocol is Ineffective.

The MPP fails to meet its stated goals and ultimately incentivizes irregular migration. According to the Department of Homeland Security (DHS), “The MPP will provide a safer and more orderly process that will discourage individuals from attempting illegal entry and making false claims to stay in the U.S., and allow more resources to be dedicated to individuals who legitimately qualify for asylum.” The opposite has occurred. In fact, many who do “legitimately qualify for asylum” are denied the resources DHS describes and have died as a consequence. Asylum officers themselves say that under the MPP’s guidelines, requirements for non-refoulement claims were “near impossible to meet.” 

As detailed prior, numerous reports of extortion, kidnapping, and abuse demonstrate how the Trump administration’s efforts to restrict immigration have actually benefited organized crime and corruption: a key push factor in northward migration. An investigation by the National Immigrant Justice Center into border cities Reynosa and Matamoros details asylum seekers facing rampant extortion by Mexican immigration officials. 

While the Trump administration continues to implement this ineffective policy, DHS’s own Inspector General found that turning people away at ports of entry leads to an increase in border crossings between ports.  The MPP does not provide a “safer” or “more orderly process” as much as it has made legal channels as dangerous as staying home, leaving many little choice but to risk their lives navigating treacherous wilderness, leaving thousands missing and dead. This observation has been corroborated by CBP officials. Instead of protecting migrants and clearing the way for asylum seekers with “legitimate” claims, the Migrant Protection Protocol directly exacerbates the conditions pushing many asylum seekers northward. Continued enforcement in the face of such evidence should cast doubt on the DHS’s stated motives.

What is to be done?

As resources dwindle and the migrant flows intensify, this crisis will only worsen unless the United States immediately invests in real solutions. A lasting solution must recognize surges in migration flows from Central America as desperate developments in a decades-long migration which will continue to grow unless the United States addresses push factors head on. The U.S. urgently needs to hire immigration judges and all other personnel needed to proactively process the 733,000 immigration cases pending as of July 2018 while expanding complementary protections and alternate paths such as humanitarian visas.

Finally, the binding ‘convention’ definition of a refugee urgently requires reconsideration. The MPP would not be possible under international law if not for a gap between the recognized definition of a refugee and the factors pushing individuals to flee their home states in search of refuge. The binding 1951 definition is limited to a narrow view of persecution based on World War Two and the Cold War-era authoritarianism. Though the United Nations High Commissioner on Refugees (UNHCR) has expanded its definition to include generalized violence and natural disasters, it largely operates in a ‘parallel universe’ as states are party to the 1951 Geneva Refugee Convention and not the mandate of the UNHCR. Because of this, push-factors such as climate disasters, war, and generalized non-state violence do not technically qualify as grounds for refugee status despite leaving hundreds of thousands with little choice but to flee their homes. As climate change, instability, and conflict drive unprecedented international migrant flows, the question of the current refugee law regime’s efficacy becomes increasingly urgent. Until then, this massive gap in the legal system will leave many fleeing for their lives facing tear gas and razor wire.

About the authors

Kai Golden studies International Political Economy at University of Puget Sound and is a research fellow at USC Gould’s Immigrants and Global Migration Initiative. Areas of inquiry include the consequences of extraterritorial asylum regimes, heterodox economics, and the role of paramilitary violence as a tool of accumulation by dispossession in Colombia and Brazil.

Eliane (Elle) Fersan is the Founding Director of the Immigrants and Global Migration Initiative (IGMI) at the University of Southern California (USC). Over a 15-year career, Fersan has dedicated herself to improving policy and changing lives through international development, strategy and coalition building, political and policy advocacy, campaigning and fundraising, collaborating with national and international agencies including the U.S. Department of State, the United Nations and local governments.

Fersan’s advocacy and development work focuses on women, LGBT and immigrant rights in the U.S., Lebanon, the Middle East and North Africa. She founded Global Nexus Solutions, LLC a Los Angeles based consulting firm bringing together a network of experts and advisors specializing in global public affairs, fundraising and advocacy. Fersan’s scholarship focused on Syro-Lebanese immigration to the United States and Brazil, it’s effect on the economy through brain drain and ways to turn it into an economic gain for Lebanon. She was an Adjunct Professor of History at the American University of Science and Technology, Beirut (2008-2012). Follow her work on all social media platforms at: @ellefersan and @USCigmi Email: fersan@usc.edu