Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes

Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes

November 15, 2019
Processing Aliens at the U.S.-Mexico Border:
Recent Policy Changes
Since FY2017, a growing share of non-U.S. nationals
administrative and, possibly, judicial review of an adverse
(aliens) arriving at the U.S.-Mexico border request asylum,
removal decision.
some at official U.S. ports of entry and others after entering
the country “without inspection” (i.e., illegally) between
Metering
ports of entry. Under § 208 of the Immigration and
According to DHS’s Office of Inspector General, since
Nationality Act (INA), arriving aliens and recent entrants
2016, DHS’s U.S. Customs and Border Protection (CBP)—
may qualify for asylum, a lawful immigration status, if they
the agency primarily responsible for deterring unauthorized
have suffered persecution in their country of origin or have
migration along the border—has limited the number of
a well-founded fear of suffering such persecution upon
aliens who may be processed each day at certain ports of
returning to that country based on enumerated statutory
entry along the U.S.-Mexico border. Under CBP’s
grounds (race, religion, nationality, membership in a
“metering” practice, immigration officers positioned at the
particular social group, or political opinion). In FY2019,
international boundary line direct arriving aliens lacking
most of these aliens were nationals of countries other than
documents (who may be asylum seekers) to return at a later
Mexico, and a majority consisted of either unaccompanied
date if CBP determines that there is insufficient space and
alien children or family units with minors.
resources at the U.S. port of entry. A report published by
the Strauss Center at the University of Texas at Austin
The Trump Administration is pursuing several policies that
estimates that, as of November 2019, there are
change how these aliens are processed when they arrive
approximately 21,000 aliens on wait lists in 11 Mexican
without valid entry documents. First, under a practice
cities, a 21% decrease since August. The wait period to
known as “metering,” aliens may be required to wait in
present claims at a U.S. port of entry can be weeks or
Mexico until there is capacity to process them at a port of
months.
entry. Second, the Migrant Protection Protocols (MPP)
require some aliens to return to Mexico pending formal
A pending lawsuit in Al Otro Lado v. McAleenan
removal proceedings. Third, under the third-country transit
challenges the legality of metering by CBP. The plaintiffs
bar, aliens arriving at the southern border are ineligible for
argue that the practice violates the INA’s inspection and
asylum if they traveled through another country without
processing requirements, the constitutional due process
first seeking protection in that country. Although these
rights of arriving aliens, and international law principles.
policies are subject to legal challenge, reviewing courts
The plaintiffs have also requested a preliminary injunction
have so far permitted their implementation.
that would bar metering pending the outcome of the case. A
federal district court has allowed the lawsuit to move
Background
forward, despite the Department of Justice’s (DOJ’s) claim
Aliens apprehended by immigration authorities when
that some plaintiffs could not legally challenge metering
attempting to unlawfully enter the United States are
because they were outside the United States when turned
typically placed in a streamlined, expedited removal
away.
process under INA § 235(b). Under the statute, an alien
subject to expedited removal will be removed from the
MPP
United States without further hearing or review.
In December 2018, DHS announced the MPP, which allows
CBP to require many aliens who arrive at the southern
However, further administrative review occurs if an alien in
border to wait in Mexico while U.S. immigration courts
expedited removal conveys the intent to seek asylum or
process their cases. Unlike metering, the MPP applies to
otherwise claims a fear of persecution if removed. If,
aliens who have already been inspected by U.S.
following an interview, the alien shows a credible fear of
immigration authorities and placed in removal proceedings.
persecution—meaning a significant possibility that the alien
The MPP applies to aliens who arrive at the border without
could establish eligibility for asylum or related relief—the
valid entry documents, whether or not at ports of entry.
alien will be placed in “formal” removal proceedings under
Although such aliens would normally be subject to
INA § 240 in lieu of expedited removal. In addition to
expedited removal, under the MPP, those aliens are returned
having the ability to pursue asylum and related protections,
to Mexico pending formal removal proceedings. During
an alien placed in formal removal proceedings under INA §
these proceedings, they may pursue asylum and related
240 has several procedural rights to which aliens in
protections.
expedited removal are not entitled. These include the right
to seek counsel at his or her own expense in proceedings
The MPP does not apply to some categories of aliens,
before an immigration judge (IJ), and the ability to seek
including unaccompanied minors, Mexican nationals, and
aliens who demonstrate that it is more likely than not that
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Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes
they would face persecution or torture in Mexico. CBP does
during the credible fear screening, the alien is found to be
not necessarily ask aliens subject to the MPP whether they
subject to the IFR, an asylum officer is required to make a
fear returning to Mexico, but if an alien expresses such a
negative credible fear determination. But the asylum officer
fear affirmatively, an asylum officer is required to interview
must also consider whether the alien has a “reasonable
the alien to determine whether it is more likely than not that
fear,” a stricter test that considers whether the alien has
the alien would be persecuted or tortured in Mexico.
shown a reasonable possibility that he or she would suffer
persecution. If the alien has a reasonable fear, the alien is to
As of November 2019, the MPP is in effect in 6 Border
be placed in formal removal proceedings for consideration
Patrol sectors, and more than 57,000 aliens have returned to
of withholding of removal and CAT protection—two other
Mexico to wait for their immigration hearings under this
forms of protection that have higher standards of proof than
program.
asylum. The alien may also request an IJ’s review of
whether he or she is subject to the IFR, and whether the
DHS contends that its authority to implement the MPP
alien has a reasonable fear enabling pursuit of withholding
stems from INA § 235(b)(2)(C), which provides that DHS
of removal or CAT protection.
may return aliens arriving in the United States by land from
a contiguous country (i.e., Mexico or Canada) to that
The IFR has been subject to legal challenge, and a federal
country pending formal removal proceedings. INA §
district court in East Bay Sanctuary Covenant v. Barr
235(b)(2)(B), however, exempts certain classes of aliens
issued a preliminary injunction against the IFR pending the
from DHS’s return authority, including aliens subject to
litigation. The court determined that the IFR conflicts with
expedited removal. Because most aliens arriving in the
the INA’s asylum eligibility standards because it
United States without valid documents are subject to
undermines two INA provisions that already limit eligibility
expedited removal, they generally would not be covered by
based on third-country considerations: (1) the firm
INA § 235(b)(2)(C)’s return authority.
resettlement provision, under which an alien is barred from
asylum if he or she was “firmly resettled in another country
In April 2019, a federal district court in Innovation Law
prior to arriving in the United States”; and (2) the safe third
Lab v. McAleenan issued a preliminary injunction barring
country agreement provision, which renders ineligible for
DHS from implementing the MPP pending the outcome of
asylum aliens who can be removed, pursuant to a bilateral
the case. The court determined that DHS’s return authority
agreement, to a country where they may seek protection.
under INA § 235(b)(2)(C) does not extend to aliens who are
subject to expedited removal, and that, even if DHS had
In September 2019, however, the Supreme Court granted
that authority, the agency failed to provide enough
the Trump Administration a stay of the injunction, allowing
protections for aliens who potentially face harm in Mexico.
DHS to implement the IFR pending the legal challenge. The
stay will remain in place until the Supreme Court resolves
In May 2019, a motions panel of the U.S. Court of Appeals
any appeal in the ongoing proceedings in the federal district
for the Ninth Circuit granted an emergency stay of the
court and the Ninth Circuit. Thus, given the Court’s ruling,
injunction. The court reasoned that INA § 235(b)(2)(C)’s
the Trump Administration may apply the IFR to limit
return authority covers aliens whom DHS opts to place in
asylum eligibility for aliens who reach the U.S.-Mexico
formal removal proceedings notwithstanding their
border through third countries.
eligibility for expedited removal. The Ninth Circuit heard
oral argument in the government’s appeal of the injunction.
Considerations for Congress
A decision by the court will likely be issued soon. But at
The central question raised by recent executive policies
least for now DHS may continue to implement the MPP.
regarding processing at the U.S.-Mexico border is whether
the policies are consistent with governing immigration
Third Country Transit Asylum Bar
statutes. There is little dispute that Congress itself has the
In July 2019, DHS and DOJ jointly promulgated an interim
power to establish these or similar policies legislatively or,
final rule (IFR) that makes an alien who enters or attempts
conversely, to end the policies legislatively. For example,
to enter the United States along the U.S.-Mexico border
the Secure and Protect Act of 2019 (S. 1494) would require
ineligible for asylum if he or she failed to apply for
persons from certain countries to apply for refugee
protection in at least one third country through which the
protections abroad and render them ineligible for asylum in
alien transited en route to the United States (other than the
the United States. Conversely, the Strategic and Humane
alien’s country of citizenship, nationality, or last lawful
Southern Border Migrant Response Act (H.R. 3731) would
habitual residence). The asylum bar does not apply if (1)
end both MPP and metering; and the Asylum Seeker
the alien applied for and was denied protection from
Protection Act (H.R. 2662) would prohibit the use of funds
persecution in at least one of the third countries; (2) the
“to implement or enforce” the MPP. Congress may consider
alien was a “victim of a severe form of trafficking in
these and other legislative options to address the treatment
persons” (as defined in DHS regulations); or (3) the alien
of aliens at the U.S.-Mexico border.
transited only through countries that are not parties to the
1951 Convention Relating to the Status of Refugees, the
Hillel R. Smith, Legislative Attorney
1967 Protocol Relating to the Status of Refugees, or the
Ben Harrington, Legislative Attorney
Convention Against Torture (CAT).
Audrey Singer, Specialist in Immigration Policy
The IFR results in a “bifurcated screening process” for
IF11363
aliens subject to expedited removal who seek asylum. If,
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Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes

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