Remain in Mexico: A forsaken Pitfall

INTRODUCTION

The Migrant Protection Protocol (MPP) which is infamously touted as the “Remain in Mexico” program is an anathema for the asylum seekers. This program was rolled out by the Trump administration in later 2018 and it came into force from early 2019. This policy forbids the asylum seekers to enter into the USA and mandates them to wait in Mexico for their case to get decided in the U.S. immigration court. Under this program, more than  60000 asylum seekers including 16000 children have been sent back to wait in Mexico. This program has cast ravages on the asylum seekers as those returned, were subjected to violence and homelessness while waiting in Mexico for their hearing at the US immigration court.

The Legality of MPP program has often been questioned in several US courts and it has also been condemned by several courts like ninth circuit court of California as it violates the federal law but the US Supreme Court is yet to make a final ruling on the legality of the MPP program. The MPP program was designed to become an unprecedented action for ending the ordeal of refugees but it has eviscerated the US asylum system in contradiction of longstanding US and International refugee law. Asylum seekers who are hoovered in MPP program have to face the evils like kidnapping, sexual assault, exploitation, lack of basic amenities, family separations, drug abuse and several other problems engulfed in the most dangerous states of Mexico like Tamaulipas, Guerrero, Michoacan, Sinaloa, etc.

This article is an attempt to discuss the tribulation and misery caused to the asylum seekers under the MPP program. This article further argues that the “Remain in Mexico” program is an utter disregard of International refugee law and International Human Rights and at the end space is also provided to portray the author’s recommendations to the US Government for putting an end to this damnation.

REMAIN IN MEXICO- A PANDOR’S BOX FOR ASYLUM SEEKERS

MPP program which is also known as “Remain in Mexico” has completely bogged down the asylum system of USA as this program has notable due-process shortcomings like distant transfer, lack of access to justice, family separations, inhumane and arbitrary detention facilities, etc. Before implementation of this program, asylum seekers were allowed to stay with their family members living in the USA but after this program was bought into force, it has made the life of the asylum seekers worse than a bummer. Since the implementation of this program, one-third of the MPP cases are relocated to the US immigration court situated in El Paso, Texas. This move has created a big mess in the courts as they are inundated by the asylum seekers who are present for their hearings. This policy also arbitrarily creates the roadblock for asylum seekers to access a counsel. Unlike Criminal cases, people who are subjected to deportation under this program are not entitled to appoint a lawyer for themselves even if they can afford one, which is against the Section 292 of US Immigration and Nationality Act, 1965 i.e., everyone has a right to be represented (at no expense to the Government) by the counsel of their own choice.

This program has escalated the issue of family separation at the US-Mexico border as immigration workers are separating children from their guardians and parents by allowing one parent to remain in the United States and placing the other in the MPP even when the family is travelling together and asks to be kept together. The MPP program is also ailing from several procedural issues like the inaccurate notices to the deported asylum seekers. Even, some court notices mentioned “Facebook” as the address of asylum seekers.  Some notices also mentioned fake dates of court proceedings. Department of Homeland Security(DHS) in order to terminate the court proceedings responded to orders of termination by sending people to Mexico even though the immigration judge had dismissed the charges against them and closed their cases, meaning that they were no longer in deportation proceedings. As Mexican immigration authorities don’t accept people transferred by US immigration authorities unless they have an immigration court date therefore DHS issued notices with court dates that were fictitious. This move adopted by DHS is irreconcilable with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment which is ratified by the USA. Article 3 (1) of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, 1984 states that no state, which is a party to this covenant shall send a person to another state where there are substantial grounds of believing that he/she will be tormented or subjected to inhumane treatment.   

Asylum seekers were between Scylla and Charybdis due to this program as either they were deported back to the place from where they fled to escape persecution  or they were detained for nights (in some cases weeks) in uncomfortably cold and overcrowded holding cells by the abusive immigration agents. Migrants used to refer these cells as “hieleras” which means freezers. The Covid-19 pandemic also played the role of a catalyst in escalating the issues faced by these asylum seekers. Due to fear of highly contagious coronavirus, all hearings were shifted to virtual mode via video conferencing, which created further roadblocks for people’s ability to understand the proceedings and effectively convey the elements of their claims.

UTTER OPPROBIUM OF INTERNATIONAL LAW

A policy like the MPP program is utter opprobrium of America’s international law obligations.Article 27ofAmerican Declaration Of The Rights And Duties Of Man, Article 22 (7)ofAmerican Convention on Human Rights and Article 14ofUniversal Declaration of Human Rights guarantee that every person has right to get asylum in the foreign territory following the laws of each country and with international agreements. MPP program grossly violates the above-mentioned rights as it creates a sense of trepidation in the minds of asylum seekers because of which they refrain from seeking asylum in the USA.

The detention facilities provided to asylum seekers under the MPP program transgress the right of asylum seekers under Article 7of ICCPR (International covenant of Civil and Political Rights), which is ratified by the USA. As per this Article, no one should be subjected to cruel, inhumane and degrading treatment. Article 23of Convention Relating to the Status of Refugees, 1951 which is ratified by the USA states that all the parties to this convention must treat the refugees staying in their states in the same way as they treat their nationals and this regulation is violated in a ferocious way when the refugees are forced to live away from their family members and kin in the detention centre amid torment and inhumane treatment.

RECOMMENDATIONS

The author would like to recommend the following changes which could help in improving the situation:

• TheDepartment of Homeland Security (DHS) should refrain from sending people back to Mexico and allow them to seek asylum in line with the international norms. People who are deported under this program should be given special assistance which can help them to recover from the ordeal caused by this program.

• The US Department of Justice should re-establish the ability of the immigration Judges or granting continuances and terminating the closed cases. The US Department of Justice should struck down all the judgments passed by the Attorney General which are not in line with the International law.

• As this MPP program cannot be fully rescinded in one go, the US Department of State should gradually remove all the asylum seekers from MPP program who are suspected to face persecution in Mexico.

• US Department of State should also make sure that they are granting humanitarian parole to the asylum seekers at the ports.

• US Congress should establish an independent immigration court system, where, at a minimum, all the asylum seekers must be provided with for-court appointed legal representatives.

• The Mexican Government should not accept the asylum seekers sent back by DHS under the MPP program unless it is ensured by both US and the Mexican Government that they are safe in Mexico.

• Till the MPP program is in force, the Mexican Government should provide at least basic health, adequate housing and education facilities to the asylum seekers placed under the MPP program.

CONCLUSION

The current situation of the human rights and refugee rights of asylum seekers in America is depressing and this type of situation brings great disrepute to the image of a country that is considered to be a superpower in world politics. Every person has some basic human rights and above that, every refugee has some rights which, guarantee protection to his life. According to the international refugee law, if a refugee is lawfully coming to a country to seek asylum, he must be treated respectfully and he must not be humiliated by violence and putrid asylum conditions. In such tough times, America instead of assisting the refugees is using this pandemic as a tool to persecute the refugees which is highly unreasonable and must be stopped. Refugees are not some kind of monsters or hooligans. They are just in need of some basic amenities to live a dignified and peaceful life away from the persecution. This persecution can end only if the popular opinion changes as in a country, there is nothing more powerful than the Vox Populi. Conclusively, the author wants to strongly castigate the MPP program and urge the US Government to end the ordeal of refugees stuck into this labyrinth.

The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.