A few years ago, my cousin was looking forward to her first trip to Mexico. I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?” I told her to look it up. A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.
I don’t mean to impugn all Mexican people. But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States. Their main goal is to profit off of the illicit drug trade with the United States. But they have their hand in any potentially lucrative criminal enterprise.
As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time. Anger that such powerful and dangerous forces of evil exist. Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country. And admiration that your clients faced this evil, and survived.
A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings. Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey. The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border. But each coyote is associated with one of the Mexican cartels. The cartels have the territory just south of the border carved out. If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.
But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety. Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border. Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey. Women who are naive have wound up pregnant as a result of the rape. Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.
At times, the cartels will kidnap the migrants trying to seek safety in the United States. They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels. They may sell the migrants into slavery.
President Trump recently recognized the danger present in northern Mexico because of the cartels. After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.
But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court.
Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP. Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases. But the migrants would live in the very area of Mexico dominated by the cartels.
Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing. Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.
As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy. By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north.
Whether such cruelty works as a deterrent to asylum seekers is questionable at best. When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly. So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.
By: William J. Kovatch, Jr.
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Showing posts with label MPP. Show all posts
Showing posts with label MPP. Show all posts
Friday, November 15, 2019
Monday, October 28, 2019
Immigration Court Decision Concerning the Return to Mexico Program Raises More Questions than it Answers
On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program. The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens." The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.
The decision, however, raises more questions than it answers.
The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum. Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings. In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview.
President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings. Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.
Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview. If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge. Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.
The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA. That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings. This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.
Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court. Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension.
Currently, the MPP is subject to litigation in federal court. Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception. The Government replies that it has discretion on whether to apply expedited removal. If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.
The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP. Indeed, Immigration Courts lack the authority to address such litigation. Immigration Courts are not part of the Judiciary Branch of Government. They are instead more akin to administrative courts, and are part of the Executive Branch. As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.
The Immigration Judge did address a different issue raised by the MPP. Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien. An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border. The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States. That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory. This is a separate category of aliens. The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States. Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.
However, the Immigration Judge noted that it was a court of limited authority. The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico. The only authority it had was to terminate the removal proceedings, without prejudice. This means that the Government could refile the Notice to Appear and being new removal proceedings. But the court could not order that the Government do so.
Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers. It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States. Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings. Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights. The ultimate success of such litigation remains in doubt.
Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals. The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.
By: William J. Kovatch, Jr.
The decision, however, raises more questions than it answers.
The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum. Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings. In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview.
President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings. Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.
Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview. If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge. Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.
The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA. That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings. This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.
Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court. Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension.
Currently, the MPP is subject to litigation in federal court. Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception. The Government replies that it has discretion on whether to apply expedited removal. If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.
The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP. Indeed, Immigration Courts lack the authority to address such litigation. Immigration Courts are not part of the Judiciary Branch of Government. They are instead more akin to administrative courts, and are part of the Executive Branch. As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.
The Immigration Judge did address a different issue raised by the MPP. Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien. An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border. The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States. That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory. This is a separate category of aliens. The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States. Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.
However, the Immigration Judge noted that it was a court of limited authority. The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico. The only authority it had was to terminate the removal proceedings, without prejudice. This means that the Government could refile the Notice to Appear and being new removal proceedings. But the court could not order that the Government do so.
Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers. It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States. Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings. Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights. The ultimate success of such litigation remains in doubt.
Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals. The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.
By: William J. Kovatch, Jr.
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