Page 18 - Ohio Vol 5 No 2
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MAYA LUGASY | Immigration Law
From Wait in Mexico to Remain in Mexico: The
Trump Administration’s Evolving Immigration
TPolicies at the Southern Border
he Trump administration is even more chaos at the border, with implementing yet another im- thousands waiting at ports of entry in migration policy meant to Mexico.
address what it believes to be a “mi- gration crisis along our southern border.” In a memo dated December 20, 2018, Homeland Security Secre- tary Kirstjen Nielsen announced the rollout of the “Migrant Protection Protocols,” (MPP) referred to as the “Remain in Mexico” policy by both administration o cials and critics alike.  e MPP would require certain asylum-seekers arriving at the border to remain in Mexico while U.S. im- migration courts process their cases.  e policy will not apply to unaccom- panied minors or to asylum-seekers from Mexico, according to govern- ment documents. Traditionally, mi- grants arriving at the southern border, or at any port of entry, have a legal right to seek asylum once they set foot on U.S. soil. In fact, an individual can only seek asylum if they are already in the United States. It is this aspect of asylum, physical presence in the United States, that the Trump admin- istration continues to try to prevent, delay, or limit at the southern border.
 e MPP is the successor to an- other more “uno cial” policy known as “metering.”  e “metering” of asy- lum-seekers essentially amounted to o cials at the border telling arriving migrants that there is no more room for them on the other side of the bor- der, forcing them to wait in Mexico for an indeterminate amount of time.  ese asylum-seekers were waiting days, weeks, and even months, just
for the opportunity to apply for asylum.  is ostensibly ar- bitrary system of allowing certain people in and keep- ing others out led to
 e administration’s solution was to introduce the MPP, a new, o cial policy, with an apparent statutory ba- sis in the Immigration and National- ity Act (INA). More speci cally, in the December 20, 2018 memo, Sec- retary Nielsen announced that DHS, “consistent with the Migrant Protec- tion Protocols (MPP),” would begin implementation of Section 235(b)(2) (C) of the Immigration and National- ity Act (INA) on a large-scale in or- der to “address the migration crisis along our southern border.” Secretary Nielsen stressed that the administra- tion would “undertake these steps consistent with all domestic and in- ternational legal obligations, includ- ing our humanitarian commitments.”
So how well is the Trump admin- istration adhering to these obliga- tions and commitments? First, there is a question as to whether DHS even possesses the authority to implement such a policy under the INA.  is is one of the central issues in the ACLU’s lawsuit  led on February 14, 2019.  e INA section DHS cites to, 235(b) (2)(C), authorizes DHS to return to Mexico certain aliens arriving on land from Mexico, pending the outcome of their removal proceedings. How- ever, this “return authority” does not appear to cover those migrants the policy is meant for – asylum-seekers. Speci cally, Section 235(b)(2)(C) does not plainly authorize application of a policy like MPP to those who are subject to what is called “expedited removal.” Migrants who arrive at the border without valid entry docu- ments – a group that includes most asylum-seekers from Central Ameri- ca – are generally subject to expedited removal.  erefore, on its face it does
appear that most of the asylum-seek- ers arriving at the border would fall within DHS’s return authority under Section 235(b)(2)(C).
 e ACLU complaint also alleges that the MPP violates the INA protec- tions for establishing a right to apply for asylum and blocking the removal of individuals to a country where they would face persecution. Although the MPP does not apply to Mexican asy- lum-seekers, Central Americans can fear persecution in Mexico as well.  e fundamental principle of inter- national asylum law is that you can’t return a migrant to a country where they are in danger of being persecut- ed, known as non-refoulement. It has been reported that migrants are not being asked during initial processing whether they are afraid of being re- turned to Mexico and instead they are required to volunteer that informa- tion on their own. If a migrant hap- pens to bring up a fear of persecution in Mexico, agents are supposed to refer them to a USCIS asylum o cer for an interview. Typically, during this initial assessment in the asylum pro- cess, a migrant has to only establish a “credible fear” of persecution in their home country, a generous standard. Under the MPP, however, a migrant has to establish that they are “more likely than not” to be persecuted if they’re sent back to Mexico, a much tougher bar to meet.
 e rollout of the MPP just began in late January of this year at the San Ysidro border crossing. So far, only 240, of migrants have been returned to Mexico, but the administration is currently expanding the policy to other ports of entry.  e fate of the MPP remains to be seen. Will it die in the courts or live to evolve yet again? Stay tuned.
Attorney Maya Lugasy received her Juris Doctorate cum laude from Case Western Reserve University School of Law in Cleveland, Ohio, and she is admitted to practice law in the state of Ohio. Maya graduated from the Ohio State University cum laude with a double major in Middle Eastern studies and Hebrew, and a minor in economics. During college, Maya also attended the Hebrew University of Jerusalem, where she studied Hebrew. Maya joined Robert Brown LLC in 2018. Since that time, she has focused the majority of her practice in removal defense and family-based immigration.

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