US Refugee Law:

By Professor Rana Lehr-Lehnardt

Overview & Changes
University of Missouri—Kansas
City School of Law
under the Biden
Administration, still
with a dose of Covid
31.8 million refugees
Unprecedented worldwide refugee crisis

 As of December 2021, according to the UNHCR, over 84

million people around the world have been forced to flee their
homes. Among them are over 26.6 million refugees, the
highest population on record.
 Since then, due to the Russian war on the Ukraine, there are
now an additional 5.2 million Ukrainian refugees for a total
of 31.8 million refugees
Migrant: Umbrella Term
 The UN Migration Agency defines a migrant as
 (1) any person who is moving or has moved
 (2) across an international border or within a State away from his/her habitual place of residence,
 (3) regardless of
 (a) the person’s legal status;
 (b) whether the movement is voluntary or involuntary;
 (c) what the causes for the movement are; or
 (d) what the length of the stay is.
What is a Refugee?

 A refugee is a person who has fled

their country of origin and is
unable or unwilling to return
because of a well-founded fear of
being persecuted because of their
race, religion, nationality,
membership of a particular social
group or political opinion.
 What is an asylum-seeker?
 An asylum seeker is someone
who has fled her home, is seeking
international protection as a
refugee, but whose claim
for refugee status has not yet
been determined.
 In contrast, a refugee is someone
who has been recognized under
US (or int’l) law to be a refugee.
 In other words, an asylum seeker
hopes to be granted refugee status
Refugee Status and Asylum Seeker
 The requirements for
granting asylum and thus
the status of refugee is the
same under international
(and U.S.) law: The person
must have a "well-
grounded" fear of
persecution if he or she
returns to the home country.
 Refugees outside the United States apply for
refugee status.
 UN/US determines them to be refugees
 Those who arrive in US w/o status can declare
at border they are seeking asylum and can then
apply for refugee status and protection
 Once people have been granted refugee status,
they can apply for U.S. permanent resident
status after living one year in the United States.
  With 149 State parties to either or both, they define the
1951 Refugee term ‘refugee’ and outlines the rights of refugees, as well as
the legal obligations of States to protect them.
Convention &  The core principle is non-refoulement, which asserts that a
1967 Protocol refugee should not be returned to a country where they face
serious threats to their life or freedom. This is now
considered a rule of customary international law.
 UNHCR serves as the ‘guardian’ of the 1951 Convention
and its 1967 Protocol. According to the Convention, States
are expected to cooperate with the UNHCR in ensuring that
the rights of refugees are respected and protected.
Convention definition of Refugee
 … owing to wellfounded fear of being persecuted for reasons of
 race, religion, nationality, membership of a particular social group or political opinion,
 is outside the country of his nationality and
 is unable or, owing to such fear, is unwilling to avail himself of the protection of that
country …
  Amendment to the Immigration and Nationality Act and the
Migration and Refugee Assistance Act
 Refugee definition based on UN Refugee Convention, of which
Implementing US is member to the Optional Protocol (this is a treaty)

Legislation:  Refugee Act created to provide a permanent and systematic

procedure for admitting refugees of special humanitarian
Refugee Act of concern to the U.S., and to effective resettlement and absorption
of those refugees who are admitted.
1980  Act raised annual cap from 17,400 to 50,000 refugees, provide
emergency procedures for when that number exceeds 50,000,
and to establish the Office of U.S. Coordinator for Refugee
Affairs and the Office of Refugee Resettlement.
  refugee = any person who is outside his or her country of
residence or nationality, or without nationality, and

US Refugee Act  is unable or unwilling to return to, and is unable or unwilling to

avail himself or herself of the protection of, that country
1980 definition because of persecution or a well-founded fear of persecution
 on account of race, religion, nationality, membership in a
particular social group, or political opinion
Exclusions to refugee definition

 US Refugee Act (based on Convention) Lists Exclusions

 Section 212(a) of the Immigration and Nationality Act lists grounds for exclusion
 Moral & criminal
 Security – suspected support of terrorist group, etc.
Numbers under the Refugee Act

 50,000 refugee cap per fiscal year

 Fewer than 50,000 can be admitted
 Emergency situation -- President may change the number for a period of twelve months
 Attorney General also granted power to admit additional refugees and grant asylum to
current aliens
 all admissions must be reported to Congress and be limited to 5,000 people
Numbers

 Statute sets default cap of 50,000 annually

 1 refugee for every 4,000 Americans
 Refugees comprise less than 10% of annual immigration to US
  Under the Refugee Act, president has broad, unilateral power over
number of refugees admitted and where they come from.
 Before the beginning of each fiscal year, the president establishes
the number of refugees that can be allowed into the U.S. for that
year.
Broad  INA Section 215(a)(1)

Presidential  “it shall be unlawful for any alien” to enter or depart the United
States “except under such reasonable rules, regulations, and orders,
Power and subject to such limitations and exceptions as the President may
prescribe.”
 Section 212(f) of the INA grants perhaps broadest authority to
president.

President
broad “Whenever the President finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental to
immigration the interests of the United States, he may by proclamation, and
for such period as he shall deem necessary, suspend the entry of
power all aliens or any class of aliens as immigrants or nonimmigrants,
or impose on the entry of aliens any restrictions he may deem to
be appropriate”
  Each year, the president of the United States sets the annual refugee
admissions goal (or cap) through a process called the presidential
determination, or PD.
 Since President Jimmy Carter signed the Refugee Act in 1980, the
refugee resettlement program has historically had bipartisan support,
with an average PD of 95,000 until 2017.
 During the Trump Administration, refugee arrivals declined by over
85%.
Brief history  The Trump Administration made deep cuts to the maximum number of
of refugee refugees the U.S. accepts each year, characterizing refugees as a danger
to national security. The current level, 15,000, is the lowest since Carter
law in US signed the law. In the year before Trump's election, the U.S. resettled
84,995 refugees against a cap of 85,000.
 Not only did the Trump Administration drastically reduce the refugee
admissions goal, it also gutted the government agencies that are tasked
with administering the program.
 Under Biden administration, big promises, few met.
Biden on May 3, 2021

 “It is important to take this action today to

remove any lingering doubt in the minds of
refugees around the world who have
suffered so much, and who are anxiously
waiting for their new lives to begin,” Biden
said. “The United States Refugee
Admissions Program embodies America’s
commitment to protect the most vulnerable,
and to stand as a beacon of liberty and
refuge to the world.”
Biden: February 2021

 Biden: "The United States' moral leadership on refugee issues was a point of
bipartisan consensus for so many decades when I first got here.“
 Biden pledged to approve an executive order to restore the admissions program to
meet global demand. "It's going to take time to rebuild what has been so badly
damaged, but that's precisely what we're going to do."
 That same month, the State Department issued a report to Congress proposing an
increase in refugee admissions to 62,500 for the fiscal year.
March-April: Biden reverts to Trump’s
numbers
 April 2021 – Biden
Administration said it would
keep to the Trump
Administration’s cap of
15,000 for FY2021
 Even with the cap of 15,000 in place
so far, only about 2,000 refugees had
been let in by the end of March,
during the first half of fiscal year
2021, 
according to the Refugee Processing
Center
.
  The administration said it intended to use all 15,000 slots available,
allocating
 7,000 for Africa,
 1,000 for East Asia,
 1,500 for Europe and Central Asia,

How the  3,000 for Latin America and the Caribbean,


15,000 slots 1,500 for the Near East and South Asia.
 Another 1,000 slots were unallocated.
are allocated
around the  Fiscal year ends Sept. 30
world
Monday, May 3, 2021
 Biden says he will raise refugee cap from 15,000
to 62,500, after widespread criticism for
extending Trump-era levels
 President Biden on Monday lifted the annual limit
on the number of refugees who can be admitted into
the United States through September to 62,500 but
said admissions would fall short of that mark — 
capping months of wavering and reversals from his
administration and fierce blowback
 from human rights advocates and fellow
Democrats.
 Biden said in a statement that he was raising the
record-low cap of 15,000 set by the Trump
administration, “which did not reflect America’s
values as a nation that welcomes and supports
refugees.”
Facing serious criticism, Biden reverts to the
original plan of increasing cap
 April 16, 2021
 The White House has walked back its announcement that it will keep this
year's historically low refugee ceiling of 15,000 set by the Trump
administration, saying its earlier statement Friday, which was panned by
fellow Democrats, was meant only to ease restrictions from countries from
which refugees are currently banned.
 The White House said President Biden would raise the cap by May 15.
Won’t hit cap

 Biden: “the sad truth” is the United States will not fill all 62,500
slots — the figure his administration set in February before he
backed away from it over concerns about how the government
handled a migration surge at the southern border.
 Biden attributed these conclusions to challenges rebuilding a system
President Donald Trump had dismantled.
Slow going

 Biden administration
admitted 11,411 refugees to
the U.S. in fiscal year 2021,
falling short of his revised
refugee admissions cap of
62,500.
 Fiscal year 2022 will end in
September 30.
10,742
 Seven months into FY 2022 (October 1, 2021,
through April 30, 2022), only 10,742 refugees
were resettled in the United States.
 Part of this has to do with still rebuilding the
immigration structure after it was gutted under
Trump.
 Part has to do with Trump programs created to
restrict immigration and asylum, and which
Biden has not or cannot cancel. More on this
later.
For FY 2022 (Beginning Oct. 1)

 Biden reinforced his goal of 125,000 for the fiscal year

2022 (that starts in October)
 Biden cautioned that number “will still be hard to hit.”
Covid-19 Regional Bans
(Covid used as reason to turn back refugees at
borders

 COVID-19 Regional Bans – Between January and May 2020, Trump issued
proclamations denying entry to noncitizens arriving from or traveling through China, Iran,
the Schengen Area of Europe, the United Kingdom, Ireland, and Brazil. He also signed
agreements with Mexico and Canada blocking non-essential travel through shared land
borders. Trump repealed the restrictions on the Schengen Area, the U.K., Ireland, and
Brazil near the end of his term in office. Biden reinstated these restrictions and added
South Africa. He also renewed the border agreements for another three months.
  On March 20, 2020, the Department of Health and Human Services
(HHS) issued an emergency regulation to implement a specific
aspect of U.S. health law. Section 265 of U.S. Code Title 42 permits
the Director of the Centers for Disease Control and Prevention
(CDC) to “prohibit … the introduction” into the United States of
individuals when the Director believes that “there is serious danger
Covid-19 of the introduction of [a communicable] disease into the United
States.”
effects:: Title  The rule allows any customs officers—which includes officers of
42 U.S. Customs and Border Protection (CBP) such as Border Patrol
agents—to implement any such order issued by the CDC.
  The same day, Director of the CDC Robert R. Redfield relied
Canada and on this regulation to issue an order suspending the
“introduction” of certain individuals who have been in
Mexico “Coronavirus Impacted Areas.”
 The order targets individuals who have entered the United
States from Canada or Mexico and “who would be introduced
into a congregate setting” at a port of entry or in a Border
Patrol station.4 This included individuals who would
normally be detained by CBP after arriving at the border,
including asylum seekers, unaccompanied children, and
people attempting to enter the United States without
inspection. Citing the new CDC order, that same day the
Border Patrol began “expelling” individuals who arrive at the
U.S.-Mexico border, without giving them the opportunity to
seek asylum.
 In March 2020, as part of Title 42, CBP also stopped processing all
asylum seekers who arrive at ports of entry and ask for humanitarian
protection.

This led to nearly 15,000 people who had been waiting on lists for an
opportunity to request asylum at ports of entry (a practice known as
Asylum “metering”) to be left in limbo, with no ability to seek asylum.

seekers
expelled In addition to turning away asylum seekers, CBP used this order to turn
away and expel nearly 13,000 unaccompanied children, despite provisions
of the Trafficking Victims Protection Act which require the government to
protect children who arrive at the border without a parent or legal
guardian.
520,000 expulsions

 On November 18, 2020, the practice of subjecting unaccompanied children to expulsions

was halted by a federal judge, who held that it violates the Trafficking Victims Protection
Act and other laws.
 After a federal court stayed that order in January 2021, the Biden administration amended
the Title 42 order from the CDC to exempt unaccompanied children.
 As a result, unaccompanied children who arrive at the border have not been expelled since
November 2020.
 By February 2021, CBP had carried out more than 520,000 expulsions.
  The Biden administration has quietly tasked six humanitarian
groups with recommending which migrants should be allowed to
stay in the U.S. instead of being rapidly expelled from the country
under federal pandemic-related powers that block people from
seeking asylum.
June 4, 2021  The groups will determine who is most 
vulnerable remaining in Mexico.
 Their criteria has not been made public. 
250 a day

 Biden administration is aiming to admit up to 250 asylum-seekers a day who are

referred by the 6 groups
 Administration has agreed to this system only until July 31.
 There is hope that by that date the Biden administration will have lifted the public
health rules that are inhibiting the flow of asylum seekers into the US. The
government has not yet committed to that.
 As of June 4, a total of nearly 800 asylum-seekers have been let in since May 3.
 This is about 26 asylum-seekers permitted entry each day.
The 6 humanitarian groups

 The groups have not been publicly identified except for the International Rescue
Committee, a global relief organization.
 Unofficially, the others are
 London-based Save the Children
 two U.S.-based organizations: HIAS and Kids in Need of Defense
 two Mexico-based organizations: Asylum Access and the Institute for Women in Migration
Public Health Grounds dwindling

 A similar but separate mechanism led by the American Civil Liberties Union began in late
March 2021 and allows 35 families a day into the United States at places along the border.
It has no end date.
 The twin tracks are described by participating organizations as an imperfect transition from
so-called Title 42 authority, named for a section of an obscure 1944 public health law that
Trump used in March 2020 to effectively end asylum at the Mexican border. With COVID-
19 vaccination rates rising, Biden is finding it increasingly difficult to justify the
expulsions on public health grounds and faces demands to end it from the U.N. refugee
agency and members of his own party and administration.
Exceptions to Title 42

 The CDC order continued to apply the original Title 42 order to single adults and families.
 Officials also maintained the ability to grant exceptions to the order on a case-by-case
basis, and reports suggest that over 20,000 Ukrainian refugees seeking entry through the
U.S.-Mexico border have entered via this channel.
 As of April 25, 2022, Ukrainian refugees are no longer able to enter the U.S. under a Title
42 exemption and they must enter with a visa or through the Uniting for Ukraine program.
Biden planned to lift Title 42

 The Biden Administration was planning to lift the Title 42 order on May 23, 2022. In the
order that would lift the suspension of entry under title 42, the CDC indicates, “While the
introduction, transmission, and spread of COVID-19 into the United States is likely to
continue to some degree, the cross-border spread of COVID-19 due to covered noncitizens
does not present the serious danger to public health that it once did, given the range of
mitigation measures now available.”
Federal judge blocks expiration of Title 42

 On May 20, 2022, federal district Judge Robert Summerhays of the Western District of
Louisiana granted a preliminary injunction, which blocked the Administration from lifting
Title 42.
 The Trump-appointed federal judge ruled that the Administration violated administrative
procedural laws by not allowing for a public comment period before terminating Title 42; a
process that usually takes several months. The Biden Administration issued a statement
disagreeing with the district court ruling and announced that the Department of Justice will
appeal the decision.
 Congress gets involved
 The Administration’s plans to lift Title 42 is also facing challenges in the Congress with some
policymakers expressing concern regarding the Administration’s preparedness to handle the
increase in immigration activity that is anticipated to follow the lifting of the order.
 On April 7, 2022, the bipartisan “Public Health and Border Security Act of 2022” was introduced
into both the U.S. House of Representatives and the Senate.
 Under the proposed legislation, Title 42 restrictions could not be lifted until at least 60 days after
HHS notifies Congress of the end of the COVID-19 public health emergency (PHE) and at least
30 days after it submits a plan to Congress to address the possible influx of migrants resulting
from lifting the restrictions.
 The PHE was most recently renewed in April 2022 and is scheduled to expire in mid-July 2022.
 The proposed legislation is likely to be included as part of a larger amendment to the Senate’s
$10 billion COVID-19 funding bill as opposed to being held to a standalone vote. This may
further complicate the lifting of Title 42, as it would link additional aid for COVID-19 to
maintaining the Title 42 restrictions.
Expelled

 As of March 2022, over 1.6 million single adults, nearly 200,000 individuals in a family
unit, and nearly 16,000 unaccompanied minors have been expelled cumulatively under
Title 42.
 The number of family expulsions under Title 42 also grew between FY2020 and FY2021,
while expulsions of unaccompanied minors decreased, reflecting their exemption from the
policy beginning in February of 2021.
 These encounter counts reflect repeat encounters with individuals, as each attempt by the
same individual to cross the border is counted as a new encounter
“First Nail in the Coffin of Title 42”

 New federal court order gives

migrant families way to skirt
border Covid ban
 The order restores the ability of
migrant families to cite fear of
persecution and torture as a path
toward seeking asylum in the U.S.
 May 24, 2022, NBC News
Manifestation of fear

 New guidance issued to Customs and Border Protection and Immigration and Customs
Enforcement went into effect May 23, 2022
 Guidance states that if CBP officers notice at least one member of the family showing a
verbal or nonverbal “manifestation of fear” of being expelled, they should either be
released into the U.S. with a court date or sent to an asylum officer who can “determine
whether the noncitizen is more likely than not to be persecuted or tortured in the country to
which they would be expelled.”
Lower numbers
Substantial decline in refugee admissions in
US under Trump administration
 Every fall, the U.S. president sets a refugee ceiling – the maximum number of refugees
who may enter the country in a fiscal year.
 In fiscal 2017 (Oct. 1, 2016, to Sept. 30, 2017), about 53,700 refugees resettled in the U.S.
– a figure that reflects a temporary freeze on refugee admissions that Trump ordered
shortly after taking office.
 FY 2018 (T’s first full fiscal year) -- Refugee ceiling set at 45,000, a new low at the time,
and the U.S. ultimately admitted about 22,500.
 FY 2019 – Refugee ceiling set at 30,000 (cap reached)
 FY 2020 -- Refugee ceiling set at of 18,000 refugees.
 FY 2021 (set in Oct. of 2020) -- Refugee ceiling set at of 15,000 refugees
Biden Region Proposed FY 2021 Allocation

Administration: Africa 22,000

Proposed
Emergency East Asia 6,000

Presidential Europe and Central Asia 4,000

Determination on
Latin America/Caribbean 5,000
Refugee
Admissions for Near East/South Asia 13,000

Fiscal Year 2021 Unallocated Reserve 12,500

(Feb. 12, 2021)
Total 62,500
  Resettlement is the transfer of refugees from the country in which
they have sought refuge to another State that has agreed to admit
them.
 The refugees will usually be granted asylum or some other form of
long-term resident rights and, in many cases, will have the
Resettlement opportunity to become citizens.
 The number of countries accepting new refugees for permanent
resettlement has decreased significantly over the last couple of
years, causing recognized refugees to remain in camps while they
await an opening in a country willing to take them.
2020—US resettled fewest refugees in 42 years

 As of September 2020, 11,814 refugees have been resettled  https://

to the United States. The 2020 fiscal year cap for resettled www.unref
refugees was 18,000 - a 40 percent reduction from ugees.org/
2019’s 30,000. This is a record low in the history of the news/the-u-
U.S. resettlement program, which has a historic average of s-refugee-
95,000. resettlemen
t-program-
 In 2020, the U.S. welcomed refugees from more than 60 explained/
countries, with the vast majority arriving from
the Democratic Republic of the Congo, Myanmar,
Ukraine, Afghanistan and Iraq.
 Keeping Promises
 "We are relieved that the Biden
administration has, after a long and
unnecessary delay, kept its promise to raise
the refugee admissions cap for this year to
62,500," Noah Gottschalk, Oxfam
America's global policy lead, said in a
statement. "This announcement means the
United States can finally begin to rebuild
the life-saving refugee resettlement program
and welcome the tens of thousands of
people who have been left stranded by four
years of the Trump administration's
xenophobic policies and three months of the
Biden administration's inaction."
Changes: particular social group,
back and forth
History: Barr’s
involvement in
narrowing who  In 2019, then-Attorney General William P. Barr issued a ruling
qualified for  partially reversing a decision by the Board of Immigration Appeals
membership in a in the asylum case of a Mexican national who said a drug cartel
targeted his family. Barr said that members of ordinary families
“particular social who fall victim to “private criminal activity” cannot claim asylum
group” eligibility in the United States on that basis. Garland’s decision
Wednesday also reversed Barr’s ruling.
June 16, Return to “particular social group”
including victims of violence
 Attorney General Merrick Garland vacated the previous Attorney General Barr decisions in
Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) ("L-E-A- 11"), Matter of A-B-, 27 I&N
Dec. 316 (A.G. 2018) ("A-B- I"), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) ("A-
B- II").
 Attorney General Garland's decisions instruct that Immigration Judges and the Board of
Immigration Appeals should no longer follow the vacated decisions and should instead
revert to prior precedent.
  Garland’s decisions vacated Trump-era rulings that had limited
June 16, Return asylum eligibility for immigrants fleeing gangs or gender-based
to “particular attacks, which his administration characterized as “private” forms
social group” of violence that did not constitute membership in a persecuted
social group.
including
 Now, again, members of a "particular social group" that can be
victims of eligible for refugee status include "victims of private criminal
violence activity"-such as domestic violence or gang violence.
 DOJ Memo: Impact of Attorney General decisions in
Matter of L-E-A- and Matter of A-B
 The now-vacated decisions in L-E-A- II, A-B- I, and A-B- II restricted the availability
of asylum on that ground. For example, Matter of L-E-A- II departed from precedent
by limiting the circumstances under which a family may qualify as a "particular
social group." And A-B- I broadly stated that "victims of private criminal activity"-
such as domestic violence or gang violence will not qualify for asylum except
perhaps in "exceptional circumstances." 27 I&N Dec. at 317.
 Pursuant to the President's Executive Order No. 14010, the Justice Department and
the Department of Homeland Security are engaged in a joint rulemaking "addressing
the circumstances in which a person should be considered a member of a 'particular
social group."' Exec. Order No. 14010, § 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2,
2021). In today's decisions, the Attorney General explains that he is vacating L-E-A-
II, A-B- I, and A-B- II to return the law to its preexisting status pending the
rulemaking process, which will allow these complex and important questions to be
resolved with the benefit offull public comment. When the final rule is promulgated,
it will govern these issues going forward.
Explosion: “fear of persecution”

 The number of asylum seekers crossing the border who claim fear of persecution has
exploded in recent years, pushing the backlog of pending claims in U.S. immigration
courts to more than 1.3 million. Border crossings have reached a 20-year high since Biden
took office, adding hundreds of thousands of cases to the docket
Changes for Asylum Seekers
ONLY at Southern Border
Changes for Asylum Seekers
ONLY at Southern Border
 1) Metering and Asylum turnbacks
 2) Remain in Mexico (Migrant Protection Protocols)
 3) Asylum Transit Ban
Metering (Queue management)

 April 2018, administration ordered all ports of enter on border w/ Mexico to implement
metering.
 Officials limit number of migrants who can make asylum claims each day
 Asylum seekers told to go to port of entry and request asylum there
 At port of entries, asylum seekers are given a number and told to wait
 Wait periods are between days to up to 6 months
 That is simply for the opportunity to start the process
Metering -- Waits

 Nov. 2019 –
 More than 21,000 individuals waiting in border cities under metering
 Tent cities—Matamoros tent city, 2,000 people there
 Horrible conditions, Unsanitary, no running water
 No help/support from US while waiting
Metering applies to:

 All nationalities
 All family compositions
 (single adults, families, unaccompanied minors)
 Remain in Mexico
(Migrant Protection Protocols)

 Individuals who arrive at southern border and

ask for asylum or who cross between ports,
enter US and then ask for asylum
 Asylum seekers are given a court date, but are
RETURNED to Mexico (even if they are not
from there) to await their US immigration
court hearing
 MPP History
 December 2018 -- the Trump administration announced the creation of the then new program
called the “Migrant Protection Protocols” (MPP 1.0), referred to as the “Remain in Mexico”
program.
 Went into effect in January 2019. Used to send nearly 70,000 migrants back to Mexico.
 On the campaign trail, President Biden promised to end MPP. Hours after his inauguration, DHS
officially stopped placing any new people into MPP.
 Over the next few months, the Biden administration began a process of “winding down” MPP
1.0, which included admitting nearly 13,000 people who had been waiting in Mexico and
allowing them to seek asylum from within the United States.
 August 2021-- federal court in Texas ordered the Department of Homeland Security (DHS) to
reinstate MPP.
 December 3, 2021-- Biden administration formally reinstated MPP and began sending individuals
back to Mexico under MPP 2.0 on December 6, 2021.
 The Biden administration on April 30, 2021 announced
plans for tens of thousands of people who are seeking
asylum and have been forced to wait in Mexico under a
Trump-era policy to be allowed into the U.S. while their
cases wind through immigration courts.
Biden
Administration
The first wave of an estimated 25,000 asylum-seekers
with active cases in the “Remain in Mexico” program will
be allowed into the United States on Feb. 19, authorities
said. They plan to start slowly, with two border crossings
each processing up to 300 people a day and a third
crossing taking fewer numbers.
Legality of MPP (Remain in Mexico)?

 Feb. 28, 2020 -- 9th Circuit Court of Appeals – injunction, temporarily halting Remain in
Mexico Program as lawsuits progress through court system.
 Feb. 28, 2020 – hours later, 9th Circuit, 3-judge panel unanimously voted to suspend its
order and gave government a few days to respond.
 9th Circuit then voted to impose injunction on MPP only in CA & AZ
 March 11, 2020 -- S.Ct. overturns this limited injunction and allows application of MPP
while suits challenging it are pending in lower courts.
 S.Ct. did NOT decide the legality of MPP
9th Circuit Judges

 Judges from the Ninth Circuit Court agreed that MPP likely violated federal "non-
refoulement" obligations under international and domestic laws, which prohibits the
government from returning people to a country where they would face persecution or
torture.
Enforce in Good Faith
 Texas and Missouri brought lawsuit against Biden Administration for not enforcing the
MPP/RiM program.
 August 15, 2021 -- federal judge ordered the Biden administration to “enforce and
implement MPP in good faith until such a time as it has been lawfully rescinded in
compliance with the APA [Administrative Procedure Act] and until such a time as the
federal government has sufficient detention capacity to detain all [noncitizens] subject to
mandatory detention under Section 1255 without releasing any [noncitizens] because of a
lack of detention resources.”
 Despite the extraordinary and unprecedented nature of this decision, which forced the
Executive branch to engage in diplomatic negotiations with Mexico, the Supreme Court
refused to temporarily halt the order while it went through the appeals process.
  State of Texas argued that the Biden
April 26 at the US Supreme Court administration can not revoke the
MPP/Remain in Mexico program.
 The problem is that the statute
instructs the government to detain
asylum seekers, but Congress has
only appropriated enough money to
detain 30,000 to 40,000 people at any
given moment, a small fraction of
immigrants seeking asylum.
 In March 2022, there were more than
220,000 border crossings, but funds
for only 30,000 detention beds, and in
the Trump administration similar
numbers led to the same results.
 No decision yet.
 Remain in Mexico affects

 Migrants from Spanish-speaking countries

other than Mexico
 Brazilians (Portuguese speaking)
 Single adults
 Families
 Not supposed to affect unaccompanied
minors and citizens of Mexico, but
increasing number of reports of this
Tent Cities

 Waits are often months

 Squalid conditions
 No running water
 No electricity
 High crime and insecurity
 Remain in Mexico border towns

 San Ysidro, CA • Individuals may be sent to Mexico under

 Calexico, CA MPP at a location far from where they
 El Paso, TX arrived a the border.
 Eagle Pass, TX • They can be required to appear for their
 Laredo, TX hearing at immigration court at a location
 Brownsville, TX hundreds of miles away.
Legal effects of MPP/RiM

 The lack of counsel, combined with the danger and insecurity that individuals face in
border towns, made it nearly impossible for anyone subject to MPP to successfully win
asylum.
 By December 2020, of the 42,012 MPP cases that had been completed under MPP 1.0,
only 521 people were granted relief in immigration court.
Fear to return to Mexico?

 Under Remain in Mexico, CBP officers do not ask asylum seekers if they are afraid of
returning to Mexico.
 If asylum seeker fears returning to Mexico, that individuals must affirmatively voice that
fear.
 No legal representation at this point, so asylum seekers do not know they need to vocalize
this fear
Fear to Remain in Mexico

 If individual voices fear of going/returning to Mexico, then referred to asylum officer for
fear interview
 Government estimates of persons who pass this fear to remain in Mexico interview to be
taken out of MPP process are between 1-13%
 Labor union representing Asylum Officers asked 9th Circuit to strike down MPP as a
directive that is “fundamentally contrary to the moral fabric of our nation and our
international and domestic legal obligations.”
60,000 Remain in Mexico

 Jan 2019-Nov. 2019

 Nearly 60,000 people have been returned to Mexico to await court hearings
 These hearings are assigned to the “toughest” immigration judges
 9,974 MPP court cases completed
 Only 11 granted relief in immigration court (0.1% success rate)
 5,085 issues of removal
Legal representation in MPP cases

 2%
 1,109 people had lawyers out of 47,313
 One goal of making asylum seekers remain in Mexico to await immigration court hearing
is to deprive them of legal representation
One Purpose of Remain in Mexico Policy?

 December 2019: acting Customs and

Border Patrol Chief Mark Morgan
pledged to try to shut down asylum for
migrants from outside the immediate
region, noting migrants from Haiti,
Brazil and African countries.
Transit-Country Ban

 Makes ineligible for asylum all migrants

who crossed through third countries on
way to US-Mexican border
 And who fail to present formal
determinations that they applied for and
were denied asylum in one of those
countries
Trans-Country Asylum Ban affects

 All nationalities other than Mexicans

 All family compositions, including unaccompanied minors
Exceptions to Transit Ban

 Victims of severe from of trafficking in persons

 Individuals who applied for protection in another country and had their application denied
 NO exception for Children/unaccompanied minors
Convention Against Torture

 Asylum seekers who are banned from seeking asylum because of Transit Ban can seek
protection under CAT
 Much harder to prove, considered a heightened screening
 Must prove “reasonable fear” of persecution or torture
 Under Refugee criteria, just need to fear “credible fear”
Benefits: refugee vs. CAT protection

Refugee
 Permanent status/path to citizenship  No permanent status, if government
 Can enter and leave US CAT protection
determines situation in home country
improved, can send CAT person “home”
 Can bring family
 If leave US, lose CAT protection
 Can work (6 months after start process,
 No right to bring family
now Trump administration changing that
to 1 year)
Humanitarian Asylum Review (HARP)

 Oct. 2019 Implemented

 Asylum seekers have cases adjudicated rapidly
 Goal of removal within 10 days
 Affects: Mexicans: single adults and families
Prompt Asylum Case Review (PACR)

 Implemented Oct. 2019

 Claimants for humanitarian protection have cases adjudicated rapidly
 Goal of removal w/in 10 days
 Affected: Non-Mexicans (single adults and families)
Client in Dilley

 Client arrived and finished being processed at 3-4 a.m.

 Slept a few hours
 Enrolled kids in school
 Hear about legal services at lunch
 4 p.m. came to clinic.
 Next morning at 9 a.m. in credible fear interview
 Denied
Asylum Cooperation Agreements
(Third-Country Agreements)
 Implemented Nov. 2019
 US asylum seekers may be deported to Guatemala to seek asylum there
 ACAs with El Salvador and Honduras have been signed, with goal to soon implement
 Affects: Hondurans and Salvadorans, single adults and families
Immigration Judges

 Not part of the judicial branch, Part of the Department of Justice

 “we have been treated as a law enforcement tool since our inception, and never quite as
much as we have in the last few years. What has been done is disempower the judges. It
has allowed the agency to use the judges essentially as an extension of a political
messaging tool” – Judge Tabaddor
Quotas & deadlines on judges

 El Paso immigration judges

 With Remain in Mexico, judges expected to handle 50 cases in the morning, 50 cases in
the afternoon
 That is 4 minutes per case
Covid 19’s Impact on Southern Border

 March 20 – Trump Administration issued

new policyUnder the Centers for Disease
Control and Prevention (CDC).
 Granting border officials to ignore
asylum claims and expel thousands of
unauthorized migrants to Mexico or their
home countries
 Stating fear of migrants spreading Covid
19
Timing: Ending?

 The policy was renewed for another 30  Some officials and advocates worry the
days at the end of April. new turn all asylum seekers away
 violates federal refugee law and
Set to expire May 30
international refugee law.
 Can again be renewed for another 30
days
Affect on unaccompanied minors
 In addition to expelling all asylum
seeking adults,
 health law is necessary to block the entry
Unaccompanied minors are also being
expelled
 In past, unaccompanied minors were
given protections and reunited with
family or sponsors in the US
 The administration has argued that the
CDC order invoking a 1940s-era public
of migrants who could be carrying the
coronavirus and cause outbreaks inside
immigration jails that would overwhelm
the public health system along the
border.
 Migrant children, top officials have
argued, pose the same threat to the U.S.
as adults during the pandemic.
Expelling Children

 In the last 11 days of March 2020, officials expelled at least 299 unaccompanied children
under the public health order. Expulsions in April are expected to be released Thursday,
according to a Customs and Border Protection (CBP) spokesman, but data from the U.S.
refugee agency responsible for caring for these minors suggests that most unaccompanied
children have been denied entry since the emergency order took effect.
 The Office of Refugee Resettlement (ORR) received only 58 children from border officials
in April, according to government data obtained by CBS News. In March, including the 11
days under the order, border officials referred 1,852 children to the agency.
From CBS News Article

 "The administration is using coronavirus and the pandemic as a cover for doing what it has
always wanted to do, which was to close the border to children," Jennifer Nagda, the
policy director at the Young Center for Immigrant Children's Rights, told CBS News.
"There is no reason why unaccompanied children arriving at the border can't be safely
screened and transferred to ORR custody, where capacity is at an all-time low."
 "There is no real public health justification for turning these children away at the border —
and it absolutely violates federal law," Nagda added.
Southern Border

 Asylum is almost impossible to be granted if the asylum seeker begins her claim at the
U.S.-Mexican Border.
 Very few asylum slots are reserved for those fleeing violence from Latin American
countries.
 There are no official reserved spots for Mexicans.