On January 29, 2019, the United States took the first action in its plan to send non-Mexican asylum seekers back to Mexico while waiting for their asylum hearings as per the new Migrant Protection Protocols (MPP) policy. The first migrant returned to wait in Mexico under this plan was Honduran and since then the overwhelming majority of asylum seekers returned to Mexico are from Central America. MPP was passed in response to the severe backlog of asylum cases in the United States and a general skepticism of the validity of asylum claims. Currently, it can take several years for an asylum case to come before an immigration judge. Additionally, the Trump administration does not believe that many of the asylum claims are valid. The migrants are being sent back through the Tijuana port of entry currently but use of other ports is expected in the near future. About twenty migrants are expected to be returned to Mexico every day.

Mexico has agreed to accept the asylum seekers for the time being unless they have health problems, are unaccompanied minors, or would be in danger in Mexico. Advocates have spoken out against sending asylum seekers back to Mexico though, claiming the country is unsafe for migrants who are regularly kidnapped by criminal gangs and smugglers. A lawsuit filed by rights groups on February 14, 2019, alleges that being forced to wait in Mexico is almost as dangerous as remaining in some parts of Central America, because of increased risks of “kidnapping, disappearance, trafficking, sexual assault and murder, among other harms.” In addition to possible danger in Mexico, advocates have argued that migrants sent back to Mexico would not have easy access to their legal counsel in the United States, making the process for seeking asylum more difficult.

The actions of the United States are contrary to its human rights obligations under the Universal Declaration of Human Rights (UDHR); the 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention), later codified in 8 USC § 1158; and the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). Under Article 14 of the UDHR, “[e]veryone has the right to seek and enjoy in other countries asylum from persecution.” Under Article 33 of the 1951 Refugee Convention, the principle of non-refoulement prohibits a state from returning a refugee to a situation where his or her life or freedom would be threatened on account of a protected ground. This Convention was later codified, making it domestic law. Title 8, Section 1158 of the U.S. Code states that the only time an asylum seeker may be sent to a third country is when “the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Further, under Article 5(a) of the ICERD, there is a guaranteed right to not be discriminated against due to nationality or ethnic origin when appearing in front of tribunals and all other organs administering justice.

By refusing to allow certain asylum seekers to remain in the country, the United States is violating Article 14 of the UDHR. Based on reports of the violence in Mexico, the United States is violating obligations under Article 33 of the 1951 Refugee Convention and 8 USC § 1158 by sending asylum seekers to Mexico rather than allowing them to remain in the United States throughout the asylum process. Further, the rampant discrimination based on nationality under this protocol violates Article 5 of the ICERD. This is because under the MPP, only asylum seekers at the Mexican border and only asylum seekers who are not Mexican citizens will be held in Mexico. This discrimination is based on nationality of asylum seekers and serves to deprive them of equal access to asylum seeker services within the United States. By being held in Mexico, asylum seekers have a harder time meeting with United States lawyers and are being forced to make their cases under more dangerous conditions than other asylum seekers entering the United States.

While there are clearly increasing asylum seeker backlogs in the court system, the practical deprivation of attorney services to a select group of asylum seekers kept in another country will not serve to fix this issue as much as place an undue burden and risk on those seeking asylum. The U.S. government has multiple obligations under both international and domestic law that prohibit it from sending asylum seekers to another country simply because they are from Central America. If the U.S. government wants to avoid costly litigation, it should bring the MPP in line with its legal obligations.