Since the start of 2018, the Trump administration has adopted increasingly strict measures to prevent or deter the movement of Central American migrants to the U.S.-Mexico border, most of whom make asylum claims. These measures have included threatening Mexico with tariffs and cutting development aid to El Salvador, Guatemala, and Honduras to force these countries to restrict migration through the region, as well as agency-level policies and regulatory changes that would control the number and types of people who can apply for asylum at the U.S.-Mexico border.1 Advocates have managed to block several of the administration’s asylum measures in federal court on legal or administrative grounds. Given that the White House has failed to convince Congress to restrict asylum access through legislation, it will likely continue to use these regulatory measures to attempt to deter migrants despite ongoing litigation.
The Trump administration’s asylum policies have attempted to alter the process of seeking asylum at the U.S.-Mexico border in two ways. Policies like the two “asylum bans” have sought to restrict the eligibility of most adults and children arriving at the Southwest border to seek asylum based on where they enter the United States or the countries they traveled through to reach the border. Measures like “metering” at ports of entry, which limits the number of migrants who can enter the United States to make asylum claims, and the Migrant Protection Protocols, also known as “Remain in Mexico”, which requires asylum seekers who arrive in the United States to stay in Mexico throughout their asylum process, are meant to limit the number of asylum cases the immigration system receives and processes. At the same time, the administration hopes to deter migrants from using the asylum process to enter the United States.
The Trump administration has introduced two separate regulations that sought to limit asylum access to deter migrants from arriving at the U.S.-Mexico border. In November 2018, the Trump administration issued a presidential proclamation accompanying an interim final rule from the Department of Justice and Department of Homeland Security barring most migrants from eligibility to apply for asylum if they entered between ports of entry. Although the administration argued this policy would shift asylum claims to ports of entry, immigration advocates and other groups filed a lawsuit against the policy on legal and administrative grounds, leading the U.S. District Court in Northern California to issue a preliminary injunction blocking the rule, which the Supreme Court upheld in December 2018. A federal judge in Washington, D.C., subsequently threw out the policy in August 2019, but the administration has promised to appeal that ruling. Litigation remains ongoing.
In July 2019, the administration attempted to limit asylum access through another regulation. The newest interim final rule narrows asylum eligibility by barring nearly all migrants from applying for asylum if they did not first seek protection in a third country they travelled through. 2 The Trump administration stated that the policy would prioritize migrants with the greatest needs—and dissuade people from seeking asylum in the United States—by reducing the number of eligible individuals. Like the November 2018 regulation, immigration and civil liberties organizations sued over the policy in federal district courts in Washington, D.C., and California on legal and administrative grounds. Although the D.C. court did not issue an injunction, the California court enjoined the decision within days of its issuance. However, an appeals court in California subsequently limited the scope of the injunction to California and Arizona allowing the administration to apply the rule in Texas and New Mexico. Litigation remains ongoing.
The Migrant Protection Protocols, also known as MPP or “Remain in Mexico,” is a DHS policy implementing a section of immigration law that allows3 Customs and Border Protection (CBP) to return individuals who have been processed to make their asylum claims in immigration court to be returned to Mexico during the pendency of the proceedings. Under the program, DHS is supposed to issue these individuals4 a document with the specific date and time for their hearing before an immigration judge in the United States. DHS allows these individuals to re-enter the United States to attend these hearings during the duration of their asylum or removal proceedings. DHS has stated that the government has sent back 31,800 migrants to Mexico under MPP.
MPP has been mired in controversy since its implementation in January 2019. Immigration advocates have argued that the program exposes Central American nationals to violence in Mexico and undermines an individual’s ability to have a fair hearing. These criticisms led a group of advocates to file a lawsuit against the program for exceeding its legal scope5 and placing migrants in danger. Although a federal judge in California issued a preliminary injunction based on these arguments, the U.S. Court of Appeals for the 9th Circuit placed an emergency stay on this injunction for the duration of the litigation process after the Trump administration appealed the decision. Litigation remains ongoing, but MPP remains operational to date.
The Trump administration has expanded an existing CBP policy known as metering to limit the number of migrants that can present themselves at ports of entry along the U.S.-Mexico border for asylum. Under these protocols, CBP allows limited number of people to enter a port of entry each day to initiate the asylum request process based on the supposed capacity at the port of entry. CBP prevents additional entry across the border once it has met its daily limit, leaving would-be applicants to wait in Mexico until CBP officers admit additional applicants. An informal “wait list” is kept at most ports of entry, sometimes by the migrants themselves, sometimes monitored by Mexican officials, but CBP has stated it does not control or order any waiting lists. Although CBP has not released any data on the number of individuals going through the metering process, some organizations estimate that 19,000 migrants are waiting along the U.S.-Mexico border as of May 2019 to enter to make their asylum claims.
Although advocates have tied metering to the Trump administration, the practice first emerged during the Obama administration. Under this version, which began at the San Ysidro port near San Diego, CA, in May 2016, individuals arriving at a port would receive numbers from Mexican officials showing the date when they could go to the port to present their case. Rather than establishing a daily limit to regulate the number of applications, CBP allowed migrants to present themselves for asylum at 8:00 a.m. or 4:00 p.m. every day. After CBP formalized this agreement with Mexico in July 2016, the agency expanded this policy to every port along the U.S.-Mexico border in November 2016.
The policy has remained controversial since 2016. Although DHS publicly stated that the newest version of metering manages resources to process asylum request at ports of entry, advocates claim that the current policy pushes migrants to make risky journeys to areas between ports of entry where they can present themselves to CBP to claim asylum. Advocates have also held longstanding criticisms that the policy leaves migrants vulnerable to violence in Mexico while artificially limiting application numbers, and limits their access to counsel, affecting the due process of their cases. This position led them to file suit against the policy in July 2017, which they amended with information from the Trump administration’s policies. After the government filed a motion to dismiss the case, a federal judge in California ruled that case could proceed in the courts, but no injunction is in place, and the policy continues across the border.
In August 2019, the Trump administration published a final rule that would superseded the Flores settlement, an arbitrated court decision that prohibits authorities from keeping children in immigration detention for more than 20 days, even if they are with their parents.6 The current crisis has seen the U.S. government release many families from detention due to these detention period limits. The administration has made eliminating the settlement a priority since 2018, arguing that the agreement creates incentives for Central American migrants to travel to the U.S.-Mexico border with a child to take advantage of this practice. Immigration advocates have lambasted the rule, stating that it will lead to indefinite detention of families in deplorable conditions. In August 2019, 20 states filed a lawsuit against the rule, starting another series of litigation against a Trump regulation.
In response to the increase in arrivals of Central American migrants at the U.S.-Mexico border, the administration has continued its efforts to use extensive executive authorities to attempt to prevent and deter migrants from claiming asylum at the border, or to limit or prevent their ability to apply for or receive asylum. However, these efforts so far have had limited effect, in large part due to ongoing litigation. The administration has acknowledged that it expects its actions to be litigated, and in some cases have not even made significant plans to implement the policies with the believe that the regulation will at least be initially blocked by the courts. After the Supreme Court declared that the White House’s third iteration of its travel ban was constitutional, President Donald Trump has stated he has confidence that many of these policies will eventually go forward when the Supreme Court weighs in. In the meantime, this situation of regulation and litigation will proceed.
1 This blog post will examine all border policies save for the Trump Administration’s family separation measures, which we analyzed here.
2 The restriction does not apply to asylum applicants who can prove their asylum claim was denied elsewhere, are the victim of a “severe” form of human trafficking, or did not travel through any countries that recognize international refugee treaties and the Convention Against Torture. It also does not apply to Mexican or Canadian nationals.
3 Please see page 21 of this report to see discussion about the Migration Protection Protocol Program.
4 DHS has exempted certain groups from these rules, including unaccompanied children, Mexican nationals, migrants processed for expedited removals, and any person who may face persecution or torture in Mexico.
5 The policy invokes Section 235(b)(2)(C) of the Immigration and Nationality Act, which permits the return of migrants traveling to the U.S. border to a foreign contiguous country during their removal proceedings if the person arrived to the border by land through the contiguous country’s territory.
6 The administration introduced the proposed version of the rule in September 6, 2018.