A Geographical Perspective on the Migrant Protection Protocols

How can we think geographically about the Migrant Protection Protocols? In Monday’s newsletter, I discussed the return of the Migrant Protection Protocols and linked to resources and organizations that you could follow to keep up with the roll-out of MPP 2.0. Although the reporting on MPP exploded in the past few days, relatively few people were actually enrolled in MPP this week.

Image from Reuters Article by Jose Luis Gonzalez available here.

Today, instead of doing a detailed wrap-up of all of the policy statements, news articles, and practice advisories, I decided to share a more conceptual, long-form excerpt that illustrates how we can—and, I believe, should—think about MPP through a geographical lens.

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Note: There was a lot—I mean, A LOT!—of immigration news and research out this week. Watch for my next newsletter on Monday which will cover highlights, provide readable summaries, and include links to resources. And if you want to make sure you get this information when it is released, consider subscribing to this newsletter. It’s free to subscribe but subscriptions help me know whether this work is valuable.

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I realize that most people at this point probably associate me most with my role at TRAC. But the truth is, my primary intellectual identity is as a political and legal geographer. I am interested, first and foremost, in understanding the evolving relationship between law, space, and power by focusing on the growth of immigration controls in the US and around the world. In that vein, I am sharing a section of an academic article I wrote earlier this year in which I argue that we really need to understand how MPP undermines the asylum system by manipulating and exploiting space.

“MPP undermines the asylum system by manipulating and exploiting space.”

The full article was published in the Journal of Latin American Geography (click here). I am grateful for editor Johnny Finn’s support in publishing this on short notice. I am leaving the in-text citations and the references at the bottom for those who want them, but if that’s not your thing, please feel free to just read over them.

Here we go:

Rigging Asylum by Manipulating Space

By forcing migrants to wait in Mexico, MPP quickly and effectively all but abolished asylum along the U.S.-Mexico border, effectively creating what has been called elsewhere an “asylum free zone” (Washington, 2017, para. 2). Rather than outright eliminating the statutory basis for asylum, MPP manipulated the legal geographies of asylum in order to predispose asylum cases even more towards negative outcomes, and it used exposure to regional violence as a deterrent to future asylum seekers.

Migrant Protection Protocols were premised, in part, upon the idea that asylum seekers “skip their court dates” (Department of Homeland Security, 2018, para. 2), that is, they do not attend their immigration court hearings once paroled into the United States and therefore should not be allowed into the country in the first place (Crowe, 2019). However, at least two independent studies contradict these assertions. A study of 18,378 deportation proceedings found that 86 percent of families released from detention appear in court for all of their court hearings (Eagly et al., 2018). With legal representation, this increased to as high as 97 percent. A second study of nearly 47,000 recently arrived migrant families also concluded that most—85.5 percent—attended all of their hearings; with an attorney, that number increased to 99.0 percent (Transactional Records Access Clearinghouse, 2019b).

MPP may have been created to address a fictional problem, but it created a very real one by making it almost impossible for migrants to attend hearings. One of the most militarized borders in the world ( Jones, 2016) stood between migrants and their court hearings. To attend 7:30 am court hearings on the U.S. side of the border, migrants were instructed to show up at ports of entry three hours in advance—at 4:30 am—in cities with high rates of gang violence, kidnapping, and femicide (Del Valle, 2019). Because asylum seekers understandably lacked permanent street addresses in Mexico, Border Patrol agents reportedly wrote “Facebook” as the street address for migrants on forms related to their immigration hearing even though there does not appear to be a mechanism for the government to communicate with migrants through social media (Flores, 2019). As a result, of the 41,888 MPP cases that were completed by the end of January 2021, 27,898 (or 67 percent) ended in an in absentia deportation order that is triggered when migrants do not appear for their hearing (Transactional Records Access Clearinghouse, 2021a).

Regional violence in northern Mexico also helps explain low hearing attendance rates. The refugee camp in Matamoros is located in the state of Tamaulipas, where murder, kidnapping, and sexual assault are so pervasive that the Department of State has issued a standing “do not travel” advisory for U.S. citizens (Department of State, 2020, para. 5). Since the start of MPP, Human Rights First (2021a) has cataloged at least 1,544 cases of murder, rape, torture, kidnapping, and other violent assaults reported in the media. For instance, journalist Emily Green (2019) reported on David, an asylum-seeker from Guatemala, who was kidnapped by a cartel five hours after he was sent back to Mexico under MPP in 2019. David escaped, but because the cartel had taken his paperwork, making an asylum claim became impossible. The Department of Homeland Security claimed that it would take humanitarian precautions, but medical professionals who interviewed migrants in MPP found that migrants were victims of extortion and violent crime in Mexico as well as abuse by U.S. immigration officials who pressured migrants to sign forms in English that they did not understand and who separated parents from children during the detention process (Physicians for Human Rights, 2021).

It has been well-established that immigration attorneys are one of the determining factors in asylum outcomes (Eagly & Shafer, 2015; Stave et al., 2017; Ryo, 2018; Nash, 2019). Immigration attorneys assist clients with assembling immigration cases, navigating bureaucratic demands of the immigration court system, and ensuring that clients meet key milestones such as attending their court hearings—all of which lead to more advantageous outcomes for asylum seekers. Of the nearly 60,000 asylum cases decided by immigration judges in the fiscal year 2020, 80 percent of applicants were represented by an immigration attorney. Yet of the 71,036 cases placed into MPP over two years, just 7.6 percent were represented by an attorney.

Taken together, high rates of local violence, low hearing attendance rates, and low rates of legal representation contributed to abysmal asylum rates. Out of the 41,888 MPP cases that have been completed so far, all but 641 (1.5 percent) have ended in some form of closure, dismissal, or rejection that provided no protection for migrants. For the nearly 28,000 migrants who received a deportation order, the problem is compounded by the fact that, having never had a genuine opportunity to present their asylum case before a judge, they are now barred from entering the United States and will face enormous barriers should they attempt to make an asylum claim in the future. Although the Biden administration has begun allowing migrants with pending cases under MPP to enter the United States, the administration has not provided any indication that it will create a path for migrants who were ordered deported under MPP to get an authentic first opportunity to make an asylum claim.

Even under normal circumstances, applying for asylum has been compared to a roulette game, where outcomes are based as much on chance as on the substance of the asylum case (Ramji-Nogales et al., 2008). MPP took refugee roulette a step further by turning the asylum process into a carnival game that was rigged against applicants from the outset.

References

American Immigration Council (2017) “The Perils of Expedited Removal: How Fast-Track Deportations Jeopardize Asylum Seekers.” Available at: https://www.americanimmigrationcouncil.org/research/expedited-removal-asylum-seekers.

Ayoub, A, and Beydoun, K (2017) “Executive disorder: The muslim ban, emergency advocacy, and the fires next time.” Michigan Journal of Race & Law 22 (2):215-242.

Barnes, R. 2021. “Biden asks Supreme Court to cancel arguments on two of Trump’s immigration priorities.” The Washington Post. Accessed March 17, 2021. https://www.washingtonpost.com/politics/courts_law/biden-supreme-court-trump-border-wall-immigration/2021/02/01/07acf182-64d1-11eb-8c64-9595888caa15_story.html.

Bassett, L, Laughon, K, Montalvo, N, and Glazier, J (2020) “Living in a tent camp on the US/Mexico border: The experience of women and children in Matamoros, Mexico.” Available at:

Crowe, J. 2019. “DHS Secretary: 90 Percent of Recent Asylum-Seekers Skipped Their Hearings.” National Review. Accessed March 11, 2021. https://www.nationalreview.com/news/dhs-secretary-90-percent-of-recent-asylum-seekers-skipped-their-hearings/.

Cusumano, E, and Pattison, J (2018) “The non-governmental provision of search and rescue in the Mediterranean and the abdication of state responsibility.” Cambridge Review of International Affairs 31 (1):53-75.

Del Valle, G. 2019. “Trump’s Remain in Mexico Policy Is Causing Asylum-Seekers to Miss Court Dates — and Get Deported.” VICE News. Accessed March 11, 2021. https://www.vice.com/en/article/gyzdp9/trumps-remain-in-mexico-policy-is-causing-asylum-seekers-to-miss-court-dates-and-get-deported.

Department of Homeland Security (2018) “Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration.” Available at: https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration.

--- (2019) “Policy Guidance for Implementation ofthe Migrant Protection Protocols.” Available at: https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf.

--- (2021a) “DHS Announces Process to Address Individuals in Mexico with Active MPP Cases.” Available at: https://www.dhs.gov/news/2021/02/11/dhs-announces-process-address-individuals-mexico-active-mpp-cases.

--- (2021b) “DHS Statement on the Suspension of New Enrollments in the Migrant Protection Protocols Program.” Available at: https://www.dhs.gov/news/2021/01/20/dhs-statement-suspension-new-enrollments-migrant-protection-protocols-program.

Department of State (2020) “Mexico Travel Advisory.” Available at: https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html.

Eagly, I, and Shafer, S (2015) “A National Study of Access to Counsel in Immigration Court.” University of Pennsylvania Law Review 164 (1):1-91.

Eagly, I, Shafer, S, and Whalley, J (2018) “Detaining Families: A Study of Asylum Adjudication in Family Detention.” California Law Review 106 (3):785-868.

Flores, A. 2019. “Border Patrol Agents Are Writing “Facebook” As A Street Address For Asylum-Seekers Forced To Wait In Mexico.” BuzzFeed News. Accessed March 11, 2021. https://www.buzzfeednews.com/article/adolfoflores/asylum-notice-border-appear-facebook-mexico.

Green, E. 2019. “Trump's Asylum Policies Sent Him Back to Mexico. He Was Kidnapped 5 Hours Later by a Cartel.” VICE News. Accessed March 11, 2021 https://www.vice.com/en/article/pa7kkg/trumps-asylum-policies-sent-him-back-to-mexico-he-was-kidnapped-five-hours-later-by-a-cartel.

---. 2021. “‘We Are So Happy’: Migrants Stranded by Trump Are Finally Entering the US.” VICE World News. Accessed March 9, 2021. https://www.vice.com/en/article/wx89j5/we-are-so-happy-migrants-stranded-by-trump-are-finally-entering-the-us.

Guttentag, L (2021) “Immigration Policy Tracking Project.” Available at: https://immpolicytracking.org/about/.

Harrington, B, and Smith, H (2019) ““Migrant Protection Protocols”: Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico.” Available at: https://fas.org/sgp/crs/homesec/LSB10251.pdf.

Human Rights First (2021a) “Delivered to Danger: Trump Administration sending asylum seekers and migrants to danger.” Available at: https://www.humanrightsfirst.org/campaign/remain-mexico#accountability.

--- (2021b) “Human Rights First Welcomes Admission of First Asylum Seekers Forced to “Remain in Mexico” After Two Years of Danger and Delay.” Available at: https://www.humanrightsfirst.org/press-release/human-rights-first-welcomes-admission-first-asylum-seekers-forced-remain-mexico-after.

Johnson, K. 2021. “From ‘aliens’ to ‘noncitizens’ – the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans.” The Conversation. Accessed February 25, 2021. https://theconversation.com/from-aliens-to-noncitizens-the-biden-administration-is-proposing-to-change-a-legal-term-to-recognize-the-humanity-of-non-americans-155693.

Johnson, K R (2017) “Immigration and Civil Rights in the Trump Administration: Law and Policy Making by Executive Order.” Santa Clara Law Review 57:611-665.

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Physicians for Human Rights (2021) “Forced into Danger: Human Rights Violations Resulting from the U.S. Migrant Protection Protocols.” Available at: https://phr.org/wp-content/uploads/2021/01/PHR-Report-Forced-into-Danger_Human-Rights-Violations-and-MPP-January-2021.pdf.

Ramji-Nogales, J, Schoenholtz, A, and Schrag, P (2008) “Refugee Roulette: Disparities in Asylum Adjudication.” Stanford Law Review 60:2007-2012.

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--- (2019b) “Most Released Families Attend Immigration Court Hearings.” Available at: https://trac.syr.edu/immigration/reports/562/.

--- (2021a) “Details on MPP (Remain in Mexico) Deportation Proceedings.” Available at: https://trac.syr.edu/phptools/immigration/mpp/.

--- (2021b) “The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts.” Available at: https://trac.syr.edu/immigration/reports/637/.

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