Background

In January 2023, the Supreme Court of the United States blocked the Biden administration’s attempt to end the Trump-era “Remain in Mexico” policy. The policy, officially known as the Migrant Protection Protocols (MPP), requires asylum seekers to wait in Mexico while their cases are processed in the United States. The Biden administration argued that the policy was illegal and inhumane, but the Supreme Court ruled in favor of the states of Texas and Missouri, who had challenged the administration’s decision to end the policy.

MPP’s Clash with International Treaties & Conventions

The MPP has attracted substantial criticism from human rights groups and foreign governments, who assert that its implementation blatantly contravenes established principles of international law. In a resounding call to action, the United Nations High Commissioner for Refugees (UNHCR) has unequivocally urged the United States to terminate the MPP, citing its perilous consequences that imperil the lives of asylum seekers.

Furthermore, it is imperative to acknowledge that the MPP and the court’s decision stand in direct opposition to several pivotal treaties to which the United States is a committed signatory. The US, as a signatory to the 1951 Refugee Convention, is bound by legal obligations that entail safeguarding and providing assistance to refugees. Similarly, the US has ratified the 1967 Protocol relating to the Status of Refugees, effectively eliminating any geographic or temporal limitations in order to ensure the protection of refugees. Moreover, the United States has also unequivocally endorsed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which explicitly prohibits the repatriation (refoulment) of individuals to countries where they would be subjected to torture or other forms of inhumane treatment.

The stark reality is that the MPP flagrantly disregards these binding international commitments, putting the fundamental human rights of asylum seekers in grave jeopardy. By systematically sending individuals back to environments where they face the risk of serious harm, the MPP undermines the core principles of compassion, fairness, and dignity enshrined within the international legal framework. This erosion of human rights not only tarnishes the reputation of the United States but also jeopardizes its role as a global advocate for justice and equality.

Implications

This decision has significant implications for the law and the rights of individuals and groups. Firstly, the decision challenges our understanding of the law. The Supreme Court’s ruling was based on a narrow interpretation of the Immigration and Nationality Act (INA), which allows the government to return inadmissible non-citizens to Mexico. The Court found that the INA does not explicitly prohibit the government from returning asylum seekers to Mexico, and therefore the government is not required to do so. This narrow interpretation of the INA could have implications for other immigration policies, such as the Trump administration’s travel ban.

Secondly, it has implications for the rights of individuals and groups. The MPP has been criticized for its harsh conditions and for exposing asylum seekers to violence and exploitation in Mexico. Asylum seekers who have been returned to Mexico have reported being robbed, assaulted, and kidnapped, with strict denial of access to legal representation and other essential services. The Supreme Court’s ruling effectively prevents the Biden administration from ending the MPP, which means that asylum seekers will continue to be forced to wait in Mexico while their cases are processed. This decision could have a chilling effect on the rights of asylum seekers, who may be less likely to seek protection in the United States if they know that they will be returned to Mexico. The Court’s decision suggests that the government has broad discretion to return asylum seekers to Mexico, even if the policy is harmful to their rights. This could make it difficult for future administrations to argue that the MPP is illegal or unconstitutional.

Thirdly, it also highlights the role of the law in perpetuating or challenging inequality. The MPP has been disproportionately applied to Black and brown asylum seekers, who are more likely to be returned to Mexico than white asylum seekers. The Supreme Court’s ruling effectively allows this discriminatory practice to continue. The decision also sends a message that the rights of individuals and groups can be easily violated, especially if they are members of marginalized communities. According to a report by the American Civil Liberties Union, Black & LQBTQ+ asylum seekers were more likely to be returned to Mexico under the MPP than white asylum seekers. The report found that Black & LQBTQ+ asylum seekers were also more likely to be denied entry into the United States under the MPP, even when they had similar asylum claims as white asylum seekers. This disproportionate application of the MPP is a clear example of how the law can be used to perpetuate inequality.

A comprehensive study conducted by the University of California, San Francisco has shed light on the alarming impact of the MPP on asylum seekers. The findings revealed that individuals who were returned to Mexico under the MPP faced a significantly higher risk of developing symptoms associated with Post-Traumatic Stress Disorder (PTSD), anxiety, and depression compared to those allowed to remain in the United States during the processing of their cases. This study focused on a sample of 607 individuals who were subjected to MPP 1.0, and the results were striking.

Shockingly, only 40.4% of asylum seekers who expressed a legitimate fear of returning to Mexico were granted the essential fear-screening interview by the Customs and Border Protection (CBP). As a result, a substantial number of individuals were forced to endure prolonged periods of uncertainty, waiting for their asylum cases to be resolved or even for an initial hearing. Regrettably, this prolonged waiting period made it exceedingly challenging for these individuals to secure legal counsel, further exacerbating their vulnerability and leaving them without the necessary support during this critical time.

The Department of Homeland Security (DHS) estimated that the MPP incurred an astronomical cost of $1.3 billion during its first year of implementation. This staggering expenditure encompassed various expenses such as providing food, shelter, and medical care to asylum seekers in Mexico, as well as the logistics involved in transporting them back and forth across the border. It is disheartening to witness such a futile allocation of resources for a system that goes against the principles of humanity.

These findings underscore the urgent need for a compassionate and fair approach towards asylum seekers, one that prioritizes their well-being and respects their fundamental human rights. The MPP’s detrimental impact on mental health, coupled with the exorbitant financial burden it imposes, highlights the pressing necessity for alternative policies that uphold dignity, compassion, and efficiency within the asylum process.

Road Ahead

The United States is home to more foreign-born residents than any other country in the world, with immigrants composing almost 14 percent of the U.S. population in 2021. The Department of Homeland Security (DHS) can issue a new policy directive ending the MPP. DHS can notify the Mexican government of the policy change. DHS can work with the Mexican government to ensure that asylum seekers who are currently in Mexico can safely and orderly return to the United States.

The US can also adopt the policy of its G7-friendly nation Canada which ranks highest for its migration policies among the G7 major economies. The country has been recognised for its comprehensive regional and global strategies and continued collaboration with governments, civil society, international organisations, and other partners to achieve safe, orderly, humane, and regular migration.  With a strong alliance with civil societies, the US can undo the policy which exposes asylum seekers to violence and exploitation in Mexico.

This decision is a reminder on how law can, not only be used to perpetuate inequality, but also to challenge inequality. The fight for the rights of asylum seekers is not over, and there are still legal and legislative avenues that can be pursued. The Biden administration has already announced that it will continue to fight the MPP in court. The administration could argue that the Supreme Court’s ruling was based on a flawed interpretation of the INA, or that the policy violates the due process rights of asylum seekers. The administration could also challenge the constitutionality of the MPP, arguing that it violates the separation of powers by giving too much power to the executive branch. The US, being a flag bearer of democracy and humane treatment to all, cannot turn a blind eye to its own promises made to the world via conventions. Further, Congress could pass legislation ending the MPP, or it could amend the INA to explicitly prohibit the government from returning asylum seekers to Mexico. Legislative reform would be the most permanent solution to the MPP, as it would not be subject to the whims of the Supreme Court.

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Surjit Raiguru and Rohi Ray are fourth-year law students pursuing BA-LLB [Hons.] from Symbiosis Law School, Pune.

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Picture Credit: Jill Bussey/LIRS