Cyrus Mehta

Don’t Always Suck Up to Buy American Hire American

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President Trump’s Buy American Hire American Executive Order (BAHA) has little relevance in an economy where the unemployment rate is 4% and the Labor Department has reported that there is a record high of 7.3 million job openings.  BAHA has however been deployed to make life harder for legal immigrants who do their best to remain in status while pursuing lawful permanent residence. They also benefit the United States as their employers need them and follow the law in filing appropriate visa applications.   For example, H-1B visa renewals that were routinely approved previously are now being denied in the name of BAHA. The USCIS has recently released new H-1B data that reflects an increase in requests for evidence and denials in 2019, again pursuant to BAHA.

BAHA aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. BAHA highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries. BAHA, however, is merely an executive order. It should not take precedence over the Immigration and Nationality Act.  Still, the USCIS uses BAHA as justification to refuse otherwise approvable H-1B petitions. Some of these H-1B denials are absurd. The author recently heard that the USCIS denied a petition filed on behalf of a pathologist by an established pharmaceutical company.

Following BAHA, the State Department also swiftly made changes to the Foreign Affairs Manual regarding guiding consular officials in issuing nonimmigrant H, L, O, P and E visas. The changes relating to H and L visas are reproduced below as examples:

9 FAM 402.10-2 Overview of H Visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2 Overview of L visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

Based on these FAM changes, here have been several anecdotal reports of consular officers asking visa applicants as to how their employment will further BAHA by creating jobs for American workers or not depressing their wages. Some have been questioned whether their employers first tried to hire American workers even when such recruitment is not required under the specific visa. Such questioning is entirely inappropriate and not consistent with the law under which the visa petition was approved.

For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under BAHA, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. BAHA was not in existence when Congress created the L, E, H-1B or O visa provisions in the INA. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a) (15) (L) that the purpose of the L visa was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so. Even with H-1B visas, unless an employer is a dependent employer, there is no obligation on the part of the employer to recruit for US workers. Regarding wages too, if an employer is legitimately hiring a worker for an entry level position in an H-1B specialty occupation, the employer is under no obligation under the law to pay the highest level wage.

As a result of all visa applications being viewed through the prism of BAHA, attorneys feel the need to advise their clients to answer questions of consular officials relating to BAHA. Some attorney are also indicating in H-1B and other visa petitions (both nonimmigrant and immigrant) as to how the beneficiary will further BAHA. While it may be tempting for us as attorneys to invoke BAHA as if it is a deity with magical powers, it may also lead us down a rabbit hole. Apart from not being law and only an executive order, BAHA sets no standard for the attorney to guide the client. If the attorney indicates that the H-1B worker’s entry into the US will create more jobs, there is no metric to establish this. The only metric we have under current immigration law include specific labor market tests under the permanent labor certification program, the H-2A and H-2B programs and the H-1B program for dependent employers or willful violators. These rigid criteria have not been followed in other visa petitions such as an L-1 or an H-1B (for a non-dependent employer or an employer who is not a willful violator), and they do not need to.

If a client is asked inappropriately regarding whether the position will impact American workers or not, the client should be prepared to answer that the visa petition met all the criteria under the statutory and regulatory provisions, and was approved accordingly. There is no need for the client, or the attorney, to improvise on why the applicant’s employment in the US will result in more jobs for US workers.  Advancing the client’s cause under BAHA will lead to more questions from the adjudicating official, which could be arbitrary and cannot he held up to an objective legal standard.

This is not to say that an applicant should never make a BAHA argument in his or her favor. There may be some instances where the argument in favor of BAHA is clear cut or the official asks specific questions where an answer may be readily available.  The purpose of this blog is to caution against the talismanic invocation of BAHA, when there is no metric or standard, under which an adjudicating official can be held up to. BAHA has also been used most effectively to deny immigration benefits. If an official infuses the adjudication process with BAHA, resulting in a denial, it could be grounds for appeal. Even at the consular level, which is generally immune from administrative or judicial review, a denial of a visa application based on BAHA would potentially allow the applicant to seek an advisory opinion from the Visa Office if the denial was contrary to the statutory provision.  If the applicant already conceded that the official could ask for extraneous evidence under BAHA and provided it, it may be harder to appeal such a denial. Therefore, in the opinion of this author, it is best to not always suck up to BAHA.

 

David Isaacson

Not Sure Whether to Laugh or Cry: How the Border Patrol’s Harassment of an Oregon Comedian Shows Why It Should Not Be Checking Documents Within the United States

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In late January, Oregon comedian Mohanad Elshieky was briefly detained by the Border Patrol while traveling on a Greyhound bus in Spokane, Washington.  He recounted the incident on Twitter, and it was also reported by a number of news organizations.  In summary, the agents boarded the bus at the Spokane Intermodal Bus Station and began questioning passengers about their citizenship.  When Mr. Elshieky admitted to the Border Patrol agents that he was not a U.S. citizen but informed the agents that he had been granted asylum in the United States, the agents rejected the Employment Authorization Document (EAD) and driver’s license that he offered them, and asserted that he was “illegal”.  After questioning Mr. Elshieky for roughly 20 minutes outside the bus in freezing weather, and checking by phone with supervisors, the agents finally allowed Mr. Elshieky to reboard the bus and go on his way.

The Border Patrol, attempting to justify its action, appears to have sent the following statement to several news organizations, at least one of which reproduced it in full.  I reproduce the statement below in full as well to avoid any suggestion that I am taking language out of context:

“Agents from the U.S. Border Patrol’s Spokane Station encountered an individual on Sunday at the Spokane Intermodal Bus Station who was not in possession of the immigration documents required by law.

While performing transportation checks, agents made contact with Mohanad Elshieky. Mr. Elshieky stated he was from Libya and presented the agents with an Oregon driver’s license and an Employment Authorization Card (EAD). As with anyone who needs to have their immigration status verified, Mr. Elshieky was asked to exit the bus. After the approximately 20 minutes needed to verify his status, Mr. Elshieky was allowed to board the bus and continue his travels without delay.

According to 8 USC 1304(e), all immigrants 18 years and older are required to carry immigration documents showing they are in the United States legally. Neither an EAD nor a driver’s license is considered a valid document to satisfy this law. A valid I-94, which is given to all immigrants when legally entering the United States, or paperwork showing a person is currently in the asylum process, which is given to the asylee by the U.S. Citizenship and Immigration Services, would have worked to resolve this inquiry quickly.

For decades, the U.S. Border Patrol has been performing enforcement actions away from the immediate border in direct support of border enforcement efforts and as a means of preventing trafficking, smuggling and other criminal organizations from exploiting our public and private transportation infrastructure to travel to the interior of the United States. These operations serve as a vital component of the U.S. Border Patrol’s national security efforts.

Although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence. The Immigration and Nationality Act 287(a)(3) and 8 USC 1357 state that Immigration Officers, without a warrant, may “within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.” A reasonable distance is defined by 8 CFR 287 (a)(1) as 100 air miles from the border.”

The notion that there is a comprehensive registration scheme currently in operation, which registers all aliens and requires them to carry certain documents, has been contested in an article by Professor Nancy Morawetz and Natasha Fernandez-Silber that is very much worth reading, but for present purposes we can take it as given.  The more important point here is that the Border Patrol, even in its statements to the media, appears to be unaware of what that registration scheme actually says.

The provision of law cited by the Border Patrol for the proposition that “all immigrants 18 years and older are required to carry immigration documents showing they are in the United States legally”, 8 U.S.C. § 1304(e), states that “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d).”  The referenced subsection (d), in turn, states that

Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.

8 U.S.C. § 1304(d).  The statute makes clear that its structure will be fleshed out by regulations.

The regulation at 8 C.F.R. § 264.1 then sets out in detail what documents qualify as evidence of alien registration for purposes of the statute.  It states:

The following forms constitute evidence of registration:

Form No. and Class

I-94, Arrival-Departure Record—Aliens admitted as nonimmigrants; aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act; aliens whose claimed entry prior to July 1, 1924, cannot be verified, they having satisfactorily established residence in the United States since prior to July 1, 1924; and aliens granted permission to depart without the institution of deportation proceedings.

I-95, Crewmen’s Landing Permit—Crewmen arriving by vessel or aircraft.

I-184, Alien Crewman Landing Permit and Identification Card—Crewmen arriving by vessel.

I-185, Nonresident Alien Canadian Border Crossing Card—Citizens of Canada or British subjects residing in Canada.

I-186, Nonresident Alien Mexican Border Crossing Card—Citizens of Mexico residing in Mexico.

I-221, Order to Show Cause and Notice of Hearing—Aliens against whom deportation proceedings are being instituted.

I-221S, Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien—Aliens against whom deportation proceedings are being instituted.

I-551, Permanent Resident Card—Lawful permanent resident of the United States.

I-766, Employment Authorization Document.

Form I-862, Notice to Appear—Aliens against whom removal proceedings are being instituted.

Form I-863, Notice of Referral to Immigration Judge—Aliens against whom removal proceedings are being instituted.

Note to paragraph (b):

In addition to the forms noted in this paragraph (b), a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport constitutes evidence of registration.

8 C.F.R. § 264.1(b).  (Emphasis added.)

The regulation clearly lists an “I-766, Employment Authorization Document” as a form of “evidence of alien registration.”  This is in stark contrast to the Border Patrol spokesperson’s assertion that “Neither an EAD nor a driver’s license is considered a valid document to satisfy this law.”  In fact, an EAD is indeed considered a valid document to satisfy the law—although apparently not to satisfy the Border Patrol.

The Border Patrol spokesperson’s assertion that “A valid I-94, which is given to all immigrants when legally entering the United States, or paperwork showing a person is currently in the asylum process, which is given to the asylee by the U.S. Citizenship and Immigration Services, would have worked to resolve this inquiry quickly” fares little better on close examination.  Many nonimmigrants can indeed print a Form I-94 from the U.S. Customs and Border Protection (CBP) website, although paper Forms I-94 are no longer routinely issued upon entry into the United States, and one assumes that the Border Patrol did not expect Mr. Elshieky to have a printer with him.  But Mr. Elshieky’s I-94 issued upon entry to the United States, if he had had it with him, would have revealed only that he had once been a J-1 (exchange visitor) nonimmigrant, a status he no longer held—which would be of little use to the Border Patrol in their efforts to determine whether he was here legally now.  And some asylees, who initially entered without inspection but were subsequently granted asylum, would not have such an I-94 from their time of entry anyway.

What the Border Patrol spokesman presumably meant was that Mr. Elshieky should have been carrying a Form I-94 indicating his current asylum status, as opposed to his former J-1 status.  But while some asylees will indeed possess such a document, the regulations quoted above specify a Form I-94 as evidence of alien registration only for limited classes of people, and asylees are not among them:

I-94, Arrival-Departure Record—Aliens admitted as nonimmigrants; aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act; aliens whose claimed entry prior to July 1, 1924, cannot be verified, they having satisfactorily established residence in the United States since prior to July 1, 1924; and aliens granted permission to depart without the institution of deportation proceedings.

8 C.F.R. § 264.1(b).  Moreover, not all asylees will have a Form I-94.  It is supposed to be issued following a grant of asylum by an immigration court or by the Board of Immigration Appeals (BIA), but this is not done contemporaneously with the grant.  The Form I-94 is issued by U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security, while the immigration courts and BIA are part of the Executive Office for Immigration Review (EOIR) located within the Department of Justice, and the government lawyers who will have the asylee’s file at the moment of the grant are part of Immigration and Customs Enforcement (ICE).  The issuance of an I-94 by USCIS following a grant of asylum by an immigration judge or the BIA has, from this author’s personal experience, sometimes taken months, depending on how long it takes for the relevant file to be transferred.

As for the Border Patrol spokeman’s suggestion that Mr. Elshieky ought to have presented “paperwork showing a person is currently in the asylum process, which is given to the asylee by the U.S. Citizenship and Immigration Services,” this misses the mark on two levels.  First, such paperwork is not listed in 8 C.F.R. § 264.1(b) as evidence of alien registration.  And second, Mr. Elshieky was not, and never claimed to be, “currently in the asylum process”; he correctly informed the Border Patrol that he had already been granted asylum.

The bottom line, therefore, is that the Border Patrol got the law wrong.  I would respectfully suggest that this misunderstanding by the Border Patrol, including not only the agents on the ground but the agency’s own official spokesperson, is illustrative of a broader problem.

The Border Patrol, according to its spokesperson’s statement, believes that “[a]lthough most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence.”  Whether or not this is correct as a description of the Border Patrol’s statutory and regulatory authority, it does not appear to be correct as a description of what they are qualified to do and should be doing.

Enforcement of U.S. immigration laws is, and historically has been, divided among multiple agency components.  Enforcement of the laws within the interior of the United States is performed by what is now ICE and used to be a component of the Immigration and Naturalization Service (INS) within the Department of Justice.  There has been recent debate about whether to abolish ICE and return that enforcement function to within the Department of Justice, an issue beyond the scope of this blog post, but the important point here is that there has always been a component of the government performing this function which was not the Border Patrol.  Even within U.S. Customs and Border Protection (CBP), of which the Border Patrol is a component, it is the Office of Field Operations (OFO), the officers in black uniforms whom one encounters at airports and other ports of entry, who have the primary responsibility for determining whether people arriving at the borders of the United States are admissible under our complex immigration laws—not the green-uniformed Border Patrol.  And when applicants seek immigration benefits from within the United States, or the government seeks to remove them from the United States, the relevant legal determinations are generally made either by USCIS, a descendant of the former INS, within the Department of Homeland Security, or by the immigration courts and BIA in EOIR within the Department of Justice.  All of these agency components have specialized training in the nuances of immigration law, and must have it in order to perform their functions.  The Border Patrol is not in the same position.

This author would respectfully suggest that the Border Patrol’s place in the overall immigration-enforcement scheme should be limited to determining whether people who are trying to cross the border, or have very recently done so and are still very near the border, have passed (or will pass) through a port of entry for inspection, or have crossed elsewhere to avoid inspection.  In the former case, when someone passes through a port of entry, CBP OFO can analyze the details of their situation.  In the latter case, the Border Patrol can hand over recent entrants without inspection to ICE (or perhaps in the future a revamped INS) and the immigration courts, and in certain cases to USCIS asylum officers for an analysis of a claimed fear of persecution.  But when someone is not a recent border-crosser in close proximity to the border, the Border Patrol is not the agency component qualified to determine whether they are properly maintaining some status in the United States or potentially ought to be processed for removal proceedings.

This is so whether or not someone in the interior of the United States is encountered less than 100 miles from the border, as was apparently the case here.  (The Spokane bus station is evidently 90-something miles from the U.S.-Canada border in a straight line, although Google Maps suggests that actually driving from there to the border would take roughly 108 miles.)  As the American Civil Liberties Union has pointed out, roughly two-thirds of the U.S. population lives within 100 miles of some U.S. border, if one includes the water boundaries of the United States.  Operating within that 100-mile zone does not equate to only patrolling the actual border and only seeking out people who appear to have recently crossed it.  Spokane, Washington, is not on the border with Canada, and I very much doubt that the Border Patrol agents who questioned Mohanad Elshieky really thought that he had just entered from Canada without inspection.

Checking documents within the United States to enforce the immigration laws in the interior of the United States is not the Border Patrol’s job, or at least should not be.  As the case of Mohanad Elshieky illustrates, forcing the square peg of the Border Patrol into the round hole of interior enforcement can produce deeply problematic results.  The Border Patrol should stick to patrolling the border, and leave interior enforcement and legal interpretation to better-qualified agency components.

Sophia Genovese

The Trump Administration’s Lawlessness at the Border: Stories from Tijuana

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Following the law should not be a radical idea. Yet the governments of the United States and Mexico somehow find advocacy for the codified rights of asylum seekers reprehensible.

I travelled to Tijuana in mid-January to provide pro bono assistance to asylum seekers trying to present themselves at the San Ysidro Port of Entry and lawfully claim asylum. I was hosted by the Border Rights Project of Al Otro Lado, an amazing non-profit organization that provides critical legal orientations and know-your-rights trainings to asylum seekers in Tijuana, as well as documents human rights abuses against asylum-seekers by the Mexican and US authorities. Given their zealous advocacy and pursuit of justice, Al Otro Lado has become public enemy #1 in the eyes of US Customs and Border Protection (CBP) and the Mexican Instituto Nacional de Migración (INM). But what Al Otro Lado and volunteers are fighting for, in part, is for the US and Mexican governments to follow the law – in particular, the right to seek asylum. They are met with shockingly hostile resistance.

Section 208 of the Immigration and Nationality Act (INA) provides,

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).

INA § 208 does not limit the number of asylum seekers allowed to present at a port of entry and claim asylum on any given day. It does not allow for a waitlist for entry, which forces asylum seekers to wait in Mexico until their numbers are called. Critically, INA § 208 does not limit asylum protections to only those who present at ports of entry. Somehow, the plain meaning of INA § 208 is lost on this administration; or, it simply does not care. Regardless of intent, this administration is flagrantly violating the law by preventing asylum seekers from lawfully claiming asylum and sentencing them to death in the process.

I have previously blogged about the various ways in which the Trump administration has eroded the rights of asylum seekers and has made it increasingly difficult for these folks to access justice once already in the US. The Trump administration has now taken aim at asylum seekers even before they reach the US in an attempt to prevent them from asserting their rights through its illegal metering tactics and the recent rollout of the Migrant Protection Protocol.

Illegal Turn Back Policy and the Metering of Asylum Seekers

Since at least the summer of 2016, CBP has consistently violated INA § 208 by turning back asylum seekers who lawfully present themselves at ports of entry and claim asylum. CBP officers regularly tell asylum seekers that “Donald Trump just signed new laws saying there is no asylum for anyone” or that they will be separated from their children if they claim asylum, and even coerce asylum-seekers into signing documents stating that they do not have a fear of returning to their home country. CBP has attempted to justify such unlawful conduct by claiming that there is not enough room to process all of the asylum seekers who present at a port of entry on any given day.

As a result of the illegal turn back policy, asylum-seekers are forced to remain in Mexico while they await the opportunity to access basic asylum procedures. In Tijuana and several other ports of entry, this has resulted in an unlawful metering list (referred to as la lista), where asylum seekers and their families take a number and wait to be called before they may access the port of entry. Although asylum-seekers themselves are the ones responsible for giving out numbers to newly arrived asylum-seekers, la lista is actually managed by Grupos Beta (the so-called ‘humanitarian division’ of the Mexican INM) at the direction of US CBP. Each morning, CBP officials convey to Mexican INM how many asylum seekers they will accept that day. Mexican INM then relays this information to the asylum seeker tasked with running la lista, who then relays the numbers to asylum seekers anxiously awaiting their opportunity to claim asylum. Asylum seekers whose numbers are called line up at El Chaparral border crossing, but are then transported via van to a different port of entry several miles away.

It is important to note that unaccompanied minors are not allowed on la lista, thus leaving them to languish in Tijuana where they are at severe risk of exploitation and violence. Although not officially confirmed, one can infer that CBP does not wish to accept UACs because they are entitled to additional protections under the law. One can also infer that CBP conveys this desire to the Mexican INM who then conveys this to the list-keepers to not allow UACs on la lista. As a result, UACs are systemically blocked from accessing US asylum procedures, and are forced to age out while in Mexico before they are allowed to present at the port of entry. Once in the US, they will be treated as adults and entitled to fewer protections, despite their heightened vulnerability.

Illegal Metering in Practice: A Typical Morning at El Chaparral

Each morning at 7:00am, Al Otro Lado staff and volunteers arrive at El Chaparral to welcome newly arrived asylum seekers and to let them know that we are here to help them navigate the confusing US asylum process. We let them know about the organization’s daily Know Your Rights trainings and legal clinics, medical assistance, and free food and water.

The second half of the morning, Al Otro Lado volunteers turn their attention to asylum seekers whose numbers are called off of la lista and who will be allowed to present at the port of entry and claim asylum. During my stay in Tijuana, CBP allowed in anywhere from 15 to 60 people on any given morning – a shockingly low number given that San Ysidro port of entry is one of the largest and busiest land border crossings in the world which processes over 70,000 vehicles and 20,000 pedestrians per day. For about an hour before the asylum seekers are transported to the port of entry, volunteers scramble to provide last minute Credible Fear Interview (CFI) preparation for those asylum seekers whose numbers are called. We also told folks to dress in their warmest layer on the bottom because they are only permitted one layer of clothing once they are processed by CBP. All other clothing will be confiscated. This is despite the fact that asylum seekers are held for weeks on end in freezing hieleras. We also told the asylum seekers to write the phone numbers of friends or family in the US on their bodies because all of their documents will be taken from them. We told mothers with their children that we could not guarantee that they wouldn’t be separated. One mother had a teenage daughter with autism. She wanted to know what would happen to her if they were separated. We couldn’t provide her with any guarantee that the US government would comply with the law and provide her daughter with the heightened care she was entitled to. Around 9:30am, the first vans took off to the port of entry. Volunteers were hopeful that each asylum seeker would be okay, but we will never know for sure what happens to them once they are processed by CBP.

The US government’s metering practices and endorsement of la lista are unlawful. Under both US and international law, when someone expresses a fear of returning to their country of origin, the US is obligated to provide that person with an opportunity to seek protection. The US is in flagrant violation of their international and domestic obligations by refusing admission to asylum seekers who lawfully present at ports of entry, whether they turn back those asylum seekers who make it to the port of entry, through their endorsement of la lista, or the wholesale ban on admission of UACs.

Given their on-the-ground knowledge of what the US and Mexican governments are perpetrating, Al Otro Lado, the Center for Constitutional Rights, and the American Immigration Council filed suit to challenge the US government’s unlawful metering practice in Al Otro Lado, Inc., et al. v. Kirstjen Nielsen, et al. The complaint explains that CBP has utilized various tactics to deny asylum seekers access to protection through “misrepresentations, threats and intimidation, verbal abuse and physical force, and coercion.” Id. at 1. It argues that such tactics have deprived asylum seekers of their “statutory and regulatory rights to apply for asylum, violated their due process rights under the Fifth Amendment […], and violated the United States’ obligations under international law to uphold the principle of non-refoulement.” Id. at 2. In particular, CBP has violated its statutory duty to inspect all noncitizens who arrive at ports of entry under INA § 235(a)(3), which provides “all aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.” INA § 235(a)(3) is not discretionary; thus, when CBP refuses to refer an asylum seeker to a CFI or to place them in proceedings, they are in violation of INA § 235(a)(3), as well as in violation of the Due Process Clause of the Fifth Amendment for failure to comply with mandatory asylum procedures. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of Al Otro Lado’s claims to go forward.

What Happens Next?

Against this backdrop, the Trump Administration has also recently carried out its inaccurately named Migrant Protection Protocols (MPP), which will force asylum seekers to remain in Mexico while they adjudicate their claims in immigration court. Under the plan, asylum seekers will be given a Notice to Appear (NTA) for an immigration hearing and returned to Mexico while awaiting their hearing. However, the NTA may or may not actually list an actual court date, forcing asylum seekers to constantly check the EOIR hotline to know when their hearing will actually be. When the court date arrives, the onus is on asylum seekers to arrive at the port of entry in order to be escorted to their immigration hearing. UACs (if they can actually access the port of entry), Mexican nationals, and other undefined vulnerable individuals will not be subject to the MPP.

Under the Policy Memorandum, in order to not be returned to Mexico, one must show that he or she “would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion […] or would more likely than not be tortured.” As a reminder, in order to demonstrate a credible fear of persecution, one must only show a significant possibility of eligibility for asylum. 8 CFR § 208.30(e)(2). To be eligible for asylum, one must only show that there is a one-in-ten probability of being persecuted in order to demonstrate that such fear is “well-founded.” INS v. Cardoza-Fonseca, 480 US 421, 431 (1987) (“That the fear must be ‘well-founded’ does not alter the obvious focus on the individual’s subjective beliefs, nor does it transform the standard into a “more likely than not” one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place”). When individuals are ineligible for asylum, they can alternatively show eligibility for withholding of removal or protection under the Convention Against Torture (CAT), by initially demonstrating a reasonable fear of being tortured. 8 CFR § 208.31(c).  Withholding of removal and protection under CAT require the applicant demonstrate that “it is more likely than not” that he or she will suffer harm upon return. 8 CFR § 208.17 (Deferral of removal under the Convention Against Torture); see also 8 CFR § 208.16(b)(2) (Withholding of removal). Thus, under the MPP, an applicant is subject to a higher standard of proof than they would be subject to in regular credible or reasonable fear interviews, a higher standard of proof than they would be subject to in asylum proceedings, and the same standard of proof if they were in withholding proceedings. Critically, in its Policy Memorandum, USCIS explicitly states that it is “unable to provide access to counsel during the assessments” because of supposed capacity issues and the need for “efficient processing.” Such a high burden and denial of access to counsel makes it entirely certain that asylum-seekers will be forced to remain in Mexico pending their hearings.

When the US was previously considering a safe third country agreement with Mexico (where an asylum seeker would be denied the ability to seek refuge in the US if they first travelled through Mexico), I explained the numerous reasons why Mexico is not a safe third country and how such an agreement would violate the United States’ obligations of non-refoulement. These same arguments are applicable to the MPP because the plan will continue to put asylum seekers in grave danger while awaiting refuge in the US. In particular, as reported by Human Rights First and Amnesty International, asylum seekers are in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. If they are women, children, indigenous, LGBT, or a member of any other minority group, they are especially vulnerable. Forcing asylum seekers to remain in Mexico while they await their court date is also arguably a violation of non-refoulement, which requires that no State, including the US, “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened.” Given the numerous reports of violence against asylum seekers in Mexico, it is clear that their life and freedom would be threatened.

The numerous assaults on asylum seekers by the Trump administration must be met with sharp rebuke by immigration advocates. Driven by xenophobia, Trump’s anti-asylum policies are not only morally objectionable, but expressly unlawful under US and international law. Although it will continue to be an uphill battle over the next few years, advocates must continue to support the incredible work of organizations like Al Otro Lado, who continue to be on the frontlines of the battle at the border. If we have learned anything over the past several years, it is that immigration advocates, backed by the power of the courts, will continue to uphold the law by ensuring that we provide safety and refuge to those fleeing persecution.