Can Asylum Seekers Be Sent to Third Party Countries?

Erick Widman

People escaping violence and persecution in other countries in crisis have the right to request asylum at the US border without being criminalized, turned back, used for political stunts, or separated from their children. The Trump administration implemented the “Migrant Protection Protocol,” commonly referred to as the “Remain in Mexico” policy, in January 2019. Under the policy, non-Mexican asylum seekers entering the US could be deported to Mexico while their asylum cases are processed. In order to avoid deportation, migrants must explicitly state that they fear persecution or torture in Mexico.

Upon taking office, President Biden declared a number of Executive Orders impacting asylum seekers at the US border, including one that creates a task force to reunite separated families and others that began to outline a vision for a humane asylum system and reversal of Trump Administration policies.

On December 27, 2022, the Supreme Court upheld Title 42, the Trump-era policy that turned asylum seekers away under the guise of public health.

What Is Title 42, and How Is It Impacting Asylum Seekers?

Despite established rights under US and international law, people’s access to asylum at the border was severely limited under the Trump Administration, and many of the most severe policies continued well into the Biden Administration.

In March 2020, the Trump Administration implemented a public health rule to turn away most asylum seekers at the border, without giving them a chance to present their cases for asylum. The rule is commonly referred to as “Title 42” because its legal authority derives from Title 42 of the US Code.

The Supreme Court Upheld Title 42 on December 27, 2022

After over a year of immigration advocates’ and health officials’ calls to end Title 42, President Biden eventually announced that the policy would be rolled back, effective in May of 2022. Unfortunately, a federal judge declared an injunction to prevent the damaging policy from ending. On November 15, a different federal judge struck down Title 42; however, on December 27, the Supreme Court issued a decision to uphold it. The Supreme Court’s decision will prolong the use of public health justifications as an excuse to deny asylum seekers their legal right to protection in the US

Despite US legal obligations under international and domestic law to provide all asylum seekers the right to seek safety, Title 42 had been used to justify nearly 2.5 million expulsions between March 2020 and December 2022. Public health is not a viable rationale for this policy to continue, insofar as international borders have remained open to other travelers for most of the COVID-19 pandemic, In addition, nationally, most pandemic-era limitations have been reversed.

Remain in Mexico Policy

The Remain in Mexico policy, officially referred to as Migrant Protection Protocols (MPP), is a United States immigration policy originally implemented in January 2019 under President Trump’s administration. This policy affects immigration across the border between the US and Mexico. Remain in Mexico forced particular asylum seekers to wait out their US immigration court cases in Mexico, with little or no access to legal counsel.

Although a federal court also blocked the Biden Administration’s attempts to end this program, the Supreme Court later ruled in the administration’s favor.

Remain in Mexico affected more than 75,000 Mexican asylum seekers for over three years, forcing them to wait out their US court hearings in Mexico—largely in northern border towns. There, they faced the often impossible expectations to collect evidence and prepare for a trial conducted in English, while struggling to keep their families safe and sound.

The Impact of Restrictive Policies

The Remain in Mexico policy’s over 2 million Title 42 expulsions have required Mexico to meet increasing humanitarian requirements as asylum seekers wait, sometimes for years, to obtain safety in the US. Families waiting in these border towns find themselves at risk of murder, extortion, rape, and other violence. Organized human smugglers and criminal networks have targeted desperate asylum seekers and profited from the border regulations that deny them their rights.

Racism and language barriers have made the situation particularly harsh for Black asylum seekers, as they face violence and discrimination on their journey and at the border. For instance, the Haitian Bridge Alliance and Espacio Migrante documented extensive evidence of discrimination in Tijuana, particularly as it relates to accessing services during the pandemic.

Those asylum seekers who do make it to the US will eventually have to make their case to stay in immigration court. There, the result can be vastly different, depending on whether they can obtain legal representation. One study found that asylum seekers who had forwarded an asylum application before the immigration court were five times more likely to be awarded asylum if they had an attorney. Unlike in the US criminal legal system, asylum seekers are not guaranteed a government-funded attorney.

Do You Need to Talk to an Asylum Lawyer?

Your asylum lawyer will be able to complete and file your petition with the US government on your behalf. Your immigration lawyer will also be there to answer your questions every step of the way, assist you in filing for work authorization while your application is pending, and check on your case status so you know where you stand. If necessary, your lawyer can also represent you in court, and if you’re unfortunately referred for removal proceedings, your attorney will work hard to get you the best possible results.

If you’re considering asking for asylum in the US, or if you’ve already filed your petition, Passage Immigration Law may be able to help you get the best possible outcome. Call to schedule an appointment today at (503) 427-8243. Or, you can schedule a consultation here.

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