Recently CILA has participated in several conversations around the transit bar and the MPP (Migrant Protection Protocols, or “Remain in Mexico”). Many of these conversations included scenarios in which we as legal service providers could see clients impacted by the transit bar. While many of the situations and arguments are quite technical, we wanted to draw your attention to one in particular that could impact unaccompanied children.
What is the transit bar, you may ask? It is an interim final rule produced jointly by EOIR and DHS based on INA section 208(d)(5)(B) and 208 (b)(2)(C), which states, in brief that the Atty general can use regulations to add limitations and conditions on asylum seekers BUT they cannot be inconsistent with the INA. What does it do? It bars from asylum eligibility anyone who enters or attempts to enter the United States at the southern border after July 16, 2019, if they traveled through another country that is a party to the 1951 Refugee Convention or the 1967 Protocol. You can find the accompanying regulation at 8 C.F.R. § 208.13(c)(4). The transit bar has been litigated, and was preliminarily enjoined, but the Supreme Court reinstated the rule by issuing a stay in favor of the government. So, it is now in full force.
The MPP is a new program under the Trump administration that started in January 2019 at the San Ysidro Port of Entry (POE). It has now been expanded to 6 other POEs: Calexico, CA; Nogales, AZ; El Paso, TX; Eagle Pass, TX; Laredo, TX; and Brownsville, TX. The government, using INA § 235(b)(2)(C), is forcing asylum seekers who arrive at the southern border to wait in Mexico for their removal hearings. Those migrants who express a credible fear of returning to their home country will not be put in expedited removal, rather they will be in full §240 proceedings, but forced to defend their cases from Mexico and the tent courts on the border. There are exemptions, according to government’s guidance regarding who can be placed in the program, including unaccompanied children.
It is fairly safe to say that MPP has been an unmitigated disaster, resulting in many harsh consequences for migrants and their families. One result that we are seeing more and more frequently is families making the very difficult decision to separate and the children are re-entering the U.S. on their own. This creates a whole host of issues, not least because these children are then designated unaccompanied children and put in ORR care. Under the TVPRA, the government traditionally interpreted 8 USC § 1232(a)(5)(D)(i) as requiring all unaccompanied children to be put in §240 proceedings, regardless of prior immigration history. Children who have previously been in MPP tend to have cases in one of the following procedural postures: 1) 240 proceedings are ongoing, 2) a removal order given in absentia or 3) a removal order given after a merits hearing.
While the third scenario is very complicated, the first two have a potential avenue for an unaccompanied child to submit an asylum application, either at the Asylum Office or in front of the immigration judge. However, if the child entered after July 15, 2019, they would be subject to the transit bar. There are several exceptions to the transit bar, trafficking victims, for example. However, if these children and their families attempted to enter prior to July 16, 2019 but were unable to do so as a result of “metering,” they could fall into another narrow exception to the transit bar.
Metering started in 2016 at the Southern border, but expanded in 2018. The practice artificially restricts access to the U.S. border, thereby limiting the number of people each day who are permitted to access the asylum system. The names of those migrants at POEs at the southern border who want to claim asylum in the U.S. are placed on a list to wait for their turn to tell CBP they fear returning to their home country. The lists are by-in-large informal, typically maintained by an individual or group in Mexico; this could be the Mexican immigration authority or the migrants themselves. Each day CBP contacts whoever is in charge of the list and lets them know how many people can come to ask for asylum that day. Some days no one is called off the list, other days a few, and no one is certain who makes that determination. Even when someone’s name is finally called to be allowed to enter, the person may then be subject to the MPP program.
Al Otro Lado v. Wolf is litigation filed in July 2017 in response to the government’s metering policy and other policies aimed at deterring asylum seekers. In July of 2019 when the transit bar was announced, counsel in Al Otro Lado v. Wolf asked for a preliminary injunction on the transit bar regulation for those asylum seekers who would have presented themselves to a POE prior to July 16, 2019, but for the government’s metering policy. The injunction was granted and recently upheld by the 9th circuit.
Therefore, for those unaccompanied children who were previously in MPP and have an asylum claim that may be impacted by the transit bar, it is worthwhile looking into how long they and their families were attempting to present their claim at the border before they were put in MPP. If their family was metered any time prior to July 16, 2019 the transit bar does not apply to them. You will need to put forth documentary evidence to support this claim, to the extent possible. However, class counsel in Al Otro Lado v. Wolf says they and DHS have access and copies of many of the metering lists, so make sure you push DHS for this evidence. Other useful evidence could be receipts for hotels, buses, taxis, meals, etc.; statements/affidavits from family members who were there and others who have knowledge of the child’s presence in Mexico near the southern border prior to July 16, 2019. This is by no means exhaustive and there are probably many more creative ways to document you client was metered.
As mentioned above, there are other exceptions to the transit bar and other options for unaccompanied children impacted by the transit bar, MPP and/or metering. CILA recently presented a webinar on CAT & Withholding, one of the forms of relief still available to those who are impacted by the transit bar, which can be found here. We also have created a resource detailing this administrations attacks on asylum law for children and including some ideas and work arounds. Any other helpful information that we come across we will make sure to update this blog post and add to the resources section of our website as necessary (email us at firstname.lastname@example.org if you need the password).