‘Remain in Mexico’ and Barriers to Seeking Asylum

Under Trump, the ability of those escaping persecution or deadly violence to apply for asylum in the United States has been drastically and dangerously curtailed. American Oversight is investigating the influences behind some of the administration’s harshest anti-immigration policy changes, including the controversial Migrant Protection Protocols.
Central American migrants speak with a police officer in Tapachula, Mexico.

From slashed refugee admissions caps to severe restrictions on asylum applications, the Trump administration has made it harder for people fleeing violence and persecution to obtain asylum in the United States. Ramped-up detention rates have kept thousands of migrants in overcrowded facilities, and harsh “zero-tolerance” measures — like the separation of families — were implemented to deter people from attempting to come to the U.S.

Among the administration’s most controversial measures is its “Remain in Mexico” policy, officially known as Migrant Protection Protocols (MPP). Under MPP, which the Supreme Court  in March 2020 ruled could continue, asylum-seekers are forced to wait in Mexico while their cases proceed, forcing them to stay in dangerous locations, with limited access to attorneys and information about upcoming court dates. In our ongoing investigation of the implementation of this policy, we obtained records showing that while devising MPP the administration had scrapped a question asking migrants whether they feared being returned to Mexico, requiring them to affirmatively bring up such a fear on their own. 

Additional policy changes have included the Department of Homeland Security’s decision to give Border Patrol enforcement agents the authority to conduct credible fear interviews. Those interviews have traditionally been conducted by asylum officers within Citizenship and Immigration Services (USCIS) who have undergone more extensive training, and experts expressed concern that Border Patrol agents will not be qualified to handle sensitive interviews or make nuanced determinations that impact asylum proceedings.

Other restrictions have been put in place limiting the number of asylum-seekers who can be processed at ports of entry each day, and requiring migrants applying for asylum to have first applied in another country, such as Mexico, that they passed through on their way to the U.S. And agreements signed with Guatemala, Honduras and El Salvador have resulted in asylum-seekers from the latter two countries being deported to Guatemala

But even migrants who can make it to their court dates are facing obstacles from the U.S. justice system. In April 2019, Attorney General William Barr issued an order directing immigration judges to deny some migrants a chance to post bail, keeping them in jail while they wait to make their cases in court. Later that summer, Barr ruled that migrants fearing persecution because of threats against family members would no longer qualify for asylum, in a reversal of a decision by the Board of Immigration Appeals. Meanwhile, the resignations of a number of immigration judges over the administration’s harsh policies has exacerbated the backlog in the Executive Office for Immigration Review, and April 2020 brought the news that the Trump administration appeared to be using the coronavirus pandemic to block thousands from applying for asylum.

American Oversight’s investigation of the administration’s hardline anti-asylum measures has resulted in the release of hundreds of pages of public records, including documents related to the Remain in Mexico policy and communications showing DHS officials referring to a report on asylum decisions as the “‘Hunger Games’ report.” Other emails between anti-immigration activists and DHS officials about family separation include concerns over lack of proper language assistance for asylum-seekers and over allegations of children with disabilities being separated from parents without proper care.

We are continuing to investigate the implementation of these policies, communications with anti-immigration groups, and the growing backlog of asylum cases to shed light on some of the administration’s harshest measures.

WHAT WE’RE SEEKING

  • Email communications ICE, DHS, and CBP officials had with the White House or specific anti-immigration groups about MPP, as well as any MPP-related talking points, legal analyses or transport plans prepared for or by ICE, DHS, CBP; 
  • Homeland Security and State Department records regarding the implementation of MPP, including travel, housing and safety measures; 
  • Homeland Security and State Department communications with specific anti-immigration groups, including the Federation for American Immigration Reform and the Center for Immigration Studies;
  • Any guidance or instructions provided by DHS to asylum applicants subject to MPP regarding options for obtaining legal representation, as well as any DHS reports or records regarding the availability of such representation; 
  • Records of any DHS inspector general assessments of or final reports regarding MPP, including photos of lodging or transport; 
  • Application or resignation materials for immigration judges within the Executive Office for Immigration Review; 
  • Email communications of top DHS and USCIS officials that contain key terms related to MPP; 
  • DHS statistics on credible fear interview determinations, as well as any training materials and final guidance for agents conducting those interviews; 
  • Communications that top Justice Department and EOIR officials, including Attorney General Barr, have had with anti-immigration groups or individuals; 
  • USCIS communications containing the term “hunger games”; 
  • Communications between members of the Board of Immigration Appeals and anti-immigrant groups or individuals;
  • DHS communications related to Trump’s April 2019 meeting with then-acting DHS Secretary Kevin McAleenan, in which the president allegedly offered to pardon McAleenan if he were prosecuted for illegally closing the U.S.-Mexico border; 
  • Talking points from multiple agencies regarding the 2018 “caravan” of migrants seeking entry to the United States, as well as any guidance — including from the White House — or records regarding the late 2018 use of force and tear gas against migrants at the border;
  • Records regarding the 2018 deployment of troops at the border, as well as guidance related to interactions with private militias; 
  • CBP guidance or directives regarding the confiscation of immigrants’ possessions;
  • DHS email communications containing the term “Hunger Games” in reference to a report on asylum decision trends and factors; 
  • Records from multiple agencies of legal analyses regarding asylum rulemaking as well as DHS records reflecting received White House directives designed to limit asylum protections during the coronavirus pandemic; and
  • DHS communications and statistics concerning the treatment of pregnant asylum-seekers at the U.S.-Mexico border.

LITIGATION

In March 2020, American Oversight sued the Department of Homeland Security for records related to the transfer of responsibility for conducting credible fear interviews from USCIS asylum officers to CBP enforcement agents. Records sought include training materials and official guidance, as well as statistics on determinations from those interviews. 

Related Documents

May 29, 2020

FOIA to USCIS Seeking Records Related to Communications on Pregnant Asylum Seekers

Citizenship and Immigration Services, Department of Homeland Security
FOIA Request
May 29, 2020

FOIA to USCIS Seeking Statistics on Pregnant Asylum-Seekers

Citizenship and Immigration Services, Department of Homeland Security
FOIA Request
May 29, 2020

FOIA to CBP Seeking Emails Related to Pregnant Asylum Seekers

Customs and Border Protection, Department of Homeland Security
FOIA Request
May 29, 2020

FOIA to CBP Seeking Statistics on Pregnant Asylum Seekers

Customs and Border Protection, Department of Homeland Security
FOIA Request
May 22, 2020

FOIA to Multiple Agencies Seeking Legal Analyses Regarding Asylum Rulemaking During Coronavirus

Centers for Disease Control and Prevention, Customs and Border Protection, Department of Health and Human Services, Department of Homeland Security, Department of State
FOIA Request
May 22, 2020

FOIA to HHS Seeking Communications with Stephen Miller and Other White House Officials

Department of Health and Human Services
FOIA Request
May 22, 2020

FOIA to DHS Seeking White House Directives Regarding Asylum Order During Coronavirus

Department of Homeland Security
FOIA Request
May 18, 2020

No Records Response from EOIR Regarding Ethics Waivers for Immigration Judges

Department of Justice, Executive Office for Immigration Review
Agency Reply
March 23, 2020

FOIA to DHS Seeking Email Communications of Senior Leadership Regarding MPP

Department of Homeland Security
FOIA Request
March 23, 2020

FOIA to DHS Seeking Email Communications of Top USCIS Officials Regarding MPP

Citizenship and Immigration Services, Department of Homeland Security
FOIA Request
March 23, 2020

FOIA to USCIS Seeking Sent Email Communications Containing the Term “Hunger Games”

Citizenship and Immigration Services, Department of Homeland Security
FOIA Request
March 5, 2020

Complaint: American Oversight v. DHS and USCIS – Credible Fear Interviews

Department of Homeland Security
Litigation
February 5, 2020

FOIA to EOIR Regarding Immigration Judge Turnover

Department of Justice
FOIA Request
January 29, 2020

FOIA to EOIR for Communications of BIA Members and Anti-Immigration Activists

Department of Justice
FOIA Request
November 8, 2019

FOIA to DHS Seeking Data Regarding Credible Fear Interview Determinations

Department of Homeland Security
FOIA Request
November 8, 2019

FOIA to DHS Seeking Training Materials Regarding Credible Fear Interviews

Department of Homeland Security
FOIA Request
November 8, 2019

FOIA to DHS Seeking Final Guidance Regarding Credible Fear Interviews

Department of Homeland Security
FOIA Request
November 6, 2019

FOIA to DOJ Seeking Communications with External Groups and Individuals Seeking to Restrict Immigration

Department of Justice, Office of Information Policy
FOIA Request
November 6, 2019

FOIA to EOIR Seeking Communications with Groups and Individuals Seeking to Restrict Immigration

Department of Justice, Executive Office for Immigration Review
FOIA Request
November 6, 2019

FOIA to OLC Seeking Communications with Groups and Individuals Seeking to Restrict Immigration

Department of Justice, Office of Legal Counsel
FOIA Request
November 6, 2019

FOIA to NSD Seeking Communications with Groups and Individuals Seeking to Restrict Immigration

Department of Justice
FOIA Request
November 6, 2019

FOIA to CRT Seeking Communications with Groups and Individuals Seeking to Restrict Immigration

Department of Justice
FOIA Request
September 30, 2019

FOIA to State Seeking Records Relating to the Implementation of the Remain-In-Mexico Program

Department of State
FOIA Request
September 30, 2019

FOIA to DHS Seeking Records Relating to the Implementation of the Remain-In-Mexico Program

Department of Homeland Security
FOIA Request
September 30, 2019

FOIA to State Seeking Communications with Anti-Immigration Groups

Department of State
FOIA Request
September 30, 2019

FOIA to DHS Seeking Communications with Anti-Immigration Groups

Department of Homeland Security
FOIA Request
September 30, 2019

FOIA to DHS Seeking Records Relating to Legal Representation for Those Subject to the Remain-In-Mexico Program

Department of Homeland Security
FOIA Request
September 30, 2019

FOIA to DHS Office of the Inspector General Seeking Records Relating to the Remain-In-Mexico Program

Department of Homeland Security, DHS Office of the Inspector General
FOIA Request
August 27, 2019

FOIA to CBP Seeking Records Relating to Confiscation of Immigrants’ Possessions

Customs and Border Protection, Department of Homeland Security
FOIA Request
June 13, 2019

FOIA to DHS Seeking Communications between Acting Secretary McAleenan and the White House regarding President Trump’s Reported Offer of a Pardon

Department of Homeland Security
FOIA Request
May 1, 2019

FOIA to DOD Seeking Communications Relating to the Purported Migrant Caravan

Department of Defense
FOIA Request
May 1, 2019

FOIA to DOD Seeking Records Relating to the Alleged Organization of the Migrant Caravan

Department of Defense
FOIA Request
May 1, 2019

FOIA to DOD Seeking Evidence or Intelligence Justifying Use of Force Against Migrants

Department of Defense
FOIA Request
May 1, 2019

FOIA to DOD Seeking Orders Relating to Operation Faithful Patriot

Department of Defense
FOIA Request
April 4, 2019

USCIS Records Related to the Deletion of Documents for Asylum Officer Training

Citizenship and Immigration Services, Department of Homeland Security
Agency Record
January 31, 2019

FOIA to ICE Regarding Migrant Protection Protocols

Immigration and Customs Enforcement
FOIA Request
January 31, 2019

FOIA to DHS Regarding Migrant Protection Protocols

Department of Homeland Security
FOIA Request
January 31, 2019

FOIA to CBP Regarding Migrant Protection Protocols

Customs and Border Protection
FOIA Request
December 18, 2018

FOIA to DHS Seeking Talking Points Regarding the Migrant Caravan

Department of Homeland Security
FOIA Request
December 18, 2018

FOIA to Multiple Agencies Seeking Communications with Search Terms Related to the Migrant Caravan

Administration for Children and Families, Citizenship and Immigration Services, Customs and Border Protection, Department of Defense, Department of Health and Human Services, Department of Homeland Security, Department of State, Department of the Air Force, Department of the Army, U.S. Marshals Service
FOIA Request
December 18, 2018

FOIA to Multiple Agencies Seeking Communications Regarding the So-Called Migrant Caravan

Citizenship and Immigration Services, Customs and Border Protection, Department of Defense, Department of Health and Human Services, Department of Homeland Security, Department of Justice, Department of the Air Force, Department of the Army, Immigration and Customs Enforcement, U.S. Marshals Service
FOIA Request
December 18, 2018

FOIA to DOD seeking Secretary Mattis’ Talking Points Regarding the So-Called Migrant Caravan

Department of Defense
FOIA Request
December 18, 2018

FOIA to HHS Seeking Secretary Azar’s Talking Points Regarding the So-Called Migrant Caravan

Department of Health and Human Services
FOIA Request
December 18, 2018

FOIA to State Seeking Secretary Pompeo’s Talking Points Regarding the Migrant Caravan

Department of State
FOIA Request
December 18, 2018

FOIA to USMS Seeking Talking Points Regarding the Migrant Caravan

U.S. Marshals Service
FOIA Request
December 18, 2018

FOIA to DHS Seeking Notes From a White Housing Meeting Regarding the Migrant Caravan

Department of Homeland Security
FOIA Request
December 18, 2018

FOIA to DHS Regarding Memo Authorizing Force at the Border

Department of Homeland Security
FOIA Request
December 18, 2018

FOIA to DOD Regarding Memo Authorizing Force at the Border

Department of Defense
FOIA Request
December 18, 2018

FOIA to USMS Seeking Guidance on Interactions with Private Militia

U.S. Marshals Service
FOIA Request
December 18, 2018

FOIA to DOJ Regarding Use of Force at the Border

Department of Justice
FOIA Request
December 18, 2018

FOIA to USMS Seeking Records Related to Use of Tear Gas at the Border

Department of Justice
FOIA Request
December 18, 2018

FOIA to DOD Regarding the Name “Operation Faithful Patriot”

Department of Defense
FOIA Request
December 18, 2018

FOIA to DOD/National Guard Seeking Guidance on Interactions with Private Militia

Department of Defense
FOIA Request
December 18, 2018

FOIA to CBP Seeking Communications with San Ysidro Directors

Customs and Border Protection, Department of Homeland Security
FOIA Request
December 18, 2018

FOIA to DHS Seeking Guidance on Force at the Border

Department of Homeland Security
FOIA Request