The Department of Homeland Security on Thursday announced a new policy banning asylum-seekers from entering the U.S. and requiring them to stay in Mexico, a dramatic change that upends the way migrants fleeing persecution have been welcomed into the country for decades.
Under current U.S. law, people requesting asylum at the southern border – either at a port of entry or after illegally entering the country, and who pass an initial screening – are allowed to stay in the country pending an immigration judge’s decision on their application.
Under the new policy unveiled Wednesday by Homeland Security Secretary Kirstjen Nielsen, that will no longer be the case. Anybody who requests asylum will now be processed by federal immigration agents and then immediately returned to Mexico.
The U.S. and Mexican governments had been negotiating over a similar policy for weeks dubbed “Remain in Mexico,” but the Trump administration was unable to reach an agreement with the administration of new Mexican President Andres Manuel Lopez Obrador, who took office Dec. 1.
Instead, the U.S. implemented the policy unilaterally, Nielsen said during an appearance before the House Judiciary Committee on Thursday. The Trump administration informed Mexico of its decision, and was told that the Mexican government would do what it could to house, feed, and protect the migrants. The Mexican government is already struggling to accommodate thousands of members of a migrant caravan who are camped out in Tijuana awaiting their chance to apply for asylum.
“Let me be clear: We will undertake these steps consistent with all domestic and international legal obligations, including our humanitarian commitments,” Nielsen told the committee. “All affected migrants will receive humanitarian visas to stay on Mexican soil, they will be given the ability to apply for work, and other protections while they await a legal U.S. determination.”
DHS is relying on authorities granted under a section of the Immigration and Nationality Act that allows an attorney general to order the return of asylum-seekers arriving at a land port to the country they attempted to enter from. But the law states that the attorney general can only remove a migrant who “is not clearly and beyond a doubt entitled to be admitted.”
That may run counter to a separate part of the Immigration and Nationality Act that allows asylum-seekers entry if they simply show they have a “credible fear” of returning to their home country.
“This plan cannot be done lawfully,” said ACLU attorney Lee Gelernt, who led a lawsuit that forced the administration this summer to reunify families separated at the southern border with Mexico.
A senior Homeland Security official said the new policy goes into effect immediately but will be rolled out at ports of entry along the southern border. The official, who spoke on condition of anonymity to fully explain the policy, said the eventual goal is for asylum-seekers to stay in Mexico, and allowed to enter the U.S. only for necessary court hearings related to their application.
Nielsen says the new policy is needed to stem what has become a flood of unaccompanied minors and family units arriving at the U.S. to request asylum, knowing that they will likely be granted entry to the U.S. while their case slowly winds through the backlogged immigration court system. In the past two months, more than half of the 102,000 people caught illegally crossing the southern border were minors or family units.
DHS made the surprise announcement the same morning Nielsen was appearing before the House Judiciary Committee. Before the announcement, Rep. Jerry Nadler, D-N.Y., who will become committee chairman in January when Democrats retake control of the House, warned Nielsen that her department would face intense scrutiny over its treatment of families, minors, asylum-seekers and all others along the southern border.
He likened the administration’s “zero-tolerance” policy that led to thousands of family separations this summer to “mass kidnapping by the federal government.” He described policies attempting to limit asylum as dangerous, haphazard and chaotic. And he said Nielsen should prepare for investigations into all those matters.
“I want to put you and the department on notice: The time for accountability has arrived,” Nadler said. “The Trump administration, including DHS under your watch, has launched a relentless attack against immigrants of all stripes. The time for zero accountability is over.”
Nielsen received praise from committee Republicans for the new policy, with Rep. Steve Chabot, R-Ohio, thanking her for bringing “some sanity” back to the U.S. immigration system.
But Rep. Zoe Lofgren, D-Calif., told Nielsen that the new policy will surely be met with lawsuits similar to those that have struck down two other attemptsto limit asylum.