Remain in Mexico (2019): Asylum Seekers Forced to Wait in Dangerous Border Cities; Appeals Court Finds Programme Likely Unlawful

What Happened

On 24 January 2019 the Department of Homeland Security announced the Migrant Protection Protocols. Certain people arriving from Mexico, including asylum seekers, would be returned "to Mexico and wait outside of the U.S. for the duration of their immigration proceedings". DHS relied on Section 235(b)(2)(C) of the Immigration and Nationality Act and said people who feared persecution or torture in Mexico would be excluded (DHS). Secretary Kirstjen Nielsen issued the implementation memo on 25 January. According to the Ninth Circuit, the programme went into effect on 28 January 2019 at the San Ysidro port of entry and was later expanded across the entire southern border.

By 24 June 2019 Mexico reported 15,079 people returned, including at least 4,780 children with their parents and at least 13 pregnant women (HRW).

Conditions in the return cities

People were sent to wait in Mexican border cities with very high levels of violence. Ciudad Juárez, a main return point, recorded 1,247 homicides in 2018; El Paso, across the river, recorded 23 (HRW).

Human Rights Watch documented cases of harm among people it interviewed. They included a 20-year-old asylum seeker sexually assaulted by two men in the street; a 23-year-old Honduran woman and her 5-year-old daughter kidnapped by a taxi driver and released after the family paid $800; and two asylum seekers kidnapped at gunpoint in a border park and beaten about 30 times. HRW later reported that one organisation had counted at least 1,544 reports of murder, torture, rape, kidnapping and other violent attacks on asylum seekers and migrants sent to Mexico during the Trump administration, a figure not limited to this programme (HRW, 2021).

Hearings without lawyers, and a screening that rarely worked

Of 54 asylum seekers HRW observed in El Paso immigration court, 50 had no legal representation; in San Diego, 13 of 15. The Hope Border Institute found that although 84% of asylum seekers placed in the programme told the court they feared persecution in Mexico, only 5% were later exempted from it (HRW).

The courts

In Innovation Law Lab v. Wolf, a district court enjoined the programme. On 28 February 2020 the Ninth Circuit affirmed. It held that the plaintiffs were likely to succeed in showing that MPP is inconsistent with 8 U.S.C. § 1225(b), and that it "does not comply with the United States' treaty-based non-refoulement obligations codified at 8 U.S.C. § 1231(b)". The court noted three problems: people had to show it was "more likely than not" they would be persecuted in Mexico, a much higher bar than ordinary credible-fear screening; they had no right to notice, time to prepare, a lawyer, or review; and officers did not ask whether they feared return, so people had to volunteer it unprompted (Ninth Circuit summary).

On 11 March 2020 the Supreme Court granted the government's application to stay the injunction pending a petition for certiorari (docket 19A960). The programme continued.

The second Trump administration reinstated the programme in 2025; see the reimposition entry.

Legal Analysis

Non-refoulement. The US is bound by Article 33 of the Refugee Convention through the 1967 Protocol and by Article 3 of the Convention against Torture. Both forbid sending people to places where they face persecution or a real risk of torture, and both require a meaningful chance to raise that risk. HRW concluded that MPP violated non-refoulement. The Ninth Circuit reached a similar conclusion under the US statute that implements those treaties: asylum seekers were not asked whether they feared Mexico, faced an unusually high standard, and had no lawyer or review.

Due process and the right to seek asylum. Waiting in Mexico, with 50 of 54 observed respondents unrepresented, meant asylum seekers had no realistic access to the US asylum process, which HRW found the programme denied in practice.

Strongest defence argument. The government argued that Section 235(b)(2)(C) expressly authorises returns to contiguous territory, and that the fear-screening process satisfied non-refoulement. The Supreme Court's stay shows the statutory argument was taken seriously. But the Ninth Circuit rejected the non-refoulement argument on its merits, and the documented violence in the return cities shows that the risk was neither hypothetical nor screened out.

International crime? Deportation or forcible transfer under Article 7 requires the removals to be part of a widespread or systematic attack on a civilian population. That has not been shown. This is a serious human rights violation, not an international crime on the evidence.

Why This Grade

This entry is graded severe, with no war-crime classification.

• The severe grade expressly covers punitive actions against asylum seekers in contravention of treaty obligations. MPP sent tens of thousands of asylum seekers, including thousands of children, to wait in cities where many were kidnapped or assaulted, under a screening process a federal appeals court found likely inconsistent with non-refoulement.
• The harm to identifiable people is documented by HRW, and the illegality is supported by a federal appellate finding at the preliminary-injunction stage.
• It is placed at severe rather than critical for consistency with the 2025 reimposition entry, which covers the same programme. It is not an international crime: no element of an Article 7 attack has been shown.

Confidence in this grade: medium.