US: Lawsuit Over ‘Remain in Mexico’ Program Secrecy

WASHINGTON—The American Immigration Council, the American Immigration Lawyers Association, Human Rights Watch, and the law firm Winston & Strawn LLP filed a  lawsuit in the U.S. Northern District of California today to compel the release of records about the US Migrant Protection Protocols, also known as the “Remain in Mexico” program.

The suit, filed under the Freedom of Information Act, seeks records about the implementation and handling of the program by the Department of Homeland Security.

The groups filing the suits are attempting to understand how the Migrant Protection Protocols, which DHS announced in January 2019, operate and what principles and agreements guide the multiple agencies responsible for their implementation after the government refused to disclose information.

“The ‘Remain in Mexico’ program has caused a humanitarian catastrophe, compelling thousands of people to live in camps along the border in dangerous and squalid conditions,” said Emily Creighton, legal director of transparency at the American Immigration Council. “This FOIA suit is a way to pursue accountability as we seek to understand the impact of the MPP on uniquely vulnerable asylum seekers. As challenges to MPP continue to wind through the courts, it is critically important that we have a full picture of how the program has been designed and implemented.”

The lawsuit challenges DHS relevant component agencies’ failure to disclose information in response to a FOIA request submitted on December 21, 2019.

The US government has returned nearly 65,000 people seeking asylum in the country to Mexico to wait for their US immigration court hearings under the program. Asylum seekers, many of them families with children, have been forced to wait for months in extremely dangerous cities in Mexico.

Since the program began, only about 500 people, fewer than 1% of those in the program, have been granted asylum. As of February 2020, more than 1,000 cases of murder, torture, rape, kidnapping, and other violent assaults against people placed in the program had been reported. The unhygienic and often overcrowded conditions in camps and shelters in Mexico in which asylum seekers have been compelled to live place them at heightened risk of COVID-19, the groups said.

The program also prevents asylum seekers from meaningfully accessing their right to due process. Asylum seekers often face insurmountable barriers to obtaining and communicating with legal counsel and increased closure of MPP court hearings to the public.  

Though the program was an unprecedented shift in US asylum policy and procedure, the government agencies responsible for carrying it out have not made guidance or information about how the program operates available to the public, advocates, attorneys, and asylum seekers directly impacted by the program.

“The operation of MPP has been shrouded from public view and understanding,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “We see the asylum seekers lawfully requesting a meaningful chance to have their claim to asylum heard arrive at the border and we see them shunted quickly back to dangerous conditions in Mexico. But the public has not been able to see the basic procedures and decision-making processes of this terribly unjust change in policy. Despite numerous requests, including a formal FOIA inquiry, the agencies have failed to respond and thus this litigation is necessary.”

The Department of Homeland Security and relevant component agencies—US Citizenship and Immigration Services, US Immigration and Customs Enforcement, and US Customs and Border Protection—have failed to disclose critical information about the program, including directives and guidance to DHS employees; agreements between the US and Mexican governments relating to the program, and communications among agency officials shedding light on how it is being carried out.

“As the inhumane ‘Remain in Mexico’ program causes more harm by the day, including in light of the COVID-19 crisis, the Departments of Homeland Security and Justice have kept US taxpayers in the dark about what their money is being used for,” said Ariana Sawyer, US border researcher at Human Rights Watch. “The program inflicts long-lasting trauma on both children and adults, fails to protect vulnerable asylum seekers from harm, and runs roughshod over the right to due process.”

A copy of the complaint against DHS is here. 

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For more information, contact the American Immigration Council:

Maria Frausto at [email protected] or 202-507-7526;
George Tzamaras at [email protected] or 202-507-7712;
Ariana Sawyer at [email protected] or 415-235-1686; S
andra Galvin at [email protected] or 212-294-2695.