FROM:
SUBJECT:
Policy Guidance for Implementation
of
the Migrant Protection
Protocols
January 25, 2019
ACTION
MEMORANDUM FOR:
L.
Francis Cissna
Director
U.S. Citizenship and Immigration Services
Kevin K. McAleenan
Commissioner
U.S. Customs and Border Protection
Ronald D. Vitiello
Deputy Director and Senior Official Performing the Duties
of
Director
U.S. Immigration and Cust ms Enforcement
Secretary
U.S.
Department
of
Homeland
Security
Wash
i
ngton,
DC
20528
Homeland
Security
On December 20, 2018, I announced that the Department
of
Homeland Security (DHS),
consistent with the Migrant Protection Protocols (MPP), will begin implementation
of
Section 235(b)(2)(C)
of
the Immigration and Nationality Act (INA)
on
a large-scale basis to
address the migration crisis along our southern border. In 1996, Congress added Section
235(b)(2)(C) to the INA. This statutory authority allows the Secretary
of
Homeland Security to
return certain applicants for admission to the contiguous country from which they are arriving on
land ( whether or not at a designated port
of
entry) pending removal proceedings under Section
240
of
the INA. Consistent with the MPP, citizens and nationals
of
countries other than Mexico
("third-country nationals") arriving in the United States by land from
Mexico-illegally
or
without proper
documentation-may
be returned to Mexico pursuant to Section 235(b)(2)(C) for
the duration
of
their Section 240 removal proceedings.
Section 235(b)(2)(C) and the MPP
The United States issued the following statement on December 20, 2018, regarding
implementation
of
the Migrant Protection Protocols:
[T]he United States will begin the process
of
implementing Section 235(b )(2)(C)
..
. with respect to non-Mexican nationals who may be arriving on land (whether
or
not at a designated port
of
entry) seeking to enter the United States from Mexico
illegally or without proper documentation. Such implementation will be done
consistent with applicable domestic and international legal obligations. Individuals
subject to this action may return to the United States as necessary and appropriate
to attend their immigration court proceedings.
The United States understands that, according to the Mexican law
of
migration, the
Government
of
Mexico will afford such individuals all legal and procedural
protection[s] provided for under applicable domestic and international law. That
includes applicable international human rights law and obligations as a party to the
1951 Convention relating to the Status
of
Refugees (and its 1967 Protocol) and the
Convention Against Torture.
The United States further recognizes that Mexico is implementing its own,
sovereign, migrant protection protocols providing humanitarian support for and
humanitarian visas
to
migrants.
The United States proposes a joint effort with the Government
of
Mexico to develop
a comprehensive regional plan in consultation with foreign partners to address
irregular migration, smuggling, and trafficking with the goal of promoting human
rights, economic development, and security.
1
The Government
of
Mexico, in response, issued a statement on December 20, 2018. That
statement provides, in part, as follows:
1.
For humanitarian reasons, [the Government
of
Mexico] will authorize the
temporary entrance
of
certain foreign individuals coming from the United
States who entered that country at a port
of
entry
or
who were detained between
ports
of
entry, have been interviewed by U.S. immigration authorities, and have
received a notice to appear before an immigration judge. This is based on
current Mexican legislation and the international commitments Mexico has
signed, such as the Convention Relating to the Status
of
Refugees, its Protocol,
and the Convention against Torture and Other Cruel, Inhuman
or
Degrading
Treatment
or
Punishment, among others.
1
Letter from
Charged
' Affaires John S. Creamer to Sr. Jesus Sead
e,
Subsecretaria para America del Nort
e,
Secretaria de Relaciones Exteriores (Dec. 20, 2018).
2
2.
It
will allow foreigners who have received a notice to appear to request
admission into Mexican territory for humanitarian reasons at locations
designated for the international transit
of
individuals and to remain in national
territory. This would be a "stay for humanitarian reasons" and they would be
able to enter and leave national territory multiple times.
3.
It
will ensure that foreigners who have received their notice to appear have all
the rights and freedoms recognized in the Constitution, the international treaties
to which Mexico is a party, and its Migration Law. They will be entitled to
equal treatment with no discrimination whatsoever and due respect will be paid
to their human rights. They will also have the opportunity to apply for a work
permit for paid employment, which will allow them to meet their basic needs.
4. It will ensure that the measures taken by each government are coordinated at a
technical and operational level in order to put mechanisms in place that allow
migrants who have receive[d] a notice to appear before a U.S. immigration
judge have access without interference to information and legal services, and to
prevent fraud and abuse.
2
Prosecutorial Discretion and Non-Refoulement in the Context
of
the MPP
In exercising their prosecutorial discretion regarding whether to place an alien arriving by land
from Mexico in Section 240 removal proceedings (rather than another applicable proceeding
pursuant to the INA), and,
if
doing so, whether to return the alien to the contiguous country from
which he or she is arriving pursuant to Section 235(b)(2)(C), DHS officials should act consistent
with the
non-refoulement principles contained in Article
33
of
the
1951
Convention Relating to
the Status ofRefugees
3
(1951 Convention) and Article 3
of
the Convention Against Torture and
Other Cruel, Inhuman
or
Degrading Treatment or Punishment (CAT).
4
Specifically, a third-
country national should not be involuntarily returned to Mexico pursuant to Section 235(b)(2)(C)
of
the INA
if
the alien would more likely than not be persecuted on account
of
race, religion,
nationality, membership in a particular social group, or political opinion (unless such alien has
engaged in criminal, persecutory, or terrorist activity described in Section 24l(b)(3)(B)
of
the
2
Secretaria de Relaciones Exteriores, Position
of
Mexico
on
th
e Decision
of
the
U.
S.
Government to Invoke Section
235(b)(2)(C)
of
its
Immigration and Nationality Act (Dec. 20, 2018).
3
The United States is not a party to the
1951
Convention but
is
a party to the 1967 Protocol Relating to the Status
of
Refugees, which incorporates Articles 2 to 34
of
the
195
I Convention. Article 33
of
the 1951 Convention provides
that: "[n]o Contracting State shall expel or return
('
ref
ou/er ') a refugee
in
any manner whatsoever to the frontiers
of
territories where his life or freedom would be threatened on account
of
his race, religion, nationality, membership
of
a particular social group or political opinion."
4
Article 3
of
the CAT states, "No State Party shall expel, return ('refouler') or extradite a person to another State
where there are substantial grounds for believing that he would be
in
danger
of
being subjected to torture." See also
Foreign Affairs Reform and Restructuring Act
of
1998 (FARRA), Pub.
L.
No. 105-277, Div. G, Title XXII, §
2242(a)
(8
U.S.C. §
1231
note) ("
It
shall be the policy
of
the United States not to expel, extradite, or otherwise effect
the involuntary return
of
any person to a country in which there are substantial grounds for believing the person
would be in danger
of
being subjected to torture, regardless
of
whether the person is physically present in the United
States.").
3
INA), or would more likely than not be tortured,
if
so returned pending removal proceedings.
The United States expects that the Government
of
Mexico will comply with the commitments
articulated in its statement
of
December 20, 2018.
U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S.
Immigration and Customs Enforcement will issue appropriate internal procedural guidance to
carry out the policy set forth in this memorandum.
5
This memorandum is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person.
5
A OHS immigration officer, when processing
an
alien for Section 235(b)(2)(C), should refer to USCIS any alien
who has expressed a fear
of
return to Mexico for a non-r
ef
oulement assessment by an asylum officer.
4
