- Migrant Protection Protocols and the Death of Asylum
the death of asylum
From January 2019 to January 2021, a Trump-era policy known as the Migrant Protection Protocols (MPP) forced asylum seekers arriving at the U.S.-Mexico border to wait for their hearings in dangerous parts of northern Mexico (Department of Homeland Security, 2019). MPP had disastrous consequences: very few migrants in MPP had a meaningful chance to request asylum compared to other asylum seekers (Transactional Records Access Clearinghouse, 2019a), and migrants forced to wait in Mexico faced pervasive violence (Human Rights First, 2021b). President Biden suspended new enrollments in the program on his first day in office (Department of Homeland Security, 2021b) and, by late February 2021, migrants who were living in one of the refugee camps that emerged as a result of MPP in Matamoros, Mexico, began to enter the United States to pursue their asylum claims (Green, 2021).
As the MPP program—also known as Remain in Mexico—appears to come to a close, this essay examines key aspects of the program through the perspective of ontological, political, and physical death that Alison Mountz theorizes in her recent book The Death of Asylum (Mountz, 2020). Drawing on Mountz's work, I view MPP as symptomatic of a concerted though spatially uneven assault across the developed world on both the institutions and operations of asylum as a practice as well as on asylum seekers themselves. By looking more closely at how MPP used to undermine the asylum process, this essay adds to the literature on the death of asylum. Specifically, I show that MPP led to lower rates of attorney representation, created new barriers to hearing attendance, and all but prohibited asylum for migrants who were forced into the program. Finally, I want to issue a word of caution in the context of the recent slate of policy changes implemented by the Biden administration, which, in contrast to the Trump administration, do provide both symbolic and material relief to migrants, but which also risk normalizing more fundamental inequalities and fissures within the asylum system itself.
the legal topologies of "remain in mexico"
The Migrant Protection Protocols were announced in December 2018 by the Department of Homeland Security (DHS) Secretary Kirstjen Nielsen as a response to what the agency called an "illegal immigration crisis" at the U.S.-Mexico border (Department of Homeland Security, 2018, para. 1). As Mountz and Hiemstra (2014, p. 383) argue, the frequent use of "crisis" by state agencies [End Page 249] in the context of migration is "intimately tied to geographic assertions of sovereign power." To put it differently, when the Department of Homeland Security (DHS) starts talking about a crisis, something wicked is waiting just around the corner. Indeed, starting in January 2019, asylum seekers arriving at the border were given a notice for their asylum hearing and forced to wait in Mexico until their hearing date with a judge. As a result, migrants formed tent encampments near ports of entry, such as the one in Matamoros across the border from Brownsville, Texas (Bassett et al., 2020). The camps symbolized legitimate concerns about the legality of MPP and raised questions about the safety of migrants enrolled in the program.
On the face of it, MPP appeared to violate domestic and international refugee law by sending asylum seekers back to locations where they were likely to face unsafe conditions or further persecution, thus violating the principle of non-refoulment. Plaintiffs in a lawsuit filed against the Department of Homeland Security in 2019 alleged precisely this (Manning, 2020), and although federal judges granted an initial injunction against MPP (which would have forced DHS to pause the program), the courts also granted a stay on the injunction, which allowed the program to continue unimpeded while the case was litigated in court. Shortly after taking office, the Biden administration stopped defending MPP in court (Barnes, 2021), a move that has effectively ended MPP for now while also leaving questions surrounding MPP's legality unanswered.
The legal challenges to MPP illuminate the ways in which MPP sought to undermine asylum at the border. As the Congressional Research Service explained (Harrington & Smith, 2019), typically, when migrants...