Policy Guidance for Implementation of the Migrant Protection Protocols

Transcript

1 Secretary of Homeland U.S. Department Security Wash ngton, i DC 20528 Homeland Security January 2019 25, ACTION MEMORANDUM FOR: Cissna L. Francis Director Services Immigration and U.S . Citizenship Kevin K. McAleenan Commissioner Protection U.S. Customs and Border Vitiello Ronald D. Performing the Senior Deputy Director and Official Duties of Director Cust ms Enforcement and Immigration U.S. FROM: SUBJECT: Policy Guidance for Implementation of Migrant Protection the Protocols December 20, 2018, I announced that the Department of Homeland On (DHS), Security consistent the Migrant Protection Protocols with , will begin implementation (MPP) of Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) on a large -scale basis to address the crisi s along our southern border. In 1996, Congress added Section migration to Secretary INA. This statutory authority allows the 235(b)(2)(C) the Homeland to of Security certain applicants for admission to return contiguous country from which they are arriving on the Section under proceedings removal pending entry) of port not or ( whether land at a designated 240 the INA. Consistent with the MPP, citizens and nationals of countries other than Mexico of Mexico-illegally or in the United States by land from ("third-country nationals") arriving without proper documentation-may be returned to Mexico pursuant to Section 235(b)(2)(C) for the duration of their Section 240 removal proceedings .

2 Section 235(b)(2)(C) the MPP and United States the following statement on December 20 , 2018 , regarding The issued the Migrant Protocols : of Protection implementation States begin United process the will [T]he 235(b )(2)(C) Section of implementing respect to non-Mexican nationals who may be arriving on land (whether .. . with not at a designated of entry) seeking to enter the United States from Mexico or port without documentation. or Such implementation will be done illegally proper applicable domestic and international legal obligations . Individuals consistent with to this action may return to the United States as necessary and appropriate subject to attend immigration court proceedings. their of migration , the United to the Mexican law States that , according The understands Government Mexico afford such of all legal and procedural individuals will for under applicable domestic and international law . That protection[s] provided applicable international human rights law and obligations as a party includes the to 1951 relating to the Status Convention the Refugees 1967 Protocol) and its of (and Against Torture. Convention United States further recognizes that Mexico The implement ing its own, is sovereign protect ion protocols pro , migrant humanitarian support for and viding humanitarian visas to migrants . of Mexico to develop United with the Government States a joint effort The proposes plan address consultation with foreign partners to regional a comprehensive in smuggling, with trafficking migration, the goal of promoting human and irregular 1 development, and security. , economic rights Government of Mexico , in The issued a statement on December 20 , 2018. That response, statement , in part, as follows : provides For the reasons, [the Government of Mexico] will authorize 1. humanitarian United certain of foreign individuals coming from the temporary entrance States who entered that country at a port of entry or who were detained between ports of been interviewed by U.S. immigration authorities, and have entry , have . a notice before an immigration judge appear This is based on received to Mexican legislation and the international commitments Mexico has current Status , such the Convention Relating to the as signed Refugees, its Protocol, of or Degrading Convention against Torture and Other Cruel , Inhuman and the Treatment Punishment , among others . or 1 Lett er from Charged ' Affaires John S. Creamer to Sr. Jesus Sead e, Subsecretaria para Americ a del Nort e, es Secretaria Relaciones Ex terior de (Dec . 20 , 2018) . 2

3 2. It allow foreigners who have received a notice to appear to request will into Mexican for humanitarian reasons at locations admission territory of individuals and to remain in national the designated international for transit would be humanitarian reasons" and they for be would territory. This a "stay and leave national territory multiple times. able to enter 3. ensure will who have received their notice to appear have all that foreigners It freedoms recognized in the Constitution, the international treaties and rights the Mexico is a party, and to Migration Law . They will be entitled to which its treatment no discrimination whatsoever and due respect will be paid equal with to human will also have the opportunity They apply for a work their rights. to paid employment , which will allow them permit meet their basic needs. for to It will that the measures taken by ensure government are coordinated at a 4. each and operational level in order to put technical in place that allow mechanisms migrants have receive[d] a notice to appear before a U.S. immigration who have judge interference to information and legal services, and to access without 2 and abuse. fraud prevent Non-Refoulement in and Context of the MPP Discretion Prosecutorial the their prosecutorial discretion regarding In to place an alien arriving by land exercising whether Mexico Section 240 removal proceedings in than another applicable proceeding from (rather contiguous country the to doing if from so, whether to return the alien , and, the to pursuant INA) , DHS he is arriving pursuant to Section 235(b)(2)(C) she officials should act consistent or which to non-refoulement principles contained in Article 33 of the 1951 Convention Relating the with 3 ofRefugees Status the Convention) and Article 3 of the Convention Against Torture (1951 and 4 Punishment Degrading Treatment or or . (CAT) Specifically , a third - Other Cruel , Inhuman country national should not be involuntarily returned to Mexico pursuant to Section 235(b)(2)(C) of the if the alien would more likely than not be persecuted on account of race , religion , INA membership in social group , or political opinion (unless such alien has nationality, a particular in criminal, terrorist activity described , or Section 24l(b)(3)(B) in engaged persecutory of the 2 of Exteriores Secretaria Position of Mexico on th e Decision Relaciones the U. S. Governmen t to Invoke Section de , 235(b)(2)(C) its Immigration and Nationality Act (Dec. 20 , 2018). of 3 The States is not a party to the 1951 Convention but is a party to the 1967 Protocol Relating to the Status of United , which I Convention Articles 2 to 34 of the 195 Refugees . Article 33 of the 1951 Convention provides incorporates any ') ref ou/er a refugee in (' manner whatsoever to the frontiers of expel or return : " that State [n]o shall Contracting territories where his life or freedom would be threatened on account of his race , religion, nationality , membership of a particular social or political opinion. " group 4 Article of the CAT states , " No State Party shall expel , return ('r efo uler ') or extradite a person to another State 3 in danger of being subjected to torture. " See also are there substantial grounds for believing that he would be where Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) , Pub . L. No. 105-277 , Div . G, Title XXII , § of 2242(a) . § 1231 note) (" It shall be the policy U.S.C the United States not to expel , extradite , or otherwise effect (8 person the believing of any person to a country in which there are substantial grounds for return the involuntary United in the present ically of being subjected to torture , regard less of whether the person is phys danger in be would States. " ). 3

4 INA) , or more likely than not be tortured , if so returned pending removal proceedings. would United The that the Government States expects Mexico comply with the commitments of will , 2018. 20 December of statement in articulated its Citizenship and Immigration Services , U.S . Customs and Border Protection , and U.S. U.S. and Enforcement Immigration will issue appropriate internal procedural guidance to Customs 5 carry the policy set forth in this memorandum. out This memorandum is not intended to , and does not , create any right or benefit, substantive or procedural , enforceable law or in equity by any party against the United States , its at agents, , agencies, entities , its officers, employees , or or or any other person. departments 5 A OHS immigration officer , when processing an alien for Section 235(b)(2)(C) , should refer to USCIS any alien ef a return to Mexico for non-r of oulement assessment by an asylum officer. a fear who expressed has 4

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