In November 2020. Sidley Austin LLP, submitted an amicus brief in support of a challenge to the Remain in Mexico program (or MPP) in California federal court.
MPP, which was enacted during the Trump administration and implemented in a modified form by the Biden administration through the summer of 2022, required some people seeking asylum at the U.S. southern border to wait in Mexico while pursuing their claims—often in dangerous situations and without access to shelter and food or legal support. The court challenge, brought on behalf of asylum seekers whose cases had been terminated or who had been ordered removed during the Trump administration’s program, argued that MPP violated their right to seek asylum, to access counsel, and to a full and fair hearing on their asylum claims. They asked the court for a ruling that would allow them to enter the United States to meaningfully pursue asylum. The Biden administration asked that the case be dismissed, claiming that MPP is lawful, even if its benefits as a policy were outweighed by costs.
In March 2023, Judge Jesus Bernal of the U.S. District Court for the Central District of California ruled that MPP is unlawful and included a section in his decision affirming the argument made in the Sydney and Austin brief about the legal requirement to handle all asylum claims in a uniform way. “The differential treatment of individuals subjected to MPP is a plausible theory to allege violation of [this] uniformity principle,” Judge Bernal writes. The decision has implications not only for the Remain in Mexico policy but for the Biden administration’s proposed transit and entry asylum ban and U.S. asylum policy writ large.
What does this mean for the legality of the Biden administration’s proposed asylum ban?
The Biden administration’s proposed new regulation would treat people asking for asylum after crossing between ports of entry differently than other asylum seekers, presuming them ineligible for asylum. It’s just one of many policies the Biden administration has or is considering putting in place that treats asylum seekers differently for reasons unrelated to the merits of their persecution claims.
We are moving away from any sense of equality and uniformity in the treatment of asylum seekers and towards a system that is discriminatory and arbitrary and far removed from consideration of the rights of asylum seekers themselves.
Some asylum seekers who enter at the border might be sent to ICE prisons and some might have their claims decided while they are in CBP custody. This would depend partly on the availability of detention space and would make it much less likely that the asylum seekers processed there would have access to counsel. Others might be eligible–based upon their nationality—for a special parole program to enter through a United States airport and then seek asylum. Though others, of those same nationalities, might not be because they lack a valid passport or a sponsor in the United States.
The Biden administration is also negotiating with Mexico and Canada regarding which groups of displaced people they should keep out and accept, giving individual displaced people little consideration in the matter.
What is lacking but sorely needed right now—from both the administration and Congress—is an honest conversation about how the federal government should work with foreign governments, with international organizations, with state and local governments, and with NGOs to provide all asylum seekers with a fair and humane process to seek protection.
Should the United States prioritize certain claimants? If so, why? Arbitrary deterrent measures for the sake of diverting forcibly displaced people elsewhere avoids facing one of the biggest moral questions and social problems of our century.