"Remain in Mexico" & Immigration Policy in 2020, with Molly O'Toole

June 24, 2020

U.S./Mexico border at Border Field State Park/Imperial Beach, San Diego, California, 2014. CREDIT: Tony Webster (CC)

ALEX WOODSON: Welcome to Global Ethics Weekly. I'm Alex Woodson from Carnegie Council in New York City.

Today I'm speaking with Molly O'Toole. Molly is an immigration and security reporter for the Los Angeles Times. She is based in the Washington, DC bureau.

Molly recently won the first-ever Pulitzer Prize in audio reporting, along with the staff of This American Life and freelancer Emily Green for "The Out Crowd," investigating the personal impact of the Trump administration's "Remain in Mexico" policy. We'll speak about and some of the other issues around migration in the U.S., the effect of the coronavirus, and maybe some connections to the George Floyd protests.

Thank you so much for speaking today, Molly. I'm glad we were able to do this. Congratulations on the Pulitzer, first of all.

MOLLY O'TOOLE: Thank you.

ALEX WOODSON: I listened to "The Out Crowd." It was great. I encourage everyone to listen to that.

I would like to start there. For people who might not have been following this as closely as you, what is the "Remain in Mexico" policy exactly?

MOLLY O'TOOLE: It's self-explanatory, given that name. That's an informal name for the policy; the administration has its own term, which is the Migrant Protection Protocols, which is an ironic name once you dig into what the policy actually does.

In December of 2018, then-Homeland Security Secretary Kirstjen Nielsen, out of the blue in a committee announced this policy that dramatically changes U.S. immigration policy, in particular asylum. What this policy says is that under U.S. law migrants who come to the border, however they come to the border, who are physically there, whether at a port of entry, an official entry point, or between ports of entry, have the right to seek asylum. That doesn't mean they're going to get it necessarily, and actually very few do, but they have the right to seek asylum.

In every other administration the practice has been to allow people to wait inside the United States, where most of them already are, in order to see that process through, while their asylum claim is adjudicated, and that often takes quite a long time because there is an immense backlog in the immigration courts. But what this policy did is it forced those people back to Mexico. It forced them to wait in Mexico, in border towns along the U.S.-Mexico border, through the duration of that process. At this stage, depending on whose estimates you use, even the Department of Homeland Security says about 60,000 people became part of this program and were forced back to Mexico, and that is just since it was implemented in late January 2019, and it is still ongoing.

ALEX WOODSON: What are the conditions like in those border towns for the migrants?

MOLLY O'TOOLE: Not great is the short version. The system was not set up for this. Mexico wasn't prepared for it. At first they denied that they had agreed to this policy, and then they stated very explicitly that they did not agree, that this was unilaterally imposed by the United States. Kirstjen Nielsen said herself that it was unilaterally being imposed by the United States.

But Mexico ends up taking the brunt of it because these are migrants being sent back to Mexico who are in most cases, although it was expanded further, not Mexican; they're Central American migrants. The Trump Administration floated in one of its first executive orders that they were going to push essentially all migrants back to Mexico, but there are agreements in place, there are laws in place—and Mexico disputed it then, saying, "We don't have to take people who are not our citizens."

So Mexico was not set up to handle this, especially tens of thousands of people. Then you have to combine that with the thousands of people who are already waiting at ports of entry because of this policy referred to as "metering," which was the Trump administration just not letting people in who were trying to come to ports of entry and make a claim.

So you have tens of thousands of people backed up in border cities, many of which don't have an infrastructure. They might have a few shelters that are mostly run by churches, not run by the government, or run by non-profits, so a lot of people were on the streets in some of the most dangerous cities in the world, according to our own government. These de facto impromptu refugee camps have popped up along the border, and while reduced in size now many of them still exist. There are no resources, and U.S. officials stated explicitly that once they were pushed back to Mexico it wasn't their problem.

ALEX WOODSON: Have you been to refugee camps in the Middle East or in other parts of the world?

MOLLY O'TOOLE: I have. I worked for Foreign Policy magazine and covered the last presidential election, and after the first few months of the Trump Administration in the Spring of 2017 I went abroad for almost two years freelancing, still looking at migration and security, those themes that I still cover now and have always covered in one way or another. I worked in South Asia, I worked in West Africa, on the Turkey-Syria border, for example. I have been to some of those camps and seen refugee situations in different parts of the world.

What's unique about these on the U.S.-Mexico border is that they're informal. At least in some of the other refugee camps that are organized or run by the United Nations there is more of a system in place. Not always, but even in fast-developing refugee situations that infrastructure eventually develops.

But in this case, the United States, Mexico, and the United Nations were intentionally not formalizing the situation because the United Nations disputed that it was legal or that it should be allowed to happen, so they were concerned that if they provided those resources it would be putting the stamp of approval on it. Then the United States and Mexico both wanted to wash their hands of the situation that their policies intentionally created.

Trump administration officials have been explicit about this: it was to make people give up on their asylum claims and go home. They were very explicit that Remain in Mexico is a deterrent. In fact, they tout it, they brag about it as being one of the most successful policies toward the administration's goals of deterring all migration.

Immigration is obviously a very heated political issue in the United States, and we like to put it in these categories of good migrant/bad migrant, good immigration/bad immigration, legal immigration/illegal immigration, and there are a lot of gray areas. But it should be noted that asylum is a form of legal immigration. It is afforded under U.S. law. That's a longwinded way of saying how this refugee situation is unique on the U.S.-Mexico border as opposed to other contexts.

It has a very international demographic. A lot of people just think of Central Americans, and in many ways many of the Trump administration's policies attempting to restrict immigration target Central Americans specifically, but it's quite international. If you go to Tijuana or Juarez, you have a lot of refugees from West Africa, from East Africa, from Central Asia, from all over the world, because in many ways access to refugee status—which you can only get outside of the United States—those programs have been shrunk to almost nothing, both in the United States and in Europe as well, so people are increasingly taking this incredible and incredibly dangerous journey to get to the U.S.-Mexico border and then find themselves stuck in this sort of international waiting room.

ALEX WOODSON: I'm not sure if this is something you covered, but what happens if someone requests asylum at the Canadian border? I don't think there's a "Remain in Canada" policy, but what happens to someone from East Africa maybe that shows up in Buffalo or a place like that?

MOLLY O'TOOLE: What's tricky about that is that someone could apply for refugee status in Canada from outside of Canada, although the way the refugee program works— and it's almost 99 percent administered by the United Nations—people don't get to choose where they go. I think a lot of people misunderstand that. You don't necessarily get to choose where you go. It's almost like a lottery. It's not like people apply directly to be placed in the United States or to be placed in Canada.

If they have family, that's a different process, but in terms of asylum—and this isn't something I covered so much on the Canadian border—authorities have seen that, people using it that way. The way that Mexico is used as the largest transit country in the world for migration they're using the United States as a transit country in order to try to seek asylum in Canada because they would still have to physically present themselves.

But the United States and Canada have a legitimate Safe Third Country Agreement, and that works in both directions. In almost all circumstances they would not be able to seek asylum in Canada, having passed through the United States, because the way that agreement would work is that they would have to seek asylum in the United States first.

What the Trump administration has done is it has tried to make the entire world a safe third country without the rest of the world agreeing, saying that if any migrant has passed through any country before getting to the United States, they are ineligible for asylum in the United States because they should have claimed asylum in that other country first.

Those agreements aren't in place, and the very nature of that agreement would be that both countries would have to agree, so you can't legally or logistically implement a Safe Third Country Agreement on the entire world without those partner countries agreeing, and you have to certify that that country is in fact a safe country, and the Department of Homeland Security and the Department of State have given their signature and said, "Oh, we certify it's a safe country," but at the same time you have State Department warnings that say they are among the most dangerous places or countries in the world, some of these countries that they pass though, whether in the Northern Triangle or Mexico itself. So there is clearly a contradiction in U.S. policy and U.S. assessments of what is safe.

ALEX WOODSON: As you said, the Remain in Mexico policy continues today. What's the status of legal challenges against the Remain in Mexico policy? I want to get to what you specifically reported on your podcast in a little bit, but it seemed like one of the asylum officers had a legal background and noted many different not just moral problems but actual legal problems with this Remain in Mexico policy. Where is that now?

MOLLY O'TOOLE: I'm glad you pointed that out, because asylum officers have been much maligned by the Trump administration, but many of them are lawyers. Many of them have this intimate grasp of immigration law—which is incredibly complex—in a way that I could never hope to. So they have an in-depth understanding of immigration law.

Interestingly, where that case stands now—and depending on when this comes out; we just had a Supreme Court ruling with Deferred Action for Childhood Arrivals (DACA), which I think surprised a lot of people, and it's going to be interesting to see how that impacts the Trump administration's calculus for many of these other immigration policies, like Remain in Mexico, which are still under litigation. The Supreme Court, I believe in March, declined to take Remain in Mexico up, which left it back with the lower courts, and said, "We want this to work its way through the lower courts first." So this litigation is ongoing.

The foundation of the lawsuits against Remain in Mexico is that it violates all sorts of laws, one being the Administrative Procedure Act, which sounds really boring and bureaucratic, but it's actually at the heart of the DACA ruling just now, which is essentially that the administration violated all of the ways that Congress has said that they are required to take some of these policy actions. Some of those issues are very specific with Remain in Mexico, for example: only providing forms in English and not providing translations or providing really bad translations that aren't certified in any way; they're supposed to put down an address so that the applicant can receive notices and updates about cases, which is particularly notable mid-coronavirus because these hearings have been pushed back, pushed back, pushed back, and pushed back.

They don't have addresses; they live on the street because that's the situation they have been forced into by the U.S. government. So bogus addresses were being put on these important forms, and there was no way to get a notification about your hearing. What that often results in is an applicant or a migrant being ordered removed in absentia, without even knowing it, the irony of that being that they're not actually physically present in the United States, they're in Mexico. So they're being ordered removed even though they have already been removed. But that could potentially block you from getting access to asylum or a legal immigration status in the United States for a certain period of time or ever. So these administrative aspects of remain in Mexico that were being challenged and were a foundation of the lawsuit really do matter.

Then there is the fundamental legal theory, which isn't just theory, it's codified in international agreements that the United States is a signatory to as well as the Immigration and Nationality Act and the foundation of U.S. immigration law, which is this principle of non-refoulement, but it's essentially that the U.S. government cannot knowingly send someone back to harm. In this case, the U.S. government is not sending people back to their home countries but sending them back to Mexico, and very much knowing that they're sending them back to harm.

That is the foundation of those lawsuits, but where it stands is that it's still under litigation. I believe it was the Ninth Circuit, an appeals panel, that said the administration could continue to implement the policy while they ultimately ruled on the legality of it. The Supreme Court dodged and said, "We're going to let you guys work it out," and that's where it stands. So the administration has continued to implement the policy, still continues to implement the policy even now with the border being closed in the name of coronavirus.

Remain in Mexico is ongoing with the same legal issues that have existed throughout the program, and the foundation of the Trump administration's defense of the program—that it gives people access to asylum, they do have access to credible fear interviews, if they really are afraid or have demonstrated why they can't go back to Mexico, they could be allowed to stay—none of those things are true.

They also claim that there were exceptions, that the policy would not be applied to them, and that has also proven consistently to not be the case. So the foundation of the Ninth Circuit's decision that said that they could be allowed to continue implementing this policy has also been proven false, so it will be interesting to see what ultimately happens, but I also think there is a "run out the clock" aspect to this.

ALEX WOODSON: Turning specifically to "The Out Crowd" now, you spoke with several asylum officers, and most, maybe all of them, seemed very troubled by what they had to go through in these interviews. I believe one quit and sent a series of memos. What's the status right now of the asylum officers? As you said, a lot of them are lawyers who understand asylum law very well; a lot of them have moral concerns as well as legal concerns. What's the status of their concerns, and how many are left basically?

MOLLY O'TOOLE: Our reporting and other reporting that talked about asylum officers being troubled by many of these administration policies that have been put in place—it makes sense if you think about it. Their job is to administer asylum. They work for an administration that fundamentally does not believe in asylum and thinks of it as a loophole that people are gaming. From the very outset it put asylum officers and the administration at odds.

But many were particularly troubled by the Remain in Mexico policy for both ethical and legal reasons, some of which we have laid out, but in part because people were telling them that they had already been raped, kidnapped, and assaulted in Mexico as a direct result of the U.S. government putting them there, forcing them there, and yet the "blood was on their hands," so to speak, for lack of a more artful phrase. They were the ones sending them back personally. It was them; it was their job to send them back, and they felt very much in a bind. The policy left them no other choice if they were to administer the policy as they were being told to.

At the time, a lot of asylum officers were quitting or resigning or using up all their sick time to avoid having to do this policy and this ongoing battle. The union that represents the asylum officers had also filed an amicus brief in the litigation against Remain in Mexico, saying that they didn't agree with it and they believed that it was illegal, which was a significant step. They have been actively vocal since then, but that was a significant step that they did.

That dynamic has essentially continued. Now we have the United States Citizenship and Immigration Services (USCIS), which the administration claims is $1.2 billion in the hole, and what should be noted is that, as opposed to other immigration agencies like U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement (ICE), it is funded through the normal budgetary process of government, where the White House makes a request, Congress considers the request, and Congress ultimately appropriates a certain amount of money. But the USCIS, the agency that houses asylum and asylum officers, is a fee-based agency, which means that if you are applying for a green card, for example, you have to pay fees, and those fees are what fund the agency.

But if you have an administration that fundamentally does not believe that immigrants are entitled to benefits, even people who are in the United States legally, and you have an agency whose fundamental job is to administer the legal immigration system and provide those benefits, you have also created a scenario in which they no longer have fees because they have stopped administering all of these processes. The administration claims that if they don't get this money from Congress that they are going to be furloughing or laying off 15,000 USCIS employees. You can't extricate the political dynamic from that and this idea that they don't want asylum officers to be doing their job anyway. That's where things stand at USCIS.

ALEX WOODSON: The COVID-19 pandemic has also had a huge effect on immigration.

I was just looking through your stories since March, and all of the immigration stories have been impacted by COVID-19 in some way.

I know we only have a limited amount of time, but there is a lot to get into there. There is family separation, there are coronavirus patients being sent back to Guatemala, how it has affected Remain in Mexico. How have you seen COVID-19 affect the Remain in Mexico policy since you have been reporting on it?

MOLLY O'TOOLE: There are a few significant ways. Remain in Mexico has continued. People in Remain in Mexico are given a notice to appear, and they go through three or four rounds of hearings that are several months apart. So you have people who have been waiting in Mexico, "remaining" in Mexico, just to get their asylum claims heard by a judge more than a year. And that was already happening, that sort of lengthy delay. They have to come back to the border every time for that hearing. They are brought across for the hearing, and then they are brought back and dumped back into Mexico.

So it was already taking quite a long time, and part of the administration's argument for this policy was: "This is a way that we can adjudicate asylum claims really quickly. We'll do it in a very short period of time." That was part of the foundation of why this policy was allowed to go forward, which clearly isn't true because you have people waiting.

Now with coronavirus both types of immigration court cases—the detain docket and the non-detain docket, meaning people who are in immigration detention and those who are not in immigration detention—have been impacted by coronavirus because a lot of the immigration courts were shut down. Basically the immigration justice system—which I wouldn't refer to it that way, but it's under the Department of Justice—ground to a halt with coronavirus, and there are reasons for that you can see clearly. There were courtrooms where there were documented cases of coronavirus—immigration judges, attorneys. It was a really rare circumstance in which ICE attorneys and immigration attorneys came together to say, "Please close the courts because you're putting everyone in danger," and the public, whoever they come into contact with.

So for people under Remain in Mexico, what it has meant is they were already waiting so long—and this is trying to follow the process the "right way," trying to go through the process legally and see the whole process through—they are being forced to wait even longer in refugee camps, or the ones who are lucky enough to be in an apartment or a hotel where the conditions are also bad. The conditions are ripe for coronavirus.

They are being forced to wait even longer in a situation in which they are incredibly vulnerable to getting coronavirus, and there are already documented cases in which people removed by the United States under this new expulsions policy—as a short version, they are citing a controversial Centers for Disease Control and Prevention order to say that asylum is paused; protections for unaccompanied minors are paused, everything is paused; we're just going to turn people back quickly because of this incredible risk of migrants bringing in coronavirus, of which there are almost none—they have cited two cases so far, I believe, and the United States being the epicenter of the world for coronavirus and for a long time had many more cases than Mexico or Central America.

There have already been cases in which they have shown that people removed from the United States, either right over the border in those Northern border cities, have coronavirus. So they are actually bringing it to these camps that people are stuck in because of U.S. policy. Also, of course, we have these examples in which the United States is removing people all the way back to either southern Mexico or Central America. For example, the majority of Guatemala's coronavirus cases can be directly attributed to deportees from the United States.

These are the ways in which coronavirus is impacting immigration. In the name of coronavirus, citing coronavirus, even when the public health justification is nebulous, the Trump administration is taking dramatic steps that they have explicitly wanted to take throughout the entirety of the administration. They are doing it now, either citing public health and coronavirus or under the cover of coronavirus while people are looking the other way.

ALEX WOODSON: I have had conversations about artificial intelligence and surveillance and other technologies, how these policies that are being enacted now will continue after the pandemic, whether or not there is the same threat, and I imagine that's the same case for immigration, especially if the Trump administration continues for four more years.

MOLLY O'TOOLE: If you think about it, it's clear. They're saying that they want the country to reopen, but they're saying, "Oh, but these immigrations policies have to stay in place indefinitely." It's so explicit about what they're trying to do. If you think it's safe enough for the country to reopen—and there are very few documented cases of migrants bringing in coronavirus to the United States, especially because the border is closed, immigration has ground to a halt—then why did those policies need to continue to be in place? It's clear.

ALEX WOODSON: Yes. You can say that about a number of decisions this administration has made.

Just to finish up on a somewhat different note, you were recently in Minnesota covering the George Floyd protests and the memorial, I believe. A lot of the same issues that migrants deal with on the border in these refugee camps are similar to a lot of what black and brown people suffer at the hands of the police because of police brutality and because of systemic racism.

I was wondering when you were out there in Minnesota if—the connection is there for all to see. Was that part of the protests at all, the concern about migration? A lot of different issues are coming up. Was that part of the protests at all that you saw? Any thought about immigration and how police brutality connects to that as well?

MOLLY O'TOOLE: There are certainly parallels. I think as an immigration reporter, I also report on Homeland Security—which at least in other administrations has been more than immigration—and national security, so in one way or another I have reported usually on federal law enforcement, not necessarily local law enforcement.

But a lot of things came to my mind as I was in Minneapolis. One of the things that's interesting is that Minnesota in particular is undeniably a very white state. I think it's 85 percent. When you get to Minneapolis it's a much more diverse place than the rest of the state, but in urban areas that you might think of it's still predominantly white.

But the immigrant population in Minneapolis has exploded. It has become a much more diverse place in a very short period of time. And a huge part of that is that Minneapolis for a long time, for decades, had a very welcoming attitude for refugees, and East African refugees in particular. The Ethiopian, Eritrean, and Somali communities in Minneapolis are huge.

That was certainly an aspect of the protests. There were a lot of people in the community in Minneapolis who have experienced racism as people who are black, as people of color, but have also experienced discrimination as immigrants or as refugees, and that was interesting for me and thinking about policing and their experience of policing, not just on the local level but also on the federal level, particularly with the Somali community.

That was reinforced when you saw what an intentionally significant role the Trump administration asked Homeland Security personnel to play in responding to the protests, mostly in Washington, DC, and to me that rolled all together this idea of policing communities of color. It was certainly part of it, and I think that's part of the very fabric, personality, and history of Minneapolis. It's incredibly fraught, but they do have a long history with immigration and welcoming refugees. That's sort of a rambling answer.

For example, some of the surveillance technology that was utilized, not exclusively or even predominantly to go after some of the people who were instigating violence at the fringes of these protests, but was used against protesters, and some of that surveillance technology has been expanded in the most dramatic way by immigration authorities, by Homeland Security. License plate readers and facial recognition and the helicopters that were flying overhead have been part of the legacy of Homeland Security under the Trump administration. These things are very much all tied together, and I think that the administration itself, its own words and policies, have made that clear.

ALEX WOODSON: It's interesting. I remember a few years ago "Abolish ICE" was the big slogan for a lot of progressives and a lot of people running for office. That seems to be have been replaced by "Defund the Police." As you said, they're all connected, and I'm sure ICE will have its turn to be targeted in protests and for people to focus on it again, I think.

MOLLY O'TOOLE: I think a lot of that was around family separation, which as we know has not stopped. It may not be on the scale that it was at the time, in the spring of 2018. I think this conversation and debate about police reform, I think you can look at that. I think you're right to draw that connection between these movements.

I think it is still a very real and open question as to what steps are going to be taken moving forward. Particularly after November, what does that look like? Even if there is a change in administration, how do you roll these things back that have an institutional history of disproportionate force or disproportionate justice results for people of color, whether immigrant communities or the African American community? They have roots in the institution in and of themselves that date back such a long time, but the Trump administration has also leveraged those institutions.

So what does that look like? How do you make changes that will get at the root? I think that is going to be the conversation moving forward both in the immigration sphere and in criminal justice. Those are very tied up together. Immigration courts are under the Justice Department; immigration judges work for the Justice Department. They work for the same administration that the ICE attorneys work for, and many people have been arguing for a long time that that is a conflict of interest, that it puts politics before the law. It's very much part of the same conversation.

ALEX WOODSON: A lot to think about. Thank you so much, Molly. This has been great.

MOLLY O'TOOLE: Thanks for having me.

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