Remain in Mexico and Safe Third Country Rules, How Each Is Supposed to Work

The two most important words in immigration law are "shall" and "may." Congress uses the first when it means a command and the second when it means a choice, and a great many fights that look like fights about immigration are really fights about which word the statute used.

Today's topic sits at the intersection of two sentences and a handful of words. One sentence says what the government does with an asylum applicant at the border. The other says when it may send the applicant to wait somewhere else. Get the verbs right and you understand most of what has happened to the American asylum system since 2004.

The claim and the terms

Let me say at the outset where I land, and then earn it. Asylum is protection from persecution. A person who reaches a safe country has, in the ordinary case, found that protection, and the law has long recognized that the United States may require applicants to wait in, or seek protection in, another safe country, through tools Congress wrote into the statute. Those tools are lawful, they are consistent with the humanitarian purposes of asylum, and they deserve to be used well.

Define the terms. Asylum is a protection the United States may grant to a person who is unable or unwilling to return to their country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. It is governed by section 208 of the Immigration and Nationality Act, codified at 8 U.S.C. 1158. A safe third country is a country other than the applicant's own, where the applicant could seek protection. A Remain in Mexico policy, officially the Migrant Protection Protocols, is the practice of returning certain applicants to Mexico while their United States proceedings go forward.

The first sentence: what happens at the border

Start with the statute that governs who is processed and how. Section 235 of the Immigration and Nationality Act, codified at 8 U.S.C. 1225, sets out the procedure for inspecting people who arrive. Two features matter.

First, expedited removal. A person arriving without valid documents, or by fraud, can be ordered removed quickly, without a full hearing, unless the person indicates an intention to apply for asylum or a fear of return. If the person does, the law sends them to an asylum officer for a credible fear interview. That screening, and how low the bar is set, is the subject of How the Credible Fear Screen Works and Why Its Bar Was Set So Low.

Second, the ordinary case. Section 235(b)(2)(A) says that if an examining officer determines that an applicant for admission "is not clearly and beyond a doubt entitled to be admitted," the person "shall be detained" for a full removal proceeding before an immigration judge, under what the code calls section 240. There is the first command. The law says detain.

Detention for every applicant is, as a practical matter, impossible. Congress has never funded the beds. So the government releases many applicants, through parole or other means, to await their hearings, as the history of the Flores rules in Reno v. Flores and the 1997 Settlement That Still Shapes Family Detention helps explain. And that is where the second sentence comes in.

The second sentence: the contiguous-territory provision

Section 235(b)(2)(C) of the Immigration and Nationality Act says, in substance, that in the case of an applicant who is arriving on land, whether or not at a designated port of arrival, from a foreign territory contiguous to the United States, the government "may return the alien to that territory pending a proceeding" under section 240. Notice the verb: may. It is a grant of discretion. It does not say the government must return anyone. It says it may.

That one sentence is the statutory basis for the Migrant Protection Protocols. Congress wrote it in the 1996 immigration reform, and for more than two decades it was little used. The provision was there. Nobody had built a policy on it.

The third sentence: the safe-third-country bar

The other statutory piece is section 208(a)(2)(A), at 8 U.S.C. 1158(a)(2)(A). It provides that the asylum right to apply does not apply to an alien who may be removed, pursuant to a bilateral or multilateral agreement, to a country other than the alien's own, in which the alien's life or freedom would not be threatened on account of one of the protected grounds, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection. The statute contains an exception when the Attorney General finds that it is in the public interest for the person to receive asylum here.

Two conditions are built in, and they are the whole moral content of the provision. The third country must be safe, meaning the person would not face persecution there. And the person must have access to a fair process to claim protection there. The statute does not authorize sending people anywhere. It authorizes sending them to a place that satisfies both tests, and it requires an agreement with that place. That structure is the answer to a common charge, that safe-third-country rules abandon the duty to protect. The text of the law does not abandon it. It moves the venue.

Canada: the 2004 agreement

The one safe-third-country agreement that the United States has operated for long is with Canada. The countries signed the Safe Third Country Agreement in December 2002, and it took effect on December 29, 2004. Its core rule is that a person who arrives at a land border port of entry between the two countries and wants to claim refugee status must generally make the claim in the first of the two countries they reached, and may be turned back from the second. The rule applies to claims at land ports of entry, and it has exceptions, including for people with close family members in the country where they are seeking protection, for unaccompanied minors, and for certain others.

For years the agreement had a well-known hole. It applied only at official ports of entry. A person who crossed between ports, at an unofficial place, was not covered, and so a notable route developed in which people entered Canada from the United States at a rural crossing in Quebec, famously on a road known as Roxham Road, and then claimed asylum. In March 2023 the two governments agreed on an additional protocol that extended the agreement to the whole land border, including internal waterways, and the Roxham Road crossing was closed.

The agreement has also faced litigation in Canada. In 2020, a federal court there held that the arrangement violated the Canadian Charter of Rights and Freedoms because of how some returned claimants were treated in United States detention. The Federal Court of Appeal reversed that ruling in 2021, and in June 2023 the Supreme Court of Canada held that the agreement itself was constitutional, while sending a narrower question back to the lower court. The Canadian story is a useful corrective to the idea that the arrangement is a cruel American invention: it is a reciprocal agreement between two democracies, defended by a Canadian government and tested by a Canadian court system, and the rest of the world's wealthy democracies have comparable rules. The Canadian side of the story is told in Thinking of Moving to Canada? Its Points System Might Not Pick You from another angle.

The Migrant Protection Protocols

Now the new use of the old sentence. On December 20, 2018, the Department of Homeland Security, under Secretary Kirstjen Nielsen, announced that it would use the contiguous-territory provision to return certain non-Mexican arrivals at the southern border to Mexico to await their hearings. The program began in January 2019 at San Ysidro, California, and expanded to other points along the border over the following months. It was formally named the Migrant Protection Protocols, and it was commonly called Remain in Mexico.

Here is how it was supposed to work. A person from outside Mexico who arrived on land from Mexico and who would otherwise have been placed in removal proceedings was instead issued a notice to appear and returned to Mexico to wait. The person then had to come back to a port of entry on the date of the hearing, and the hearing was held at the border. The government, by an arrangement with Mexico, said that Mexico would provide humanitarian protection and work permission while they waited. People who said they feared being returned to Mexico were supposed to be screened for that fear in a separate interview, and excluded from the program if they showed they were more likely than not to face persecution or torture there. Unaccompanied children and certain vulnerable people were excluded.

The theory was simple, and it ran on the incentive logic discussed in A Secure Border Is the Humane Border, and Here Is the Moral Case. If the benefit of an illegal or irregular crossing is release into the American interior for years, with the right to work in the meantime, the crossing attracts anyone who thinks a claim, even a weak one, is worth the trip. If the applicant has to wait across the river, the weak claims are less attractive, and the strong ones still get heard. The program, and a set of related measures taken in 2019 including agreements with Guatemala, Honduras and El Salvador to receive asylum seekers, was aimed at taking the incentive out of the system.

The criticisms, fairly stated

The program was criticized, and some of the criticism was serious.

Humanitarian organizations and journalists documented dangerous conditions for people waiting in some Mexican border cities, including camps in Matamoros and elsewhere, and reports of kidnappings, extortion and assaults of people waiting for hearings. Access to lawyers was limited, and the share of applicants who had counsel was low. The immigration courts were set up in tents at the border for a time. Advocates also argued that the screening for fear of return to Mexico was too narrow.

An honest defender should concede that if the arrangement leaves people in danger while they wait, it fails the test of the statute. The safe-third-country bar is explicit that the third country must be safe and that a fair procedure must be available. A policy that sends people to a place where they are being kidnapped is not within the principle. The right response to the evidence is to fix the arrangement: secure shelters, access to counsel by video or in person, faster hearings, and a screening standard that actually protects. It is not to claim that the principle of waiting abroad is itself illegitimate.

Biden v. Texas

The program was suspended in January 2021, after the change of administration, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum terminating it. Texas and Missouri sued, arguing that the termination violated the immigration statute and the Administrative Procedure Act. A federal district court in Texas ordered the government to reinstate the program, and the Supreme Court declined to stay that order in August 2021. The administration issued new memoranda in October 2021 to end the program again, and the litigation continued.

On June 30, 2022, the Supreme Court decided Biden v. Texas, by a vote of five to four. Chief Justice John Roberts wrote the opinion. The Court held that the statute does not require the government to return applicants to Mexico. It said that section 235(b)(2)(C) uses the word "may," which makes the return a matter of discretion, and that the government's decision to end the program did not violate the statute. It reversed the lower courts' order and sent the case back for further proceedings. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch, while Justice Amy Coney Barrett dissented separately on a jurisdictional ground.

What did the case decide, and what did it leave alone? It decided that a program under the "may" sentence is a choice, and that any administration can start it or end it. It did not decide that the program is unlawful. It decided, on the contrary, that the program is lawful and that the executive has discretion over it. That is a perfectly sound reading of the word "may." It also exposes the fragility of a program built on discretion. A policy that depends on an agency's choice can be created in one administration and abandoned in the next, and applicants, smugglers and Mexico all know it.

The case for asylum at the first safe country

Let me make the affirmative argument, in numbered form.

1. Asylum exists to protect people from persecution. It is a refuge. It is not a general right to choose one's country of residence, and the 1951 Refugee Convention and the Refugee Act of 1980, covered in The Refugee Act of 1980 Explained, and the Promise It Actually Made, were drafted with that purpose in mind.
2. A person who reaches a safe country has, in the ordinary case, reached protection. If the first country is safe and offers a fair process, the need for refuge is met there, and continuing across several countries to the one the person prefers is a decision about preference, however understandable.
3. A rule that rewards the farthest journey rewards the most dangerous one. If protection is available at the first stop but the benefits are in the last, people will cross borders, rivers and deserts to reach the last. A first-safe-country rule removes the reason to make the journey.
4. The burden of a crisis should be shared, not concentrated. The European experience in 2015, told in Europe's 2015 Migrant Crisis and the Lessons It Taught Every Democracy, shows what happens when a rule assigns responsibility and then fails to enforce it. Agreements that allocate responsibility, like the one with Canada, are the mature form of the idea.
5. The rule must be conditioned on real safety and real process. The statute says so, and so should the policy. The standard is a demanding one, and a government that sends people to a place that fails it breaks the law.

The answer to the strongest objection

The strongest objection is this one: an arrangement that depends on a country like Mexico to provide safety and fair process puts people at the mercy of conditions the American government does not control, and the evidence from 2019 and 2020 showed that the conditions were poor. The better course is to process the claims on American soil.

My answer has three parts. First, the objection is about implementation, and the statute already contains the remedy: the safety condition. If the conditions fail the test, the policy should not be used there. Second, the alternative is not costless. Processing every claim on American soil with release into the interior produces the incentive problem described above, and the people who bear the cost include the many who wait years for their own hearings. Third, the right fix is a partnership, in which the United States works with its neighbors to build the capacity to protect, funds shelters and legal access, and speeds decisions. That is the model that Canada and the United States have, and it works in part because both countries have functioning systems.

What Congress should do

The "may" in the statute is a fragility. If the policy is a good one, and I have argued it is, then Congress should do what Congress is for: write the rules. It could set out, in statute, the conditions under which applicants may be returned to a contiguous country, require the safety and process findings, fund the shelters and the immigration judges, set decision deadlines, and bind all administrations, not just one. The Constitution gives the power over the rules of naturalization and the admission of foreigners to Congress, in Article I, Section 8, and it is a mistake to leave something this important to executive memoranda. For the broader history of the asylum framework Congress is working inside, see A Short History of American Asylum Law, From 1948 to the Refugee Act.

The case in brief

1. Section 235(b)(2)(A) says an applicant who is not clearly entitled to admission shall be detained for a removal proceeding, and section 235(b)(2)(C) says that an applicant arriving by land from a contiguous territory may be returned to that territory while the proceeding goes forward.
2. Section 208(a)(2)(A) lets the United States send applicants to a safe third country under an agreement, if their life or freedom would not be threatened there and they would have access to a fair process.
3. The 2004 Safe Third Country Agreement with Canada, extended along the whole land border in March 2023, is the model, and Canada's Supreme Court upheld it in June 2023.
4. The Migrant Protection Protocols began in January 2019 under the contiguous-territory sentence, and in Biden v. Texas (2022) the Supreme Court held five to four that the word "may" means the executive has discretion to continue or end the program.
5. Asylum at the first safe country is consistent with the purpose of asylum, provided the country is genuinely safe and the process is fair, and the durable answer is a statute, not a memo.

What you can do: read 8 U.S.C. 1225(b)(2) and 8 U.S.C. 1158(a)(2)(A) on Congress.gov, noting each use of "shall" and "may," then ask your representative through the page for your representatives whether Congress will write the conditions for return into law.