Details of the Trump administration’s “Remain in Mexico” policy, which was set to be implemented last Friday and requires asylum seekers to wait out their cases in Mexico, are beginning to make their way to public.

Already, some are raising red flags.

Immigration attorneys and experts first sounded the alarm on Monday, after U.S. Citizenship and Immigration Services (USCIS) released a memo outlining the new process. Many believe the policy will add even more barriers to an already burdensome asylum system.

Generally speaking, an asylum seeker who is apprehended along the border must pass an interview, during which they must prove they have a “credible fear” of returning to their home country, in order to be awarded asylum. If they can prove credible fear and pass the screening, they are released under supervision to sponsors living in the United States, such as a family member, pending a final hearing in immigration court. If they can’t demonstrate credible fear, they are deported.


The “Remain in Mexico” policy, however, would implement an entirely new interview with an asylum officer that is separate from the normal screening. As Tom Jawetz of the Center for American Progress notes, a Supreme Court ruling from over 30 years ago establishes that a 1-in-10 chance probability of being persecuted is enough to establish credible fear under the old asylum policy. (ThinkProgress is an editorially independent newsroom housed within the Center for American Progress.) This new interview, however, employs a much higher standard that would require an asylum seeker to prove that it is “more likely than not” they would be persecuted in Mexico, in order to remain in the country while their case is pending.

“Upon a referral by a [Department of Homeland Security (DHS)] immigration officer…the USCIS asylum officer should interview the alien to assess whether it is more likely than not that the alien would be persecuted in Mexico on account of his or her race, religion, nationality, membership in a particular social group, or political opinion (unless such alien has engaged in criminal, persecutory, or terrorist activity, or terrorist activity […]), or that the alien would be tortured in Mexico,” the USCIS memo states.

Even if an asylum officer determines a claimant has established credible fear in Mexico, they can “change or concur with the assessment’s conclusion,” meaning the decision can be changed at any point and is not subject to judicial review.

“This new interview is the only safe harbor from being returned to Mexico to wait out asylum proceedings,” immigration attorney Matt Cameron noted on Twitter. “It will be conducted under a tough legal standard, with massive consequences. All around very much the kind of thing you’ll want a lawyer for.”

As outlined in the memo, DHS is currently “unable to provide access to counsel” for asylum seekers, meaning they are not provided legal representation during this process. Denying asylum seekers proper representation in court severely increases the risk of having their claims denied. A 2015 study by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that without legal representation, only 1.5 percent of women with children who had passed their credible fear interviews were given asylum in the United States.


In order to meet their court dates in the U.S., asylum seekers will likely have to stay in Mexican border towns like Tijuana, which are increasingly hostile to Central American refugees. As ThinkProgress previously reported, asylum seekers are the targets of countless kidnappings, disappearances, sexual assaults, and trafficking in Mexico. They are targeted not only for their vulnerable status as asylum seekers and refugees, but also because of their nationality, gender identity, and sexual orientation.

LGBTQ asylum seekers in particular are uniquely harmed by the policy. Last spring, inhabitants of a shelter in Tijuana, Mexico for transgender members of a Central American migrant caravan were attacked and robbed. Honduras, the country where the caravan was organized, has the highest rate of transgender murders in the world.