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Law360 (July 20, 2020, 7:28 PM EDT) -- The U.S. Department of Homeland Security and the Justice Department have announced health criteria for restarting immigration court hearings for asylum-seekers waiting in Mexico amid the coronavirus pandemic, setting a high standard to resume court proceedings and ensuring a long wait for migrants subject to the Migrant Protection Protocols.
On Friday, both federal agencies announced that court proceedings for the Trump administration's "Remain in Mexico" program would only resume when California, Arizona and Texas progress to the third stage of their COVID-19 reopening plans.
Additionally, the agencies said the Centers for Disease Control and Prevention and the U.S. Department of State have to lower their global health advisories to Level 2 or change their Mexico travel advisories to a comparable level, and the Mexican government has to lower the health warning levels of all its border states.
Court proceedings for those subject to the Migrant Protection Protocols can only resume when all three criteria are met, both departments said, adding that the criteria were subject to "continuing evaluation" as the pandemic continues.
California and Texas are currently still at the second stage of their reopening process, while the CDC and the State Department's global health advisories are at the third and fourth level, respectively.
While the State Department's Mexico travel advisory is currently at the second level, many of Mexico's border states — including Nuevo Leon, Coahuila, and Baja California Sur — were in the "red" category, meaning only "essential activities" were permitted by the Mexican government.
Once all three criteria are met, the DOJ and DHS said they would give public notice at least 15 days before MPP hearings would resume and outline guidelines for the proceedings that would follow federal health recommendations. This includes social distancing measures that could limit courtroom capacity and cause proceedings to be rescheduled, face mask requirements and temperature checks.
The agencies said "every reasonable effort" would be made to avoid holding asylum-seekers overnight in DHS custody once MPP hearings started back up.
The announcement of new criteria comes after original MPP hearing dates were first suspended in March due to the COVID-19 pandemic. Since then, migrants have had to present themselves at a port of entry one month after their initially scheduled hearing date to receive notice of the new date.
However, an immigration attorney told Law360 in May that many migrants have had to travel to the point of entry twice — after being turned away empty-handed in mid-May and told to return in mid-June for their hearing notices.
In early March, the U.S. Supreme Court gave DHS permission to keep implementing the Migrant Protection Protocols program, which forces some migrants to wait out their hearings in Mexico, while a legal challenge to the program plays out. The Ninth Circuit previously granted an injunction against the program, claiming it "clearly violates" the law.
DHS did not immediately respond to requests for comment.
--Additional reporting by Suzanne Monyak. Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
