The Human Rights Framework’s Illegitimate Child: How the Migrant Protection Protocols Violated Asylum Seekers' Rights
Cathey, Denise. Protesters with signs against the “Remain in Mexico” policy. AP Images.
An Introduction to the Migrant Protection Protocol (MPP)
International human rights doctrine asserts that all individuals are entitled to certain inalienable rights. Yet, the interpretation and application of these rights remain deeply contested, often shaped by legal discretion. It is within this fragmented structure that the MPP emerged in the U.S. Enacted in 2019 by the Trump-Pence Administration, the MPP required asylum seekers at the U.S.-Mexico border to remain in Mexico while awaiting adjudication of their claims. Of those enrolled, only around 1% were granted relief. Though presented as consistent with international obligations, the MPP reveals the limitations of the human rights paradigm in effectively protecting the rights of asylum seekers.
The MPP violated core human rights established under international human rights law by (1) exposing asylum seekers to persecution, (2) preventing access to counsel, and (3) facilitating family separation. As a result, it contradicts U.S. commitments under the 1967 Protocol to the 1951 Refugee Convention, the Convention Against Torture (CAT), and the International Covenant on Civil and Political Rights (ICCPR).
The Framework
Under international law, three key provisions establish states' obligations to asylum seekers. Article 3 of CAT forbids transferring individuals to a state where they risk torture. Article 33 of the 1951 Refugee Convention codifies the principle of non-refoulement, which prohibits returning refugees to countries where their lives or freedoms would be threatened. Article 6 of the ICCPR affirms the inherent right to life. Together, these provisions establish that States have a legal obligation to ensure asylum seekers are not sent to States where they face a risk of persecution or threats to their lives.
The Risk of Persecution in Mexico
U.S. officials claimed that the MPP would be implemented in a manner consistent with the U.S’s human rights obligations. Former U.S. Secretary of Homeland and Security Kristjen Nielsen asserted MPP enrollees would enjoy all the “rights and freedoms recognized in the Constitution” and insisted the U.S. “expects that the Government of Mexico will comply” with its commitments. However, modern interpretations of international refugee law only permit transfers of asylum seekers to a third country if there are safeguards against refoulement.
Thus, when a state like the U.S. transfers asylum seekers to a third country such as Mexico, it remains legally obligated to ensure they are not exposed to persecution.
A mere expectation of safety is not sufficient to uphold international human rights law requirements. Initially, MPP did not question asylum seekers about their fear of persecution in Mexico. Instead, they were expected to “affirmatively articulate” this fear despite trauma and language barriers. Later changes implemented a fear-screening process requiring proof that persecution was “more likely than not.” This new standard was criticized as an “extraordinarily high hurdle” that undermined the principle of non-refoulement by the United Nations Special Rapporteur on the human rights of migrants. These flawed screenings, conducted by Homeland and Security officers with little oversight and vague thresholds, violated the U.S.'s treaty obligations.
The evidence of danger was overwhelming. At least 1,544 publicly reported cases of rape, kidnapping, and assault occurred against MPP enrollees in Mexico. Human Rights Watch interviewed 71 MPP Venezuelan enrollees, finding that nearly half were extorted and 27 kidnapped. Some reported being threatened with death after captors discovered they sought U.S. asylum. In 2019, the U.S. State Department designated Mexico a “Level 2” security risk due to widespread violent crime. Given these well-documented violations, the MPP clearly placed asylum seekers in danger of persecution, contravening the non-refoulement principle.
Barriers to Legal Representation
While international law does not explicitly guarantee legal representation in asylum proceedings, the absence of meaningful access to counsel undermines the effective exercise of other protected rights, including protection from refoulement and the right to life. In this respect, the human rights framework reveals a critical gap. Article 16 of the 1951 Refugee Convention (as incorporated by the 1967 Protocol) guarantees that a refugee who has “habitual residence” in a Contracting State must receive “the same treatment as a national in matters about access to the Courts, including legal assistance.” However, this right is not explicitly granted to those who are still seeking asylum.
This gap is reflected in the U.S. Department of Homeland Security’s implementation of the MPP: while DHS stated enrollees would be provided with a list of pro bono providers, they were required to secure legal counsel at their own expense.
As a result, legal representation was rare. Only 7.5% of MPP participants obtained attorneys. Even for those who did, communicating with lawyers was difficult due to unstable housing, limited phone or internet access, dangerous border conditions, and minimal opportunity to consult with counsel before court dates. Many migrants who remained in Mexico had fled their countries with limited resources, could not access funds, and feared working due to the severe risk of kidnapping and abuse. Unable to afford legal representation, they were left to navigate a deeply complex legal system in a language they often did not understand.
This lack of representation, coupled with the ineffective access to what limited representation was available, systematically undermined asylum seekers’ opportunities to effectively present their claims. The current human rights paradigm's failure to guarantee meaningful access to legal counsel creates a critical gap in protection during the most vulnerable stages of the asylum process, ultimately violating the right to life (Article 6 of the ICCPR) and the right to be free from torture (Article 3 of the CAT).
Family Separation and the Rights of the Child
Article 24 of the ICCPR affirms every child’s right to protection, while Article 23 establishes the family as a unit entitled to state protection. MPP claimed to uphold family unity, stating families would remain together unless one member was exempted or granted relief. In practice, however, families were routinely separated.
Even when initially enrolled in MPP together at the border, families endured violence in Mexico that forced impossible decisions. Many parents under MPP were kidnapped or victims of other crimes, leaving their children without protection. In other cases, parents made the agonizing decision to purposefully send their children to cross the border alone to pursue asylum, aware that unaccompanied children were exempt from MPP. Between October 2019 and January 2020, the Department of Health and Human Services reported that over 350 unaccompanied children entered the U.S. while their families remained in Mexico. One father, after his son endured a kidnapping, chose to send him across the border, pleading with officers: “Just take my child.”
While the MPP may not have directly separated families, it created conditions under which separation was necessary for survival. A family unit cannot remain unified when its members are unsafe or unable to meet basic needs. The U.S. failed its obligation under the ICCPR to protect the family unit by forcing these choices upon vulnerable families.
Conclusion
The MPP undermined international human rights while maintaining a facade of compliance. Through flawed and ineffective fear screenings and the mischaracterization of Mexico as a “safe” country, the policy exposed asylum seekers to persecution and abuses, violating the principle of non-refoulement. By failing to ensure access to legal representation and consequently decreasing the chances of successful asylum claims, the MPP increased the risk of persecution. Finally, by forcing families to remain in dangerous conditions, the policy made separation a survival mechanism.
The Migrant Protection Protocols show how the human rights framework is vulnerable due to its loose interpretive structure. Though not the intended product of the human rights framework and fundamentally disowned within it, the MPP stands as its illegitimate child,
born of the gaps and limitations within the system. Without addressing these fundamental structural weaknesses, future policies will continue to circumvent human rights protections while maintaining technical legal compliance.
Sofia Rojas (BC ’27) is a Staff Writer majoring in Political Science. She is passionate about the rights of marginalized communities, particularly immigrants, and the policy and governmental barriers that limit their freedoms.
Edited by Gabriella Casey Garrido (CC’27).