U.S. Citizenship and Immigration Services
Office of the Director
Washington, DC 20529

January 28, 2019

PM-602-0169

Policy Memorandum
SUBJECT:

Guidance for Implementing Section 235(b)(2)(C) of the Immigration and
Nationality Act and the Migrant Protection Protocols

Purpose
This memorandum provides guidance to immigration officers in U.S. Citizenship and
Immigration Services (USCIS) regarding the implementation of the Migrant Protection Protocols
(MPP), including supporting the exercise of prosecutorial discretion by U.S. Customs and Border
Protection (CBP). This memorandum follows the Secretary of Homeland Security’s January 25,
2019, memorandum, Policy Guidance for Implementation of the Migrant Protection Protocols.
Background
Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) provides that aliens arriving
by land from a foreign contiguous territory (i.e., Mexico or Canada)—whether or not at a
designated port of entry—generally may be returned, as a matter of enforcement discretion, to
the territory from which they are arriving pending a removal proceeding under Section 240 of the
INA.
On December 20, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced that the
Department of Homeland Security (DHS) will begin the process of implementing Section
235(b)(2)(C) of the INA on a large scale. That statutory provision allows for the return of certain
aliens to a contiguous territory pending Section 240 removal proceedings before an immigration
judge. Under the MPP, aliens who are nationals and citizens of countries other than Mexico
(third-country nationals) arriving in the United States by land from Mexico—illegally or without
proper documentation—may be returned to Mexico for the duration of their immigration
proceedings as a matter of prosecutorial discretion. Accord 8 C.F.R. § 235.3(d).
In her January 25, 2019, memorandum, Secretary Nielsen issued general policy guidance
concerning DHS’s implementation of Section 235(b)(2)(C) at the southern border consistent with
the MPP. Memorandum from Kirstjen M. Nielsen, Secretary of Homeland Security, Policy

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Guidance for Implementation of the Migrant Protection Protocols (Jan. 25, 2019) (Jan. 25, 2019,
Memorandum). The Secretary advised that such authority should be implemented consistent
with the non-refoulement principles contained in Article 33 of the 1951 Convention Relating to
the Status of Refugees (1951 Convention)—as incorporated in the 1967 Protocol Relating to the
Status of Refugees 1—and Article 3 of the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). 2
The Secretary specifically advised that, consistent with those principles, “a third-country national
should not be involuntarily returned to Mexico pursuant to Section 235(b)(2)(C) of the INA if
the alien would more likely than not be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion (unless such alien has engaged in
criminal, persecutory, or terrorist activity described in Section 241(b)(3)(B) of the INA), or
would more likely than not be tortured, if so returned pending removal proceedings.” Jan. 25,
2019, Memorandum at 3-4. Article 33 of the 1951 Convention and Article 3 of the CAT require
that the individual demonstrate that he or she is “more likely than not” to face persecution on
account of a protected ground or torture, respectively. 3 That is the same standard used for
withholding of removal and CAT protection determinations. See 8 C.F.R. § 208.16(b)(2), (c)(2);
Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8480 (1999).
At the same time, under the MPP, the United States “understands that, according to the Mexican
law of migration, the Government of Mexico will afford such individuals all legal and procedural
protection[s] provided for under applicable domestic and international law,” including the 1951
Convention and the CAT. Letter from Chargé d’Affaires John S. Creamer to Sr. Jesús Seade,
Subsecretaría para América del Norte, Secretaría de Relaciones Exteriores (Dec. 20, 2018).
Further, “[t]he United States expects that the Government of Mexico will comply with the
commitments articulated in its statement of December 20, 2018.” 4
1

The United States is not a party to the 1951 Convention Relating to the Status of Refugees but is a party to the
1967 Protocol Relating to the Status of Refugees, which incorporates Articles 2 to 34 of the 1951 Convention.
Article 33 of the 1951 Convention provides that: “[n]o Contracting State shall expel or return (‘refouler’) a refugee
in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political opinion.”

2

Article 3 of the CAT states, “No State Party shall expel, return (‘refouler’) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being subjected to torture.” See also
Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277, Div. G, Title XXII, §
2242(a) (8 U.S.C. § 1231 note) (“It shall be the policy of the United States not to expel, extradite, or otherwise effect
the involuntary return of any person to a country in which there are substantial grounds for believing the person
would be in danger of being subjected to torture, regardless of whether the person is physically present in the United
States.”).
3

See INS v. Stevic, 467 U.S. 407, 429-30 (1984); Auguste v. Ridge, 395 F.3d 123, 132-33 (3d Cir. 2005); Pierre v.
Gonzales, 502 F.3d 109, 115 (2d Cir. 2007); see also Senate Resolution of Advice and Consent to Ratification of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No.
100-20, II(2), available at https://www.congress.gov/treaty-document/100th-congress/20/resolution-text;
Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8480 (1999).
4

Jan. 25, 2019, Memorandum at 4.

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The Secretary also advised that, where an alien affirmatively states a concern that he or she may
face a risk of persecution on account of a protected ground or torture upon return to Mexico,
CBP should refer the alien to USCIS, which will conduct an assessment to determine whether it
is more likely than not that the alien will be subject to persecution or torture if returned to
Mexico. The Secretary directed USCIS to issue appropriate internal procedural guidance to
carry out this policy. That guidance is explained below.
Guidance
Upon a referral by a DHS immigration officer of an alien who could potentially be amenable to
the MPP, 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 described in Section 241(b)(3)(B) of the
INA), 5 or that the alien would be tortured in Mexico. The process or procedures described in
INA Sections 208, 235(b)(1), (3), and 241(b)(3) and their implementing regulations, as well as
those in the CAT regulations, do not apply to the MPP assessments.
A. Interview
Upon receipt of such a referral, the USCIS officer should conduct the MPP assessment interview
in a non-adversarial manner, separate and apart from the general public. The purpose of the
interview is to elicit all relevant and useful information bearing on whether the alien would more
likely than not face persecution on account of a protected ground, or torture, if the alien is
returned to Mexico pending the conclusion of the alien’s Section 240 immigration proceedings.
The officer should conduct the assessment in person, via video teleconference, or telephonically.
At the time of the interview, the USCIS officer should verify that the alien understands that he or
she may be subject to return to Mexico under Section 235(b)(2)(C) pending his or her
immigration proceedings. The officer should also confirm that the alien has an understanding of
the interview process. In addition, provided the MPP assessments are part of either primary or
secondary inspection, DHS is currently unable to provide access to counsel during the
assessments given the limited capacity and resources at ports-of-entry and Border Patrol stations
as well as the need for the orderly and efficient processing of individuals. 6
In conducting the interview, the USCIS officer should take into account the following and other
such relevant factors as:

5

The disqualifying grounds for non-refoulement vis-à-vis the 1951 Convention and 1967 Protocol are reflected in
Section 241(b)(3)(B) of the INA. However, the reference to Section 241(b)(3)(B) should not be construed to
suggest that Section 241(b)(3)(B) applies to MPP.
6
See 8 C.F.R. § 292.5(b).

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1. The credibility of any statements made by the alien in support of the alien’s claim(s) and
such other facts as are known to the officer. That includes whether any alleged harm
(i.e., the alleged persecution or torture) could occur in the region in which the alien would
reside in Mexico, pending their removal proceedings, or whether residing in another
region of Mexico to which the alien would have reasonable access could mitigate against
the alleged harm;
2. Commitments from the Government of Mexico regarding the treatment and protection of
aliens returned under Section 235(b)(2)(C) (including those set forth in the Government
of Mexico’s statement of December 20, 2018), 7 the expectation of the United States
Government that the Government of Mexico will comply with such commitments, 8 and
reliable assessments of current country conditions in Mexico (especially those provided
by DHS and the U.S. Department of State); and
3. Whether the alien has engaged in criminal, persecutory, or terrorist activity described in
Section 241(b)(3)(B) of the INA.
B. Assessment
Once a USCIS officer assesses whether the alien, if returned to Mexico, would be more likely
than not persecuted in Mexico on account of a protected ground (or has engaged in criminal,
persecutory, or terrorist activity described in Section 241(b)(3)(B) of the INA), or would be more
likely than not tortured in Mexico, the assessment shall be reviewed by a supervisory asylum
officer, who may change or concur with the assessment’s conclusion. DHS staff should inform
the alien of the outcome of the final assessment. USCIS should then provide its assessment to
CBP for purposes of exercising prosecutorial discretion in connection with one or more of the
decisions as to whether to place the alien in expedited removal or to issue a Notice to Appear for
the purpose of placement directly into Section 240 removal proceedings, and if the latter,
whether to return the alien to Mexico pending the conclusion of Section 240 proceedings under
Section 235(b)(2)(C) pursuant to the MPP, and, when appropriate, to U.S. Immigration and
Customs Enforcement for purposes of making discretionary custody determinations for aliens
who are subject to detention and may be taken into custody pending removal proceedings.
If an officer makes a positive MPP assessment (i.e., that an alien is more likely than not either to
be persecuted in Mexico on account of a protected ground and has not engaged in criminal,
persecutory, or terrorist activity described in Section 241(b)(3)(B) of the INA, or to be tortured
in Mexico), USCIS is not granting withholding of removal or protection from removal under the
CAT regulations. Nor shall there be further administrative review, reopening, or reconsideration
of the assessment by USCIS. The purpose of the assessment is simply to assess whether the
alien meets one of the eligibility criteria under the MPP, pursuant to Section 235(b)(2)(C).
7

Secretaría de Relaciones Exteriores, Position of Mexico on the Decision of the U.S. Government to Invoke Section
235(b)(2)(C) of its Immigration and Nationality Act (Dec. 20, 2018); see Jan. 25, 2019, Memorandum at 2-3.
8

See Jan. 25, 2019, Memorandum at 4.

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Disclaimer
This memorandum is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person.
Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or
litigation prerogatives of DHS.
Contact Information
Questions relating to this memorandum must be directed through the appropriate channels to the
Asylum Division Headquarters point of contact.