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4 questions about the Trump administration’s decision to make asylum seekers wait in Mexico

Asylum seekers at the southwest border will now have to wait in Mexico while their claims are processed in U.S. immigration courts, a significant departure from decades of American immigration policy.

The Department of Homeland Security made the announcement Thursday, ending months of negotiations in which the Trump administration reportedly sought to convince Mexico to provide shelter for migrants while their U.S. asylum cases are processed. The move is the latest among a series of hardline immigration policies pursued by the Trump administration, and will undoubtedly prompt lawsuits from opponents seeking to stop its implementation.

On Thursday, Department of Homeland Security Secretary Kirstjen Nielsen argued at a House Judiciary Committee hearing that U.S. immigration laws are “outdated” and allow migrants to wait in the country for months or years as their asylum claims are processed.

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Thursday’s announcement will stop migrants from disappearing into the U.S., Nielsen said.

“They will have to wait for approval to come into the United States,” she said. “If they are granted asylum by a U.S. judge, they will be welcomed into America. If they are not, they will be removed to their home countries.”

Here’s what we know — and don’t know — about the policy change, which could affect the tens of thousands of asylum seekers that arrive at the border each year.

What does the policy actually do?

The policy, which is being called “Migration Protection Protocols,” effectively bars migrants who are seeking asylum from entering the U.S.

Historically, U.S. immigration laws have allowed asylum-seekers, often fleeing persecution in their home countries, to stay in the U.S. if they passed an initial “credible fear” interview. Waiting for a judge’s final decision on their asylum claim can take months or even years, due to a backlog in immigration cases.

Under the new policy, asylum seekers will now have to wait on the other side of the border, in Mexico, while waiting a decision on their claim. There are many questions, however, on how exactly this change will be implemented.

In a statement Thursday, DHS laid out a short overview on how the process would work:

  • Migrants seeking protection in the U.S. will no longer be released into the country after their “credible fear” interview is conducted.
  • Claims will be processed by a DHS agent, after which asylum seekers will be given a “Notice to Appear” document for their immigration court hearing. It’s not clear if the claims will be processed in Mexico, which would be a change in procedure.
  • DHS said, without giving additional information, that migrants will have access to immigration attorneys and be allowed to enter the U.S. for their court hearings.
  • Migrants whose asylum claims are approved by a U.S. judge would then be allowed into the U.S. If the claim is rejected, they would then be deported.

There are many details about the policy that still need to be sussed out.

The Trump administration did not issue a formal notification outlining how the change is going to be implemented, said Theresa Cardinal Brown, a former Department of Homeland Security adviser.

The announcement came from Secretary Nielsen’s office, but normally U.S. Customs and Border Protection would also have to issue a plan or memo detailing how it plans to carry out a new policy, Brown said.

In a media call with reporters, DHS officials said the plan would be implemented gradually.

It does not appear that the policy would apply to Mexicans seeking asylum in the U.S. from Mexico, and it also appeared it would not affect unaccompanied minors. There’s also a separate process on how unaccompanied minors are treated once they arrive at the border alone.

What is the U.S. government’s justification for the move?

Trump administration officials have often cited “loopholes” in the U.S. immigration system that they say allow migrants to exploit the law and remain in the country for long periods of time. At the hearing Thursday, Nielsen reiterated the administration’s claims that some migrants seek entry into the U.S. because they’re told that they could be released into the U.S. if they claim asylum.

“All too frequently, if they say the magic words, they get a free pass into America,” Nielsen told House members.

In a separate statement, Nielsen said the number of false asylum claims would decline as the new policy is implemented because it would remove a key incentive for those attempting to fraud the U.S. system.

The Trump administration also pointed to a spike in the number of migrants filing asylum claims. Federal data shows that 92,959 migrants filed for asylum this fiscal year, a 67 percent increase from fiscal year 2017.

The numbers reflect how many migrants made “credible fear” claims — the first step in pursuing asylum. But it does not necessarily mean there’s rampant fraud among those 100,000 cases, and the administration’s claims of fraud aren’t an accurate way to describe what’s happening at the border, Brown and other experts said.

“‘Fraud is a very specific term,” Brown said. “Fraud happens when someone knowingly puts in an asylum claim while knowing they don’t have eligibility. Most people in this position have no clue and are not trying to commit fraud. [They’re] just seeking protection.”

The Trump administration has pointed out that roughly nine out of 10 asylum claims are denied. But that percentage drops dramatically when individuals have access to an attorney, said John Sandweg, a former acting director of U.S. Immigration and Customs Enforcement.

“These people who are fleeing violence, who don’t know how to speak English or even Spanish, they don’t know the legal situation,” Sandweg said, adding that some migrants are indigenous as well. “Of course it will be hard for them to adequately present their case.”

Sandweg said that there are some migrants who are likely trying to take advantage of the system — he does not disagree with the administration on that point — but added that he wouldn’t describe that strategy as a “loophole” either.

His solution: dedicating additional resources (such as increasing the number of judges) to process asylum claims more quickly. This could shorten the wait to six months, rather than a year or more.

How has Mexico agreed to help?

Mexico and the U.S. had been negotiating a plan like this for some time. The Washington Post reported in November that the agreement’s working name was the “Remain in Mexico” plan.

After the Post’s report, Mexican officials for incoming administration of Andres Manuel Lopez Obrador, who was sworn in as president this month, said there was no deal, but didn’t deny that negotiations were taking place.

At Thursday’s House hearing, Nielsen said Mexico had agreed to provide “essential measures” on its side of the border, including humanitarian assistance, to help implement the new policy. Nielsen added that the Mexican government would offer migrants humanitarian visas that would allow them to stay in Mexico while their cases are process in the U.S. They would also be given the ability to apply to work in Mexico while they wait, she said.

The U.S. and Mexico are working to “ensure the implementation of our decision in a way that’s transparent, effective and ensures a safe and orderly flow,” Nielsen said

But, there appeared to be some murkiness over how much Mexico intends to support the U.S. decision.

The Mexican government said in a statement that it had agreed to the plan for humanitarian reasons and on a temporary basis.

But Alejandro Alday, a legal adviser for the Mexican foreign ministry, said Mexico was reacting to a “unilateral” decision made by the U.S., The Wall Street Journal reported.

“This unilateral measure puts [the migrants] in a situation of enormous vulnerability and the Mexican government is seeking to protect their human rights,” he said.

According to a Reuters reporter, there seemed to be some initial confusion among Mexican officials over the country’s involvement in the policy.

What happens now?

As has been the case with many of the Trump administration’s immigration policies, the asylum change will likely face swift legal opposition.

Sandweg said there was a strong likelihood that multiple complaints would be brought by various plaintiffs, in part because of due process concerns and the many unresolved legal questions about the policy and how it’s being implemented. For instance, there are due process issues, such as questions around the manner in which this was implemented as well as the migrants’ ability to prepare their case from Mexico.

Immigration advocates have questioned the policy’s legality and said it could put migrants in danger. Days ago, two Honduran teenagers were killed outside their shelter in Tijuana. Members of the migrant caravan that arrived to the Mexican city in recent weeks, they had been waiting for their chance to apply for asylum in the U.S.

READ MORE: What changes to this fingerprinting rule could mean for migrant children in U.S. custody

The PBS NewsHour’s Geoffrey Guray and Saher Khan contributed to this story.