Caught in the Middle
The Biden administration reached an agreement with Mexico last week to resume a Trump-era immigration policy known as “Remain in Mexico”. The policy requires the migrants return back to their home country while their asylum claims are considered.
In 2019 former President Donald Trump introduced this policy called the Migrant Protection Protocols to protect against the volume of Central American families trying to cross the U.S. border from Mexico. After the policy was introduced, surveys reported that border crossings had fallen sharply, however many human rights groups and internal reports from the Department of Homeland Security reported that the immigrants sent back to Mexico faced a range of serious dangers including assault, kidnapping and murder. These migrants were targeted as a result of their desire to immigrate from their home countries.
During his 2020 campaign, President Biden called the policy both dangerous and inhumane. Migrants and human rights groups welcomed his vow to eliminate this policy. In office, he canceled the Migrant Protection Protocols responding to criticism that it forced vulnerable migrants to wait out their cases in violent border cities.
Unfortunately, the administration is now in the process of restarting the policy to comply with an order by a federal court in Texas that claimed eliminating the program is unlawful. The lower court found the administration failed to follow proper procedures in ending the policy and that the alternative of paroling into the U.S. asylum applicants en-masse may violate federal law.
The program will exist alongside Title 42, a separate Trump-era public-health policy the Biden administration has continued to implement, allowing the government to quickly expel migrants back to Mexico—or to put them on deportation flights to their home countries—without a chance to ask for asylum. U.S. officials said they would give priority to Title 42 and will only place migrants into the Remain in Mexico program if they can’t be expelled using the public-health authority.
The issue is polarizing. On the one side, Republicans complain that Biden, isn’t doing enough to secure the border to decrease illegal border crossings. U.S. Customs and Border Protection reported an estimated 1.66 million arrests of migrants crossing the U.S.-Mexico border illegally in the 2021 fiscal year. This is the highest annual number ever recorded (1). They argue that Remain in Mexico is necessary because it cut much of the incentive to migrate, as migrants making asylum claims are not allowed to live and work in the U.S. while they wait for their cases to be resolved, a process that routinely takes years.
At the other end of the spectrum, progressive Democrats and immigration activists are frustrated by the administration’s continuation of Trump immigration policies.
With the re-enstatement, the Biden administration claims they have made changes to make it safer for migrants. Migrants will be given time to consult with U.S.-based lawyers before being sent back to Mexico. They will also receive screenings to ensure they don’t have a “reasonable fear” of returning to the country. The categories of migrants exempted from the program will also be expanded to include elderly migrants, those with physical or mental disabilities and lesbian, gay, bisexual and transgender migrants, who could face discrimination in Mexico. In addition, adults will also be given the Johnson & Johnson Covid-19 vaccine, and children the Pfizer vaccine, with a second dose administered at one of their court hearings.
I believe it is very important for the US Department of Homeland Security to commit to resolving asylum cases of migrants placed into the program as quickly as possible. They should also provide shelter and safe transport to and from U.S. court hearings. Because port cities are often very dangerous, migrants waiting for their cases to be resolved should be returned to interior cities that are safer.
In my opinion, it seems the administration is both attempting to reinstating the program with modifications and also is fighting it in court to terminate it. This dual approach reflects deep internal divisions throughout the administration on the direction of its immigration policy.
In a statement, a DHS spokesman noted that Homeland Security Secretary Alejandro Mayorkas “has repeatedly stated that MPP has endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration.” (2)
The administration will definitely face some practical challenges in its implementation of Remain in Mexico. Earlier this fall, the administration attempted to enlist the help of pro-bono legal aid organizations to provide legal services to the migrants under the program, all of whom need to quickly put together their asylum cases. But most of the organizations have declined to participate, in one meeting even staging a virtual walkout on the Biden administration to protest the restart of the program.
Under the Trump administration, less than 1% of migrants placed into Remain in Mexico won their asylum cases, far lower than average rates. Representation rates for the 70,000 people subjected to MPP were exceedingly low. Data suggests that just 7.5% of individuals subject to MPP ever managed to hire a lawyer, though the true representation rate may be even lower because that number includes individuals who were initially placed into MPP and then were later taken out of the program and allowed to enter the United States.
The lack of counsel, combined with the danger and insecurity that individuals face in border towns, made it nearly impossible for anyone subject to MPP to successfully win asylum. By December 2020, of the 42,012 MPP cases that had been completed, only 521 people were granted relief in immigration court. (3).
While the case proceeds through the appeal process, the fate of tens of thousands of people subject to Migrant Protection Protocols who are still in Mexico remains in limbo.
1. U.S., Mexico to Revive Trump Asylum Policy. Michelle Hackman. December 3, 2021
2. DHS Issues ~ A New Memo to Terminate MPP. Department of Homeland Security. October 29, 2021
3. Migrant Protection Protocols. American Immigration Council. October 6, 2021