The Biden administration is facing withering criticism for resurrecting a Trump-era immigration policy that requires asylum seekers to wait in Mexico while their legal cases unfold in the United States.
After being sued by the states of Texas and Missouri, President Joe Biden restarted the Migrant Protection Protocols on Dec. 6. His Jan. 20 cancellation of the policy — also known as the Remain in Mexico program — was ruled improper by a Texas federal judge in August.
Refugee advocates have complained that the White House did not do enough to counter the court ruling that appeared to draw on a legal technicality to require reinstatement of the controversial policy created by the Trump administration in 2019.
“This administration says that it is in a battle for the soul of America — that’s true at the border as well. How the administration chooses to meet this moment — that is how it chooses to respond to the arrival of families and people seeking safety in our country — will define its legacy,” said Ursela Ojeda, senior policy advisor at the Women’s Refugee Commission.
Ojeda pleaded with the president to choose humanity and due process over cruelty and deterrence. “We urge in the strongest possible terms for the administration to change course from continuing and expanding the harmful policies of its predecessor. It must focus on restoring access to a safe, just and humane asylum process, one that welcomes with dignity rather than blocking, expelling, or subjecting those seeking safety to harm.”
During Trump’s presidency, the policy targeted immigrants from Spanish-speaking nations. Biden has widened the program to include Haitian and other asylum seekers.
“The Biden administration has made a deliberate choice to expand the Remain in Mexico program to apply to nationals of any country in the Western Hemisphere, including nationals of Haiti, Jamaica and Brazil, among others — despite knowing that Black asylum seekers are particularly at risk of violence in Mexican border areas,” said Karen Tumlin, founder and director of Justice Action Center.
Tumlin also decried the administration’s continued use of Title 42, a previously obscure federal health code provision invoked by the Trump administration to further limit immigration during the COVID-19 pandemic.
“The courts did not force this. This is anti-Blackness. For the first time, we will see the combined effect of a policy of Title 42 and Remain in Mexico,” Tumlin added. “The result is a total asylum shutdown under a president who pledged to end MPP and restore a welcoming asylum system.”
Before Remain in Mexico originally went into effect, asylum seekers who crossed into the United States were permitted under federal law and international treaty to remain in the country while their eligibility for legal protection was determined in court.
But since the protocols were enacted in 2019, the American Immigration Council said that close to 70,000 migrants were returned to Mexico, exposing many of them to poverty and harsh living conditions in makeshift refugee camps and to extortion and violence at the hands of drug cartels.
The council also reports that well under 10% of refugees subjected to the protocols through the end of 2020 were able to secure representation for U.S. court hearings.
“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,” its report states.
As a result, few migrants returned to Mexico under the program have received shelter in the U.S.
“By December 2020, of the 42,012 MPP cases that had been completed, only 521 people were granted relief in immigration court.”
“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,” the report explained. “By December 2020, of the 42,012 MPP cases that had been completed, only 521 people were granted relief in immigration court.”
The Department of Homeland Security announced Dec. 2 that Mexico has agreed to receive migrants returned by the U.S. and that the returns will occur at seven ports of entry including the Texas cities of El Paso, Laredo and Brownsville and in San Diego, Calif.
“The U.S. government will work closely with the government of Mexico to ensure that there are safe and secure shelters available for those enrolled in MPP; that individuals returned under MPP have secure transportation to and from U.S. ports of entry; and that MPP enrollees are able to seek work permits, healthcare, and other services in Mexico,” DHS officials said.
But even the federal statement acknowledged the dangers of the protocols: “Secretary of Homeland Security Alejandro N. 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.”
Immigration advocates, including Catholic Bishop Mark J. Seitz of El Paso, Texas, have not been placated by the deal with Mexico.
“The so-called Migrant Protection Protocols are a lie on multiple levels that sadly is being carried over from the Trump administration to the Biden administration. It is a glaring example of government doublespeak and an obfuscation of the truth,” Seitz said in a statement released by the Catholic Legal Immigration Network.
“It is a glaring example of government doublespeak and an obfuscation of the truth.”
Seitz, who serves as CLINIC board vice president, added that the policy is not only heartless but also illegal because it denies access to the U.S. during the asylum process.
“The name itself is a lie. It has nothing to do with the protection of migrants, and it places families in dangerous situations among communities that are already suffering from a lack of resources,” he asserted.
CLINIC Executive Director Anna Gallagher said the implementation of MPP “is a stain on our nation. It is a dangerous and deadly policy. As happened during its prior implementation, vulnerable men, women and children will suffer denigration, disrespect, assaults, rapes and murders. It is inhumane, unjust and violates our obligations under our own legal system and international refugee law.”
She also appealed to Biden to filter immigration policy through his faith. “Mr. President, we implore you to follow the Catholic values that form the foundation of your lifelong public leadership of our country. It is time to draw on those values and prioritize the lives of the suffering men, women and children waiting at our border over politics. It is time that you do what is humane and stop MPP.”
Civil rights groups including the ACLU contend there is a way for the Biden administration to end Remain in Mexico once and for all — despite the legal challenges — and are dismayed that these steps are not being taken.
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