WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Santiago Billy)

26 Aug 2021 | WOLA Statement

‘Remain in Mexico’ Court Battle Underscores the Need to Build a Fair Asylum System

On August 13, a federal court in Texas ordered the Department of Homeland Security (DHS) to “enforce and implement” a Trump administration policy that caused an unparalleled humanitarian disaster at the U.S.-Mexico border: the “Remain in Mexico” program.

Also known as the so-called “Migrant Protection Protocols,” the reinstatement of “Remain in Mexico” would mean a return to an inhumane and unlawful policy that saw 71,038 asylum seekers forced to wait for their U.S. immigration court hearings in Mexico. Not only did “Remain in Mexico” spur the creation of unprecedented encampments—with deeply unsanitary and unsafe living conditions—in Mexican border cities, the policy delivered asylum seekers back to danger at the hands of criminal actors, with over 1,500 reported cases of rape, kidnapping, torture, and other crimes against those subjected to the program.

If their cases even reached U.S. immigration court, difficult access to counsel and rushed, often virtual procedures made asylum all but impossible to obtain: of the more than 15,000 closed cases for which asylum seekers attended all their hearings while remaining in Mexico, only 720—4.7 percent—were granted any form of relief from deportation. (The immigration system’s overall rate of relief grants was 28.4 percent in 2020.)

By winding down “Remain in Mexico,” the Biden administration took an important step towards healing the Trump administration’s decimation of asylum—even as access to asylum at the U.S.-Mexico border is nowhere close to being restored. In what is encouraging progress, so far in 2021 an estimated 13,000 victims of “Remain in Mexico” have been able to enter the United States and pursue their asylum claims, in accordance with U.S. and international law. 

However, on August 24, the U.S. Supreme Court ruled against issuing a stay on the lower court’s order to reinstate “Remain in Mexico.” DHS has said it will “continue to vigorously challenge” the lower court’s ruling, including through a formal appeal. Additionally, one possible path forward, as noted by the American Civil Liberties Union (ACLU), is that DHS issue a new order that re-terminates “Remain in Mexico,” with an expanded explanation of the reasons for ending the program.

The cruel and unlawful “Remain in Mexico” program is a horrific legacy of the Trump administration. When it was first enacted, the Mexican government expressed its disagreement with the unilateral measure implemented by the Trump administration but committed to receiving people under the program for humanitarian reasons. Now, regardless of the ongoing court battle over reinstating this disastrous policy, the López Obrador administration should not collaborate in re-implementing it in Mexico. As noted in an August 23 letter to the Mexican government from over 70 civil society groups, “It is impossible to re-implement [the Migration Protection Protocols, or MPP] in a way that upholds human rights and due process, and Mexico has the responsibility to block this detrimental policy.” 

The wrangling in the courts over “Remain in Mexico” is just one expression of a larger problem: the U.S. government’s failure to respect the right to seek asylum at its southern border. High levels of migration are the new reality at the U.S.-Mexico border, including many fleeing violence and persecution in their home countries; to best meet this moment, the Biden administration needs to build a system that’s prepared to process large numbers of migrants and asylum seekers fairly and efficiently. But while the “Remain in Mexico” wind-down was urgently needed to restore a small measure of asylum access at the border, other Biden administration policies continue to take the U.S. asylum system in the wrong direction. 

Alarmingly, while the administration is developing regional strategies to increase access to protection and address the the drivers of migration, border policies under Biden are frequently manifesting the same spirit that drove Trumpian horrors like “Remain in Mexico”: the emphasis is not on guaranteeing the legal right to seek asylum, but on supposed deterrence measures that violate human rights and needlessly endanger those seeking protection. 

The administration continues to maintain “Title 42,” another Trump-era policy which—like “Remain in Mexico”—is a flagrant violation of the right to seek asylum. Between February 1 and July 31, citing the pandemic, DHS swiftly expelled 76,384 parents and children, mostly into Mexico, without even offering a chance to ask for protection in the United States. Many are marooned in Mexican border cities, like the 5,000 now crowded into a park in the organized crime-ridden town of Reynosa, and at least 500 have been flown to a very remote part of the Mexico-Guatemala border and pushed into Guatemala. In addition to expulsion flights, the Biden administration is using expedited removals.

These are expressions of a deterrence-based approach to migration, where the focus is not on upholding asylum rights at a time of mass displacement, but on treating asylum seekers harshly and denying them protection—in the face of extensive evidence that crackdowns and cruelty do not work in reducing migration long-term

DHS should pursue every legal avenue in forcefully challenging the attempt to reinstate Trump’s so-called “Migrant Protection Protocols.” But in addition, the Biden administration needs to fully dismantle the remaining Trump-era migration policies—like Title 42—and replace them with an asylum system that offers due process to those fleeing their homes in search of protection.