The Biden administration announced today that it intends to reinstate a Trump-era border policy next month to satisfy a judge's order, pending approval from the Mexican government. That policy, known formally as "Migrant Protection Protocols" (MPP) and informally as "Remain in Mexico," forced asylum seekers to wait in often dangerous conditions across the border until their U.S. immigration court hearings.
Enforcement of the policy saw 70,000 asylum seekers relegated to Mexico, including at least 16,000 children. Tent camps popped up in border towns, which quickly turned violent and put migrants in grave danger. Human Rights First, an advocacy organization, reports that forced returns to Mexico resulted in "at least 1,544 publicly reported cases of murder, rape, torture, kidnapping & other violent assaults" as of February 19, 2021.
Under domestic and international law, all migrants who present themselves on U.S. soil or at American ports of entry are eligible to make asylum claims. Eligibility for asylum depends on a migrant's ability to prove that he has been persecuted on the grounds of race, religion, nationality, membership in a certain social group, or political opinion.
As such, migrants arriving at the U.S.-Mexico border are often fleeing danger. Even so, the Trump administration and its Remain in Mexico policy forced these migrants to await their immigration court hearings in a region of Mexico that the State Department then gave the same danger assessment as Afghanistan, Iraq, and Syria.
While running against Trump, President Joe Biden criticized the policy on the campaign trail and promised to rescind it upon taking office. Secretary of Homeland Security Alejandro Mayorkas ended the policy in June, citing its "mixed effectiveness." But Texas and Missouri filed a lawsuit against the repeal. A federal judge ruled in their favor, and despite a Department of Homeland Security appeal, ordered the administration to resume the program "in good faith."
Despite Biden's stated opposition to this specific border policy, it's important to remember that his approach to immigration has not lived up to his campaign promises. Most notably, Biden has upheld the Trump administration's Title 42 policy. That measure allows Customs and Border Protection (CBP) to expel migrants under the guise of public health, though Centers for Disease Control and Prevention officials and immigration advocates alike have questioned the efficacy and legality of such an approach. As of July 2021, more than 1 million migrants had been expelled under the order.
Remain in Mexico and Title 42 have much in common. The Mexican government accepted migrants under Remain in Mexico on the condition that they have future court dates scheduled. However, The San Diego Union-Tribune found that CBP agents were assigning migrants fake court dates. Though Title 42 may sound more punitive in that it authorizes expulsion without a future asylum hearing, phantom appointments given under Remain in Mexico made the "wait" there more like expulsion for many.
Biden's continuation of Title 42 aside, immigration advocates have criticized the administration for waiting too long to issue a new memo rescinding Remain in Mexico. "The Biden administration has had nearly two months to issue a new memo that addresses the district court's concerns and formally terminate the MPP program for good," said Jorge Loweree, policy director at the American Immigration Council, in a press release.
"The fact that it has not done so and is instead moving forward with plans to restart the program in November is a betrayal of the president's campaign promises and a clear sign that this administration is failing to reenvision border management and the way that we treat people who are seeking protection in the United States," Loweree continued.
Now, migrants will face the double whammy of Title 42 and Remain in Mexico. It's not yet clear which nationalities will be subject to Remain in Mexico, which, under Trump, largely targeted people from Spanish-speaking countries. But whatever the particulars, reinstating the policy will put migrants at risk and further corrupt U.S. asylum policy.