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The Biden administration will restart the “Remain in Mexico” program, which obligates asylum seekers to wait in Mexico while their immigration court cases unfold, as soon as next Monday, according to an announcement Thursday from the federal government.
The reimplementation goes beyond what was recently ordered by a federal judge and includes an expansion of the program to any nationality from the western hemisphere. Under the Trump administration, the program — which began in 2019 and was known officially as “Migrant Protection Protocols,” or MPP — was restricted to people from Spanish-speaking countries and Brazil, where Portuguese is the dominant language.
The largest group likely to be affected by the change is Haitian migrants, who have found themselves targeted by immigration enforcement in Mexico and the United States this year.
“We’ve obviously lost the battle on MPP, and now they are restarting this, creating this environment where people’s lives will continue to be at risk — not that they care about those people to begin with,” said Guerline Jozef of Haitian Bridge Alliance, which aids migrants, particularly Black migrants, in Mexico and at the U.S. border.
The initial version of the program dramatically changed procedures for asylum screening in the United States. That screening process determines whether migrants who are afraid to return to their home countries are refugees based on international definitions adopted into U.S. law.
It is still unclear where the rollout will begin on Monday, but the Department of Homeland Security said that San Diego and Calexico will be among the places where people will be returned to wait as the program resumes.
The policy has been widely condemned by immigration attorneys, human rights observers and the U.N. refugee agency.
“UNHCR has from the start expressed its serious concerns about the MPP and its impact on asylum-seekers’ safety and their due process rights. The announced adjustments to the policy are not sufficient to address these fundamental concerns,” said Matthew Reynolds, the U.N. High Commissioner for Refugees representative for the United States and the Caribbean.
“UNHCR was never involved in implementing MPP and will not be supporting the reinstated policy. We supported the U.S. government’s work earlier this year to end the MPP program and urge the United States to continue to follow through with those efforts.”
President Joe Biden himself criticized the program extensively on the campaign trail, and his administration attempted to wind down Remain in Mexico in his early days in office. But the states of Texas and Missouri challenged the administration in federal court, where a judge ordered that the program be reinstated.
“MPP had endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and did not address the root causes of irregular migration,” Alejandro Mayorkas, the homeland security secretary, said in October. “MPP not only undercuts the administration’s ability to implement critically needed and foundational changes to the immigration system, it fails to provide the fair process and humanitarian protections that individuals deserve under the law.”
Though the administration has appealed the decision and reissued a memorandum ending the program, it has in the meantime worked to negotiate with Mexico to restart MPP.
“This administration … remains under a court order requiring it to reimplement MPP in good faith, which it will abide by even as it continues to vigorously contest the ruling,” DHS said Thursday in announcing the restart.
But many advocates say the fact that the administration is expanding the program beyond its scope under former President Donald Trump shows it is using the court order as a cover to go back on its promises to get rid of the program and to create a more humane asylum processing system.
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“The expansion of Remain in Mexico or MPP to include nationalities from the entire western hemisphere flies in the face of the administration’s promises to terminate MPP,” said Kate Clark of Jewish Family Service, which has provided legal support to asylum seekers stuck in Mexico.
Proponents for strategies like Remain in Mexico see them as deterrence measures to keep migrants from making the journey to the U.S. border. The United States has a long history of using such measures on its southern border to try to keep people out.
Some point to a downward trend in apprehensions by Border Patrol in the months after the program was fully implemented as a sign that it was having its intended effect. But it is difficult to tell whether that was just part of the normal seasonal trend, because the pandemic disrupted springtime migration the following year.
Some migrants felt their only option under the program was to try to sneak into the United States undetected rather than request asylum. The San Diego Union-Tribune has interviewed migrants who were placed in the program and are now living as undocumented immigrants inside the U.S.
The restart announcement comes after Mexico last week published a list of conditions that the United States would have to meet before it would agree to accept asylum seekers returned to its soil under the program. Mexico said Thursday that the U.S. had addressed all of its concerns, chief of which were financial support for shelters, COVID-19 precautions and measures to take into account security concerns and shelter capacity in the border region.
DHS deferred to the State Department questions about how much funding is going to Mexican shelters or how that funding will be delivered. The State Department did not respond to questions sent by the Union-Tribune.
Returnees will be provided COVID-19 vaccines, DHS said, and vaccination will be required for them to reenter the United States to attend their court hearings.
Questions about the safety of MPP returnees linger for many advocates who witnessed the program’s first iteration.
Human Rights First gathered information about more than 1,500 violent attacks, including rapes and kidnappings, against people enrolled in the program while they were in Mexico. The organization also documented more than 6,300 such attacks against migrants stuck in Mexico under another Trump-era program that the Biden administration has kept in place and defended as necessary during the pandemic, known as Title 42. That program allows border officials to expel migrants to Mexico or their home countries without offering them access to asylum screenings.
Guidance from DHS says that under MPP’s reboot, the department will coordinate with the State Department and with the Mexican government to provide transportation and shelter to people enrolled in the program. DHS told the Union-Tribune that the Mexican government has committed to providing security for those transports and will enhance shelter security.
Diego Aranda-Texeira of Al Otro Lado, a legal services organization that supports asylum seekers in Tijuana, was skeptical about Mexico’s ability to shelter more arrivals given how many are already waiting in the region because of Title 42 or the previous version of MPP.
“It’s not like northern Mexico is now empty,” Aranda-Texeira said. “Things are already full. We’re just going to keep accumulating more and more people.”
The new guidance on the program also enumerates situations that border officials can consider when deciding whether someone should be exempt. Those include people with mental or physical health issues, older migrants and people at risk of harm in Mexico because of their gender identity or sexual orientation.
“Each assessment will be made on a case-by-case basis, based on the totality of the circumstances,” the guidance says.
That phrase worries Aranda-Texeira. He believes, based on his organization’s previous experiences with the program, that it will allow border officials to return people in those categories anyway.
“These are not the kinder immigration policies we were promised last year during the election,” Aranda-Texeira said. “This is just Trump with a smile. It’s going to harm people.”
The guidance also changes the legal standard that returnees will have to meet in order to prove that they are in danger in Mexico and should not be forced to stay there.
But for many who supported asylum seekers through the last round of MPP, that change misses the point.
Asylum seekers have to wait in custody at the border to speak with asylum officers about their experiences in Mexico. Detention conditions, combined with the effects of trauma from their pasts, make it difficult for them to explain the parts of their stories that are relevant to the legal standard, said Margaret Cargioli of Immigrant Defenders Law Center.
Kelly Overton, whose organization Border Kindness initially came to Mexicali to help MPP returnees get to the Tijuana border for their court dates in San Diego, said he fears that the Biden administration’s decision will shape U.S. asylum policy for decades.
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