Since the Russian invasion of Ukraine, millions of Americans have commiserated with the plight of Ukrainian refugees who are being forced to flee their country. But many of these same Americans remain oblivious or unsympathetic to the continuing horrors faced by the refugees arriving at their own shores. In December 2021, the Biden administration announced that it would be relaunching the Migrant Protection Protocols (MPP), best known as the Remain in Mexico policy. This policy, which began in 2019 under the Trump administration, allowed U.S. authorities to send asylum seekers to wait out the duration of their U.S. immigration proceedings on the Mexican side of the border.
The Biden administration explained the policy’s reinstatement by citing a Texas district court decision that ordered the government to “reinstate MPP in good faith.” But the Biden administration went beyond reinstating the existing policy: it expanded the program to include migrants from Haiti and other parts of the Caribbean, as well as the Mexican and Central American asylum seekers to whom it initially applied. The Biden administration has also continued to enforce Title 42, an obscure public health law that the Trump administration used to allow U.S. officials to summarily expel migrants without providing them the opportunity to seek asylum in the United States. Although Biden’s rhetoric on immigrants is unquestionably different than Trump’s, his policy is similar to that of his predecessor, and is based on a strategy with roots in a deeper history of U.S. immigration policy.
The Trump administration designed the MPP to offshore U.S. immigration enforcement practices south of the border. During its two years in operation, the program forced nearly 70,000 asylum seekers to wait out their claims to U.S. asylum in Mexico, where they were subjected to terrible human rights violations including physical and sexual abuse, extortion, and murder. The MPP thus made Mexico responsible for U.S. immigration interests. But Washington’s practice of exporting immigration control policies is nothing new, nor is Trump much of an outlier: U.S officials have been forcing Mexico to do its dirty immigration work for decades, and the Biden administration is no different.
Although Trump was especially flagrant in his assaults on immigrants and in his indifference toward their welfare, his policies were merely a continuation of a long tradition of Washington outsourcing immigration enforcement to Mexico. The American public’s willingness to overlook what happens outside of the United States makes it efficient for the U.S. government to export its immigration control policies—and the concomitant abuses that result from them—in order to avoid domestic backlash.
The reception to Trump’s policies, however, proved distinct. His stance on immigration was so overtly cruel, racist, and xenophobic that it spurred millions of Americans to take note of his approach and protest vocally. U.S. officials and public figures, including many Democratic challengers in the 2020 presidential election, trumpeted the horror of Trump’s immigration tactics—for example, his family separation policy—to gain supporters. Biden’s backers pilloried Trump for his callous approach on immigration and lauded their candidate’s pledges to dismantle Trump’s policies by reunifying separated families and ending the MPP. Now that a Democrat is in the White House, however, many of those same advocates, media commentators, and ordinary Americans who are broadly aligned with Biden’s agenda have fallen silent as it has become politically inconvenient to make a fuss. Meanwhile, conditions on the ground remain largely the same for the record numbers of migrants seeking asylum in the United States while being forced to wait in Mexico. But Biden’s team is betting, it seems, that it can keep the worst of the immigration crisis confined to Mexico and that the U.S. public will continue to ignore the problem, as it long has.
The United States has a long tradition of using its southern neighbor as an immigration buffer zone. U.S. officials first pressured the Mexican government to curtail migration from Central America in the early 1980s, when civil war erupted throughout the region and thousands traveled north to escape violence and socioeconomic collapse. These same officials had first tried to prevent this wave of migration by deporting Central Americans once they arrived in the United States—but the strategy proved politically costly when nonprofit and religious organizations accused the government of violating refugees’ civil and human rights. Several U.S. politicians expressed similar views: Mickey Leland, a Democratic representative from Texas, reported to Congress that some law enforcement officers in his home state were “terribly abusive” toward migrants, which made him “very fearful about the violation of human rights and human dignity” should the federal government seek to further penalize those crossing the border.
In the face of such domestic opposition, policymakers came up with another solution: compelling the Mexican government to stop Central American migrants before they reached the U.S.-Mexico border. It went unspoken that this would ensure any human rights violations against refugees would happen in Mexico and that the United States government would not be responsible for their care—nor accountable for their mistreatment. The U.S. government had a valuable bargaining chip that it could wield to pressure Mexican officials into limiting the flow of Central American migrants: control over Mexicans’ own migration to the United States. Since the late 1970s, the Mexican government had understood that its citizens’ emigration to the United States helped reduce high domestic rates of unemployment and underemployment. In 1979, for instance, Mexico’s secretary of foreign affairs, Jorge Castañeda y Álvarez de la Rosa, told U.S. officials that the “800,000 Mexicans [who managed] to cross the border annually and stay in the United States at least for a temporary job” helped to “partially solve the problem of unemployment in Mexico.”
With this information in hand, throughout 1983 and 1984, U.S. Secretary of State George Shultz persuaded Mexican authorities to enter a Faustian bargain. If Central Americans kept arriving in the United States, Shultz told Mexican leaders, the U.S. government would respond by fortifying its southern border—which would also affect Mexican citizens trying to enter the United States illegally. Shultz’s Mexican counterpart replied by urging the United States to make “a clear distinction between [Mexican] migrants and [Central American] refugees” but also assured him that Mexican authorities were willing to “help solve the [Central American refugee] problem as best they could.”
Mexico’s decision to enforce U.S. immigration interests domestically effectively meant giving up its own territorial sovereignty, or its authority to control who entered the country. But officials felt they had little choice in the face of threats to cut off migration from Mexico, particularly in the wake of the debt crisis of 1982 and the recession that followed. After these meetings with Shultz, the Mexican government began policing Central Americans’ routes north much more heavily. As the years passed and Washington continued to insist that Mexico stop transmigration, Mexico often deported more Central Americans than did the United States. In 1989, for instance, Mexico deported 14,000 Central Americans while the United States deported 12,133.
Mexico’s efforts to stem the flow of migrants from Central America by more heavily patrolling the routes north forced Central Americans to traverse more dangerous terrain and to depend on smugglers to hide them, which subjected them to exponentially more human rights abuses. Given migrants’ physical vulnerability, their lack of documentation, and their reluctance to seek official help, many Mexican citizens and state officials came to see Central Americans as easy targets to rob, sexually abuse, and extort. Even though the vast majority of these crimes went unreported, those that were included accounts of robbery, assault, torture, and murder. U.S. officials remained silent on this issue, the media barely reported on it, and few U.S. citizens ever heard about it.
The administrations of President Bill Clinton and President George W. Bush continued to pressure Mexico’s leaders to take responsibility for curtailing Central American migration. In 1999, for instance, the United States government insisted that it should deploy U.S. immigration officials as advisers along Mexico’s southern border to prevent Central Americans from making their way into the country. Later, in 2006, U.S. Secretary of State Condoleezza Rice asserted that “Mexico […] recognizes its responsibility to control illegal access to its southern border.” During these years, Mexico regularly deported more Central American migrants than did the United States.
Nonetheless, well into the Obama administration, most Americans remained unaware of the pressure their government placed on Mexico to stop Central American migration or of the terrible human rights abuses that were occurring as a result. With few objections from its citizens, Washington continued to offshore U.S. immigration enforcement practices to Mexico. In 2014, for example, as the number of unaccompanied minors arriving to the United States from the Northern Triangle swelled, the Obama administration insisted that Mexican officials keep the flow of migrants under control. Given Mexico’s economic dependence on the United States, the Mexican government abided. That year, Mexico implemented the so-called Programa Frontera Sur to fortify its southern border by tightening security in Mexico’s ports of entry with Guatemala and Belize and by increasing surveillance across migration routes. The United States contributed millions of dollars’ worth of mobile security and surveillance equipment. But this effort was to relatively little avail: Central American migrants, driven by worsening political violence and socioeconomic instability, kept coming north.
In light of this history, some of the cruelest immigration policies instituted by the Trump administration seem less like an aberration and more like a set of existing practices taken to extremes. As Mexico proved unable to block migration to the United States, Trump took matters into his own hands with a new measure known as “family separation.” In May 2018, his administration announced a zero-tolerance policy under which all migrants who crossed the border without permission would be prosecuted. Because adult migrants were to be imprisoned, any minors who were accompanying them would be taken away and sent to a shelter run by the Office of Refugee Resettlement.
The policy set off a political firestorm: within weeks, stories of children being ripped from their parents’ arms were front-page news, and activists were spilling into the streets, organizing over 600 marches nationwide. By June 2018, under mounting pressure from an irate public and from within his own party, Trump signed an executive order directing the Department of Homeland Security to stop separating families.
In the wake of this botched and deeply unpopular attempt to deter migrants within the United States, Trump turned to Mexico to stop migration as previous administrations had—but in a novel and more explicit way, by instituting the MPP in January 2019. Mexican officials couldn’t stop it but emphasized that the decision had been made “unilaterally.” Trump coerced Mexico into cooperating by threatening to impose a tariff of up to 25 percent on all Mexican imports if Mexico did not help stem the flow of migrants from Central America into the United States. Mexican President Andrés Manuel López Obrador called for dialogue, and after negotiations, the two governments signed a joint declaration by which Mexico agreed to deploy its National Guard to curtail transmigration and to accept the Remain in Mexico policy.
The COVID-19 pandemic presented Trump with another opportunity to bolster his anti-immigration program. Invoking an obscure public health law from 1944 known as Title 42 that allows U.S. officials to stop individuals from entering the country when “there is serious danger of the introduction of [a communicable] disease into the United States,” the Trump administration ordered immigration authorities to send most families and single adults from El Salvador, Guatemala, Honduras, and Mexico back across the border without giving them an opportunity to ask for asylum.
In Mexico, asylum seekers waited in tent camps where they were subjected to terrible human rights violations and assaults. According to Doctors Without Borders, in October 2019 alone, 75 percent of the refugees it treated in the Mexican border state of Nuevo Laredo who had been there through the MPP reported having been “kidnapped recently.” Human Rights First likewise reported that as of February 2021 there had been at least “1,544 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against asylum seekers and migrants forced to return to Mexico.”
Because unaccompanied minors were exempt from the Remain in Mexico policy, many asylum seekers forced to wait in Mexico’s dangerous tent encampments were faced with a devastating choice: send their children across the border to seek asylum by themselves or remain together in Mexico even though it increased the children’s chances of being abused or kidnapped. The U.S. Department of Health and Human Services reported that, from October 1, 2019, to January 13, 2020, it had identified 350 children who had been sent alone to the United States while their families remained in Mexico. Trump’s immigration policies forced parents to choose to separate from their own children just to keep them safe.
As with earlier measures that offshored U.S. migration control tactics to Mexico, neither the MPP nor Title 42 attracted much attention in the United States. They certainly did not provoke the public outcry or the protests that the family separation policy had incited, even though both these measures also led to the separation of children from their families and to human rights abuses. Nonetheless, these programs, coupled with Trump’s inflammatory anti-immigration rhetoric and his zero-tolerance policy, boosted calls for substantive changes to the U.S. immigration system from advocacy organizations, media outlets, and the Democratic Party—and Joe Biden, throughout his presidential campaign, promised to pursue reforms.
But Biden’s efforts have been lackluster, and there has been little effort to push him to make the necessary changes; first and foremost, ending the MPP and the use of Title 42 to offshore U.S. immigration enforcement. The Biden administration temporarily halted the MPP before a court order mandated its reinstitution, but it kept Title 42 in place, modifying it so that—as with the MPP—unaccompanied children are exempt from expulsion.
The current situation is, quite simply, the new form of family separation. One woman who fostered a child separated from his family by the zero-tolerance policy put it this way: “The separations are still happening. They’re just happening on the other side of the Mexican border,” as parents send their children to the United States alone, believing that it is their best chance at a good life.
Biden has not ended the MPP nor the use of Title 42—and he has not been held accountable by those who lambasted Trump for his implementation of those same programs. Rather, he has broken his campaign promise and restarted the MPP, arguing that his hands were tied by a federal court order mandating the program’s reinstatement. But the court never mandated that the administration broaden the program’s scale, as it has. Under the Trump administration, non-Spanish speakers were mostly exempted from the program, but now all citizens from the Western Hemisphere are subject to the MPP, including Haitians who have long been the targets of racial discrimination and violence in Mexico.
Nor has Biden (or any other U.S. president) faced a reckoning for coercing Mexico into assuming responsibility for migrants and asylum seekers seeking to live in the United States—a job it has proved incapable of taking on. Mexico’s former immigration chief said last year that the country is “assuming a great deal of the costs and the risks of this irregular program which violates many rights inscribed in U.S. and international law, as well as Mexico’s own laws.”
The Biden administration insists that the MPP will be different from the version implemented by the Trump administration thanks to a number of humanitarian improvements, including guarantees that asylum seekers have access to lawyers, that their claims are processed within six months, and that they have “safe and secure” shelters in Mexico. Such promises are more idealistic than realistic given the elusive security in the region. Even the union for U.S. Citizenship and Immigration Services asylum officers—who screen those subject to the MPP—rebuked the program’s reinstatement. The union held that “a program that requires asylum seekers to remain in one of the most dangerous parts of the world while their cases are pending in U.S. immigration courts cannot guarantee their protection from persecution and torture, as required by U.S. law.” Although Biden is expelling fewer asylum seekers through the newly-instituted Remain in Mexico policy than did Trump, his continuation of the program alongside his extended use of Title 42 are still spawning copious human rights abuses. According to a report from Human Rights First, between January 21, 2021, and January 12, 2022, there were more than 8,705 kidnappings and other violent attacks against migrants and asylum seekers stopped at the border or expelled to Mexico under the Biden administration.
Biden’s immigration policies are more similar to Trump’s than many Americans are willing to recognize, and in turn, those policies do not represent a departure from the United States’ longstanding approach to immigration. Those who denounced Trump’s practices should subject the current administration to the same scrutiny and criticism or risk another three years of stalled dialogue and empty promises to fix a broken system.
Migrants seeking asylum have the right to be in the United States. Both Title 42 and the MPP program conflict with U.S. refugee law and international treaty obligations that prohibit sending refugees back to a country where they are likely to be subjected to persecution—as is the case in Mexico, where they face terrible dangers because of their nationality, race, and migration status, and where many are also attacked because of their gender identity and sexual orientation.
The Biden administration should end the MPP and stop relying on Title 42 immediately. It has already taken some steps in this direction. From the start, it challenged the Texas court’s injunction mandating the reinstatement of MPP and on February 18, the Supreme Court agreed to review it. Then, when in late February another Texas court ruled that the Biden administration could not exempt minors from Title 42 and would have to expel children as it did adults, the Centers of Disease Control and Prevention officially terminated the government’s ability to expel unaccompanied minors through the health measure, preventing Biden from having to do so. But this is not enough. The United States should not subject asylum seekers to abuse and exploitation—even indirectly—by making them wait in Mexico while their cases are being adjudicated. It is time for the Biden administration to rescind Title 42 for everyone, not just for unaccompanied minors. This health measure does not protect the U.S. population from COVID-19 or any other disease: its invocation has been denounced by public health experts, including scientists at the CDC, as ineffective and unnecessary. The United States is a country that can and should welcome refugees.
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