Tens of thousands of asylum seekers sent to Mexico since 2019 to pursue their asylum claims under the “Remain in Mexico” program have yet to be processed at U.S. border crossings, nearly six months after President Joe Biden began admitting them into the U.S. after his attempt to end the controversial policy.
What happens next is unclear. On Aug. 24, the Supreme Court refused to stay an injunction from a lower court that found Biden had ended the program improperly. The high court’s decision effectively requires the Biden administration to restart the program while its appeal continues to play out in court.
Biden campaigned on ending the 2-year-old policy, formally known as the Migrant Protection Protocols. By the time he took office in January, President Donald Trump’s administration had sent more than 71,000 asylum seekers to Mexico under MPP, according to Syracuse University’s Transactional Records Access Clearinghouse.
Biden immediately paused implementation of the policy and in February, the U.S. Department of Homeland Security announced it would allow asylum seekers with active MPP cases waiting in Mexico to be processed and admitted to the United States so they could pursue their asylum claims north of the border.
The move was meant to benefit an estimated 27,000 migrants with active or pending MPP cases in Mexico.
In June, DHS expanded eligibility to other migrants in the “Remain in Mexico” program who had their cases terminated or removed “in absentia.” TRAC data shows more than 8,800 migrants had their cases terminated and another 28,000 were ordered removed while not present at their hearing, making the eligible pool of applicants even larger.
Court records show that U.S. border officials have since February admitted a little more than 13,000 asylum seekers who had been stuck in “Remain in Mexico” through the COVID-19 pandemic and an indefinite freeze on asylum court hearings at the U.S.-Mexico border because of the virus.
That number accounts for approximately half of all active MPP cases eligible to be paroled into the U.S., and a smaller fraction still of the 71,000 people sent back to Mexico under the program.
Immediately after the high court’s order, international organizations at the U.S.-Mexico border to process asylum seekers enrolled in the program decided to pause their work. The morning after the decision, DHS also announced the agency would suspend “processing at ports of entry of individuals who were previously enrolled in MPP.”
The announcement to freeze processing for asylum seekers under “Remain in Mexico” leaves roughly 50,000 eligible migrants — based on TRAC data, using the Biden administration’s criteria — that no longer have this recourse.
Of those, about 3,500 migrants had already registered and were close to being processed for entry. They are once again left in limbo, according to Alberto Cabezas, spokesperson for the United Nation’s International Organization for Migration in Mexico.
“I cannot say that it was instructed by the U.S. government, I don’t think so. But what I can tell you is that we, as organizations, saw that the (Supreme Court) decision was going against what we were doing,” he said.
The IOM had been working jointly with the United Nations High Commissioner for Refugees since February to register eligible migrants under MPP to be processed and paroled into the United States.
Once the UNHCR verified their eligibility, the IOM would take in these asylum seekers at reception points located in one of six Mexican border cities. They would test them for COVID-19, and if the result was negative, the group would transport migrants to one of six U.S. border crossings to be processed.
“We opened up dialogue with the U.S. and Mexican governments to see what happens next,” Cabezas said. “But the most prudent thing for us was to pause processing. Now that doesn’t mean that the program is done, but it is frozen for now because there are decisions to be made that are not up to us.”
Cabezas said of the 3,500 migrants who had registered with the UNHCR but had not yet been processed, 2,000 of them were having their eligibility verified and were waiting in cities throughout Mexico for their scheduled dates to present themselves for processing at IOM locations.
The remaining 1,500 also had registered but were located in cities outside of Mexico. The UNHCR had not yet verified their eligibility.
‘We’re asking President Biden to please help’
Jesus Vargas is one of the estimated 2,000 migrants affected by the temporary freeze in processing. Just before the Supreme Court’s order came out, she had been waiting with her son and husband in the city of Rosarito in Baja California to receive their appointment.
“We had already submitted our application with the UNHCR and we were waiting on the last call to be able to be allowed in. But then this happened and we truly felt bad, we felt very sad,” Vargas said Friday.
The family fled Honduras after Vargas’ husband faced death threats over his political affiliation. They arrived in Tijuana in 2018 with a large migrant caravan. Her family was initially processed in San Diego but was sent back to Mexico in early 2019 under the newly implemented MPP.
Their case is one of thousands that was terminated, and the family was ordered removed “in absentia” for missing a court hearing, though she claimed they had attended three of them before COVID-19 froze all MPP court hearings.
One of the biggest criticisms migrant advocates have about the policy is that it made it difficult for migrants like Vargas to build their asylum case from Mexico. They cite a lack of access to the resources they would need, including finding an attorney, since many U.S.-based lawyers would not or could not travel to Mexico to meet with them.
“We’re asking President Biden to please help so that we can enter (the U.S.). We cannot return to our country because we remain under threat, so we’re asking Biden with all our heart to help us,” Vargas said.
In addition to the 3,500 migrants registered with the UNHCR, there are tens of thousands more eligible migrants that U.S. border officials sent back under “Remain in Mexico,” but have not registered with the UNHCR to be processed.
It is unclear what has happened to them, or where they are located. Advocates believe that because of the COVID-19 border restrictions, many MPP migrants attempted to enter the U.S. without authorization, while others dispersed to other parts of Mexico or neighboring countries. An unknown number may have given up entirely.
Judy Rabinovitz, the American Civil Liberties Union’s lead attorney for litigation over the Migrant Protection Protocols, said all eligible individuals should continue to be processed and paroled into the U.S., despite setbacks in court.
“There’s nothing in the district court injunction or in Supreme Court’s decision not to stay it that says anything about these people and what should happen to them,” she said.
“And in fact the injunction and the decisions about the injunction acknowledge that the administration and DHS still have discretion to decide in individual cases whether MPP, the ‘Remain in Mexico’ policy, is appropriate or not.”
What the court’s decision means: Supreme Court said Biden could not stop ‘Remain in Mexico’ at the border. Here’s what that means
Lawsuit challenged Biden’s action
The Supreme Court’s decision to deny a stay in the case over the Migrant Protection Protocols stems from a lawsuit filed by the states of Texas and Missouri arguing that the Biden administration improperly ended the program, and that they would be impacted by the number of migrants allowed in.
A Trump-appointed federal judge in Texas sided with Texas and Missouri. The U.S. 5th Circuit Court of Appeals in New Orleans upheld the ruling, saying Biden’s decision to terminate the program had been arbitrary and capricious.
The case remains under appeal, but the immediate decision from the three courts created uncertainty among migrants, including for thousands of migrants under MPP who already have been paroled into the United States.
According to the UNHCR, the U.S. government paroled a total of 13,256 migrants under MPP during the roughly six-month period that processing was open, from Feb. 19 until the Supreme Court’s decision Aug. 24.
“It’s unclear what this ruling means for them,” Chelsea Sachau said. She’s part of the border action team for the Florence Immigrant and Refugee Rights Project, a legal advocacy organization in Arizona.
“I hope for them this decision does not affect their day-to-day reality and they are able to proceed with their court dates in their new locations in the U.S. safely and with dignity,” she said.
Greg Chen, director of government relations for the American Immigration Lawyers Association, said there are several indications that migrants under MPP already admitted to the U.S. will not be impacted, although he urged the Biden administration to provide clear answers.
One is that the majority of the more than 13,000 migrants paroled in the past six months were not detained, indicating the government is trying to let their cases go through a “normal” process, he said.
Chen also pointed to the fact that the Biden administration has been transferring cases out of MPP courts at the U.S.-Mexico border to immigration courts throughout the U.S., corresponding to the destination where MPP migrants admitted to the country settled.
“That gives you some assurance that you’re not gonna be sent back because your cases will be handled in the interior,” he said.
The current number of cases transferred out of MPP courts to other jurisdictions throughout the U.S. is undetermined at the moment, given the complexity and slow pace of the immigration court system.
Austin Kocher, a researcher with the Transactional Records Access Clearinghouse, said the organization’s most recent analysis, from May, showed that more than 10,400 MPP cases had been transferred from the border to immigration courts in other parts of the country.
“Regardless of the Supreme Court decision, I think the most important thing to know is that MPP is not over,” he said.
Kocher added that TRAC will continue to follow the process and outcome of MPP cases, which could take years, given the massive 1.3 million case backlog in immigration courts.
“It’s not the thing that the government can terminate the program and we don’t have to think about it anymore, it’s so important for people to know that this is going to impact thousands and thousands of people for years to come,” he said.
‘Remain in Mexico’ policy ‘essential,’ Trump official says
Former President Trump and his administration considered the Migrant Protection Protocols a success, claiming that when the policy was in effect it helped stem irregular border crossings.
His acting Homeland Security Secretary Chad Wolf praised the policy, in response to the Supreme Court’s decision, saying it also reduced fraudulent asylum claims, one of the stated aims of the policy.
“MPP is essential to a functioning humanitarian system and to America’s national security,” he said in a statement. “It is a welcome development that the Supreme Court has delivered this rebuke to the Biden administration, and a win for any American concerned about the Biden border crisis.”
The Trump administration implemented the Migrant Protection Protocols in January 2019 in the binational San Diego-Tijuana region, eventually expanding it to the entire U.S.-Mexico border.
By March 2020 the number of asylum seekers returned to Mexico under the program plummeted, after Trump implemented restrictions at the U.S.-Mexico border in response to a surge in COVID-19 cases worldwide.
The main enforcement tool was a public health rule under Title 42 of the U.S. Code that allowed the U.S. government to immediately expel migrants encountered at the U.S.-Mexico border, regardless if they had an asylum claim.
This second, overlapping program had the same effect of halting asylum seekers and holding them south of the border, creating a massive bottleneck in Mexican border cities.
Biden has kept Title 42 in place, even as he has attempted to terminate the Migrant Protection Protocols.
Critics argue both policies endanger migrants by sending them back to Mexican border cities that are unprepared to provide for them, forcing them into precarious living conditions and vulnerable to exploitation, kidnapping and other crimes.
“It basically became like a stimulus package for the cartels. People were just sitting ducks for cartels and other organized crime,” said Blaine Bookey, legal director for the Center for Gender and Refugee Studies at the University of California’s Hastings College of Law.
The center was one of several organizations that filed an amicus brief before the Supreme Court in support of the Biden administration’s decision to terminate the Migrant Protection Protocols.
The brief cited statistics compiled by Human Rights First, an advocacy group that became a repository for nearly 1,500 documented instances of kidnapping, assault, extortion and other crimes against migrants returned to Mexico under MPP.
“I represented many asylum seekers subject to the cruel ‘Remain in Mexico’ policy, and I refuse to call it by its formal name, because the policy does the exact opposite of protect migrants,” said Robyn Barnard, the group’s senior advocacy counsel for refugee protection.
In addition to documenting instances of violence, Human Rights First also has a refugee representation team, which Barnard leads, and provides pro bono assistance to asylum seekers.
“The U.S. government claims that the policy was about managing arrivals at our southern border, but I strongly believe that all evidence points to the fact that this policy was about punishing and deterring people from coming to seek protection in the United States,” she added.
What could happen next?
In response to the Supreme Court decision, the Department of Homeland Security vowed to “vigorously challenge” the district court’s ruling, which is under appeal.
But in the meantime, the department said it would “comply with the order in good faith,” and had begun diplomatic discussions with Mexico about the Migrant Protection Protocols.
As they weigh their options, migrant rights groups and advocates called on Biden to avoid reinstating the program and instead take immediate steps like reissuing a termination memo that would comply with the district court’s ruling.
“We saw the Trump administration do this time and time again: When they lost in the courts they would just reissue a new memo that was addressing the lower court’s decision. Sometimes they won, sometimes they didn’t,” said Marielena Hincapié, the executive director for the National Immigration Law Center, a Los Angeles-based legal advocacy organization.
She also called on the Biden administration to use its authority to continue to parole migrants like the 3,500 MPP asylum seekers who have registered to be processed at the border, as well as thousands more who are eligible but have not signed up.
Representatives of groups like the American Civil Liberties Union said they would also keep their options open to respond to the Biden administration’s moves on the Migrant Protection Protocols.
The ACLU had filed a lawsuit in February 2019 against the U.S. government under Trump over the legality of the Migrant Protection Protocols. The case, which came to be known as Mayorkas v. Immigration Law Lab, reached the Supreme Court.
But the justices dismissed the case as moot after Biden took office and took steps to dismantle the program. The high court remanded the case to the district court in San Francisco where it was filed.
Rabinovitz, the lead attorney on the case, said they are looking into how to use the lawsuit.
“Now the question is, is it moot anymore?” she said. “And obviously, it’s not moot if the government, pursuant to this Texas injunction, has to start enforcing it again.”
Have any news tips or story ideas about immigration issues? Reach the reporter at firstname.lastname@example.org, or follow him on Twitter at @RafaelCarranza.
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