On Monday night, the Department of Homeland Security announced that it ended the Trump-era policy requiring asylum-seekers to wait in Mexico for immigration hearings, continuing a legal battle with Texas.
“Texas wants to keep fighting to keep ‘Remain in Mexico’ in place,” said Esther Sung, legal director with the Justice Action Center. “There is very much a possibility that the policy could be reinstated by the district court.”
The policy — officially known as the “Migrant Protection Protocols” — was introduced by former President Donald Trump in January 2019, keeping some 70,000 asylum seekers in Mexico to wait for rulings on their claims. President Joe Biden slowly suspended the policy when he took office in January 2021, officially terminating the practice by June.
Two months later, a District Court in Texas ruled the Biden administration had to restart the program. The U.S. Supreme Court refused the White House request for a stay — ordering instead that the administration make a “good faith” effort to reimplement the policy as the court case proceeds.
Since it was reinstated, 5,765 migrants were sent back to Mexico to await their court dates. More than half came from Nicaragua, followed by 13% from Cuba and 10% from Colombia.
Then earlier this summer, the Supreme Court gave the Biden administration a narrow but notable victory — it lifted the injunction blocking the administration from ending the policy with a caveat that the Texas court could still stop the White House.
DHS said it is committed to ending the policy “in a quick, and orderly, manner.” Migrants will no longer be enrolled into the program, and migrants in Mexico will be allowed to enter the U.S. at their next court date, DHS said.
“As (Homeland Security) Secretary (Alejandro) Mayorkas has said, MPP has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border,” a statement from DHS said.
What is Remain in Mexico?
“Remain in Mexico” is a border policy the Trump administration put in place in 2019, wherein asylum-seekers have to wait in Mexico for a ruling on their asylum claims. Those proceedings can drag out for several years, during which migrants are allowed to enter the U.S. only for their court hearings.
Sung said the policy has left thousands of vulnerable individuals in dangerous conditions, risking their lives and preventing access to health services, humanitarian aid, legal representation and social support. Migrants have been subjected to rape, kidnapping, assault, murder and extortion while waiting on proceedings.
“It’s one of the tools the Trump administration used to shut down the country’s functioning asylum system,” Sung said. “There were a lot of shortcomings associated with the (Migrant Protection Protocols) courts. That just made the entire process completely flawed, and in no way comparable to sort of the opportunities for just due process and regular immigration processing that people received before the Remain in Mexico program was implemented.”
Biden gradually ended the policy when he took office, and it was officially terminated in June 2021. Texas and Missouri sued the federal government to get the policy reinstated, and in August 2021, a federal judge in Texas ruled in favor of the states.
When the second iteration of the program was implemented in December, the program included exemptions for vulnerable individuals, expanded protections during initial enrollment and the creation of shelters across the border, according to FWD.us. It was applied at four ports of entry: El Paso, San Diego, Brownsville and Laredo.
In Biden v. Texas, the Supreme Court in a 5-4 ruling decided that the Biden administration could end the program.
What is the difference between Remain in Mexico and Title 42?
Title 42, currently in effect, is a public health order implemented by the Trump administration in March 2020 as a response to the COVID-19 pandemic. It allows the government to deny individuals from entering the country if the Centers for Disease Control and Prevention believes “there is serious danger of the introduction of (a communicable) disease into the United States.” Remain in Mexico, on the other hand, deals only with asylum-seekers awaiting a court decision on their cases.
“Title 42 is different from Remain in Mexico, because you get no process at all, you get no chance to seek asylum,” Sung says. “It’s just an automatic expulsion.”
Title 42 is narrower, because migrants are immediately expelled, so they’re unable to make a claim for asylum. It’s more likely that an individual is subject to Title 42, as opposed to enrolled in Remain in Mexico, Sung said. The Biden administration tried to end Title 42 in May, but was blocked by a federal judge.
“With the combination of both of these programs, there is no functioning asylum system in the United States, which violates our international law obligations, as well as our own obligations under our own domestic laws Congress has passed, which give people the right to seek asylum in the United States,” Sung said.
What does the end of Remain in Mexico mean?
There are three ways people can seek immigration relief: asylum, withholding of removal and Convention Against Torture protections. Now that the Remain in Mexico program has ended, Section 235 of the Immigration and Nationality Act allows asylum-seekers who pass a credible fear review to be held in U.S. detention or released on parole during immigration proceedings.
“There needs to be a system where asylum-seekers can have the opportunity to seek the protection that the Immigration and Nationality Act made available to people who come to this country,” Sung said. “The federal government needs to provide a system that enables people to take advantage of the protections that Congress has expressly laid out.”
Increasing investment in the asylum system and the immigration court system would allow the government to process asylum claims in a timely way, FWD.us says.
“The Department will provide additional information in the coming days,” DHS said. “MPP enrollees should follow the directions on their court documents and tear sheets to appear for their scheduled court date as required.”
How does the end of Remain in Mexico impact Texas?
Texas on Monday filed an amended complaint, renewing its legal challenge against the Biden administration in order to reinstate the policy. The complaint says that terminating the policy “injures Texas” because the state will incur significant costs in issuing driver’s licenses and providing services such as education and health care.
In the meantime, nonprofits and nongovernmental organizations can help asylum-seekers — who are paroled into the United States to pursue their immigration proceedings — be integrated into communities. That will allow them to be safe and get the social and legal support they need while their cases are being processed, Sung says.
“Asylum-seekers are exactly the kind people that you want to have come to the United States,” Sung said. “They are resilient, they are intrepid, they are courageous. They have so many positive qualities that they can bring to our communities here in the United States. They are the last people that you want to be turning away or sending elsewhere.”
———
