The Supreme Court is set to hear a case on April 26 that will determine whether the Biden administration can repeal the controversial Trump-era “Remain in Mexico” policy. The policy, officially known as Migrant Protection Protocols (MPP), forces asylum-seekers to stay in shelters at the Southwest border as they await their immigration proceedings in an already backlogged immigration system.
The Biden v. Texas case questions whether a part of the U.S. code requires the Department of Homeland Security to continue enforcing the policy. Biden initially suspended the program in February 2021 after pressure by immigration advocates, but after Texas and Missouri sued the federal government, a federal judge ordered it be reinstated in August. Now, the Supreme Court will decide whether the U.S. Court of Appeals for the 5th Circuit erred by concluding that the decision by Secretary of Homeland Security Alejandro Mayorkas to terminate MPP had no legal effect.
“It’s clear to us that the Department of Homeland Security has rightly concluded that ‘Remain in Mexico’ is inherently flawed and puts the lives of people returned to Mexico in danger,” said Kennji Kizuka, associate director of research and analysis for refugee protection at Human Rights First. “We hope the Supreme Court does the right thing and allows the Department [of Homeland Security] to end the policy.”
The court order reinstating the policy went into effect in December 2021 and was accompanied by an expansion to include all asylum-seekers from the Western hemisphere, namely Haitians.
Life at the border has proven to be dangerous. According to a joint report with Human Rights First, between February 2019 and February 2021, there were 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 under this program. These attacks include 341 cases of children who were kidnapped or nearly kidnapped in an already backlogged immigration court system, leaving them in the extremely dangerous situations they were trying to escape.
According to data from the Department of Homeland Security, since the program was reinstated in December 2021, 1,569 asylum-seekers have been enrolled in the policy and are being processed in Mexico. Upon being entered in the program, Customs Border Protection screens asylum-seekers for fear of returning to Mexico. If an asylum-seeker is found to have a reasonable fear of persecution or torture, or if they are particularly vulnerable (if they are LGBTQ+ or have health issues), then they are disenrolled from MPP. Once disenrolled, they are referred to Immigration and Customs Enforcement for a custody determination, where they may be allowed to enter the country and stay with family or another host, or they will be placed in a detention center.
“It is an arbitrary decision, we have seen,” said Margaret Cargioli, directing attorney for the Immigrant Defenders Law Center. “Once they’re in that detention center, that’s where they have to await their removal proceedings with an immigration judge.”
Cargioli said she had one client who was bisexual, had a hearing disability, and had a sponsor in the U.S. But they were arbitrarily sent to a Louisiana detention center. Cargioli also said the program has caused harm to thousands of asylum-seekers and is riddled with access to counsel barriers and due process issues for those exercising their right to asylum in the U.S.
Julia Neusner, a refugee protection attorney with Human Rights First, interviewed people returned to Mexico under MPP in Juarez in December and has been observing MPP court in Tijuana since the policy was reinstated. Neusner has heard countless stories of people in Tijuana who are in MPP and have been beaten and robbed outside the shelter.
“People who have been returned under MPP have already been victims of violent crimes,” Neusner said. “People are afraid to leave the shelters. They know they’ve run a high risk of being kidnapped.”
As a result of the dangerous circumstances, many people have reported having symptoms of severe mental health issues to Neusner, including depression and anxiety. One person she spoke to reports they had never had insomnia before, and now he can not sleep at all.
“It’s not a consequence just of the danger they face,” Neusner said. “But also the uncertainty and being isolated and in a country that’s not their own country without their network.”
Additionally, many people in MPP have difficulty accessing lawyers from Mexico since they need U.S. lawyers familiar with U.S. immigration proceedings. According to information from Trac Immigration, 63,295 asylum-seekers were unrepresented in their deportation proceedings during the first iteration of MPP during Trump’s presidency from 2019 until it was rescinded by Biden in February 2021. According to Neusner, there are not many U.S. lawyers who take MPP cases since they cannot meet in person in the border cities. The few nonprofits that do take MPP cases are overwhelmed. Neusner attended MPP hearings earlier this week and consistently heard people say they could not find legal representation.
Of the seven cases she observed, three were coming for their second hearing and had been in MPP for a month already. They were initially issued a continuance so they could find a lawyer but have not been able to find any representation. The judge issued them another month-long extension. The four other cases were also granted a month-long extension so they could find a lawyer. Initially, everyone in MPP is given a document with phone numbers for pro bono service providers, but asylum-seekers say they are overwhelmed with other cases.
“I would like to see this program end once and for all,” Neusner said. “It denies people their due process, right to seek asylum under U.S. and international law. The Biden administration did the right thing at the outset by getting rid of this policy.”