US to restart ‘Remain in Mexico’ program following court order

The Biden administration on Thursday plans to restart the “Remain in Mexico” program following a court order to reimplement the policy first launched under President Trump while it appeals the decision.

The rollout follows weeks of negotiations with Mexico over how to reimplement a plan that under the Trump administration saw as many as 70,000 migrants from across the globe pushed into refugee camps in border cities with no clear timeline for when they may be able to enter the U.S. for a hearing in their case.

The mass migration through Mexico left asylum-seekers stranded in refugee camps in border cities with no clear end date.

According to a senior Department of Homeland Security (DHS) official, the U.S. will help coordinate housing for asylum-seekers, with the State Department being responsible for assuring safe and secure shelter.

The official said the U.S. will arrange to house migrants away from some of the more dangerous border cities.

The U.S. also plans to provide transportation for migrants to and from ports of entry when they need to enter the country to attend court hearings.

The administration’s focus on living conditions for migrants awaiting asylum rulings in Mexico contrasts with the Trump administration’s hands-off approach to the program.

But in broad strokes the program will largely be the same as its predecessor, barring asylum-seekers from entering the U.S., forcing them to instead await the lengthy immigration court process while living in another country. 

The Supreme Court in August upheld a lower court decision siding with Texas and Missouri in a battle to reimplement what is formally known as the Migrant Protection Protocols (MPP).

It’s a blow to the administration, which rescinded the policy on its second day in office, and a major source of frustration for immigration advocates, who argue the policy violates both domestic and international laws governing asylees.

The case has reignited tension with Mexico over the policy, with the southern neighbor arguing the U.S. needed to provide assurances that immigration court judges would more quickly weigh asylum-seekers’ cases.

DHS officials previously told reporters they would aim to hear asylum cases in roughly six months, establishing tent courts near the border to speed processing.

Mexico also stressed that vulnerable populations — the elderly, people with health conditions and LGBT asylees — should not be subject to the program.

The senior DHS official said U.S. Customs and Border Protection (CBP) agents will now proactively be asking all migrants whether they have fear of returning to Mexico rather than wait for migrants to raise the issue.

CBP officers will also use a lower “credible fear” test standard than before when migrants had to show they were more likely than not to face danger.

CBP agents will be directed to give credible fear status to those who can demonstrate “a reasonable possibility” they would face persecution or danger in Mexico, a status that would allow them 24 hours to secure a lawyer.

The U.S. also will ensure migrants have access to free phone calls “and, when feasible, video connection” in order to communicate with their attorneys.

The immigration court system, however, does not provide free attorneys to those who cannot afford them.

The Washington Post was the first to report Thursday’s rollout, detailing that the U.S. also plans to offer coronavirus vaccines to those entered into the program. Adults will be offered the one dose Johnson and Johnson vaccine while eligible minors will be offered the two-dose Pfizer.

Rep. Veronica Escobar (D-Texas) said the changes, while an improvement, did little to quell her concerns about the policy.

“MPP is unacceptable. Return to Mexico is a policy that absolutely erodes our values as a country and it’s, in my view, a violation of asylum processing. But it’s a result of a court order and my urgency and where I think the administration needs to be very aggressive is in fighting this out in court in order to eliminate it permanently,” she told The Hill.

“It takes time to create better management policies in place, especially after four years of chaos. But it’s been 11 months.”

The Mexican government said the Biden administration accepted its humanitarian concerns regarding reinstatement of the program.

Mexico had reluctantly agreed to implementation of the first version of the program under threat of economic sanctions from the Trump administration.

“[For] humanitarian reasons and on a temporary basis, the Government of Mexico has decided that it will not return to their home countries certain migrants who have an appointment to appear before an immigration judge in the United States to request asylum there,” read a statement released by the Mexican foreign ministry Thursday.

The Biden administration rescinded MPP for a second time in October, with DHS Secretary Alejandro Mayorkas citing the policy’s “unjustifiable human costs” in a 39-page memo designed to fight the August Supreme Court and lower court decisions. 

Still DHS pledged to reinstate the policy “in good faith” due to the court order, and its implementation required cooperation from the Mexican government, which had only begrudgingly accepted the program under Trump.

Trump personally threatened Mexico with economic retaliation if it didn’t cooperate with his immigration policies — an unorthodox diplomatic method that Biden did not continue.

The original version of MPP was implemented in January of 2019 by then-DHS Secretary Kirstjen Nielsen, who at the time called the program an “unprecedented action.”

It was aimed at stemming the flow of migrants primarily from the so-called Northern Triangle countries — Honduras, Guatemala and El Salvador — which at the time were the focus of U.S. authorities’ concerns regarding hemispheric migration.

Migration patterns have shifted since then, with migrants from countries other than Mexico and the Northern Triangle making up a larger proportion of encounters at the southwest border.

In September, 36 percent of all encounters at the border were with nationals of countries beyond Mexico and the Northern Triangle, compared to 18 percent in September of 2019.

Since the summer, migration from the United States’ closest southern neighbors has tapered off and slightly declined, while migration from third countries, like Haiti, has continued in an upward trend.

In negotiations to reinstate MPP, Mexican officials agreed to host nationals of countries within the hemisphere beyond the Northern Triangle, limiting the number of nationals of any third country to ten percent of the program’s total population, according to a Mexican official.

Thursday’s memo, however, makes no such commitment, detailing that anyone from the Western hemisphere, including non-Spanish speakers like Haitians, could be subject to MPP.

“The Remain in Mexico program eliminated due process for 70,000 people and forced vulnerable families to run a gauntlet of kidnappers and extortionists just to get to the courtroom door. Now the Biden administration will again send vulnerable people into the lion’s den,” Jorge Loweree, policy director at the American Immigration Council said in a release.

“We categorically reject the Biden administration’s claims that it can administer the Remain in Mexico program in a more humane manner. Today is a dark day for the United States and for the rule of law. The longer the administration delays terminating this unlawful and cruel policy, the more people will suffer.”

Sen. Bob Menéndez (D-N.J.) on Thursday criticized the reimplementation of the policy, saying the Biden administration “is going far beyond a good-faith implementation of the court’s order.”

“We have a moral obligation to do everything possible to swiftly and permanently discard this policy, along with the many other remaining Trump-era policies that were willfully designed to deter immigrants with cruelty. We cannot externalize our asylum system and abandon our obligations as a beacon of hope and opportunity. We urge the Biden-Harris Administration to make every effort to reduce the harm of this court order and ensure the end of this xenophobic and anti-immigrant policy for good,” said Menéndez. 

Updated 4:39 p.m.