Three years ago this week, the U.S. government denied migrants access to the nation’s asylum process for the first time under a Trump policy that endangers their lives by forcing them to return to Mexico pending their immigration court hearings.
Since then, the government has used the Migrant Protection Protocols (MPP) policy, better known as the “Remain in Mexico” policy, to send tens of thousands of migrants to dangerous Mexican border towns, where they live under life-threatening conditions and with little or no access to legal counsel in the U.S.
It was just one of the numerous harsh policies adopted by former President Donald Trump in his attempt to dismantle the asylum system. In the first two years of the program’s operation, the government denied 70,000 people the opportunity to present their claims and seek asylum. And this number doesn’t reflect those turned away from the border by other policies, including the “Turnback Policy” and “metering” performed by the U.S. Department of Customs and Border Protection (CBP), which used lie after lie and cunning tactics to refuse entry to migrants.
“The Trump administration created this cruel and racist policy in an attempt to penalize those seeking asylum,” said Efrén Olivares, director of the Southern Poverty Law Center’s Immigrant Justice Project. “The policy unlawfully deprives those seeking protection access to safety, basic human needs and legal assistance, therefore all but ensuring that their claims are denied. For the thousands of people trapped at the border, this policy makes it nearly impossible for them to exercise their legal rights.”
With the election of Joe Biden as president in 2020, it appeared the policy would be scrapped. Indeed, the Biden administration temporarily suspended it on Biden’s first day in office in January 2021, and the Department of Homeland Security (DHS) announced the following June that it would be officially terminated.
But now, MPP is back. After Texas and Missouri sued the administration over its termination, the DHS reinstituted the policy in December 2021 and has begun reimplementing it across the Southern border. Last month, the administration asked the U.S. Supreme Court to rule on whether it was required to maintain the policy.
MPP continues to strand migrants along the Southern border as they wait for their cases to be heard in the U.S. Many other migrants who were impacted by its first iteration, including families and children, have been waiting in Mexico since 2019, unable to return to the countries from which they fled and unable to seek safety in the United States.
Danger in border towns
Migrants are stuck in municipalities such as Tijuana, Ciudad Juárez, Matamoros and the Rio Grande Valley, where crime and violence are rampant. The U.S. Department of State has issued travel warnings to these cities, given the high crime rates.
Often seeking refuge from persecution and torture at the hands of their own government, entire families – sometimes mothers carrying babies in diapers – have been forced to sleep in flimsy tents that do little to protect them from crime or the elements. Many have slept in makeshift refugee camps along the border, where latrines are used on a daily basis. Others have crowded together on streets without blankets, pillows or food. Parents have lived with the constant fear that their children could be kidnapped.
When MPP was first implemented, the SPLC warned that it would subject asylum seekers to unprecedented danger, further entrench white supremacy in our nation’s immigration system and cause chaos.
It has done just that.
By December 2021, at least 1,544 cases of murder, rape, torture, kidnapping and other violent crimes were committed against such migrants, according to Human Rights First. Three years since its inception, this U.S.-manufactured humanitarian crisis has indeed created a mountain of chaos. Immigration attorneys in the U.S. are now underwater, swimming through an enormous backlog of roughly 1.3 million cases pending in the immigration courts, leaving unrepresented migrants little chance to present their claims in a timely manner.
“This unlawful policy has deprived countless people of a meaningful and lawful opportunity to seek protection,” Olivares said. “The SPLC and its partners will continue to fight this illegal and inhumane policy, until the Biden administration fulfills its promises.”
Two weeks after MPP was first enacted in January 2019, the SPLC, along with the American Civil Liberties Union and the Center for Gender & Refugee Studies, challenged the policy in federal court. The suit, Innovation Law Lab, et al. v. Wolf, et al., describes how the policy subjected asylum seekers to perilous conditions that made it nearly impossible for them to prepare their cases.
The suit further alleges that the Trump administration violated its obligations under the Immigration and Nationality Act and the Administrative Procedure Act, as well as its duty under customary international law not to return people to countries where they risk persecution or torture.
In April 2019, a federal district judge in California issued a preliminary injunction blocking the policy. But a month later, the U.S. Circuit Court of Appeals for the Ninth Circuit granted the Trump administration’s request to allow the policy to remain in effect while the government appealed.
In October 2020, the SPLC, in partnership with Innovation Law Lab, the National Immigration Project of the National Lawyers Guild and pro bono partner Arnold & Porter LLP, filed an additional lawsuit challenging the implementation of MPP, Immigrant Defenders v. Wolf.
Finally, on Jan. 20, 2021, the Biden administration suspended new enrollments into MPP, and weeks later the DHS announced it was in the initial phase of a “wind-down” process that allowed individuals with “active” MPP cases to be processed into the country. The DHS later expanded the process to allow those who were not present at their hearing or whose cases were terminated to seek processing into the U.S. On June 1, 2021, DHS Secretary Alejandro Mayorkas formally terminated MPP.
Last August, a federal judge in Texas ordered the Biden administration to reinstate MPP “in good faith” until it is lawfully rescinded, writing that the termination may have violated the Administrative Procedure Act. That decision was upheld by the Fifth Circuit Court of Appeals and the Supreme Court, thereby allowing the policy, now known as “MPP 2.0,” to be reimplemented. In late October 2021, the DHS terminated MPP once again and issued a lengthy memorandum that recognized many of its inherent flaws.
By January, troubling reports surfaced that migrants were being returned to Mexico under MPP 2.0 without any plans regarding the provision of shelter or transportation. Despite purported changes to make the policy more humane, Customs and Border Patrol has not been adequately conducting screenings to identify those with mental and physical vulnerabilities that could grant them exemption from the policy. And once again, advocates have reported that individuals in MPP 2.0 are facing the same barriers to accessing legal services.
“Asylum seekers are fleeing death,” said Olivares. “We’re a country that used to open its arms to those in duress. But now those doors are effectively closed. It’s a disgrace.”
For now, even though the president has the authority to set immigration policy within the bounds of existing law and the government’s resources, the policy remains in place and the court battle continues.
‘Do not come’
Immigration advocates are rallying to restore access to asylum at the border. They’re also pressuring the Biden administration to stop expelling migrants pursuant to Title 42, another unjust policy put in place by the Trump administration under the guise of protecting people from COVID-19.
In reality, Title 42 is yet another barrier for migrants seeking asylum.
During Biden’s first year as president, the DHS sent 5,867 Title 42 expulsion flights full of people – most of whom never had the chance to seek asylum – back to the very countries from which they had fled for their lives. Of those flights, 180 expelled Haitian families were sent back to a country experiencing extreme political instability, poverty and violence.
“Seeking protection from violence and persecution is a fundamental human right, and the right to seek asylum is protected by U.S. and international law,” said Sarah Rich, senior supervising attorney for the SPLC’s Immigrant Justice Project. “The administration’s actions fly in the face of the right to seek asylum in the U.S. and indicate a disturbing continuity between the Trump and Biden administrations.”
When the Biden administration reinstated the program in response to the court orders, it made a series of changes. The new version, MPP 2.0, now applies to all migrants from countries within the Western Hemisphere. The previous version applied only to migrants from Spanish-speaking countries and Brazil. The new policy also aims to complete court cases within six months and promises to exempt elderly people, individuals identifying as LGBTQ, children, pregnant women and people with physical or mental disabilities.
But the program remains fundamentally unchanged. The federal government has abandoned its “wind-down” process, a critically important avenue for certain migrants who had been denied entry to the U.S. under the first iteration of MPP to enter the U.S., where they have access to legal counsel.
“In addition to ending the program, the U.S. government needs to assist the thousands of individuals impacted by the first iteration of the policy,” said Stephanie M. Alvarez-Jones, a staff attorney with the SPLC’s Immigrant Justice Project. “It’s ludicrous that the government recognized the issues and dangers inherent in the first round of ‘Remain in Mexico’ but has done nothing for thousands of people who went through that process and now remain stuck there, unable to return to their home countries because of the danger they face there, but also unable to seek asylum in the U.S.”
Photo at top: U.S. Border Patrol agents process migrants at the U.S.-Mexico border on Dec. 07, 2021, in Yuma, Arizona. Most had come with their families through a nearby gap in the border wall in previous days to seek political asylum in the United States. (Credit: John Moore/Getty Images)