Biden admin says anti-asylum Remain in Mexico policy will restart next week following court order

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The U.S. and Mexican governments have reached an agreement to restart a policy that forced many asylum-seekers to wait for their immigration court dates in dangerous regions of Mexico. The Department of Homeland Security (DHS) said in a statement that would “begin the court-ordered re-implementation of the program on or around Monday, Dec. 6.”

That right-wing judge’s “dead wrong” opinion ordered the Biden administration to restart Migrant Protection Protocols (MPP), more commonly known as Remain in Mexico. Judge Matthew Kacsmaryk was appointed by the previous administration. The conservative Supreme Court in a shadow docket order then refused to block that ruling, asserting its apparent “control over foreign policy,” Daily Kos’ Joan McCarter noted. Restarting MPP required Mexico’s cooperation. Following weeks of speculation, it has agreed.

“In recent months, Mexican officials urged the U.S. to make several ‘humanitarian improvements’ to the protocols, including shortening the amount of time it takes judges to adjudicate asylum claims,” CBS News reports. Under new plans, officials claim asylum-seekers returned to Mexico can see their cases finished in 180 days. “Mexico also asked the U.S. to exempt vulnerable migrants from the policy, expand access to counsel and offer prospective enrollees vaccines against the coronavirus,” the report continued.

But when Remain in Mexico was in effect under the previous administration, some exceptions were in place but still not followed. In fact, a report just last month noted how Customs and Border Protection (CBP) officials ignored guidelines exempting particularly vulnerable people. “I remain enormously skeptical about any new ‘exceptions,’” tweeted American Immigration Council policy counsel Aaron Reichlin-Melnick. “CBP will almost certainly ignore every guidance from DC on exceptions.”

He notes that far from being forced to reinstate the Remain in Mexico policy, the Biden administration is actually also expanding it. “The Biden administration’s choice to expand Remain in Mexico to everyone from the Western Hemisphere—including Haitians—makes the program even broader than it ever was under the Trump administration,” he tweeted. He goes on to say “this is actively worse than what the Trump administration did, where originally it was just nationals of Spanish-speaking countries, and then later expanded to Brazilians.”

The Biden administration in late October issued a second memorandum again attempting to terminate the program. That memo notably acknowledged violent attacks against asylum-seekers forced to wait in Mexico, which the initial memo from June failed to do. “This administration, however, remains under a court order requiring it to reimplement MPP in good faith, which it will abide by even as it continues to vigorously contest the ruling,” DHS said.

“Both in the course of litigation and otherwise, litigants described, and some courts credited, extreme violence and substantial hardships faced by those returned to Mexico to await their immigration court proceedings, as well as substantial danger traveling to and from ports of entry to those hearings,” the Biden administration’s October memo read. Thousands were also forced to wait in a squalid camp on the Mexican side of the border. The policy was a boon to cartels, who targeted families near ports of entry. “Litigants described being exposed to violent crime, such as rape and kidnapping, as well as difficulty obtaining needed support and services in Mexico, including adequate food and shelter.”

”Many people put into Remain in Mexico were kidnapped multiple times,” Reichlin-Melnick said in another tweet. He shared one tweet from a lawyer whose client was kidnapped twice after being sent to Mexico. “The second time, his kidnappers put out cigarettes on his body.”

This is just one of the reasons why dozens upon dozens of legal service providers said there was simply no way to make this inhumane program humane, telling the Biden administration they “refuse to be complicit in a program that facilitates the rape, torture, death, and family separations of people seeking protection by committing to provide legal services.” A number of border groups also left a meeting with the administration in protest.

“No measure of involvement from civil societies will mitigate the harms of this horrific, racist, and unlawful program,” more than 70 legal service providers said in that letter, noting the policy further endangers those seeking to advocate for vulnerable people. “Nor is it just for this administration to continue to force U.S. lawyers and humanitarian staff to risk their safety due to the failure of this administration to take swift action to uphold U.S. refugee laws and treaties.”

What happens next when it comes to legal action is unclear. The American Civil Liberties Union, which successfully sued the previous administration over the policy, may go back to court, CBS News said. Lawmakers including New Jersey Sen. Robert Menendez continued to urge the Biden administration to end the program once and for all.

“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,” he said in a statement. “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.”

Menendez also echoed Reichlin-Melnick in stating that the Biden administration expanding the program’s scope, saying it went “far beyond a good-faith implementation of the court’s order. 180-days in Mexico is too long for a vulnerable asylum seeker to be subjected to this dangerous policy.”

Couldn’t the administration restart the policy and then … just respect the asylum rights of vulnerable people and allow them to enter the U.S., anyway? Who’s in charge here, exactly? The federal government or one judge who experts said issued a very flawed decision? It seems very fucking wrong that a new president apparently isn’t allowed to end a predecessor’s cruel policy violating the asylum rights of children and parents because of Ken Paxton, who led this lawsuit. Paxton also successfully sued over the administration’s deportation moratorium. The anti-immigrant judicial pipeline that’s helped lead to this policy’s resurrection is something that also can’t be ignored.