On President Biden’s first day in office, he fulfilled a campaign promise by suspending the Trump-era “remain in Mexico” program. Now, a federal court ruling may bring the controversial policy back, despite objections by border advocates and an appeal by the Biden administration.
The program, officially called the Migrant Protection Protocols, began under the Trump administration in December 2018 and sent more than 70,000 asylum-seekers to wait in Mexico for hearings in United States immigrant court. It was rolled out on the El Paso-Ciudad Juarez border in March 2019 before expanding to the rest of the state.
Decried by critics as having endangered thousands of vulnerable migrants and violated their right to seek asylum, a gradual wind-down process of the program has been underway throughout spring and summer 2021.
But on Friday, Amarillo-based U.S. District Judge Matthew J. Kacsmaryk ruled the Biden administration had acted “arbitrarily and capriciously” by ending the program. The ruling said the Biden administration’s move violated existing U.S. immigration law, and ordered the administration to bring back the program until it could be ended legally, which it said necessitated that there be “sufficient detention capacity” to hold all asylum seekers at the border.
The lawsuit was filed by Texas Attorney General Ken Paxton and his Missouri counterpart, Republican Eric Schmitt. Kacsmaryk ruled that Texas and Missouri faced an added burden after the program was terminated, and said the end of MPP contributed to a migrant surge at the border.
Texas Gov. Greg Abbott celebrated the judge’s decision in a tweet on Monday.
But immigrant rights advocates in El Paso and Ciudad Juárez reacted with frustration and anxiety to the federal court ruling, emphasizing the uncertainty of what a revived MPP program would look like for the borderlands.
“The ‘remain in Mexico’ policy was a devastating failure of a border policy that subjected tens of thousands of people to unnecessary dangers, and failed to even achieve any of the supposed goals of the last administration for limiting people coming to our border seeking safety,” said Shaw Drake, staff attorney for the ACLU of Texas. “It was just a failed policy, across the board.”
Ismael Martinez, director of a migrant shelter in Ciudad Juárez, said the possibility of reviving “remain in Mexico” is a painful blow for asylum seekers. Martinez asked that the name of the shelter not be published due to security concerns.
“(The decision to reinstate MPP) is another nightmare for the people that come from Central America — some people have been waiting for three years,” he said in Spanish. “I still have people from MPP, from the last time, that have been waiting for three years in the process.”
Judge Kacsmaryk delayed the effect of his ruling for one week in order to give the Biden administration time to appeal; on Monday, the Biden administration announced it would indeed appeal.
If the administration’s appeal fails and the policy is revived, the potential impacts in the Borderland are complicated by another Trump-era policy involving the expulsion of asylum seekers into Mexico: Title 42.
Under Title 42, migrants may be rapidly expelled to Mexico or their home countries upon arriving at the U.S. border to seek asylum. Former President Trump said he invoked the rule to help contain the spread of COVID-19. But many of the criticisms made by advocates of the “remain in Mexico” program also apply to Title 42, and the Biden administration has come under fire for continuing to enforce the latter.
“The decision seems illogical, especially in the face of migrants facing Title 42 expulsions,” said Linda Rivas, executive director of Las Americas immigrant advocacy. “There is a disconnect between the court and what happens on the ground.”
Hannah Hollandbyrd of Hope Border Institute, a humanitarian organization that works with migrants in El Paso and Ciudad Juárez, emphasized the parallels of the two programs.
“(Title 42 and “remain in Mexico” are) very similar programs, except that one is worse and has fewer protections and is more chaotic if possible than ‘remain in Mexico’ was,” Hollandbyrd said. “We really don’t know yet what’s going to happen.”
Drake was reluctant to comment on what a revived MPP program would look like in practice, but he emphasized that there is no version of “remain in Mexico” that would not entail a violation of the right to seek asylum in the United States.
“Locally, thousands and thousands of people were returned to Ciudad Juárez, where they faced systemic extortion, kidnappings, rape, disappearances, and any return to that would be terrible,” Drake said.
Migrants can face significant dangers while navigating the shelter system in northern Mexico. Human Rights First recorded over 1,500 cases of murder, rape, torture, kidnapping and other violent assaults linked to the MPP program as of February 2021, and tracked 3,250 cases of such attacks linked to Title 42 as of June 2021.
At Martinez’s shelter, Magda, a 33-year-old Guatemalan woman traveling with her 5-year-old son, said they were kidnapped shortly after being turned back at the bridge in Ciudad Juárez. She said they managed to escape by jumping out of the moving vehicle, but that her son suffered a head injury in the process. Madga, who left Guatemala in July after being extorted by gangs, asked that her last name not be due to concerns about her safety.
“Sometimes (my son) screams or something while he’s sleeping, but it will pass,” she recalled in Spanish. “When I told him, ‘Run!’ he said ‘Why? What’s wrong? Are the police going to grab us?’ No, my love, we already got away from them. But anyway, thank God we are safe now,” she said.
Miriam, a Salvadoran asylum seeker who shares sleeping quarters at the shelter with Magda, was kidnapped in Mexico with her husband and 3-year-old daughter, she said. She also asked that her last name not be published due to concerns about her family’s safety.
“Here in the shelter we are safe, but we are scared to leave, that we might be deported to our country or kidnapped,” Miriam said.
She described the trauma that her daughter experienced when they found themselves in the middle of a gunfight, separate from the kidnapping incident in which they were held for five days.
Magda and Miriam both expressed uncertainty with the mechanisms through which they were expelled from the United States, and were unable to confirm whether it was through Title 42.
But while Magda only interacted with U.S. immigration officials for a short time at the bridge after being turned away, Miriam and her family entered the United States in McAllen and were held there for six days before being first sent to Houston, then El Paso, where they were then expelled to Ciudad Juárez.
Martinez said he is uncertain how much would change at the shelter if MPP were reinstated, since capacity at humanitarian organizations in Juárez is already being pushed to the brink. He said they currently struggle to obtain adequate food, clothing and cleaning supplies at the shelter, but will continue to offer a helping hand to those in need.
For Hollandbyrd, whose organization has worked with migrants entering the United States through the MPP drawdown and others who have been expelled under Title 42, the two policies both have a similar effect of “externalizing” the border.
“Wealthy nations push the responsibility to welcome people onto countries like Mexico that don’t have as much capacity. We’re … saying Mexico can handle the influx of vulnerable people even though they don’t have the same resources that we do,” Hollandbyrd said.
“Border communities (on the U.S. side) have a lot of capacity to welcome asylum seekers and refugees,” she lamented.
Corrie Boudreaux contributed reporting to this story.
Cover photo: Women living at a migrant shelter in Juárez wash clothes by hand on Tuesday morning. This shelter currently holds around 200 migrants, but that number could rise dramatically, straining its resources, if the Migrant Protection Protocols are reinstated. (Corrie Boudreaux/El Paso Matters)