The Department of Homeland Security is phasing out the so-called “remain in Mexico” policy, allowing asylum-seekers to stay in the U.S. while their applications seeking protection are processed.

But the announcement Monday provided few details on how DHS will terminate the controversial program, formally known as Migrant Protection Protocols, leaving El Paso-area migrant advocacy groups anxious about what comes next.

“There’s a lot of unanswered questions and no clear direction on how many of these cases should be handled,” said Marysol Castro, managing attorney for the Diocesan Migrant and Refugee Services.

Under MPP, those who arrive at the southern border and ask for asylum are given notices to appear in U.S. immigration court but are sent back to Mexico to await their hearing. Immigration advocates have criticized the program, saying it exposed migrants to violence in Mexico and didn’t provide adequate or timely access to attorneys.

On Monday, DHS said it’s no longer enrolling asylum-seekers into the MPP, and those currently under the program in Mexico will be disenrolled when they return for their next scheduled court date. Those disenrolled from MPP will wait to continue their court proceedings in the United States.

Migrants who do not qualify for asylum will still be processed for deportation, DHS officials said.

One issue the DHS announcement doesn’t address is what happens to those asylum-seekers in the middle of the hearing process, such as a 35-year-old Venezuelan who is seeking an appeal after his case was recently denied by a federal immigration judge in El Paso.

Castro said her client, a whistleblower whose life was threatened after he reported government officials who were stealing gas and reselling it for personal profit, was placed under the MPP program eight months ago. He has been staying at a Juárez migrant shelter, where he was allegedly beaten and robbed.

Because his case was denied, he was effectively disenrolled from MPP.

“So for now he has to continue waiting in Mexico although there’s a pending court date for his appeal,” Castro said.

Fernando Garcia, executive director of the Border Network for Human Rights, said the DHS announcement is a move in the right direction.

“But we’re concerned that there’s no infrastructure in place to process people,” Garcia said, referring to migrant housing as well as asylum judges, officers and lawyers. “We need clean, clear protocols but also funding to manage the movement of people and provide them representation in court.”

Garcia also said it’s unclear if asylum-seekers who are now in Mexico awaiting their scheduled hearing will be required to remain there.

“We don’t know if those who have court dates but are in Mexico under MPP will now be allowed to enter the U.S., and if so, how and when,” Garcia said.

In a statement, DHS officials said more information would be provided in the coming days and that MPP enrollees should follow the directions on their court documents and appear for their hearings as scheduled.

When the Biden administration first sought to phase out MPP in early 2021, the DHS announced a plan to process into the U.S. eligible asylum-seekers who had been forced to return to Mexico and had pending cases before the Executive Office for Immigration Review. 

At that time, DHS was working to implement a “triaging system” in Mexico to manage intakes and create a virtual registration system where eligible asylum-seekers would be told where and when to present themselves for entry into the U.S.

MPP tangled in court system

Another pressing question is whether the most current ruling on MPP will stand.

Soon after the district court’s ruling on Monday, Texas and Missouri filed a motion to postpone the effective date of the agency’s action. In an amended complaint, the states asked that the Biden administration’s termination of MPP be deemed unlawful and be set aside.

“We’re having to be very careful on how we move forward because anything can change from one day to the next,” Castro said, citing the policy has faced a number of legal battles since its inception.

MPP was implemented in El Paso, San Diego and Calexico, California, under the Trump administration in January 2019 before being extended nationwide. Nearly 70,000 migrants were sent back to Mexico before MPP was suspended then terminated after President Biden took office.

The Biden administration in January 2021 called for an end to the program, setting off a series of legal challenges that led to its reinstatement in December 2021 – since then referred to as MPP 2.0.

On June 30 this year, the Supreme Court ruled that the Biden administration had the authority to terminate the program, sending the case down to lower courts. A U.S. district judge on Monday lifted the injunction blocking the administration from ending the program.

In limbo in Mexico

Homeland Security Secretary Alejandro Mayorkas in a statement said the MPP has “endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border.”

About 5,800 asylum-seekers were sent back to Mexico to await their U.S. court dates between December and June – nearly 1,500 of them in the El Paso sector, the latest DHS data shows. The Rio Grande Valley sector saw the largest number of asylum-seekers being sent back to Mexico with just over 3,000 people in the same time period, according to the data.

Enrique Valenzuela, coordinator of the Consejo Estatal de Población in Juárez – the state of Chihuahua’s council on population – said the number of people in that city under MPP 2.0 hasn’t been nearly as overwhelming as when the original iteration was first implemented. 

“Once the policy is lifted, we will of course see fewer people in need of shelter here,” Valenzuela said, adding that the municipal, state and federal governments in Mexico have worked jointly with civic groups, nonprofits and religious organizations to provide shelters to those in need. “The cycle of need varies as policies change, but shelter has been in high demand on our border.” 

“We stepped up, and in large part with the support of religious groups, have been able to accommodate those who choose to stay in the shelters – even though not all choose to do so,” he said. “But the need still exists since Title 42 hasn’t been lifted.”

Title 42, a public health order that removes or expels migrants who cannot establish a legal basis to remain in the U.S., remains in place, DHS officials reiterated Monday. The Biden administration in April announced Title 42 would be lifted in May, but a federal judge issued an injunction blocking its termination pending further court action.

Valenzuela said informing migrants and asylum-seekers about the policies can be challenging.

“There’s often a wrongful perception about what these policy changes mean, and we want to ensure migrants understand that the lifting of MPP does not mean the border is open,” Valenzuela said. “There are still restrictions in place and requirements that must be met.”