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U.S. volunteer Mary Keenan of Brownsville, Texas hands out markers on December 8, 2019 during a class for immigrant children at a refugee camp near the Gateway International Bridge in the border town of Matamoros, Mexico

U.S. volunteer Mary Keenan of Brownsville, Texas hands out markers on December 8, 2019 during a class for immigrant children at a refugee camp near the Gateway International Bridge in the border town of Matamoros, Mexico, where more than 1,000 Central American and Mexican asylum-seekers are awaiting their next court hearings. (Photo: John Moore/Getty Images)

Biden Rebuked for Plan to Implement 'Even Worse' Version of Trump's 'Remain in Mexico' Policy

"The Biden administration must stop hiding behind a flawed court order to justify" the abuse of asylum seekers, said one immigrant rights advocate.

Kenny Stancil

After the U.S. government announced Thursday that it has reached an agreement with Mexico to restart the Trump-era "Remain in Mexico" program, immigrant rights advocates criticized the Biden administration for "hiding behind a flawed court order to justify" reviving a policy that forces asylum seekers to wait in makeshift camps along the southern border pending legal review of their cases.

"Biden didn't just bring back Remain in Mexico. He's made it even worse."

Re-implementation of the so-called Migrant Protection Protocols (MPP) program will begin as soon as Monday, the U.S. Department of Homeland Security (DHS) said in a statement, adding that "once fully operational, MPP enrollments will take place across the Southwest border, and returns to Mexico will take place at seven ports of entry in San Diego, Calexico, Nogales, El Paso, Eagle Pass, Laredo, and Brownsville."

Mexico's "decision to accept the return of individuals enrolled in the program [is] subject to certain humanitarian improvements," DHS noted. According to the agency, which worked with the U.S. Departments of State and Justice, key changes to MPP include: 

A commitment that proceedings will generally be concluded within six months of an individual's initial return to Mexico; opportunities for enrollees to secure access to, and communicate with, counsel before and during non-refoulement interviews and immigration court hearings; improved non-refoulement procedures; and an increase in the amount and quality of information enrolled individuals receive about MPP.

DHS will exclude particularly vulnerable individuals from being enrolled in MPP. In addition, DHS will provide Covid-19 vaccinations for all persons enrolled in MPP.

Immigrant rights advocates, however, stressed that MPP is an irredeemable violation of human rights regardless of the minor revisions proposed by the U.S. and Mexican governments.

"The Biden administration's shameful regression in restarting this unlawful Trump policy flies in the face of its own determination that no number of changes could render this deadly policy more humane or provide the access to the asylum system that the law requires," Marielena Hincapié, executive director of the National Immigration Law Center (NILC), said in a statement.

Aaron Reichlin-Melnick, a former immigration attorney who is now policy counsel at the American Immigration Council, concurred. In a detailed Twitter thread, he said that "allowing the tiny handful of people who manage to get lawyers (5-7%, compared to 60% inside the U.S.) to have more meeting opportunities before hearings... is not much of a help."

In her statement, Hincapié said that "since its creation, the Remain in Mexico policy has subjected tens of thousands of people to grave danger and violated their fundamental right to asylum in the United States."

The Washington Post reported that "officials in the United States are planning to initially use the MPP program primarily for single adult asylum seekers," who account for the majority of unauthorized border crossings, according to an unnamed Biden administration official.

"Mexico is willing to accept asylum seekers from Spanish-speaking countries, as with the previous version of the program, but migrants from 'all Western Hemisphere nations' will be eligible for return," the newspaper reported, citing an administration official.

In response, Reichlin-Melnick argued that "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."

"[President Joe] Biden didn't just bring back Remain in Mexico," Reichlin-Melnick added. "He's made it even worse."

The Biden administration—praised in June for ending its predecessor's xenophobic policy—insists that restarting MPP is required because of a federal court order. Legal experts, however, argue that the Biden administration has far more leeway than it claims and is certainly not required to expand the program.

In response to a lawsuit filed by Republican officials in Texas and Missouri, a federal judge in August ordered the Biden administration to reinstate Remain in Mexico. The U.S. Court of Appeals for the Fifth Circuit—which former President Donald Trump pushed in an even more conservative direction by appointing numerous far-right judges—"refused the administration's request to put the ruling on hold" and "ordered expedited consideration of the administration's appeal," the Associated Press reported.

On August 24, AP noted, the U.S. Supreme Court's six right-wing justices argued that "the Biden administration likely violated federal law in trying to end" Remain in Mexico and refused to block the lower court's ruling.

Nevertheless, as Reichlin-Melnick pointed out, "the lower court said Biden doesn't need to do the exact same implementation as Trump."

Moreover, said No More Deaths, an organization that provides humanitarian aid to migrants in the Sonoran borderlands, officials in the Biden administration "were considering reinstating MPP well before the court gave them a convenient excuse to do so. Their hands aren't tied, this is a choice."

No More Deaths cited reporting by VICE—published almost a week before the Supreme Court handed down its decision—which said:

Senior U.S. officials have privately discussed reviving the Trump-era policy Migrant Protection Protocols (MPP), colloquially known as "Remain in Mexico," in order to manage the number of migrants arriving at the border, according to three sources with knowledge of the discussions. Under the policy, the U.S. sent more than 70,000 asylum seekers from 2019-2021 to some of Mexico's most dangerous border cities to wait while their immigration cases were decided.

Biden heavily criticized the policy as a candidate and suspended it on his first day in office. But as border apprehensions jumped, high-ranking officials in the White House floated the idea of bringing the program back, and it's been bandied about for weeks among a small circle of government officials. Discussions have centered around whether there could be a gentler version of the policy—a notion immigration advocates decry as ludicrous. 

The NILC's Hincapié on Thursday stressed that "the Biden administration must stop hiding behind a flawed court order to justify restarting Remain in Mexico."

"Instead," she continued, "it should do what we've been saying for months—abandon its indefensible embrace of failed deterrence strategies like Remain in Mexico and the unlawful Title 42 expulsion policy and restore full access to asylum for those seeking safety and freedom."

"Now is the time," added Hincapié, "for the Biden administration to discard misguided political calculus and instead lead with courage and humanity to do everything in its power to relegate Remain in Mexico to the past."


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