Yuma, Ariz. — Discarded shoes lie in the dirt at a vehicle barrier which serves as the U.S.-Mexico border fence on 12/10/21 (Photo by John Moore/Getty Images).
By Allegra Love
The Biden administration is facing heavy criticism for restarting a U.S. government program under court order that resulted in over 6,000 reports of violent assault, including kidnapping, rape, murder, and torture, from migrants with pending asylum cases in the United States.
That number comes from an August report by the Washington-based organization Human Rights First.
Remain in Mexico, also interchangeably and audaciously referred to as the Migrant Protection Protocols (MPP), was a Trump-era policy instituted in 2019 that processed asylum-seekers at the U.S. border and then sent them to wait in the streets of northern Mexico for their asylum hearings in U.S. immigration court.
It worked like this: after asylum-seekers turned themselves in to border patrol and asserted their fear of persecution in their home country, they would be tossed back into Mexico with a notice to come back at a later date, often many months in the future. On that date, they had to return to the port of entry where they would be shackled and brought to the nearest immigration court to have their first hearing. The charges — that they came to the U.S. without a visa — would be read, and then they would be dumped back in Mexico to wait for the next hearing.
Where they were to sleep, how they should feed themselves, and how they ought to protect themselves from violence was not the problem of the U.S. government.
When these protocols started there was a fair amount of outrage from immigration advocates, although not much from the general public.
The policy was instituted in the smoldering wreckage of Trump’s family separation catastrophe, and Americans were already exhausted by border issues. Many of us had adjusted our tolerance for the suffering of immigrant families.
There were no more pictures of crying kids in cages in the news. The Trump administration had found a more shadowy and vicious way to deter people from seeking asylum.
It was highly effective. Asylum approval rates are really low in the U.S.
Data show between 25% and 30% of cases were approved in 2020. But of the 70,000 people who were subjected to the Remain in Mexico protocols, only 1% of them were able to complete their cases and win asylum. The policy all but ensured a lack of due process. The dangers to migrants were dizzying. There were daily missives from advocates on the border about the devastatingly impoverished conditions that migrants in Mexico were forced to endure and the extreme violence they faced in the streets.
By the end of the Trump administration, the pandemic and the much farther reaching Title 42 had rendered the protocols unnecessary, as Border Patrol was simply turning asylum-seekers back to Mexico with no acknowledgment of their claims to protection or court cases. Yet fulfilling a campaign promise, the Biden administration made a big show of ending the Remain in Mexico policy. Officials invited any remaining folks waiting in Mexico for hearings to show up at the port of entry and be processed so they could pursue their case inside the U.S.
This was an act of savage hypocrisy considering the Biden administration maintains its commitment to the far more dangerous Title 42 closure, but officials effectively calculated that the public wouldn’t put two and two together and took a victory lap for ending the Remain in Mexico policy.
Then Texas sued.
Texas’ position in the lawsuit to reinstate the policy was that the Biden Administration acted “arbitrarily and capriciously” in the hasty shut down of the program. Texas has a track record of using the burden that is placed on state agencies to accommodate migrants as evidence of injury in lawsuits. In August, a federal judge in the fifth circuit ordered the Biden Administration to reinstate the policy. Permanently. .
Shortly thereafter, the Supreme Court sided with Texas, saying the Biden administration likely couldn’t dispute that the memo rescinding the policy was “arbitrary and capricious.”
On Oct. 29 the Biden administration issued another memo terminating Remain in Mexico. In that memo, the Department of Homeland Security recognized that the policy likely contributed to reduced migratory flows. But it did so by imposing substantial and unjustifiable human costs to migrants who were exposed to harm while waiting in Mexico.”
Yet, awkwardly, the policy remains in place under court order, and after protracted negotiations with Mexico, it appears that the Biden administration is poised to comply and begin enrolling asylum-seekers who will wait in Mexico for hearings once again.
It’s not clear how this will all work.
What is crystal clear, however, is that migrants subjected to these protocols will face extraordinary violence, and our government, knowing these facts, will subject them to that violence programmatically.
The right to seek asylum is protected under international law. With Remain in Mexico protocols, our government makes exposing one’s body to rape and murder and torture a condition of exercising that right. Its inhumanity is beyond repair. It was illegal, immoral and shameful when Trump did it and will remain illegal, immoral, and shameful when the Biden administration does it.
And it will help cement Biden’s reputation as being just as bad on the border as the monster he replaced.
Allegra Love is an immigration attorney from Santa Fe, N.M. She wrote this op-Ed for Source New Mexico, a sibling site of the Pennsylvania Capital-Star, where it first appeared.
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