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US: Supreme Court Ruling Endangers Asylum Seekers

Biden Administration Should Maintain Course to End ‘Remain in Mexico’ Program

Lizbeth, a Salvadoran woman seeking asylum in the United States, poses for a portrait in a relative's home in Tijuana, Mexico, where she was returned to wait for the outcome of her case, November 5, 2019. © 2019 AP Photo/Gregory Bull

(Washington, DC) – The Biden administration should take necessary legal measures to end an abusive Trump-era border policy following the August 24, 2021, US Supreme Court ruling upholding the program, Human Rights Watch said today. The court affirmed a lower court ruling ordering the Biden administration to make good faith efforts to restart the Migrant Protection Protocols (MPP) program, known as “Remain in Mexico,” which has resulted in more than 71,000 asylum seekers being sent to dangerous Mexican border cities to await the outcome of their US immigration court proceedings.

The courts ruled that the Biden administration improperly ended the program under the federal Administrative Procedures Act because it failed to adequately consider the impact on the states of Texas and Missouri, which had challenged the action. The administration should consider all available legal actions to completely end the program, including “re-terminating” it as soon as possible by a new memorandum from Department of Homeland Security that provides the full legal basis for doing so.

“Reviving the ‘Remain in Mexico’ program would be a human rights fiasco that would erase the small measure of progress that President Joe Biden has made at the border,” said Ariana Sawyer, US border researcher at Human Rights Watch. “The Biden administration should use its existing authority to end the policy as quickly as possible, and roll back other Trump-era anti-asylum policies.”

Under the MPP program, the US government sent asylum seekers, including tens of thousands of children and people with disabilities or chronic health conditions, to Mexico, where they lack access to necessities and are known to be targeted by organized crime and at times by Mexican law enforcement for kidnapping, rape, assault, extortion, and other abuses. The program compounded existing failings of the US immigration court system, including lack of access to counsel, barriers to legal representation, lack of transparency, and limited legal protections. The Biden administration rolled back the program in January and had admitted to the United States just over 13,000 of the 71,038 people previously returned to Mexico to continue their immigration proceedings.

The Biden administration’s multi-phase wind-down process has been extremely slow and will be hampered by the Supreme Court’s ruling, Human Rights Watch said. Thousands of the asylum seekers the Trump administration sent to Mexico under the program remain unaccounted for, having failed for unknown reasons to register with the United Nations High Commissioner for Refugees (UNHCR), despite the likelihood that they would have been able to enter the United States if they had done so.

After the Supreme Court’s ruling, asylum seekers in the MPP program can no longer register with the UNHCR registration website. The Biden administration should explore using individualized grants of “humanitarian parole,” an action allowable under the federal court decision, to continue to admit people previously subject to the MPP.

“People previously subject to MPP are devastated by this ruling and by the Biden administration’s failure to implement a wind down process commensurate with the urgency of their situation,” said Taylor Levy, an attorney who works with asylum seekers in the program. “The reality is that every day they are stuck in Mexico is another day of risk.”

One family previously subject to MPP, a couple and their 12-year-old daughter whose names are not being used for their protection, have been waiting in Mexico for over two years and were in the middle of “Phase Two” of the administration’s wind-down process when the Supreme Court decision came down. While Phase One included only asylum seekers with active cases, Phase Two included asylum seekers who were unfairly ordered “removed in absentia” after missing a US court hearing. Many of those asylum seekers were unable to attend their court hearings because they had been kidnapped in Mexico, as was the case with this family, or because they did not want to risk the danger of travelling to a port of entry.

“It’s very stressful because it is very dangerous here,” the woman said. “There are a lot of sudden gun battles. What worries me and what makes me sad is that my daughter has missed so much time at school. We pray to God that everything turns out OK.”

The MPP program requires bilateral cooperation between the United States and Mexico. When the program began, Mexico agreed to accept non-Mexicans returned by the United States, provide for the safety of asylum seekers waiting in Mexico, and ensure that they would have access to work, health care, education, and the justice system. However, Human Rights Watch found that the Mexican government failed to provide these protections, leaving thousands stranded in Mexico unable to support themselves or use basic services and with no recourse when they suffered abuses from criminal cartels or Mexican authorities.

Mexican President Andrés Manuel López Obrador has denied that abuses took place under MPP, claimed that the program produced “very good results,” and would not take a position on whether it should be restarted. Following the Supreme Court decision, Mexico’s Foreign Ministry put out two ambiguous statements calling the ruling a “unilateral measure” over which “the Mexican government has no position” and saying that Mexico is holding a “technical dialogue” with the Biden administration over immigration management.

“President López Obrador has been an enthusiastic collaborator in the MPP program, which is implemented in Mexico and relies on the full cooperation of the Mexican government,” said José Miguel Vivanco, Americas director at Human Rights Watch. “His claim now that it has nothing to do with him is disingenuous and absurd. He should immediately recognize the abusive reality of ‘Remain in Mexico,’ reject the program in unequivocal terms, and make it clear the Mexican government will no longer cooperate.”

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