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Jan. 25, 2021

After 2 years, ‘remain’ remains, and its human toll keeps rising

On President Joe Biden’s first day in office, the Department of Homeland Security announced that it would stop adding people to the program. While this is a welcome first step, thousands are still stranded in danger.

Julia Neusner

Associate Attorney, Human Rights First

Friday, Jan. 29 marks the second anniversary of the Trump administration's so-called Migrant Protection Protocols, better known as "Remain in Mexico." Under this policy, the U.S. government has forced asylum seekers and other migrants to return to dangerous regions of Mexico and wait while U.S. immigration courts adjudicate their cases. On President Joe Biden's first day in office, the Department of Homeland Security announced that it would stop adding people to the program. While this is a welcome first step, thousands are still stranded in danger. The administration should rescind the policy and start processing those returned to Mexico. If it doesn't, the U.S. Supreme Court will soon weigh in on the policy's legality.

The Supreme Court is poised to hear arguments in Wolf v. Innovation Law Lab, a challenge brought to MPP out of the 9th U.S. Circuit Court of Appeals, on March 1, 2021. Human Rights First has submitted an amicus brief in support of plaintiffs in the case detailing the policy's devastating human toll. Over 100 non-governmental organizations and legal clinics joined the amicus brief in a strong signal of the legal community's opposition to this inhumane policy.

Since first implementing MPP at California's border with Mexico in early 2019 -- before expanding it across the southern U.S. border -- DHS has returned approximately 70,000 people to Mexico. Many have been assaulted, raped and kidnapped, and at least one person has been murdered, while waiting months or even years in some of the world's most dangerous cities. An exceedingly small number of those subject to the policy have secured U.S humanitarian protection. None of this should be a surprise, as U.S. State Department reports described at the time of MPP's implementation "violence against migrants by government officers and organized criminal groups" as one of "the most significant human rights issues" in Mexico.

In February 2020, the 9th Circuit upheld the district court's preliminary injunction blocking MPP in Innovation Law Lab, ruling that the plaintiffs -- 11 asylum seekers and several human rights and immigrants' rights organizations -- were likely to establish that the policy violates U.S. law and treaty obligations. But the Supreme Court stayed the decision, allowing the Trump administration to continue delivering more people to danger in Mexico -- a decision that has caused untold additional suffering.

The plaintiffs argue that the government lacks the statutory authority to return asylum seekers and other noncitizens to Mexico, that the policy illegally bypasses notice-and-comment rulemaking required by the Administrative Procedure Act, and that it violates U.S. immigration law and treaty commitments to avoid refoulement of refugees.

The principle of non-refoulement prohibits states from sending people to any country where they would be threatened with persecution, torture or other serious human rights violations -- an obligation stemming from two international agreements that that United States has ratified: the 1967 Protocol Relating to the Status of Refugees (which incorporates the non-refoulement obligations of the 1951 Convention Relating to the Status of Refugees) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Human Rights First's amicus brief leaves no room for doubt: MPP violates U.S. non-refoulement obligations and blocks the vast majority of those returned to Mexico from receiving asylum or other humanitarian protections for which they are eligible.

First, the evidence is overwhelming that asylum seekers returned to dangerous Mexican border cities are subjected to violent attacks with horrifying frequency. Human Rights First has documented at least 1,314 public reports of murder, rape, torture, kidnapping and other violent assaults against asylum seekers in MPP. Sadly, this is surely only a small sample of the violence, as most people subjected to MPP have not spoken with researchers or journalists.

Those harmed on the other side of California's southern border include a 35-year-old Salvadoran asylum seeker who was kidnapped, fatally stabbed, and dismembered after U.S. immigration officials returned him with his wife and two children -- both under the age of 10 -- to Tijuana. Immigration officials also returned an asylum-seeking mother and her disabled 9-year-old daughter to Tijuana under MPP. They were kidnapped at knifepoint just blocks away from the port of entry and held captive for 19 days. The mother recalled, "they tied my daughter up in a sheet so she could not move. They beat us repeatedly. They took off all our clothes, touched us sexually, raped us, and masturbated in front of us. They ... said they would light me on fire."

In addition to this targeted violence, people forced to remain in Mexico endure terrible living conditions. Many languish in extortionate migrant hotels, dilapidated shelters, and squalid tent encampments just across the border. Many go without enough to eat or adequate medical care.

Second, MPP obstructs and denies due process to those seeking asylum, leading to unjust denials of humanitarian protection and ultimately to bona fide refugees being deported to harm. The policy creates nearly insurmountable barriers to obtaining counsel for most asylum seekers returned to Mexico. Of those MPP cases which have been decided, 96% were unrepresented. Data shows that those with counsel are 12 times more likely to secure relief in their case than those without. Furthermore, unrepresented asylum seekers are not even permitted to speak with attorneys or other pro bono legal service providers in the moments before immigration court hearings - the only time people in MPP are permitted in the United States.

The very few individuals able to secure counsel encounter major obstacles to effective representation. At the San Diego immigration court, for instance, attorneys reported that they were provided far less than the hour promised by DHS to confer with their clients and could not access any private meeting spaces to preserve client confidentiality.

Left to navigate the complex U.S. immigration system alone, many in MPP have been denied protection. Others have been ordered removed in absentia after missing a hearing because they were kidnapped. With the cards stacked against asylum seekers in MPP, it's no surprise that fewer than one percent have been granted some form of relief.

MPP is just one of a barrage of the illegal policies the Trump administration used to virtually eliminate refugee protections at the southern border. These include "metering" to limit the number of asylum seekers processed each day through ports of entry, rules barring asylum claims by individuals who cross between ports of entry and those who arrive at the U.S. border after going through a third country, and a baseless order by the Centers for Disease Control and Prevention that DHS has used to summarily expel asylum seekers and other migrants to Mexico or to the countries where they fled persecution.

The Biden administration has the legal authority to rescind these policies and to use executive actions to restore humane processing of asylum seekers at the border. With the Supreme Court scheduled to soon hear oral arguments in Innovation Law Lab, the need to act on MPP is urgent. Not only is this policy plainly illegal, but it has also caused immense and unjustifiable human suffering -- suffering that continues each day the policy persists.

With thousands of lives at stake, the Biden administration should immediately rescind MPP as a crucial step toward restoring humanitarian protections for people seeking safety in the United States. 


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