The “Remain In Mexico” Program

By Iris (Yeonjae) Lim.

The Trump administration dramatically changed the asylum system during the past four years, and with the new Biden administration, asylum seekers at the U.S.-Mexico border are hoping for a change. More specifically, many people are wondering what Biden’s administration is going to do with the Migrant Protection Protocol (MPP) Program, more commonly known as the “Remain in Mexico” Program.

Usually, someone who wants to enter the U.S. needs to have the appropriate visa; however, someone seeking asylum may approach the border without one and go through an additional process instead. Asylum seekers go through an interview, and if approved, proceed with the immigration adjudication process. Many of them are often detained during that process and, before the Trump administration, waited in the U.S. during that time period. However, with the MPP Program, asylum seekers are sent back to Mexico while their cases are pending. This has created many difficulties for asylum seekers with potentially lasting effects.

What is the MPP Program?

With an agreement between the U.S. and Mexican government, the MPP Program officially became implemented on January 25, 2019. The MPP Program essentially returned asylum seekers to Mexico with hardly any benefit of legal assistance while they waited for their U.S. immigration court proceedings. Among those waiting for adjudication, only 4% are represented by an attorney and less than 1% are successful in entering the U.S. As of November 2019, more than 56,000 asylum seekers, including 16,000 children, were sent back to Mexico. Asylum seekers usually have no connection or family in Mexico since most are not from Mexico. The top seven national origins of asylum seekers include Honduras, Guatemala, Cuba, El Salvador, Ecuador, Venezuela, and Nicaragua.

The MPP Program is currently in place at five locations. It started at the San Diego/Tijuana border and expanded to Calexico/Mexicali in California, as well as El Paso/Juárez, Laredo/Nuevo Laredo, and Brownsville/Matamoros in Texas. The Program isn’t officially implemented in Arizona, and yet, thousands of asylum seekers apprehended in Arizona end up in Mexico by being transferred to one of the five locations that implements the MPP Program, making the asylum seekers wait, possibly for years, for their final adjudications. According to the U.S. government, by August 2019, Yuma was the third-busiest point along the U.S.-Mexico border and had the highest yearly number of apprehensions since 2006. Still, according to Customs and Border Protection officials, migrants who enter through Arizona’s six ports of entry are not considered to be under the MPP Program.

Effects of the MPP Program

The MPP Program caused many migrant camps to be set up along the border, which made asylum seekers easily targeted by criminals. Many of them face “kidnapping, sexual assault, exploitation, lack of basic necessities, abuse and other dangers in Mexico.” Human Rights First, an advocacy group, found at least 816 cases of physical violence. Even the State Department has placed Mexico on its “Do Not Travel” list, stating that U.S. citizens should not visit there due to high rates of crime and kidnapping.

Especially vulnerable are those with mental health conditions, disabilities, or chronic health conditions, as well as those in the LGBT community and pregnant women. Many camps have inadequate access to medication, clean water, showers, and bathrooms. Asylum seekers must often sleep outside during the winter in cold weather, making it even more difficult for the vulnerable groups. COVID-19 has made the situation worse because the camps are very crowded with limited sanitation facilities. Those who become sick, either with COVID-19 or any other illness, are not given permission to enter the U.S. for their court hearings and returned to Mexico with later court dates instead.

Moreover, criminal organizations in Mexico that continuously kidnap asylum seekers assume that these asylum seekers have U.S. relatives who are willing to pay thousands of dollars for their safe return. With the MPP Program, these organizations have increased their activities by targeting asylum seekers with family members in the U.S. and turning them into commodities. Asylum seekers subject to the MPP Program are easily identifiable in Mexico since they “appear foreign, speak with noticeable accents, or do not speak Spanish at all.” Moreover, Customs and Border Protection agents regularly send them back to Mexico without shoelaces to prevent them from harming themselves while waiting, and with plastic folders with their notice to appear in court, which makes it easy for criminal organizations to target the asylum seekers. Between November 2019 and January 2020, criminal organizations have been responsible for kidnapping at least 80 asylum seekers in addition to other kidnapping attempts. Among those, at least 38 children were involved, and several women reported sexual assault during those incidents. Moreover, asylum seekers could not seek help from the Mexican police because the police either “ignored reports of violence or were themselves implicated in the crimes.”

A study from the U.S. Immigration Policy Center at the University of California at San Diego found that the longer asylum seekers waited in Mexico, the more likely they were threatened with violence. The Trump administration stopped all hearings for an indefinite time due to the COVID-19 pandemic. More than 67,000 asylum seekers are currently, or were previously, subject to the MPP Program.

Legal basis for the MPP Program

A memo from the Department of Homeland Security states that the legal basis for the MPP Program comes from section 235(b)(2)(C) of the Immigration and Nationality Act (INA), which “authorizes the Department of Homeland Security to return certain applicants for admission to the contiguous country from which they are arriving on land (whether or not at a designated port of entry), pending removal proceedings under INA § 240.”

As of December 2019, ACLU and other immigrant rights organizations continue to challenge the legality of the MPP program. In June 2020, Human Rights Watch submitted a formal complaint regarding the MPP Program, arguing that the U.S. government should stop the Program and provide asylum seekers access to safety and due process in immigration court proceedings.

The Biden Administration

The Biden administration has announced that “it will no longer enroll asylum seekers newly arriving on the southern border in a Trump-era program that has forced tens of thousands to wait in Mexico for a chance to obtain protection in the United States.” However, asylum seekers currently enrolled in the Program are being told to “remain where they are, pending further official information from U.S. government officials.” Therefore, although the Biden administration is no longer enrolling new asylum seekers in the Program, it’s not clear what will happen to those who are already subject to the Program and currently waiting in Mexico. The most recent communication from the Biden administration explicitly mentioned the MPP Program, stating that although the “situation at the border will not transform overnight,” the administration “will ensure that Central American refugees and asylum seekers have access to legal avenues to the United States.”

The MPP Program was implemented via an executive order, so it can be changed by another executive order. However, several questions remain as to what the Biden administration will do about asylum seekers currently in Mexico and how it will address the potential long-term effects the MPP Program had on those impacted.

"Immigration" by lcars is licensed under CC BY-NC 2.0

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By Iris (Yeonjae) Lim.

J.D. Candidate, 2022

Iris is a 2L Staff Writer for the Arizona State Law Journal. She’s from South Korea and has lived in 7 different countries so far. She earned her undergraduate degree from Emory’s Goizueta Business School and moved to Phoenix for law school. In her free time, she likes to watch movies and try out new cafes and restaurants with friends.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.