DHS secretary ends 'Remain in Mexico' border policy

The Biden administration has declared an end to the Trump-era "Migrant Protection Protocols," which forced thousands of asylum-seekers to wait in Mexico while their claims wind through the U.S. immigration court system.

Homeland Security Secretary Alejandro Mayorkas announced the end of policy, also known as "Remain in Mexico," on Tuesday.

The Biden administration suspended the program in January, and began reviewing it in February under a presidential executive order to "determine whether to terminate or modify MPP." Mayorkas said he decided to end the policy. 

"I direct DHS personnel to take all appropriate actions to terminate MPP, including taking all steps necessary to rescind implementing guidance and other directives or policy guidance issued to implement the program," Mayorkas wrote. 

"Remain in Mexico" was one of several strategies implemented by the Department of Homeland Security under the Trump administration designed to stymie asylum-seekers at the Southwestern border.

About 68,000 people were sent back to Mexico to wait for their asylum claims under MPP since it was implemented in February 2019, many of them from Honduras and Guatemala, though this also includes people from Cuba, El Salvador, and Venezuela, according to the Transactional Records Access Clearinghouse, a non-partisan project based at Syracuse University. At its peak, around 12,500 people were sent back in August 2019 as the program expanded along the southwestern border. 

In December 2020, researchers based at the Robert Strauss Center for International Security and Law at the University of Texas at Austin said that CBP sent more than 68,000 asylum seekers back to Mexico, and there were about 22,777 pending cases in MPP courts along the border, split among  four locations along the border. In El Paso, there are 9,381 pending cases, followed by 5,591 cases in Brownsville, 4,758 in San Diego, and 3,047 in Laredo, the group said. 

In Nogales, about 3,800 asylum seekers waited for asylum, the Strauss Center said. 

DHS officials called the program a "cornerstone" of the department's efforts to relieve what it called a "crushing backlog of pending asylum cases," and said that migrants with "meritorious asylum claims can receive protection in months, rather than waiting in limbo for years." However, advocates have complained that the program violates U.S. law, and the 9th Circuit Court of Appeals agreed, ruling against the Trump administration in a pair of decisions in March 2020.

Mayorkas said that his review found that MPP had "mixed effectiveness in achieving several of its central goals and that the program experienced significant challenges."

Since April 2020, the number of people encountered by U.S. Border Patrol agents along the southwestern border has dramatically increased, rising from 17,106 to 78,443 people in January under Trump administration. In the following three months, the number of encounters by Border Patrol grew by leaps and bounds, rising to 101,120 people in February to 173,348 people in March. By April, the number of encounters plateaued, rising just three percent. 

This was largely driven by an increase in the numbers of single adults largely from Mexico attempting to cross into the U.S., and Title 42—a Trump-era policy that allowed CBP officials to immediately expel someone from the U.S. under a public health order from the CDC. With Title 42 in place, people are rapidly processed and deported, and so, some migrants have attempted to come into the U.S. multiple times. 

Troy Miller, the acting commissioner for CBP, said that in February while more than 100,000 people were apprehended, this represented about 75,000 "unique individuals." And, the recidivism rate is at its highest rate in years at 20 percent. 

Meanwhile, the number of unaccompanied children has steadily increased, rising from just 63 children that month to 18,883 in March 2021. Advocates for children have linked the influx to the institution of the Migrant Protection Protocols and Title 42—two Trump-era policies that have largely kept migrant families and children from seeking asylum in the U.S. 

"I have determined that MPP does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls. Over the course of the program, border encounters increased during certain periods and decreased during others," Mayorkas said. He said that based on DHS policy documents, the agency intended the program to "more quickly adjudicate legitimate asylum claims and clear asylum backlogs," however, while some cases were completed quickly, MPP added "certain significant drawbacks that are cause for concern."

Joanna Williams, the executive director of the Kino Border Initiative based in Nogales, Sonora, called Mayorkas' memo "significant" because it "acknowledges the cruelty and impracticality of MPP, which was designed not to work." 

"The memo is the fruit of the hard work of many advocacy groups and migrants themselves who were brave enough to speak out about the cruelties of MPP, as these comments and this evidence was part of what Secretary Mayorkas considered in his review of the program," she said. 

"At the same time, it does not make any practical difference in the lives of migrants still stranded because of the program," Williams said, because the DHS Secretary "is not providing any path to access asylum again for people whose cases were unjustly closed under MPP." 

In his memo, Mayorkas noted that about 44 percent of cases were completed by in absentia removal orders, or orders in which the person did not attend a court hearing. People in Nogales had to travel to Juarez to attend their hearings in El Paso, and hundreds of people were sent to southern Mexico to wait while their MPP cases wound through the courts. Mayorkas said this fact "raises questions for me about the design and operation of the program, whether the process provided enrollees an adequate opportunity to appear for proceedings to present their claims for relief, and whether conditions faced by some MPP enrollees in Mexico, including the lack of stable access to housing, income, and safety, resulted in the abandonment of potentially meritorious protection claims."

"In the absence of MPP, I have additionally considered other tools the Department may utilize to address future migration flows in a manner that is consistent with the Administration’s values and goals," Mayorkas said. He noted that DHS has "at its disposal various options that can be tailored to the needs of individuals and circumstances," he said including detention, alternatives to detention, and case management programs." 

Mayorkas said that these alternatives have been successful, and that the Biden administration's would rely on a "broader strategy" to deal with asylum claims, including a dedicated court docket in the courts. 

Mayorkas also said that MPP had played an "outsized role" in DHS's engagement with the government of Mexico. "Given the mixed results produced by the program, it is my belief that MPP cannot deliver adequate return for the significant attention that it draws away from other elements that necessarily must be more central to the bilateral relationship," he said. Without MPP in the way, U.S. and Mexican officials could "expand the focus" of their relationship, and address the root causes of migration from Central America, Mayorkas said. This would include combatting smuggling and trafficking networks, the DHS Secretary argued. 

"Terminating MPP will, over time, help to broaden our engagement with the Government of Mexico, which we expect will improve collaborative efforts that produce more effective and sustainable results than what we achieved through MPP," he said. 

By the end of April, just under 8,400 MPP cases were transferred to U.S. courts, about one-third of the total cases. And, there were more than 26,000 pending cases as part of the "Remain in Mexico" program. About half of the people transferred into the U.S. under the last weeks of MPP were from Venezuela, according to TRAC. 

"In deciding whether to maintain, modify, or terminate MPP, I have reflected on my own deeply held belief, which is shared throughout this Administration, that the United States is both a nation of laws and a nation of immigrants, committed to increasing access to justice and offering protection to people fleeing persecution and torture through an asylum system that reaches decisions in a fair and timely manner," Mayorkas said.