‘Remain in Mexico’: Biden administration must keep promise to end policy that forces migrants to wait in dangerous Mexican border towns

Two years ago today, the Trump administration subjected the first migrant to a callous and unlawful policy that risks asylum seekers’ lives by forcing them to wait in Mexico for their U.S. immigration court hearings, stranded in border towns under life-threatening conditions.

Stuck there, families sleep in tents that do little to protect them from the elements or crime. Others crowd together in grimy streets without blankets or pillows amidst this humanitarian crisis. Parents clutch their children tightly out of fear they could be kidnapped.

The Trump administration officially implemented the “Migrant Protection Protocols,” better known as the “Remain in Mexico” policy – aimed at denying legal rights to migrants seeking asylum – on Jan. 25, 2019.

When this policy was first implemented, the Southern Poverty Law Center warned that it would subject asylum seekers to unprecedented danger, further entrench white supremacy in our nation’s immigration system and cause chaos. It has done just that.

This policy has trapped tens of thousands of people at the border – making it nearly impossible for them to exercise their legal rights. By forcing thousands of families seeking protection to remain in Mexico, the Trump administration exposed them to additional risk and attempted to hide this U.S. government-created humanitarian crisis from the American public.  
 
While last week’s announcement by the Biden administration that it will no longer send people into this program is an important first step, there must be immediate follow-up to ensure the thousands of men, women and children currently subject to the policy are allowed to safely enter the United States, with appropriate public health precautions, and provided a meaningful opportunity to present their cases.  

Two weeks after the government returned the first person under the policy on Jan. 29, 2019, the SPLC, American Civil Liberties Union, and Center for Gender & Refugee Studies filed a lawsuit, Innovation Law Lab v. Wolf, challenging the policy on behalf of affected asylum seekers and six legal service providers. 

In April 2019, a federal judge issued a preliminary injunction blocking the policy that was subsequently stayed, allowing the Remain in Mexico policy to remain in effect. In February 2020, the court of appeals affirmed the injunction on the basis that the policy was not authorized by the Immigration and Nationality Act.

Only days later, the U.S. Supreme Court stayed that injunction, allowing the Remain in Mexico policy to continue. The injunction remains blocked pending review by the Supreme Court, and oral argument is scheduled for March 1, 2021.  

In October 2020, the SPLC, in partnership with Innovation Law Lab, the National Immigration Project of the National Lawyers Guild, and pro bono partner Arnold & Porter LLP, filed an additional lawsuit challenging the policy on behalf of certain affected asylum seekers, and two legal service providers, Jewish Family Service of San Diego and Immigrant Defenders Law Center.

This lawsuit alleges that the Remain in Mexico policy has deprived thousands of asylum seekers of access to legal assistance and other tools needed to meaningfully present their claims.

The plaintiffs seek to facilitate the return of individual asylum-seeking plaintiffs, following precautions recommended by public health experts, so they can pursue their claims from within the United States, and to allow legal service organizations to continue their work unencumbered by the challenges of cross-border representation.

The Remain in Mexico policy is unlawful and immoral, and the Biden administration must follow through on its promise to ensure that affected migrants are allowed to safely enter this country and present their cases.

Photo by Eduardo Jaramillo Castro/Getty Images