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Biden Reinstates Trump-Era “Remain in Mexico” Policy

By LawCommentary | Posted on January 24, 2023

A woman holds her daughter while waiting to be processed by US border patrol after crossing the US-Mexico border in July. Photograph: Paul Ratje/AFP/Getty Images

A woman holds her daughter while waiting to be processed by US border patrol after crossing the US-Mexico border in July. Photograph: Paul Ratje/AFP/Getty Images

President Biden has elected to continue the controversial Trump-era immigration policy requiring asylum-seekers to wait outside of the country while their claims are pending. Although the White House was forced to reinstate the so-called “Remain in Mexico” policy by court order, progressive politicians and human rights activists are concerned with the direction of the country’s immigration policies.

The Migration Protection Protocols, commonly referred to as the “Remain in Mexico” policy, was instituted by former President Trump in 2019. Historically, asylum seekers have been permitted to wait in the United States while an immigration court reviews their claims. Refugees apply for asylum because of political or social persecution in their home country, and waiting outside the country is often not a safe option.

To be granted asylum... an applicant would need to demonstrate past persecution or a reasonable fear of future persecution in their home country based on their race, religion, national origin, membership in a particular social group or political opinion.
— Scott Messinger, Immigration Attorney

Queens-based immigration attorney Scott Messinger explains the legal standards for receiving approval of an asylum application, which he says have not changed even though the logistics have. “To be granted asylum,” says Messinger, “an applicant would need to demonstrate past persecution or a reasonable fear of future persecution in their home country based on their race, religion, national origin, membership in a particular social group or political opinion.” Messinger points out that many applicants from Central America are fleeing gang violence or poverty in their home countries, and they therefore face a difficult time fitting their cases into one of the criteria listed above. “Applicants from Venezuela or other countries in the midst of a political crisis have an easier time getting asylum,” he says.

President Biden suspended the Remain in Mexico policy on his first day in office, calling the prior administration’s actions “inhumane.” Under the Trump administration, more than 60,000 asylum seekers were forced back across the border to Mexico, where they were preyed upon by criminal cartels and left in legal limbo for months or years while waiting for a decision. Many refugees arrive at the U.S.-Mexico border with no connection to Mexico, having traveled from Central America and other locales.

A number of Republican-led states challenged the President’s decision to unilaterally end Remain in Mexico. In August 2022, a federal court in Texas sided with the states and ordered the government to reinstate the policy pending the outcome of the lawsuit. The Supreme Court offered the administration no recourse, forcing the Biden White House to grapple with the program. In December 2022, the White House reached an agreement with the Mexican government to reinstate the program.

The Department of Homeland Security has promised several reforms to the program to address humanitarian concerns. For example, immigration services will aim to conclude immigration court proceedings within six months of returning the refugee to Mexico, rather than subjecting asylum seekers to additional months or years of waiting. The U.S. will work to ensure migrants subject to the policy have safe shelter during their stay in Mexico and will ensure they have immigration counsel during the immigration process.

Human rights advocates are not mollified by the proposed changes to the program. In a press release, Human Rights First unequivocally decried “‘Remain in Mexico’ and other policies that flout asylum laws and treaties” as “inhumane and unjust.” “U.S. officers will be delivering people seeking protection back to places where they are targets of kidnappings, torture, and brutal attacks.”

Compounding the problem are many new immigration enforcement measures recently introduced by the administration. Refugees from certain countries, including Haiti, Cuba, Nicaragua, and Venezuela will be summarily refused entry at the border, even if they show up at a legal port of entry to apply for asylum. On a recent trip to the border, President Biden advised asylum seekers: “Do not just show up at the border.” Instead, “stay where you are and apply legally from there.” But asylum is meant for migrants fleeing from violence in their home countries; staying where they are might not be a feasible option.

The administration argues reform is necessary because of an influx of asylum seekers at the border, combined with a limited quantity of immigration officers and courts. Notably, the U.S. has continued admitting record-low numbers of refugees even after the conclusion of the Trump administration, in large part because of the COVID-19 pandemic. Only 11,411 refugees were admitted to the country in 2021, down from close to 54,000 in 2017 and the lowest ever since the passage of the 1980 Refugee Act.

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