Immigration advocates are voicing frustration with the Biden administration over its court-ordered reimplementation of the Trump-era "Remain in Mexico" policy, saying the enforcement — and expansion — of a program it opposed in court shows the White House isn’t fighting the matter as aggressively as it could.
The new “Remain in Mexico” comes after the Supreme Court sided with Texas and Missouri, upholding lower court rulings that the Biden administration must implement the policy “in good faith” as it otherwise appeals the decision.
The Department of Homeland Security (DHS) on Monday began reimplementing “Remain in Mexico,” formally known as the Migrant Protection Protocols (MPP), rolling out a few updates to a policy Secretary Alejandro MayorkasAlejandro MayorkasHillicon Valley — Biden celebrates 'right to repair' wins DHS warns electrical infrastructure an 'attractive target' for domestic extremists Hispanics sour on Biden and Democrats' agenda as midterms loom MORE said has “unjustifiable human costs.”
DHS announced it will assure safe and secure housing for migrants in the program, away from some of Mexico's most dangerous border towns.
Many migrants in those towns became easy victims for criminals, as some 70,000 migrants were returned across the border by the Trump administration to await their court date in Mexico with no clear timeline on their cases.
The government will also provide transportation to and from the border, including to tent courts being established near the border in the U.S., as well as offer COVID-19 vaccines.
But in broad strokes the policy is still the same, leaving migrants from around the globe waiting for months on end in Mexico through a program experts say violates international and U.S. law requiring admittance of asylum-seekers.
“The MPP policy constitutes the pounding into submission of those who, if found to qualify for asylum, we are obliged by international law to admit, protect, and afford numerous fundamental rights," The Roundtable of Former Immigration Judges wrote in an open letter Monday.
The Biden rollout includes some concessions to Mexico, agreeing to not subject vulnerable people, like those with health conditions or who identify as LGBT, to the program. It has also agreed to process asylum claims within six months.
But it baffled immigration advocates by expanding the program beyond the Northern Triangle countries of Honduras, Guatemala and El Salvador to include the entire Western Hemisphere — something not required by the court order.
And Mexico said it will accept no more than 10 percent of the program’s participants from any one country outside the Northern Triangle, a request that has not been publicly acknowledged by the United States.
Advocates say the expansion of the program into the entire hemisphere to include non-Spanish speaking countries like Jamaica and Haiti is even more problematic after border agents were seen corralling Haitian migrants on horseback near Del Rio, Texas, in order to push them back into Mexico.
"There's an element of race in that, there's no question about it," said Rep. Adriano EspaillatAdriano de Jesus Espaillat CabralRift grows between Biden and immigration advocates Sixteen Hispanic House Democrats ask EPA for tougher methane rule Democrats mull hardball tactics to leapfrog parliamentarian on immigration MORE (D-N.Y.), who in 1964 immigrated to the United States from the Dominican Republic.
The inclusion of Haitians in particular drew ire, as Haitian migrants have borne the brunt of Title 42, another Trump-era immigration policy continued under Biden.
Since the incident in Del Rio, the Biden administration has sent 90 flights with more than 9,400 Haitians back to their home country under Title 42, which cites the need for sanitary protections due to the coronavirus pandemic to expel foreign nationals.
Allen Orr, president of the American Immigration Lawyers Association, said the administration may have decided to include Haitians in the program as a way to address migrants who avoided Title 42 expulsions by returning to Mexico as U.S. officials sought to clear the nearly 15,000 people camping under the bridge in Del Rio.
“Haitians and Jamaicans are caught up in this program that hasn't really been sorted out yet to address those Haitians that were forced back into Mexico in the Del Rio incident because those individuals appear to be representing themselves at the southern port of entry for asylum,” he said.
Advocates were left confused about why the Biden administration would voluntarily expand a program they’ve otherwise bashed.
“This is a choice by the Biden administration. The Biden administration was not ordered by the court to expand Remain in Mexico to new populations. They are going well above and beyond the simple good faith compliance with the injunction that's required of them to make this policy more cruel,” Ursela Ojeda with the Women’s Refugee Commission said on a call with reporters last week.
"The fact that individuals were forced into these areas pursuant by a natural disaster that caused Haitians to either be somewhere in Central America, most likely in Chile for some period of time, doesn't mean that they now are fluent in some foreign language,” he said.
“There may be some individuals that are able to get by, but for processing in the immigration courts, the standard has always been what is your primary language.”
And Mexico's 10 percent limit on third-country nationals could either force the United States to admit Haitians, bypassing MPP, or give cause to Mexico to deport the Haitians itself.
The new policy includes some other new elements, including providing free access to calls for those that are able to retain attorneys, but unlike the U.S. criminal court system, the immigration court system does not provide counsel to those unable to afford a lawyer.
But advocates are wary of programs run by DHS, particularly when it comes to upholding the rights of Black immigrants.
Some have also been frustrated that the Biden administration isn’t more aggressively fighting the case. While it issued a new memo rescinding MPP in October, the administration did not put it into effect, instead drafting it to allow it to take effect once the court injunction was lifted.
It was a departure from the tactic under the Trump administration, which would use court cases as a guide to craft new memos and policies, forcing groups to initiate new suits.
“The administration could have been far more aggressive in its attempted rescission of MPP and in its handling of the litigation in Texas. It took them nearly three months to issue a new memo to end the program — the step that is most likely to bring an end to the court's order,” Jorge Loweree, policy director with the American Immigration Council, told The Hill.
“Contrast that with its willingness to mobilize the full force of the federal bureaucracy to disappear thousands of Haitians in Del Rio from one day to the next, and you begin to get a better sense of their priorities.”
Rep. Jamaal Bowman (D-N.Y.) said the Biden administration should look to affected communities to better craft those priorities.
"My message to DHS and the White House is look in the mirror and be very honest with policies that manifest as anti-Black and ask yourselves, 'how are you going to bring in the African American community, the Caribbean community and the continent of Africa to help you be honest and address anti-Black policies?'" said Bowman.