Catastrophic Asylum Program “Remain in Mexico” Could Get Even Worse, Depending on the Supreme Court

The judge’s case-tracking software was down; the prosecutor, squinting at his computer, wasn’t sure if he was supposed to know when asylum-seekers were released into the United States rather than sent back to Mexico; and four out of five of the asylum-seekers whose cases were on the docket that day were still on the other side of the border. Plus, a winter storm was bearing down on West Texas.

The El Paso, Texas, immigration court where the Migrant Protection Protocols hearings took place was beset, on the day I visited in early February, by a series of logistical and legal hitches. One of the missing asylum-seekers was out because of chicken pox, two had Covid-19, and one was simply MIA. The judge ruled that the last one be ordered deported in absentia (that is, deported from a country he was not in to a country he feared returning to), but then she received word that he’d shown up at the port of entry; she retracted his deportation order and retired to her chamber. The court has no way to contact asylum-seekers enrolled in the program, and there was nothing to do but wait.

The judge and the government prosecutor were also repeatedly confused about who was scheduled for the hearings and what their status was. The single MPP enrollee who was actually in court that day said he was scared of being returned to Mexico. The judge scheduled his non-refoulement interview — designed as a safeguard for people who would be in danger of waiting out their cases in Mexico — for later in the day. It was already nearly 2 p.m., and migrants are supposed to have at least 24 hours to prepare for the interview and look for an attorney. The Executive Office for Immigration Review, the Justice Department agency that runs immigration courts, did not respond to requests for comment.

The U.S. Supreme Court is now set to decide whether to standardize such proceedings and vastly expand MPP, which, critics claim, continues to be a catastrophe for due process and protecting migrants. Introduced by President Donald Trump in 2018, the program, also known as “Remain in Mexico,” returns asylum-seekers south of the border to wait for an immigration court date — a chance to make their case for asylum. In practice, MPP thrusts asylum-seekers into the hands of criminal networks and corrupt government agents in notoriously dangerous Mexican border cities.

The high court recently granted the Biden administration’s request to review a decision by the 5th Circuit Court of Appeals in Biden v. Texas, a case brought by Texas and Missouri challenging the administration’s termination of the Migrant Protection Protocols.

Shortly after taking office, President Joe Biden sought to end the program — his administration issued two memos citing its numerous pitfalls and dangers — but Texas and Missouri sued, saying that because they had to offer driver’s licenses to immigrants allowed into the country, they had been “actually injured” by the termination.

Last summer, the U.S. District Court for the Northern District of Texas ruled that the government had to return asylum-seekers to Mexico if it didn’t have sufficient resources to detain them. In response, the Biden administration asked the Supreme Court to intervene, but the court refused to block the ruling, and the Biden administration was forced to restore the program in early December. But instead of a simple restart, it expanded the program — while Trump’s MPP impacted asylum-seekers from Spanish-speaking countries and Brazil, Biden extended its reach to include asylum-seekers from throughout the Western Hemisphere — though actual reimplementation has been slow.

Most asylum-seekers who cross into the United States from Mexico today are summarily expelled under a widely criticized public health policy known as Title 42, which is based on a debunked claim that migrants pose a health threat to the United States. Begun by Trump and continued by Biden, Title 42 is one of the largest restrictions on access to asylum in U.S. history. Those who make it past Title 42’s few exceptions can be paroled into the United States, temporarily allowed into the country and given court dates to continue their asylum claims, while others are detained.

As of February 22, nearly three months into MPP’s restart, the Department of Homeland Security had returned less than 800 migrants to Mexico. Despite the program currently being applied to only a small percentage of asylum-seekers in three border cities, the Supreme Court ruling could have enormous consequences.

The legal statute that Texas and Missouri are trying to force the federal government to abide by comes from a 1996 law that requires mandatory detention of migrants not legally admissible to the country. Prior administrations have worked around the mandatory detention requirement, relying on congressional carveouts as well as submitting to the reality that the government has never had anywhere near the capacity to detain all inadmissible migrants. If the Supreme Court rules in favor of the states this summer, the government would have to detain as many migrants as it can — currently over 100,000 people a month are crossing the U.S.-Mexico border without permission or proper documentation — and push the rest of them back into Mexico, either enrolled into MPP or summarily expelled without any legal recourse for requesting asylum, which would not only put them in danger but also further rattle U.S.-Mexico relations.

A ruling in the states’ favor, as Yael Schacher, deputy director for the Americas and Europe at Refugees International, told me, “would be a huge boon for the private prison companies,” which run detention centers that house about 80 percent of all detained immigrants and annually rake in billions of dollars from U.S. Immigration and Customs Enforcement contracts. It would also further eviscerate current U.S. asylum procedures and set a stark example for the undermining of refugee protocols throughout the world. As Schacher put it, summarizing Texas and Missouri’s lawsuit: “They want to kill asylum.”

A cold snap had set into West Texas and northern Chihuahua, and asylum-seekers in Juárez, Mexico, were crammed into roof-leaking shelters throughout the city.

In Juárez, the largest federally run migrant shelter is Leona Vicario, which first opened in 2019 to temporarily house migrants from the first iteration of MPP. Today it’s where most migrants enrolled in the program in courts in El Paso — which is separated from Juárez by the Rio Grande — are forced to wait.

Outside the shelter, the Mexican National Guard, whose core mission includes a mandate to “stop all migration,” keeps tight perimeter security. The security force has been repeatedly implicated in serious human rights abuses, and its combat-ready troops busied themselves jumping in and out of machine gun-mounted trucks just outside the entrance.

I was denied entrance to the shelter by guards out front and by an official with Mexico’s Secretariat of Labor and Social Welfare, the agency that runs the shelter, but I tracked down a few asylum-seekers who were staying or had recently stayed there. One Central American man, who I’ll call Mateo, was enrolled in MPP in December and has been staying in Leona Vicario ever since. (Along with all the other asylum-seekers I spoke with for this article, he feared retaliation and asked for his name and nationality not to be used.) Mateo described the shelter’s prison-like conditions, bad and insufficient food, filthy bathrooms, excessive cold, and lack of Covid precautions, including not quarantining people who were infected and guards not using masks. One of the guards, Mateo said to me, has repeatedly told some of the migrants, “You don’t belong here. You’re worth shit.” Another guard with a reputation for being a martinet told a Venezuelan man enrolled in MPP that he would disappear him if he didn’t comply with the rules.

Those rules are exacting. All the migrants are required to hand over their cellphones every night at 8 p.m. The phones are returned to the migrants the next morning between 6:30 and 8 a.m. Those who are late have their phones confiscated for three days. Migrants are allowed to leave, but only for two hours a week and only if they have a specific reason, such as receiving a wire transfer. “It’s a nightmare in here,” Mateo said. The Mexican Secretariat of Labor and Social Welfare didn’t respond to requests for comment.

Mateo’s path to Leona Vicario is emblematic of the various obstacles blocking access to asylum in the United States today. He had first tried to cross into the United States outside Yuma, Arizona, in early December but was expelled under Title 42. Shortly afterward, he tried again outside Juárez, where he turned himself over to Border Patrol agents and told them he wanted to apply for asylum. They enrolled him in MPP, and he attended his first hearing in early January. He was sent for a non-refoulement interview, during which he described having been robbed multiple times on his trip through Mexico, including by state police and in the presence of the National Guard. Still, he failed the interview and was sent back to the shelter. He is due to appear in court again later this month.

“The situation, what can I say, you have to be here to understand,” Mateo said. “We are miserable. They know what they’re doing to us, sending us back to a country as corrupt as Mexico.”

Another MPP enrollee at the shelter, Andrés, told me that he suffered what he suspects was a severe PTSD-induced panic attack after being previously kidnapped for over a month in southern Mexico. His heart began beating painfully fast, his left arm swelled, and he felt an intense and unrelenting itch in his hand. As the pain in his arm and chest increased, he asked officials repeatedly to be taken to the hospital but was ignored. “Not until I defecated in my pants, the pain was so bad, did they listen to me,” he said.

Later, Andrés told me, guards confiscated his Bible because he was using it to preach. The explanation the guards gave him, he said, amounted to: “If you don’t like the rules, there’s the door.” Out that door, however, lurked police and criminal groups — both of which are known to prey on migrants.

A 2021 report from Human Rights First found hundreds of cases of kidnappings or other forms of attacks targeted at expelled asylum-seekers. Another report from Human Rights Watch found that half of the asylum-seekers who were enrolled in MPP and surveyed by researchers reported that Mexican officials targeted them for extortion. In some cases, Mexican officials threatened to turn them over to cartels if they didn’t pay.

“It is functionally impossible for shelters in Mexico to work without cooperating with and paying the cartels,” immigration attorney Taylor Levy told me. Levy described such shelters as “kidnapping magnets” and explained that Mexican National Guard members are known to accept money from migrant smugglers. Nicolas Palazzo, an attorney at Las Americas, an immigrant advocacy center in El Paso, put it to me bluntly: “There’s no humane version of MPP.”

There is a smattering of other shelters in Juárez, where hundreds of asylum-seekers — both MPP enrollees and people expelled by Title 42 — wait in precarious limbo. At one church-run shelter, when some of the migrants saw me conducting an interview, they assumed that I was a lawyer and began to form a line to speak with me. I explained that I was a journalist, not an attorney, and couldn’t offer legal advice. The line didn’t dissipate.

As I was leaving another shelter, a woman stepped in front of me and began breathlessly telling me a story about a series of awful sexual assaults she had experienced, explaining how she was certain that if she ever returned to Honduras she would be immediately murdered by her ex-boyfriend or his fellow gang members. When I began to react, she cut me off: “I know you can’t help me,” she said. “I just needed to tell someone I could trust.” We hadn’t even exchanged names.

Hannah Hollandbyrd, a policy specialist at Hope Border Institute, described how Mexico was simply not equipped to deal with the number of asylum-seekers being pushed back from the United States.

“We don’t have a policy right now,” Hollandbyrd said. “We have a scattershot approach. And it’s really about the U.S. putting people in danger. MPP is denying asylum access to extremely vulnerable people.”

It’s now up to the Supreme Court to decide whether pushing asylum-seekers into danger will become standard policy.