Biden’s immigration problem: How to end ‘Remain in Mexico’

The program is one of many Trump policies that the president-elect has promised to unravel

Officers at the port of entry between the U.S. and Mexico on Aug. 23, 2019.  (Jinitzail Hernández/CQ Roll Call file photo)
Officers at the port of entry between the U.S. and Mexico on Aug. 23, 2019. (Jinitzail Hernández/CQ Roll Call file photo)
Posted December 11, 2020 at 1:40pm

Nearly 25,000 asylum-seeking migrants are currently stranded in Mexico, waiting for U.S. court dates that may be more than a year away. President-elect Joe Biden has pledged to unravel many of the Trump administration immigration policies that have created situations like this.

But how easy will that be?

The Supreme Court agreed to address the legality of the so-called Remain in Mexico program, unless the incoming administration ends it first. But Biden has yet to provide details on how he plans to dismantle the program formally known as Migration Protection Protocols, or MPP.  The program’s complexities present problems for both the U.S. and Mexico, making a quick-fix difficult. 

On Friday, the Biden transition team told CQ Roll Call the incoming administration "will establish a fair and orderly process that expands avenues for migrants to apply for protection and resettlement." Without providing specifics, it admitted that "implementing this new approach will require time."

Among other things, the Biden administration would have to address a backlog of more than 1.2 million immigration court cases, which include MPP. That would mean hiring more immigration judges to ease the overwhelming case load each judge now faces, said Adam Isacson, who works on border security for the advocacy group Washington Office on Latin America.

“Right now we've got about 520 judges, and we may need triple that, or at least double it, in order to really reduce the wait time between when you get processed and when you get a decision,” Isacson said. 

[Asylum seekers could ‘Remain in Mexico’ for years amid pandemic]

But hiring more immigration judges puts the Biden administration at the whim of Congress and its  purse strings to increase funding for the Executive Office for Immigration Review, the Justice Department agency that oversees the immigration court system. Neither the Trump administration’s Fiscal 2021 budget request nor the package of appropriation bills now being weighed in the Senate include additional funding for more immigration judges.

The Trump administration formally implemented MPP in January 2019. The program has since forced more than 68,000 migrants to wait for their court hearings from Mexico, often in dangerous border communities that leave them vulnerable to violent crime.
 
Asylum-seeking hopefuls have found themselves waiting months for their cases to be processed in the U.S. Then the pandemic hit and their wait stretched even longer – some beyond a year after EOIR suspended MPP cases because of frequent closures of immigration courts. 

[Immigration attorneys face courtroom challenges amid pandemic]

Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service and a senior fellow at Migration Policy Institute, said Biden must carefully dismantle Trump’s immigration policies in a way that won’t overwhelm the current system.

“The more difficult thing for the administration will be pressure from the progressives, who may argue that it needs to be shut down, quickly, and I think the administration and others are going to need to be patient,” she said.

Meissner noted additional challenges, such as tracking down migrants in MPP to process their cases. The U.S. government lacks a formal system of locating migrants once they are admitted into the program and get a case number. While they are given a list of possible shelters where they can wait in Mexico along the border, many migrants end up elsewhere because those quarters lack space or are located in dangerous areas. 

“The effort will be on bringing those people into the United States in a systematic way, so that those cases can be completed, while under conditions where people are not living in various frenzies and under dire circumstances,” she said.

The American Immigration Lawyers Association has called for Biden to grant humanitarian parole to MPP asylum seekers, affording them temporary stay in the U.S as their cases proceed.

Isacson said the administration also could allow these asylum seekers to wait in the U.S. under the government’s “alternatives to detention” program that lets migrants live with relatives, under strict guidelines, as their cases proceed. The program is favored by many Democratic lawmakers and viewed as a more cost-effective option to placing migrants in federal detention centers.

Both options are likely to create a strong backlash from congressional Republicans, whose support Biden will need to eventually pass comprehensive immigration bills he has promised.

That hasn’t deterred Denise Gilman, director of the Immigration Clinic at the University of Texas at Austin School of Law, who wants the Biden administration to immediately end MPP on Day One and ensure not another migrant will be placed into it.

She and other advocacy group representatives said they have talked to MPP asylum seekers who were sexually assaulted or kidnapped while waiting in Mexican towns or tent cities that have experienced COVID-19 outbreaks.

“It is really an abomination to think that the U.S. government would wait another day knowing that the government has intentionally or very knowingly put people into that situation,” she said. “There are people's lives at stake.”