DHS to restart ‘Remain in Mexico’ for asylum-seekers next month

Restart depends on agreement with Mexico

A Border Patrol agent  processes an immigrant in New Mexico on July 22, 2021. The Homeland Security Department plans to restart the "Remain in Mexico' policy for asylum-seekers next month. (Paul Ratje/AFP via Getty Images)
A Border Patrol agent processes an immigrant in New Mexico on July 22, 2021. The Homeland Security Department plans to restart the "Remain in Mexico' policy for asylum-seekers next month. (Paul Ratje/AFP via Getty Images)
Posted October 15, 2021 at 12:15pm

The Homeland Security Department could restart as early as next month a controversial Trump administration border program requiring asylum-seekers to wait in Mexico for their court dates, according to a court filing late Thursday night.

In a document filed in the U.S. District Court for the Northern District of Texas, the federal government said it "anticipates being in a position to re-implement” the so-called Remain in Mexico program, formally known as the Migrant Protection Protocols, “by mid-November.”

Under MPP, which began under the Trump administration and was formally terminated in June, asylum-seekers who cross the U.S.-Mexico border and request protection are required to wait in Mexico for decisions in their U.S. immigration court cases. The wait could be months, and the pandemic even stretched some to more than a year.

Following a lawsuit by Texas and Missouri, U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to make a good faith effort to reinstate the program, finding that the administration hadn’t sufficiently explained its reasons for ending it. Last month, the states filed a motion accusing the administration of delaying the reinstatement of the program in violation of that court order.

In Thursday’s filing to update the court on its compliance, government lawyers reported that the Department of Homeland Security has initiated the rebuilding of facilities in Laredo and Brownsville, Texas, to hold immigration court hearings for those in MPP. The department is also working with the Justice Department to make room for additional immigration hearings on the immigration court system’s crowded docket and is developing protocols to guard against the spread of COVID-19, the filing says.

However, the government told the court that it can't fully revive the program “without Mexico’s independent decision to accept individuals that the United States seeks to send to Mexico.”

Mexican officials have raised concerns about the program and requested improvements before they will agree to accept returned asylum-seekers, according to the filing. Human rights advocates have also criticized the program. 

Those requested changes include deciding cases for individuals waiting in Mexico within six months, ensuring that they receive accurate information about their court dates, better coordinating with Mexico on when and where migrants are returned, improving access to lawyers for migrants in the program and improving protections when returned to Mexico.

More than 1,500 cases were publicly reported of individuals sent back to Mexico who were kidnapped, murdered or assaulted while waiting for court dates during the Trump administration, according to Human Rights First.

“DHS is developing an MPP reimplementation plan that takes into account these concerns, which it will be discussing with Mexico in the coming days,” government lawyers said in the filing.

Rep. Henry Cuellar, D-Texas, whose district includes Laredo, previewed the MPP revival to reporters on Wednesday. He said MPP would likely restart in Laredo “sometime in the next month or so” and that residents can expect to see tents expanded in the area.

Speaking to reporters ahead of the court filing on Thursday, senior DHS officials said they continue to oppose Kacsmaryk’s order, which the government has appealed. The officials also confirmed that they still plan to re-issue a memo terminating MPP with more reasoning, as previously announced, but they did not say when. 

“Re-implementation is not something that the administration has wanted to do, as we are doubling down on the affirmation of our decision to terminate MPP. But in the interim, we are under the obligation of the courts, and obviously, making sure that individuals when they return to Mexico are treated humanely is, of course, one of the highest priorities,” an official said.

However, even when “Remain in Mexico” takes effect, some migrants will continue to be turned away without a chance to pursue their immigration cases under Title 42, a pandemic directive allowing border agents to expel migrants who cross the border.

The Title 42 order will “take precedence” over the legal proceedings involved in MPP, another official said.