During a heated debate last October, then–presidential nominee Joe Biden decided to take the Trump administration to task over a policy that forced asylum-seekers to stay in Mexico as their cases worked their way through the US immigration courts.
“This is the first president in the history of the United States of America that [said] anybody seeking asylum has to do it in another country,” Biden said. “That's never happened before in America. ... They're sitting in squalor on the other side of the river.”
The message was met with support from immigrant advocates who long felt the policy, known as “Remain in Mexico,” had largely avoided the level of outrage it deserved after more than 60,000 asylum-seekers had been sent to Mexico under a Trump administration plan to deter migration at the southern border. While in Mexico, they faced rape, kidnappings, and murder, according to groups who documented the problems. Earlier this year, to much fanfare, Biden brought back many of those same asylum-seekers and denounced the fact that the policy was ever even introduced.
Now, Biden is on the verge of bringing Remain in Mexico back in order to comply with a federal court order in Texas. On Monday, US officials plan to restart the policy, which Biden officials have publicly stressed they oppose, at a single port of entry on the southern border before it’s expanded elsewhere.
But as part of this effort, the White House is expanding who can be eligible to be sent back across the southern border to include anyone from the Western Hemisphere other than Mexico. Under Trump, only people from Spanish-speaking countries and Brazilians were allowed to be returned to Mexico.
The expansion included in the reintroduced policy makes it possible for US border officials to send Haitians to Mexico, which generally did not happen in years prior.
Department of Homeland Security officials have stressed that they will continue to rely on Title 42, a public health order citing the pandemic that allows for quick deportations, for all of those who are eligible. In September and October alone, the Biden administration sent back thousands of Haitians through the public health order.
The inclusion of the entire Western Hemisphere in the new guidance took many by surprise.
“This is going beyond good faith implementation of the court order,” one former Biden appointee said. “When you add new populations and are doing it in addition to Title 42, you are intentionally implementing a program that you know is largely indistinguishable from the prior one and putting more populations in it.”
The expansion comes as DHS officials continue to see a rising number of immigrants from beyond Central America, like Haiti and elsewhere, at the US border.
“The puzzle pieces don’t add up here,” the former appointee said. “They are putting in more people than they need to be putting into this.”
One senior DHS official said the “expansion to the whole Western Hemisphere seems to belie the argument that we don’t want to implement MPP.” Meanwhile, an asylum official told BuzzFeed News that it was “disheartening” that the policy was coming back with an expanded reach.
“This is a punch in the gut to those who stayed in refugee protection, hoping the worst was behind them,” the official said.
The officials spoke on the condition of anonymity to allow them full transparency on the matter.
The union representing asylum officers wrote in a statement Friday that the program’s return will make officers “complicit in violations of U.S. federal law and binding international treaty obligations of non-refoulement that they have sworn to uphold.”
The expansion wasn’t lost on advocates, like Guerline Jozef, head of the Haitian Bridge Alliance, who quickly noticed that the language appeared to include Haitians.
“Instead of working to fulfill their campaign promise of an orderly, safe, and humane immigration system, the Biden-Harris Administration chose to expand the cruel Trump MPP policy to include all countries in the Western Hemisphere,” she said in a statement.
The Biden administration has highlighted many changes with this version of Remain in Mexico. These include improved access to legal representatives, more information about the program given to immigrants, and a speedier court hearing process. But perhaps most consequential will be the practice of border officials asking questions to figure out if immigrants are fearful of being returned to Mexico, which was not the case under Trump. Immigrants who say yes will have the opportunity to be screened by asylum officers to prove their claim.
The return of Remain in Mexico can be traced to August, when US District Judge Matthew Kacsmaryk ordered the Biden administration to restart the program until it could rescind the policy in compliance with the Administrative Procedure Act. His order went into effect shortly afterward, and since then, Biden has been developing plans to restart Remain in Mexico. In the meantime, DHS Secretary Alejandro Mayorkas has written a memo once again rescinding the policy in hopes the courts will do so.
“This Administration, however, remains under a court order requiring it to reimplement MPP in good faith, which it will abide by even as it continues to vigorously contest the ruling,” the DHS said in a statement on Thursday.
Under the new agency guidance, vulnerable immigrants, such as those with known physical or mental issues or of advanced age, will be exempted from Remain in Mexico. An internal government report obtained by BuzzFeed News found that while those with “known physical/mental health issues” were also prohibited under the Trump version from being turned around, border officials placed them in the program anyway.
The Trump administration implemented the controversial program in early 2019 amid a surge of families crossing the border and claiming asylum. In the early days of the policy, which was one in a line of others seeking to restrict asylum at the border, the administration was seeing upward of 100,000 border crossings a month.
Sabrina Teichman, a former DHS official who focused on Western Hemisphere issues, said Biden’s expansion of Remain in Mexico created a confusing message.
“It is very mixed messaging when leaders from the US and Mexico who so strongly oppose the Trump-era Remain in Mexico policy reimplement it with an even broader scope that includes migrants from the entire Western Hemisphere,” she said. “The realities on the ground in Mexico for migrants is stark. While the reimplementation guidance includes a renewed focus on expedited proceedings, the reality is migrants will still be waiting for months in inhumane and dangerous conditions.”