The US asked for, and Mexico has accepted, the reinstatement of “Remain in Mexico,” the policy that makes asylum seekers stay in Mexico while their cases are adjudicated in the United States. This policy violates international law, gets Mexico to make promises that it has no intention or capacity to fulfill, and leaves civil society to deal with the mess of human suffering it produces.
The Biden administration says that it intends to terminate Remain in Mexico but is justifying the reinstatement because of a court order. Biden should not get brownie points for wanting to do the right thing, because implementing the court order violates other laws. The Administration is actually taking advantage of the court order. Remain in Mexico 2.0 will cover more categories of people than the previous version and Title 42, the adjacent and unjustifiable Covid-19 policy that allows the government to immediately expel others, has just been renewed.
The new agreement between the US and Mexico claims that it will address serious humanitarian, security and due process issues that abounded with the previous version. To address these concerns, the Department of Homeland Security, in its “Guiding Principles for Reimplementation” claims the following, that: 1) asylum cases will be heard in a timely fashion and asylum seekers will have “meaningful opportunities to access and meet with (legal) counsel;” 2) they are working to ensure that there will be shelters in Mexico and secure transportation to and from ports of entry; and that 3) no one will be returned to Mexico if they “demonstrate” a reasonable possibility of persecution or torture in Mexico.
Based on past experience with Remain in Mexico, here is what we can reasonably expect.
We know that US asylum seekers are much more likely to win their cases if they have legal representation. We also know little legal representation will be available. According to HIAS, a US immigration organization that helped provide legal representation the last time around, only about 10% of those under Remain in Mexico actually secured legal representation. This time, some lawyers who tried to help in the past are refusing to participate because they believe that by doing so they will be facilitating the violation of international law.
We know that security is a huge problem for those forced to wait at the border. It is well documented that this population is targeted by organized crime. NGO Human Rights First has documented 7,647 cases of kidnappings and violent attacks against people blocked or expelled to Mexico since President Biden took office. We also know that these crimes are grossly under-reported and almost never prosecuted.
We know that there are not sufficient shelters to protect those who are forced to wait. There isn’t sufficient shelter now and the numbers of people will only increase. One of the times when migrants are at greatest risk is when they move from shelters to the border for scheduled appointments. Mexico’s standard policy has been that it will not provide any additional protection for asylum seekers that is not provided to the regular Mexican population.
We know that people will not have sufficient access to medical care. Under the last round of Remain in Mexico, Global Response Management (GRM) responded in the border state of Tamaulipas. This is an organization that sets up emergency clinics in precarious humanitarian situations. Their idea is to go in early and help cover medical needs before the bigger organizations can establish a presence. The problem was that the bigger NGOs never came. Many international NGOS consider the Tamaulipas border to be too dangerous and will not put staff there. GRM is still there helping as best they can, but it is not enough.
When it comes to the US making exceptions for asylum seekers who are at risk if they remain in Mexico, I’ll believe it when I see it. Until now, even those who had previously been kidnapped in Mexico were returned when they tried to apply for US asylum.
There are NGOs and attorneys on both sides of the border who worked incredibly hard to provide support to those who suffered from the Remain in Mexico 1.0, and to help the US end that program. They are the ones who provide food, shelter, medicine and legal assistance to those in need. They are hopping mad that it is being reinstated. From experience, they know that they will be left holding the bag, having to figure out how to help those who will suffer under this policy. This is a chronicle of suffering foretold.
No matter what pretty words are in this agreement, we know what’s coming because we have been here before. And neither government has earned our trust that their stated intentions will be put into practice. Asylum seekers will get stuck, for months, if not years on the Mexican side of the border. They will not have housing; they will not be safe; and they will not get legal representation. And both governments will leave it to the NGOs to bear the burden of this policy.
* Joy Olson is the former Executive Director of the Washington Office on Latin America (WOLA), a research and advocacy organization working to advance human rights. Twitter: @JoyLeeOlson