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July 20, 2022

Immediate Actions that the Biden Administration Should Take to Prevent Further Harm under Remain in Mexico Following the Supreme Court Decision

Dear President Biden and Vice President Harris: 

In light of the Supreme Court’s ruling in Biden v. Texas, which concluded that the Biden administration acted within its authority to end the Remain in Mexico policy, otherwise known as the Migrant Protection Protocols (MPP), the undersigned immigrant and refugee rights organizations and service providers urge the administration to take immediate action to wind down the policy and redress the harm suffered by those subjected to it. Given the Supreme Court ruling that the Texas district court erred in enjoining the termination of Remain in Mexico, that order should not have any effect. However, additional people continue to be returned to potential harm in Mexico under the policy.  

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As Homeland Security Secretary Mayorkas rightly concluded in his extensive memorandum reterminating MPP, the policy imposed “substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico” and “there are inherent problems with the program that no amount of resources can sufficiently fix.” We applauded this correct analysis and your administration’s principled commitment to end this rights-violating policy launched by the prior administration. Indeed, because MPP termination and the treatment of individuals previously subjected to MPP have always been on separate tracks, we do not believe the administration was legally obligated in August 2021 to stop its phased wind-down and processing program. Regardless of what happened then, there is now no impediment to activating an expeditious and organized process under which people subjected to MPP have a meaningful opportunity to pursue asylum within the United States, as elaborated below. Individual cases are outside the scope of the APA claims that will eventually be decided by the district court.

To prevent further human costs and harms of MPP, we urge your administration to immediately uphold its commitment to ending this inhumane policy by taking additional steps, including:

  • Request that the Supreme Court expeditiously transmit the certified judgment of the decision to the U.S. Court of Appeals for the Fifth Circuit; 

  • Immediately cease the return of any individuals to Mexico under the policy; 

  • Act swiftly to coordinate with shelters, international organizations, and local nongovernmental organizations to create an expeditious and organized process by which people subjected to both iterations of RMX have a meaningful opportunity to pursue their asylum claims from the safety of the United States; 

  • Facilitate the transportation of individuals placed into RMX who remain in Mexico and other countries in the region to the U.S. to pursue their immigration proceedings; 

  • Provide individuals previously returned to Mexico under RMX who currently are located in the U.S. the opportunity to have meaningful access to the U.S. asylum system and due process, including Indigenous language interpretation, without being forced to return to danger in Mexico; and

  • Dismantle Trump-era tent “courts” located in Brownsville and Laredo that are run by DHS contractors and have resulted in due process violations. 

Despite your administration’s attempt to implement safeguards, severe human rights violations and fundamental due process problems continue in the latest iteration of Remain in Mexico, confirming your administration’s conclusion that the policy is inherently flawed. Asylum seekers returned to Mexico under the policy have been kidnapped. Vulnerable individuals have been subjected to the policy in violation of Department of Homeland Security guidance. Legal representation for asylum seekers returned to Mexico remains virtually non-existent, with only 5 percent of the more than 5,000 people placed in the re-implemented MPP assisted by counsel–a dramatically lower rate than for asylum seekers not subjected to MPP and allowed to enter the United States while their immigration court proceedings are pending.The true human cost of RMX will likely never be known, given the severe barriers the policy creates for people seeking refuge in the United States. 

As the DHS re-termination memo notes, MPP also “undercuts the Administration’s ability to implement critically needed and foundational changes to the immigration system.” The policy has created significant strains on local resources and community-based organizations and presents operational challenges for immigration officials on both sides of the border. This includes pulling CBP officials from other critical duties, such as processing requests at ports of entry to seek asylum in the United States, and diverting U.S. asylum officers tasked with MPP screenings from their primary duty of adjudicating asylum applications. 

As recent tragedies at the border make painfully clear, it is urgent that this administration take every available step to fully restore access to asylum at the U.S.-Mexico border, including at ports of entry. Policies blocking asylum at the border have had a devastating toll on those seeking safety, including Black, Indigenous, and LGBTQI persons. 

Anything less than a swift and principled end to Remain in Mexico will undermine the administration’s credibility; set a terrible example for other countries, including those that host the vast majority of the world's refugees; reward and embolden efforts to stop lawful administration actions; and bolster the unfounded narratives peddled by those seeking to portray people seeking protection as threats to the United States. As we did when your administration ended the first iteration of MPP, we stand ready to support you in bringing this policy to an end once and for all. We urge you to do so expeditiously.

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