Just a fraction of migrants subjected to the court-ordered reimplementation of the Remain in Mexico policy are dodging the program despite a concerted effort by the Biden administration to reduce the legal standard needed to bypass enrollment.
December figures released by the Biden administration earlier this month shows that just 12 percent of migrants were able to make the case that they would face danger if sent across the border to Mexico while pursuing asylum claims in the U.S.
The figures were alarming to immigration advocates, who have urged the Biden administration to abandon a policy they say releases asylum seekers into dangerous conditions in Mexico only exacerbated by the arrival of vulnerable migrants forced to wait there for months.
“It just points to how this program can't be fixed,” said Kennji Kizuka, a researcher with Human Rights First. “They can sort of jiggle the standards, they can adjust the procedures, but at the end of the day, they just can't make it safe, and they can't do the screenings properly or fairly.”
The Biden administration reimplemented what is formally known as the Migrant Protection Protocols (MPP) in December, following a court order directing it to carry out the policy “in good faith” as they continue to appeal a lower court ruling.
The program still largely bars asylum seekers from entering the U.S. to wait out their case, continuing the Trump-era practice of sending them across the border to Mexico, but the memo from the Department of Homeland Security (DHS) included various reforms meant to help divert some asylum seekers from the program.
“Secretary of Homeland Security Alejandro N. Mayorkas has repeatedly stated that MPP has endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration,” DHS said in a statement about the latest data, noting that it is committed to “implementing MPP in the most humane way possible.”
DHS has directed border agents to affirmatively ask whether migrants have a fear of being sent to Mexico rather than wait for asylum seekers to raise the issue themselves.
And the department lowered the legal standard to bypass the program, requiring migrants only show a reasonable possibility they will face danger in Mexico, generally considered a one-in-ten chance — a lower threshold than the “more likely than not” standard used under Trump.
“Obviously, you can't actually do the math on persecution. So this just comes down to the discretion of the officer, and there's no appeal process here,” Kizuka said.
Early data on the program shows few asylum seekers have been able to successfully escape MPP even though 91 percent of the 267 people initially enrolled in the program in December said they feared for their safety if sent to Mexico.
The 12 percent figure significantly trails those for asylum interviews conducted over the same period that use the same standard. Government figures for December show that nearly 30 percent of asylum seekers outside of MPP were found to have met the legal requirement to establish fear.
Migrants who travel to the U.S. are often fleeing danger and persecution in their own country before making a risky journey to the border that can often lead to another series of tragic events.
But after being taken into U.S. Customs and Border Patrol custody, asylum seekers must outline concerns that are specific to Mexico. Much like in the U.S., migrants must make the case that they would face persecution in Mexico due to their race, gender, or membership in a particular social group.
Being a migrant could qualify as meeting the social group criteria, given the well-documented history of migrants being targeted for crime because of their vulnerability once sent to Mexico. But migrants are often ill-prepared for what is known as a non-refoulement interview (NRI) that determines whether their fear justifies exclusion from MPP.
“The United States should not and cannot, legally, send people back to a country where they will be harmed because of who they are. So here you have a program where people are being sent back to Mexico, and because of who they are, because they are migrants in this very well-known program called MPP, they are extraordinarily vulnerable to kidnapping, to assault, to violence,” said Heidi Altman, policy director at the National Immigrant Justice Center.
“There are literally dozens of reports documenting this extraordinarily high risk of harm. If the standard is being correctly applied, how could anyone not pass their NRI?”
But many migrants struggle to make their case or navigate the labyrinth of requirements for meeting the standard, and they’re given just 24 hours to find and consult with an attorney ahead of the interview.
The short timeframe gives little prospect for success as many of the national legal aid groups that provide pro bono legal advice say they won't contract with the government to provide services — a refusal due to both to what some say is the inhumane nature of the program as well as being given a window that is simply too short to meaningfully provide legal advice.
Just 11 migrants secured an attorney ahead of their interview, which is conducted while they are in CBP custody speaking over the phone with U.S. Citizenship and Immigration Services staff who weigh their claims.
In the confusion, some migrants may not even understand they need to make Mexico-specific claims or that they aren’t being interviewed about their overall asylum plea based on issues in their home country.
“For all they know, they're about to be interviewed about their asylum claim and their fear of returning to their country of origin,” said Nicholas Palazzo, staff attorney with Las Americas Immigrant Advocacy Center.
It’s not that those in custody haven’t faced danger – he’s had clients that were raped and robbed along the journey.
“In the Mexico context, it doesn't suffice to simply show that you were robbed or kidnapped or suffered any egregious form of violence. You have to show that your perpetrators specifically targeted you because of one of those characteristics,” he said.
Under the Biden administration, MPP has also been expanded to include Haiti and other Caribbean nations, meaning a number of Black migrants who may not be Spanish speakers will also be sent to Mexico.
It’s another group that Palazzo said should readily fit the criteria for exclusion from MPP but who may struggle on their own to show that they were targeted due to their race or not being a native Spanish speaker.
The handful of asylum seekers who did retain an attorney fared better – 36 percent managed to be removed from MPP and can await their full hearing in the U.S.
While few asylum seekers were able to successfully argue for their diversion from MPP, the data shows that the government decided to remove another 10 percent of migrants after determining they had some other vulnerability that would disqualify them from being sent to Mexico.
Mexico only agreed to participate in the U.S. reinitiation of the program after it secured an agreement to exclude from MPP those with health issues, the elderly, and others who might be vulnerable there, including those who identify as LGBT.
But Kizuka said CBP isn’t consistently screening out those people who ought to be excluded from MPP without ever needing to claim fear.
“One of those should be fairly easily identifiable is if someone is LGBT. But again, it's not really clear what screening CBP officers are actually doing because most people we talked to hadn't been asked that question at all,” he said.
“Part of the issue is that it's not clear what training the CBP officers have got and what they're being told to do. Even when they're doing the screenings, it's really cursory.”
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