The Migrant Protection Protocols (MPP) program, commonly known as “Remain in Mexico, ” restarted this past December.  Kristen Bowdre, executive director for Justice for Our Neighbors El Paso, coordinates a local effort among volunteers and advocates in the region. They observe and monitor the proceedings in the two El Paso immigration courtrooms hearing the cases of asylum seekers forced to wait in dangerous conditions in Juárez, Mexico.

*For background information on both the MPP program and the Title 42 policy, please see the end of this article.

How does MPP work?

“You can’t go to a port of entry and ask to be placed into MPP,” explains Kristen. “The ports of entry are closed [because of Title 42] to asylum seekers. If you try to cross the bridge, you will be turned away.”

Instead, hopeful asylum seekers will cross the river or the desert, where border patrol agents will pick them up.

Women, families, those with health problems, Indigenous people, or LGBTQ individuals who may be subject to persecution are not supposed to be placed in MPP; they will either be expelled under Title 42 or allowed entry into the U.S. to make their claim.

Unlike the Trump-era MPP, CBP officers are required to ask these asylum seekers if they fear returning to Mexico to wait for their court hearing. Those who answer yes—and nearly all do—are granted a non-refoulement interview (NRI) with an asylum officer.

The interview takes about five hours. Most of the program’s participants are uninformed about the process, and very few have access to representation by a U.S. attorney. Not surprisingly, only 13 percent have a positive NRI finding.

“But even if you get approved,” says Kristen, “that doesn’t guarantee you will be released. You could be sent to a detention center in the U.S. to wait.”

Observing the Court

Only two judges currently handle MPP cases in El Paso, and only one observer is allowed per courtroom. Electronics are forbidden, so the volunteers must resort to notetaking with pen and paper:

• Where is the asylum seeker from?
• Do they have representation?
• Is it their first court date or another hearing?
• Do any of the asylum seekers have noticeable physical, mental, or health problems?
• Do they mention an Indigenous or LGBTQ identity?
• How many people express a fear of returning to Mexico?
• How much time are they given to prepare their asylum claims?
• Several individuals will have received detention-in-absentia orders because they did not attend their court dates.
  • How many people are being deported in absentia?
  • Did they miss their transportation from Mexico?
  • Did they misunderstand?
  • Are they receiving notifications?

“We’re looking for trends,” says Kristen. The information her volunteers gather at these court proceedings is compiled weekly and shared with local coalitions along the border.

“This is one of the few ways for the legal community to know what is going on,” she states.

A Mother’s Request  

National JFON gets emails from immigrants—and their relatives—every week. Some we can direct to a JFON site near them. For others, there isn’t much we can do. The worried Venezuelan mother who wrote this email took the time to translate it first into English. We shared it with Kristen, as the son had entered the U.S. under the MPP program and was then released to languish in a detention facility.

“I am very concerned that my [adult] son is still in custody at the XXXX Detention Facility. The group that was detained with him has already been released, but UNFORTUNATELY the destination person, an acquaintance of ours, has not yet been able to be contacted by phone. My son has never been detained, and with the risk of contracting Covid, I worry the immune system may collapse. Reason why I turn to you so that you can guide me in order to free my son. God bless you.”

Kristen listens and nods her head sympathetically.

“So much depends on where they [the detainees] are,” she says. “On whether they have someone to pay their bond or have someone to advocate for them. They could be released as they are, or they could be released with an ankle monitor.

“It’s never guaranteed, even if you have family in the U.S. It’s up to DHS [Department of Homeland Security] to decide, and there is no rhyme or reason for their decision.

“At least in detention,” she adds softly, “they are more likely to get access to an attorney.”

The MPP of the Biden era was supposed to be the kinder, gentler version of Trump’s original MPP. But the problems that plagued the original persist today:

• The lack of access to legal counsel and the dearth of information available to people whose lives depend upon understanding an unwieldy and bewildering process

• The ever-increasing dangers of Mexican border towns and the drug cartels who viciously prey on migrants

• And finally, an assortment of CPB agents, asylum officers, and immigration judges, each prone to interpret the exemption process in their own inexplicable and capricious ways.

“MPP is an egregious policy,” states Kristen emphatically. “It is not humane, and we shouldn’t be a part of it.”

“But we will continue to observe the court hearings as long as they allow us,” she adds. “It’s one of the few ways any of us have to understand what is really happening.”

The impact of “Remain in Mexico” on asylum seekers

On his first day in office, President Biden suspended the MPP program. The program had been widely criticized for sending 70,000 asylum seekers back to perilous conditions in Mexico while they waited for their turn to present their case.

By June, the Biden administration had completely terminated the program. Unfortunately, a federal court in Texas ordered it reinstated that August. The Biden administration did not challenge it again and, instead, went into months of negotiations with the Mexican government. In December 2021, MPP began again in El Paso, Texas. This was in complete contradiction to his campaign promises of reinstating a “fair” and “humane” southern border.

According to Human Rights Watch, there have been at least 8,705 reports of kidnapping, rape, torture, and other violent attacks on migrants and asylum seekers blocked in or expelled to Mexico by the Department of Homeland Security (DHS).

The rapid expulsion of migrants without any legal process has resulted in massive increases in repeat border crossings and, as a result, inflated Customs and Border Protection (CBP) apprehension statistics.

This feeds anti-immigrant propaganda. The Biden administration’s continuance of illegal, Trump-era turnback policies has also pushed asylum seekers to undertake hazardous routes through the desert away from ports of entry.

At least 650 people are known to have died while crossing the U.S.-Mexico border in 2021, the highest figure recorded since the International Organization for Migration began tracking in 2014.

The impact of Title 42 on asylum seekers

Shamefully, the Trump-era Title 42 policy that closed the border to asylum seekers in March 2020 remains in place in the Biden administration.

Since the pandemic began, the United States has expelled more than 1.2 million migrants and asylum seekers at the southern border. Using “public health” as the reason is difficult to defend when thousands of people travel in and out of the U.S. every day.

Mexico only accepts Title 42 expulsions from Mexico, Honduras, El Salvador, and Guatemala. If the U.S. government wishes to expel other asylum seekers under Title 42, it must arrange transportation back to the individual’s home country.

Although Haitians can be subjected to MPP, the Biden administration has instead used Title 42—and costly air flights—to send an alarming 23 percent of all Haitians encountered by border patrol back to Haiti.

The majority of the asylum seekers in the MPP program are single men from Cuba, Nicaragua, and Venezuela—three countries whose strained relations with the U.S. government make it difficult to expel their citizens seeking safety. Furthermore, Mexico does not accept these nationalities for Title 42 expulsions.

Kristen stepped up to coordinate the MPP court observations in mid-January. She reports that nearly all the MPP registrants in El Paso have been Nicaraguan, and all have been young men.

The U.S. Supreme Court will decide the future of MPP this year

On Friday, February 18, 2022, the U.S. Supreme Court announced that it would hear oral arguments on Biden v Texas, the case challenging the Biden administration’s decision to abolish the Trump-era policy of “Remain in Mexico.”

“I am glad that SCOTUS has agreed to hear this case and rule on the merits of MPP,” says Kristen, “but their ruling on this case not only impacts immigration policy, but also the future of the executive branch of our government.”

We agree. The executive branch has a constitutionally mandated power to determine the country’s foreign policy. The Supreme Court will be deciding whether the will of millions of voters—and our laws—can be set aside by a single federal judge.

The “Remain in Mexico” policy has taken a devastating toll on the lives of tens of thousands of people who are legally attempting to seek protection in the United States. The Supreme Court now has a chance to uphold both U.S. laws and ideals by rejecting the lower court’s extreme and partisan order.

Let’s put MPP into the trash heap of history, once and for all. And then let’s do the same for Title 42, so we can fully restore the U.S. asylum process.

For more information, please read the Washington Post’s  Supreme Court will hear Biden administration plan to rescind Trump immigration policy on asylum seekers.

Further reading:

American Immigration Council’s fact sheet on The Migrant Protection Protocols

Refugees International’s MPP as a Microcosm: What’s Wrong with Asylum at the Border and How to Fix It

American Immigration Council’s A Guide to Title 42 Expulsions at the Border

Featured photo credit:  Security personnel oversee Good Friday procession, Juárez, Mexico by José Luis González—Norte de Ciudad Juárez