Biden’s Amended “Remain in Mexico” Policy Still Puts Refugees at Great Risk

The U.S. Supreme Court heard oral arguments Tuesday on whether to strike down the Trump-era “Remain in Mexico” policy, which forced tens of thousands of non-Mexican asylum seekers to wait in Mexico while their cases played out in U.S. courts, often in extremely dangerous conditions. Biden suspended this policy, officially known as the Migrant Protection Protocols. Missouri and Texas opposed the move. “This is a pretty outrageous idea that a new president coming into office is not allowed to dismantle his predecessor’s programs that he disagrees with,” says Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council. Still, Reichlin-Melnick says the justices seem torn on their decision and that the Biden administration’s amended version of “Remain in Mexico” still puts asylum seekers at extreme risk of violence. We also hear from asylum seekers about the conditions they faced in Mexico as a result of the program.


This is a rush transcript. Copy may not be final.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González, as we look now at another U.S. Supreme Court case, one that could have an enormous impact on asylum seekers who come to the United States in search of refuge. On Tuesday, Supreme Court justices heard oral arguments in a Biden administration appeal to a lower court ruling that reinstated the contested Trump-era “Remain in Mexico” policy, formally known as the so-called Migrant Protection Protocols, or MPP.

Between January 2019 to January 2021, some 70,000 non-Mexican asylum seekers were forced to wait in Mexico, often in extremely dangerous conditions, while their cases were resolved in U.S. courts — a process that can take months or even years. The policy was suspended by President Biden shortly after he took office. However, a federal court ruled in Texas last year that the administration should resume the program following legal challenges from Missouri (and Texas)

During Tuesday’s Supreme Court hearing, Texas Solicitor General Judd Stone tried to argue the Biden administration must reimplement “Remain in Mexico,” saying the U.S. government is either required to jail every asylum seeker at the southern border or return them to Mexico since it does not have the capacity to detain everyone.

JUDD STONE II: MPPThe number of violations was reduced as a result. It did not fully satisfy the executive mandate, but so far as it went, it complied with the executive’s obligations to return, rather than detain, the aliens enrolled in MPP.

AMY GOODMAN: When questioned, Stone admitted even former President Trump failed to fully detain everyone at the U.S.-Mexico border, even with “Remain in Mexico” in place.

Meanwhile, the Biden administration’s lawyer, Solicitor General Elizabeth Prelogar, argued “Remain in Mexico” was halted because its humanitarian and foreign policy costs outweighed any public benefit of sending tens of thousands of people to Mexico to await their asylum hearings. Justice Brett Kavanaugh questioned her on what the administration meant by “public benefit.”

JUSTICE BRETT KAVANAUGH: There’s no real explanation of how the public is benefited by more people coming into the United States who are not lawfully admitted into the United States, rather than trying, if feasible, for some of those people to remain in Mexico.

AMY GOODMAN: During the oral arguments, Texas Solicitor General Judd Stone claimed the “Remain in Mexico” policy would not require the U.S. to negotiate with Mexico to accept asylum seekers. Justice Elena Kagan interrupted him.

JUSTICE ELENA KAGAN: What do you mean it doesn’t require negotiation with the foreign power? What should we do? You can just drive truckloads of people to Mexico and then leave them there without any negotiation with Mexico.

AMY GOODMAN: In fact, the United States does need the Mexican government’s consent to send asylum seekers there under MPP. Yesterday morning, dozens upon dozens of immigrant justice advocates and lawyers held a rally in front of the U.S. Supreme Court. Several survivors of the “Remain in Mexico” program shared their experiences. This is Ray Rodríguez.

RAY RODRÍGUEZ: I was forced to remain in Mexico for almost a year — about 10 months, to be exact. … So, being asylum in Mexico, it was not easy. Matamoros can be dangerous. I saw a lot of suffering during my time there. People were kidnapped, and they suffered from violence from cartels. We became targets for everyone. You’re also vulnerable to extortion and blackmail, not only from the cartels but also from the police. … Seeking asylum is a human right. While waiting for asylum claims, no human being should be forced into danger in Mexico. MPP It must be over.

AMY GOODMAN: Well, for more, we’re joined in Washington, D.C., by Aaron Reichlin-Melnick. He is senior policy counsel at the American Immigration Council, at yesterday’s rally outside the Supreme Court and tweeting the Supreme Court oral arguments yesterday.

Aaron, can you lay out what’s at the center of the Supreme Court hearing and when can we expect a ruling?

AARON REICHLINMELNICK: Yesterday’s Supreme Court hearing was largely about whether or not the Biden administration has the authority to end the “Remain in Mexico” program at all. This is very different from what happened in the DACA The Trump administration attempted to end this program in a failed attempt to end it two years ago. Everyone agreed that the Trump administration could terminate the program if it followed the correct protocols.

Texas has gone further. They actually got a court order saying not only did the Biden administration go about the wrong way in ending the program, they actually can’t end it and legally would have to keep it in place permanently, for the rest of U.S. history, until Congress either gives enough funding to the agency to do something it’s never been able to do, which is detain every person crossing the border, or if Congress got rid of the entire statutory authority for the program in the first place.

This is a pretty outrageous idea, that a new president coming into office is not allowed to dismantle his predecessor’s programs that he disagrees with. Yesterday’s issue was largely about that. Importantly, the case that was heard yesterday was not about whether “Remain in Mexico” was legal or even whether or not the program was a good idea. It’s solely about whether or not a new president has the authority to ever end his predecessor’s programs. If the Supreme Court affirms, it means that the case will likely be remanded to a lower court for more legal wrangling.

Because this case is being argued late in the term, we can expect a decision in June. It will likely be one of the last cases that the Supreme Court hears before they go on recess in the summer.

JUAN GONZÁLEZ: And, Aaron, I know it’s hard to tell from the justices’ questioning how they’re standing, but what was your sense of how the justices were aligning on this case?

AARON REICHLINMELNICK: We found that the — you know, I think the justices were torn. For the questioning for Solicitor General Prelogar, there was a lot of concern from the justices about what it means for the government to admit that it can’t do what Congress asked it to do. Since 1903 Congress has required the government to detain certain people. But for that last century, there hasn’t been enough money that Congress has given for that to be possible. So the government has, for over a century, released some individuals because there isn’t enough detention capacity. This was something that several conservative justices seemed to be concerned about, suggesting that they were worried what it would mean for them to endorse a program that led to potentially fewer people locked up in detention centres.

The conservative justices were also concerned about what it would be like to say that every presidential administration since 1996 has been in violation of a law without anyone noticing, as Texas was essentially proposing. And even Justice Thomas, one of the court’s most conservative members, suggested that Texas’s idea that it was illegal to end the MPP It would have meant that Trump’s administration had broken the law. Justice Roberts questioned Texas on this, saying, “How does it make any sense if what you’re asking us to do is have a single judge in Texas simply order the government to stop violating the law only slightly less, rather than ordering them to not violate the law at all?” — which suggests that he doesn’t think that Texas is right that ending MPP It is illegal.

AMY GOODMAN: I want to go to the testimony from Gloria, an LGBTQ+ asylum seeker from Honduras placed in the “Remain in Mexico” program. They’ve been forced to wait in the border city of Matamoros for two-and-a-half years.

GLORIA: [translated]I slept under tents by the river. I saw how narcos or murderers, people of that sort, they were just called “la maña” — they would go and find women to rape them, children. I saw people die. When you don’t pay a kidnapper or you don’t pay a so-called rent, what happens is they pour acid on you. … So, if I’m escaping from a country where I will be killed, and then they sent me to another country where I will also be killed for any reason, they are not helping us.

AMY GOODMAN: We felt it was crucial to play this as we felt it was vital to do so, since these cases are often stripped of humanity and to hear the voices from those who were affected. Aaron, could you please tell us how we can wrap up? MPP works? I mean, you have people waiting in Mexico and facing violence, etc., and then, when there’s a U.S. court hearing, they must come over the border again?

AARON REICHLINMELNICK: That’s right. In fact, the first version of MPPSome people had to wait for years to get a hearing in court. We know that people in northern Mexico are at high risk of violence. Some people had to brave a gauntlet to reach the border to receive a court hearing. We know there were many people, possibly hundreds, who were deported for failing to appear at a court hearing. They were kidnapped and ransomed by kidnappers. Unfortunately, the Supreme Court didn’t get into any of the humanity of this program, and it was very discouraging to hear multiple conservative justices suggesting that they thought the program was good because it was reducing the number of people allowed to seek asylum inside the United States.

But we know that the “Remain in Mexico” program was a sham. We know that less than 1% of the people who were forced into the program to have their cases heard at border hearings never won their case. That compares to 15 to 20% for people in the United States. Only 7% of people ever managed to get a lawyer, because it’s basically impossible to get a lawyer when you’re stuck in a refugee camp in northern Mexico, constantly being harassed by the cartels and worried that if you turn around the wrong corner at night or even during the day, somebody is going to pick you up, kidnap you and extort you for ransom — extort you and your family for ransom.

And even the Biden administration’s renewed “Remain in Mexico” program, while it does have slightly better exemptions for certain vulnerable individuals, still puts people into that basic problem that they are in northern Mexico, away from the lawyers, away from legal assistance and away from any real ability to have their case heard while they are safe. No person should be forced to go through the most important interview and experience of their life while they are constantly looking over their shoulder and worrying that they’re going to be picked up by a cartel, tortured and killed.

AMY GOODMAN: Aaron Reichlin–Melnick, this will be covered. As you mentioned, the decision is expected to be made in June. Senior policy counsel at American Immigration Council.

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