Fatally Flawed: “Remain in Mexico” Policy Should Never Be Revived

On August 8, 2022, the Department of Homeland Security (DHS) announced the end of the Trump-era “Remain in Mexico” (RMX) policy. The announcement came after a federal district court, following a Supreme Court ruling in June 2022, lifted an injunction that had blocked the Biden administration’s termination of the policy and had compelled its reimplementation.

While the district court order was in effect, thousands more asylum seekers were returned by DHS to dangerous regions of Mexico. There they were forced to wait for immigration court hearings despite being almost entirely cut off from lawyers who could represent them in their requests for refugee protection. In December 2021, DHS stated that in reimplementing RMX it had taken steps to “enhance[] protections” and “protect[] individuals’ rights to a full and fair hearing.”

But the RMX policy—and others like it that would force asylum seekers to wait outside the United States for their cases to be heard—simply cannot be implemented lawfully, safely, fairly, or humanely. During the court-ordered reimplementation of RMX (or RMX 2.0), asylum seekers reported horrific kidnappings, rapes, and other violent attacks after DHS returned them to Mexico. RMX hearings also remained a due process farce. Only a tiny percentage of the individuals whose cases were decided under RMX 2.0 managed to find attorneys to represent them. A vanishingly small number of the mainly Cubans, Nicaraguans, and Venezuelans subjected to the policy were granted asylum—just 63 people out of more than 1,600 completed cases.

The Biden administration rightly honored its election pledge to end this fatally flawed policy and correctly terminated the policy after the initial legal challenge. Congress created the asylum system within the borders of the United States specifically to adjudicate the cases of asylum seekers arriving at or after crossing the border. RMX violates U.S. law and international treaty obligations, denies refugee protections to people fleeing persecution and torture, and results in widespread human rights violations against people returned to Mexico. In August 2022, the U.N. Committee on the Elimination of Racial Discrimination called on the United States to “redouble efforts to swiftly end” RMX, noting its “disparate impact . . . on migrants of African descent and of Hispanic/Latino origin.” As DHS Secretary Alejandro Mayorkas concluded, RMX “has endemic flaws,” “imposes unjustifiable human costs,” and has “inherent problems . . . that no amount of resources can sufficiently fix.” RMX should never be resurrected by a future administration, adopted in law by Congress, or again forced by the courts into use.

DHS has stopped placing new individuals in RMX and begun to slowly transit some people into the United States to pursue their cases in safety. But it has not yet announced a plan to assist the remaining individuals who were left behind during the initial RMX winddown, nor addressed how it will ensure due process for asylum seekers ordered removed under RMX 2.0 who also did not receive full and fair hearings.

This slow winddown process comes as state politicians aligned with the former Trump administration are, yet again, seeking to force the return of RMX. After the Supreme Court rejected their initial case, they amended their lawsuit to challenge the memoranda DHS issued to reterminate the policy. In early September 2022, the same district court that ordered the Biden administration to restart RMX will consider this latest cynical ploy to force the policy’s continuation—an attempt to again block asylum seekers from safety and subject them to the horrifying human rights abuses detailed in this report.

At the same time, the similarly harmful Title 42 policy remains in effect. A court order blocking its termination has resulted in the continued shutdown of normal asylum processing at ports of entry and continued expulsions to highly dangerous places, which at the moment overwhelmingly target asylum seekers and migrants from El Salvador, Guatemala, Honduras, and Mexico.

Working closely with many other organizations, Human Rights First has monitored and reported on the Remain in Mexico policy since its inception in January 2019, conducting in-depth research and issuing a series of reports in February 2019August 2019October 2019December 2019January 2020May 2020December 2020December 2021, and January 2022. This report is based on in-person interviews Human Rights First conducted with attorneys and RMX enrollees in Tijuana in April and September 2022; remote interviews held between April and September 2022 with attorneys and asylum seekers returned to Mexico under RMX 2.0; a review of anonymized notes from nearly 2,700 interviews conducted by pro bono law firms and non-governmental organizations providing legal information to individuals placed in RMX 2.0 (representing approximately one quarter of all people enrolled in RMX during the Biden administration); government data, media accounts, and other human rights reports.

Reports

Author:

  • Kennji Kizuka
  • Julia Neusner

Published on September 13, 2022

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