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An expanded ‘remain in Mexico’ policy may cause more suffering, not curb migration

The policy would restrict due process rights, and put more vulnerable people — pregnant women, LGBT populations and children — in harm’s way

Mexican President Andres Manuel Lopez Obrador waves to the crowd during a unity rally on June 8, 2019, in Tijuana, Mexico. Lopez Obrador committed to defending Mexicos dignity amid a looming threat from U.S. President Donald Trump, who has pledged to impose 5% tariffs on Mexican products unless the country prevents Central American migrants from traveling through its territory. (Sandy Huffaker/Getty Images)
Mexican President Andres Manuel Lopez Obrador waves to the crowd during a unity rally on June 8, 2019, in Tijuana, Mexico. Lopez Obrador committed to defending Mexicos dignity amid a looming threat from U.S. President Donald Trump, who has pledged to impose 5% tariffs on Mexican products unless the country prevents Central American migrants from traveling through its territory. (Sandy Huffaker/Getty Images)

The meat of the U.S.-Mexico deal announced Friday by President Donald Trump lies in its provision massively expanding the administration’s “Remain in Mexico” policy — formally called Migration Protection Protocols — which requires certain migrants at the southwest border to be sent back to Mexico while their immigration cases unfold in U.S. courts.

The agreement largely consists of “initiatives that were already underway, but in some cases they represent, at least on paper, a large scale-up of previous commitments,” said Andrew Selee, president of the Migration Policy Institute, a nonpartisan think tank. “That’s particularly true of MPP, which the Mexican government has tried to keep limited but now seems ripe for a rapid expansion — if logistical considerations or the courts don’t prevent it.”

[Trump announces deal with Mexico to avoid tariffs]

Experts say the program’s expansion is unlikely to curb migration, but it could expand the magnitude of suffering at the southern border by separating even more families, restricting due process rights, and putting a growing number of vulnerable people — pregnant women, LGBT populations, and children — in harm’s way.

“By the time the courts are going to rule, it’s going to be too late for too many people,” said Robyn Barnard, a staff attorney at Human Rights First.

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When migrants arrive at a port of entry, or cross into the U.S. without authorization, they have to express to Customs and Border Protection a fear of returning to their home countries in order not to be removed immediately. If they subsequently pass a “credible fear” interview with an asylum officer, they can stay and pursue an asylum claim in court.

[White House brushes off Grassley, GOP concern over Mexico tariffs]

Under MPP, many such individuals are being returned back to Mexico for the duration of their asylum process, which could last months, or even years. CBP’s guidelines note that unaccompanied minors, Mexican nationals, and some other categories of migrants are exempt from this policy. MPP also excludes non-Mexican migrants who proactively declare, and then are able to demonstrate, that they will very likely face harm in Mexico.

Launched in January

MPP was first piloted at the San Ysidro port of entry at the San Diego-Tijuana border in January 2019, but later expanded to El Paso-Juarez and Calexico-Mexicali. Within the first six weeks, the policy only affected around 300 migrants. But recently, “the numbers have really skyrocketed,” Barnard said. Within two months, the total has grown to over 10,000, according to the most recent numbers reported by the Mexican administration. DHS did not respond to requests for confirmation on these numbers.

The expansion followed a 9th circuit court ruling in May, which allowed the U.S. to continue the policy while its legality is decided in court. Rep. Veronica Escobar, a Democrat whose district in Texas includes El Paso, introduced a bill soon after aimed at restricting government funds from being used to implement the program.

At the end of May, Trump announced that he would be imposing punitive tariffs on Mexico, unless the country did more to curb the arrival of migrants from Central America and elsewhere to the U.S.-Mexico border — triggering weeklong negotiations between the two governments. On Friday evening, a deal had been brokered between the two countries, establishing MPP everywhere along the southwest border, and requiring Mexico to offer visas, work permits, education, and humanitarian aid to those remaining in Mexico.

At a rally in Tijuana Saturday, Mexican President Andrés Manuel López Obrador welcomed the agreement, but noted it would not address the factors driving migrants to flee. “We can resolve the migration by tackling the root causes of the phenomenon, by promoting development, well-being, and peace,” he said in Spanish.

The reaction to the deal in the U.S. has largely fallen along partisan lines, with Republicans in Congress welcoming it, and Democrats expressing skepticism.

Republicans also argued that Democrats in Congress should do more to help with the humanitarian needs at the border and should pass the supplemental budget request that Trump has made to bolster border agencies.

Rep. Mike D. Rogers of Alabama, the ranking Republican on the House Homeland Security Committee, said, “This agreement shows that Mexico not only understands its role in the crisis at the border, but that it’s willing to take concrete steps to address it. It’s now time for Democrats in Congress to do the same.

“Republicans have pushed to provide emergency funding for humanitarian and law enforcement border missions at every opportunity,” Rogers added. “Democrats have so far chosen political finger-pointing over solutions, at the expense of migrants and national security. It’s time for Democrats to put their feelings about the president aside and pass this badly needed funding — migrant lives are at stake.”

House Speaker Nancy Pelosi, D-Calif., pushed back on the Republican theme.

“President Trump undermined America’s preeminent leadership role in the world by recklessly threatening to impose tariffs on our close friend and neighbor to the south” she said. “We are deeply disappointed by the administration’s expansion of its failed Remain-in-Mexico policy, which violates the rights of asylum seekers under U.S. law and fails to address the root causes of Central American migration.”

Deterrence first

Migrants who tell U.S. authorities that they will face harm if they are sent to Mexico are being increasingly denied, said Margaret Cargioli, an attorney with Immigrant Defenders Law Center. She assists migrants affected by MPP at the Tijuana-San Diego border.

Cargioli is also concerned that the “Remain in Mexico” policy is quietly helping separate families at the border. She has an 18-year-old client, for example, who was declared suitable for MPP, and separated from her mother and a younger sibling, both of whom were allowed to pursue their asylum claims in the United States. Cargioli has heard of other such cases where family units comprising couples, siblings, grandparents and grandchildren have been similarly split. (DHS did not respond to a request for comments or data on either of these assertions.)

Lawyers and advocates have long been arguing that Mexico is not safe for asylum seekers. Migrants have reported being victims or witnesses to robberies, violence, kidnappings and abuse. Cargioli also worries for younger children. “We have to remember that there are children being subjected to these harsh conditions,” she said.

Meanwhile, she, like other lawyers with MPP clients, is grappling with the distance, costs, safety issues, and the possibility of being put on a government watch-list.

“I find it very challenging: the logistics of where can I meet my clients,” Cargioli said. “Where is there a safe space for them, for me, where we can have privacy to talk about their cases.”

The American Immigration Lawyers Association outlined in a recent letter to DHS the many odds they say are stacked against migrants in the MPP program. Lawyers argued that the trauma and transience of their lives in Mexico, the lack of resources, and the distance from the U.S. all make navigating the labyrinthine asylum process even more complicated.

“If you’re a mom with little kids on the streets of Tijuana, in what world are you going to be like, ‘Let me take a moment and draft my [asylum] declaration?’” Barnard, from Human Rights First, said. “This policy was designed to deter people from coming by making it really hard to present their cases.”

Barnard guesses that most of the 10,000 migrants returned so far through MPP do not have lawyers. “The overwhelming majority of people are unrepresented and being forced to navigate the U.S. immigration system alone,” she said. “For someone who’s unrepresented, it’s unsurmountable.”

Meanwhile migrant flows continue uninterrupted. In May more than 144,000 migrants were intercepted by CBP, out of which more than 100,000 were families and unaccompanied minors. As MPP expands, and more migrants are sent back to Mexico, Barnard wonders how the United States, with its overextended immigration court system, will handle the additional load.

“They will rush a rollout just to show they’re doing something and the outcome is going to be more chaos,” she said.

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