Asylum seekers with cases closed under Trump can enter U.S. to pursue claims

Asylum seekers under the Trump-era “Remain in Mexico” policy whose affairs were closed, many for reasons beyond their control, including kidnappings and court rulings against the government, will now be able to enter the United States to file applications for asylum, the Biden administration said Tuesday.

On Wednesday, the first of thousands with closed issues will begin to process their asylum claims within the United States, the Department of Homeland Security (DHS) announced. More than 30,000 migrants could potentially be eligible, according to government information.

“As part of our ongoing effort to restore safe, orderly, and humane processing on the southwestern border, DHS will expand the pool” of asylum seekers eligible for processing, the department said in a statement, including those “whose cases were terminated. or they were withdrawn in absentia “.

Faced with a policy riddled with clerical errors and questions of illegality, US immigration judges ruled against the Trump administration, closing thousands of cases the government had filed against asylum seekers sent to Mexico to await American hearings.

But when President Biden took office and began to curtail the policy he harshly criticized, his administration only allowed asylum seekers under Remain in Mexico, formally known as Migrant Protection Protocols (MPP), whose immigration cases remain open will enter the United States.

Since February, the Biden administration has allowed in about 12,000 asylum seekers with pending Migrant Protection Protocols cases, according to the United Nations refugee agency, the main organization that processes them. At the same time, the current president’s officials have asked those whose cases were closed for patience, promising a second phase.

Advocates and experts welcomed the move to begin admitting asylum seekers, but criticized the administration’s slowness in restoring access.

“Such a delay would have to be driven by political considerations, not legal or purely administrative,” said Austin Kocher, assistant professor at Syracuse University. “It raises a broader question: Is the Biden administration serious about complying with its national and international obligations regarding asylum law?”

For many applicants, it is too late. From January 2019, when the Trump administration first implemented the policy in Southern California, until Biden froze the program on his first day in office, U.S. officials sent approximately 70,000 migrants to wait in some of the most dangerous cities. of the world south of the border.

More than 1,500 of them suffered rape, kidnapping and assault, according to Human Rights First. And those numbers have continued to rise during Biden’s presidency, through a combination of policies that have left tens of thousands trapped on the southern side of the border.

Untold numbers missed hearings while being kidnapped, several died, and hundreds more made the heartbreaking decision to send their children alone across the border, believing they would have a better chance of being allowed to remain under US policies to protect. unaccompanied minors. Thousands have surrendered, according to estimates by officials and advocates.

“Why it has taken so long is obviously worrying, since the people who are still in Mexico continue to suffer and find themselves in dangerous situations,” said Judy Rabinovitz of the American Civil Liberties Union (ACLU), who He sued then-President Trump for the policy.

Biden administration officials have acknowledged this dire number, even as they continue to send asylum seekers, some with Migrant Protection Protocols cases, to Mexico again, invoking a policy that emerged in the days of the Trump-era coronavirus. Citing Title 42, an obscure public health law from 1944, border officials have expelled more than 850,000 migrants, including asylum seekers, this time without a hearing date or due process.

“The fact that Title 42 remains in effect at the same time that the administration claims to try to fix the Remain in Mexico cases presents authorities with a fundamental contradiction between what they claim to be doing and the way border control is actually working. on the ground, ”Kocher said.

Biden froze the Migrant Protection Protocols on his first day in office, though the process had already been largely superseded by Trump’s coronavirus removal policy. But the Biden administration didn’t formally end the Remain in Mexico protocol until June 1.

In the memorandum ending the policy, Homeland Security Secretary Alejandro N. Mayorkas indicated that he had further exhausted the department’s resources and added to a record backlog in immigration court proceedings.

More than 25% of people subject to this policy were detained by border officials when they tried to re-enter, according to Mayorkas, and about 44% of the cases were completed by orders from judges to remove asylum seekers who did not attend. the hearings.

That raised questions about whether the program provided them with “adequate opportunities” to appear, he noted, “and whether the conditions faced by some MPP affiliates in Mexico, including lack of stable access to housing, income and security, resulted in the abandonment of potentially meritorious protection claims ”.

Still, the current chaos at the border, with thousands of migrants trapped in northern Mexico and the monthly number of border crossings still among the highest in years, is due in part to confusion over the continued promises of the Mexican administration. undoing Trump’s policies, while the review of his promised asylum has yet to materialize.

Advocates argue that those who have been subject to migrant protection protocols, and who received final decisions from immigration judges, denying their asylum applications, also deserve another chance to seek refuge, under US law.

On Tuesday, the Department of Homeland Security statement reiterated that other individuals who may be eligible to enter in the future “must remain where they currently are and register online” through a system administered by the United Nations.

Trump administration officials explicitly stated that the goal of the policy was to make seeking asylum as difficult as possible and to deter others.

“This is what they wanted and this is what they got: people couldn’t get asylum,” Rabinovitz said of officials from the previous administration. Now, with Biden in the White House, he continued, “We are saying no; in order to relax, it is necessary to give people a new opportunity to apply for asylum, free of that stain ”.

US border officials frequently made mistakes in administering the Remain in Mexico policy, the Times found. That included providing documentation to asylum seekers in languages ​​they did not speak, or writing the phrase “known address,” or simply “Tijuana,” a Mexican border city of about 2 million people on their documentation, rather than an address. legally required. That made it nearly impossible for applicants to be notified of changes to their cases or hearing dates.

These mistakes by US border officials also fueled federal judges’ rulings against the policy.

In a ruling, a judge for the Ninth Circuit Court of Appeals noted that Homeland Security procedures for implementing the policy were “so inadequate to achieve that stated goal that they made them arbitrary and capricious.”

But the Supreme Court never ruled in the last instance on the legality of the migrant protection protocols. In early February, the Biden administration asked the nation’s highest court to drop arguments about the policy. Opponents in several states have sued, arguing that the Biden administration cannot end it.

On Monday, the Supreme Court rejected that effort, ordering: “The motion to intervene is dismissed as debatable.”

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