Waiting for an Open Door
Trump’s anti-immigration policies have done lasting harm beyond the border. Reversing them can’t come quickly enough.
During the first several weeks of his new term, President Biden wasted no time in fully dedicating himself to the erasure of much of President Trump’s harmful legacy. Through a volley of executive orders, Biden allowed transgender Americans to serve openly in the military again, rejoined the Paris Climate Accords, and finally started taking a more aggressive (and factually coherent!) position on how to address the COVID-19 pandemic.
Many of President Biden’s orders were specifically targeted towards reversing Trump’s especially cruel and damaging anti-immigration policies. He organized a task force to reunite migrant children still separated from their families, a number estimated to be more than 600 children. Biden also ended the travel ban from majority-Muslim countries. And construction of Trump’s controversial pet project, a 2,000-mile long border wall along the entirety of the US-Mexican border, was paused for a two month re-evaluation.
But while much of the public attention and furor over Trump’s policies on immigration were directed towards the family separation policy and the wall (and rightfully so), not enough attention has been paid to how the administration had effectively ended the asylum process entirely for thousands of South American migrants fleeing violence and poverty, with tragic results. And critics are claiming that the Biden administration isn’t moving forcefully enough on restoring it.
Stripping Away the Right to Asylum, One Policy at a Time
From the very beginning, Trump couched his presidential campaign on fear of The Other — the “un-American,” the “globalist” elite, or of imagined brown barbarians at the southern gate (“They’re bringing drugs. They’re bringing crime. They’re rapists.”). In his rallies and myriad appearances on Fox News, Trump often railed against a policy he and other Republicans dubbed “catch and release,” essentially the practice of releasing low-risk migrants into the US after they have been processed by Customs and Border Patrol (CPB) to await a hearing, when their asylum case would be adjudicated. Despite that the biggest source of undocumented immigration results from visa overstays, and that many migrants intentionally seek out CBP agents after crossing the border in order to initiate the asylum process, Trump and his anti-immigration senior policy advisor Stephen Miller leveraged this as an excuse to effectively close the border to asylum through what the administration oxymoronically termed the Migration Protection Protocols, also known as MPP or the “Remain in Mexico” program.
Under MPP, migrants that enter US ports of entry on the southern border are sent back and directed to remain in Mexico for their court date,which could often be months in advance. According to a report released in January by Human Rights Watch, since the MPP program was implemented in early 2019, approximately 69,000 migrants were sent back, including young children and the disabled. A third of them were estimated to be under the age of 18, and about 4,000 under the age of 5.
To further restrict the number of migrants entering the country, CBP began using a practice called “metering,” or placing hard limits on the number of migrants who can enter the US and request asylum per day. Depending on which port of entry you happen to be at on a given day, CPB would only consider processing a small number of families, between 5 to 10 to perhaps even none at all for weeks at a time. In order to keep track of who was next in line, it was up to migrants themselves to keep their own informal lists with pen and paper. Imagine, your future and that of a thousand others depending not on a formal database, but on where you’re listed next on some guy’s notebook.
Since the pandemic broke in March of 2020, the Trump administration finally decided to cut any pretense and effectively ended asylum as we know it, using a 1944 statute allowing the Surgeon General to block entry to immigrants on public health grounds. All court hearings for those waiting in Mexico under MPP were cancelled, indefinitely.
Trapped in Limbo
The true result of Trump’s policies is that migrants, many of them women and children fleeing gang violence and crime from Guatemala, El Salvador, and Honduras, now face situations more as perilous if not more so than what they were escaping from.
MPP forces migrants to remain in some of the most dangerous cities in the world, with little to no resources. According to the HRW report, Ciudad Juarez for one has one of highest murder rates of any city on Earth. The state of Chihuahua where Ciudad Juarez is located, reported an increase of 31% in gender-related homicides from 2019 to 2020, and as of this writing, the states of Tamaulipas and Sinaloa, where other large border cities like Matamoros, Nogales, and Nuevo Laredo are located (each with high numbers of those waiting to enter due to MPP), are listed by the US State Department as “Level 4 — Do Not Travel” zones due to high levels of crime. If these cities are too dangerous for US citizens to travel to, what exactly is “protective” in forcing migrants to remain there?
Regardless, in an unfamiliar locale, in an extreme state of vulnerability, and often not knowing the local language, migrants are extremely susceptible for exploitation and abuse. The HRW report noted 1100 cases of rape, murder, kidnapping, torture, and assault among those sent to Mexico under MPP, with many often targeted based on their nationality and gender, indigenous and transgender individuals being of special concern. Gangs have been known to stake out regular areas where migrants are released by the authorities. According to one account, a woman and her 10-year-old daughter from Guatemala were captured and held against their will for 12 days. The mother was raped in front of her daughter numerous times and attacked with acid. Despite safeguards designed to prevent refoulement, or the act of sending asylum seekers to a country where they are in danger of persecution, less than one percent of appeals from MPP subjects to be returned to the US on humanitarian grounds were successful. The mother and her daughter were finally let into the US to await their court date, but only after three appeals.
Migrants reported more than one incident at the hands of Mexican and US authorities. A Salvadorian family was held for two days with no explanation by whom they had strong reason to believe were Mexican police. The family was kept without food or water, and were only released after a member of their extended family sent $4,500 in ransom. CBP officers have been reported as being both physically and verbally abusive to migrants, including using racialized language and insults, and in at least one case, an officer threatened to destroy a migrant’s legal documents.
Putting aside the inherent cruelty of the “Remain in Mexico” policy, one would hope that it would at least be implemented somewhat intelligently, but this is the Trump administration we’re talking about, so no — slapdash ineptitude was baked into the design.
In some cases, migrants were given court dates hundreds of miles away from where they entered the US, often in cities on the other side of the country. Migrants that enter the US from Nogales, for instance, could be ordered to appear as early as 4 AM in Ciudad Juarez, a roughly 6 hour journey by car with no means of transportation provided by the state. Others never even received notices — agents would list incomplete or wrong addresses (simply “Facebook” in at least one instance), or issue them for the wrong date, only for migrants to find out once they made it to the border that their case was dismissed in absentia. Some were even granted asylum, only to be sent back to Mexico anyway in error.
The resulting intense backlog of migrants created an ongoing humanitarian border crisis that the Mexican government is unable to adequately address, with NGOs and volunteers stepping in to fill the gaps. Many migrant shelters run by the government are at or beyond capacity, forcing migrants to gather in overcrowded, makeshift camps without access to running water or proper sanitation. One camp in Matamoros held upwards of 2,000 people. Predictably, preventable respiratory and digestive diseases have run rampant throughout the camps — and this was before the COVID-19 pandemic.
Ironically, Trump’s highly restrictive and punitive immigration policy has created a level of desperation that only caused illegal crossings at the border to increase. According to NPR, for every migrant remaining in Mexico, there were 13 that crossed the border illegally, often at terrible risk. In 2018, a father and his 2-year-old daughter were found drowned at the banks of the Rio Grande after attempting to cross into Texas.
Changing, But Not Enough
After the election, the Biden administration rightfully decided to kill MPP by refusing to admit any new entries into the program, “another step in our commitment to reform immigration policies that do not align with our nation’s values,” as Department of Homeland Security Secretary Alejandro Mayorkas put it. CBP was also directed to step up processing asylum claims, up to 300 per day at three ports of entry until all under MPP were processed.
But the camps are still there, and migrants are still vulnerable.
The administration has for now decided not to rescind Title 42 restrictions on entry, the CDC statute that closed the borders to immigration due to COVID-19. Anyone not previously registered under MPP is still barred from entering until further notice, and migrant waves are starting to increase again. The administration recently reopened emergency facilities to house an influx of unaccompanied minors crossing into the US, causing some to question the administration’s commitment to truly change.
In all honesty, no one can pretend that the asylum system hasn’t been in dire need of reform for years, and these are arguably the first, small steps in what will be a lengthy dismantling of Trump and Miller’s influence on the immigration bureaucracy. But the human legacy, the toll these policies have taken on families and on real people’s lives, will prove to be long-lasting, and for some, immeasurable.
Center for Migration Studies — Border Enforcement Developments Since 1993 and How to Change CBP
Migration Policy Institute — Biden Administration Is Making Quick Progress on Asylum, but a Long, Complicated Road Lies Ahead