The Department of Homeland Security (DHS), under newly appointed Secretary Alejandro Mayorkas, has announced, on Feb. 11, a new policy that builds upon its “phased strategy to reform the nation’s immigration system.” Beginning on Feb. 19, DHS will begin phase one of their strategy to “restore safe and orderly processing at the southwest border. DHS will begin processing people who had been forced to “remain in Mexico” under the Migrant Protection Protocols (MPP). Approximately 25,000 individuals in MPP continue to have active cases.”

This program is an integral piece of the reformation of the immigration system announced in an Executive Order on Feb. 2. summarized in this press release. The changes in asylum protocols reverse President Trump’s Remain in Mexico program.

Under the Trump administration, “foreign individuals entering or seeking admission to the U.S. from Mexico—illegally or without proper documentation—may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.” 

The Biden administration proposes a three-part plan whose three phases are as follows, one of which will be to review and reform the MPP:

  • First, the Administration will address the underlying causes of migration through a strategy to confront the instability, violence, and economic insecurity that currently drives migrants from their homes.
  • Second, the Administration will collaborate with regional partners, including foreign governments, international organizations, and nonprofits, to shore up other countries’ capacity to provide protection and opportunities to asylum seekers and migrants closer to home.
  • Finally, the Administration will ensure that Central American refugees and asylum seekers have access to legal avenues to the United States.
Photo/USA Today/Alejandro Mayorkas

Friday, NPR host Rachel Martin interviewed Homeland Security Secretary Alejandro Mayorkas about the reversal of the Trump administration asylum protocols. Mayorkas said that the “Remain in Mexico” asylum seekers will receive priority attention from the administration. They will be processed according to the date of entry and level of vulnerability. Once the program is up and running, the DHS believes it will process up to 300 people a day at two or three ports of entry on the U.S.-Mexico border. Under Trump’s “Remain in Mexico” protocol, about 68,000 immigrants were sent back to Mexico, but there are currently about 25,000 active cases, according to Mayorkas.

A virtual platform will be created so that those asylum seekers “who are spread out geographically can register in the program remotely.” He said that the department discourages immigrants from traveling to the border at this time. He hopes the virtual platform will make it as easy as possible to identify themselves in the system.

When asked how he plans to avoid signaling to immigrants that the border is more open than it has been—Mayorkas told Martin, “it is a very significant challenge.” He realizes that immigrants may create a humanitarian crisis if they show up en masse. He said that the department needs to build the program from scratch because the previous administration “dismantled it.” He hopes that asylum seekers will heed the warning that moving to the border before DHS is fully prepared will be detrimental to them. The International Organization for Migration will test asylum seekers for Covid “before they are processed at our ports of entry.”

Mayorkas chairs the task force on family separation issues and seeks to reunite families whether it is here or in their countries of origin. He will build back the program that Obama started.“The Obama-Biden program was designed to address those root causes, to invest in the countries of origin, to equip them with the infrastructure and capabilities to address the violence, the economic desperation, the corruption that caused so many people to flee.” He says that it is a long-term process and the reason it did not succeed was that it was “cut off by the previous administration.” Mayorkas has the policy support he needs to build a “true refugee program in the Western Hemisphere.”

The Biden administration has rescinded the zero-tolerance policy put in place on May 7, 2018, by President Trump. The zero-tolerance policy was implemented to discourage illegal border crossing and reduce the number of “fraudulent claims of asylum.” 

“Under the zero-tolerance policy, DOJ prosecuted all adult aliens apprehended crossing the border illegally, with no exception for asylum seekers or those with minor children. DOJ’s policy represented a change in the enforcement of an existing statute rather than a change in statute or regulation. Prior administrations had prosecuted illegal border crossings relatively infrequently.” In some cases, family separation resulted from the zero-tolerance policy because criminally prosecuting adults for illegal border crossing requires detaining them in federal criminal facilities where children are not permitted. The Trump administration maintained that the separation is the same for U.S. children whose parents are imprisoned. According to a Congressional Research Paper written by William A. Kandel, an Analyst in Immigration Policy, immigrant children are not allowed to stay in a family detention center “longer than 20 days. If parents cannot be released with them, children must be treated as unaccompanied alien children and transferred to the Department of Health and Human Services’ (HHS’s) Office of Refugee Resettlement (ORR) for care and custody.”

In June of 2018, President Trump issued an Executive Order, effectively reversing the family separation policy. The EO mandated that “DHS maintain custody of alien families during the pendency of any criminal trial or immigration proceedings.” 

During the six-week period of the zero-tolerance policy, “DHS separated 2,816 children—subsequently included in a class-action lawsuit—from their parents or guardians. Almost all have since been reunited with their parents or placed in alternative custodial arrangements. In 2019, DOJ disclosed the separations of an additional 1,556 children prior to the zero-tolerance policy but also during the Trump Administration who were included in the lawsuit class. As of December 2020, a steering committee assembled to locate separated children in this second group had not yet established contact with the parents of 628 children. In the period since the zero-tolerance policy was effectively paused in June 2018, at least 1,000 additional children were separated, bringing the total reported number of separated children to between 5,300 and 5,500.”

In his paper, Kandel also mentioned that family separation-related legislation introduced during the 116th and 115th Congresses “focused primarily on preventing or limiting the practice. Few of the bills saw congressional action.” 

In mid-January, Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration for its moratorium on deportations of illegal aliens. On Jan. 26, the United States District Court for the Southern District of Texas upheld federal immigration law, prioritizing “the law and safety of our citizens.” Paxton vows to continue to protect Texas citizens against any “unlawful or unconstitutional actions” on the part of the current administration. He is very focused on immigration issues, including human trafficking and drug trafficking, due to its shared border with Mexico.