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Top Mexican court to give new life to controversial Trump-era border policy

The Mexican supreme court is poised to give new life to a controversial US-Mexico border policy at a time when both countries are looking for ways to slow the flow of migrants heading north.

The “Remain in Mexico” policy, officially called the Migrant Protection Protocols, is a Trump-era policy that forced people seeking asylum in the US to wait out their legal proceedings in Mexico for months or even years. The government of Mexican president Andrés Manuel López Obrador accepted the arrangement and allowed thousands of asylum seekers to be sent back to the country from the US.

But an injunction granted to the Mexican non-profit legal group, Fundación para la Justicia, in November last year would have prevented further Mexican cooperation in the program.

The court’s draft decision, which will be discussed October 11, would reverse that injunction and “violate the rights of migrants by allowing US laws to be applied in Mexican territory and violate the Mexican constitution and international treaties signed by our country”, said Fundación para la Justicia, along with several other non-profit legal groups in Mexico and the US.

“It’s dangerous that the US pushes these policies but equally troubling Mexico accepts them,” says Ana Paola Delgadillo, the director of Fundación para la Justicia. “Mexico is a very dangerous country for migrants.”

Remain in Mexico was originally presented as a way to relieve pressure on the US asylum system and dissuade people from coming north. From January 2019 to June 2021, 74,000 asylum seekers were sent back to Mexico under the program, where they lived in informal refugee camps, despite claims from the Mexican government that they were providing safe haven for asylum seekers. The complaint before the court calls conditions for asylum seekers in Mexico “subhuman”.

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Data from Human Rights First showed that asylum seekers funneled into the program were being targeted for kidnapping, extortion, torture, and sexual violence by organized crime and Mexican officials alike.

Following a campaign promise, Joe Biden ended the policy soon after taking office in January 2021, saying it inflicted “substantial and unjustifiable human costs”.

But federal courts in Missouri and Texas ordered the government to reinstate the initiative, saying there was insufficient evidence to support claims of danger in Mexico. After nearly a year of legal battles, the Biden administration reinstated an updated version of the program with alleged safeguards in December 2021.

Under the new version, 41% of asylum seekers reported being the victims of crimes in Mexico. Many of the crimes were committed by Mexican officials and a large share of them were targeting LGBTQ asylum seekers.

The US supreme court ruled in June 2022 that the Biden administration had the authority to end the program, which it did by August 2022. The policy is still pending in lower federal courts.

Upholding the draft decision in Mexico would “open the door for the Mexican government to accept more migration agreements from the US with no consequences”, said Delgadillo.

She said rejecting the policy would establish precedent that would complicate current US-Mexico border agreements including title 8, under which migrants are rapidly deported from the US and banned from re-entry for five years.

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The possible revival of the policy comes as the United Nations Migration Agency reports “unprecedented numbers of vulnerable migrants” moving through Central America and Mexico. Through August, a record 390,000 people have traveled through the Darién Gap, a deadly stretch of jungle in Panama connecting South and Central America. Mexican migration authorities have detained a record number of migrants this year and the country is expected to receive its most ever asylum applications.

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The upcoming decision would also be a reversal from the overall trend of Mexico’s supreme court when it comes to migration.

A 2020 decision banned Mexican migration authorities from detaining children. A decision from earlier this year limited detention of adult migrants to 36 hours since lack of migration documentation is an administrative, not criminal, matter.

But rights groups say the Mexican authorities have not followed supreme court decisions. On October 2, the UN Working Group on Arbitrary Detention said in the first half of the year 240,000 migrants were detained in Mexico beyond the 36-hour period mandated by the supreme court.