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Biden administration reviving Trump-era border policy it says led to "inhumane" conditions

Mayorkas says DHS resources are "stressed"
Mayorkas says DHS resources are "stressed" 02:05

The Biden administration is restarting a Trump-era border program that requires migrants to wait in Mexico while their asylum requests are reviewed despite the "inhumane" conditions it believes the policy fueled, a top U.S. official told CBS News.

Due to a federal court order that the Supreme Court refused to suspend, the Biden administration is required to reinstate the so-called "Remain in Mexico" policy, under which 70,000 non-Mexican asylum-seekers were instructed to wait outside the U.S., often in squalid tent camps and crime-ridden border towns.

During an interview this week with "CBS Evening News" anchor and managing editor Norah O'Donnell, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas said he opposed the Remain in Mexico policy, citing "very poignant and powerful pictures" of migrants' living conditions.

"The Matamoros camp where we saw individuals living in squalor who don't have the ability to work, where the conditions are inhumane," Mayorkas said. "We just saw the camp in Reynosa similarly situated. It is not in the best interests of individuals who are seeking humanitarian relief under United States law."

Despite these comments — which echo President Biden's own statements about Remain in Mexico — Mayorkas said he is "obliged" to revive the Trump administration policy due to the court order from August. "We're planning to implement the program while we litigate the ruling," he added.

DHS has yet to return asylum-seekers to Mexico under the rule, the department confirmed on Thursday. But the department's policy office has been working on logistical plans to facilitate its "expeditious reimplementation," including cost estimates, according to an internal memo obtained by CBS News.

Remain in Mexico's implementation will also need to be greenlighted, even if informally, by the Mexican government, which has publicly called the policy a "unilateral" U.S. action. Representatives for the Mexican government did not respond to questions about the status of talks with the U.S.

The administration suspended the policy, officially known as the Migrant Protection Protocols (MPP), on Mr. Biden's first day in office. In June, Mayorkas issued a memo terminating the program, calling it ineffective and costly. 

Migrants Huddle In Camps And Shelters In Tijuana Waiting To Cross Into U.S.
Asylum-seeking migrants gather at a makeshift camp on the Mexican side of the San Ysidro Port of Entry on July 20, 2021, in Tijuana, Mexico. Getty Images

The revival of Remain in Mexico, the centerpiece of the Trump administration's efforts to restrict asylum at the southern border, would represent an extraordinary policy reversal for Mr. Biden, one that would anger advocates for migrants, Democratic lawmakers and U.S. government asylum officers. 

"It is abundantly clear that the United States cannot safely reinstate MPP and that any attempt to return people seeking safety to harm in Mexico will violate U.S. and international legal obligations to refugees," 31 Democratic lawmakers, led by Congresswoman Veronica Escobar and Senator Bob Menendez, wrote to Mayorkas in a letter on Wednesday obtained by CBS News.

The Democratic members of Congress cited more than 6,000 reports of kidnappings, assaults and rapes against migrants who U.S. border officials sent to northern Mexico, including areas the State Department warns Americans not to visit because of rampant cartel violence and crime. 

U.S. government asylum officers also expressed concern about being required to implement a policy they have denounced as illegal, draconian and inhumane. 

"The reinstatement of MPP will place thousands of asylum seekers in harm's way and deny them the right to a fair hearing of their claims," Michael Knowles, president of AFGE Local 1924, which represents U.S. asylum and refugee officers, told CBS News.

Another U.S. asylum officer who interviewed migrants returned to Mexico during the Trump administration said he would speak out if instructed to participate in the policy again. The asylum officer said he interviewed migrants who recounted stories of being kidnapped, raped, mugged and extorted in Mexico.

"It's not a process. It is an out and out deterrent. It is a brick in the wall," the asylum officer, who requested anonymity because he was not authorized to speak to the press, told CBS News.

Out of 43,800 migrants whose MPP cases were completed, just 723 people — or 1.6% — were granted U.S. protection, according to a data analysis by researchers at Syracuse University. Advocates said the high rate of denials stemmed from the difficulty migrants faced in finding lawyers and dangerous conditions in Mexico that prompted some to abandon their cases.

Advocates have pushed the Biden administration to refrain from returning asylum-seekers to Mexico, saying a "gentler" version of the MPP program can't be revived.

"There's no way to implement it in a way that will satisfy actual due process or keep people safe, because it's impossible to keep migrants safe in Mexico," said Taylor Levy, a lawyer who has worked with dozens of asylum petitioners returned to Mexico.

Instead, the advocates have said, the Biden administration should issue a new memo terminating the MPP program that addresses the concerns raised by U.S. Judge Matthew Kacsmaryk, who said Mayorkas failed to consider the policy's "benefits," including its deterrent effect on migrants who don't qualify for U.S. refuge.

Even if a new memo does not satisfy Kacsmaryk's concerns, it could convince the 5th Circuit Court of Appeals or the Supreme Court to suspend the ruling, said Judy Rabinovitz, an American Civil Liberties Union attorney who led a currently frozen lawsuit against Remain in Mexico. That separate court case, which led two federal courts in California to declare MPP unlawful, could restart if the Biden administration revives the policy.

"There's a possibility that we could go back to court," Rabinovitz told CBS News. "Courts have already ruled that the policy is illegal."

The court ruling mandating the revival of Remain in Mexico has already had a direct impact on asylum-seekers stranded south of the border, including José Luis, 29, a political dissident from Nicaragua waiting in Ciudad Juárez alongside his wife, Wendy, 25, and their 9-month-old baby.

José Luis said he faced death threats in Nicaragua after resigning from his position as a nurse in the country's military during the 2018 government crackdown on protests. After arriving at the U.S. border in July 2019, he was returned to Mexico under the MPP program, according to a U.S. government document. 

Wendy said she trekked north after being threatened by people seeking to take her family's land in Guatemala. According to a U.S. document, she was returned to Mexico in May 2019. Matthew Hoppock, her lawyer, said he unsuccessfully implored U.S. officials to allow Wendy to join her family in Kansas due to her medical conditions, which include thyroid issues.

The couple, who met in Ciudad Juárez, rejoiced when they learned of the Biden administration's decision to allow migrants enrolled in MPP to continue their cases in the U.S.

José Luis was eligible to enter the U.S. because he had a pending asylum case. But he was told he could only bring his baby daughter and not Wendy, since her asylum case had been rejected by an immigration judge.

"I was not going to enter without my family," José Luis told CBS News in Spanish. "What is going to happen to my family? That's why I have not left them alone, because it would be like leaving a house without its pillar."

The admissions process, which allowed 13,000 asylum-seekers to enter the U.S., has now been shut down following the August court ruling, stranding José Luis, Wendy and their baby in Mexico indefinitely.

The family is living in a shelter in Ciudad Juárez, but they don't feel safe there. José Luis said he was almost stabbed outside the shelter. Wendy said a kidnapping attempt against her was foiled by a local pastor who wrote a letter vouching for her accounts.

"Sometimes I feel like I can't continue anymore. I ask God to give me strength for our daughter," Wendy told CBS News in Spanish. "It's frustrating to continue waiting here after all this time and suffering."

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