News » As SCOTUS Takes Up Remain in Mexico Case, Immigrant Rights Groups Seek Class Certification in Separate Lawsuit to Protect Asylum Seekers in Danger

As SCOTUS Takes Up Remain in Mexico Case, Immigrant Rights Groups Seek Class Certification in Separate Lawsuit to Protect Asylum Seekers in Danger

Help Defend Asylum

CGRS relies on the generous support of people like you to sustain our advocacy defending the human rights of refugees. Make a gift today!


Feb 18, 2022

As the U.S. Supreme Court grants review of an order to restart Remain in Mexico, thousands returned to Mexico under the prior version of the policy remain stranded outside the United States without meaningful access to the U.S. asylum process.

Today the U.S. Supreme Court granted the Biden administration’s request to review a decision by the Fifth Circuit Court of Appeals in Biden v. Texas. The case, brought by the states of Texas and Missouri, challenges the administration’s termination of the Migrant Protection Protocols (MPP), or “Remain in Mexico,” a Trump policy that trapped asylum seekers in perilous conditions south of the border. The Biden administration seeks review of a lower court injunction ordering the resumption of Remain in Mexico, which followed the policy’s formal termination last summer. The Court put the case on an expedited timeline, with oral arguments to be held in April.

As the Texas case proceeds, advocates and asylum seekers continue to litigate a separate case, Immigrant Defenders Law Center et al. v. Mayorkas, which challenges harms suffered by asylum seekers who remain stranded in Mexico due to the effects of the policy’s first incarnation under Trump. Individual plaintiffs in the case recently filed a motion for class certification, requesting that they be allowed to represent a larger class of similarly situated individuals who had their cases terminated or received final removal orders after being deprived of meaningful access to the U.S.  asylum process under MPP 1.0. The suit alleges that the Biden administration unnecessarily and unlawfully suspended the wind-down process that had previously enabled many such individuals to re-enter the United States to pursue their asylum claims.

“We are glad the Supreme Court is treating the Biden administration’s appeal with the urgency it deserves,” said Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS) and co-counsel in both Immigrant Defenders Law Center et al. v. Mayorkas and Innovation Law Lab v. Mayorkas, a separate challenge to the legality of  Remain in Mexico. “The lower court decision ordering the reinstatement of Remain in Mexico grossly distorted the law and the facts and has fueled chaos and suffering at the border. The Biden administration must continue to defend its decision to terminate this heinous policy and end it once and for all. But the Texas injunction does not preclude the administration from providing redress to individuals subjected to the original version of Remain in Mexico, who remain in legal limbo outside the United States. The Biden administration has a moral and legal imperative to provide safety and justice for those left behind in its MPP 1.0 wind-down process.”

Remain in Mexico was designed to prevent asylum seekers from obtaining protection in the United States. The policy forced people seeking asylum to await their U.S. court dates in some of the most dangerous cities in the world, where they had virtually no access to legal assistance. Families, children, and single adults languished in squalid encampments, and many fell prey to violent cartels. Conditions were so perilous that many people, including some of the individual plaintiffs in the Immigrant Defenders Law Center case, were unable to return to the border for their asylum hearings and consequently denied protection. Multiple federal courts have found the policy to violate the United States’ domestic and international legal obligations to people fleeing persecution.

“My daughter and I lived in horrible conditions in the migrant camp in Matamoros, and I was kidnapped and raped while we waited in Mexico for my immigration court hearings,” Dania Doe, a plaintiff in the Immigrant Defenders Law Center case, stated in a declaration filed yesterday. “I thought we were going to die … I begged [U.S. officials] not to return us to Mexico, but they did not listen … I was never able to find an attorney to represent me in my immigration case, and the immigration judge denied my asylum claim.”

“Nobody explained why they were returning us to Mexico or what would happen,” Sofia Doe, a plaintiff in the Immigrant Defenders Law Center case, stated in a declaration filed yesterday. “I missed my third immigration hearing because I was experiencing complications with a high-risk pregnancy and had just been released from the hospital. As a result, my family and I received in absentia removal orders. In addition, my husband was assaulted while he was working in Mexico, and he has now been missing since early December … I feel alone, afraid, and trapped in Mexico.”

“I would never wish this experience on anyone,” said Francisco Doe, a plaintiff in the Immigrant Defenders Law Center case. “It has been so difficult since the first day, when they just left us here to survive by ourselves. People don't know about the suffering we've experienced here. I just want to be safe and reunited with my family in the U.S.”

In its first two months of implementation, 88 percent of asylum seekers placed in MPP 2.0 have expressed fear of return to Mexico. Border officials have rejected 75 percent of these claims, despite well-documented dangers facing asylum seekers in Mexico. Human rights investigators report that the Biden administration is returning even people who have experienced severe violence in Mexico and continuing to deny asylum seekers in MPP 2.0 access to vital legal services.

“Today’s Supreme Court decision affirms the Biden administration’s responsibility to terminate the destructive Remain in Mexico policy, but even this critical step is not enough,” said Amber Qureshi, Staff Attorney at the National Immigration Project. “The Remain in Mexico policy forced tens of thousands of people into precarious and life threatening situations with no recourse. The government cannot shut its eyes to the inhumanity and suffering it has manufactured; it must also ensure that every single individual harmed through this policy has a meaningful opportunity to pursue their asylum claims.”

“The Biden administration pledged to make ‘humanitarian improvements’ to MPP 2.0, including affirmative screenings of individuals who may fear harm in Mexico. But there is no reforming a policy designed to shut the door to people seeking safety,” said Kate Clark, Senior Director of Immigration Services for Jewish Family Service of San Diego. “MPP is unacceptable, inhumane, and as the administration has already stated, ‘no amount of resources can sufficiently fix’ the cruel policy. This lawsuit is necessary to ensure migrants subject to MPP 1.0 receive due process and are able to pursue their legal right to asylum in the U.S.”

“The Remain in Mexico policy, since its inception under the Trump Administration, was meant to keep Black and Brown people out of the United States,” said Tess Hellgren, Deputy Legal Director for Innovation Law Lab. “It is illegal, racist, xenophobic, and cruel. All iterations of this brutal policy must end, for the sake of the families who had the courage to save their lives and seek protection in the United States. As the Supreme Court takes up the Texas v. Biden case, our litigation will continue to fight for justice for the thousands of individuals who remain stranded in danger and deprivation from the government’s initial implementation of MPP 1.0.”

“MPP was such a lie because I never had any opportunity to present my case,” said Gabriela Doe, a plaintiff in the Immigrant Defenders Law Center case. “I am so frustrated and scared, and I am so afraid that something will happen to me here in Mexico. This has been so difficult for me, especially since I am just trying to protect my young daughter and have nevertheless seen her suffer because of MPP. This has been the terror of our lives, and I just want our lives to continue and to free my daughter of this agony. We are in agony every day, being in limbo and not knowing what we can do.”