The reckoning of Remain in Mexico and its impact on human trafficking

There is a longstanding link between human trafficking and immigration policy that is often invisible in the debate around supporting asylum seekers at the US border.  

On Tuesday, the U.S. Supreme Court heard oral arguments in Biden v. Texas, where the Court will make legal determinations on issues surrounding the Remain in Mexico (RMX) program, a draconian Trump-era immigration policy requiring immigrants arriving at the southwest border to return to Mexico as they await their immigration proceedings. Approximately 60,000 asylum seekers and other vulnerable migrants (including 16,000 children and 500 infants) were subject to RMX. The Biden administration ended the program, only to be sued by Texas and Missouri. With a conservative lower court ruling that the policy be reinstated, the Supreme Court must now determine President Biden’s authority to set or repeal immigration policy in an historic case that will have lasting impacts on immigration policy and executive power. 

Both sides of the aisle have failed to uplift the intersection of immigration policies and human trafficking. The anti-trafficking policy framework and advocacy landscape has often been manipulated to serve political interests, often leaving behind the policy and human services needs of migrants that fall victim to trafficking.

It is undeniable that programs like Remain in Mexico enable trafficking.

Both Republicans and Democrats often agree on the root causes of trafficking like unstable housing, difficult economic conditions, and lack of familial support. The Remain in Mexico program has only exacerbated the number of migrants that are trafficked at the US-Mexico border. Human Rights Watch documented at least 8,000 reported cases of murder, rape, torture, and violent assault and at least 341 cases of children being kidnapped. It’s clear that migrants subject to the Remain in Mexico program would not have been as vulnerable to trafficking if they weren’t stranded in Mexico indefinitely. 

TheBiden v. Texas caseunderscores a means to a political end for trafficking survivors. The Trump administration, Texas, and Missouri argued that RMX will reduce trafficking because the migrant “surge” will be reduced. However, the same people that were vulnerable as migrants en route are now even more vulnerable as migrants stranded in even more inhumane conditions. We also must reckon with the fact that the U.S.’ refusal to admit asylum seekers at the border has presented a heightened risk and occurrence of human trafficking. 

But the reckoning happens now.

The outcome of Biden v. Texas will determine the future of exploitation and trafficking on the border for some of the most vulnerable communities in the world. The Supreme Court will either allow the Biden administration to restore due process rights on the border or allow RMX to exist in perpetuity, continuing to place vulnerable populations at a heightened risk of being trafficked. Either outcome will have a significant impact on anti-trafficking efforts and immigration policy. The U.S. government must be accountable to RMX survivors and reclaim the trafficking narrative from conservative entities. To prevent trafficking at the border and protect survivors in anticipation of the Biden v. Texas ruling, the following changes must happen: 

1. Implement the Right to Counsel for Non-Citizens in Removal Proceedings

. Approximately 96 percent of noncitizens in RMX did not have representation, even though immigrants with representation are five times more likely to secure immigration relief. Many migrants do not know that they’re experiencing trafficking until they meet with a pro bono immigration attorney. It is critical that the Biden administration understand that without free legal representation, many immigrants will not able to lawfully enter the U.S., let alone apply for trafficking specific asylum claims. 

2. Update the National Action Plan to Combat Trafficking (NAP) to Explicitly Address RMX Survivors: The Biden administration must update NAP to directly address the outcome of Biden v. Texas. NAP must reflect how the U.S. government will be accountable to this new group of survivors so that they do not continue to fall through the cracks of civil and criminal enforcement systems in the U.S. The Biden administration should create a RMX survivor working group to ensure that the policies are guided at every point of development by their lived experiences. 

3. USAID Must Support Community Based Organizations (CBOs) Working Directly with Border Camps: The best way to prevent trafficking is by focusing on the root causes of trafficking—societal marginalization and poverty. There are many CBOs that work directly with asylum seekers in RMX. USAID should work with RMX survivors to pinpoint, which local CBOs on the ground are the most trusted amongst migrants.  

The Remain in Mexico program plays politics with the lives of migrants fleeing unimaginable and uninhabitable living conditions. Even more, it turns them away from safety and stability at the U.S. border, forcing them to indefinitely Remain in Mexico placing their livelihood and safety at risk. If the United States intends to make true on their promises of transition of power, executive power, along with fair and equitable immigration policies, the Supreme Court must protect President Biden’s ability to remove the program. This decision would make way to greatly reduce trafficking at the southern border.

Sabrina Talukder is Federal Policy Director at Sunita Jain Anti-Trafficking Initiative at Loyola Law School.