Biden Is Trying To End "Remain In Mexico" Even As His Administration Prepares To Restart It

The Biden administration issued a second memo in an attempt to end a Trump-era policy that forced thousands of immigrants to wait in Mexico.

Loren Elliott / Reuters

An immigrant boy passes the time at a makeshift encampment occupied by asylum-seekers, most of whom were sent back to Mexico from the US under the "Remain in Mexico" program.

The Biden administration on Friday moved to once again shut down a controversial Trump-era program that forced asylum-seekers to remain in Mexico after a federal court judge in Texas found fault with a previous attempt to do so.

The judge had previously thwarted the Biden administration’s efforts to formally end the program and ordered it to restart the Migrant Protection Protocols (MPP), also known as "Remain in Mexico," which the government has been preparing to relaunch in mid-November. In a memo rescinding the policy for the second time filed in court on Friday, Department of Homeland Security Secretary Alejandro Mayorkas acknowledged that while MPP may have led to a reduction in irregular migration the humanitarian costs of the policy were too high.

"Once individuals are returned across an international border, there's limited opportunities for the United States to be able to affect their safety and security once they are in the control of another sovereign nation," a DHS official told reporters.

The Remain in Mexico policy led to tens of thousands of asylum-seekers being forced to stay in Mexico as they waited for their day in a US court. They were often left with nowhere to go but the streets of dangerous Mexican border cities, where human rights advocates tracked hundreds of cases of returned immigrants being kidnapped, raped, and tortured while the US government forced them to wait there.

In August, US District Judge Matthew Kacsmaryk ordered the Biden administration to restart the program until it could rescind the policy in compliance with the Administrative Procedure Act. His order went into effect shortly afterward, and since then, the Biden administration has been developing plans to restart Remain in Mexico. As part of those plans, the administration has been in discussions with the Mexican government over how the new version of the policy would work on the ground. Mexico has to agree to take back immigrants and asylum-seekers before the program can be relaunched and an agreement on a new version of MPP has yet to be reached.

While the government prepares to restart MPP, Mayorkas’s Friday memo is the second one issued in an attempt to end the program. Earlier this year, the Biden administration began to undo MPP by allowing thousands of people caught up in Remain in Mexico to come to the US, and in June Mayorkas issued a memo officially ending the policy.

Kacsmaryk found fault with the process to terminate the program, prompting the new memo issued by Mayorkas. The Biden administration hopes to raise the new memo in court proceedings in the Fifth Circuit and seek to move the case back to a lower court where it will attempt to lift the injunction that forced them to restart MPP, a DHS official said.

Blas Nuñez-Neto, a senior DHS official appointed by Biden, has said in a federal court filing that Mexican officials had told the administration that they had concerns about “particularly vulnerable” individuals being turned back to Mexico.

“In particular, the GOM [government of Mexico] raised concerns about certain populations being enrolled in MPP, including particularly elderly or sick individuals, as well as other populations, such as LGBTQI individuals. GOM made clear that it expects the reimplementation of MPP to address these concerns,” Nuñez-Neto wrote in a court filing.

A DHS official said the government shares the concerns Mexico has about vulnerable immigrants, such as LGBTQ people and those with medical conditions, and is working to address them. An internal government report obtained by BuzzFeed News found that while those with “known physical/mental health issues” were prohibited from being placed into MPP, border officials placed them in the program anyway.

Whether MPP is actually reinstated in mid-November as planned, the Biden administration will continue to use another Trump-era border policy. At the start of the pandemic, the Trump administration stopped using MPP as often in favor of an obscure public health law, known as Title 42, which has allowed the US to quickly expel immigrants at the border, blocking them from accessing the asylum system.

Frustrating immigrant advocates, the Biden administration has continued to use Title 42 to expel thousands. Administration officials have said they plan to continue using Title 42 on immigrants who are "amenable" to it in order to quickly send them back to Mexico or their countries.