Biden again rescinds Trump ‘Remain in Mexico’ policy amid legal battle

The Biden administration is once again rescinding former President Trump’s Remain in Mexico policy in an effort to battle a court ruling forcing the new administration to carry out the controversial policy often viewed as a roadblock to seeking asylum.

The Department of Homeland Security (DHS) first moved in June to scrap the policy, which Trump introduced in 2019, forcing would-be asylum-seekers from a number of countries to await a potential ruling in their case in Mexico.

But that prompted a suit and initial victory from Texas and Missouri, which argued the Biden administration too hastily withdrew the policy, under which the U.S. transported 70,000 asylum-seekers to Mexico to await a determination in their case.

In drafting a new 39-page memo to rescind what’s formally called the Migrant Protection Protocols (MPP), the Biden administration is taking a page out of the Trump playbook, using court rulings to sharpen the legal reasoning behind its decisions. 

The memo does not take effect immediately but more fully outlines the administration’s rationale for ending the program, which Homeland Security Secretary Alejandro Mayorkas first revoked with a brief, seven-page memo. 

“After carefully considering the arguments, evidence, and perspectives presented by those who support re-implementation of MPP, those who support terminating the program, and those who have argued for continuing MPP in a modified form, I have determined that MPP should be terminated. In reaching this conclusion, I recognize that MPP likely contributed to reduced migratory flows. But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico,” Mayorkas wrote in the Friday memo, adding that the policy “fails to provide the fair process and humanitarian protections that all persons deserve.” 

“MPP may very well have led to a reduction of irregular migration and a reduction of … border crossings between ports of entry, but nonetheless, the humanitarian costs of the program, including costs that just can’t be rectified, justify the decision to terminate,” the official said.  

“There are certain problems with MPP that are endemic, inherent in the program that no amount of resources can fix,” they said, noting the program makes it extremely difficult for migrants to access legal assistance and for the U.S. to address safety and security concerns.

Mayorkas’s memo also seeks to push back on the idea that MPP was effective in managing migration to the border.

“Correlation does not equal causation and, even here, the evidence is not conclusive,” Mayorkas wrote in reference to the decrease in border encounters seen under MPP.

While Mayorkas’s initial rescission took effect immediately, the latest memo is entangled in the existing legal battle over MPP.

The 5th Circuit Court of Appeals directed the Biden administration to implement the policy “in good faith” as litigation proceeds, something DHS said they would begin to do in November.

While the Biden administration is currently in negotiations with Mexico to restart the program, recent court filings from DHS indicate the country has serious reservations about doing so, outlining several measures it requires before it is willing to engage.

Many blame MPP for creating dangerous conditions along the border, where vulnerable asylum-seekers are left living in poor conditions in migrant camps for months or years while they await court action in the U.S. 

Despite the tens of thousands removed to Mexico under the policy, an estimated 25,000 people are still waiting after many would-be asylum-seekers simply left.

Mexico has told the U.S. it doesn’t want elderly, sick or LGBT asylum-seekers to be sent to the country due to concerns for their safety. It also pressed the U.S. to resolve cases more quickly, with DHS giving a “general commitment” to deciding new asylum cases within six months.

“We have been working towards being in a place where MPP could be implemented around mid November. Again, that depends on the independent agreement of Mexico and those conversations are ongoing,” a DHS official said Thursday.

The Biden administration is hopeful the new memo will lead to some reversal by either of the courts that have forced it to reinstate Remain in Mexico. 

“As long as the injunction is in place, we are bound to comply with it. But as we’ve said, we are vigorously fighting it, vigorously appealing it ,and so with this new memo we will seek to either have a 5th Circuit vacate the district court ruling or for the district court to do so itself,” the DHS official told reporters.

Senate Foreign Relations Committee Chairman Bob Menendez (D-N.J.), who earlier this year penned a letter urging the Biden administration to craft a new memo rescinding MPP, said it was his “sincere hope that this new memorandum from the Department of Homeland Security will meet the necessary legal criteria to revoke this xenophobic policy once and for all.”

“Forcing those fleeing for their lives to be exposed to greater risk of kidnappings, extortion, trafficking, rape, and even murder is completely inconsistent with who we strive to be as a nation. This program should be permanently discarded along with the many other remaining Trump administration policies willfully designed to punish and deter refugees from legally seeking safety in the United States,” Menendez said in a statement.

While the Biden administration has sought to rescind MPP, it has retained another Trump-era asylum policy, continuing to use Title 42 to rapidly expel migrants without allowing them to seek protective status.

Immigration advocates have long argued MPP is an illegal roadblock to asylum-seekers, who have a right to make their case in the U.S. 

“Restarting any version of the Trump administration’s notorious Remain in Mexico policy will lead to immense human suffering,” Eleanor Acer, senior director of refugee protection at Human Rights First, said when the Biden administration announced its plans for reimplementing MPP earlier this month. 

“Trump 2.0 policies at the border are a recipe for continued cruelty, disorder, and violations of refugee law. The Biden administration must honor its promise to terminate this horrific program.”

—Updated at 1:50 p.m.