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Biden is pushing to end “Remain in Mexico.” But he may still have to enforce it.

A prior court decision is complicating the administration’s latest effort to end the policy.

A group of migrants walk along the wall at the US-Mexico border near Ciudad Juarez, Mexico.
Migrants walk along the wall at the US-Mexico border near Ciudad Juarez, Mexico, on March 17, 2021.
John Moore/Getty Images

On Friday, the Department of Homeland Security issued a new memo terminating the Migrant Protection Protocol, a Trump-era directive requiring migrants to wait in Mexico for US immigration court hearings. It’s President Joe Biden’s second attempt to end the policy after a previous effort was blocked in federal court.

The memo argues that the policy, also known as “Remain in Mexico,” caused more harm than good, particularly in terms of its humanitarian impact.

“I recognize that MPP likely contributed to reduced migratory flows,” DHS Secretary Alejandro Mayorkas wrote in the four-page memo announcing the policy shift. “But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico.”

That determination is in line with Biden’s campaign promises on immigration, which included reversing policies like Trump’s “zero-tolerance” policy that resulted in family separations. It’s at odds, however, with the administration’s continuing reluctance to completely do away with other Trump-era legacies like Title 42, the immigration order that has allowed for the deportation of migrants as a public health measure during the pandemic.

And even though Biden began rolling back the MPP soon after taking office in January, his administration has had to prepare to re-implement the program in recent weeks in order to comply with a previous court order — even as it’s actively fighting to end the policy for good.

That means Friday’s memo won’t change anything right away: According to DHS, “the termination of MPP will not take effect until the current injunction is lifted.”

The MPP was first implemented in 2019 by the Trump administration, ostensibly as a deterrent to people attempting to cross the southern border and as a way to speed up decisions on asylum cases. But as Mayorkas’s Friday memo argues and Aaron Reichlin-Melnick, policy counsel for the American Immigration Council, highlighted on Twitter, “the fact that MPP may have resolved cases more quickly does not mean that the cases were resolved fairly or accurately.”

A 39-page justification published along with the memo outlines in further detail the conditions migrants faced in detention in Mexico, including the risk of sexual assault and kidnapping in the encampments where they stayed, as well as unsanitary and unstable housing conditions, limited access to health care and legal counsel, and insufficient food while they waited for the US to make a decision about their asylum hearings.

The right to seek asylum is protected under international law, and has been since the UN’s Universal Declaration of Human Rights was adopted in 1948.

Ultimately, the Biden administration argues the policy has far too many issues for it to be salvaged: Not only does it require significant resources that could be directed elsewhere, according to the DHS memo, but MPP also failed to achieve reduction in crimes like human trafficking and drug smuggling, put people in serious danger, and doesn’t address the root causes that lead to people seeking asylum.

Additionally, the memo says, any program fixes would require the cooperation of Mexico and further diplomatic negotiations — time and energy that could be better spent on other issues. And other strict immigration policies were enacted at the same time as MPP, making it difficult to assess any deterrent effect the policy may have achieved.

The initial decision to end MPP has been tangled up in the courts

In addition to laying out policy issues with MPP, Mayorkas’s memo responds to an August decision by a federal district court in Texas to block the DHS’s original June 1 memo ending the policy. That memo follows a February executive order from Biden, which asked DHS to complete a thorough review of the program’s costs and benefits and recommend whether it should stay in place as is, continue with modifications, or end altogether.

The new directive tries to address the shortcomings of the administration’s June 1 effort to end the MPP program, which was blocked by District Court Judge Matthew Kacsmaryk, a Trump appointee, on the grounds that DHS didn’t follow proper administrative procedure when issuing the memo.

Kacsmaryk also argued — incorrectly — that the US has only two options to deal with migrants: either deport them to “a contiguous territory,” in this case Mexico, or detain them in the US. Since there’s insufficient detention space in the US to house all of these migrants “subject to mandatory detention,” Kacsmaryk reasoned, the only option for DHS would be to return migrants coming from other Central and South American countries — and some from even further away — to Mexico.

However, as Vox’s Ian Millhiser explained at the time, the US does indeed have a third option when processing asylum seekers: It can offer them parole, the ability to stay in the US while their asylum claims or other efforts to gain legal status move through the immigration system. This system has been used, for example, to reunite Cubans and Haitians with family in the US, and for Afghan nationals fleeing the country after the Taliban’s takeover.

Despite that, the Supreme Court allowed Kacsmaryk’s decision to stand — for now — in an August order denying the Biden administration’s request for a stay during the appeal process.

As of this month, litigation in the case is still ongoing: The Fifth Circuit Court of Appeals is set to hear arguments on Tuesday in a lawsuit brought by the states of Texas and Missouri against the federal government, asking for MPP to be reinstated. According to the Associated Press, the US is expected to request that the case be sent back down to Kacsmaryk.

“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 Fifth Circuit vacate the district court ruling or for the district court to do so itself,” a DHS official told reporters on a call Thursday.

Some elements of Biden’s immigration policy are still stuck in the Trump era

While the decision to terminate MPP is undoubtedly a step toward implementing the more humane immigration policy Biden campaigned on, other elements of Biden’s policy at the southern border still look more like those of the Trump administration.

Specifically, Title 42 — the Centers for Disease Control and Prevention directive that allows the deportation of migrants due to public health concerns — remains in place, even as the US prepares to welcome back foreign tourists starting November 8.

The result, according to Vox’s Nicole Narea, is “a growing gulf between the progressive immigration values President Joe Biden professes and the enforcement policies he’s implementing at the border,” one which has led to “confusion among immigration officials, uncertainty for migrants, and questions about whether the president has a coherent strategy on immigration at all.”

Under Title 42, which the Trump administration put in place in March 2020, at the beginning of the coronavirus pandemic, the Biden administration has justified deporting thousands of Haitian immigrants, even as Haiti has been consumed by political crisis, violence, natural disasters, and the Covid-19 pandemic.

In September, Biden’s special envoy to Haiti, Daniel Foote, resigned in protest over the deportations, and another official — State Department legal adviser Harold Koh — did likewise earlier this month.

“I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” Koh wrote in an October memo obtained by Politico. “Lawful, more humane alternatives plainly exist, and there are approaching opportunities in the near future to substitute those alternatives in place of the current, badly flawed policy.”

According to US Customs and Border Protection, Title 42 was used to expel more than a million migrants between October 2020 and September this year, denying them a hearing with an immigration judge.

As Narea points out, the Biden administration is caught in a bind trying to please critics from both the left and the right — to the detriment of migrants.

She writes:

[Biden] has pursued policies designed to uplift immigrants who have put down roots in the US, many of whom have been able to attract public sympathy. But the migrants most Americans will never see are now the subject of his harshest enforcement initiatives. This approach has left Biden with a border policy not so different from the one he once decried.

Even when it comes to MPP, it’s unclear to what extent Biden will succeed in reversing Trump-era policies. Despite the administration’s latest effort, it may be forced to reinstate MPP at least temporarily, as it’s unclear how the courts will respond to DHS’s Friday memo.

The administration has been negotiating with the Mexican government to restore the policy per the district court’s August order, according to BuzzFeed, and it has issued contracts to build new encampments to hold migrants at the border.

In October, dozens of legal groups working with asylum seekers signed a letter refusing to work with the administration to enact the policy, saying that to do so would be to be “complicit in a program that facilitates the rape, torture, death, and family separations of people seeking protection by committing to provide legal services.”

In their letter to the administration, the 73 “legal services providers, law school clinics, and law firms” asked the government to “take immediate steps” to end Title 42 and resume shutting down the MPP program while processing the cases still covered under that directive.

“We stand ready to offer legal services to asylum seekers, were your administration to follow US and international law,” the letter concludes. “But there is no protection in the Migrant Protection Protocols.”

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