Biden said he wanted to end the Trump-era 'Remain in Mexico' policy. So why is he restarting it?

Rebecca Morin

WASHINGTON – As the Biden administration prepares to restart a policy that forces migrants to remain in Mexico as they wait for an immigration hearing, the details of how the policy will be implemented are still unclear. 

The Department of Homeland Security said late Thursday that it was preparing to restart the Migrant Protection Protocols policy in mid-November because of a court order. The start date will depend on whether the Mexican government will accept migrants the United States will remove.

The Migrant Protection Protocols, also known as the “Remain in Mexico" policy, were created in 2018 under the Trump administration. President Joe Biden suspended the policy in January, and DHS Secretary Alejandro Mayorkas terminated the policy in June.

More:Biden administration preparing to restart Trump-era 'Remain in Mexico' policy in November

El Salvador and Honduras nationals seeking asylum in the United States sit outside the El Chaparral border crossing on February 19, 2021 in Tijuana, Mexico.

Here’s what we know about the program restarting.

What happens next? 

The Biden administration is preparing to implement the “Remain in Mexico” policy because of a court order.

The administration was forced to restart the program after trying to end it earlier this year. The U.S. Supreme Court in August denied a request by the administration to stay a lower court order requiring it to restart the policy – essentially forcing the administration to resume the policy. The Supreme Court ruling did not address the policy’s legality.

The DHS said in late September that it would issue a memorandum in the coming weeks to once again end the “Remain in Mexico” policy. But the memo would not be able to take effect until after the current injunction is lifted.

“DHS is taking necessary steps to comply with the court order, which requires us to reimplement MPP in good faith. We are working to do so, despite our appeal of the court’s order," the DHS said in a statement Friday.  

Any new memo ending the program probably will be challenged, said Jessica Bolter, associate policy analyst with the U.S. Immigration Policy Program at the Migration Policy Institute.

“Clearly there's going to be a very high standard that the administration will have to meet” for it to not be challenged, Bolter said. 

She added that one method the Biden administration could use to end the policy is through a regulation that goes through a notice and comment period. Bolter said that “could potentially stand up to legal scrutiny.”

“They are going to continue to face court challenges on this front,” she said.

What does it mean for people trying to seek asylum in the United States?

The Biden administration is still talking with the Mexican government to see whether Mexico will accept migrants the United States sends back. Because of the negotiations, it’s unclear what the parameters of the policy are and whom Mexico would accept back into the country.

Bolter said that under the Trump administration, Mexico accepted only migrants from Spanish-speaking countries and Brazil. 

People the United States can’t expel under Title 42 – typically migrant families with young children and people from non-Spanish-speaking countries – also could be subject to the new MPP program under Biden, Bolter said.Title 42 allows Customs and Border Protection authorities to expel undocumented migrants to prevent the spread of COVID-19 in holding facilities.

But all of that will largely depend on whom Mexico says it will accept, Bolter noted.

“The administration has a lot of leeway, in conjunction with Mexico, to decide the degree to which the program is reimplemented,” she said. “It's always been a discretionary program.”

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What are the ramifications of the policy?

One of the top concerns is whether migrants who are subject to the policy will have legal representation, Bolter said.

“There's a lot of barriers to accessing the court system once they're sent back to Mexico,” she said.

According to the American Immigration Council, of the 70,000 people who were subject to the "Remain in Mexico" policy from January 2019 to January this year, only about 7.5% were able to hire a lawyer. 

Lack of legal representation often makes it more difficult for migrants to be granted relief from the immigration court systems. Only 521 people out of 42,012 MPP cases were granted relief by December 2020since the start of the program, according to the American Immigration Council.

Bolter also noted that depending on the scope of how the Biden administration restarts the program, it could deter future migrant flows. Over the past year, a record number of migrants, many of them from Central America, have arrived at the United States’ southern border. 

More:Unlike Trump, Biden doesn't have an immigration czar. But does he need one?

But Bolter warned that the “Remain in Mexico” policy will not be a permanent fix to address the number of people coming to the border.

“MPP might be a Band-Aid, but it's by no means the solution to the challenges that we're seeing at the border,” she said.

The Biden administration also could face a backlash from advocates and voters.

“MPP was one of the main Trump policies that Biden campaigned against,” she said. “And even though there is a court order, I think that this could end up being seen as him going back on campaign promises.”

Immigration advocates and Democrats have criticized the Trump-era policy and have expressed disappointment with the Biden administration restarting the program.

Marielena Hincapié, executive director of the National Immigration Law Center, said in a statement that restarting the policy is another policy “in a mounting list of failings by this administration to live up to the campaign promises that got President Biden elected.”

“The Biden administration has announced several significant steps to implement Remain in Mexico in compliance with the District Court’s order, yet the Biden administration has failed to issue a new memo to end this unlawful Trump policy to prevent any version of it from harming even one more person,” she said in the statement.

Reach Rebecca Morin at Twitter @RebeccaMorin_