Will the US reinstate the ‘Remain in Mexico’ policy?

Washington, DC – The administration of US President Joe Biden announced on October 15 that it was making plans to bring back a Trump-era asylum policy along the US-Mexico border starting in mid-November in compliance with a court order.

A Texas court in August ordered the US government to restart the programme, called the Migration Protection Protocols (MPP), saying it had been ended improperly by the Biden administration.

The Department of Homeland Security (DHS) said “while the court injunction remains in effect, the Department has been working in good faith to re-start MPP.”  But it is also working to eventually end the policy through a memorandum “in the coming weeks”, it said.

The announcement was a confusing development in the middle of an already-volatile situation unfolding along the nation’s southern border. Amid a 20-year high in migrant arrivals, the Biden administration has been under pressure from hardline Republican leaders who have held him responsible for the rise in numbers. It is also facing heavy criticism from immigration advocates, who have said the administration is not delivering on campaign promises to put in place more humane border policies.

What is the MPP?

Biden’s predecessor, Donald Trump, who made restricting immigration to the US a core goal of his administration, created the MPP. The policy came into effect in January 2019.

Commonly referred to as the “Remain in Mexico” programme, it forced people seeking asylum at the border to wait for court dates, which were weeks or months away, in Mexico.

At least 70,000 people were subject to the policy, including children. The policy effectively brought the asylum system to a halt. It was heavily criticised by rights groups who argued that it was in contravention of US and international law, and that it put migrants in harm’s way in dangerous border towns.

What did the Biden administration do?

On his first day in office, January 20, 2021, Biden stopped accepting new people into the programme, fulfilling a campaign promise. His administration then began to gradually allow people who were still waiting in Mexico to come to the US to continue their claims. More than 25,000 were paroled into the US starting in February.

The Biden administration officially terminated the policy in June 2021 through a memo.

What was the response?

On April 13, 2021, Texas and Missouri, two Republican-led states, sued the Biden administration arguing that ending the MPP was “arbitrary and capricious”.

In August, Matthew Kacsmaryk, a Trump-appointed district court judge in Texas ruled in the states’ favour, ordering the Biden administration to reinstate the policy. The US Supreme Court ruled against the Biden administration, declining to issue its requested stay of the decision saying, “The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”

The states’ lawsuit alleged that ending the MPP is responsible for the increase in the number of arrivals at the border, and that the programme served as an important deterrent against “weak” asylum claims by “economic migrants”. The suit also argued that the entry of more migrants in the states of Texas and Missouri made them less safe and forced them to spend more taxpayer money on healthcare, education, and housing for the migrants.

What are rights organisations saying?

Immigration advocates have been critical of MPP since its inception. They said the policy made it difficult for asylum seekers to have their cases heard, much less granted. It also limited their access to counsel.

Migrants often waited in dangerous Mexican border cities and towns, many controlled by drug cartels. Many others abandoned their claims altogether. As of February 2021, at least 1,544 migrants under MPP were killed, assaulted, robbed, kidnapped or raped according to Human Rights First, a US-based rights organisation.

Eleanor Acer, Human Rights First’s director of refugee protection said the Biden administration has not demonstrated that it is sufficiently dedicated to ending MPP, citing that it has yet to issue another termination memo.

“If the Biden administration was serious about fully ending MPP, it would be taking a different position in court, it would be taking the position that this programme is illegal, it would have issued a re-termination memo immediately or very shortly after the Supreme Court decision,” Acer told Al Jazeera.

The Biden administration is also using another controversial health policy favoured by Trump: Title 42. Citing the need to protect the country from the further spread of COVID-19, the policy allows for the quick expulsion of asylum seekers at the border, without giving them the chance to file a claim.

What is the Biden administration saying now?

The Biden administration has said it will issue another memorandum to end the MPP, but has not set a date. In the meantime, the administration has said it is complying “in good faith” with the court order requiring the programme’s reimplementation.

“DHS also will be issuing a memorandum terminating MPP,” DHS said in an email to Al Jazeera. “In issuing this new memo, DHS intends to address concerns about the prior memo that sought to terminate MPP.”

DHS added that it is currently issuing contracts to build temporary tents near the border where hearings will be conducted.

What is Mexico’s position?

The implementation of the MPP depends on the Mexican government’s approval and cooperation.

So far, Mexico has said it is negotiating with the US over the issue and has put forward conditions for resuming the programme. According to court filings, the Mexican government wants cases to be closed within six months and for asylum seekers to have adequate access to information regarding their court dates.

In a statement, Mexico’s foreign ministry said it also wants applicants to have better access to legal representation and for “particularly vulnerable populations” to be exempted from the programme.