Biden admin makes another attempt to end 'Remain in Mexico' policy

A federal judge has ordered the administration to reinstate the protocols.

October 29, 2021, 2:42 PM

The Biden administration on Friday said it would make another attempt to end the "Remain in Mexico" protocols, a Trump administration initiative that forced tens of thousands of asylum seekers back into Mexican border towns to await their court dates in the U.S.

The administration has been under pressure from immigrant advocacy groups to end the policy but has met with legal roadblocks.

In a briefing before the announcement, Department of Homeland Security officials told reporters they had reassessed the policy, also known as the Migrant Protection Protocols, and Secretary Alejandro Mayorkas once again determined it was appropriate to end it despite acknowledging its impact in reducing unauthorized migration. One official pointed out that multiple factors can drive migration, but based on the department's own assessment, the protocols had been effective in deterring border crossing attempts.

Mexican National Guards patrol outside the make-shift camp for asylum seekers, Feb. 14, 2021, in Matamoros, Mexico.
Go Nakamura/Getty Images

"In looking at the data from 2019, there is a fairly clear reduction in encounters at the land border starting around the time that the MPP was implemented across the entire border," one DHS official said. "That said, you know, correlation is not necessarily causation."

However, the officials said the humanitarian consequences outweigh the potential benefits of reduced illegal entries. Humanitarian organizations have documented high rates of murder, kidnapping and extortion on top of squalid conditions facing those subjected to "Remain in Mexico."

A new policy memo to DHS officials dives deeper into the decision-making process by considering potential costs to states as well as potential improvements that could be made to MPP. However, the officials maintained that certain issues with returning migrants back across an international boundary will persist. Immigrant advocacy organizations have been principally concerned with the lack of access to legal services for migrants who are sent back.

Tents setup at a migrant shelter in Tijuana, Mexico, Sep. 11, 2021.
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"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're in the control of another sovereign nation," one DHS official said.

The acknowledgement of MPP's deterrence capabilities is a significant concession for the Biden administration. For months, Republicans have condemned the administration for repealing "Remain in Mexico," citing the decision as a driving force behind the record number of arrests at the border.

Biden suspended "Remain in Mexico" on his first day in office and Secretary Mayorkas attempted to officially end it in June. A federal judge ordered the Biden administration to reinstate the protocols last August in response to a legal challenge by the state of Texas and Missouri. The Justice Department continues to fight the order and hopes an appellate court will reverse it or remand the decision back to the district court.

An informal migrant camp in Tijuana, Mexico, Sep. 11, 2021.
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Embedded in the district court's order to reinstate was a suggestion that the administration needs to be capable of either detaining every migrant who attempts an illegal entry or subject them to "Remain in Mexico." MPP was implemented by the Trump administration in 2019 and, as DHS officials point out, Congress has never provided enough funds to detain every unauthorized migrant.

Democratic Sen. Bob Menendez, D-N.J., a critic of "Remain in Mexico" from the start, praised the Biden administration for making another attempt at repealing the protocols.

"It is my 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, and allow our country to continue working to restore our status as a beacon of hope for those seeking refuge, a better life for their loved ones, and a shot at contributing to our nation,” Menendez said.

Much of the administration's ability continue the practice relies on cooperation from the Mexican government, which was initially opposed to the idea, but has since considered conditions under which it could be reinstated. Talks with Mexican officials are ongoing, DHS officials said.

Depending on whether the Mexican government will agree, the Biden administration is on track to reinstate "Remain in Mexico" by mid-November. Oral arguments are scheduled in the Fifth Circuit Court of Appeals on Nov. 2.

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