Biden administration to restart Trump-era ‘Remain in Mexico’ policy
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Biden administration to restart Trump-era ‘Remain in Mexico’ policy

The US Department of Homeland Security (DHS) announced Thursday that it would begin re-implementing the Migrant Protection Protocols (MPP) program, a Trump-era policy also known as the “Remain in Mexico” policy for asylum seekers. The announcement follows an August US Supreme Court order requiring the MPP to restart over the Biden Administration’s objections.

The Remain in Mexico policy was originally announced by the Trump administration in 2018 and officially implemented in 2019. It required that certain noncitizens entering the US from Mexico either illegally or without proper documentation be returned to Mexico and wait there for the duration of their immigration proceedings, with Mexico providing humanitarian protections for the duration of their stay. The Trump DHS argued that MPP was necessary to restore an orderly immigration process and reduce frivolous asylum claims. However, critics alleged that conditions in Mexico were dangerous and unsanitary and impermissibly restricted seekers’ access to legal counsel and legal protections.

The MPP was discontinued in 2021 by the Biden Administration, but Texas and Missouri sued in federal court, arguing that the sudden change in policy was arbitrary and capricious and that it would put enormous strain on border states suddenly experiencing new asylum seekers. The district court agreed and issued an injunction against the Biden MPP discontinuation, which the Fifth Circuit Court of Appeals declined to stay. The Supreme Court ultimately denied the Government’s request for a stay of the district court’s injunction, requiring the Biden Administration to restart MPP.

Stating that MPP “has endemic flaws, imposed unjustified human costs, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration,” DHS Secretary Alejandro Mayorkas stated Thursday that DHS was nevertheless prepared to reimplement MPP to comply with the court order, provided that the Government of Mexico agreed. MPP is expected to restart on December 6.

Current international law disfavors certain aspects of MPP. The 1951 UN Convention and Protocol Relating to the Status of Refugees requires states to allow refugees the right to seek asylum, have free access to courts and be afforded movement within the country. It also prohibits expulsion (refoulement) to a country where their life or freedom might be threatened. It is unclear whether the Biden Administration’s enactment of MPP will closely align with these international principles.