Biden Administration Keeps Trump’s “Remain In Mexico” Policy Alive

The Biden administration has continued to frustrate immigration advocates with its border policies, with the latest reports indicating that the administration is looking to expand the controversial Migrant Protection Program (MPP). The MPP, or “Remain in Mexico” policy, is a program developed by the Trump administration that has been used to keep tens of thousands of migrants arriving at the southern border in Mexico while their cases are adjudicated in the United States. On December 2, 2021, Mexico and the United States announced a new deal to restart the controversial program, despite Biden campaigning on a promise to end the policy that many advocates have claimed violates international laws. 

During the Trump administration, the program became a lightning rod for criticism as the policy was used to send more than 60,000 asylum-seeking migrants back to Mexico, as opposed to allowing them into the United States to seek asylum. Many of those sent back to Mexico were forced to live in tents and received little protection from the government. Human Rights First documented more than 1,500 “violent attacks” against migrants who were returned to Mexico under the program. 

The Biden administration has claimed it has no choice but to restart the program following a series of lawsuits by opponents to keep it in place. Under the Biden presidency, the Department of Homeland Security (DHS) had sought to repeal the program by issuing a memorandum on June 1, 2021, however that process was overturned by a federal court in Texas, leading to a second DHS memo in October. On December 14, 2021, the Fifth Circuit Court of Appeals denied the legal basis of that second memo. The ruling by three Republican-appointed judges is the result of a legal battle between republican states that have sued the Biden administration to maintain Trump-era border policies. 

In response to the news of the program restarting, Texas Congressman Joaquin Castro tweeted, “I strongly disagree with the reinstatement of the ‘Remain in Mexico’ program, which contributed to a humanitarian crisis at the border. Those previously subjected to the program, including women and young children, were living in horrendous conditions for months on end.”

By restarting the program, with its core intact, the administration has drawn the ire of advocates, Democratic Congressmen, and even asylum officers charged with screening migrants at the border. “While the administration has taken measures intended to mitigate some of the most egregious elements of MPP’s prior iteration, a program that requires asylum seekers to remain in one of the most dangerous parts of the world while their cases are pending in US immigration courts cannot guarantee their protection from persecution and torture, as required by US law,” the union for asylum officers wrote in an open letter on December 2, 2021.

Many advocates believe that the program violates the principle of non-refoulement. According to the United Nations Office of the High Commissar for Human Rights,  “Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.”

Advocates have also slammed the administration for expanding the program, which was previously reserved for Spanish speakers, to anyone seeking to enter from the Western Hemisphere. Advocates argue that this expansion is not the result of a court order but a choice by the Biden administration to expand the program. 

“The Biden administration was not ordered by the court to expand Remain in Mexico to new populations,” Ursela Ojeda, senior policy adviser for migrant rights and justice at the Women’s Refugee Commission, was quoted as saying in an article by Vox. “They are going well above and beyond good faith compliance that’s required of them [by the court] to make this policy more cruel and more deadly.”

The disappointing news involving the Biden administration and its posture towards Trump-era policies also included recent news that Justice Department officials had pulled out of settlement talks with the families who had been forcibly separated by the Trump administration at the border. “There’s no explanation for not settling these cases other than the Biden administration is unwilling to use literally any political capital to help the young children deliberately abused by our government,” said Lee Gelernt, deputy director for the ACLU’s Immigrants’ Rights Project, in an article by NBC News.

The announcement of the expansion of MPP, coupled with the Biden administration's continued use of Title 42 as its primary border management tool, has left many immigration advocates wondering what if any, humanitarian changes will be made by a President who ran on a platform of inclusion and compassion.