Trump-Era Mexico Policy to Return After Court Snubbed Biden (1)

The Biden administration is set to restart the Trump-era “Remain in Mexico” border program next week despite denouncing the policy as inherently flawed with “unjustifiable human costs.”

U.S. officials announced the impending reinstatement Thursday in response to an August court decision that said the Department of Homeland Security violated the law when it scrapped the program earlier this year.

Remain in Mexico was a marquee piece of President Donald Trump’s efforts to tighten the southern border. The program, officially known as the Migrant Protection Protocols, requires migrants to wait in Mexico, sometimes for months, while U.S. officials review their asylum claims in makeshift tent courts. Immigrants’ rights advocates tracked more than 1,500 reported kidnappings or attacks on migrants in the program.

Sen. Dick Durbin (D-Ill.) told Bloomberg Government Thursday he was hopeful Biden officials could make the program more humane “if they have to have it.”

The Biden administration is making a variety of updates to the policy, including broader access to counsel, exceptions for vulnerable migrants, and access to Covid-19 vaccines. The Justice Department has designated 22 immigration judges to process cases, with a goal of completing review of migrants’ claims within 180 days, an administration official said during a press call.

Mexico Has Expressed Concerns to U.S. on Its Asylum Process

The changes were designed to win the support of Mexico, which had to sign off before the program could restart. Mexican government officials announced their cooperation shortly after the U.S. unveiled the updated program Thursday.

U.S. officials will return migrants to Mexico through ports of entry in San Diego; Calexico, Calif.; Nogales, Ariz.; El Paso; and Eagle Pass, Laredo, and Brownsville in Texas. Court hearings will begin at ports in San Diego, El Paso, Laredo, and Brownsville.

‘Stem the Tide’

Immigration advocacy groups and several Democrats slammed the Biden administration’s move. Marielena Hincapié, executive director of the National Immigration Law Center, in a statement accused the administration of “hiding behind a flawed court order to justify restarting Remain in Mexico.”

Sen. Bob Menendez (D-N.J.) criticized the administration for going “far beyond a good-faith implementation of the court’s order.” The revised program will apply to all migrants from the western hemisphere, whereas the Trump-era policy focused mainly on people from Spanish-speaking countries.

“We have a moral obligation to do everything possible to swiftly and permanently discard this policy, along with the many other remaining Trump-era policies that were willfully designed to deter immigrants with cruelty,” Menendez said in a statement.

At least one Democrat welcomed the news. Sen. Mark Kelly (D-Ariz.) said in a hallway interview he was concerned about the “crisis level” number of border crossings and said Remain in Mexico can “provide some relief and makes the process easier for our law enforcement at the border.”

The reinstatement comes as border crossing numbers hit historic highs and fuel Republican attacks on the administration.

Record U.S. Border Crossings Kindle GOP Rebuke of Biden Policies

“Going back to Remain in Mexico is a good option that I hope will help stem the tide,” Sen. Josh Hawley (R-Mo.) said in a hallway interview.

“What in the heck took them so long, and why did they stump it in the first place?” Sen. Joni Ernst (R-Iowa) said of the Biden administration’s restart.

Ongoing Effort to End Program

While reinstating Remain in Mexico, the Biden administration is simultaneously working to terminate it again. It’s appealing the August court decision and crafted a new, more detailed memorandum to justify ending the policy. That memo can only take effect if the government lawyers persuade federal judges to drop the existing injunction requiring the Remain in Mexico restart.

The Department of Homeland Security on Thursday reiterated that Secretary Alejandro Mayorkas has found the program to have “endemic flaws” and “unjustifiable human costs.” The department will comply with the court order “even as it continues to vigorously contest the ruling,” the announcement said.

Trump Border Policy Readied as Biden Holds Nose at Court Order

The administration is also hopeful nonprofit partners will step up to represent migrants in need of counsel, a government official said Thursday. But advocates have increasingly pushed back on such calls, saying they don’t want to be “complicit” in carrying out the program.

The Biden administration is already expelling a majority of migrants under Title 42, a public health authority invoked during the Covid-19 pandemic.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Robin Meszoly at rmeszoly@bgov.com