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Biden Administration Seeks to Overturn Trump-Era “Remain in Mexico” Policy

The policy forces asylum seekers to stay out of the U.S. while awaiting court arrangements.

A family arrives at an improvised camp of asylum seekers and refugees at El Chaparral border crossing in Tijuana, Baja California state, Mexico, on December 6, 2021.

The Biden administration has requested that the Supreme Court review – and potentially reverse – their decision to uphold a Trump-era anti-immigration policy colloquially known as “Remain in Mexico.”

The policy, formally called the Migrant Protection Protocols (MPP), forces asylum seekers to stay on the Mexican side of the southern U.S. border while they await court decisions on their immigration status. Immigrant advocates have described the policy as cruel, saying that it forces people to live under dangerous and even life-threatening conditions while attempting to exercise their right to seek safe harbor in the U.S.

Earlier this month, Republican-appointed judges in the U.S. 5th Circuit Court of Appeals rejected an appeal from the Biden administration to end the policy.

The ruling upheld a lower court’s “outrageous holding that a law from 1996 *requires* MPP — which didn’t exist until 2019,” pointed out Aaron Reichlin-Melnick, policy counsel for the American Immigration Council. The judge who wrote the decision expressed “sheer contempt for the Biden administration [that] oozes off of the page at nearly every juncture,” Reichlin-Melnick went on.

Earlier this year, Human Rights First found that the policy has been responsible for at least 1,544 public reports of murder, rape, torture, kidnapping and other forms of violence against people who were forcefully returned to Mexico. This includes at least 341 reports of children who were kidnapped or nearly kidnapped when they returned.

In the administration’s court filing on Wednesday, Department of Homeland Security Secretary Alejandro Mayorkas panned the 5th Circuit’s decision, saying that the agency has “been forced to reinstate and continue implementing indefinitely a controversial policy that the Secretary has twice determined is not in the interests of the United States.”

Mayorkas said that the policy creates dangerous conditions for asylum seekers and that it does not advance its presumed purpose of detering illegal immigration – a goal that immigration advocates have pointed out is inhumane in itself.

The lower courts have mandated enforcement of MPP “despite determinations by the politically accountable Executive Branch that MPP is not the best tool for deterring unlawful migration; that MPP exposes migrants to unacceptable risks; and that MPP detracts from the Executive’s foreign-relations efforts to manage regional migration,” the filing went on.

On the campaign trail, President Joe Biden criticized Trump for the policy and vowed to end its enforcement. When the Biden administration reinstated the policy in December, they blamed the decision on the court’s orders.

But the administration also expanded the policy in its reinstatement – a decision made by the administration and not ordered by the courts. As a result of this expansion, people from any country in the Western Hemisphere can be sent away while awaiting court arrangements, instead of just those from Spanish-speaking countries.

Immigration advocates panned the Biden administration for its expansion of the policy. Marielena Hincapié, executive director of the National Immigration Law Center, called it a “shameful regression” which “flies in the face of its own determination that no number of changes could render this deadly policy more humane or provide the access to the asylum system that the law requires.”

If the Supreme Court chooses to hear the case, the decision could have major consequences, Reichlin-Melnik said. According to the legal counsel, a ruling upholding the 5th Circuit’s decision could end up cementing the policy forever, although it’s unclear how the justices will rule.

The overturning of the policy would be a win for immigration advocates, who have repeatedly called on the Biden administration to keep its promise to break from Trump’s oppressive immigration policies.

The Biden administration has also continued to enforce a similarly cruel Trump-era anti-immigration rule known as Title 42, which allows the government to turn away asylum seekers on dubious public health grounds. Biden’s administration has used Title 42 to deport thousands of Haitian asylum seekers back to a country that is reeling from environmental devastation and the assassination of President Jovenel Moïse.

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