Biden Administration Again Tries to End Trump’s ‘Remain in Mexico’ Policy

Biden Administration Again Tries to End Trump's 'Remain in Mexico' Policy national guard member guards opening in border wall A Texas Army National Guard member guards an opening in the border wall near a makeshift migrant encampment on Sept. 17, 2021, in Del Rio, Texas. (Jordan Vonderhaar/Getty Images)

By Charlie McCarthy | Thursday, 30 September 2021 10:02 AM

The Biden administration is taking another crack at ending former President Donald Trump's "Remain in Mexico" policy.

The policy resulted in migrants being returned to Mexico while their cases went through the U.S. immigration court system.

The Supreme Court in August upheld a lower court decision requiring the Department of Homeland Security to reimplement the policy, formally known as the Migrant Protection Protocols.

DHS said Wednesday it would craft a new memo rescinding the policy, though it would uphold that injunction "in good faith."

"A new memorandum terminating MPP will not take effect until the current injunction is lifted by court order," the DHS announcement said. "In issuing a new memorandum terminating MPP, the Department intends to address the concerns raised by the courts with respect to the prior memorandum."

Politico reported earlier this month that the Biden administration was considering implementing a "Remain in Mexico lite" policy by which a small number of asylum seekers would have to wait in Mexico while their cases were processed. The proposal would give migrants better living conditions and access to attorneys.

DHS said it was "engaged in ongoing and high-level diplomatic discussions with Mexico" and had instituted a task force to restore the infrastructure needed to implement MPP in the meantime.

DHS also said that MPP's reinstatement appears to contradict the Biden administration's confidence that it ultimately will prevail in court, The Hill said.

Although Mexico was hesitant to accept MPP, Trump threatened the possibility of sanctions on Mexico by saying he would tie together migration policy and trade policy.

The Hill said it was unclear what the Biden administration was suggesting to Mexico for acceptance of a renewal of the program.

DHS returned as many as 70,000 migrants to Mexico under the Trump administration, creating refugee camps in Mexican border cities.

Immigration activists have argued that "Remain in Mexico" was a violation of U.S. and international asylum laws, which give migrants the right to apply for asylum once in a country's territory.

The Biden administration's decision to reimplement MPP angered some advocates.

"If the administration really wants the policy outcome, it could certainly rewrite the memo," Ahilan Arulanantham, co-director of the Center for Immigration Law & Policy at the University of California, Los Angeles School of Law, previously told The Hill.

Arulanantham suggested the administration should follow the Trump administration’s actions in rewriting its Muslim ban.

"They wrote in one way, it got struck down. They write it again, it goes to the Supreme Court. They write it again, each time curing whatever defects the court is describing in order to make it harder to attack," Arulanantham said. "And surely you could do that here, and the court decisions give you the road map for how to do it. It’s not rocket science."

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