Why Biden Is Restarting the Trump-Era ‘Remain in Mexico’ Program

In Brief

Why Biden Is Restarting the Trump-Era ‘Remain in Mexico’ Program

Tens of thousands of migrants have been sent back to Mexico under the Trump-era program. President Biden calls it “inhumane” but has so far been unable to end it.

President Donald Trump created the Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” program, to manage what he saw as an alarming rise in asylum seekers at the southern U.S. border. Critics say the program is inhumane and that it violates U.S. and international law, but courts have blocked President Joe Biden’s attempts to end it.

Why did Trump implement the Migrant Protection Protocols?

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Trump implemented the program in January 2019, arguing that the U.S. asylum system was at risk of being overwhelmed amid a sharp increase in undocumented migrants crossing the U.S.-Mexico border. The program, overseen by the Department of Homeland Security (DHS), requires that asylum seekers from most Latin American countries be sent back to wait in Mexico while their cases are processed in U.S. immigration courts. 

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This was a controversial reversal of a long-standing practice: U.S. law generally grants asylum seekers the right to remain in the country while their requests for protection are pending. President Barack Obama, whose administration also struggled with unprecedented numbers of Central American migrants, likewise faced criticism for deporting asylum seekers without due process.

In March 2020, in response to the COVID-19 pandemic, the Trump administration closed U.S. borders to “nonessential traffic” and suspended all MPP hearings indefinitely, but it continued deportations. Between January 2019 and January 2021, more than seventy-one thousand asylum seekers were sent back to Mexico under MPP. Many more were stopped at the border under Title 42, an emergency public health regulation that remains in effect, and Title 8, which allows border patrol agents to send back undocumented migrants.

What is Biden’s approach?

Ending MPP was one of Biden’s campaign pledges, and he temporarily suspended the program in January 2021, pending a review. Shortly after, the administration halted many deportations and stopped accepting new MPP applicants. In June, Secretary of Homeland Security Alejandro Mayorkas announced the program’s official termination [PDF], citing its failure to ensure the safety of migrants in Mexico and address the root causes of migration in Central America—a priority of Biden’s immigration agenda

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However, Missouri and Texas challenged the decision [PDF] in a Texas district court, which ruled that the Biden administration failed to properly justify the termination under federal regulations. The Supreme Court upheld the lower court’s ruling, which stated that DHS must work “in good faith” to reinstate MPP until the department both complies with those regulations and expands the government’s capacity to lawfully detain migrants in the United States. MPP formally restarted in December 2021 following negotiations with the Mexican government over proposed changes.

Under the revised program, the Biden administration pledged to increase migrants’ access to medical care and legal aid, as well as expand the list of vulnerable populations exempt from MPP. It also committed to resolving cases in six months or less, which many analysts say is unlikely given the large and growing backlog in U.S. immigration courts.

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Why does it matter?

The program is at the center of the debate over how to deal with increasing numbers of asylum seekers, a challenge that has now troubled three consecutive U.S. presidents. Trump and other supporters of MPP have claimed that it deters migration, while the Texas lawsuit argued that disbanding the program would increase human trafficking and overburden local and state services.

However, many policymakers and migrant rights activists counter that the program worsens trafficking and forces migrants into dangerous and overcrowded shelters in Mexico. Rights groups also criticize the lack of access to legal counsel for migrants and say that knowingly sending asylum seekers back to unsafe countries violates U.S. and international law. Additionally, the program had significant repercussions for Mexico’s government, which gave in to pressure from Washington to accelerate deportations of Central American migrants back across the country’s southern border with Guatemala. 

Meanwhile, increased migration worldwide has sparked debates about similar policies elsewhere. Australia and Denmark, for instance, both process asylum seekers in third countries, while the United Kingdom is currently considering such an approach.

What comes next?

One lawsuit challenging MPP during the Trump administration was heard by the Supreme Court but dismissed following the program’s initial termination under Biden; others are pending.

And the legal wrangling is far from over. After lower courts blocked a second attempt to terminate the program in October 2021, the Biden administration petitioned the Supreme Court to reconsider. If the court agrees to hear the case, a decision could come before summer; in the meantime, Biden has to continue enforcing a program he campaigned against.

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