The Department of Homeland Security will reinstate the Trump-era "Remain in Mexico" policy by mid-November, complying with a Supreme Court decision that ordered the agency to uphold the policy as the Biden Administration seek to find alternative methods to abolish this effective program at a time they are encountering a massive migrant surge.
"DHS is taking necessary steps to comply with the court order, which requires us to reimplement MPP in good faith," a Department of Homeland Security spokesperson said on Friday. "As a result of this progress, DHS anticipates being in a position to re-implement MPP by mid-November dependent on decisions made by Mexico."
The policy, officially known as Migrant Protection Protocols (MPP) mandates that migrants seeking asylum return to Mexico as they await their hearings in the United States. MPP was established by the Trump administration in 2019 amid an increase of families from Central American crossing the southwest border. An estimated 70,000 migrants were transported back to Mexico under MPP since its implementation, according to the American Immigration Council.
The Trump administration stopped depending on MPP during the the onset of the coronavirus pandemic, largely due to Title 42, a public health order that allowed the U.S. to turn back virtually everyone crossing the southwest border.
President Biden began unraveling many of Trump's immigration policy during his first day taking office, including ending MPP. Despite soaring migrant numbers, the Biden administration formally ended the policy in June before a federal court ruling ordered a reversal.
In March, Biden was asked if he made a mistake in moving to quickly to end MPP and other Trump-era controls, to which the president said he made "no apologies" in doing so.
"Rolling back the policies of ‘Remain in Mexico,’ sitting on the edge of the Rio Grande in a muddy circumstance with not enough to eat and — I make no apologies for that," Biden told reporters in March during his first and so far only press conference. "I make no apologies for ending programs that did not exist before Trump became President, that have an incredibly negative impact on the law, international law, as well as on human dignity."
In April, Missouri and Texas Attorney Generals sued the Biden administration over the abrupt suspension of the policy. In their brief to the court, the states’ attorneys general cited how revoking the MPP "amplified the ongoing border crisis into an outright disaster, emboldening criminal cartels and human traffickers who prey on vulnerable migrants."
A U.S. District Court judge in the Northern District of Texas ordered the Biden administration in August to "enforce and implement" the MPP. U.S. District Judge Matthew Kacsmaryk ruled that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.
The Supreme Court declined the Biden administration's request to block the federal judge order, upholding the decision of the federal judge in late August, agreeing that the administration had not justify changing the policy. The higher court faulted the Biden administration for ending the program improperly, and gave them a deadline of October 14 to comply in reinstating the Trump-era policy.
The administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious," the court said in the short unsigned order. The three liberal Justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan is reported to have granted the administration’s request.
MPP cannot resume without Mexico’s consent, the Supreme Court acknowledged in its ruling, and Biden administration officials said they are now taking steps to address the concerns with Mexico President Andrés Manuel López Obrador.
"Mexico is a sovereign nation that must make an independent decision to accept the return of individuals without status in Mexico as part of any reimplementation of MPP. Discussions with the Government of Mexico concerning when and how MPP will be reimplemented are ongoing," DHS said in a statement Thursday.
DHS said the Biden administration is currently preparing a new memo to formally end MPP, but said they would not be able to move forward until the court injunction is lifted. In a call to reporters Thursday, DHS officials said the Biden administration is seeking to curb some of the effects of the program as implemented under the Trump administration, stating the DHS has a "general commitment" in deciding new asylum cases within six month. They also plans to construct new "tent courts” near Laredo and Brownsville, Texas.
There were about 1.5 million border encounters in this year alone caused mainly by Biden unraveling many of Trump-era immigration policies, making it on track to be the highest number ever recorder in at least two decades.