A mixed message on “Remain in Mexico”

President Joe Biden campaigned on the promise of a more compassionate immigration system. He criticized former President Donald Trump’s immigration policy, tweeting in March 2020 that Trump’s “Remain in Mexico” policy—resulting in thousands of migrants living crowded together in tent camps or shelters in northern Mexico—was “dangerous” and “inhumane.”

“My administration will end it,” Biden pledged.

So far, though, he’s been unable to do so. After the Biden administration attempted to terminate the Remain in Mexico policy, formally known as the Migrant Protection Protocols (MPP), a federal court ordered the program reinstated. The administration resumed operating MPP on Monday at a time when illegal border crossings have surged.

A Dec. 2 press release from the Department of Homeland Security announced the resumption of MPP, noting the Mexican government had agreed to accept migrants again. Homeland Security Secretary Alejandro Mayorkas remained concerned that “MPP has endemic flaws,” but the agency claimed MPP would be different this time: The administration committed to conclude legal proceedings within six months of migrants’ return to Mexico, better communicate information to them, provide more opportunities for migrants to get legal counsel, and give COVID-19 vaccines to everyone enrolled.

While campaigning, Biden also promised to stop using Title 42, a section of U.S. code invoked to expel migrants immediately for public health reasons—in this case, because of the risk of coronavirus spread. The administration, citing a surge in virus variants, later announced it would continue using Title 42 during the pandemic.

President Donald Trump started MPP in 2019 to stop the flood of migrants crossing the southern border. The policy sent Spanish-speaking and Brazilian migrants to Mexico to await their asylum hearings. The program left migrants in dangerous cities where they knew no one, and stories of kidnappings and ransom payments became common. Many used all their money on the journey, and without permanent work permits they relied on the charity of Mexican churches and nonprofits, as WORLD has previously reported.

Only about 9 percent of MPP enrollees had legal representation, as opposed to 56 percent of people in immigration court in fiscal year 2021, according to the Migration Policy Institute. Many lawyers were unwilling to cross the border or shoulder the complications of representing someone in another country. Without permanent addresses, migrants regularly missed mailed court summonses or changes in their hearing date or location. Eighty-eight percent of MPP enrollees who were ordered deported were not present when their cases were decided.

About 68,000 migrants enrolled in MPP before Biden took office in January and halted the program, according to Migration Policy Institute, and 723 gained asylum. The cases of 27,000 migrants were pending when Biden took office.

In February, the Biden administration began processing those still waiting in Mexico into the United States. Texas and Missouri sued to keep MPP in place, arguing the program had been an effective tool to relieve the overwhelmed immigration system and prevent migrants without legitimate asylum claims from disappearing into the United States. Court documents in the case noted that the number of Border Patrol enforcement encounters on the southwest border has “skyrocketed” since MPP enrollment ended this year, jumping from 75,000 in January to about 173,000 in April.

Both states argued that more migrants would end up in their states, creating education, medical care, and law enforcement costs. After Mayorkas announced an official end to MPP on June 1, the two states asked for a court order to resume it.

In August, a U.S. District Court judge in Texas ordered the program be reinstated, ruling that the administration had improperly ended the program without giving adequate reasons for doing so or considering the costs to the states. Mayorkas issued an October memo attempting to provide more robust reasoning to terminate MPP, but the memo will not take effect until the court case concludes.

Danilo Zak, the policy and advocacy manager at the National Immigration Forum, said that could take months or even years. In the meantime, he said, it is unclear who the new MPP program will apply to, since most who qualify are being expelled under Title 42. Vulnerable migrants who qualify for an exception to Title 42 will probably also be exceptions to MPP. Zak said some of the administration’s changes will be helpful, such as better transportation (provided by the International Organization for Migration) for migrants to and from court hearings. But when it comes to the Mexican government’s agreement to shelter the migrants, so far “the shelter providers aren’t hearing anything about how they’re going to be resourced by the Mexican government,” he said. “This first basic, initial promised change seems to be not one the administration or the Mexican government is capable of living up to.”

Another difference in this iteration of the program: It includes all migrants from the Western Hemisphere, not just Spanish speakers and Brazilians. “From what the administration itself has said, they don’t like this program ... but why are we then expanding it?” Zak asked.