AUSTIN, Texas — Whether the Biden administration will be able to follow through on the Supreme Court’s order to restart a Trump administration program that made asylum-seekers temporarily live in Mexico will come down to whether Mexican President Andres Manuel Lopez Obrador allows it.
But the Mexican leader has yet to weigh in on the program, and other signs indicate that he may be dragging his feet. Reluctance on his part could prevent the reluctant Biden administration from having to follow through on the court order.
The Department of Homeland Security was ordered in August by the Supreme Court to reinstate the Migrant Protection Protocols, also known as the “Remain in Mexico” policy, a program that required migrants who illegally crossed the border or who presented themselves at ports of entry to stay in Mexico before they make their cases before a U.S. immigration judge, often for months.
President Joe Biden had suspended the Remain in Mexico policy on taking office and moved to end it in June, but he then was successfully sued by Texas and Missouri to reinstate it and lost an appeal to the Supreme Court. The administration has been in the process of restarting the program to fulfill the court order while it works to end it in a way that can withstand another legal challenge.
Although the court ordered the government to reinstate the Remain in Mexico program, the United States cannot do so without cooperation from Mexico, explained Theresa Cardinal Brown, the managing director of immigration and cross-border policy at the Bipartisan Policy Center think tank in Washington.
“They have to be willing, and that’s what the Biden administration told the court in its latest declaration — is that, ‘We’re working on it. We’re setting everything up to do it.’ But Mexico has to say ‘yes’ and Mexico hasn’t said ‘yes,’” Brown said. “They’re having lots of discussions with DHS before they say ‘yes,’ and there are going to be lots of conditions on it.”
The DHS is already working on contracts to rebuild tent facilities where immigration proceedings can take place in the U.S. Court documents related to the MPP suit indicate that the U.S. has forked up $14 million and plans to spend an additional $24 million per month to set up tent courts where judges will hear asylum cases.
“They’re saying that they’re going to start [to] implement it in November, but the fine print says, ‘As long as Mexico agrees,’” said Mark Morgan, a former senior official performing the duties of Customs and Border Protection commissioner, during a Senate roundtable on Oct. 20. “I’m skeptical, and I don’t think it’s actually going to happen to any full force like we did under the Trump administration.”
Mexico had already refused to take back families under Title 42, a coronavirus pandemic restriction that the Trump administration enacted in March 2020 that allowed border officials immediately to turn away any child or adult who came across the border. The Biden administration is still operating under Title 42, but in the spring, it stopped sending back most families to their home countries because Mexican state governments refused to take back migrants who were not from Mexico or Central America.
Mexico’s uninterest in taking back migrants under the pandemic policy makes it unlikely that it would be open to taking back families or adults under a different U.S. initiative, such as the Remain in Mexico policy. At the time that the policy was announced in late 2018, then-President Donald Trump had threatened to impose tariffs on all Mexican exports, forcing his cooperation. Biden has made no similar threat to force its cooperation now.
Since the summer, large groups have made their way to the U.S., traveling unabated through Mexico. In late September, more than 20,000 Haitians made it from South America to the U.S.-Mexico border. Other groups, including a large caravan that has pushed past Mexican forces over the weekend, are also on the way north, unchecked by the Mexican government.
Joshua S. Trevino is tracking the implementation of the program for the conservative Texas Public Policy Foundation think tank in Austin, which supports the Supreme Court’s decision to restart the Remain in Mexico policy.
“As with anything that depends upon the cooperation of a third party, that third party gets a vote as well. And in the case of the Mexican state … their priorities may not always coincide with ours,” said Trevino, the organization’s chief innovation officer. “Mexico will cooperate and be helpful to the extent to which is in the Mexican interest, and you can’t fault them for that.”
Behind the scenes, Mexico may be pushing back. The Lopez Obrador administration issued a statement recently that said it had concerns with how the program was put in place for how more than 60,000 asylum-seekers were left homeless in northern Mexico. Mexico also asked that the U.S. court system operate faster to avoid leaving people in the tent cities for months.
“While they are telling the court that they are moving forward in good faith, they’re actually right now have completed that document that’s getting ready to go to the field saying they’re going to be ending the Remain in Mexico program,” Morgan said. “How is that good faith? And they’re also drafting a memo that they’re going to completely end it.”
The Biden administration in late September revealed plans to end the Remain in Mexico policy despite simultaneously working to stand it back up.
“The Department of Homeland Security intends to issue in the coming weeks a new memorandum terminating the Migrant Protection Protocols,” the DHS said in a statement. “Although the Department issued a June 2021 memorandum that terminated MPP, a Texas district court vacated that prior termination determination and issued an injunction that requires the Department to work in good faith to re-start MPP. The Department has appealed that injunction.”
The White House declined to comment, and Mexico’s National Institute of Migration did not respond. The DHS would not speak to the Mexico issue but shared a statement reaffirming its intention of both restarting and terminating MPP.
“The Administration is currently under a court order requiring it to reimplement MPP in good faith, which it will abide by even as it vigorously contests the ruling. Pursuant to that order, the Department is working to re-implement MPP in a way that protects vulnerable individuals, including but not limited to, those with known physical and mental conditions and others that might be at risk — something the Government of Mexico also identified as a key concern,” a DHS spokeswoman wrote in an email. “As stated previously, the Department will soon be issuing a new memo explaining and reaffirming its decision to terminate MPP.”