U.S. Again Tries to End 'Remain in Mexico' Policy, Says Benefits Do Not Outweigh Costs

The Biden administration announced on Friday that it will seek to end the Remain in Mexico policy for the second time, with an official stating that any benefits derived from the measure exceeded the potential harm it might have on some migrants, the Associated Press reported.

Designed to slow illegal migration, the policy makes asylum-seekers wait in Mexico while their cases are pending. Then-President Donald Trump started the policy, officially known as Migrant Protection Protocols, in January of 2019. Around 70,000 asylum-seekers have been subject to the program since it took effect.

President Joe Biden suspended the policy on his first day in office, and Homeland Security Secretary Alejandro Mayorkas officially ended it in June after an internal review showed it achieved "mixed effectiveness."

In a Friday statement, Mayorkas said Remain in Mexico likely contributed to a drop in illegal border crossings in 2019, though he added it likely came with "substantial and unjustifiable human costs on the migrants who were exposed to harm while in Mexico."

In August, a federal court judge ordered the Biden administration to reinstate the Migrant Protection Protocol program "in good faith until such a time as it has been lawfully rescinded in compliance with the Administrative Procedure Act and until such a time as the federal government has sufficient detention capacity."

For more reporting from the Associated Press, see below.

asylum seeker
On October 29, 2021, the Biden administration launched a second bid to end the Trump-era Remain in Mexico policy to make asylum-seekers wait in Mexico for hearings in U.S. immigration court. Above, a woman seeking asylum in the United States waits with others for news of policy changes, on February 19, 2021, in Tijuana, Mexico. AP Photo/Gregory Bull, File

The Biden administration said earlier this month that it expected to reinstate the policy around mid-November, subject to Mexican government approval. Mexico wants cases to generally conclude within six months, timely and accurate access to case information and better access to legal counsel for asylum-seekers.

Some of the administration's most prominent pro-immigration allies say Friday's opinion was overdue and that Mayorkas lacked a sense of urgency. U.S. officials deny slow-walking and point to the research that went into producing the 39-page memo.

Many U.S.-based legal aid groups who have represented asylum-seekers waiting in Mexico say they will no longer take such cases, raising questions about how the U.S. can satisfy Mexico's insistence on better access to counsel. Administration officials say they believe there are enough other lawyers who will represent asylum-seekers sent back to Mexico.

Illegal border crossings fell sharply after Mexico, facing Trump's threat of higher tariffs, acquiesced in 2019 to the policy's rapid expansion. Asylum-seekers were victims of major violence while waiting in Mexico and faced a slew of legal obstacles, such as access to attorneys and case information.

Mayorkas said Friday that his second review assumed the policy caused a significant drop in border crossings, calling it the strongest argument to keep it. Still, he said benefits do not outweigh costs in terms of relations with Mexico, resources and risks associated with exposure to violence while waiting in Mexican border cities.

"[There] are inherent problems with the program that no amount of resources can sufficiently fix." he wrote. "Others cannot be addressed without detracting from key Administration priorities and more enduring solutions."

A three-judge panel of the U.S. 5th Circuit Court of Appeals is scheduled to hear arguments Tuesday in a lawsuit filed by the states of Texas and Missouri. The administration is expected to ask that the case be returned to U.S. District Judge Matthew Kacsmaryk, a Trump appointee in Amarillo, Texas, who ordered in August that the policy be reinstated.

The administration is rebuilding tent courts in Texas border cities of Laredo and Brownsville to handle Remain in Mexico cases.

The policy's return and other recent enforcement-minded measures has tested the administration's historically strong relations with pro-immigration groups. To protest, several advocates abruptly ended a Saturday morning call this month with White House officials to discuss Remain in Mexico.

Advocates and pro-immigration advocates generally welcomed the administration's renewed effort.

Senator Bob Menendez, a New Jersey Democrat, said he hoped it addresses legal objections and ends a policy that he said is "willfully designed to punish and deter refugees from legally seeking safety in the United States."