FederalImmigration & BorderIssuesBiden Administration Hoping to End Remain in Mexico Policy After Court-Ordered Reimplementation

In Texas border patrol sectors, more than twice the number of illegal aliens were apprehended in November of last year than in the year prior, according to the most recent update by U.S. Customs and Border Protection (CBP).

The U.S. Department of Homeland Security (DHS) has continued to deport illegal aliens under Title 42 of the U.S. Code, which allows the federal government to prevent the “introduction” of foreign individuals when the surgeon general has determined there is a risk of spreading a communicable disease.

In its most recent operational update, CBP indicated that in November Title 42 was the basis for just over half of the expulsions of illegal aliens in the U.S., including about two-thirds of single adults.

The law was originally invoked by Trump to respond to the COVID-19 pandemic, and DHS Secretary Alejandro Mayorkas has fought in the courts to keep the policy, calling it a “public health imperative.”

Another measure taken by President Trump that has outlasted his presidency is the Migrant Protection Protocols (MPP), also called the remain in Mexico policy.

When the Trump administration unveiled the policy in January 2019, DHS defined the program as “a U.S. Government action whereby certain foreign individuals entering or seeking admission to the U.S. from Mexico – illegally or without proper documentation – may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.”

Last year, a federal judge in Amarillo ordered the federal government to resume the Migrant Protection Protocols (MPP) partially on the grounds that the Biden administration had violated the Administrative Procedures Act by withdrawing the program. The decision followed a lawsuit by Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt.

After declining to intervene in the lower court’s decision, the U.S. Supreme Court left DHS with no choice but to reimplement the remain in Mexico policy, a process that was delayed for months.

As it begrudgingly reintroduces the MPP, the Biden administration indicated Monday in a conference call that it would try to provide lawyers and other assistance, such as internet access at shelters in Mexico, to those waiting to claim asylum near the U.S.-Mexico border, according to a report from ABC News.

In October, Mayorkas authored a new memo to end the remain in Mexico policy hoping it would satisfy the courts. The Fifth Circuit Court of Appeals rejected his effort in early December, but last week DHS again asked the U.S. Supreme Court to hear its case.

“Just when you thought the #BidenBorderCrisis couldn’t get worse,” Sen. John Cornyn (R-TX) tweeted last week in response to the development.

The White House has sought policies that would ostensibly be more compassionate toward those in the country illegally. However, it has also had to grapple with the perception that this leniency is an invitation.  

In September of last year, there was a surge of tens of thousands of mostly Haitian illegal aliens in Del Rio. One of the factors that could have contributed to the influx was a misunderstanding that Haitian nationals would be allowed to stay in the U.S. via temporary protected status and canceled deportation flights. It was reported that many had been in the vicinity of the southern border for years before entering, hoping to make a claim of asylum.