Biden overturns Trump’s ‘Stay in Mexico’ policy again amid legal battle

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The Biden administration is once again reversing former President Trump’s stay-in-Mexico policy in a bid to fight a court ruling forcing the new administration to implement the controversial policy often seen as a roadblock to demand of asylum.

The Department of Homeland Security (DHS) first decided in June to drop the policy, which Trump introduced in 2019, forcing potential asylum seekers from a number of countries to wait for a possible decision in their case in Mexico.

But it prompted a lawsuit and early victory from Texas and Missouri, which argued the Biden administration too hastily withdrew the policy, under which the United States had flown 70,000 asylum seekers to Mexico for wait for a decision in their case.

By penning a new 39-page memo to roll back what are officially called Migrant Protection Protocols (MPPs), the Biden administration is pulling a page from Trump’s playbook, using court rulings to refine the legal reasoning behind its decisions.

The memo does not take effect immediately but further details the administration’s rationale for ending the program, which Homeland Security Secretary Alejandro Mayorkas first revoked with a brief seven-page memo.

“After carefully considering the arguments, evidence and perspectives presented by those who support re-enacting the MPP, those who support ending the program and those who have argued for maintaining the MPP in a modified form, I have determined that the MPP should be terminated. . In reaching this conclusion, I recognize that the MPP has probably contributed to reducing migration flows. But it did so by imposing substantial and unjustifiable human costs on people who were exposed to harm while waiting in Mexico,” Mayorkas wrote in Friday’s memo, adding that the policy “fails to provide the fair process and the humanitarian protections that all people deserve”. .”

A DHS official who spoke to reporters about the memo said it was nodding to an earlier decision by a federal district judge when reviewing ‘the alleged benefits of MPP’ as well as its shortcomings.

“The MPP may well have resulted in a reduction in irregular migration and a reduction in border crossings between ports of entry, but nonetheless, the humanitarian costs of the program, including costs that simply cannot be rectified, justify the decision to end,” the official said.

“There are certain problems with the MPP that are endemic, inherent in the program that no amount of resources can address,” they said, noting that the program makes it extremely difficult for migrants to access legal assistance and for the United States to address safety and security issues. .

Mayorkas’ memo also seeks to push back against the idea that the MPP has been effective in managing migration to the border.

“Correlation does not equal causation, and even here the evidence is inconclusive,” Mayorkas wrote in reference to the decrease in border encounters observed under the MPP.

While Mayorkas’ initial termination took effect immediately, the latest memo is entangled in the existing legal battle over the MPP.

The 5th Circuit Court of Appeals ordered the Biden administration to implement the ‘good faith’ policy as the litigation progresses, which DHS said it would begin doing in November .

While the Biden administration is currently in talks with Mexico to revive the program, recent DHS court filings indicate the country has serious reservations about it, outlining several steps it needs before it wants to commit.

Many accuse the MPP of creating dangerous conditions along the border, where vulnerable asylum seekers live in poor conditions in migrant camps for months or years while awaiting legal action in the United States. .

Despite the tens of thousands of people sent back to Mexico under this policy, around 25,000 people are still waiting after the departure of many potential asylum seekers.

Mexico has told the United States that it does not want elderly, sick or LGBT asylum seekers sent to the country due to concerns for their safety. He also urged the United States to resolve cases more quickly, with DHS “generally” committing to adjudicating new asylum cases within six months.

“We have been working to be in a place where the MPP could be implemented around mid-November. Again, it depends on Mexico’s independent agreement and those conversations are ongoing,” a DHS official said Thursday.

The Biden administration hopes the new memo will lead to a reversal from either of the courts that forced him to reinstate Remain in Mexico.

“As long as the injunction is in place, we are required to comply with it. But as we said, we are vigorously fighting it, we are vigorously appealing, and so with this new memo, we will either seek to have the district court’s decision overturned by a 5th Circuit, or have the district court do it themselves,” the DHS said. official told reporters.

Senate Foreign Relations Committee Chairman Bob Menendez (DN.J.), who earlier this year penned a letter urging the Biden administration to draft a new memo rescinding the MPP, said it was his ” sincere hope that this new memorandum from the Department of Homeland Security will meet the legal criteria necessary to revoke this xenophobic policy once and for all.

“Forcing those who flee for their lives to be at greater risk of kidnapping, extortion, trafficking, rape and even murder is totally inconsistent with who we strive to be as a nation. . This program should be permanently abandoned along with the many other remaining policies of the Trump administration deliberately designed to punish and deter refugees from legally seeking safety in the United States,” Menendez said in a statement.

While the Biden administration has sought to undo the MPP, it has retained another Trump-era asylum policy, continuing to use Title 42 to quickly deport migrants without allowing them to apply for protected status.

Immigration advocates have long argued that the MPP is an illegal roadblock for asylum seekers, who have the right to pursue their rights in the United States.

“Restarting any version of the Trump administration’s notorious ‘Remain in Mexico’ policy will cause immense human suffering,” said Eleanor Acer, senior director of refugee protection at Human Rights First, when the Biden administration announced its plans to reapply the MPP earlier this month.

“Trump 2.0 policies at the border are a recipe for cruelty, disorder and continued violations of refugee law. The Biden administration must honor its promise to end this horrible program.

—Updated at 1:50 p.m.

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