SAN DIEGO (AP) — The Biden administration on Friday launched a second bid to end a Trump-era policy to keep asylum seekers in Mexico waiting for hearings in U.S. immigration court, while also reaffirming its commitment to reinstating it by court order.
Homeland Security Secretary Alejandro Mayorkas said the “Remain in Mexico” policy likely contributed to a decline in illegal border crossings in 2019, but with “substantial and unjustifiable human costs” for asylum seekers who were exposed to violence while waiting in Mexico.
The announcement came more than two months after a federal judge ordered the policy be reinstated “in good faith,” while leaving an opening for the administration to try again to justify its end.
The administration said earlier this month that it planned to reinstate the policy, officially known as the “migrant protection protocols,” around mid-November, subject to Mexican government approval. Mexico wants cases to be generally concluded within six months, quick and accurate access to case information, and better access to a lawyer for asylum seekers.
Some of the administration’s most prominent pro-immigration allies say the time it took Mayorkas to draft Friday’s notice showed a lack of sense of urgency, which U.S. officials dispute.
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Many U.S.-based legal aid groups that have represented pending asylum seekers in Mexico say they will no longer take such cases, raising questions about how the U.S. can satisfy the Mexico’s insistence on better access to a lawyer. Administration officials say they believe there are enough other lawyers who will represent asylum seekers returned to Mexico.
About 70,000 asylum seekers are subject to the policy, which President Donald Trump introduced in January 2019 and his successor, Joe Biden, suspended on his first day in office. Mayorkas ended the policy in June after an internal review, saying it had achieved “mixed effectiveness”.
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 faced major violence while waiting in Mexico and faced a host of legal hurdles, such as accessing lawyers and case information.
Mayorkas said on Friday his second review assumed the policy had led to a significant drop in border crossings, calling it the strongest argument for maintaining it. Still, he said the benefits do not outweigh the costs in terms of dealings with Mexico, resources and risks associated with exposure to violence while waiting in Mexican border towns.
“(There) are inherent problems with the program that no amount of resources can sufficiently address.” he wrote. “Others cannot be addressed without undermining key administration priorities and more durable solutions.”
A three-judge panel of the United States Court of Appeals for the 5th Circuit is scheduled to hear arguments in a lawsuit filed by the states of Texas and Missouri on Tuesday. The administration is expected to ask that the case be referred to U.S. District Judge Matthew Kacsmaryk, a Trump appointee in Amarillo, Texas, who in August ordered the policy reinstated.
The administration is rebuilding tent courts in the Texas border towns of Laredo and Brownsville to handle “stay in Mexico” cases.