President Joe Biden’s administration is taking steps to restart by mid-November a programme begun under his predecessor Donald Trump that forced asylum seekers to wait in Mexico for US court hearings after a federal court deemed the termination of the programme unjustified, US officials said.
The administration, however, is planning to make another attempt to rescind the Migrant Protection Protocols (MPP), commonly called the ‘Remain in Mexico’ policy, even as it takes steps to comply with the August ruling by Texas-based US District Court judge Matthew Kacsmaryk, the officials said.
The possible reinstatement of MPP - even on a short-term basis - would add to a confusing mix of US policies in place at the Mexican border, where crossings into the US have reached 20-year highs in recent months.
The administration said it can only move forward if Mexico agrees.
Officials from both countries said they are discussing the matter. Mexico’s foreign ministry said in a statement it has expressed a “number of concerns” over MPP to US officials, particularly around due process, legal certainty, access to legal aid and the safety of migrants.
A senior Mexican official, speaking on condition of anonymity, said “there is no decision at this point” about the programme’s restart.
Trump, a Republican known for hard-line immigration policies, created the MPP policy in 2019, arguing that many asylum claims were fraudulent and applicants allowed into the US might end up staying illegally if they skipped court hearings.
Biden, a Democrat, ended the policy soon after taking office in January as part of his pledge to take a more humane approach to border issues.
Immigration advocates have said the programme exposed migrants to violence and kidnappings in dangerous border cities where people camped out for months or years in shelters or on the street waiting for US asylum hearings.
Biden in March said that “I make no apology” for ending MPP, a policy he described as sending people to the “edge of the Rio Grande in a muddy circumstance with not enough to eat.”
After the Republican-led states of Texas and Missouri sued Biden over his decision to end the programme, Kacsmaryk ruled in August that it must be reinstated.
The US Supreme Court, whose 6-3 conservative majority includes three justices appointed by Trump, subsequently let Kacsmaryk’s ruling stand, rejecting a bid by Biden’s administration to block it. The administration has said it will comply with Kacsmaryk’s ruling “in good faith” while continuing its appeal in the case. The administration also plans to issue a fresh memo to terminate the programme in the hopes it will resolve any legal concerns surrounding the previous one, officials said.
“Re-implementation is not something that the administration has wanted to do,” a US department of homeland security (DHS) official, speaking on condition of anonymity, said in a call with reporters. “But in the interim we are under this obligation of the court.”
In a court filing the administration said that “although MPP is not yet operational,” they are taking all the steps necessary to re-implement it by next month.
Those steps include preparing courts, some housed in tents, near the border where asylum hearings could be held.
The administration said in the filing that these facilities will take about 30 days to build, costing approximately $14.1mn to erect and $10.5mn per month to operate.
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